B-26663, JUNE 24, 1942, 21 COMP. GEN. 1125

B-26663: Jun 24, 1942

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THERE IS NO INHIBITION AGAINST PAYMENT OF A "SURVIVOR" ANNUITY AUTHORIZED BY SECTION 4 OF THE CIVIL SERVICE RETIREMENT ACT. TO HIS DULY DESIGNATED BENEFICIARY WHILE SUCH BENEFICIARY IS EMPLOYED IN A CIVILIAN POSITION AND IS IN RECEIPT OF ACTIVE SERVICE COMPENSATION. 10 COMP. 1942: I HAVE YOUR LETTER OF JUNE 11. PAYMENTS OF ANNUITY WERE CONTINUED TO THE BENEFICIARY IN ACCORDANCE WITH THE TERMS OF THE LAW. GEN. 258 STATES THAT A WIDOW WHO IS RECEIVING DEATH BENEFITS UNDER THE EMPLOYEES' COMPENSATION ACT ON ACCOUNT OF DEATH OF HER HUSBAND MAY NOT RECEIVE RETIREMENT ANNUITY BASED UPON HER OWN PERIOD OF SERVICE. THIS OFFICE DESIRES YOUR RULING AS TO WHETHER THERE IS ANY OBJECTION TO THE SALARY AND ANNUITY PAYMENT.

B-26663, JUNE 24, 1942, 21 COMP. GEN. 1125

COMPENSATION - DOUBLE - CONCURRENT "SURVIVOR" ANNUITY AND ACTIVE SERVICE COMPENSATION UPON THE DEATH OF A RETIRED EMPLOYEE, THERE IS NO INHIBITION AGAINST PAYMENT OF A "SURVIVOR" ANNUITY AUTHORIZED BY SECTION 4 OF THE CIVIL SERVICE RETIREMENT ACT, AS AMENDED, TO HIS DULY DESIGNATED BENEFICIARY WHILE SUCH BENEFICIARY IS EMPLOYED IN A CIVILIAN POSITION AND IS IN RECEIPT OF ACTIVE SERVICE COMPENSATION. 10 COMP. GEN. 309; 13 ID. 54; IBID. 258; 14 ID. 285; AND 16 ID. 121, DISTINGUISHED.

COMPTROLLER GENERAL WARREN TO THE PRESIDENT, UNITED STATES CIVIL SERVICE COMMISSION, JUNE 24, 1942:

I HAVE YOUR LETTER OF JUNE 11, 1942, AS FOLLOWS:

THE CIVIL SERVICE RETIREMENT ACT PERMITS AN ANNUITANT RETIRING BECAUSE OF HAVING ATTAINED THE SUPERANNUATION OR OPTIONAL RETIREMENT AGE TO ELECT A REDUCED ANNUITY CARRYING WITH IT A CONTINUING BENEFIT UPON THE ANNUITANT'S DEATH TO A DESIGNATED BENEFICIARY. THE LAW (SECTION 2 OF THE ACT OF AUGUST 4, 1939) STIPULATES THAT THE AMOUNT OF THE TWO ANNUITIES SHALL BE SUCH THAT THEIR COMBINED ACTUARIAL VALUE ON THE DATE OF RETIREMENT SHALL BE THE SAME AS THE ACTUARIAL VALUE OF THE SINGLE LIFE INCREASED ANNUITY WITH FORFEITURE.

THIS COMMISSION HAS BEFORE IT THE CASE OF A FOURTH-CLASS POSTMASTER WHO, UPON RETIREMENT, ELECTED A JOINT AND SURVIVORSHIP ANNUITY, NAMING HIS WIFE AS BENEFICIARY. UPON HIS DEATH, PAYMENTS OF ANNUITY WERE CONTINUED TO THE BENEFICIARY IN ACCORDANCE WITH THE TERMS OF THE LAW. THE WIDOW HAS NOW BEEN APPOINTED TO HER HUSBAND'S FORMER POSITION, THAT OF FOURTH-CLASS POSTMASTER, AND THE QUESTION ARISES AS TO WHETHER OR NOT SHE MAY RECEIVE THE SURVIVORSHIP ANNUITY AND ALSO THE REGULAR FEDERAL SALARY FOR THE POSITION.

THIS COMMISSION KNOWS OF NO PROVISION OF LAW OR REGULATION WHICH WOULD BAR THE RECEIPT OF BOTH PAYMENTS UNDER THESE CIRCUMSTANCES. HOWEVER, AS NUMEROUS DECISIONS OF YOUR OFFICE HOLD THAT SALARY AND ANNUITY MAY NOT BE PAID TO THE SAME INDIVIDUAL DURING THE SAME PERIOD OF TIME, AND 13 COMP. GEN. 258 STATES THAT A WIDOW WHO IS RECEIVING DEATH BENEFITS UNDER THE EMPLOYEES' COMPENSATION ACT ON ACCOUNT OF DEATH OF HER HUSBAND MAY NOT RECEIVE RETIREMENT ANNUITY BASED UPON HER OWN PERIOD OF SERVICE, THIS OFFICE DESIRES YOUR RULING AS TO WHETHER THERE IS ANY OBJECTION TO THE SALARY AND ANNUITY PAYMENT.

CARRYING THIS ONE STEP FURTHER, THERE WILL ALSO BE INVOLVED THE QUESTION OF A SURVIVOR ANNUITANT WHO BECOMES ENTITLED TO ANNUITY FOR SERVICES RENDERED, IN WHICH EVENT TWO ANNUITIES UNDER THE SAME LAW WILL BE AUTHORIZED IN FAVOR OF THE SAME PERSON.

YOUR DECISION ON THESE MATTERS IS RESPECTFULLY REQUESTED.

SECTION 4 OF THE CIVIL SERVICE RETIREMENT ACT, AS AMENDED BY SECTION 2 OF THE ACT OF AUGUST 4, 1939, 53 STAT. 1201, CONTAINS A PROVISION AS FOLLOWS:

(D) ANY EMPLOYEE RETIRING UNDER THE PROVISIONS OF SECTION 1 OF THIS ACT MAY AT THE TIME OF HIS RETIREMENT ELECT TO RECEIVE IN LIEU OF THE LIFE ANNUITY DESCRIBED HEREIN A REDUCED ANNUITY PAYABLE TO HIM DURING HIS LIFE, AND AN ANNUITY AFTER HIS DEATH PAYABLE TO HIS BENEFICIARY, DULY DESIGNATED IN WRITING AND FILED WITH THE CIVIL SERVICE COMMISSION AT THE TIME OF HIS RETIREMENT, DURING THE LIFE OF SUCH BENEFICIARY (A) EQUAL TO OR (B) 50 PERCENTUM OF SUCH REDUCED ANNUITY AND UPON THE DEATH OF SUCH SURVIVING BENEFICIARY ALL PAYMENTS SHALL CEASE AND NO FURTHER ANNUITY SHALL BE DUE OR PAYABLE. THE AMOUNTS OF THE TWO ANNUITIES SHALL BE SUCH THAT THEIR COMBINED ACTUARIAL VALUE ON THE DATE OF RETIREMENT AS DETERMINED BY THE CIVIL SERVICE COMMISSION SHALL BE THE SAME AS THE ACTUARIAL VALUE OF THE SINGLE LIFE INCREASED ANNUITY WITH FORFEITURE PROVIDED BY THIS SECTION: PROVIDED, THAT NO ELECTION IN LIEU OF THE LIFE ANNUITY PROVIDED HEREIN SHALL BECOME EFFECTIVE IN CASE AN EMPLOYEE DIES WITHIN THIRTY DAYS AFTER THE EFFECTIVE DATE OF RETIREMENT, AND IN THE EVENT OF SUCH DEATH WITHIN THIS PERIOD, SUCH DEATH SHALL BE CONSIDERED AS A DEATH IN ACTIVE SERVICE.

AS STATED IN YOUR LETTER, NUMEROUS DECISIONS OF THIS OFFICE HAVE HELD THAT RETIREMENT ANNUITY AND COMPENSATION FOR ACTIVE SERVICE IN A CIVILIAN CAPACITY MAY NOT BE PAID TO THE SAME PERSON FOR THE SAME PERIOD OF TIME. 10 COMP. GEN. 309; 13 ID. 54; 14 ID. 285; 16 ID. 121. SEE, ALSO, BRUNSWICK V. ELLIOTT, 103 FED./2D) 746. THOSE HOLDINGS WERE PREDICATED UPON THE BASIS THAT THE EVIDENT PURPOSE AND INTENT OF CIVIL RETIREMENT LEGISLATION WAS WHOLLY INCONSISTENT WITH THE DUAL PAYMENT OF ACTIVE SERVICE COMPENSATION AND RETIREMENT ANNUITY TO THE SAME PERSON FOR THE SAME PERIOD OF TIME, PARTICULARLY IN VIEW OF A NUMBER OF STATUTORY PROHIBITIONS AGAINST REEMPLOYMENT OF RETIRED PERSONNEL AND AGAINST CONTINUANCE OF ANNUITY PAYMENTS AFTER REEMPLOYMENT IN ACTIVE SERVICE, TO WHICH ATTENTION IS HEREINAFTER DIRECTED. COMPARE BRUNSWICK V. UNITED STATES, 90 CT.1CLS. 285; 20 COMP. GEN. 443. HOWEVER, THOSE DECISIONS HAD RELATION SOLELY TO RETIRED EMPLOYEES IN THE LIGHT OF THE PROHIBITIONS CONTAINED IN THE VARIOUS SECTIONS OF THE CIVIL RETIREMENT ACT AND IN OTHER STATUTES. SEE SECTION 204 OF THE ECONOMY ACT OF JUNE 30, 1932, 47 STAT. 404; SECTION 2 OF THE RETIREMENT ACT OF MAY 29, 1930, AS AMENDED BY SECTION 2 OF THE ACT OF JANUARY 24, 1942, PUBLIC LAW 411, 56 STAT. 14; SECTION 6 OF THE RETIREMENT ACT OF MAY 29, 1930, 46 STAT. 472, 473; SECTION 7 OF THE SAME STATUTE, AS AMENDED BY SECTION 5 OF THE ACT OF JANUARY 24, 1942, 56 STAT. 16; AND SECTION 8 OF THE ACT OF JUNE 16, 1933, 48 STAT. 305, 306. NONE OF THESE PROVISIONS OF LAW, OR OF ANY OTHER STATUTE, PROHIBITS THE BENEFICIARY OF A RETIRED EMPLOYEE WHO HAS BEEN GRANTED AN ANNUITY ON THE BASIS OF THE EMPLOYEE'S SERVICE UNDER THE PROVISIONS OF SECTION 4 (D) OF THE RETIREMENT ACT AS AMENDED, SUPRA, FROM BEING EMPLOYED IN A CIVILIAN POSITION OR FROM RECEIVING THE SALARY PAID FOR SUCH POSITION. SUCH AN ANNUITY GRANTED TO A DESIGNATED BENEFICIARY IS NOT IN ANY SENSE A RETIREMENT ANNUITY, BUT PARTAKES OF THE NATURE OF INSURANCE WHICH THE RETIRED EMPLOYEE PROVIDED FOR THE BENEFICIARY DESIGNATED BY HIM. HENCE, THE GENERAL RULE STATED IN DECISIONS OF THIS OFFICE FORBIDDING PAYMENT OF RETIREMENT ANNUITY CONCURRENTLY WITH PAYMENT FOR ACTIVE CIVILIAN SERVICE REASONABLY COULD NOT HAVE ANY APPLICATION TO THE SITUATION HERE PRESENTED.

THE DECISION OF APRIL 3, 1934, 13 COMP. GEN. 258, TO WHICH YOU REFER, HAD RELATION TO THE BROAD PROVISIONS OF SECTION 6 OF THE RETIREMENT ACT OF MAY 29, 1930, 46 STAT. 474, AND OF SECTION 7 OF THE EMPLOYEES' COMPENSATION ACT OF SEPTEMBER 7, 1916, 39 STAT. 743, PROHIBITING PAYMENT OF A RETIREMENT ANNUITY AND DISABILITY COMPENSATION TO THE SAME PERSON FOR THE SAME PERIOD OF TIME. THE CONCLUSION OF THAT DECISION WAS REQUIRED UNDER THE TERMS OF THE STATUTES THERE FOR CONSIDERATION BUT WHAT WAS THERE HELD HAS NO BEARING UPON THE INSTANT CASE. SEE, GENERALLY, 18 COMP. GEN. 308.

YOU ARE ADVISED, THEREFORE, THAT THERE APPEARS NO INHIBITION AGAINST THE PAYMENT OF A "SURVIVOR" ANNUITY TO A BENEFICIARY WHILE SUCH BENEFICIARY IS EMPLOYED IN A CIVILIAN POSITION AND IS IN RECEIPT OF ACTIVE SERVICE COMPENSATION.

IT IS UNDERSTOOD THAT THE QUESTION STATED IN THE PENULTIMATE PARAGRAPH OF YOUR LETTER, SUPRA, HAS NOT YET ARISEN. WITH REFERENCE THERETO IT MAY BE STATED THAT IF THE POSITION IN WHICH THE BENEFICIARY MAY BE EMPLOYED FALLS WITHIN THE PURVIEW OF THE RETIREMENT ACT IT WOULD APPEAR THAT RETIREMENT DEDUCTIONS SHOULD BE MADE REGULARLY FROM THE COMPENSATION PAID, AND, OF COURSE, THE QUESTION OF A RIGHT TO AN ANNUITY BASED UPON SUCH SERVICE WOULD BE FOR DETERMINATION UNDER THE LAWS IN FORCE AT THE TIME THE RIGHT TO AN ANNUITY ARISES.