B-131119, APR. 24, 1957

B-131119, APR. 24, 1957

TO THE HONORABLE ELMORE WHITEHURST, ACTING DIRECTOR, ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS:

YOUR LETTER OF APRIL 9, 1957, REQUESTS OUR DECISION WHETHER THE PERIOD BETWEEN A JUDGE'S RESIGNATION ON SALARY UNDER 28 U.S.C. 371 (A) AND THE JUDGE'S DEATH MAY BE COUNTED AS SERVICE IN COMPUTING HIS WIDOW'S ANNUITY UNDER 28 U.S.C. 376. YOU SAY THAT HERETOFORE SUCH PERIOD HAS BEEN TREATED AS CREDITABLE SERVICE AND THAT WIDOWS' ANNUITIES HAVE BEEN COMPUTED AND PAID ON THAT BASIS. IN THE EVENT OUR ANSWER IS IN THE NEGATIVE, YOU FURTHER REQUEST A DECISION WHETHER IT WILL BE NECESSARY TO REQUIRE REFUNDS OF THE OVERPAYMENTS.

OUR DECISION OF MARCH 28, 1957, B-131119, HELD THAT THE WIDOWS OF JUDGES WHO RESIGNED ON SALARY AND DIED PRIOR TO THE ACT OF AUGUST 3, 1956, PUBLIC LAW 973, WERE ENTITLED TO ANNUITIES UNDER THAT ACT.

REGARDING THE SERVICE TO BE COUNTED IN THE COMPUTATION OF THE WIDOWS' ANNUITIES, SECTION 376 (O) OF PUBLIC LAW 973, 70 STAT. 1025, PROVIDES:

"/O) SUBJECT TO THE PROVISIONS OF SUBSECTION (C) OF THIS SECTION, THE YEARS OF SERVICE OF A JUDGE WHICH ARE ALLOWABLE AS THE BASIS FOR CALCULATING THE AMOUNT OF THE ANNUITY OF HIS WIDOW SHALL INCLUDE HIS YEARS OF SERVICE AS A JUDGE OF THE UNITED STATES (WHETHER IN REGULAR ACTIVE SERVICE OR RETIRED FROM SUCH SERVICE UNDER SECTION 371 (B) OR 372 (A) OF THIS TITLE), HIS YEARS OF SERVICE AS A SENATOR, REPRESENTATIVE, DELEGATE, OR RESIDENT COMMISSIONER IN CONGRESS, HIS YEARS OF ACTIVE SERVICE AS A MEMBER OF THE ARMED FORCES OF THE UNITED STATES NOT EXCEEDING FIVE YEARS IN THE AGGREGATE AND NOT INCLUDING ANY SUCH SERVICE FOR WHICH CREDIT IS ALLOWED FOR THE PURPOSES OF RETIREMENT OR RETIRED PAY UNDER ANY OTHER PROVISION OF LAW, AND HIS YEARS OF ANY OTHER CIVILIAN SERVICE WITHIN THE PURVIEW OF SECTION 707 OF TITLE 5.'

REGARDING THE COMPUTATION OF ANNUITIES, THE PRECEDING SUBSECTION (N) OF SECTION 376 PROVIDES:

"/N) THE ANNUITY OF THE WIDOW OF A JUDGE WHO HAS ELECTED TO BRING HIMSELF WITHIN THE PURVIEW OF THIS SECTION SHALL BE AN AMOUNT EQUAL TO THE SUM OF (1) 1 1/4 PERCENTUM OF THE AVERAGE ANNUAL SALARY RECEIVED BY SUCH JUDGE FOR JUDICIAL SERVICE AND ANY OTHER PRIOR ALLOWABLE SERVICE DURING THE LAST FIVE YEARS OF SUCH SERVICE PRIOR TO HIS DEATH, OR RETIREMENT FROM OFFICE BY RESIGNATION ON SALARY UNDER SECTION 371 (A) OF THIS TITLE, MULTIPLIED BY THE SUM OF HIS YEARS OF JUDICIAL SERVICE, HIS YEARS OF PRIOR ALLOWABLE SERVICE AS A SENATOR, REPRESENTATIVE, DELEGATE, OR RESIDENT COMMISSIONER IN CONGRESS, HIS YEARS OF PRIOR ALLOWABLE SERVICE PERFORMED AS A MEMBER OF THE ARMED FORCES OF THE UNITED STATES, AND HIS YEARS, NOT EXCEEDING FIFTEEN, OF PRIOR ALLOWABLE SERVICE PERFORMED AS AN EMPLOYEE DESCRIBED IN SECTION 698 (G) OF TITLE 5, AND (2) 3/4 OF 1 PERCENTUM OF SUCH AVERAGE ANNUAL SALARY MULTIPLIED BY HIS YEARS OF ANY OTHER PRIOR ALLOWABLE SERVICE, BUT SUCH ANNUITY SHALL NOT EXCEED 37 1/2 PERCENTUM OF SUCH AVERAGE ANNUAL SALARY AND SHALL BE FURTHER REDUCED IN ACCORDANCE WITH SUBSECTION (C) OF THIS SECTION, IF APPLICABLE.'

IF IS EVIDENT FROM THE LANGUAGE OF SUBSECTION (N) THAT A JUDGE'S 5 YEAR AVERAGE SALARY PERIOD MAY NOT INCLUDE AS SERVICE ANY TIME AFTER THE RESIGNATION OF THE JUDGE ON SALARY. THAT CONSIDERATION, COUPLED WITH THE FACT THAT THE TIME AFTER RESIGNATION ON SALARY IS NOT MENTIONED IN SUBSECTION (O), LEADS US TO CONCLUDE THAT, WHILE THE ACT APPARENTLY CONSIDERS THE TIME AFTER RETIREMENT UNDER SECTIONS 381 (B) OR 372 (A) OF THE ACT AS SERVICE, ANY TIME AFTER RESIGNATION ON SALARY UNDER SECTION 371 (A) IS NOT SERVICE AND MAY NOT BE COUNTED IN THE COMPUTATION OF THE WIDOWS' ANNUITIES.

IN VIEW OF THE DOUBT WHICH APPEARS TO HAVE EXISTED REGARDING THE PROPER INTERPRETATION OF SECTION 376 OF PUBLIC LAW 973, OUR OFFICE WILL NOT INSIST UPON THE COLLECTION OF THE OVERPAYMENTS HERETOFORE MADE.