Opinion
No. 78-1239.
January 18, 1980.
J. R. Brooks, U.S. Atty., Birmingham, Ala., Ronald R. Glancz, Dept. of Justice, Civ. Div., Appellate Section, Washington, D.C., for defendant-appellant.
Harris, Harris, Shinn Harris, Norman W. Harris, Gary A. Phillips, Decatur, Ala., for plaintiff-appellee.
Appeal from the United States District Court for the Northern District of Alabama.
Before VANCE, POLITZ and RANDALL, Circuit Judges.
AFFIRMED on the basis of the Memorandum of Opinion of the district court dated October 12, 1977, attached hereto as an appendix.
AFFIRMED.
APPENDIX
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
Northeastern Division
MEMORANDUM OF OPINION
5 U.S.C. § 8341 separated would 5 U.S.C. § 8341 separated 89-554 80 Stat. 378 JULIA LEIGH CRAWFORD, ) Plaintiff, ) -vs.- ) NO. CA 77-P-0304-NE ) UNITED STATES OF AMERICA, ) Defendant. ) POINTER, District Judge. This cause arises upon cross summary judgment motions of plaintiff Julia Leigh Crawford and defendant United States of America. At the pre-trial conference held on September 1, 1977 in Huntsville, Alabama, counsel for the parties agreed for the court to decide the merits of the case based on briefs submitted by both parties in conjunction with these summary judgment motions. The facts of this case are undisputed. Plaintiff's husband, William S. Crawford, was employed by the United States Postal Service, with some interruption in service during war-time, from 1924 to 1953. In 1953, at age 46, Mr. Crawford voluntarily separated from his postal service position. At that time he became entitled to a deferred annuity, such annuity reflecting a Civilian Service Credit time of 28 years and 16 days. Under the deferred annuity plan effective in 1953, Mr. Crawford was entitled to receive his annuity when he reached 62 years of age. On August 12, 1968, approximately one month before he reached 62 years of age, Mr. Crawford filed an application for his deferred annuity; on the application he indicated that he was choosing, as his type annuity received, a reduced annuity with survivor benefit for his wife. Mr. Crawford began receiving his annuity when he reached 62 years of age and at the time of his death in 1976 was receiving an annuity of $343.00 per month. Upon his death, Mrs. Crawford applied with the Civil Service Commission's Bureau of Retirement, Insurance, and Occupational Health (BRIOH) for her survivor annuity to which she believed she was entitled due to her husband's 1968 election. After numerous letters exchanged between BRIOH and plaintiff's attorney, Mrs. Crawford was informed she was ineligible to receive any survivor benefits because there was no provision for payment of such annuities to the spouses of deferred annuitants under the applicable provisions of the Civil Service Retirement Law in effect at the time of Mr. Crawford's separation from service in 1953. In order to determine whether Mrs. Crawford is entitled to receive a survivor annuity, the court must decide whether Mr. Crawford's eligibility for benefits was governed by laws in force at the time he separated from service in 1953, the 1956 Amendments to those laws, or laws in force in 1968 when Mr. Crawford actually applied for his retirement annuity benefits. The parties have agreed that Mr. Crawford was not entitled before 1956 to elect a survivor annuity. In 1956 Congress first provided for a survivor annuity election for those entitled to deferred annuities. This court concludes that the 1956 Amendments to the Civil Service Retirement Laws have no effect on Mr. Crawford's eligibility for election of a survivor annuity because they had prospective application only and Mr. Crawford separated from service before the 1956 Act. In 1966 Congress again amended the Civil Service Retirement Laws. These amendments were a comprehensive codification of laws relating to the organization of the government of the United States and its civilian officers and employees. Under the terms of the 1966 Act, if an employee died after having "retired" under the Act and was survived by a spouse to whom he was married at the time of retirement, he was entitled to an annuity for his spouse unless the employee notified the Commission in writing at the time of retirement that he did not desire his spouse to receive this annuity. Thus, unlike the 1956 Act terms, such a survivor annuity was automatic unless otherwise specified by the employee. The court concludes that the "retired" provision used in this survivor annuity section of the 1966 Act, (b), in the context of one who has been earlier from service, must have reference to the day one is first entitled to receive an annuity. Mr. Crawford became entitled to receive an annuity in 1968, not before, since he did not reach the qualifying age of 62 until that year. Thus, the court concludes that Mr. Crawford's eligibility for benefits was governed by the terms of the 1966 Act, the law in effect when he applied for retirement; under the 1966 law he was automatically entitled to have a survivor annuity unless he indicated otherwise to the Commission. Mr. Crawford took no steps to indicate he did not want a survivor annuity for his wife. To the contrary, he took reasonable steps to insure that his wife be protected by such an annuity, as evidenced by his survivor annuity election on his 1968 retirement application and his August 12, 1968 letter to BRIOH indicating his desire to elect a survivor annuity. Thus, having made no indication that he did not desire his wife to have a survivor annuity, Mr. Crawford was entitled to a survivor annuity for his wife under the terms of the 1966 Act, (b), unless this court concludes that the 1966 Act was to have only prospective application and did not apply to those from service before the 1966 Act. This 1966 Act replaced many terms of and yet codified other terms of the 1956 Act, the Act which this court concluded has no application to this case because it was only to be prospectively applied. One provision of the 1956 Act which was expressly repealed by the 1966 Act was § 403, the section which made the 1956 Act prospective only. Thus, the court concludes that it is not bound by the 1956 Act section on prospective application because it was expressly repealed by the 1966 Act, the Act which governs Mr. Crawford's eligibility for retirement benefits. The 1966 Act did, however, include a section which dealt with prospective application of the Act. Section 8(a) of Public Law , , approved September 6, 1966, was the repealer section of the Act and provided that "[t]he laws specified in the following schedule are repealed except with respect to the rights and duties that matured . . . before the effective date of the Act and except as provided by Section 7 of the Act." The only part of Section 7 which is arguably applicable here is Section 7(f) which provided that "[t]he enactment of the Act does not increase or decrease the . . . annuity of any person." The court finds that under Section 8(a) Mr. Crawford's rights had not matured prior to the 1966 Act because he was not entitled to receive his annuity until he reached 62 years of age, and he reached this age two years after passage of 1966 Act. The court further finds that allowing Mr. Crawford to elect a survivor annuity in 1968, as was provided for in the 1966 Act, does not violate the Section 7(f) prohibition on increases or decreases in the amount of an annuity received. By electing a survivor annuity, Mr. Crawford simply chose to have his lifetime benefits reduced in order to provide for his wife after his death. Such an election does not increase or decrease the overall amount of benefits received by him or his wife. In summary the court concludes that, there being no applicable prospective-only language in the 1966 Act, plaintiff Crawford is entitled, under the terms of the 1966 Act, to the survivor annuity elected by her husband when he retired in 1968. Accordingly, there being no genuine issue of material fact, plaintiff is entitled to summary judgment as a matter of law. Plaintiff has indicated that if, in fact, overpayments were made to her husband on his lifetime annuities, she is willing for such overpayments to be credited on the amount due her. This court orders the government to calculate such overpayment, if any, without interest, and credit this amount on sums due plaintiff. Judgment shall be entered by separate order. Done this the 12th day of October, 1977.