Civ. A. No. 3645-62 | D.D.C. | Jul 3, 1963
This is a suit seeking a declaratory judgment to declare that plaintiff, an employee of the Veterans Administration who was retired as totally disabled in 1952 and who was rehired in 1958 as allegedly fully recovered, is entitled to have his name removed from the annuity rolls, to have annuity payments discontinued, to be classified as a “permanent” rather than a “temporary” employee, to receive his full salary, and to have his annuity computed de novo when he again retires so that his annuity then will be computed on the basis of his total service, rather than on the basis of his service up to 1952 and rates in effect in 1952. At present, plaintiff’s annuity continues to be paid, and his current salary is reduced by the amount of the annuity payments. No deductions from his salary for retirement fund are being made, since he is deemed already retired. He is not included in the Federal employees Group Life Insurance coverage, and thus his survivors have no protection.
The defendants, the Civil Service Commissioners, have moved to dismiss the action for failure to state a claim upon which relief can be granted, and in the alternative for summary judgment. Plaintiff has also moved for summary judgment.
Plaintiff was 57 years of age when he retired for total disability in 1952. He was reemployed by the Government on April 28, 1958, when he was 63 years old. In 1961, plaintiff applied to the Civil Service Commission to have his status as a “reemployed annuitant” terminated, and to be recognized as a regular Federal employee, entitled to all rights and benefits now available to regular Federal employees. The Commission’s Bureau of Retirement and Insurance ruled that the Civil Service Retirement Act, 5 U.S.C. §§
5 U.S.C. § 2263(a) provides that an annuitant is not barred by reason of his retired status from employment in any appointive position for which he is qualified. An annuitant so reemployed serves at the will of the appointing officer, and is subject to the special financial provisions of § 2263(b). It is these special provisions which plaintiff seeks to be relieved of, and he argues that he is entitled to come under an exception to § 2263 (b) which excepts from its coverage “a disability annuitant whose annuity is terminated by reason of his recovery or restoration of earning capacity * *
The Civil Service Commission argues that this exception cannot, under the terms of the Act, be applied to anyone who is over 60 at the time of his reemployment and recovery. The Commission, however, has underestimated the-power which Congress has given it under the Act. It is true, as the Commission-emphasizes, that 5 U.S.C. § 2257(c) provides that each employee who completes five years of civilian service and who is retired as disabled shall, unless his disability is permanent in character, be reexamined annually under the direction of the Commission until he reaches the age of 60.
Such power is, however, specifically granted in another section of the Act. Section 2266(c) provides that the Commission “may order or direct at any time such medical or other examinations .as it shall deem necessary to determine the facts relative to the disability or dependency of any person receiving or applying for annuity under this chapter * * In addition, § 2266(a) provides that except as otherwise specifically provided, the Commission “is authorized .and directed to perform, or cause to be •performed, any and all acts * * * as may be necessary and proper for the purpose of carrying the provisions of this chapter into full force and effect.” Thus the Commission has ample authority to examine plaintiff at plaintiff’s specific request to determine whether he qualifies under the exception to § 2263(b) as “a disability annuitant whose annuity is terminated by reason of his recovery or restoration of earning capacity * *
If plaintiff can qualify under the terms •of this exception, then — like those under 60 who are forced to come under the exeeption — plaintiff would no longer serve ’“at the will of the appointing officer,” 5 U.S.C. § 2263(a), since he would no longer be a “reemployed” “annuitant” retaining “retired status.” Ibid. And see § 225 l(n), defining “annuitant” as one who “has met all requirements * * * for title to annuity and has filed claim therefor.” Plaintiff would thus no longer be an “annuitant,” but a regular Federal employee.
Plaintiff’s motion for summary judgment will therefore be granted, and the •case will be remanded to the Civil Service Commission for proceedings not inconsistent with this opinion.
. “Each annuitant retired under this section * * * unless his disability is permanent in character, shall at the expiration of one year from the date of such retirement and annually thereafter, until reaching age sixty, be examined under the direction of the Commission. If the annuitant fails to submit to examination as required under this section, payment of the annuity shall be suspended until continuance of the disability is satisfactorily established.” 5 U.S.C. § 2257(c). Plaintiff’s disability was not “permanent,” although it was found to be (temporary and) “total.”
. “If such annuitant, before reaching age sixty, recovers from his disability, payment of the annuity shall cease upon reemployment by the Government or one year from the date of the medical examination showing such recover-y, whichever is earlier. If such annuitant, before reaching age sixty, is restored to an earning capacity fairly comparable to the current rate of compensation of the position occupied at the time of retirement, payment of the annuity shall cease upon reemployment by the Government or one year from the end of the calendar year-in which earning capacity is so restored, whichever is earlier. Earning capacity shall be deemed restored if, in each of two succeeding calendar years, the income of' the annuitant from wages or self-employment, or both, shall equal at least 80 per centum of the current rate of compensation of the position occupied immediately prior to retirement.” 5 U.S.C. § 2257 (d)