B-9014, APRIL 11, 1940, 19 COMP. GEN. 856

B-9014: Apr 11, 1940

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IS APPLICABLE TO RETIREMENT UNDER THE FOREIGN SERVICE AMENDATORY RETIREMENT ACT OF JULY 19. 1940: I HAVE YOUR LETTER OF MARCH 11. IT IS PROVIDED IN PARAGRAPH (2) THAT. IS RETIRED FROM ACTIVE SERVICE AT LESS THAN SIXTY-FIVE YEARS OF AGE AND WITH AT LEAST TWENTY BUT LESS THAN THIRTY YEARS OF SERVICE. ASSUMING THAT HE SHALL HAVE COMPLIED WITH THE REQUIREMENTS OF THE LAW ENTITLING HIM TO SUCH ANNUITY. OR IF HE IS OVER SIXTY-FIVE YEARS OF AGE (UNLESS HE IS RETAINED IN ACTIVE SERVICE AS PROVIDED IN PARAGRAPH (D) OF THIS SECTION). THE DATE ON WHICH HE WAS RETIRED BY EXECUTIVE ACTION. SWENSON WAS 74 YEARS OF AGE. HE WAS INFORMED THAT IN ORDER TO QUALIFY FOR PARTICIPATION IN THE BENEFITS OF THE ACT.

B-9014, APRIL 11, 1940, 19 COMP. GEN. 856

RETIREMENT - FOREIGN SERVICE - EFFECTIVE DATE THE UNIFORM RETIREMENT DATE PROVISION OF THE ACT OF APRIL 23, 1930, 46 STAT. 253, IS APPLICABLE TO RETIREMENT UNDER THE FOREIGN SERVICE AMENDATORY RETIREMENT ACT OF JULY 19, 1939, 53 STAT. 1067, NOTWITHSTANDING A PROVISION IN THE LATER ACT THAT THE ANNUITY OF A PARTICULAR CLASS OF RETIRED OFFICERS SHALL COMMENCE ON THE DATE THE OFFICER "COMPLIES WITH ALL THE REQUIREMENTS OF LAW TO ENTITLE HIM TO SUCH ANNUITY.'

ACTING COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF STATE, APRIL 11, 1940:

I HAVE YOUR LETTER OF MARCH 11, 1940, AS FOLLOWS:

BY THE ACT OF JULY 19, 1939 ( PUBLIC NO. 197, 76TH CONGRESS), WHICH AMENDS SECTION 26 (N) OF THE ACT OF FEBRUARY 23, 1931, AS AMENDED, IT IS PROVIDED IN PARAGRAPH (2) THAT---

"ANY AMBASSADOR OR MINISTER, OR A PERSON APPOINTED TO A POSITION IN THE DEPARTMENT OF STATE AFTER SERVING AS AMBASSADOR, MINISTER, OR FOREIGN SERVICE OFFICER, WHO BECOMES ENTITLED TO THE BENEFITS OF THIS SECTION AS PROVIDED IN THE PRECEDING PARAGRAPH (1) SHALL RECEIVE AN ANNUITY COMPUTED IN ACCORDANCE WITH PARAGRAPH (E) OF THIS SECTION, INCLUDING THE RIGHT TO VOLUNTARY RETIREMENT AS PROVIDED BY PARAGRAPH (D) OF THIS SECTION: PROVIDED, HOWEVER, THAT IN CASE ANY AMBASSADOR OR MINISTER, OR A PERSON APPOINTED TO A POSITION IN THE DEPARTMENT OF STATE AFTER SERVING AS AMBASSADOR, MINISTER, OR FOREIGN SERVICE OFFICER, IS RETIRED FROM ACTIVE SERVICE AT LESS THAN SIXTY-FIVE YEARS OF AGE AND WITH AT LEAST TWENTY BUT LESS THAN THIRTY YEARS OF SERVICE, COMPUTED IN ACCORDANCE WITH THIS SECTION, AND ASSUMING THAT HE SHALL HAVE COMPLIED WITH THE REQUIREMENTS OF THE LAW ENTITLING HIM TO SUCH ANNUITY, HE SHALL RECEIVE AN ANNUITY COMPUTED IN ACCORDANCE WITH PARAGRAPH (D) OF THIS SECTION ON THE BASIS OF THE TOTAL PERIOD OF SERVICE THUS COMPUTED, INCLUDING EXTRA SERVICE CREDITS AS PROVIDED IN PARAGRAPH (K) OF THIS SECTION, THE FRACTIONAL PART OF A MONTH, IF ANY, TO BE ELIMINATED FROM SUCH TOTAL PERIOD OF SERVICE; OR IF HE IS OVER SIXTY-FIVE YEARS OF AGE (UNLESS HE IS RETAINED IN ACTIVE SERVICE AS PROVIDED IN PARAGRAPH (D) OF THIS SECTION), OR NOT IN ACTIVE SERVICE, ON THE EFFECTIVE DATE OF THIS ACT SUCH ANNUITY SHALL BEGIN ON THE DATE HE COMPLIES WITH ALL THE REQUIREMENTS OF LAW TO ENTITLE HIM TO SUCH ANNUITY.'

MR. LAURITS SWENSON, A FORMER AMERICAN MINISTER, WHOSE SERVICE BETWEEN OCTOBER 8, 1897, AND MARCH 5, 1934, THE DATE ON WHICH HE WAS RETIRED BY EXECUTIVE ACTION, TOTALED AN AGGREGATE PERIOD OF 23 YEARS, APPLIED FOR AN ANNUITY UNDER THE PROVISIONS OF THE ACT OF JULY 19, 1939. ON THE EFFECTIVE DATE OF THE ACT MR. SWENSON WAS 74 YEARS OF AGE. HE WAS INFORMED THAT IN ORDER TO QUALIFY FOR PARTICIPATION IN THE BENEFITS OF THE ACT, IT WOULD BE NECESSARY FOR HIM TO PAY INTO THE FOREIGN SERVICE RETIREMENT AND DISABILITY FUND THE SUM OF $7,012.66, REPRESENTING 5 PERCENT OF HIS ANNUAL SALARY FOR EACH YEAR OF SERVICE SUBSEQUENT TO JULY 1, 1924, WITH INTEREST THEREON AT 4 PERCENT COMPOUNDED ANNUALLY TO AUGUST 31, 1939. MR. SWENSON DEPOSITED THE REQUIRED SUM ON AUGUST 15, 1939, AND AN ANNUITY OF $4,600 COMPUTED IN ACCORDANCE WITH SECTION 26 (E) OF THE ACT OF FEBRUARY 23, 1931, AS AMENDED, WAS AUTHORIZED TO BE PAID COMMENCING SEPTEMBER 1, 1939, IN ACCORDANCE WITH THE PROVISIONS OF 5 U.S.C. 47A (46 STAT. 253), THE PERTINENT PART OF WHICH READS:

"RETIREMENT AUTHORIZED BY LAW OF FEDERAL PERSONNEL OF WHATEVER CLASS * * * AND FOR WHATEVER CAUSE RETIRED SHALL TAKE EFFECT ON THE FIRST DAY OF THE MONTH FOLLOWING THE MONTH IN WHICH SAID RETIREMENT WOULD OTHERWISE BE EFFECTIVE, AND SAID FIRST DAY OF THE MONTH FOR RETIREMENTS MADE AFTER JULY 1, 1930, SHALL BE FOR ALL PURPOSES IN LIEU OF SUCH DATE FOR RETIREMENT AS WAS ON APRIL 23, 1930, AUTHORIZED * * * "

MR. SWENSON IS CLAIMING A REFUND FOR OVERPAYMENT OF INTEREST ON HIS SPECIAL CONTRIBUTION FOR THE PERIOD AUGUST 16 TO AUGUST 31, 1939, AND A VOUCHER FORM NO. 1034 IN THE AMOUNT OF $11.60, SIGNED BY MR. SWENSON, IS ENCLOSED FOR CONSIDERATION.

THE QUESTION IS RAISED WHETHER MR. SWENSON'S ANNUITY SHOULD HAVE COMMENCED ON AUGUST 16, THE DAY FOLLOWING THAT ON WHICH HE MADE THE DEPOSIT, IN VIEW OF THE FACT THAT ON THE EFFECTIVE DATE OF THE ACT MR. SWENSON WAS NOT IN ACTIVE SERVICE AND WAS AT THAT TIME 74 YEARS OF AGE, AND IN VIEW OF THE FURTHER PROVISIONS OF THE LAW WHEREIN IT IS SET FORTH THAT IN THESE CIRCUMSTANCES "SUCH ANNUITY SHALL BEGIN ON THE DATE HE COMPLIES WITH ALL THE REQUIREMENTS OF LAW TO ENTITLE HIM TO SUCH ANNUITY.'

SUBPARAGRAPH (1) OF SECTION 26 (N) OF THE ACT OF FEBRUARY 23, 1931, AS AMENDED BY THE ACT OF JULY 19, 1939, PUBLIC, NO. 197, 53 STAT. 1068, NOT QUOTED IN YOUR LETTER, PROVIDES AS FOLLOWS:

ANY PERSON WHO HAS SERVED AS AMBASSADOR OR MINISTER, OR A PERSON APPOINTED TO A POSITION IN THE DEPARTMENT OF STATE AFTER SERVING AS AMBASSADOR, MINISTER, OR FOREIGN SERVICE OFFICER, CONTINUOUSLY OR AT DIFFERENT TIMES FOR AN AGGREGATE PERIOD OF TWENTY YEARS OR MORE, IN WHICH PERIOD MAY BE INCLUDED ANY PERIODS OF SERVICE IN ANY OF THE CAPACITIES AND AS PROVIDED IN PARAGRAPH (O) OF THIS SECTION, MAY BECOME ENTITLED TO THE BENEFITS OF THIS SECTION AS HEREINAFTER PROVIDED BY PAYING INTO THE FOREIGN SERVICE RETIREMENT AND DISABILITY FUND A SPECIAL CONTRIBUTION EQUAL TO 5 PERCENTUM OF HIS ANNUAL SALARY FOR EACH YEAR OF SUCH EMPLOYMENT SUBSEQUENT TO JULY 1, 1924, WITH INTEREST THEREON TO DATE OF PAYMENT COMPOUNDED ANNUALLY AT 4 PERCENTUM.

AS THE STATUTE CLEARLY PROVIDES FOR PAYMENT OF INTEREST "TO DATE OF PAYMENT" ON THE SPECIAL CONTRIBUTION REQUIRED TO BE PAID INTO THE FOREIGN SERVICE RETIREMENT AND DISABILITY FUND, AND AS MR. SWENSON "DEPOSITED THE REQUIRED SUM ON AUGUST 15, 1939" (QUOTING FROM YOUR LETTER), PAYMENT TO HIM, ON THE VOUCHER SUBMITTED, OF $11.60 REPRESENTING INTEREST ON THE AMOUNT OF THE DEPOSIT FOR THE PERIOD AUGUST 16 TO AUGUST 31, 1939, IS AUTHORIZED, IF OTHERWISE CORRECT. THE VOUCHER IS RETURNED HEREWITH.

YOU STATE THE ANNUITY WAS AUTHORIZED TO BE PAID TO MR. SWENSON COMMENCING SEPTEMBER 1, 1939, IN ACCORDANCE WITH THE PROVISION OF THE ACT OF APRIL 23, 1930, 46 STAT. 253, THAT REQUIREMENT "SHALL TAKE EFFECT ON THE ST DAY OF THE MONTH FOLLOWING THE MONTH IN WHICH SAID RETIREMENT WOULD OTHERWISE BE EFFECTIVE.' HOWEVER, YOU SUGGEST THAT SEPTEMBER 1, 1939, MAY NOT REPRESENT THE CORRECT COMMENCEMENT DATE, AND INQUIRE AS TO WHETHER THE ANNUITY SHOULD NOT HAVE COMMENCED AUGUST 16, 1939, IN VIEW OF THE PROVISION IN THE ACT OF JULY 19, 1939, 53 STAT. 1067, THAT "SUCH ANNUITY SHALL BEGIN ON THE DATE HE COMPLIES WITH ALL THE REQUIREMENTS OF LAW TO ENTITLE HIM TO SUCH ANNUITY.'

THE ACT OF APRIL 23, 1930, IS GENERAL LEGISLATION DESIGNED TO PROVIDE A UNIFORM RETIREMENT DATE FOR AUTHORIZED RETIREMENTS OF ALL FEDERAL EMPLOYEES OF EVERY CLASS. NOT ONLY IS IT SPECIFICALLY STATED THAT THE RETIREMENT DATE IN THE CASE OF "PERSONNEL OF WHATEVER CLASS, CIVIL, MILITARY, NAVAL, JUDICIAL, LEGISLATIVE, OR OTHERWISE" SHALL BE GOVERNED BY THE TERMS OF THIS LAW, BUT IT IS SPECIFIED FURTHER THAT " ALL LAWS OR PARTS OF LAWS, INSOFAR AS IN CONFLICT HEREWITH, ARE REPEALED.' ACCORDINGLY, WHEN THE CONGRESS SUBSEQUENTLY PROVIDED BY SECTION 26 OF THE ACT OF FEBRUARY 23, 1931, 46 STAT. 1211, FOR "THE ESTABLISHMENT OF A FOREIGN SERVICE RETIREMENT AND DISABILITY SYSTEM" THE DATE OF RETIREMENT OF ALL PERSONS ENTITLED TO BENEFITS THEREUNDER WAS GOVERNED BY THIS PREVIOUSLY ESTABLISHED GENERAL RULE. IN OTHER WORDS, THE TWO ACTS CONSTITUTED CORRELATIVE PARTS OF A SYSTEM OF LEGISLATION ON THE SUBJECT OF FOREIGN SERVICE RETIREMENT AND DISABILITY.

THE ACT OF JULY 19, 1939, WAS DESIGNED TO BRING WITHIN THE TERMS OF THIS GENERAL SYSTEM OF LAW, AND RENDER ELIGIBLE FOR THE RETIREMENT PRIVILEGES AFFORDED THEREBY, A LIMITED NEW CLASS OF BENEFICIARIES. THIS IS INDICATED NOT ONLY BY THE TERMS OF THIS NEW LEGISLATION, AND THE LEGISLATIVE HISTORY THEREOF (SEE HOUSE REPORT NO. 854, 76TH CONG., ST SESS.) BUT, ALSO, BY THE FACT THAT IT TOOK THE FORM OF AN AMENDMENT TO SECTION 26 OF THE ACT OF FEBRUARY 23, 1931.

UNDER THE CIRCUMSTANCES THERE APPEARS FOR APPLICATION IN THIS CASE THE RULE THAT "WHERE THE LEGISLATION DEALING WITH A PARTICULAR SUBJECT CONSISTS OF A SYSTEM OF RELATED GENERAL PROVISIONS INDICATIVE OF A SETTLED POLICY, NEW ENACTMENTS OF A FRAGMENTARY NATURE ON THAT SUBJECT ARE TO BE TAKEN AS INTENDED TO FIT INTO THE EXISTING SYSTEM AND TO BE CARRIED INTO EFFECT CONFORMABLY TO IT, EXCEPTING AS A DIFFERENT PURPOSE IS PLAINLY SHOWN.' UNITED STATES V. JEFFERSON ELECTRIC COMPANY, 291 U.S. 386, 396. THIS SAME GENERAL RULE WAS EXPRESSED IN THE CASE OF UNITED STATES V. BARNES, 222 U.S. 513, 520, IN THE FOLLOWING WORDS:

MUCH OF OUR NATIONAL LEGISLATION IS EMBODIED IN CODES, OR SYSTEMATIC COLLECTIONS OF GENERAL RULES, EACH DEALING IN A COMPREHENSIVE WAY WITH SOME GENERAL SUBJECT * * *; AND IT IS THE SETTLED RULE OF DECISION IN THIS COURT THAT WHERE THERE IS SUBSEQUENT LEGISLATION UPON SUCH A SUBJECT IT CARRIES WITH IT AN IMPLICATION THAT THE GENERAL RULES ARE NOT SUPERSEDED, BUT ARE TO BE APPLIED IN ITS ENFORCEMENT, SAVE AS THE CONTRARY CLEARLY APPEARS. * * *

THERE IS NO MANIFESTATION IN THE LEGISLATIVE HISTORY OF THE ACT OF JULY 19, 1939, OF AN INTENTION TO ESTABLISH A NEW RETIREMENT DATE RULE IN THE CASE OF PERSONS MADE ELIGIBLE FOR FOREIGN SERVICE RETIREMENT BENEFITS BY THE TERMS OF THIS LEGISLATION. NOR DOES THE STATUTE ITSELF CONTAIN ANY LANGUAGE "WHICH EXPLICITLY OR CLEARLY WITHDRAWS" THIS NEW GROUP OF BENEFICIARIES FROM AMENABILITY TO THE COMPREHENSIVE TERMS OF THE ACT OF APRIL 23, 1930--- WHICH, AS ABOVE NOTED, THE CONGRESS HAD DESIGNED FOR THE EXPRESS PURPOSE OF ESTABLISHING UNIFORMITY ON THE GENERAL SUBJECT OF RETIREMENT DATES. SEE UNITED STATES V. SWEET, 245 U.S. 563, 572; RYAN ET AL. V. CARTER, 93 U.S. 78, 84. "AN INTENTION TO DEPART FROM A COURSE OF POLICY THUS DELIBERATELY SETTLED IS NOT LIGHTLY TO BE ASSUMED"; ON THE CONTRARY "SUBSEQUENT ENACTMENTS TOUCHING THAT SUBJECT ARE TO BE CONSTRUED AND APPLIED IN HARMONY WITH THE GENERAL STATUTE, SAVE AS THEY CLEARLY MANIFEST A DIFFERENT RPOSE.' PANAMA RAILROAD COMPANY V. JOHNSON, 264 U.S. 375, 384. SEE, ALSO UNITED STATES V. FREEMAN, 3 HOW. 556, 564-5.

WHEN THE ACT OF JULY 19, 1939, IS CONSIDERED IN THE LIGHT OF THE TERMS OF THE GENERAL LAW ON THE SAME SUBJECT, PARTICULARLY THE ACT OF APRIL 23, 1930, IT IS DEEMED TO BE SUFFICIENTLY CLEAR THAT IT WAS NOT THE LEGISLATIVE PURPOSE TO ESTABLISH A NEW RETIREMENT DATE STANDARD FOR BENEFICIARIES UNDER SAID ACT OF JULY 19, 1939. ACCORDINGLY, I HAVE TO ADVISE THAT THE RETIREMENT DATE PROVISIONS OF THE ACT OF APRIL 23, 1930, ARE FOR APPLICATION IN THE PRESENT CASE AND THAT THE ADMINISTRATIVE ACTION IN ADOPTING SEPTEMBER 1, 1939, AS THE EFFECTIVE DATE OF MR. SWENSON'S ANNUITY, WAS CORRECT.