B-26801, JUNE 29, 1942, 21 COMP. GEN. 1139

B-26801, JUNE 29, 1942, 21 COMP. GEN. 1139

RETIREMENT - DISTRICT OF COLUMBIA JUDGES THE PROVISIONS OF SECTION 11 (A) OF THE ACT OF APRIL 1, 1942, ESTABLISHING A RETIREMENT SYSTEM FOR JUDGES OF THE MUNICIPAL COURT, THE MUNICIPAL COURT OF APPEALS AND OF THE JUVENILE COURT OF THE DISTRICT OF COLUMBIA, ARE NOT MANDATORY BUT MERELY GRANT SAID JUDGES THE PRIVILEGE OF ELECTING TO RECEIVE THE BENEFITS THEREIN PROVIDED, AND UNTIL SUCH ELECTION IS MADE, SAID JUDGES ARE NOT ,SUBJECT TO ANOTHER RETIREMENT SYSTEM" SO AS TO EXCLUDE THEM FROM THE BENEFITS OF THE CIVIL SERVICE RETIREMENT ACT OF 1930, AS AMENDED, TO WHICH THEY ARE OTHERWISE ENTITLED. IF A JUDGE OF THE MUNICIPAL COURT, THE MUNICIPAL COURT OF APPEALS OR OF THE JUVENILE COURT OF THE DISTRICT OF COLUMBIA ELECTS TO ACCEPT THE RETIREMENT BENEFITS AUTHORIZED FOR JUDGES OF SUCH COURTS BY SECTION 11 (A) OF THE ACT OF APRIL 1, 1942, HE WILL BE REGARDED AS HAVING RELINQUISHED HIS RIGHT TO RETIREMENT BENEFITS UNDER THE CIVIL SERVICE RETIREMENT ACT OF 1930, AS AMENDED--- A CLAIM FOR RETIREMENT DEDUCTIONS UNDER THE LATTER ACT TO BE REGARDED AS SUCH AN ELECTION.

COMPTROLLER GENERAL WARREN TO THE PRESIDENT, UNITED STATES CIVIL SERVICE COMMISSION, JUNE 29, 1942:

I HAVE YOUR LETTER OF JUNE 17, 1942, AS FOLLOWS:

SECTION 3 OF THE CIVIL SERVICE RETIREMENT ACT OF MAY 29, 1930, AS AMENDED, PROVIDES IN PART:

"THIS ACT SHALL APPLY TO ALL OFFICERS AND EMPLOYEES IN OR UNDER THE EXECUTIVE, JUDICIAL, AND LEGISLATIVE BRANCHES OF THE UNITED STATES GOVERNMENT, AND TO ALL OFFICERS AND EMPLOYEES OF THE MUNICIPAL GOVERNMENT OF THE DISTRICT OF COLUMBIA, EXCEPT ELECTIVE OFFICERS AND HEADS OF EXECUTIVE DEPARTMENTS: PROVIDED, THAT THIS ACT SHALL NOT APPLY TO ANY SUCH OFFICER OR EMPLOYEE OF THE UNITED STATES OR OF THE MUNICIPAL GOVERNMENT OF THE DISTRICT OF COLUMBIA SUBJECT TO ANOTHER RETIREMENT SYSTEM FOR SUCH OFFICERS AND EMPLOYEES OF SUCH GOVERNMENTS: * * *.'

THE JUDGES OF THE VARIOUS COURTS OF THE DISTRICT OF COLUMBIA NOT ALREADY SUBJECT THERETO WERE BROUGHT WITHIN THE TERMS OF THE RETIREMENT ACT BY THE AMENDMENT OF JANUARY 24, 1942, AND DEDUCTIONS HAVE BEEN TAKEN FROM THEIR SALARY FOR RETIREMENT PURPOSES SINCE THAT DATE. AT LEAST ONE OF THESE JUDGES HAS BEEN CONTRIBUTING TO THE RETIREMENT FUND FOR SEVERAL YEARS, HAVING RETAINED MEMBERSHIP BY REASON OF CONTINUITY WITH PRIOR SERVICE UNDER THE RETIREMENT ACT. (10 COMP. GEN. 491; 34 OPS. ATTY. GEN. 334).

SECTION 11 (A), PUBLIC NO. 512, 77TH CONGRESS, APPROVED APRIL 1, 1942, READS:

"ANY JUDGE OF THE MUNICIPAL COURT FOR THE DISTRICT OF COLUMBIA, ANY JUDGE OF THE MUNICIPAL COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA, AS ESTABLISHED BY THIS ACT, OR ANY JUDGE OF THE JUVENILE COURT OF THE DISTRICT OF COLUMBIA, MAY HEREAFTER RETIRE AFTER HAVING SERVED AS A JUDGE OF SUCH COURT FOR A PERIOD OR PERIODS AGGREGATING TWENTY YEARS OR MORE, WHETHER CONTINUOUSLY OR NOT. ANY JUDGE WHO SO RETIRES SHALL RECEIVE ANNUALLY IN EQUAL MONTHLY INSTALLMENTS, DURING THE REMAINDER OF HIS LIFE, A SUM EQUAL TO SUCH PROPORTION OF THE SALARY RECEIVED BY SUCH JUDGE AT THE DATE OF SUCH RETIREMENT AS THE TOTAL OF HIS AGGREGATE YEARS OF SERVICE BEARS TO THE PERIOD OF THIRTY YEARS, THE SAME TO BE PAID IN THE SAME MANNER AS THE SALARY OF SUCH JUDGE. IN NO EVENT SHALL THE SUM RECEIVED BY ANY SUCH JUDGE HEREUNDER BE IN EXCESS OF THE SALARY OF SUCH JUDGE AT THE DATE OF SUCH RETIREMENT. IN COMPUTING THE YEARS OF SERVICE UNDER THIS SECTION, SERVICE IN EITHER THE POLICE COURT OF THE DISTRICT OF COLUMBIA OR THE MUNICIPAL COURT OF THE DISTRICT OF COLUMBIA, OR THE JUVENILE COURT OF THE DISTRICT OF COLUMBIA, AS HERETOFORE CONSTITUTED, SHALL BE INCLUDED WHETHER OR NOT SUCH SERVICE BE CONTINUOUS. THE TERMS "RETIRE" AND "RETIREMENT" AS USED IN THIS SECTION SHALL MEAN AND INCLUDE RETIREMENT, RESIGNATION, OR FAILURE OF REAPPOINTMENT UPON THE EXPIRATION OF THE TERM OF OFFICE OF AN INCUMBENT.'

THE COMMISSION HAS BEEN INFORMALLY ADVISED THAT A NUMBER OF THE DISTRICT OF COLUMBIA JUDGES HAVE DISCONTINUED THEIR CONTRIBUTIONS TO THE CIVIL SERVICE RETIREMENT AND DISABILITY FUND AND EXPECT TO SUBMIT CLAIMS FOR REFUND OF RETIREMENT DEDUCTIONS PREVIOUSLY MADE. FURTHERMORE, WE UNDERSTAND, INFORMALLY, THAT SOME OF THOSE NOW UNDER CONSIDERATION FOR APPOINTMENT AS JUDGES, AS AUTHORIZED BY SAID ACT OF APRIL 1, 1942, HAVE BEEN UNDER THE CIVIL SERVICE RETIREMENT SYSTEM FOR A NUMBER OF YEARS PAST, AND CONSEQUENTLY, IF APPOINTED, THEY WILL TRANSFER FROM THEIR PRESENT POSITIONS IN WHICH THEY ARE NOW MEMBERS OF THE RETIREMENT SYSTEM, TO THEIR NEW POSITIONS AS JUDGES OF SAID COURTS WITHOUT BREAK IN SERVICE.

THE FORMER COMPTROLLER GENERAL IN HIS DECISION OF AUGUST 29, 1934 (14 COMP. GEN. 174) HELD:

"THERE ARE SEVERAL RETIREMENT ACTS IN FORCE AMONG PERSONNEL SUBJECT TO THE CIVIL-SERVICE LAWS AND REGULATIONS, SUCH AS THE CIVIL RETIREMENT ACT, THE PANAMA CANAL RETIREMENT ACT, THE LIGHTHOUSE SERVICE RETIREMENT ACT, ETC. NO EMPLOYEE IS SUBJECT TO MORE THAN ONE RETIREMENT ACT AT THE SAME TIME. WHILE THE EMPLOYEES OF THE RAILROAD RETIREMENT BOARD ARE SUBJECT TO THE CIVIL-SERVICE LAWS AND REGULATIONS, AS THE ACT OF JUNE 27, 1934, SUPRA, SPECIFICALLY SUBJECTS THEM TO THE RETIREMENT SYSTEM THEREIN ESTABLISHED FOR RAILROAD EMPLOYEES, THEY ARE NOT REQUIRED TO CONTRIBUTE TO THE CIVIL SERVICE DISABILITY AND RETIREMENT FUND UNDER THE TERMS OF THE CIVIL RETIREMENT ACT.'

THIS DECISION HOLDS THAT EMPLOYEES OF THE RAILROAD RETIREMENT BOARD WHO WOULD OTHERWISE HAVE OCCUPIED A STATUS UNDER THE CIVIL SERVICE RETIREMENT LAW WERE REMOVED FROM THE OPERATION OF THAT LAW BY THE DEFINITE AND SPECIFIC TERMS OF THE ACT OF JUNE 27, 1934, WHICH MANDATORILY PLACED THEM UNDER THE SYSTEM SET UP FOR RAILROAD EMPLOYEES.

ON THE OTHER HAND, SECTION 11 (A), SUPRA, PROVIDES FOR A PAYMENT OF BENEFITS AFTER COMPLETION OF TWENTY YEARS' SERVICE AS A JUDGE, BUT HAS NO PROVISION FOR THE VESTING OF INTEREST IN ANY BENEFIT BEFORE THE COMPLETION OF TWENTY YEARS OF SUCH SERVICE. FURTHERMORE, THE ACCEPTANCE OF SUCH BENEFIT APPEARS ENTIRELY WITHIN THE DISCRETION OF THE JUDGE. IN THE OPINION OF THIS COMMISSION, THE RETIREMENT BENEFITS PROVIDED BY THE ACT OF APRIL 1, 1942, NOT BEING MANDATORY, DOES NOT CONSTITUTE A "RETIREMENT SYSTEM" WITHIN THE MEANING OF THE TERM AS USED IN SECTION 3 OF THE CIVIL SERVICE RETIREMENT ACT UNTIL THE PARTICULAR JUDGE HAS BOTH RENDERED AT LEAST TWENTY YEARS OF SERVICE AND HAS ELECTED TO RECEIVE THE RETIREMENT BENEFIT. UPON EXERCISING SUCH ELECTION AFTER HAVING RENDERED AT LEAST TWENTY YEARS OF SERVICE, THE JUDGE THEREUPON BECOMES SUBJECT TO A ,RETIREMENT SYSTEM" THEREBY EXCLUDING HIMSELF FROM THE OPERATION OF THE CIVIL SERVICE RETIREMENT ACT AND BECOMING ENTITLED TO A REFUND OF ACCUMULATED DEDUCTIONS. IT WILL BE OBSERVED, FROM THE CONSIDERATION OF THE PROVISIONS OF SAID SECTION 11 (A) OF THE ACT OF APRIL 1, 1942, THAT MEMBERSHIP IN A RETIREMENT SYSTEM AS SUCH, IS NOT THEREIN PROVIDED, AND THAT EVENTUAL RETIREMENT STATUS IS ENTIRELY CONTINGENT UPON REAPPOINTMENT OF THE JUDGES OF SAID COURTS FOR A SUFFICIENT NUMBER OF TERMS SO AS TO AGGREGATE TWENTY YEARS OF SERVICE. HENCE, IF A JUDGE IS NOT REAPPOINTED AND DOES NOT HAVE THE REQUIRED TWENTY YEARS OF SERVICE, HE WILL NOT ATTAIN RETIREMENT ELIGIBILITY.

YOUR DECISION AS TO WHETHER ANY PERSON SERVING AS JUDGE OF ONE OF THE COURTS CREATED BY PUBLIC 512 WOULD BE EXCLUDED FROM THE TERMS OF THE CIVIL SERVICE RETIREMENT ACT IN VIEW OF THE PROVISIONS OF SECTION 11 (A) OF THE SAID PUBLIC NO. 512, IS REQUESTED.

IN THE EVENT YOUR ANSWER IS IN THE AFFIRMATIVE, MAY THE JUDGES NOW SERVING OR ANY PERSON WHO MAY BE APPOINTED AS JUDGE OF THESE COURTS WHO IS SUBJECT TO THE CIVIL SERVICE RETIREMENT ACT ELECT TO RETAIN HIS CIVIL SERVICE RETIREMENT STATUS?

AS PUBLIC 512 BECOMES EFFECTIVE JULY 1, 1942, AND APPOINTMENTS ARE PRESENTLY BEING CONSIDERED, AN EARLY DECISION WILL BE APPRECIATED.

SECTION 3 OF THE CIVIL SERVICE RETIREMENT ACT OF MAY 29, 1930, AS AMENDED BY THE ACTS OF JANUARY 24, 1942, PUBLIC LAW 411, AND MARCH 7, 1942, PUBLIC LAW 490, 56 STAT. 143, 147, QUOTED IN THE FIRST PARAGRAPH OF YOUR LETTER, SPECIFICALLY INCLUDES, AMONG OTHERS, OFFICERS AND EMPLOYEES IN OR UNDER THE "JUDICIAL" BRANCH OF THE UNITED STATES GOVERNMENT. EXCEPT TO THE EXTENT THAT THE PROVISO TO SAID SECTION OF THE STATUTE MAY EXCLUDE THEM, THE JUDGES OF THE VARIOUS COURTS HERE INVOLVED APPEAR TO FALL WITHIN THE TERM "JUDICIAL" OFFICERS AND, THEREFORE, WOULD COME WITHIN THE PURVIEW OF THE SAID CIVIL SERVICE RETIREMENT ACT. THE PROVISO EXCLUDES OFFICERS AND EMPLOYEES OF THE EXECUTIVE, JUDICIAL, AND LEGISLATIVE BRANCHES OF THE UNITED STATES GOVERNMENT AND OF THE MUNICIPAL GOVERNMENT OF THE DISTRICT OF COLUMBIA WHO ARE SUBJECT TO ANOTHER RETIREMENT SYSTEM. THE WORDS "SUBJECT TO," AS USED IN THE STATUTE, CONNOTE OR ENTAIL AN OBLIGATION ON THE PART OF THE OFFICERS OR EMPLOYEES REQUIRED BY THE TERMS OF ANOTHER RETIREMENT SYSTEM, THAT IS, AN OBLIGATION ARISING SOLELY BY REASON OF AN APPOINTMENT OR EMPLOYMENT STATUS REQUIRING THEM TO COMPLY WITH, AND MAKING THEM LIABLE TO, THE TERMS, CONDITIONS, AND LIMITATIONS OF THE LAWS SETTING UP ANOTHER RETIREMENT SYSTEM, SUCH AS, A REQUIREMENT FOR REGULAR DEDUCTIONS FROM THEIR SALARIES, LIMITING ACTIVE SERVICE TO A CERTAIN AGE, FOR A PARTICULAR PERIOD OF SERVICE, AND SUCH LIKE.

SECTION 11 (A) OF THE ACT OF APRIL 1, 1942, PUBLIC LAW 512, 56 STAT. 197, QUOTED IN THE THIRD PARAGRAPH OF YOUR LETTER, APPEARS TO CREATE IN RESPECT OF THE JUDGES SERVING UNDER SAID ACT, A SEPARATE AND DISTINCT RETIREMENT SYSTEM (SEE FEATURE NUMBERED 8 IN HOUSE REPORT NO. 1236, ON H.R. 5784, WHICH BECAME THE PRESENT LAW), BUT SAID SECTION DOES NOT MAKE IT OBLIGATORY OR MANDATORY UPON THEM TO ACCEPT THE RETIREMENT BENEFITS THEREIN PROVIDED. NO CONDITIONS ARE IMPOSED FOR RETIREMENT AT ANY PARTICULAR AGE OR FOR LENGTH OF SERVICE. THE WORDS "MAY HEREAFTER RETIRE" MERELY BETOKEN A PRIVILEGE OR DISCRETION TO RETIRE WITH AN ANNUITY AFTER 20 OR MORE YEARS OF SERVICE AS A JUDGE OF ONE OF THE COURTS NAMED IN THE LAW.

IN THE DECISION OF APRIL 23, 1931, 10 COMP. GEN. 491, 492, IT WAS STATED, SO FAR AS HERE MATERIAL:

THE PROVISION IN SECTION 3 (D) OF THE CIVIL RETIREMENT ACT, AS AMENDED BY THE ACT OF MAY 29, 1930, 46 STAT. 471, INCLUDING WITHIN THE PURVIEW OF THE ACT "UNCLASSIFIED EMPLOYES TRANSFERRED FROM CLASSIFIED POSITIONS," IS IDENTICAL WITH A PROVISION IN SECTION 3 (D) IN THE EARLIER ACT OF JULY 3, 1926, 44 STAT. 906. THE INTENT OF THIS PROVISION WAS TO GIVE STATUTORY APPROVAL TO THE PRIOR OPINIONS OF THE ATTORNEY GENERAL AND THE DECISIONS OF THE COMPTROLLER GENERAL THAT RETIREMENT BENEFITS WERE PRESERVED TO ALL EMPLOYEES UNDER THE FEDERAL GOVERNMENT SERVING IN POSITIONS NOT WITHIN THE PURVIEW OF THE CIVIL RETIREMENT ACT, IF SUCH SERVICE IS CONTINUOUS WITH PRIOR SERVICE IN POSITIONS WITHIN THE PURVIEW OF THE CIVIL RETIREMENT ACT. 34 OP. ATTY. GEN. 192; ID. 334; ID. 515; 5 COMP. GEN. 254; 6 ID. 69; ID. 118; ID. 572; 7 ID. 150; ID. 246; 9 ID. 69. OF COURSE, THIS RULE WOULD NOT APPLY WHERE THE SUBSEQUENT SERVICE IS IN A POSITION UNDER THE GOVERNMENT SUBJECT TO A FEDERAL RETIREMENT SYSTEM OTHER THAN THAT PRESCRIBED BY THE CIVIL RETIREMENT ACT, SUCH AS THAT APPLICABLE TO THE MILITARY AND NAVAL SERVICES, THE FOREIGN SERVICE, THE LIGHTHOUSE SERVICE, POLICEMEN AND FIREMEN, DISTRICT OF COLUMBIA, SCHOOL-TEACHERS, DISTRICT OF COLUMBIA, AND PANAMA CANAL SERVICE AFTER JULY 1, 1931 (SEE ACT OF MARCH 2, 1931, 46 STAT. 1471). ( ITALICS SUPPLIED.) SEE, ALSO, 14 COMP. GEN. 123; ID. 174; 18 ID. 683, 685; 20 ID. 509.

THE WORDS "SUBJECT TO" AS USED IN THE LAST SENTENCE OF THE QUOTED PORTION OF THE DECISION OF APRIL 23, 1931, STATING AN EXCEPTION TO THE GENERAL RULE--- THE GENERAL RULE AND EXCEPTION HAVING BEEN APPLIED CONSISTENTLY IN ALL DECISIONS OF THIS OFFICE IN THIS MATTER--- WERE USED IN THE SAME SENSE AS THEY ARE USED IN SECTION 3 OF THE CIVIL SERVICE RETIREMENT ACT, SUPRA, AND ARE FOR APPLICATION IN THE SAME MANNER. IN A DECISION OF OCTOBER 11, 1934, A-57221 (NOT PRINTED), GIVING RECONSIDERATION TO THE DECISION OF AUGUST 29, 1934, 14 COMP. GEN. 174, A PART OF WHICH LATTER DECISION IS QUOTED IN YOUR LETTER, IT WAS STATED:

THE ACT OF JUNE 27, 1934, 48 STAT. 12, ESTABLISHES A RETIREMENT SYSTEM FOR RAILROAD EMPLOYEES. SECTION 9 (A) OF THE ACT PROVIDES:

"THE MEMBERS AND EMPLOYEES OF THE BOARD SHALL BE INCLUDED AS EMPLOYEES UNDER THIS ACT * * *.'

THIS ESTABLISHES FOR THE FEDERAL PERSONNEL OF THE BOARD THE SAME RETIREMENT SYSTEM AS HAS BEEN ESTABLISHED BY THE ACT FOR RAILROAD PERSONNEL, SEPARATE AND DISTINCT FROM THE RETIREMENT SYSTEM ESTABLISHED FOR CERTAIN CLASSES OF FEDERAL PERSONNEL BY THE CIVIL RETIREMENT ACT, OR ANY OTHER RETIREMENT SYSTEM APPLICABLE TO FEDERAL PERSONNEL. THE QUOTED PROVISION FROM SECTION 9 (A) OF THE STATUTE IS MANDATORY, LEAVING NO OPTION TO THE PERSONNEL OF THE BOARD TO ELECT TO RECEIVE RETIREMENT BENEFITS UNDER ANOTHER FEDERAL RETIREMENT SYSTEM.

IN THE LIGHT OF THE FOREGOING CONSIDERATIONS THE PROVISIONS OF SECTION 11 (A) OF THE ACT OF APRIL 1, 1942, WOULD APPEAR TO BE CLEARLY DISTINGUISHABLE FROM THE PROVISIONS OF LAWS ESTABLISHING OTHER RETIREMENT SYSTEMS HERETOFORE CONSIDERED IN DECISIONS OF THIS OFFICE, IN THAT THE ACT OF APRIL 1, 1942, GRANTS A DISCRETION OR OPTION IN THE JUDGES TO RETIRE UNDER ITS PROVISIONS, WHEREAS ALL OTHER RETIREMENT LAWS CONSIDERED MAKE IT MANDATORY BY REASON OF AN EMPLOYMENT OR APPOINTMENT STATUS THAT RETIREMENT BENEFITS BE GRANTED EXCLUSIVELY UNDER THE LAWS APPLICABLE TO SUCH STATUS.

IT IS MY VIEW THAT YOUR FIRST QUESTION IS FOR ANSWERING IN THE NEGATIVE, AND YOUR SECOND QUESTION, IN THE AFFIRMATIVE. COMPARE 18 COMP. GEN. 955, 19 ID. 352.

THE EFFECT OF SUCH ANSWERS WOULD BE THAT UNLESS AND UNTIL A JUDGE ELECTS TO ACCEPT THE BENEFITS OF THE RETIREMENT SYSTEM ESTABLISHED BY SECTION 11 (A) OF THE ACT OF APRIL 1, 1942, HE MAY BE REGARDED AS SUBJECT TO THE PROVISIONS OF THE RETIREMENT ACT OF MAY 29, 1930, AS AMENDED. IF A JUDGE ELECTS TO ACCEPT THE RETIREMENT BENEFITS OF THE ACT OF APRIL 1, 1942, HE WILL BE REGARDED AS HAVING RELINQUISHED HIS RIGHT TO RETIREMENT BENEFITS UNDER THE CIVIL SERVICE RETIREMENT ACT OF 1930, AS AMENDED, A CLAIM FOR REFUND OF RETIREMENT DEDUCTIONS UNDER SAID LATTER ACT TO BE ACCEPTED AS AN ELECTION TO ACCEPT THE BENEFITS OF THE RETIREMENT SYSTEM ESTABLISHED BY SECTION 11 (A) OF THE ACT OF APRIL 1, 1942.