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mandatory, does not constitute a "retirement system" within the meaning of the term as used in section 3 of the Civil Service Retirement Act until the particular judge has both rendered at least twenty years of service and has elected to receive the retirement benefit. Upon exercising such election after having rendered at least twenty years of service, the judge thereupon becomes subject to a "retirement system” thereby excluding himself from the operation of the Civil Service Retirement Act and becoming entitled to a refund of accumulated deductions. It will be observed, from the consideration of the provisions of said section 11 (a) of the act of April 1, 1942, that membership in a retirement system as such, is not therein provided, and that eventual retirement status is entirely contingent upon reappointment of the judges of said courts for a sufficient number of terms so as to aggregate twenty years of service. Hence, if a judge is not reappointed and does not have the required twenty years of service, he will not attain retirement eligibility.
Your decision as to whether any person serving as judge of one of the courts created by Public 512 would be excluded from the terms of the Civil Service Retirement Act in view of the provisions of section 11 (a) of the said Public No. 512, is requested.
In the event your answer is in the affirmative, may the judges now serving or any person who may be appointed as judge of these courts who is subject to the Civil Service Retirement Act elect to retain his civil service retirement status?
As Public 512 becomes effective July 1, 1942, and appointments are presently being considered, an early decision will be appreciated.
Section 3 of the Civil Service Retirement Act of May 29, 1930, as amended by the acts of January 24, 1942, Public Law 411, and March 7, 1942, Public Law 490, 56 Stat. 143, 147, quoted in the first paragraph of your letter, specifically includes, among others, officers and employees in or under the “judicial” branch of the United States Government. Except to the extent that the proviso to said section of the statute may exclude them, the judges of the various courts here involved appear to fall within the term “judicial" officers and, therefore, would come within the purview of the said Civil Service Retirement Act. The proviso excludes officers and employees of the executive, judicial, and legislative branches of the United States Government and of the municipal government of the District of Columbia who are subject to another retirement system. The words “subject to,” as used in the statute, connote or entail an obligation on the part of the officers or employees required by the terms of another retirement system, that is, an obligation arising solely by reason of an appointment or employment status requiring them to comply with, and making them liable to, the terms, conditions, and limitations of the laws setting up another retirement system, such as, a requirement for regular deductions from their salaries, limiting active service to a certain age, for a particular period of service, and such like.
Section 11 (a) of the act of April 1, 1942, Public Law 512, 56 Stat. 197, quoted in the third paragraph of your letter, appears to create in respect of the judges serving under said act, a separate and distinct retirement system (see feature numbered 8 in House Report No. 1236, on H. R. 5784, which became the present law), but said section)
does not make it obligatory or mandatory upon them to accept the retirement benefits therein provided. No conditions are imposed for retirement at any particular age or for length of service. The words “may hereafter retire” merely betoken a privilege or discretion to retire with an annuity after 20 or more years of service as a judge of one of the courts named in the law.
In the decision of April 23, 1931, 10 Comp. Gen. 491, 492, it was stated, so far as here material:
The provision in section 3 (d) of the civil retirement act, as amended by the act of May 29, 1930, 46 Stat. 471, including within the purview of the act "ur. classified employes transferred from classified positions," is identical with a provision in section 3 (d) in the earlier act of July 3, 1926, 44 Stat. 906. The intent of this provision was to give statutory approval to the prior opinions of the Attorney General and the decisions of the Comptroller General that re tirement benefits were preserved to all employees under the Federal Government serving in positions not within the purview of the civil retirement act, if such service is continuous with prior service in positions within the purview of the civil retirement act. 34 Op. Atty. Gen. 192; id. 334; id. 515; 5 Comp. Gen. 254; 6 id. 69; id. 118; id. 572; 7 id. 150; id. 246; 9 id. 69. Of course, this rule would not apply where the subsequent service is in a position under the Gor ernment subject to a Federal retirement system other than that prescribed by the civil retirement act, such as that applicable to the military and naval ser vices, the Foreign Service, the Lighthouse Service, policemen and firemen, District of Columbia, school-teachers, District of Columbia, and Panama Canal Service after July 1, 1931 (see act of March 2, 1931, 46 Stat. 1471). [Italics supplied.] See, also, 14 Comp. Gen. 123; id. 174; 18 id. 683, 685; 20 id. 509.
The words “subject to” as used in the last sentence of the quoted portion of the decision of April 23, 1931, stating an exception to the general rule--the general rule and exception having been applied consistently in all decisions of this office in this matter-were used in the same sense as they are used in section 3 of the Civil Service Retirement Act, supra, and are for application in the same manner. In a decision of October 11, 1934, A-57221 (not printed), giving reconsideration to the decision of August 29, 1934, 14 Comp. Gen. 174, a part of which latter decision is quoted in your letter, it was stated :
The act of June 27, 1934, 48 Stat. 12, establishes a retirement system for railroad employees. Section 9 (a) of the act provides:
“The members and employees of the Board shall be included as employees under this Act * * *." This establishes for the Federal personnel of the Board the same retirement system as has been established by the act for railroad personnel, separate and distinct from the retirement system established for certain classes of Federal per. sonnel by the Civil Retirement Act, or any other retirement system applicable to Federal personnel. The quoted provision from section 9 (a) of the statute is mandatory, leaving no option to the personnel of the Board to elect to receive retirement benefits under another Federal retirement system.
In the light of the foregoing considerations the provisions of section 11 (a) of the act of April 1, 1942, would appear to be clearly distinguishable from the provisions of laws establishing other retirement systems heretofore considered in decisions of this office, in that the act of April 1, 1942, grants a discretion or option in the judges to retire under its provisions, whereas all other retirement laws considered make it mandatory by reason of an employment or appointment status that retirement benefits be granted exclusively under the laws applicable to such status.
It is my view that your first question is for answering in the negative, and your second question, in the affirmative. Compare 18 Comp. Gen. 955, 19 id. 352.
The effect of such answers would be that unless and until a judge elects to accept the benefits of the retirement system established by section 11 (a) of the act of April 1, 1942, he may be regarded as subject to the provisions of the retirement act of May 29, 1930, as amended. If a judge elects to accept the retirement benefits of the act of April 1, 1942, he will be regarded as having relinquished his right to retirement benefits under the Civil Service Retirement Act of 1930, as amended, a claim for refund of retirement deductions under said latter act to be accepted as an election to accept the benefits of the retirement system established by section 11 (a) of the act of April 1, 1942.
PAY-ADDITIONAL_SEA DUTY-COMMISSIONED OFFICERS OF PUBLIC
HEALTH SERVICE ASSIGNED TO COAST GUARD Under Executive Order No. 8988, commissioned officers of the Public Health
Service who are detailed on Coast Guard vessels constitute while on such assignments a part of the naval forces of the United States, and such officers while so detailed are entitled to the increased pay authorized for sea duty by section 18 of the act of March 7, 1942, under similar conditions of service and subject to the same limitations as apply to medical officers of the Army
and commissioned officers of the naval forces. A commissioned officer of the Public Health Service who was detailed to the
Coast Guard and ordered to proceed to Puerto Rico to report for duty aboard a Coast Guard vessel is entitled to the increased pay authorized for commissioned officers for sea and foreign shore duty by section 18 of the act of March 7, 1942, only from the date of reporting on board the assigned
vessel to the date of detachment therefrom. Assistant Comptroller General Elliott to R. L. Harlow, United States Public
Health Service, June 30, 1942: There has been considered your letter of April 17, 1942, with enclosures, as follows:
There has been presented to the undersigned for certification the enclosed voucher in favor of Assistant Surgeon Lloyd S. Rolufs, a commissioned officer of the Public Health Service, covering ten percent increase in base pay for the period January 1, 1942, to March 26, 1942. The claim of Dr. Rolufs is based on Section 18 of Public Law 490—77th Congress, approved March 7, 1942. During the period covered by his claim he received base pay at the rate of $2,000 per annum.
The records of the Public Health Service show that Assistant Surgeon Rolufs, pursuant to competent orders, left Miami, Florida, January 1, 1942, and arrived
in San Juan, Puerto Rico, on January 3, 1942, for the purpose of assuming duty on board the Coast Guard Cutter Unalga. Because the Unalga was at sea, be did not report on board until January 6, 1942. He was detached from the Unalga on March 24, 1942, under orders to report to Washington, D. C., for duty. On the same day, by telegram from Miami, Florida, he reported his arrival is the United States, and requested seven days' leave en route to his new post of duty, which was granted. He reported for duty at Washington, D. C. on April 2, 1942.
Since Dr. Rolufs' claim includes ten percent increase in pay for reporting for duty with the Coast Guard beyond the continental limits of the United States and travel time which would have ensued had he proceeded direct to his bey station in the United States, your decision is requested as to the extent to which travel time is for consideration.
It would seem that Executive Order 8988 of December 23, 1942, and the Act of July 9, 1917 (42 U. S. C., 20), may have some bearing on the question.
Section 18 of Public Law 490, approved March 7, 1942, 56 Stat. 148, provides :
Sec. 18. Hereafter the base pay of any enlisted man, warrant officer, or purse (female) in the military or naval forces of the United States shall be increased by 20 per centum and the base pay of any commissioned officer in such forces shall be increased by 10 per centum for any period of service while on ses duty, or duty in any place beyond the continental limits of the United States or in Alaska, which increases in pay shall be in addition to pay and allow ances as now authorized : Provided, That the per centum increases herein authorized shall be included in computing increases in pay for aviation and submarine duty: Provided further, That this section shall be effective fro December 7, 1941, and shall cease to be in effect twelve months after the termination of the present war is proclaimed by the President.
Executive Order No. 8988, promulgated December 23, 1941, pursuant to section 4 of the act of July 1, 1902, 32 Stat. 713, as amended, 42 U. S. C. 8, provides :
WHEREAS by Executive Order No. 8929 of November 1, 1941, the Coast Guard is now operating as a part of the Navy, subject to the orders of the Secretary of the Navy; and
WHEREAS commissioned officers of the Public Health Service are now serving on Coast Guard vessels and with other Coast Guard units pursuant to orders issued under competent authority:
Now, THEREFORE, by virtue of the authority vested in me by the statutory provisions above set out, I hereby direct that commissioned officers of the Public Health Service detailed for duty on Coast Guard vessels and with otber Coast Guard units shall continue on such details until relieved by competent authority, and that such officers, including those ordered to such duty as replacements or in addition to present complements, while engaged upon suas assignments shall constitute a part of the naval forces of the United States subject to the orders of the Secretary of the Navy.
When assigned to duty which constitutes them as a part of the naval forces of the United States, commissioned officers of the Public Health Service are entitled to 10 percent increase in their base pay for any period of service while on sea duty, authorized by section 18 of the act of March 7, 1942, under similar conditions of service and subject to the same limitations as are applicable to medical officers of the Army and commissioned officers of the naval forces of the United States. See in this connection, also, as to their assimilation to the pay and allowance of medical officers of the
Army, the first part of section 9 of the act of April 9, 1930, 46 Stat. 151, 42 U. S. C. (Supp.) 37.
In a decision to the Secretary of War, B-25847, dated May 25, 1942, 21 Comp. Gen. 1050, there were considered and answered several questions involving service conditions which entitled Army personnel to the increases provided under section 18 of the act of March 7, 1942, and with respect to question 1 of the submission it was stated :
On the basis of the decisions under the act of June 30, 1902, 32 Stat. 512, applicable to the Army and the act of May 13, 1908, 35 Stat. 128, as amended. applicable to the Navy, it was held in effect in decision B-24335, dated April 17, 1942, 21 Comp. Gen. 932, that the increase under section 18 of the act of March 7, 1942, for sea duty is payable from the date of reporting aboard the vessel to which assigned, and for foreign service from the date of departure from the United States under an assignment to foreign service. On the assumption that the persons referred to are, as stated in the question, assigned to duty on board Army Mine Planters, harbor boats or supply ships and not ordered thereon for travel incident to “duty in any place beyond the continental limits of the United States or in Alaska” they would not be entitled to the increases for foreign service, mere travel beyond the continental limits of the United States without an assignment to duty thereat not constituting foreign service. See 11 Comp. Dec. 688. * * *
Under the orders of December 27, 1941, Assistant Surgeon Lloyd S. Rolufs was directed to report to the Commanding Officer of the United States Coast Guard Cutter Unalga for duty. It is indicated that pursuant thereto the officer arrived at San Juan, Puerto Rico, January 3, 1942; reported for duty on board January 6, 1942, being unable to report sooner as the Unalga was at sea, and pursuant to orders of the Surgeon General, dated March 12, 1942, was relieved from duty on board the U nalga, March 24, 1942, and following seven days' leave of absence reported to the States Relations Division, Washington, D. C., for duty.
Under the decision of May 25, 1942, referred to, the officer is entitled to sea duty pay from date of reporting on board the Unalga, January 6, 1942, to date of detachment therefrom, March 24, 1942. Accordingly, upon adjustment of the voucher he may be paid the increase in base pay authorized by section 18 of the act of March 7, 1942, for sea duty during that period. The voucher is returned herewith.
ENGAGED ON COOPERATIVE PROJECTS Geological Survey employees who are engaged on projects pursuant to cooper
ative agreements with States and municipalities, the effect of which agreements is to reserve to the State or municipality supervisory control as to the fixing of salaries, are not "occupying permanent positions within the scope of the compensation schedules" fixed by the Classification Act within