By act of July 13, 1937 (50 Stat. 512) as amended by act of June 25, 1938 (52 Stat. 1197) the provisions of the civil service retirement act were extended to cover employees of the legislative branch and of the United States Courts.

Employees of the United States Government or of any instrumentality of the United States are specifically excepted from the provisions of the Social Security Act of August 14, 1935 (49 Stat. 620), as follows:

Title II, Federal old-age benefits, by sec. 210 (b) (5) thereof (49 Stat. 625).

Title VIII, Taxes with respect to employment, by sec. 811 (b) (6) thereof (49 Stat. 639).

Title IX. Tax on employers of eight or more, by sec. 907 (c) (5) thereof (49 Stat. 643). See Treasury Department Regulations, Federal Register, Vol. I, No. 170, No. 172. Federal employees are also exempted from the benefits of District of Columbia Unemployment Compensation Act by sec. 1 thereof (49 Stat. 946).

Notes of Decisions

Persons holding positions excepted from civil-service rules.-The filling of a position excepted by law from civil-service rules by original appointment from a civil-service eligible list confers upon the person so appointed eligibility for transfer, promotion, or reinstatement in a classified position; but the employee does not thereby acquire a status protecting him from removal from such excepted position and is not entitled to the benefits of the Retirement Act. (1932) 37 Op. Atty. Gen. 7.

While the President may not by Executive order confer upon an individual a classified civil-service status while he is occupying a position exempt from the classified civil service (other than an eligibility status for transfer, promotion, or reinstatement to a position in the classified civil service), he may, by Executive order, under the last paragraph of this section, extend the benefits of the Retirement Act to a person occupying a position exempted from the classified civil service. (1933) 37 Op. Atty. Gen. 350.

682. Retirement act; computation of annuities.-The annuity of an employee retired under the provisions of the preceding sections of this Act shall be a life annuity, terminable upon the death of the annuitant and shall be composed of: (1) A sum equal to $30 for each year of service not exceeding thirty: Provided, That such portion of the annuity shall not exceed three-fourths of the average annual basic salary, pay, or compensation received by the employee during any ive consecutive years of allowable service at the option of the employee; and (2) the amount of annuity purchasable with the sum to the credit of the employee's individual account as provided in section 12 (a) hereof, together with interest at 4 per centum per annum compounded on June 30 of each year, according to the experience of the civil-service retirement and disability fund as may from time to time be set forth in tables of annuity values by the Board of Actuaries: Provided, That the total annuity paid shall in no case be less than an amount equal to the average annual basic salary, pay, or compensation, not to exceed $1,600 per annum, received by the employee during any five consecutive years of allowable service at the option of the employee, multiplied by the number of years of service, not exceeding thirty years, and divided by forty: And provided further, That any employee at the time of his retirement may elect to receive in lieu of the life annuity herein described, an increased annuity of equivalent value which shall carry with it a proviso that no unexpended part of the principal upon the annuitant's death shall be returned. For the purposes of this Act all periods of service shall be computed in accordance with section 5 hereof, and the annuity shall be fixed at the nearest multiple of twelve.

The term "basic salary, pay, or compensation," wherever used in this Act, shall be so construed as to exclude from the operation of the act all bonuses, allowances, overtime pay, or salary, pay, or compensation given in addition to the base pay of the position as fixed by law or regulation. Sec. 4, act of July 3, 1926 (44 Stat. 907); sec. 4, act of May 29, 1930 (46 Stat. 471); 5 U. S. C. 698, 706.

683. Retirement act; computation of service.-Subject to the provisions of section 9 hereof, the aggregate period of service which forms the basis for calculating the amount of any benefit provided in this Act shall be computed from the date of original employment, whether as a classified or an unclassified employee in the civil service of the United States, or in the service of the District of Columbia, including periods of service at different times and in one or more departments, branches, or independent offices, or the legislative branch of the Government, and also periods of service performed overseas under authority of the United States, and periods of honorable service in the Army, Navy, Marine Corps, or Coast Guard of the United States; in the case of an employee, however, who is eligible for and elects to receive a pension under any law, or retired pay on account of military or naval service, or compensation under the War Risk Insurance Act, the period of his military or naval service upon which such pension, retired pay, or compensation is based shall not be included, but nothing in this Act shall be so construed as to affect in any manner his or her right to a pension, or to retired pay, or to compensation under the War Risk Insurance Act in addition to the annuity herein provided.

In computing length of service for the purposes of this Act all periods of separation from the service, and so much of any leaves of absence as may exceed six months in the aggregate in any calendar year, shall be excluded, except such leaves of absence granted employees while receiving benefits under the United States Employee's Compensation Act, and in the case of substitutes in the Postal Service credit shall be given from date of original appointment as a substitute.

In determining the aggregate period of service upon which the annuity is to be based, the fractional part of a month, if any, in the total service shall be eliminated. Sec. 5, act of July 3, 1926 (44 Stat. 907); sec. 5, act of May 29, 1930 (46 Stat. 472); 5 U. S. C. 707.

See also 692, Post.

Notes of Decisions

Military service. This section does not | Act, the Administrator of Veterans' Affairs, require the removal from the military retired list of a retired noncommissioned officer who elects to relinquish his retired pay for the purposes stated therein. (1934) 37 Op. Atty. Gen. 457.

In cases involving applications for pensions under the pension laws and for annuities under the Civil Service Retirement

who administers the pension laws, should certify to the Civil Service Commission, which administers the Civil Service Retirement Act, the period of military or naval service upon which the pension is actually based, as that period is determined by the former officer. (July 14, 1938) 39 Op. Atty. Gen. No. 49.

684. Retirement for disability.-Any employee to whom this Act applies who shall have served for a total period of not less than five years, and who, before becoming eligible for retirement under the conditions defined in the preceding sections hereof, becomes totally disabled for useful and efficient service in the grade or class of position occupied by the employee, by reason of disease or injury not due to vicious habits, intemperance, or willful misconduct on the part of the employee, shall upon his own application or upon the request or order of the head of the department, branch, or independent office concerned, be retired on an annuity computed in accordance with the provisions of section 4 hereof: Provided, That proof of freedom from vicious habits, intemperance, or willful misconduct for a period of more than five years next prior to becoming so disabled for useful and efficient service, shall not be required in any case. No claim shall be allowed under the provisions of this section unless the application for retirement shall have been executed prior to the applicant's separation

from the service or within six months thereafter: Provided, That any employee who heretofore has failed to file an application for retirement within six months after separation from the service, may file such application within three months after the effective date of this Act. No employee shall be retired under the provisions of this section unless examined by a medical officer of the United States, or a duly qualified physician or surgeon, or board of physicians or surgeons, designated by the Commissioner of Pensions for that purpose, and found to be disabled in the degree and in the manner specified herein.

Every annuitant retired under the provisions of this section, unless the disability for which retired be permanent in character, shall at the expiration of one year from the date of such retirement and annually thereafter, until reaching retirement age as defined in section 1 hereof, be examined under the direction of the Commissioner of Pensions by a medical officer of the United States, or a duly qualified physician or surgeon, or board of physicians or surgeons designated by the Commissioner of Pensions for that purpose, in order to ascertain the nature and degree of the annuitant's disability, if any. If an annuitant shall recover before reaching retirement age and be restored to an earning capacity which would permit him to be appointed to some appropriate position fairly comparable in compensation to the position occupied at the time of retirement, payment of the annuity shall be continued temporarily to afford the annuitant opportunity to seek such available position, but not in any case exceeding ninety days from the date of the medical examination showing such recovery. Should the annuitant fail to appear for examination, as required under this section, payment of the annuity shall be suspended until continuance of the disability shall have been satisfactorily established. The Commissioner of Pensions may order or direct at any time such medical or other examination as he shall deem necessary to determine the facts relative to the nature and degree of disability of any employee retired on an annuity under this section.

In all cases where the annuity is discontinued under the provisions of this section before the annuitant has received a sum equal to the amount credited to his individual account as provided in section 12 (a) hereof, together with interest at 4 per centum per annum compounded on June 30 of each year, the difference, unless he shall become reemployed in a position within the purview of this Act, shall be paid to the retired employee, as provided in section 12 (b) hereof, upon application therefor in such form and manner as the Commissioner of Pensions may direct. In case of reemployment in a position within the purview of this Act the amount so refunded shall be redeposited as provided in section 12 (b) hereof.

No person shall be entitled to receive an annuity under the provisions of this Act, and compensation under the provisions of the Act of September 7, 1916, entitled "An Act to provide compensation for employees of the United States suffering injuries while in the performance of their duties, and for other purposes," covering the same period of time; but this provision shall not be so construed as to bar the right of any claimant to the greater benefit conferred by either Act for any part of the same period of time.

Fees for examinations made under the provisions of this section, by physicians or surgeons who are not medical officers of the United States, shall be fixed by the Commissioner of Pensions, and such fees, together with the employee's reasonable traveling and other expenses incurred in order to submit to such examinations, shall be paid out of the appropriations for the cost of administering this Act. Sec. 6, act of July 3, 1926 (44 Stat. 907); sec. 6, act of May 29, 1930 (46 Stat. 472); 5 U. S. C. 710–714.

Notes of Decisions

In general. This section has no applica-, Government was terminated before its ention to an employee whose service with the actment. (1931) 36 Op. Atty. Gen. 495.

685. Retirement act; involuntary separation.-Should any employee fifty-five years of age or over to whom this Act applies, after having served for a total period of not less than fifteen years and before becoming eligible for retirement under the conditions defined in section 1 hereof, become involuntarily separated from the service, not by removal for cause on charges of misconduct or delinquency, such employee shall be paid as he or she may elect, either

(a) The total amount of his deductions with interest thereon; or

(b) An immediate life annuity beginning at the date of separation from the service, having a value equal to the present worth of a deferred annuity, beginning at the age at which the employees would otherwise have become eligible for superannuation retirement computed as provided in section 4 of this Act;

or

(c) A deferred annuity beginning at the age at which the employee would otherwise have become eligible for superannuation retirement, computed as provided in section 4 of this Act. The right to such deferred annuity shall be evidenced by a proper certificate issued under the seal of the Department of the Interior.

Any employee who has served for a period of not less than fifteen years, and who is forty-five years of age, or over, and less than fifty-five years, and who becomes separated from the service under the conditions set forth in this section shall be entitled to a deferred annuity, but such employee may, upon reaching the age of fifty-five years, elect to receive an immediate annuity as provided in paragraph (b) of this section.

Should an annuitant under the provisions of this section be reemployed in a position included in the provisions of this Act, or in any other position in the Government service, the annuity shall cease, and all rights and benefits under the provisions of this section shall terminate from and after the date of such employment.

This section shall include former employees within the provisions of the Act of May 22, 1920, or said Act as amended or as extended by Executive orders, who may have been separated from the service subsequent to August 20, 1920, under the conditions defined in this section: Provided, That in the case of an employee who has received a refund from the "civil-service retirement and disability fund," such employee shall be required to return the amount so withdrawn with interest compounded on June 30 of each year at the rate of 4 per centum per annum before he shall be entitled to the benefits of this section. Sec. 7, act of July 3, 1926 (44 Stat. 909); sec. 7, act of May 29, 1930 (46 Stat. 474); 5 U. S. C. 733, 735, 736.

Whenever at any time hereafter prior to July 1, 1935, any employee of the United States or the District of Columbia to whom the Civil Service Retirement Act, approved May 29, 1930 (U. S. C. Supp. VI, title 5, chap. 14), applies, who has an aggregate period of service of at least thirty years computed as prescribed in section 5 of such act, is involuntarily separated from the service for reasons other than his misconduct, such employee shall be entitled to an annuity computed as provided in section 4 of such act payable from the civil service retirement and disability fund less a sum equal to 3%1⁄2 per centum of such annuity: Provided, That when an annuitant hereunder attains the age which would have been the retirement age prescribed for automatic separation from the service applicable to such annuitant had he continued in the

service to such retirement age, such deduction from the annuity shall cease. If and when any such annuitant shall be reemployed in the service of the District of Columbia or the United States (including any corporation the majority of the stock of which is owned by the United States), the right to the annuity provided by this section shall cease and the subsequent annuity rights of such person shall be determined in accordance with the applicable provisions of retirement law existing at the time of the subsequent separation of such person from the service. Sec. 8 (a), act of June 16, 1933 (48 Stat. 305); 5 U. S. C. 736a.

A similar provision as to employees of the Canal Zone to whom the act of March 2, 1931 (46 Stat. 1471); 48 U. S. C. 1371, applies, and who are involuntarily separated after at least thirty years' service, is contained in sec. 8 (b) of the same act, 48 U. S. C. 1371bb.

Notes of Decisions

be deemed to extend to the denial of that which the statute allows as a right and to which, upon the facts found or admitted by such officer, the claimant is entitled. Dismuke v. U. S. (1936), 297 U. S. 167, affirming (1935) 76 F. (2d) 715.

In general.-In creating claims against | command, the power of the officer will not itself, the United States may limit claimants to an administrative remedy; but in the absence of compelling language, resort to the courts to assert the right created will be deemed to be curtailed only so far as authority to decide is given to the administrative officer; and, in the absence of plain 686. Retirement act; extension of benefits to persons previously retired. In the case of those who before the effective date of this Act shall have been retired on annuity under the provisions of the Act of May 22, 1920, or said Act as amended, or as extended by Executive orders, the annuity shall be computed, adjusted, and paid under the provisions of this Act, but this Act shall not be so construed as to reduce the annuity of any person retired before its effective date, nor shall any increase in annuity commence before such effiective date. Scc. 8, act of July 3, 1926 (44 Stat. 909); sec. 8, act of May 29, 1930 (46 Stat. 475); 5 U. S. C. 736c.

687. Retirement act; deposits and service credit of persons covered in.—Beginning with the effective date of this Act, all employees who may be brought then or thereafter within the purview of the Act by legislative enactment, or by appointment, or through classification, or by transfer, or reinstatement, or Executive order, or otherwise, shall be required to deposit with the Treasurer of the United States to the credit of the "civil-service retirement and disability fund" a sum equal to 21⁄2 per centum of the employee's basic salary, pay, or compensation received for services rendered after July 31, 1920, and prior to July 1, 1926, and also 3 per centum of the basic salary, pay, or compensation for services rendered from and after July 1, 1926, together with interest computed at the rate of 4 per centum per annum compounded on June 30 of each fiscal year, but such interest shall not be included for any period during which the employee was separated from the service. All employees who may hereafter be brought within the purview of this Act may elect to make such deposits in installments during the continuance of their service in such amounts and under such conditions as may be determined in each instance by the Commissioner of Pensions. The amount so deposited, less $1 for each month, or major fraction thereof, of service after the effective date of this Act, shall be credited to the employee's individual account, as provided in section 12 (a) hereof: Provided, That failure to make such deposit shall not deprive the employee of credit for any past service rendered prior to August 1, 1920, to which he or she would otherwise be entitled: Provided further, That, notwithstanding the failure of an employee to make such deposit, credit shall be allowed for the service rendered, but the annuity of such employee