B-96815, JULY 31, 1950, 30 COMP. GEN. 51

B-96815: Jul 31, 1950

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IS PRIMARILY A MATTER FOR CONSIDERATION BY THE CIVIL SERVICE COMMISSION. 1950: REFERENCE IS MADE TO YOUR LETTER OF JULY 18. WHILE A CERTIFYING OFFICER REQUESTING A DECISION WITH RESPECT TO A VOUCHER BEFORE HIM FOR PAYMENT ORDINARILY IS REQUIRED TO ACCOMPANY HIS REQUEST WITH THE VOUCHER. THE SUBMISSION OF THE VOUCHER WILL NOT BE INSISTED UPON IN THIS CASE. IT IS STATED IN YOUR SUBMISSION THAT MR. PATTERSON WAS FIRST APPOINTED TO THE COMMISSION AS AN INSPECTOR OF SAFETY APPLIANCES ON SEPTEMBER 28. THAT HE WAS APPOINTED A COMMISSIONER AND TOOK HIS OATH OF OFFICE ON JULY 31. THAT HE WAS REAPPOINTED FOR AN ADDITIONAL TERM OF SEVEN YEARS TO EXPIRE DECEMBER 31. ORDINARILY HE WOULD HAVE BEEN RETIRED AS OF JUNE 30.

B-96815, JULY 31, 1950, 30 COMP. GEN. 51

GENERAL ACCOUNTING OFFICE - JURISDICTION - RETIREMENT STATUS OF INTERSTATE COMMERCE COMMISSIONER UPON ATTAINING THE AGE OF 70 YEARS WHETHER AN INTERSTATE COMMERCE COMMISSIONER WHO HAS ATTAINED THE AGE OF 70 YEARS, BUT WHOSE TERM OF OFFICE HAS NOT YET EXPIRED, HAS REACHED A RETIREMENT STATUS UNDER SECTION 2 (A) OF THE CIVIL SERVICE RETIREMENT ACT OF MAY 29, 1930, AS AMENDED, IS PRIMARILY A MATTER FOR CONSIDERATION BY THE CIVIL SERVICE COMMISSION, NO PRESIDENTIAL ACTION HAVING BEEN TAKEN TO EXEMPT THE COMMISSIONER FROM THE COMPULSORY RETIREMENT PROVISIONS OF THE ACT FOR THE REMAINDER OF HIS TERM OF OFFICE.

COMPTROLLER GENERAL WARREN TO W. P. BARTEL, INTERSTATE COMMERCE COMMISSION, JULY 31, 1950:

REFERENCE IS MADE TO YOUR LETTER OF JULY 18, 1950, REQUESTING A DECISION AS TO WHETHER YOU MAY CERTIFY FOR PAYMENT TO HONORABLE WILLIAM J. PATTERSON SALARY AS A MEMBER OF THE INTERSTATE COMMERCE COMMISSION BEGINNING JULY 1, 1950.

WHILE A CERTIFYING OFFICER REQUESTING A DECISION WITH RESPECT TO A VOUCHER BEFORE HIM FOR PAYMENT ORDINARILY IS REQUIRED TO ACCOMPANY HIS REQUEST WITH THE VOUCHER, THE SUBMISSION OF THE VOUCHER WILL NOT BE INSISTED UPON IN THIS CASE.

IT IS STATED IN YOUR SUBMISSION THAT MR. PATTERSON WAS FIRST APPOINTED TO THE COMMISSION AS AN INSPECTOR OF SAFETY APPLIANCES ON SEPTEMBER 28, 1914, AND HAS BEEN IN THE EMPLOY OF THE COMMISSION CONTINUOUSLY SINCE THAT DATE; THAT HE WAS APPOINTED A COMMISSIONER AND TOOK HIS OATH OF OFFICE ON JULY 31, 1939, FOR A TERM ENDING DECEMBER 31, 1945; THAT HE WAS REAPPOINTED FOR AN ADDITIONAL TERM OF SEVEN YEARS TO EXPIRE DECEMBER 31, 1952, AND TOOK OATH OF OFFICE DECEMBER 26, 1945. HE BECAME 70 YEARS OF AGE ON JUNE 4, 1950, AND ORDINARILY HE WOULD HAVE BEEN RETIRED AS OF JUNE 30, 1950. APPEARS FURTHER THAT, ON MARCH 31, 1950, THE CHAIRMAN OF THE INTERSTATE COMMERCE COMMISSION REQUESTED AN EXECUTIVE ORDER EXEMPTING MR. PATTERSON FROM THE COMPULSORY RETIREMENT PROVISIONS FOR THE REMAINDER OF HIS TERM OF OFFICE, BUT NO ACTION HAS, AS YET, BEEN TAKEN UPON THAT REQUEST.

SECTION 2 (A) OF THE CIVIL SERVICE RETIREMENT ACT OF MAY 29, 1930, AS AMENDED BY THE ACT OF FEBRUARY 28, 1948, 62 STAT. 48, PROVIDES:

SEC. 2 (A) EXCEPT AS PROVIDED IN SECTION 204 OF THE ACT OF JUNE 30, 1932 (47 STAT. 404), AND SECTION 3 OF THE ACT OF JULY 13, 1937 (50 STAT. 512), ANY OFFICER OR EMPLOYEE TO WHOM THIS ACT APPLIES WHO SHALL HAVE COMPLETED FIFTEEN YEARS OF SERVICE COMPUTED AS PROVIDED IN SECTION 5 OF THIS ACT SHALL, ON THE LAST DAY OF THE MONTH IN WHICH HE ATTAINS THE AGE OF SEVENTY YEARS, OR COMPLETES FIFTEEN YEARS OF SERVICE IF THEN BEYOND SUCH AGE, BE AUTOMATICALLY SEPARATED FROM THE SERVICE, AND ALL SALARY, PAY, OR COMPENSATION SHALL CEASE FROM THAT DATE, AND THE HEAD OF EACH DEPARTMENT, BRANCH, OR INDEPENDENT OFFICE OF THE GOVERNMENT CONCERNED SHALL NOTIFY EACH SUCH EMPLOYEE UNDER HIS DIRECTION OF THE DATE OF HIS SEPARATION FROM THE SERVICE AT LEAST SIXTY DAYS IN ADVANCE THEREOF: PROVIDED, THAT SHOULD THE HEAD OF THE DEPARTMENT, BRANCH, OR INDEPENDENT OFFICE FAIL, THROUGH ERROR, TO GIVE TIMELY NOTIFICATION, THE EMPLOYEE'S SEPARATION FROM THE SERVICE SHALL NOT BE EFFECTED WITHOUT HIS CONSENT UNTIL THE EXPIRATION OF SAID SIXTY DAY PERIOD. UPON SUCH SEPARATION, THE OFFICER OR EMPLOYEE SHALL BE ELIGIBLE FOR RETIREMENT ON ANNUITY AS PROVIDED IN SECTION 4 HEREOF.

SECTION 204 OF THE ACT OF JUNE 30, 1932, 47 STAT. 404, PROVIDES:

ON AND AFTER JULY 1, 1932, NO PERSON RENDERING CIVILIAN SERVICE IN ANY BRANCH OR SERVICE OF THE UNITED STATES GOVERNMENT OR THE MUNICIPAL GOVERNMENT OF THE DISTRICT OF COLUMBIA WHO SHALL HAVE REACHED THE RETIREMENT AGE PRESCRIBED FOR AUTOMATIC SEPARATION FROM THE SERVICE, APPLICABLE TO SUCH PERSON, SHALL BE CONTINUED IN SUCH SERVICE, NOTWITHSTANDING ANY PROVISION OF LAW OR REGULATION TO THE CONTRARY: PROVIDED, THAT THE PRESIDENT MAY, BY EXECUTIVE ORDER, EXEMPT FROM THE PROVISIONS OF THIS SECTION ANY PERSON WHEN, IN HIS JUDGMENT, THE PUBLIC INTEREST SO REQUIRES: PROVIDED FURTHER, THAT NO SUCH PERSON HERETOFORE OR HEREAFTER SEPARATED FROM THE SERVICE OF THE UNITED STATES OR THE DISTRICT OF COLUMBIA UNDER ANY PROVISION OF LAW OR REGULATION PROVIDING FOR SUCH RETIREMENT ON ACCOUNT OF AGE SHALL BE ELIGIBLE AGAIN TO APPOINTMENT TO ANY APPOINTIVE OFFICE, POSITION, OR EMPLOYMENT UNDER THE UNITED STATES OR THE DISTRICT OF COLUMBIA: PROVIDED FURTHER, THAT THIS SECTION SHALL NOT APPLY TO ANY PERSON NAMED IN ANY ACT OF CONGRESS PROVIDING FOR THE CONTINUANCE OF SUCH PERSON IN THE SERVICE.

THE CIVIL SERVICE RETIREMENT ACT IS ADMINISTERED BY THE CIVIL SERVICE COMMISSION AND THE QUESTION, THEREFORE, OF WHETHER COMMISSIONER PATTERSON HAS REACHED A RETIREMENT STATUS UNDER SECTION 2 (A) OF THAT ACT, QUOTED ABOVE, AS OF JULY 1, 1950, OR SOME SUBSEQUENT DATE, PRIMARILY IS MATTER FOR CONSIDERATION BY THE CIVIL SERVICE COMMISSION. 18 COMP. GEN. 955; 19 ID. 352. IN THE DECISION CITED IN YOUR SUBMISSION, NAMELY, 22 COMP. GEN. 52, THERE WAS CONSIDERED A CASE (THAT OF HONORABLE MELVIN HAZEN, DECEASED, A COMMISSIONER OF THE DISTRICT OF COLUMBIA) WHERE THE PRESIDENT, ABOUT EIGHT MONTHS PRIOR TO THE TIME THE PERSON SUBJECT TO THE RETIREMENT ACT HAD REACHED 70 YEARS OF AGE, AND AGAIN AFTER HE HAD REACHED 70 YEARS OF AGE, TOOK EXECUTIVE ACTION TO RETAIN THE PERSON IN THE SERVICE BY MEANS OF A PRESIDENTIAL APPOINTMENT, AFTER CONFIRMATION OF THE NOMINATION BY THE SENATE, FOR A DEFINITE TERM OF YEARS. THE CIVIL SERVICE COMMISSION CONCLUDED IN THAT CASE THAT THE PRESIDENT'S ACTION THEREIN SATISFIED THE PROVISIONS OF SECTION 204 OF THE ACT OF JUNE 30, 1932, SUPRA, UPON THE GROUNDS THAT NO PARTICULAR FORM OF EXECUTIVE ORDER OR ACTION WAS REQUIRED IN THE APPLICATION OF THAT ACT. UPON THE BASIS OF THAT CONCLUSION THIS OFFICE STATED THAT NO QUESTION WOULD BE RAISED IN THE EVENT CERTIFICATION OF PAYMENT WERE MADE. IN THE INSTANT CASE THE PRESIDENT'S ACTION IN THE REAPPOINTMENT OF COMMISSIONER PATTERSON WAS TAKEN ABOUT 5 1/2 YEARS PRIOR TO HIS ATTAINING THE AGE OF 70, AND NO PRESIDENTIAL ACTION HAS BEEN TAKEN SUBSEQUENT TO HIS ATTAINING THE AGE OF 70.

ACCORDINGLY, AS INDICATED ABOVE, IT IS SUGGESTED THAT THE MATTER BE SUBMITTED TO THE CIVIL SERVICE COMMISSION FOR A DETERMINATION OF THE STATUS OF COMMISSIONER PATTERSON UNDER THE CIRCUMSTANCES PRESENT. UNDER THE EXISTING FACTS THERE APPEARS TO BE NO PROPER BASIS FOR CERTIFYING VOUCHER COVERING THE PAYMENT OF COMPENSATION TO COMMISSIONER PATTERSON FOR ANY PERIOD SUBSEQUENT TO JUNE 30, 1950.