B-125952, DEC. 5, 1955

B-125952, DEC. 5, 1955

TO THE HONORABLE ALBERT M. COLE, ADMINISTRATOR, HOUSING AND HOME FINANCE AGENCY:

LETTER DATED OCTOBER 28, 1955, FROM E. J. DWYER, AUTHORIZED CERTIFYING OFFICER OF YOUR OFFICE, PRESENTS THE QUESTION WHETHER A CERTAIN FORMER EMPLOYEE IS ENTITLED TO RETAIN RETROACTIVE COMPENSATION PAID TO HIM AFTER THE ENACTMENT OF PUBLIC LAW 94, APPROVED JUNE 28, 1955.

IN PRESCRIBING INCREASES IN THE BASIC RATES OF COMPENSATION FOR FEDERAL OFFICERS AND EMPLOYEES RETROACTIVE TO THE FIRST DAY OF THE FIRST PAY PERIOD WHICH BEGAN AFTER FEBRUARY 28, 1955, SECTION 10 (A) OF PUBLIC LAW 94 PROVIDED:

"RETROACTIVE COMPENSATION OR SALARY SHALL BE PAID BY REASON OF THIS ACT ONLY IN THE CASE OF AN INDIVIDUAL IN THE SERVICE OF THE UNITED STATES (INCLUDING SERVICE IN THE ARMED FORCES OF THE UNITED STATES) OR THE MUNICIPAL GOVERNMENT OF THE DISTRICT OF COLUMBIA ON THE DATE OF ENACTMENT OF THIS ACT, EXCEPT THAT SUCH RETROACTIVE COMPENSATION OR SALARY SHALL BE PAID (1) TO AN OFFICER OR EMPLOYEE WHO RETIRED DURING THE PERIOD BEGINNING ON THE FIRST DAY OF THE FIRST PAY PERIOD WHICH BEGAN AFTER FEBRUARY 28, 1955, AND ENDING ON THE DATE OF ENACTMENT OF THIS ACT FOR SERVICES RENDERED DURING SUCH PERIOD * * *.'

THE INDIVIDUAL CONCERNED RESIGNED EFFECTIVE MAY 13, 1955, AND, THEREFORE, WAS NOT IN SERVICE ON THE DATE OF ENACTMENT OF PUBLIC LAW 94. AS A RESULT, HE WAS NOT ENTITLED TO THE RETROACTIVE PAYMENT UNLESS IT CAN BE SAID THAT HE "RETIRED" WITHIN THE MEANING OF THE LANGUAGE OF SECTION 10 (A) JUST QUOTED. THERE IS NO SHOWING AS TO HIS ELIGIBILITY FOR AN ANNUITY ON THE EFFECTIVE DATE OF HIS RESIGNATION; BUT HE CONTENDS THAT THE WORD "RETIRED" IS DEFINED IN LEGAL DICTIONARIES TO MEAN "QUIT," "TERMINATE" OR "RESIGN," AND THAT IT IS NOT RESTRICTED TO ONE WHO IS RECEIVING AN ANNUITY.

WE HOLD THAT IN ORDER FOR AN EMPLOYEE TO BE ENTITLED TO RETROACTIVE COMPENSATION UNDER PUBLIC LAW 94 AS HAVING "RETIRED" WITHIN THE MEANING OF SECTION 10 (A) DURING THE RETROACTIVE PERIOD COVERED BY THE LAW, HE MUST HAVE BEEN SEPARATED FROM SERVICE AFTER HAVING BECOME ELIGIBLE FOR AN IMMEDIATE ANNUITY UNDER THE CIVIL SERVICE RETIREMENT ACT (5 U.S.C. 691, ET SEQ.), OR COMPARABLE LAW, BECAUSE OF AGE AND LENGTH OF SERVICE OR BECAUSE OF DISABILITY, REGARDLESS OF WHETHER A CLAIM FOR ANNUITY HAD BEEN SUBMITTED. CF. 31 COMP. GEN. 230, CONSTRUING A PROVISION IN SECTION 6 (B) OF THE ACT OF OCTOBER 24, 1951, PUBLIC LAW 201, 65 STAT. 615, SUBSTANTIALLY IDENTICAL WITH THE ONE IN SECTION 10 (A) HERE CONSIDERED. TO GIVE THE STATUTORY PROVISION A BROADER MEANING WOULD NULLIFY THE OBVIOUS INTENTION OF CONGRESS--- INDICATED BY THE USE OF THE WORD "ONLY"-- - TO RESTRICT THE CLASSES OF INDIVIDUALS ENTITLED TO RETROACTIVE INCREASES OF COMPENSATION, SINCE A BROAD DEFINITION WOULD EXCLUDE PRACTICALLY NO ONE.

WE HAVE NOTED THE DEFINITION OF THE WORD "RETIRE" IN BLACK'S LAW DICTIONARY, THIRD EDITION: TO WITHDRAW FROM ACTIVE SERVICE AS AN OFFICER OF THE ARMY OR NAVY; TO SEPARATE, WITHDRAW, OR REMOVE. THE CASE OF STATE V. LOVE, 95 NEB. 573, 145 N.W. 1010, CITED AS AUTHORITY FOR THE DEFINITION, INVOLVED A CLAIM FOR PENSION BY A FORMER CITY FIREMAN WHO HAD QUIT THE SERVICE AFTER HAVING SERVED SUFFICIENT NUMBER OF YEARS TO ENTITLE HIM TO A PENSION, AND IT SUPPORTS OUR VIEW OF THE PRESENT MATTER. NEITHER DENBY V. BERRY, 263 U.S. 29, NOR PEOPLE EX REL TIMS V. BINGHAM, 166 N.T.S. 28, ALSO CITED, POINTS TO A CONCLUSION DIFFERENT FROM THAT INDICATED HEREIN.

IN VIEW OF THE FOREGOING, WE MUST ADVISE THAT PAYMENT OF RETROACTIVE COMPENSATION UNDER THE CIRCUMSTANCES HERE CONSIDERED WAS ERRONEOUS, AND, ACCORDINGLY, THE PAYEE SHOULD AGAIN BE CALLED UPON TO REFUND THE PAYMENT IN ORDER TO AVOID THE INSTITUTION OF MORE FORMAL COLLECTION PROCEEDINGS.

THE ENCLOSURES ACCOMPANYING MR. DWYER'S LETTER ARE HEREWITH RETURNED AS HE REQUESTED.