B-5514, SEPTEMBER 25, 1939, 19 COMP. GEN. 389

B-5514: Sep 25, 1939

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AT WHICH TIME THE ADMINISTRATION OF THE RETIREMENT LAW WAS VESTED IN THE INTERIOR DEPARTMENT. WAS AN AMENDATORY RATHER THAN A CONSTRUING ACT AND WAS NOT RETROACTIVE TO COVER EMPLOYEES SEPARATED FROM SERVICE PRIOR TO ITS PASSAGE. THERE IS ENCLOSED COPY OF THE ASSISTANT SECRETARY'S DECISION. RECONSIDERATION OF WHICH WAS DENIED BY THE ADMINISTRATOR OF VETERANS' AFFAIRS AFTER TRANSFER OF RETIREMENT FUNCTIONS TO THE VETERANS' ADMINISTRATION ON THE GROUND THAT NO NEW AND MATERIAL EVIDENCE HAD BEEN PRESENTED AND NO LEGAL GROUNDS FOR REVERSAL ADVANCED WHICH HAD NOT BEEN CONSIDERED BY THE INTERIOR DEPARTMENT. THIS COMMISSION WAS NOT IN ACCORD WITH THE DECISION REFERRED TO. THERE IS NOW BEFORE THE COMMISSION AN ORIGINAL APPLICATION RECENTLY FILED WITH THIS OFFICE BY ONE MICHAEL TONELY WHO WAS ON JUNE 1.

B-5514, SEPTEMBER 25, 1939, 19 COMP. GEN. 389

RETIREMENT - CIVILIAN - RETROACTIVE ELIGIBILITY STATUS CHANGES - EFFECT OF ACT OF MARCH 27, 1922 THE PROVISIONS OF THE ACT OF MARCH 27, 1922, 42 STAT. 470, DO NOT AUTHORIZE THE ACCORDING OF A RETIREMENT STATUS WITH RIGHT TO ANNUITY TO A FORMER EMPLOYEE IN THE CLASSIFIED SERVICE WHOSE INELIGIBILITY FOR RETIREMENT UNDER THE CIVIL SERVICE RETIREMENT ACT OF MAY 22, 1920, 41 STAT. 614, BECAME FIXED, UNDER THE LAW IN EFFECT AT THE TIME, BY HIS TRANSFER TO AN UNCLASSIFIED POSITION AND SEPARATION FROM THE SERVICE PRIOR TO THE SAID 1922 ACT.

COMPTROLLER GENERAL BROWN TO THE PRESIDENT, UNITED STATES CIVIL SERVICE COMMISSION, SEPTEMBER 25, 1939:

CONSIDERATION HAS BEEN GIVEN YOUR LETTER OF AUGUST 3, 1939, AS FOLLOWS:

UNDER THE TERMS OF THE ORIGINAL RETIREMENT ACT OF MAY 22, 1920, WHICH INCLUDED WITHIN ITS PURVIEW EMPLOYEES IN THE CLASSIFIED CIVIL SERVICE TOGETHER WITH CERTAIN OTHER GROUPS SPECIFICALLY ENUMERATED THEREIN, AN EMPLOYEE TRANSFERRED FROM A CLASSIFIED TO AN UNCLASSIFIED POSITION LOST HIS STATUS THEREUNDER AND BECAME ENTITLED TO A REFUND OF RETIREMENT DEDUCTIONS WITH INTEREST THEREON.

THE ACT OF MARCH 27, 1922, AS INTERPRETED BY THE ATTORNEY GENERAL OF THE UNITED STATES IN HIS OPINION DATED JUNE 3, 1924 (34 OP. ATTY. GEN. 192), HAD THE EFFECT OF CONTINUING THE RETIREMENT STATUS OF AN EMPLOYEE SO TRANSFERRED SO LONG AS HE REMAINS CONTINUOUSLY IN THE SERVICE. UNDER DATE OF SEPTEMBER 11, 1926, AT WHICH TIME THE ADMINISTRATION OF THE RETIREMENT LAW WAS VESTED IN THE INTERIOR DEPARTMENT, THE ASSISTANT SECRETARY OF THE INTERIOR IN THE CASE OF GEORGE J. KLEFFNER HELD THAT THE ACT OF MARCH 27, 1922, WAS AN AMENDATORY RATHER THAN A CONSTRUING ACT AND WAS NOT RETROACTIVE TO COVER EMPLOYEES SEPARATED FROM SERVICE PRIOR TO ITS PASSAGE. THERE IS ENCLOSED COPY OF THE ASSISTANT SECRETARY'S DECISION, RECONSIDERATION OF WHICH WAS DENIED BY THE ADMINISTRATOR OF VETERANS' AFFAIRS AFTER TRANSFER OF RETIREMENT FUNCTIONS TO THE VETERANS' ADMINISTRATION ON THE GROUND THAT NO NEW AND MATERIAL EVIDENCE HAD BEEN PRESENTED AND NO LEGAL GROUNDS FOR REVERSAL ADVANCED WHICH HAD NOT BEEN CONSIDERED BY THE INTERIOR DEPARTMENT.

THIS COMMISSION WAS NOT IN ACCORD WITH THE DECISION REFERRED TO, AND UNDER DATE OF APRIL 4, 1935, THE ADMINISTRATION OF THE RETIREMENT LAW HAVING BEEN VESTED IN THIS OFFICE EFFECTIVE SEPTEMBER 1, 1934, SUBMITTED MR. KLEFFNER'S CASE WITH ITS VIEWS TO THE COMPTROLLER GENERAL. DECISION OF APRIL 4, 1935 (14 COMP. GEN. 734), COMPTROLLER GENERAL MCCARL HELD THAT NO AUTHORITY EXISTED TO RECONSIDER THE CASE IN THE ABSENCE OF FRAUD, MANIFEST ERROR ON THE FACE OF THE PROCEEDINGS, SUCH AS AN ERROR IN CALCULATION, OR THE PRESENTATION OF NEWLY DISCOVERED MATERIAL EVIDENCE SUFFICIENT IN A COURT OF LAW TO JUSTIFY A NEW TRIAL.

THERE IS NOW BEFORE THE COMMISSION AN ORIGINAL APPLICATION RECENTLY FILED WITH THIS OFFICE BY ONE MICHAEL TONELY WHO WAS ON JUNE 1, 1921, TRANSFERRED FROM THE CLASSIFIED POSITION OF HELPER GENERAL, BOSTON NAVY YARD, TO THE UNCLASSIFIED POSITION OF LABORER (COMMON) AT THE SAME STATION, FROM WHICH LATTER POSITION HE WAS SEPARATED EFFECTIVE AUGUST 4, 1921. THE COMMISSION IS OF THE OPINION THAT THE ACT OF MARCH 27, 1922, SHOULD BE CONSIDERED AS A CONSTRUING ACT AND AS SUCH RELATE BACK TO AUGUST 1, 1920, THE EFFECTIVE DATE OF THE RETIREMENT ACT OF MAY 22, 1920. IT HAS BEEN SO CONSIDERED BY THIS OFFICE IN ALL MATTERS PERTAINING TO THE ADMINISTRATION OF THE CIVIL SERVICE ACT AND RULES, AND IT IS FELT A LIKE CONSTRUCTION SHOULD BE GIVEN IN THE ADMINISTRATION OF THE CIVIL SERVICE RETIREMENT ACT. IF THIS VIEW WERE TO PREVAIL IT WOULD BE POSSIBLE TO ACCORD MR. TONELY A RETIREMENT STATUS AT DATE OF SEPARATION WITH RESULTANT TITLE TO ANNUITY BENEFITS.

FOR THE ABOVE REASONS AS WELL AS THOSE SET FORTH IN THE COMMISSION'S SUBMISSION OF MARCH 6, 1935, ON THE KLEFFNER CASE, SUPRA, MAY THE COMMISSION NOW ADJUDICATE THE TONELY AND OTHER SIMILAR PENDING CASES ON THE BASIS THAT THE SAID ACT OF MARCH 27, 1922, WAS A CONSTRUING ACT AND NOT AN AMENDATORY ACT?

YOUR RULING IN THIS CONNECTION WILL BE GREATLY APPRECIATED.

THE QUESTION YOU PRESENT IS, IN SUBSTANCE, WHETHER, BECAUSE OF THE PROVISIONS OF THE ACT OF MARCH 27, 1922, 42 STAT. 470, THE COMMISSION IS AUTHORIZED TO ACCORD MICHAEL TONELY, WHO WAS SEPARATED FROM THE SERVICE ON AUGUST 4, 1921, A RETIREMENT STATUS WITH RIGHT TO ANNUITY UNDER THE PROVISIONS OF THE RETIREMENT ACT OF MAY 22, 1920, 41 STAT. 614.

SECTION 11 OF THE ORIGINAL RETIREMENT ACT OF MAY 22, 1920, PROVIDES, IN PERTINENT PART, AS FOLLOWS:

THAT IN THE CASE OF AN EMPLOYEE IN THE CLASSIFIED CIVIL SERVICE OF THE UNITED STATES WHO SHALL BE TRANSFERRED TO AN UNCLASSIFIED POSITION * * * THE TOTAL AMOUNT OF DEDUCTIONS OF SALARY * * * SHALL, UPON APPLICATION, BE RETURNED TO SUCH EMPLOYEE: * * *

THE ACT OF MARCH 27, 1922, PROVIDES:

THAT IN THE ADMINISTRATION OF THE CIVIL SERVICE RETIREMENT ACT APPROVED MAY 22, 1920, THE EXPRESSION "ALL EMPLOYEES IN THE CLASSIFIED CIVIL SERVICE OF THE UNITED STATES," AS USED IN SECTION 1 THEREOF SHALL BE CONSTRUED TO INCLUDE ALL PERSONS WHO HAVE BEEN HERETOFORE OR WHO MAY HEREAFTER BE GIVEN A COMPETITIVE STATUS IN THE CLASSIFIED CIVIL SERVICE, WITH OR WITHOUT COMPETITIVE EXAMINATION, BY LEGISLATIVE ENACTMENT OR UNDER THE CIVIL SERVICE RULES PROMULGATED BY THE PRESIDENT, OR BY EXECUTIVE ORDERS COVERING GROUPS OF EMPLOYEES WITH THEIR POSITIONS INTO THE COMPETITIVE CLASSIFIED SERVICE OR AUTHORIZING THE APPOINTMENT OF INDIVIDUALS TO POSITIONS WITHIN SUCH SERVICE.

THE EXPRESSION "CLASSIFIED CIVIL SERVICE" AS THE SAME OCCURS IN OTHER ACTS OF CONGRESS SHALL RECEIVE A LIKE CONSTRUCTION TO THAT HEREIN GIVEN.

IT WILL BE NOTED THAT THIS ACT OF MARCH 27, 1922, DOES NOT EXPRESSLY PROVIDE THAT AN EMPLOYEE WHO HAS ONCE ACQUIRED A CLASSIFIED CIVIL SERVICE STATUS SHALL, FOR RETIREMENT PURPOSES, RETAIN THAT STATUS AFTER BEING TRANSFERRED TO A POSITION NOT IN THE CLASSIFIED CIVIL SERVICE. HENCE, REGARDLESS OF WHETHER SAID ACT IS TO BE CONSIDERED AS A CONSTRUING ACT OR AS AN AMENDATORY ACT IT WOULD APPEAR TO HAVE NO DIRECT BEARING ON CASES SUCH AS THAT OF MICHAEL TONELY.

APPARENTLY IT WAS NOT UNTIL AFTER THE ATTORNEY GENERAL RENDERED HIS OPINION OF JUNE 3, 1924, 34 OP. ATTY. GEN. 192, THAT A RETIREMENT STATUS WAS ACCORDED TO AN EMPLOYEE WHO WAS SERVING IN A POSITION NOT WITHIN THE CLASSIFIED CIVIL SERVICE TO WHICH HE HAD BEEN TRANSFERRED FROM A POSITION WITHIN THE CLASSIFIED CIVIL SERVICE. TONELY WAS FINALLY SEPARATED FROM THE SERVICE NEARLY 3 YEARS PRIOR TO THE DATE OF THE ATTORNEY GENERAL'S OPINION AND IT IS PRESUMED THAT HIS RETIREMENT DEDUCTIONS WERE REFUNDED TO HIM PURSUANT TO THE PLAIN PROVISION OF SECTION 11 OF THE ACT OF MAY 22, 1920, SUPRA, WHICH PROVISION WAS IN FULL FORCE AND EFFECT AT THE TIME OF HIS TRANSFER TO THE POSITION NOT WITHIN THE CLASSIFIED CIVIL SERVICE AND REMAINED IN FULL FORCE AND EFFECT UNTIL AFTER HIS FINAL SEPARATION FROM THE SERVICE ON AUGUST 4, 1921. HIS STATUS HAVING BECOME FIXED UNDER THE LAW IN EFFECT AT THE TIME, SUCH STATUS MAY NOT BE CHANGED EXCEPT IN PURSUANCE OF A LAW SPECIFICALLY AUTHORIZING SUCH CHANGE.

THE SPECIFIC QUESTION PRESENTED IN YOUR LETTER IS ANSWERED IN THE NEGATIVE.