B-123364, JULY 5, 1955, 35 COMP. GEN. 1

B-123364, JULY 5, 1955, 35 COMP. GEN. 1

LEAVES OF ABSENCE - ANNUAL - ACCRUAL - TEMPORARY AND INDEFINITE EMPLOYEES OF FEDERAL DEPOSIT INSURANCE CORPORATION THE SERVICE OF TEMPORARY AND INDEFINITE EMPLOYEES OF THE FEDERAL DEPOSIT INSURANCE CORPORATION MAY BE CONSIDERED COMPARABLE WITH SERVICE CREDITABLE UNDER SECTION 5 OF THE CIVIL SERVICE RETIREMENT ACT AND, THEREFORE, MAY BE CREDITED FOR ANNUAL LEAVE PURPOSES UNDER SECTION 203 (A) OF THE ANNUAL AND SICK LEAVE ACT OF 1951, NOTWITHSTANDING SECTION 115 OF THE SOCIAL SECURITY AMENDMENTS OF 1954 EXPRESSLY PROHIBITS THE CREDITING OF SUCH SERVICE UNDER SECTION 5 OF THE CIVIL SERVICE RETIREMENT ACT.

TO THE CHAIRMAN, UNITED STATES CIVIL SERVICE COMMISSION, JULY 5, 1955:

YOUR LETTER OF MARCH 21, 1955, REQUESTS OUR DECISION UPON THE QUESTION WHETHER THE SERVICE OF TEMPORARY AND INDEFINITE EMPLOYEES OF THE FEDERAL DEPOSIT INSURANCE CORPORATION MAY CONTINUE, AFTER JANUARY 1, 1955, TO BE CREDITED AS SERVICE FOR ANNUAL LEAVE PURPOSES. YOU EXPRESS THE VIEW THAT THE QUESTION SHOULD BE ANSWERED IN THE AFFIRMATIVE.

BY ADMINISTRATIVE CONSTRUCTION OF THE SOCIAL SECURITY ACT AMENDMENTS OF 1950, 64 STAT. 477, IT APPARENTLY WAS DETERMINED THAT TEMPORARY AND INDEFINITE EMPLOYEES OF THE CORPORATION WERE NOT BROUGHT WITHIN THE PURVIEW OF THE SOCIAL SECURITY ACT BY THE 1950 AMENDMENTS WHICH, GENERALLY, BECAME APPLICABLE TO FEDERAL EMPLOYEES NOT COVERED BY A RETIREMENT SYSTEM. ACCORDINGLY, THE SERVICE OF THE CORPORATION'S EMPLOYEES WAS TREATED AS SERVICE WHICH COULD BE CREDITABLE UNDER THE PROVISIONS OF SECTION 5 OF THE CIVIL SERVICE RETIREMENT ACT OF MAY 29, 1930, AS AMENDED, 5 U.S. CODE 707, FOR THE PURPOSES OF SECTION 203 (A) OF THE ANNUAL AND SICK LEAVE ACT OF 1951, 65 STAT. 679, 5 U.S.C. 2062 A, RELATING TO ANNUAL LEAVE ACCRUALS.

THE ACT ENTITLED SOCIAL SECURITY AMENDMENTS OF 1954, 68 STAT. 1053, AUTHORIZES COVERAGE OF THE CORPORATION'S PERSONNEL BY THE SOCIAL SECURITY ACT BUT IN SECTION 115 THEREOF, 42 U.S.C. 410, IT IS PROVIDED AS FOLLOWS:

NOTWITHSTANDING ANY OTHER PROVISION OF LAW, IN DETERMINING ELIGIBILITY FOR OR THE AMOUNT OF ANY BENEFIT (OTHER THAN A BENEFIT UNDER TITLE II OF THE SOCIAL SECURITY ACT OR UNDER THE RAILROAD RETIREMENT ACT OF 1937, AS AMENDED) UNDER ANY RETIREMENT SYSTEM ESTABLISHED BY THE UNITED STATES OR ANY INSTRUMENTALITY THEREOF, THERE SHALL NOT BE TAKEN INTO ACCOUNT ANY SERVICE WHICH, BY REASON OF THE AMENDMENTS TO SECTION 210 (A) OF THE SOCIAL SECURITY ACT MADE BY SECTION 101 (C) OF THIS ACT, CONSTITUTES EMPLOYMENT AS DEFINED IN SUCH SECTION 210 (A).

THUS, THE SERVICE OF THE CORPORATION'S EMPLOYEES HERETOFORE CONSIDERED CREDITABLE NOW IS EXPRESSLY PROHIBITED FROM BEING VIEWED AS CREDITABLE SERVICE UNDER SECTION 5 OF THE CIVIL SERVICE RETIREMENT ACT, AND THAT RAISES THE QUESTION AS TO WHAT EFFECT THE LANGUAGE OF THE ABOVE-QUOTED SECTION 115 HAS UPON THE ANNUAL LEAVE RIGHTS OF EMPLOYEES OF THE CORPORATION. SENATE REPORT NO. 1987, PAGE 10, ACCOMPANYING H.R. 9366, 83D CONGRESS, WHICH BILL ULTIMATELY WAS ENACTED AS THE SOCIAL SECURITY AMENDMENTS OF 1954, COMMENTS ON THE PURPOSE OF THE PROVISION WHICH BECAME SECTION 115, AS FOLLOWS:

* * * YOUR COMMITTEE BELIEVES THE PRACTICE OF ALLOWING DUAL BENEFITS ON THE BASIS OF THE SAME SERVICE SHOULD BE DISCONTINUED. THE BILL, THEREFORE, WOULD PROHIBIT THE USE OF FEDERAL SERVICE THAT HAS BEEN CREDITED UNDER OLD-AGE AND SURVIVORS INSURANCE FOR BENEFIT PURPOSES UNDER ANY OTHER FEDERAL RETIREMENT SYSTEM.

IT IS CLEAR FROM THAT PART OF THE REPORT JUST QUOTED THAT SECTION 115 WAS ENACTED TO PROHIBIT CREDIT OF THE SERVICE REFERRED TO ONLY FOR THE PURPOSE OF DENYING SUCH CREDIT FOR DUAL RETIREMENT BENEFITS. IT WAS NOT AIMED AT THE COVERAGE OF SECTION 202 (9) OF THE ANNUAL AND SICK LEAVE ACT OF 1951, 65 STAT. 679, 5 U.S.C. 2061; ACCORDINGLY, THE LANGUAGE OF SECTION 203 (A) OF THE LEAVE ACT MUST BE VIEWED IN THE LIGHT OF THE PRESENT STATE OF THE LAW. IN OUR DECISION, 31 COMP. GEN. 217, WE CONSIDERED THE APPLICATION OF SECTION 203 (A) OF THE ANNUAL AND SICK LEAVE ACT TO EMPLOYEES OF AGENCIES SUBJECT TO THE SOCIAL SECURITY ACT INCIDENT TO THE SOCIAL SECURITY ACT AMENDMENTS OF 1950, 64 STAT. 477. SINCE SECTION 115 APPLIES ONLY TO AGENCIES BROUGHT WITHIN THE SOCIAL SECURITY LAW BY THE 1954 AMENDMENTS, THE CRITERIA ESTABLISHED BY 31 COMP. GEN. 217 FOR DETERMINING CREDITABLE SERVICE FOR LEAVE PURPOSES NO LONGER SEEMS ADEQUATE. WE THEREFORE ARE LED TO CONCLUDE THAT THE CONSIDERATION ESTABLISHED FEDERAL SERVICE COMPARABLE WITH THAT CREDITABLE UNDER SECTION 5 OF THE CIVIL SERVICE RETIREMENT ACT IN DETERMINING YEARS OF SERVICE FOR THE PURPOSES OF SECTION 203 (A) OF THE ACT.

FOR THE REASONS STATED, WE CONCUR IN YOUR VIEW AND THE QUESTION PRESENTED IS ANSWERED IN THE AFFIRMATIVE.