                                                                              April 19, 1979


79-27        MEMORANDUM OPINION FOR THE ACTING
             LEGAL ADVISER DEPARTMENT OF STATE

             Foreign Service—Retirement—Amount of Annuity
             (22 U.S.C. § 1076)


   Assistant Attorney General Harmon has asked me to respond to your
 request for our opinion regarding the proper construction o f certain
statutory provisions relating to the Foreign Service Retirement and Dis­
ability System.
   Congress, by § 406 o f Pub. L. N. 95-426, approved October 7, 1978, 92
Stat. 979, liberalized retirement provisions for certain Foreign Service per­
sonnel. Section 821(a) o f the Foreign Service Act o f 1946, 22 U.S.C.
§ 1076(a), provides that one o f the factors in computing the amount o f an
annuity under the Foreign Service Retirement and Disability System
(Retirement System) is the annuitant’s “ average basic salary for his
highest three consecutive years o f service.” Section 406 allowed any par­
ticipant in the Retirement System whose salary was limited by 5 U.S.C.
§ 5308 to compute his or her annuity based on his or her highest single
annual salary instead o f the average 3-year form ula.' This benefit was to
accrue only to eligible persons retiring between October 1, 1978, and
December 31, 1979. In simple terms, § 406 permitted those whose annual
salaries were frozen at„$47,500 to retire after 1 year at that salary level, and
to have that am ount factored into the annuity formula as if they had
served 3 years at that level. The stated and obvious purpose o f § 406 was to
induce early retirement among senior Foreign Service personnel during the
operative period o f the provision.2


   1 Section 5308 limits the Federal pay-comparability system (5 U.S.C. §§ 5301-5308) to the
basic rate o f pay for level V o f the Executive Schedule, which at all relevant times was
$47,500.
   ! The House International Relations Com mittee, in H. Rept. 1160, p. 29, 95th C ong., 2d
Sess. (1978), stated that, “ It is hoped that this tem porary annuity provision will help alleviate
the overcrowding in the Foreign Service * *           See also H. Conf. Rept. 1535, 95th Cong.,
2d Sess., at 52-53 (1978).

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   However, immediately after Pub. L. No. 95-426 was reported out of
conference, Congress reconsidered the wisdom o f § 406 and set the legisla­
tive machinery in motion to stop it from becoming operative.3 One effort
took the form o f an appropriation restriction passed as part o f Pub. L.
No. 95-481, approved O ctober 18, 1978. The other effort, in more con­
ventional terms, was a simple repeal o f § 406, which was included in Pub.
L. No. 95-482, approved O ctober 18, 1978. We understand that during
the 11-day period § 406 was in effect, 64 persons retired who were eligible
to receive the liberalized retirement benefits.
   It is clear that persons retiring after O ctober 18, 1978, cannot take ad­
vantage o f § 406. The question is whether the 64 retirees are entitled to the
“ high one” benefit o f § 406. For the reasons that follow we believe that
they are.

                                           I.
   Public Law 95-426 is the Foreign Relations Authorization Act for fiscal
year 1979. As stated above, § 406 was intended as an early retirement in­
ducement for certain Foreign Service personnel. The House International
Relations Committee in H. Rept. 1160, 95th Cong., 2d Sess. (1978), ex­
plained § 406 and the reasons leading to its enactment as follows:
     [It] provides a special retirement annuity for those Foreign Serv­
     ice officers and other participants in the Foreign Service retire­
     ment system who retire between O ctober 1, 1978 and December
     31, 1979 equal to 2 percent o f the basic salary for the highest
     single year o f service multiplied by the num ber o f years o f service
     credit obtained. Current law com putes annuities on the basis of
     the highest three years o f service.
        The committee wishes to note that this provision is not intended
     to be a precedent for Federal employees generally or for Foreign
     Service personnel other than those to whom this section applies.
     The problems which gave rise to this solution are unique to the
     Foreign Service. It is hoped that this tem porary annuity provision
     will help alleviate the overcrowding in the Foreign Service which
     has been caused by the President’s personnel ceiling and the 1977
     District C ourt decision in Bradley v. Vance holding the m andatory
     retirement age for Foreign Service officers unconstitutional.4
The conference report, H. Rept. 95-1535, elaborated on this explanation as
follows (p. 53):
     The civil service system has authority for both reduction-in-force
     and early retirement inducements to handle similar personnel
     problems. Tem porary and specific retirement inducements are



  ’ The legislative history o f Congress’ reaction to § 406 is set forth more fully infra.
  4   The District C ourt opinion in Bradley v. Vance 436 F. Supp. 134 (D .D .C . 1977) (per
curiam), was reversed by the Supreme C ourt. Vance v. Bradley, 440 U .S. 93 (1979).

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     used in civil service-staffed agencies when such agencies face dif­
     ficult personnel problems such as that now confronting the
     Foreign Service.
        This section [§ 406] is necessitated by the separate personnel
     system o f the Foreign Service which has neither reduction-in-
     force nor special retirement inducement authority.
The Administration voiced strong opposition to § 406, asserting that it
would set an unacceptable precedent for other retirement systems and con­
tribute to inflation. It was also claimed that § 406 would frustrate the A d­
ministration’s pending effort to freeze executive pay by compensating for
the freeze with higher annuities.5 The President, however, approved Pub.
L. No. 95-426 despite his strong opposition to § 406’s “ high one” retire­
ment benefit. In his signing statement he stated that he did so because
Pub. L. No. 95-426 authorized “ urgently needed appropriations” for the
Department o f State, the International Communication Agency, and the
Board o f International Broadcasting. 14 Weekly Comp, o f Pres. Doc.
1734-1735.

                                                  II.

   Shortly after § 406 became law, two separate provisions were enacted:
one to prohibit the expenditure o f appropriated funds for § 406 purposes
(Pub. L. No. 95-481), and the other to repeal it (Pub. L. No. 95-482).
These provisions raise the question whether those Foreign Service person­
nel who retired after § 406 was passed but before these provisions came
into effect are entitled to receive the liberalized retirement benefits o f
§ 406. More precisely, the issue is whether these provisions should be con
strued to apply prospectively, i.e., so as not to divest those who timely
took advantage o f § 406’s “ high one” benefit, or whether they should be
given retrospective effect. The general rule concerning such an issue was
dealt with in Greene v. United States, 376 U.S. 149 (1964). There the
Court quoted with approval (id., at 160) from Union Pac. R. Co. v.
Laramie Stock Yards Co., 231 U.S. 190, 199(1913):
     * * * the first rule o f construction is that legislation must be
     considered as addressed to the future, not to the past * * *
     [and] a retrospective operation will not be given to a statute
     which interferes with antecedent rights * * * unless such be the
     unequivocal and inflexible import o f the terms, and the manifest
     intention o f the legislature.


   5 These views are set forth in a June 26, 1978, letter from Secretary of State Vance and in a
July 18, 1978, letter from the Director o f the Office o f M anagement and Budget, both a d ­
dressed to the Chairm an o f the Senate Foreign Relations Committee. The letters are printed
at 124 C o n g r e s s i o n a l R e c o r d S15725 (daily ed. Sept. 21, 1978), and in S. Rept. 1194, 95th
Cong., 2d Sess., at 75-77 (1978), on the 1979 Foreign Assistance and Related Program s A p­
propriation bill.

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The presumption against retrospectivity is designed to protect reasonable
reliance on prior settled law. At bottom , the rule is basically one o f fair­
ness. Prospective construction is also presumed because retrospective
application in some cases would raise serious constitutional issues and
courts will not lightly infer a congressional intent fraught with such diffi­
culties. United States v. Larionoff, 431 U.S. 864, 879 (1977). We believe
that retrospective construction in this case would present a constitutional
problem. We need not resolve it here because we conclude that Congress
did not intend a retrospective repeal o f § 406.

                                     III.
   As we have already noted, even before § 406 became law, Congress was
moving on two fronts to negate it. One such effort was enacted as part of
Pub. L. No. 95-481. We deal with that effort below.
   Congress in the 1979 Foreign Assistance and Related Programs A ppro­
priations A ct, P ub. L. No. 95-481, appropriated funds to the Foreign
Service Retirement and Disability Fund. However, this appropriation pro­
vided (92 Stat. 1592):
     T hat none o f these funds or other funds available to the Foreign
     Service Retirement and Disability Fund shall be available to
     carry out the provisions o f section 406 o f the Foreign Relations
     Authorization A ct, Fiscal Year 1979.
The appropriation restriction, literally read, would preclude funding for
any payments made pursuant to § 406’s “ high one” provision. This, in ef­
fect, constitutes a repeal with retroactive effect, at least for fiscal year
 1979, o f § 406’s benefit. However, the restriction, despite its seemingly
plain language, was intended to be no more than a simple 1-year repeal of
§ 406. The general rule against retrospective construction thus requires
that this action, absent a clear congressional intent to the contrary, apply
only prospectively.
   The Supreme C ourt has recently stated that however clear statutory
language may appear, resort to the statute’s legislative history to discern
Congress’ intent is proper. Train v. Colorado Pub. Int. Research Group,
426 U.S. 1, 10 (1976). The legislative history o f the appropriation restric­
tion dem onstrates, in our view, that it was, no doubt, intended as a repeal­
ing provision but that the language was used because the restriction’s
sponsors seemed to believe that to employ more conventional repealing
language would undermine the conference report and delay the urgently
needed authorization bill. Senator Inouye, the restriction’s sponsor, ex­
plained this as follows (124 C o n g r e s s io n a l R e c o r d S15725):
     [I]t might be said that the most logical and direct challenge to
     [§ 406] would have been a move to reject the conference report,
     which was adopted yesterday by the Senate, but that would have
     necessitated a reconvening o f the conference and a further delay
     on an already too-long delayed authorization bill. Therefore, in
     the effort to focus direct attention on the “ high-one” retirement,

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      the [Senate Appropriations] committee chose another route
      readily available to it, which was to restrict the funding o f this
      Foreign Service retirement fund.
It seem s p lain th a t S e n a to r In o u y e u rg ed th e re stric tio n ro u te in o r d e r to
acco m p lish th e sam e resu lt as a d irec t rep eal. O th e r legislative h isto ry s u p ­
p o rts th is view. In th e H o u se , R e p re se n tativ e F ascell sta te d th a t th e re stric ­
tio n w as in te n d e d “ to rep eal [§ 406] o f th e a u th o riz in g a c t.” 124 C o n ­
g r e s s io n a l R e c o r d H12629 (daily ed . O c t.               12, 1978). T h e te rm
“ re p e a l” w as u sed re p e a te d ly to re fe r to th e re stric tio n . Id. V iew ing th e
restric tio n as a sim ple rep e al, th e g eneral rule again st retro sp e ctiv e c o n ­
stru c tio n sh o u ld ap p ly . T h a t is, unless C o n g ress m a n ifestly in te n d s r e tr o ­
spective rep eal, a repeal sh o u ld ap p ly o n ly prosp ectiv ely . H ere, n o su ch
in te n t w as expressed. In d e e d , th e re is n o in d ic a tio n th a t C o n g ress sp ecifi­
cally c o n c e rn e d itself w ith th is asp ec t o f th e m a tte r.
   A lth o u g h it is tru e th a t th e legislative h isto ry referre d to p e rso n s w hose
§ 406 e n title m e n t h a d v ested , th e se referen ces d o n o t ta k e o n th e c o lo r o f a
m an ifest in te n tio n th a t th e y w o u ld be d ivested o f th e ir e n title m e n ts.
R ep resen tativ e B u c h a n a n , in o p p o sin g th e re stric tio n , sta te d (124 C o n ­
g r e s s io n a l R e c o r d H 12628):
     But let us look for a moment to see whether this am endment will
     accomplish what the Senate intends. The retirement provision is
     law, the President signed it. It is an entitlement. Thus those plan­
     ning to take advantage o f this provision—and it is my under­
     standing that 45 individuals have already done so—could, and no
     doubt would, take the United States to court to obtain the money
     to which they are entitled.
Representative Fascell stated (124 C o n g r e s s io n a l R e c o r d H12629):
     [The appropriation restriction] has the direct legal effect o f sim­
     ply complicating an issue which has already taken place and
     upon which people have relied. The proper process would be to
     submit a direct repealer or some other modification o f the issue
     in a proper legislative vehicle. [Emphasis added.]
By these remarks, the speakers in arguing against the restriction expressed
doubt as to whether it would have any legal effect. O f course, this doubt
was unfounded since it is well settled that Congress, where it clearly in­
tends to do so, can in an appropriation act suspend, repeal, or otherwise
amend a statute. See, United States v. Dickerson, 310 U.S. 554, 555
(1940); City o f L os Angeles v. Adams, 556 F. 2d 40, 48-49 (D.C. Cir.
1977).6
  Section 109 o f Pub. L. No. 95-482, the Continuing Appropriations Act
for Fiscal Year 1979, reads as follows: “ Section 406 o f Public Law 95-426 is
repealed.” But we find no legislative history suggesting that § 109 was


   * We do not mean to say that every appropriation restriction must be applied only pros­
pectively. However, we stress that in this case the restriction was intended to function only as
a repeal.

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intended to have retrospective effect. See 124 C o n g r e s s io n a l R e c o r d
18862 for the brief Senate consideration. There was no debate in the
House.
   We also note that retrospective application o f § 406’s repeal by Pub. L.
No. 95-482 or retrospective application o f the appropriation restriction in
Pub. L. No. 95-481 would result in a particularly harsh and inequitable
situation for those who retired while § 406 was in effect. They were in­
duced to end their status as Governm ent employees in exchange for a
designated benefit. Now that the Governm ent has induced such action it
would, at a minimum, be unseemly to renege on the “ high one” promise.
T hat result, with its harsh consequences, should not lightly be presumed to
have been Congress’ intent.

                                          L e o n U lm a n
                              Deputy Assistant A ttorney General
                                                   Office o f Legal Counsel




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