U.S. Code
»
Title 5
» Part PART III— EMPLOYEES › Subpart Subpart G— Insurance and Annuities › Chapter CHAPTER 83— RETIREMENT › Subchapter SUBCHAPTER III— CIVIL SERVICE RETIREMENT
5 U.S.C. § 302
EFFECT OF AN ELECTION UNDER SECTION 301 TO BECOME SUBJECT TO THE FEDERAL EMPLOYEES’ RETIREMENT SYSTEM.
“(a)General and Special Rules.—All provisions of chapter 84 of title 5, United States Code (including those relating to disability benefits, survivor benefits, and any reductions to provide for survivor benefits) shall apply with respect to any individual who becomes subject to such chapter pursuant to an election under section 301, except if, or to the extent that, such provisions are inconsistent with the following:“(1)(A) Any civilian service which is performed before the effective date of the election under section 301 shall not be creditable under chapter 84 of title 5, United States Code, except as otherwise provided in this subsection.“(B) Any service described in subparagraph (A) which is covered service within the meaning of section 203(a)(3) of the Federal Employees’ Retirement Contribution Temporary Adjustment Act of 1983 (97 Stat. 1107; 5 U.S.C. 8331 note) (hereinafter in this section referred to as ‘covered service’) shall be creditable under chapter 84 of title 5, United States Code, if—“(i) with respect to any such service performed before January 1, 1987, 1.3 percent of basic pay for such service was withheld in accordance with such Act or, if either such withholding was not made or was made, but the amount so withheld was subsequently refunded, 1.3 percent of basic pay for such period is deposited to the credit of the Civil Service Retirement and Disability Fund (hereinafter in this section referred to as the ‘Fund’), with interest (computed under section 8334(e) of such title); and“(ii) with respect to any such service performed after December 31, 1986, and before the effective date of the election, an amount equal to the percentage of basic pay for such service which would be required to be withheld under section 8422(a) of title 5, United States Code, has been contributed to the Fund by the individual involved, whether by withholdings from pay or, if either no withholding was made or was made, but the amount withheld was subsequently refunded, the aforementioned percentage of basic pay for such period is deposited to the credit of the Fund, with interest (computed under section 8334(e) of such title).“(C) Any service described in subparagraph (A)—“(i) which is not covered service;“(ii) which constitutes service of a type described in section 8411(b)(3) of title 5, United States Code (determined without regard to whether such service was performed before, on, or after January 1, 1989, and without regard to the provisions of section 8411(f) of such title); and“(iii) which, in the aggregate, is equal to less than 5 years;shall be creditable under chapter 84 of such title, subject to section 8411(f) of such title.“(D) Any service described in subparagraph (A)—“(i) which is not covered service;“(ii) which constitutes service of a type described in section 8411(b)(3) of title 5, United States Code (determined without regard to whether such service was performed before, on, or after January 1, 1989, and without regard to the provisions of section 8411(f) of such title); and“(iii) which, in the aggregate, is equal to 5 years or more;shall be creditable for purposes of—“(I) section 8410 of such title, relating to the minimum period of civilian service required to be eligible for an annuity;“(II) any provision of section 8412 (other than subsection (d) or (e) thereof), 8413, 8414, 8442(b)(1), 8443(a)(1), or 8451 of such title which relates to a minimum period of service for entitlement to an annuity;“(III) the provisions of paragraphs (4) and (6);“(IV) any provision of section 8412(d) of such title which relates to a minimum period of service for entitlement to an annuity, but only if and to the extent that the service described in subparagraph (A) was as a law enforcement officer or firefighter;“(V) any provision of section 8412(e) of such title which relates to a minimum period of service for entitlement to an annuity, but only if and to the extent that the service described in subparagraph (A) was as an air traffic controller; and“(VI) the provision of subsection (h) [now (i)] of section 8415 which relates to the minimum period of service required to qualify for the higher accrual rate under such subsection.“(2)(A) Except as provided in subparagraph (B), the creditability under chapter 84 of title 5, United States Code, of any military service which is performed before the effective date of the election under section 301 shall be determined in accordance with applicable provisions of such chapter.“(B) If the electing individual has performed service described in clauses (i) through (iii) of paragraph (1)(D), service described in subparagraph (A) which, but for the provisions of subsection (b), would be creditable under subchapter III of chapter 83 of title 5, United States Code, as in effect on December 31, 1986, shall be creditable for purposes of—“(i) any provision of section 8412 (other than subsection (d) or (e) thereof), 8413, or 8414 of such title which relates to a minimum period of service for entitlement to an annuity; and“(ii) the provisions of paragraph (4).“(3)(A)(i) If the electing individual becomes entitled to an annuity under subchapter II of chapter 84 of title 5, United States Code, or dies leaving a survivor or survivors entitled to benefits under subchapter IV of such chapter, the annuity for such individual shall be equal to the sum of the individual’s accrued benefits under the Civil Service Retirement System (as determined under paragraph (4)) and the individual’s accrued benefits under the Federal Employees’ Retirement System (as determined under paragraph (5)).“(ii) An annuity computed under this subparagraph shall be deemed to be the individual’s annuity computed under section 8415 of title 5, United States Code.“(B) If the electing individual becomes entitled to an annuity under subchapter V of chapter 84 of title 5, United States Code, and if it becomes necessary to compute an annuity under section 8415 of such title with respect to such individual as a result of such individual’s having become so entitled, the methodology set forth in subparagraph (A) shall be used in computing any such annuity under section 8415.“(4) Accrued benefits under this paragraph shall be computed in accordance with applicable provisions of subchapter III of chapter 83 of title 5, United States Code (but without regard to subsection (j) or (k), or the second sentence of subsection (e), of section 8339 of such title) using only any civilian service under paragraph (1)(D), and any military service under paragraph (2)(B), which would be creditable for purposes of computing an annuity under such subchapter. Notwithstanding the preceding sentence, in computing accrued benefits under this paragraph for an individual retiring under section 8412(g) or 8413(b) of title 5, United States Code, section 8339(h) of such title (relating to reductions based on age at date of separation) shall not apply.“(5) Accrued benefits under this paragraph shall be computed under section 8415 of title 5, United States Code, using—“(A) total service creditable under chapter 84 of such title which is performed on or after the effective date of the election under section 301; and“(B) with respect to service performed before such effective date—“(i) creditable civilian service (as determined under applicable provisions of this subsection) other than any service described in paragraph (1)(D); and“(ii) creditable military service (as determined under applicable provisions of this subsection) other than any service described in paragraph (2)(B).“(6)(A) For purposes of any computation under paragraph (4) or (5), the average pay to be used shall be the largest annual rate resulting from averaging the individual’s rates of basic pay in effect over any 3 consecutive years of creditable service or, in the case of an annuity based on service of less than 3 years, over the total period of service so creditable, with each rate weighted by the period it was in effect.“(B) For purposes of subparagraph (A), service shall be considered creditable if it would be considered creditable for purposes of determining average pay under chapter 83 or 84 of title 5, United States Code.“(7) The cost-of-living adjustments for the annuity of the electing individual shall be made as follows:“(A) The portion of the annuity attributable to paragraph (4) shall be adjusted at the time and in the amount provided for under section 8340 of title 5, United States Code.“(B) The portion of the annuity attributable to paragraph (5) shall be adjusted at the time and in the amount provided for under section 8462 of title 5, United States Code.“(8) For purposes of any computation under paragraph (4) in the case of an individual who retires under section 8412 or 8414 of title 5, United States Code, or who dies leaving a survivor or survivors entitled to benefits under subchapter IV of such chapter, sick leave creditable under section 8339(m) of such title shall be equal to the number of days of unused sick leave to the individual’s credit as of the date of retirement or as of the effective date of the individual’s election under section 301, whichever is less.“(9) In computing the annuity under paragraph (3) for an individual retiring under section 8412(g) or 8413(b) of title 5, United States Code, the reduction under section 8415(g) [now 8415(h)] of such title shall apply with respect to the sum computed under such paragraph.“(10) An annuity supplement under section 8421 of title 5, United States Code, shall be computed using the same service as is used for the computation under paragraph (5).“(11) Effective from its commencing date, an annuity payable to an annuitant’s survivor (other than a child under section 8443 of title 5, United States Code) shall be increased by the total percent by which the deceased annuitant’s annuity was increased under paragraph (7).“(12)(A)(i) If the electing individual is a reemployed annuitant under section 8344 of title 5, United States Code, under conditions allowing the annuity to continue during reemployment, payment of the annuitant’s annuity shall continue after the effective date of the election, and an amount equal to the annuity allocable to the period of actual employment shall continue to be deducted from the annuitant’s pay and deposited as provided in subsection (a) of such section. Deductions from pay under section 8422(a) of such title and contributions under section 8423 of such title shall begin effective on the effective date of the election.“(ii) Notwithstanding any provision of section 301, an election under such section shall not be available to any reemployed annuitant who would be excluded from the operation of chapter 84 of title 5, United States Code, under section 8402(c) of such title (relating to exclusions based on the temporary or intermittent nature of one’s employment).“(B) If the annuitant serves on a full-time basis for at least 1 year, or on a part-time basis for periods equivalent to at least 1 year of full-time service, such annuitant’s annuity, on termination of reemployment, shall be increased by an annuity computed—“(i) with respect to reemployment service before the effective date of the election, under section 8339(a), (b), (d), (e), (h), (i), and (n) of title 5, United States Code, as may apply based on the reemployment in which such annuitant was engaged before such effective date; and“(ii) with respect to reemployment service on or after the effective date of the election, under section 8415(a) through (g) [now 8415(a)–(c), (e)–(h)] of such title, as may apply based on the reemployment in which such annuitant was engaged on or after such effective date;with the ‘average pay’ used in any computation under clause (i) or (ii) being determined (based on rates of pay in effect during the period of reemployment, whether before, on, or after the effective date of the election) in the same way as provided for in paragraph (6). If the annuitant is receiving a reduced annuity as provided in section 8339(j) or section 8339(k)(2) of title 5, United States Code, the increase in annuity payable under this subparagraph is reduced by 10 percent and the survivor annuity payable under section 8341(b) of such title is increased by 55 percent of the increase in annuity payable under this subparagraph, unless, at the time of claiming the increase payable under this subparagraph, the annuitant notifies the Office of Personnel Management in writing that such annuitant does not desire the survivor annuity to be increased. If the annuitant dies while still reemployed, after having been reemployed for at least 1 full year (or the equivalent thereof, in the case of part-time employment), any survivor annuity payable under section 8341(b) of such title based on the service of such annuitant is increased as though the reemployment had otherwise terminated. In applying paragraph (7) to an amount under this subparagraph, any portion of such amount attributable to clause (i) shall be adjusted under subparagraph (A) of such paragraph, and any portion of such amount attributable to clause (ii) shall be adjusted under subparagraph (B) of such paragraph.“(C)(i) If the annuitant serves on a full-time basis for at least 5 years, or on a part-time basis for periods equivalent to at least 5 years of full-time service, such annuitant may elect, instead of the benefit provided by subparagraph (B), to have such annuitant’s rights redetermined, effective upon separation from employment. If the annuitant so elects, the redetermined annuity will become payable as if such annuitant were retiring for the first time based on the separation from reemployment service, and the provisions of this section concerning computation of annuity (other than any provision of this paragraph) shall apply.“(ii) If the annuitant dies while still reemployed, after having been reemployed for at least 5 full years (or the equivalent thereof, in the case of part-time employment), any person entitled to a survivor annuity under section 8341(b) of title 5, United States Code, based on the service of such annuitant shall be permitted to elect to have such person’s rights redetermined in accordance with regulations which the Office shall prescribe. Redetermined benefits elected under this clause shall be in lieu of any increased benefits which would otherwise be payable in accordance with the next to last sentence of subparagraph (B).“(D) If the annuitant serves on a full-time basis for less than 1 year (or the equivalent thereof, in the case of part-time employment), any amounts withheld under section 8422(a) of title 5, United States Code, from such annuitant’s pay for the period (or periods) involved shall, upon written application to the Office, be payable to such annuitant (or the appropriate survivor or survivors, determined in the order set forth in section 8342(c) of such title).“(E) For purposes of determining the period of an annuitant’s reemployment service under this paragraph, a period of reemployment service shall not be taken into account unless—“(i) with respect to service performed before the effective date of the election under section 301, it is service which, if performed for at least 1 full year, would have allowed such annuitant to elect under section 8344(a) of title 5, United States Code, to have deductions withheld from pay; or“(ii) with respect to service performed on or after the effective date of the election under section 301, it is service with respect to which deductions from pay would be required to be withheld under the second sentence of section 8468(a) of title 5, United States Code.“(b)Chapter 83 Generally Inapplicable.—(1) Except as provided in subsection (a) or paragraph (2), subchapter III of chapter 83 of title 5, United States Code, shall not apply with respect to any individual who becomes subject to chapter 84 of title 5, United States Code, pursuant to an election under section 301.“(2)(A) Nothing in paragraph (1), or in subchapter III of chapter 83 of title 5, United States Code, shall preclude the making of a deposit under such subchapter with respect to any civilian service under subsection (a)(1)(D) or military service under subsection (a)(2)(B) either by the electing individual or, for purposes of survivor annuities, by a survivor of such individual.“(B) Nothing in paragraph (1) shall preclude the payment of any lump-sum credit in accordance with section 8342 of title 5, United States Code.“(c)Refunds Relating to Certain Civilian Service.—(1) Any individual who makes an election under section 301 to become subject to chapter 84 and who, with respect to any period before the effective date of the election, has made a contribution to the Civil Service Retirement System (whether by deductions from pay or by a deposit or redeposit) and has not taken a refund of the contribution (as so made), shall be entitled to a refund equal to—“(A) for a period of service under clause (i) of subsection (a)(1)(B), the amount by which—“(i) the amount contributed with respect to such period, exceeds“(ii) the amount required under such clause (i) with respect to such period;“(B) for a period of service under clause (ii) of subsection (a)(1)(B), the amount by which—“(i) the amount so contributed with respect to such period, exceeds“(ii) the amount required under such clause (ii) with respect to such period; and“(C) for a period of service under subparagraph (C) of subsection (a)(1), the amount by which—“(i) the amount so contributed with respect to such period, exceeds“(ii) the amount required under such subparagraph with respect to such period.“(2) In accordance with regulations prescribed by the Office of Personnel Management, a refund under this subsection shall be payable upon written application therefor filed with the Office and shall include interest at the rate provided in section 8334(e)(3) of title 5, United States Code. Interest on the refund shall accrue monthly and shall be compounded annually.
Notes of Decisions
Dist. of Columbia v. United States, 67 Fed. Cl. 292 (Fed. Cl. 2005).
· cites it 2× “, 5 U.S.C. §§ 302 , 902, 5721. Divisions of an executive agency are also referred to as agencies, and have been for some time.”
Nasa v. Flra, 527 U.S. 229 (1999).
“Along those lines, respondent AFGE contends that OIG's representative must have been acting for agency management by threatening P with discipline because only NASA's Administrator and his delegates, 5 U. S. C. § 302 (b)(1); 42 U. S. C. § 2472 (a), have the authority to…”
Dist. of Columbia v. White, 435 A.2d 1055 (D.C. 1981).
“6055 (1978). . The assumption that statutory authority is necessary for valid delegation by an agency is incorrect.”
Nat'l Aeronautics & Space Admin. v. Fed. Labor Relations Auth., 527 U.S. 229 (1999).
“Along those lines, respondent AFGE contends that OIG’s representative must have been acting for agency management by threatening P with discipline because only NASA’s Administrator and his delegates, 5 U. S. C. § 302 (b)(1); 42 U. S. C. § 2472 (a), have the authority to…”
Illinois Com. Fishing Ass'n v. Salazar, 867 F. Supp. 2d 108 (D.D.C. 2012).
“It is well established that the Secretary of the Interior is authorized to delegate agency functions to other personnel within the agency, see 5 U.S.C. § 302 , and he properly delegated implementation of the ESA to FWS over 30 years ago.”
Nat'l Aeronautics & Space Admin. v. Fed. Labor Relations Auth., 527 U.S. 229 (1999).
“Along those lines, respondent AFGE contends that OIG’s representative must have been acting for agency management by threatening P with discipline because only NASA’s Administrator and his delegates, 5 U. S. C. § 302 (b)(1); 42 U. S. C. § 2472 (a), have the authority to…”
Reid v. United States (Fed. Cl. 2019).
· cites it 2× “§ 301 and 5 U.S.C. § 302 . Id. at 100 (CMPI 1.1-1).”
— 5 U.S.C. § 302(b) — 1 case
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