B-161206, APR. 21, 1967

B-161206, APR. 21, 1967

TO THE SECRETARY OF HEALTH, EDUCATION, AND WELFARE:

WE REFER TO YOUR ACTING SECRETARY'S LETTER OF APRIL 4, 1967, WITH ENCLOSURES, CONCERNING THE CASE OF MAJOR B. WHITE, FORMER ASSISTANT DISTRICT MANAGER, SOCIAL SECURITY ADMINISTRATION, ATLANTA, GEORGIA, WHO RETIRED EFFECTIVE JULY 6, 1966, THEREBY LOSING 39 HOURS OF ANNUAL LEAVE AND FAILING TO QUALIFY FOR THE LIBERALIZED RETIREMENT BENEFITS PROVIDED FOR EMPLOYEES RETIRING AT AGE 55 WITH 30 YEARS OF SERVICE BY SECTIONS 504 AND 505 OF PUBLIC LAW 89-504, APPROVED JULY 18, 1966. THE ACTING SECRETARY'S LETTER ASKS OUR DECISION WHETHER THE EFFECTIVE DATE OF MR. WHITE'S RETIREMENT NOW MAY BE CHANGED TO JULY 18, 1966.

THE ESSENTIAL FACTS ARE RELATED IN THE GENERAL COUNSEL'S MEMORANDUM, ENCLOSED WITH THE ACTING SECRETARY'S LETTER, AS FOLLOWS:

"WHEN MR. WHITE ORIGINALLY DISCUSSED HIS RETIREMENT WITH OUR ATLANTA REGIONAL OFFICE, SOCIAL SECURITY ADMINISTRATION ON OR ABOUT APRIL 1, 1966, THE FEDERAL SALARY AND FRINGE BENEFITS ACT OF 1966, PUBLIC LAW 89-504, WAS PENDING BEFORE THE CONGRESS. SINCE MR. WHITE WAS NEARING AGE 55 AND HAD 30 YEARS SERVICE, HE HAD EXPRESSED A DESIRE TO RETIRE AFTER THE PROPOSED PAY BILL WAS PASSED IN ORDER TO BENEFIT BY THE "NO REDUCTION FOR EMPLOYEES AGE 55 WITH 30 YEARS OF SERVICE" FEATURE. IN AN EFFORT TO HAVE EVERYTHING IN ORDER SO THAT HIS RETIREMENT ACTION COULD BE HANDLED EXPEDITIOUSLY, THE STANDARD FORM 52 WAS PREPARED, WITHOUT THE EFFECTIVE DATE AND LATER INADVERTENTLY FORWARDED FOR PROCESSING. THE STANDARD FORM 52 WAS FORWARDED BY OUR ATLANTA REGIONAL OFFICE BECAUSE IT WAS FELT, ON THE BASIS OF THE PUBLICITY GIVEN THE PAY BILL, THAT THE EFFECTIVE DATE OF THE BILL WOULD BE MADE RETROACTIVE TO THE BEGINNING OF THE FIRST PAY PERIOD IN JULY, WHICH IN THE PRESENT SITUATION WAS JULY 3, 1966. THE ATLANTA REGIONAL OFFICE ASSUMED THAT THE EFFECTIVE DATE WOULD BE THE SAME FOR ALL ASPECTS OF THE PAY BILL, AND MR. WHITE WAS SO INFORMED. ON THE BASIS OF THIS INFORMATION, MR. WHITE DECIDED TO MAKE HIS RETIREMENT EFFECTIVE ON JULY 6, 1966.

"WHEN MR. WHITE RETIRED ON JULY 6, 1966, HE HAD ACCUMULATED 482 HOURS OF ANNUAL LEAVE. HOWEVER, HIS LEAVE CEILING WAS 443 HOURS OF ANNUAL LEAVE. OUR ATLANTA REGIONAL OFFICE FAILED TO REMIND MR. WHITE OF THE LEAVE REGULATIONS WHICH LIMIT THE LUMP SUM PAYMENT TO THE ANNUAL LEAVE CARRIED OVER AT THE BEGINNING OF THE LEAVE YEAR IF THE CREDITS EXCEED 240 HOURS OF ANNUAL LEAVE. THUS, MR. WHITE FORFEITED 39 HOURS OF ANNUAL LEAVE WHICH COULD NOT BE INCLUDED IN HIS LUMP SUM PAYMENT.'

AS A CONSEQUENCE OF HIS EARLY RETIREMENT, MR. WHITE SAYS THAT HIS ANNUITY NOW IS $5,673.88 WHEREAS IF HE HAD WAITED UNTIL JULY 18, 1966, THE DATE OF ENACTMENT OF PUBLIC LAW 89-504, TO RETIRE HIS ANNUITY WOULD HAVE BEEN $5,967.27. MR. WHITE ASKS THAT HIS EFFECTIVE RETIREMENT DATE BE CHANGED TO JULY 18 BY REINSTATING HIM AND CARRYING HIM ON THE ROLLS UNTIL THAT DATE. IF WE APPROVE THE ACTION REQUESTED BY MR. WHITE, WE UNDERSTAND THAT THE SOCIAL SECURITY ADMINISTRATION WILL ISSUE A CORRECTED OS-402T PLACING MR. WHITE ON ANNUAL LEAVE FROM JULY 7 TO JULY 18, 1966, AND A CORRECTED SF -50 TO SHOW THE EFFECTIVE DATE OF HIS SEPARATION FOR RETIREMENT AS JULY 18, 1966.

PRESUMABLY THE REGIONAL OFFICE HAS A RESPONSIBILITY FOR COUNSELING ITS EMPLOYEES CONCERNING THEIR RIGHTS UNDER THE CIVIL SERVICE RETIREMENT ACT. OBVIOUSLY, HOWEVER, NO ADMINISTRATIVE OFFICIAL MAY GIVE AUTHORITATIVE OR RESPONSIBLE ADVICE CONCERNING THE APPLICATION OR EFFECT OF A BILL NOT YET ENACTED INTO LAW AND NO EMPLOYEE REASONABLY MAY RELY UPON ANY SPECULATIVE ADVICE HE MAY RECEIVE IN SUCH CONNECTION.

MOREOVER, FROM THE DATE OF ITS INTRODUCTION ON MARCH 30, 1966, TITLE V OF H.R. 14122, THE BILL THAT ULTIMATELY WAS ENACTED AS PUBLIC LAW 89-504, PROVIDED THAT THE AMENDMENT CONTEMPLATED BY SECTION 504 THEREOF, AUTHORIZING INCREASED BENEFITS UPON RETIREMENT FOR THOSE ATTAINING THE AGE OF FIFTY-FIVE YEARS AND WHO HAD COMPLETED THIRTY YEARS OF SERVICE, WOULD BECOME EFFECTIVE UPON THE DATE OF ENACTMENT OF THE BILL INTO LAW.

AS PASSED BY THE HOUSE ON APRIL 6, 1966, AND AMENDED AND PASSED BY THE SENATE ON JULY 11, 1966, THERE WAS NO CHANGE IN THE PROPOSED EFFECTIVE DATE OF SECTION 504. ON THE CONTRARY, SECTION 508 (B) OF PUBLIC LAW 89- 504 READS:

"EXCEPT AS PROVIDED IN SECTION 507 AND IN SUBSECTION (C) OF THIS SECTION, THE AMENDMENTS MADE BY THIS TITLE TO THE CIVIL SERVICE RETIREMENT ACT SHALL NOT APPLY IN THE CASES OF PERSONS RETIRED OR OTHERWISE SEPARATED PRIOR TO THESE RESPECTIVE EFFECTIVE DATES, AND THE RIGHTS OF SUCH PERSONS AND THEIR SURVIVORS SHALL CONTINUE IN THE SAME MANNER AND TO THE SAME EXTENT AS IF THIS TITLE HAD NOT BEEN ENACTED.'

THE SUBSTANCE OF THIS SECTION WAS CONTAINED IN THE ORIGINAL BILL.

THUS, WHILE MR. WHITE MAY HAVE BEEN THE RECIPIENT OF OPINIONS OFFERED BY REGIONAL OFFICERS AS TO THE EFFECTIVE DATE OF THE PENDING BILL AND MAY HAVE DECIDED TO RETIRE ON JULY 6, 1966, SUCH OPINIONS WERE NOT AUTHORITATIVE AND COULD NOT OPERATE TO OBLIGATE THE UNITED STATES.

FURTHER, IT WOULD SEEM THAT MR. WHITE MUST BE CHARGEABLE WITH NOTICE OF THE FACT THAT H.R. 14122 HAD NOT BECOME LAW ON THE DATE OF HIS RESIGNATION AND CONSEQUENTLY THAT HIS ACTION COULD NOT GIVE RISE TO EQUITABLE OR LEGAL RIGHTS BEYOND THOSE THEN PROVIDED BY LAW.

IN ANY EVENT, IT IS APPARENT THAT A FAVORABLE RULING IN THIS CASE COULD CREATE A FAR REACHING PRECEDENT, VIZ., THAT OF PERMITTING LEGAL OBLIGATIONS TO STEM SOLELY FROM SPECULATIVE ANTICIPATION CONCERNING THE EFFECT AND OPERATION OF LEGISLATION BEFORE IT IS ENACTED INTO LAW.

IN THE CIRCUMSTANCES WE MUST ADHERE TO THE CONCLUSION REACHED IN 22 COMP. GEN. 291, CITED AND DISCUSSED IN YOUR GENERAL COUNSEL'S MEMORANDUM, THAT AN EMPLOYEE, LAWFULLY SEPARATED FROM THE SERVICE BY RESIGNATION OR OTHERWISE, MAY NOT THEREAFTER HAVE HIS SEPARATION RESCINDED BY ADMINISTRATIVE ACTION.