B-125823, DECEMBER 9, 1955, 35 COMP. GEN. 351

B-125823, DECEMBER 9, 1955, 35 COMP. GEN. 351

COMPENSATION - RETROACTIVE SALARY INCREASES - REEMPLOYED ANNUITANTS SEPARATED PRIOR TO FEDERAL EMPLOYEES SALARY INCREASE ACT OF 1955 A REEMPLOYED ANNUITANT WHO SERVED UNDER SEVERAL CONSECUTIVE TEMPORARY APPOINTMENTS FROM HIS RETIREMENT IN 1953 TO MARCH 31, 1955, MAY NOT HAVE HIS SEPARATION IN 1955 REGARDED AS A RETIREMENT SO AS TO BE ENTITLED TO THE RETROACTIVE SALARY ADJUSTMENT AUTHORIZED IN SECTION 10 (A) OF THE FEDERAL EMPLOYEES SALARY INCREASE ACT OF 1955, NOR IS HE ENTITLED TO ANY ADJUSTMENT IN THE LUMP-SUM LEAVE PAYMENT INCIDENT TO HIS SEPARATION FROM SERVICE.

TO THE ACTING CHAIRMAN, INTERSTATE COMMERCE COMMISSION, DECEMBER 9, 1955:

THE CHAIRMAN'S LETTER OF OCTOBER 17, 1955, REQUESTS OUR DECISION AS TO HOW SECTION 10 (A) OF THE FEDERAL EMPLOYEES SALARY INCREASE ACT OF 1955, APPROVED JUNE 28, 1955, PUBLIC LAW 94, SHOULD BE INTERPRETED IN RELATION TO THE FACTS AND CIRCUMSTANCES STATED IN THAT LETTER, AS FOLLOWS:

AN EMPLOYEE OF THIS COMMISSION REACHED AGE 70 DURING MARCH OF 1953, AND IN ACCORDANCE WITH SECTION 2 (A) OF THE CIVIL SERVICE RETIREMENT ACT OF 1930 AS AMENDED, WAS AUTOMATICALLY SEPARATED AS OF MARCH 31, 1953. APPLIED FOR AND RECEIVED RETIREMENT ANNUITY UNDER THE CIVIL SERVICE RETIREMENT SYSTEM EFFECTIVE THE FIRST DAY OF THE MONTH FOLLOWING HIS SEPARATION, NAMELY APRIL 1, 1953. DURING MARCH 1953, THIS EMPLOYEE WAS OFFERED AND ACCEPTED A SIX-MONTH TEMPORARY APPOINTMENT UNDER SECTION 2 (B) OF THE ABOVE REFERRED TO ACT AS A REEMPLOYED ANNUITANT. ON COMPLETION OF THE FIRST TEMPORARY APPOINTMENT, THE EMPLOYEE ACCEPTED TWO ADDITIONAL TEMPORARY APPOINTMENTS, ONE FOR SIX MONTHS AND THE OTHER FOR ONE YEAR, OR A TOTAL OF THREE TEMPORARY APPOINTMENTS WHICH RAN CONSECUTIVELY FROM APRIL 1, 1953 TO MARCH 31, 1955, AND BETWEEN THE LATTER DATE AND THE DATE OF ENACTMENT OF THE 1955 PAY ACT THE EMPLOYEE WAS NOT IN THE SERVICE OF THE UNITED STATES.

SECTION 10 (A) OF THE REFERRED-TO ACT, 60 STAT. 178, 5 U.S.C. 1113, NOTE, PROVIDES IN PERTINENT PART AS FOLLOWS:

SEC. 10. (A) 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 * * *.

AS THE EMPLOYEE HERE WAS NOT IN THE SERVICE JUNE 28, 1955, AND AS HIS RETIREMENT DID NOT BECOME EFFECTIVE DURING THE PERIOD BEGINNING WITH THE FIRST DAY OF THE FIRST PAY PERIOD AFTER FEBRUARY 28, 1955, AND THE DATE OF THE ACT OF JUNE 28, 1955--- BUT RATHER WAS RETIRED EFFECTIVE APRIL 1, 1953 --- HE IS NOT UNDER THE ABOVE-QUOTED STATUTORY PROVISIONS, ENTITLED TO ANY RETROACTIVE ADJUSTMENT IN HIS COMPENSATION; NEITHER WOULD HE BE ENTITLED THEREUNDER TO ANY ADJUSTMENT IN THE LUMP SUM LEAVE PAYMENT, IF ANY, MADE TO HIM UPON HIS SEPARATION FROM THE SERVICE MARCH 31, 1955. HIS SEPARATION MARCH 31, 1955, DID NOT CONSTITUTE A RETIREMENT AS CONTENDED BY HIM IN HIS LETTER OF OCTOBER 21, TO OUR OFFICE, AND HIS STATUS FROM APRIL 1, 1953, TO MARCH 31, 1955, WAS NOTHING MORE THAN THAT OF A REEMPLOYED ANNUITANT--- A REEMPLOYMENT AUTHORIZED BY SECTION 2 (B) OF THE CIVIL SERVICE RETIREMENT ACT OF 1930, 5 U.S.C. 691, AS AMENDED, UNDER THE CONDITIONS THEREIN SPECIFIED.

MR. RICE, IN REPLY TO HIS LETTER OF OCTOBER 21, TO OUR OFFICE, HAS BEEN FURNISHED A COPY OF THIS DECISION.