B-70956, DECEMBER 8, 1947, 27 COMP. GEN. 320

B-70956: Dec 8, 1947

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1947: I HAVE YOUR LETTER OF OCTOBER 31. YOU STATE THAT IT ADMINISTRATIVELY WAS DETERMINED THAT ONLY THE WHOLE YEARS OF SERVICE WERE REQUIRED BY THE APPLICABLE STATUTE TO BE CONSIDERED IN FIXING THE RATE OF RETIRED COMPENSATION. 60 STAT. 901 IS INCORPORATED IN SECTION 375G OF TITLE 28. IT WAS HELD BY THIS OFFICE IN 18 COMP. WHICH PROVIDES: IN DETERMINING THE AGGREGATE PERIOD OF SERVICE UPON WHICH THE ANNUITY IS TO BE BASED. IT MUST BE CONCLUDED THAT ONLY WHOLE YEARS' SERVICE IS TO BE COUNTED IN THE COMPUTATION OF THE RETIRED COMPENSATION OF SUCH JUDGES.

B-70956, DECEMBER 8, 1947, 27 COMP. GEN. 320

RETIREMENT - TERRITORIAL JUDGES - FRACTIONAL YEAR'S SERVICE CREDIT IN COMPUTING THE RATE OF RETIREMENT COMPENSATION OF TERRITORIAL JUDGES PURSUANT TO THE PROVISIONS OF 28 U.S.C. 375G, WHICH DO NOT SPECIFICALLY REFER TO ANYTHING LESS THAN A YEAR IN CONNECTION WITH THE SERVICE PERIOD TO BE USED IN SUCH COMPUTATION, A FRACTIONAL YEAR'S SERVICE MAY NOT BE COUNTED.

COMPTROLLER GENERAL WARREN TO THE DIRECTOR, ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS, DECEMBER 8, 1947:

I HAVE YOUR LETTER OF OCTOBER 31, 1947, REQUESTING DECISION WITH RESPECT TO THE CORRECT COMPUTATION OF THE RATE OF RETIRED COMPENSATION OF HONORABLE ROBERT A. COOPER, WHO SERVED AS JUDGE IN THE UNITED STATES DISTRICT COURT FOR PUERTO RICO FROM JANUARY 29, 1934, TO AND INCLUDING SEPTEMBER 8, 1947, THE DATE OF HIS RETIREMENT, WHICH PERIOD OF SERVICE AMOUNTS TO 13 YEARS, 7 MONTHS, AND 11 DAYS. YOU STATE THAT IT ADMINISTRATIVELY WAS DETERMINED THAT ONLY THE WHOLE YEARS OF SERVICE WERE REQUIRED BY THE APPLICABLE STATUTE TO BE CONSIDERED IN FIXING THE RATE OF RETIRED COMPENSATION, BUT THAT JUDGE COOPER INSISTS THAT THE FRACTIONAL PART OF THE YEAR--- 7 MONTHS AND 11 DAYS--- SHOULD BE TAKEN INTO CONSIDERATION IN ESTABLISHING HIS RATE OF RETIRED COMPENSATION.

THE APPLICABLE STATUTE (THE ACT OF MAY 31, 1938, 52 STAT. 591, AS AMENDED BY THE ACT OF APRIL 16, 1946, 60 STAT. 901 IS INCORPORATED IN SECTION 375G OF TITLE 28, U.S. CODE, AS FOLLOWS:

EVERY JUSTICE OF THE SUPREME COURT OF THE TERRITORY OF HAWAII, AND EVERY JUDGE OF THE UNITED STATES DISTRICT COURT FOR THE TERRITORY OF HAWAII, THE DISTRICT COURT FOR THE DISTRICT OF ALASKA, THE DISTRICT COURT OF THE UNITED STATES FOR PUERTO RICO, THE DISTRICT COURT OF THE VIRGIN ISLANDS, AND THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF THE CANAL ZONE, MAY AFTER APRIL 16, 1946, RETIRE AFTER ATTAINING THE AGE OF SEVENTY YEARS. IF SUCH JUSTICE OR JUDGE RETIRES AFTER HAVING SERVED AS A JUSTICE OR JUDGE OF ANY OF THE AFOREMENTIONED COURTS FOR A PERIOD OR PERIODS AGGREGATING TEN YEARS OR MORE, WHETHER CONTINUOUSLY OR NOT, HE 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 JUSTICE OR JUDGE AT THE DATE OF SUCH RETIREMENT AS THE TOTAL OF HIS AGGREGATE YEARS OF SERVICE BEARS TO THE PERIOD OF SIXTEEN YEARS, THE SAME TO BE PAID BY THE UNITED STATES IN THE SAME MANNER AS THE SALARIES OF THE AFORESAID JUSTICES AND JUDGES: PROVIDED, HOWEVER, THAT IN NO EVENT SHALL THE SUM RECEIVED BY ANY SUCH JUSTICE OR JUDGE UNDER THIS SECTION BE IN EXCESS OF THE SALARY OF SUCH JUSTICE OR JUDGE AT THE DATE OF SUCH RETIREMENT. ( ITALICS SUPPLIED.)

PARAGRAPH 26 (E) OF THE FOREIGN SERVICE CLASSIFICATION ACT OF FEBRUARY 23, 1931, 46 STAT. 1211, AS AMENDED BY SECTION 3 OF THE ACT OF APRIL 24, 1939, 53 STAT. 583, 585, PROVIDED THAT THE ANNUITY OF A RETIRED FOREIGN SERVICE OFFICER SHALL BE EQUAL TO TWO PERCENTUM OF HIS AVERAGE ANNUAL BASIC SALARY FOR 10 YEARS NEXT PRECEDING THE DATE OF RETIREMENT "MULTIPLIED BY THE NUMBER OF YEARS OF SERVICE NOT EXCEEDING THIRTY YEARS.' ( ITALICS SUPPLIED.) IN CONSTRUING THAT STATUTE, IT WAS HELD BY THIS OFFICE IN 18 COMP. GEN. 845 (QUOTING FROM THE SYLLABUS):

FRACTIONAL YEAR'S SERVICE MAY NOT BE INCLUDED IN COMPUTING ANNUITIES UNDER SECTION 26 (E) OF THE FOREIGN SERVICE CLASSIFICATION, ETC. ACT OF FEBRUARY 23, 1931, 46 STAT. 1211, AS AMENDED BY SECTION 3 OF PUBLIC, NO. 40, APPROVED APRIL 24, 1939, 53 STAT. 583.

IN CONTRACT THERETO, SEE THE PROVISION IN SECTION 5 OF THE CIVIL SERVICE RETIREMENT ACT OF MAY 29, 1930, 46 STAT. 472, WHICH PROVIDES:

IN DETERMINING THE AGGREGATE PERIOD OF SERVICE UPON WHICH THE ANNUITY IS TO BE BASED, THE FRACTIONAL PART OF A MONTH, IF ANY, IN THE TOTAL SERVICE SHALL BE ELIMINATED.

ALSO, COMPARE SECTION 821 (A) OF THE FOREIGN SERVICE ACT, PUBLIC LAW 724, APPROVED AUGUST 13, 1946, 60 STAT. 1020.

IT THUS WOULD APPEAR FROM THE FOREGOING THAT WHEN THE CONGRESS INTENDED A FRACTIONAL YEAR'S SERVICE TO BE COUNTED FOR RETIREMENT PURPOSES, APPROPRIATE LANGUAGE TO INDICATE THAT INTENT HAS BEEN EMPLOYED IN THE STATUTE. AS THE PROVISION FOR COMPUTATION OF RETIRED PAY OF TERRITORIAL JUDGES, QUOTED ABOVE, DOES NOT SPECIFICALLY REFER TO ANYTHING LESS THAN A YEAR, IT MUST BE CONCLUDED THAT ONLY WHOLE YEARS' SERVICE IS TO BE COUNTED IN THE COMPUTATION OF THE RETIRED COMPENSATION OF SUCH JUDGES.