B-32434, FEBRUARY 25, 1943, 22 COMP. GEN. 834

B-32434, FEBRUARY 25, 1943, 22 COMP. GEN. 834

RETIREMENT - LEGISLATIVE EMPLOYEES LEGISLATIVE EMPLOYEES WHO ALREADY HAD GIVEN PROPER NOTICE UNDER AUTHORITY OF THE ACT OF JULY 13, 1937, OF THEIR DESIRE TO COME WITHIN THE PURVIEW OF THE CIVIL SERVICE RETIREMENT ACT ARE NOT WITHIN THE CLASSES OF LEGISLATIVE EMPLOYEES REQUIRED BY THE ACT OF JANUARY 24, 1942, AS AMENDED, TO GIVE NOTICE AS A CONDITION TO BECOMING ELIGIBLE FOR THE BENEFITS OF SAID RETIREMENT ACT, AND, THEREFORE, SUCH A LEGISLATIVE EMPLOYEE WHO HAD ELECTED TO COME WITHIN THE PURVIEW OF THE RETIREMENT ACT RETAINS HIS RETIREMENT STATUS WITHOUT BEING REQUIRED TO MAKE ANOTHER ELECTION UNDER THE SAID ACT OF JANUARY 24, 1942, AS AMENDED. THE PROVISIONS OF THE ACT OF JULY 13, 1937, AS AMENDED, PROHIBITING RETIREMENT DEDUCTIONS FROM THE SALARIES OF SENATE EMPLOYEES UNTIL THEY SHALL HAVE SERVED 7 YEARS AS SUCH EMPLOYEES, ARE NOT AFFECTED BY ANY OF THE PROVISIONS OF THE ACT OF JANUARY 24, 1942, AS AMENDED BY SECTION 16 OF THE ACT OF MARCH 7, 1942, RELATING TO THE RETIREMENT OF LEGISLATIVE EMPLOYEES. ( MODIFIED BY 22 COMP. GEN. 980.)

COMPTROLLER GENERAL WARREN TO THE PRESIDENT, UNITED STATES CIVIL SERVICE COMMISSION, FEBRUARY 25, 1943:

I HAVE YOUR LETTER OF FEBRUARY 12, 1943, AS FOLLOWS:

IN HIS DECISION OF MARCH 2, 1939 (18 COMP. GEN. 683), ACTING COMPTROLLER GENERAL ELLIOTT TATED:

"THE GENERAL RULE STATED UNDER THE RETIREMENT ACT TO WHICH YOU REFER "THAT RETIREMENT BENEFITS ARE PRESERVED TO ALL EMPLOYEES UNDER THE FEDERAL GOVERNMENT SERVING IN POSITIONS NOT WITHIN THE PURVIEW OF THE RETIREMENT ACT IF SUCH SERVICE IS CONTINUOUS WITH PRIOR SERVICE IN POSITIONS WITHIN THE PURVIEW OF THE CIVIL RETIREMENT ACT" MAY BE APPLIED TO PRESERVE THE RETIREMENT STATUS OF AN EMPLOYEE TRANSFERRED WITHOUT BREAK IN SERVICE FROM A POSITION IN ANOTHER BRANCH OF THE SERVICE TO A SENATE POSITION.

" I AM CONSTRAINED TO HOLD THAT AN EMPLOYEE TRANSFERRED WITHOUT BREAK IN SERVICE FROM A POSITION IN ANOTHER BRANCH OF THE SERVICE WITHIN THE PURVIEW OF THE RETIREMENT ACT TO A SENATE POSITION BEFORE THE EXPIRATION OF THE FIRST 7 YEARS OF SERVICE RETAINS HIS RETIREMENT STATUS.'

THE COMMISSION IS NOW CONFRONTED WITH THE SITUATION WHERE AN EMPLOYEE OF THE HOUSE OF REPRESENTATIVES WHO HAD DULY ELECTED TO COME WITHIN THE OPERATION OF THE RETIREMENT ACT WAS TRANSFERRED TO A SENATE POSITION IN 1939 WITHOUT BREAK IN CONTINUITY OF EMPLOYMENT. HE STILL HOLDS SUCH POSITION AND HAS HAD 8 YEARS OF CONTINUOUS LEGISLATIVE SERVICE. HOWEVER, IT IS UNDERSTOOD THAT THE FINANCIAL CLERK, UNITED STATES SENATE, HOLDS THE AMENDMENTS TO THE RETIREMENT LAW APPROVED JANUARY 24, 1942, AND MARCH 7, 1942, TO HAVE THE EFFECT OF REQUIRING A NEW ELECTION (DURING THE CALENDAR YEAR 1942) BY SUCH EMPLOYEE BEFORE A RETIREMENT STATUS ATTACHES.

THE COMMISSION DOES NOT INTERPRET THESE LATTER AMENDMENTS AS REQUIRING ANY NEW ELECTION IN THE CASE OF A LEGISLATIVE EMPLOYEE ALREADY SUBJECT TO THE ACT. THESE AMENDMENTS ARE INTERPRETED BY THIS OFFICE AS CONTINUING SUCH RETIREMENT STATUS AND ALSO AS REMOVING THE 7 YEAR LIMITATION FOR SENATE EMPLOYEES, DURING WHICH TIME RETIREMENT DEDUCTIONS WERE NOT THERETOFORE WITHHELD. IN THE INSTANT CASE, THEREFORE, THIS OFFICE BELIEVES THAT THE REMOVAL OF THIS 7 YEAR RESTRICTION BY OPERATION OF THE AMENDMENT OF JANUARY 24, 1942, SHOULD HAVE PLACED THE EMPLOYEE NOW UNDER CONSIDERATION SUBJECT TO RETIREMENT DEDUCTIONS SINCE THAT DATE.

YOUR REVIEW OF THIS MATTER AND DECISION THEREON IS RESPECTFULLY REQUESTED.

THE ACT OF JULY 13, 1937, 50 STAT. 512, PROVIDES, IN PART, AS FOLLOWS:

THAT THE ACT OF MAY 29, 1930 (46 STAT. 468), FOR THE RETIREMENT OF EMPLOYEES IN THE CLASSIFIED CIVIL SERVICE AND IN CERTAIN POSITIONS IN THE LEGISLATIVE BRANCH OF THE GOVERNMENT, IS HEREBY AMENDED TO INCLUDE ALL OTHER EMPLOYEES IN THE LEGISLATIVE BRANCH AND ALL OFFICERS AND EMPLOYEES OF ANY OF THE COURTS OF THE UNITED STATES WHO ARE NOT ENTITLED TO THE BENEFITS OF ANY OTHER RETIREMENT ACT WHOSE TENURE OF EMPLOYMENT IS NOT INTERMITTENT NOR OF UNCERTAIN DURATION.

SEC. 2. THE PROVISIONS OF SUCH ACT OF MAY 29, 1930, SHALL NOT BE APPLICABLE TO ANY EMPLOYEE IN THE LEGISLATIVE BRANCH WHO IS BROUGHT WITHIN ITS SCOPE BY SECTION 1 OF THIS ACT UNTIL SUCH EMPLOYEE GIVES NOTICE IN WRITING TO THE SECRETARY OF THE SENATE OR THE CLERK OF THE HOUSE OF REPRESENTATIVES, AS THE CASE MAY BE, AND SHALL NOT BE APPLICABLE TO ANY OFFICER OR EMPLOYEE OF ANY COURT OF THE UNITED STATES WHO IS BROUGHT WITHIN ITS SCOPE BY SECTION 1 OF THIS ACT UNTIL SUCH OFFICER OR EMPLOYEE GIVES NOTICE IN WRITING TO THE DISBURSING OFFICER BY WHOM THE SALARY OF SUCH OFFICER OR EMPLOYEES IS PAID THAT HE OR SHE DESIRES TO COME UNDER THE PROVISIONS OF SUCH ACT OF MAY 29, 1930. SUCH NOTICE MUST BE GIVEN, IN THE CASE OF ANY SUCH EMPLOYEE IN THE SERVICE ON THE EFFECTIVE DATE OF THIS ACT, WITHIN SIX MONTHS FROM SUCH EFFECTIVE DATE, AND IN THE CASE OF ANY SUCH EMPLOYEE ENTERING THE SERVICE AFTER THE EFFECTIVE DATE OF THIS ACT, WITHIN SIX MONTHS FROM THE DATE OF SUCH ENTRANCE: PROVIDED, THAT IN THE CASE OF ANY SUCH EMPLOYEE WHOSE SALARY OR ANY PART THEREOF IS PAID BY THE DISBURSING OFFICER OF THE SENATE SUCH NOTICE MAY BE GIVEN AT ANY TIME, AND SUCH EMPLOYEE SHALL COME UNDER THE PROVISIONS OF SUCH ACT OF MAY 29, 1930, AT THE BEGINNING OF THE SIXTH MONTH AFTER THE GIVING OF SUCH NOTICE.

NO SUCH EMPLOYEE WHOSE SALARY OR ANY PART THEREOF IS PAID BY THE DISBURSING OFFICER OF THE SENATE SHALL MAKE ANY DEPOSIT REQUIRED BY SECTION 9, OR ANY REDEPOSIT REQUIRED BY SUBSECTION (B) OF SECTION 12, OF SUCH ACT OF MAY 29, 1930, AND THERE SHALL NOT BE DEDUCTED AND WITHHELD FROM THE BASIC SALARY, PAY, OR COMPENSATION OF ANY SUCH EMPLOYEE THE SUM REQUIRED TO BE DEDUCTED AND WITHHELD BY SECTION 10 OF SUCH ACT OF MAY 29, 1930, UNLESS AND UNTIL SUCH EMPLOYEE SHALL HAVE COMPLETED 15 YEARS OF SERVICE:* * * (REDUCED TO 7 YEARS BY THE ACT OF JUNE 25, 1938, 52 STAT. 1197.)

IN THE DECISION OF MARCH 2, 1939, 18 COMP. GEN. 683, TO WHICH YOU REFER, WHEREIN WAS INTERPRETED THE ABOVE-QUOTED STATUTE IN THE LIGHT OF OTHER PROVISIONS OF THE RETIREMENT ACT AND THE EXISTING RULES ESTABLISHED THEREUNDER, IT WAS HELD AS FOLLOWS (QUOTING THE SYLLABUS):

SECTION 2 OF THE ACT OF JULY 13, 1937, 50 STAT. 513, AS AMENDED BY THE ACT OF JUNE 25, 1938, 52 STAT. 1197, SPECIFICALLY PROHIBITING WITHOUT EXCEPTION, RETIREMENT DEDUCTIONS FROM THE COMPENSATION OF EMPLOYEES PAID IN WHOLE OR IN PART BY THE DISBURSING OFFICER OF THE SENATE UNTIL THE EXPIRATION OF 7 YEARS' SERVICE, REQUIRES THAT THERE BE NO SUCH DEDUCTIONS IN THE CASE OF EMPLOYEES WHO ARE TRANSFERRED TO A POSITION IN THE SENATE AFTER HAVING ACQUIRED A RETIREMENT ACT STATUS BY REASON OF HOUSE OF REPRESENTATIVES, OR EXECUTIVE AGENCY, SERVICE, UNTIL AFTER THE EXPIRATION OF THE PRESCRIBED PERIOD, EVEN THOUGH THE TRANSFER BE WITHOUT BREAK IN CONTINUITY OF SERVICE, BUT THE RETIREMENT BENEFIT STATUS ALREADY SO OBTAINED MAY BE OTHERWISE PRESERVED UPON SUCH TRANSFER WITHOUT BREAK IN SERVICE.

AN EMPLOYEE TRANSFERRED WITHOUT BREAK IN SERVICE TO A POSITION IN THE SENATE AFTER HAVING ACQUIRED A RETIREMENT ACT STATUS BY REASON OF HOUSE OF REPRESENTATIVES, OR EXECUTIVE AGENCY, SERVICE, AND WHO, BECAUSE OF THE PROHIBITION OF SECTION 2 OF THE ACT OF JULY 13, 1937, AS AMENDED BY THE ACT OF JUNE 25, 1938, 52 STAT. 1197, IS NOT SUBJECT TO RETIREMENT DEDUCTIONS UNTIL THE EXPIRATION OF 7 YEARS' SERVICE, RETAINS HIS RETIREMENT STATUS DURING THE PERIOD OF NONDEDUCTION, BUT BECOMES ELIGIBLE FOR RETIREMENT BENEFITS AFTER THE SAID PERIOD ONLY UPON CONDITION THAT HE MAKES THE PROPER DEPOSITS INTO THE RETIREMENT FUND AS REQUIRED BY THE ACT OF JULY 13, 1937, AS AMENDED.

ONLY ONE ELECTION BY LEGISLATIVE AND COURT EMPLOYEES IS NECESSARY TO ACQUIRE RETIREMENT BENEFITS UNDER THE ACT OF JULY 13, 1937, AS AMENDED BY THE ACT OF JUNE 25, 1938, 52 STAT. 1197, SO LONG AS SERVICE IS CONTINUOUS, AND A TRANSFER WITHOUT BREAK IN SERVICE FROM A HOUSE OF REPRESENTATIVES, OR COURT, POSITION IN WHICH AN EMPLOYEE HAS MADE AN ELECTION TO ACCEPT RETIREMENT BENEFITS TO A SENATE POSITION BEFORE EXPIRATION OF THE FIRST 7 YEARS OF SERVICE, OR 5 YEARS' SERVICE FOR DISABILITY RETIREMENT, DOES NOT REQUIRE ANOTHER ELECTION TO ACCEPT RETIREMENT BENEFITS WHICH AUTOMATICALLY BECOME EFFECTIVE AT THE EXPIRATION OF THE 7 YEARS OR 5-YEAR PERIOD OF SERVICE UPON MEETING THE CONDITIONS OF THE STATUTE REGARDING CURRENT DEDUCTIONS AND/OR DEPOSITS.

SUBSECTION (A) OF SECTION 3 OF THE RETIREMENT ACT OF MAY 29, 1930, AS AMENDED BY THE ACT OF JANUARY 24, 1942, PUBLIC LAW 411, 56 STAT. 15, AND SECTION 16 OF THE ACT OF MARCH 7, 1942, PUBLIC LAW 490, 56 STAT. 147, PROVIDES, SO FAR AS HERE MATERIAL, AS FOLLOWS:

* * * PROVIDED FURTHER, THAT THIS ACT SHALL NOT APPLY TO ANY OFFICER OR EMPLOYEE IN THE LEGISLATIVE BRANCH OF THE GOVERNMENT WITHIN THE CLASSES OF OFFICERS AND EMPLOYEES WHICH WERE MADE ELIGIBLE FOR THE BENEFITS OF THIS ACT BY THE ACT OF JULY 13, 1937, UNTIL HE GIVES NOTICE IN WRITING TO THE DISBURSING OFFICER BY WHOM HIS SALARY IS PAID, OF HIS DESIRE TO COME WITHIN THE PURVIEW OF THIS ACT; AND ANY OFFICER OR EMPLOYEE WITHIN SUCH CLASSES MAY, WITHIN SIXTY DAYS AFTER JANUARY 24, 1942, WITHDRAW FROM THE PURVIEW OF THIS ACT BY GIVING SIMILAR NOTICE OF SUCH DESIRE. IN THE CASE OF ANY OFFICER OR EMPLOYEE IN THE SERVICE OF THE LEGISLATIVE BRANCH OF THE GOVERNMENT ON JANUARY 24, 1942, SUCH NOTICE OF DESIRE TO COME WITHIN THE PURVIEW OF THIS ACT MUST BE GIVEN WITHIN THE CALENDAR YEAR 1942. IN THE CASE OF ANY OFFICER OR EMPLOYEE OF THE LEGISLATIVE BRANCH OF THE GOVERNMENT WHO ENTERS THE SERVICE AFTER JANUARY 24, 1942, SUCH NOTICE OF DESIRE TO COME WITHIN THE PURVIEW OF THIS ACT MUST BE GIVEN WITHIN SIX MONTHS AFTER THE DATE OF ENTRANCE TO THE SERVICE. ( ITALICS SUPPLIED.)

THERE IS FOR NOTING THAT THE STATUTE JUST QUOTED IS NOT AN AMENDMENT TO THE ACT OF JULY 13, 1937, SUPRA. ON THE CONTRARY, THE ITALICIZED PORTION OF THE STATUTE TENDS TO SHOW THAT THE 1937 LAW WAS TO BE REGARDED AS REMAINING IN EFFECT EXCEPT SO FAR AS THE PROVISIONS OF THE TWO STATUTES ARE INCONSISTENT. FROM A READING OF THE TWO STATUTES TOGETHER, IT BECOMES REASONABLY CLEAR THAT THE EFFECT OF THE PROVISIONS IN THE ACT OF JANUARY 24, 1942, AS AMENDED BY THE ACT OF MARCH 7, 1942- - SO FAR AS THEY ARE APPLICABLE TO LEGISLATIVE EMPLOYEES--- WAS (1) TO AFFORD LEGISLATIVE EMPLOYEES WHO ALREADY WERE IN THE SERVICE AND WHO WERE MADE ELIGIBLE FOR RETIREMENT BY THE 1937 LAW UPON THE GIVING OF NOTICE AS REQUIRED BY THAT LAW BUT WHO HAD LOST A RETIREMENT STATUS BY FAILING TO GIVE PROPER NOTICE, A FURTHER OPPORTUNITY TO OBTAIN A RETIREMENT STATUS BY GIVING NOTICE OF SUCH INTENTION DURING THE CALENDAR YEAR 1942; (2) TO AFFORD AN OPPORTUNITY TO LEGISLATIVE EMPLOYEES ALREADY HAVING A RETIREMENT STATUS TO WITHDRAW FROM THE PURVIEW OF THE RETIREMENT ACT WITHIN 60 DAYS AFTER JANUARY 24, 1942; AND (3) TO AFFORD NEWLY APPOINTED LEGISLATIVE EMPLOYEES AN OPPORTUNITY TO COME WITHIN THE PURVIEW OF THE RETIREMENT ACT BY GIVING NOTICE OF SUCH INTENTION WITHIN 6 MONTHS AFTER THE DATE OF ENTRANCE INTO THE SERVICE.

I DO NOT CONSTRUE THE LAW AS REQUIRING ANOTHER ELECTION BY A LEGISLATIVE EMPLOYEE OF THE SENATE OR HOUSE OF REPRESENTATIVES, WHO ALREADY HAD GIVEN WRITTEN NOTICE UNDER AUTHORITY OF THE FIRST PARAGRAPH OF SECTION 2 OF THE 1937 LAW THAT HE DESIRED TO COME WITHIN THE PURVIEW OF THE RETIREMENT ACT, ALTHOUGH NO DEDUCTIONS WERE BEING MADE CURRENTLY FROM THE SALARY OF A SENATE EMPLOYEE AS OF JANUARY 24, 1942, DUE TO THE PROHIBITION AGAINST SUCH DEDUCTIONS FOR A PERIOD OF 7 YEARS. UNDER THE RULES STATED IN THE DECISION OF MARCH 2, 1939 (THE SYLLABUS OF WHICH IS QUOTED ABOVE), AND IN NUMEROUS OTHER DECISIONS, IT IS WELL ESTABLISHED THAT AN EMPLOYEE ONCE WITHIN THE PURVIEW OF THE CIVIL SERVICE RETIREMENT ACT, REMAINS SUBJECT THERETO SO LONG AS HE REMAINS CONTINUOUSLY IN THE SERVICE IN A POSITION COMING WITHIN THE PURVIEW OF THE LAW. THE ONLY DIFFERENCE AS TO LEGISLATIVE EMPLOYEES IS THAT THEY WERE GRANTED AN ELECTION TO WITHDRAW FROM THE PURVIEW OF THE RETIREMENT ACT ,WITHIN SIXTY DAYS AFTER JANUARY 24, 1942.' IT IS NOT TO BE PRESUMED THAT THE CONGRESS WOULD HAVE AUTHORIZED A WITHDRAWAL OF LEGISLATIVE EMPLOYEES WHO ONCE HAD ELECTED TO COME WITHIN THE PURVIEW OF THE RETIREMENT ACT AND, ALSO, REQUIRE SUCH EMPLOYEES TO REELECT TO REMAIN WITHIN THE PURVIEW OF THE RETIREMENT ACT. IN OTHER WORDS, THE PROVISION FOR WITHDRAWAL JUSTIFIES THE INFERENCE THAT ALL LEGISLATIVE EMPLOYEES WHO ALREADY WERE WITHIN THE PURVIEW OF THE RETIREMENT ACT ON JANUARY 24, 1942, REMAINED SO UNLESS AND UNTIL THEY EXERCISED THE OPTION TO WITHDRAW WITHIN 60 DAYS THEREAFTER.

WHILE I THUS CONCUR IN YOUR VIEW REGARDING THE RETIREMENT STATUS OF THE AFFECTED EMPLOYEES, I AM UNABLE TO CONCUR IN YOUR VIEW THAT THE PROVISION IN THE SECOND PARAGRAPH OF SECTION 2 OF THE ACT OF JULY 13, 1937, PROHIBITING RETIREMENT DEDUCTIONS FROM THE SALARIES OF SENATE EMPLOYEES FOR A PERIOD OF 7 YEARS IS NO LONGER IN EFFECT. THAT PROVISION IS NOT INCONSISTENT WITH ANY OF THE PROVISIONS OF THE ACT OF JANUARY 24, 1942, AS AMENDED BY THE ACT OF MARCH 7, 1942, RELATING TO LEGISLATIVE EMPLOYEES, AND I FIND NOTHING IN THE LEGISLATIVE HISTORY OF THE LATER STATUTES INDICATING OR SUGGESTING ANY INTENTION TO REPEAL OR SUPERSEDE THE REFERRED -TO PROVISION IN THE 1937 LAW. HAVING REGARD FOR THE WELL-ESTABLISHED RULE OF STATUTORY CONSTRUCTION THAT REPEALS BY IMPLICATION ARE NOT FAVORED, IT IS CONCLUDED THAT NO RETIREMENT DEDUCTIONS MAY BE MADE FROM THE SALARIES OF SENATE EMPLOYEES UNTIL THEY SHALL HAVE SERVED 7 YEARS AS SENATE EMPLOYEES. SEE THE RULE STATED IN THE DECISION OF MARCH 2, 1939, THE SYLLABUS OF WHICH IS QUOTED ABOVE.

ACCORDINGLY, IF THE SENATE EMPLOYEE REFERRED TO IN YOUR LETTER DID NOT WITHDRAW FROM THE PURVIEW OF THE RETIREMENT ACT WITHIN 60 DAYS AFTER JANUARY 24, 1942, IT IS MY VIEW THAT HE RETAINED HIS RETIREMENT STATUS WITHIN THE PURVIEW OF THE RETIREMENT ACT, BUT THAT NO RETIREMENT DEDUCTIONS MAY BE MADE FROM HIS SALARY UNTIL THE EXPIRATION OF 7 YEARS FROM THE TIME IN 1939 THAT HE WAS TRANSFERRED TO A SENATE POSITION.