§5532. Employment of retired members of the uniformed services; reduction in retired or retainer pay

(a) For the purpose of this section, "period for which he receives pay" means the full calendar period for which a retired officer of a regular component of a uniformed service receives the pay of a position when employed on a full-time basis, but only the days for which he actually receives that pay when employed on a part-time or intermittent basis.

(b) A retired officer of a regular component of a uniformed service who holds a position is entitled to receive the full pay of the position, but during the period for which he receives pay, his retired or retainer pay shall be reduced to an annual rate equal to the first $2,000 of the retired or retainer pay plus one-half of the remainder, if any. In the operation of the formula for the reduction of retired or retainer pay under this subsection, the amount of $2,000 shall be increased, from time to time, by appropriate percentage, in direct proportion to each increase in retired or retainer pay under section 1401a(b) of title 10 to reflect changes in the Consumer Price Index.

(c)(1) If any member or former member of a uniformed service is receiving retired or retainer pay and is employed in a position the annual rate of basic pay for which, when combined with the member's annual rate of retired or retainer pay (reduced as provided under subsection (b) of this section), exceeds the rate of basic pay then currently paid for level V of the Executive Schedule, such member's retired or retainer pay shall be reduced by an amount computed under paragraph (2) of this subsection. The amounts of the reductions shall be deposited to the general fund of the Treasury of the United States.

(2) The amount of each reduction under paragraph (1) of this subsection allocable for any pay period in connection with employment in a position shall be equal to the retired or retainer pay allocable to the pay period (reduced as provided under subsection (b) of this section), except that the amount of the reduction may not result in-

(A) the amount of retired or retainer pay allocable to the pay period after being reduced, when combined with the basic pay for the employment during the pay period, being at a rate less than the rate of basic pay then currently paid for level V of the Executive Schedule; or

(B) the amount of retired pay or retainer pay being reduced to an amount less than the amount deducted from the retired or retainer pay as a result of participation in any survivor's benefits in connection with the retired or retainer pay or veterans insurance programs.

(d) The reduction in retired or retainer pay required by this section does not apply to a member or former member of a uniformed service who is receiving retired or retainer pay-

(1) whose retired or retainer pay is computed, in whole or in part, based on disability-

(A) resulting from injury or disease received in line of duty as a direct result of armed conflict; or

(B) caused by an instrumentality of war and incurred in line of duty during a period of war as defined by sections 101 and 1101 of title 38; or

(2) employed on a temporary (full-time or part-time) basis, any other part-time basis, or an intermittent basis, for the first 30-day period for which he receives pay.

The exemption from reduction in retired or retainer pay under paragraph (2) of this subsection does not apply longer than-

(i) the first 30-day period for which he receives pay under one appointment from the position in which he is employed, if he is serving under not more than one appointment; and

(ii) the first period for which he receives pay under more than one appointment, in a fiscal year, which consists in the aggregate of 30 days, from all positions in which he is employed, if he is serving under more than one appointment in that fiscal year.

(e) The Office of Personnel Management may, during the 5-year period after the effective date of the Civil Service Reform Act of 1978 authorize exceptions to the restrictions in subsections (a), (b), and (c) of this section only when necessary to meet special or emergency employment needs which result from a severe shortage of well qualified candidates in positions of medical officers which otherwise cannot be readily met. An exception granted by the Office with respect to any individual shall terminate upon a break in service of 3 days or more.

(f)(1) Notwithstanding any other provision of law, the retired or retainer pay of a former member of a uniformed service shall not be reduced while such former member is temporarily employed, during the period described in paragraph (2) or any portion thereof, under the administrative authority of the Administrator, Federal Aviation Administration, or of the Secretary of Defense to perform duties in the operation of the air traffic control system or to train others to perform such duties.

(2) The provisions of paragraph (1) of this subsection shall be in effect for any period ending not later than December 31, 1989, during which the Administrator, Federal Aviation Administration, or the Secretary of Defense determines that there is an unusual shortage of air traffic controllers performing duties under the administrative authority of such Administrator or such Secretary, respectively.

(g)(1) The Director of the Office of Personnel Management may, at the request of the head of an Executive agency-

(A) waive the application of the preceding provisions of this section on a case-by-case basis for employees in positions for which there is exceptional difficulty in recruiting or retaining a qualified employee; or

(B) grant authority to the head of such agency to waive the application of the preceding provisions of this section, on a case-by-case basis, for an employee serving on a temporary basis, but only if, and for so long as, the authority is necessary due to an emergency involving a direct threat to life or property or other unusual circumstances.

(2) The Office shall prescribe regulations for the exercise of any authority under this subsection, including criteria for any exercise of authority and procedures for terminating a delegation of authority under paragraph (1)(B).

(h)(1) If warranted by circumstances described in subsection (g)(1)(A) or (B) (as applicable), the Director of the Administrative Office of the United States Courts shall, with respect to an employee in the judicial branch, have the same waiver authority as would be available to the Director of the Office of Personnel Management, or a duly authorized agency head, under subsection (g) with respect to an employee of an Executive agency.

(2) Authority under this subsection may not be exercised with respect to a justice or judge of the United States, as defined in section 451 of title 28.

(i)(1) If warranted by circumstances described in subsection (g)(1)(A) or (B) (as applicable), an official or committee designated in paragraph (2) shall, with respect to the employees specified in the applicable subparagraph of such paragraph, have the same waiver authority as would be available to the Director of the Office of Personnel Management, or a duly authorized agency head, under subsection (g) with respect to an employee of an Executive agency.

(2) Authority under this subsection may be exercised-

(A) with respect to an employee of an agency in the legislative branch, by the head of such agency;

(B) with respect to an employee of the House of Representatives, by the Speaker of the House of Representatives; and

(C) with respect to an employee of the Senate, by the Committee on Rules and Administration of the Senate.

(3) Any exercise of authority under this subsection shall be in conformance with such written policies and procedures as the agency head, the Speaker of the House of Representatives, or the Committee on Rules and Administration of the Senate (as applicable) shall prescribe, consistent with the provisions of this subsection.

(j) For the purpose of subsections (g) through (i), "Executive agency" shall not include the General Accounting Office.

( Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 482 ; Pub. L. 95–454, title III, §308(a), (c)–(f)(1), Oct. 13, 1978, 92 Stat. 1149–1151 ; Pub. L. 97–276, §151(b), Oct. 2, 1982, 96 Stat. 1200 ; Pub. L. 98–396, title III, §306, Aug. 22, 1984, 98 Stat. 1424 ; Pub. L. 98–525, title XV, §1537(b), Oct. 19, 1984, 98 Stat. 2635 ; Pub. L. 99–88, title I, §100, Aug. 15, 1985, 99 Stat. 351 ; Pub. L. 99–500, §101(l), Oct. 18, 1986, 100 Stat. 1783–308 , and Pub. L. 99–591, §101(l), Oct. 30, 1986, 100 Stat. 3341–308 ; Pub. L. 100–202, §§101(l) [title I, §101], 106, Dec. 22, 1987, 101 Stat. 1329–358 , 1329-362, 1329-433; Pub. L. 100–457, title I, Sept. 30, 1988, 102 Stat. 2129 ; Pub. L. 101–509, title V, §529 [title I, §108(a)], Nov. 5, 1990, 104 Stat. 1427 , 1449; Pub. L. 101–510, div. A, title XII, §1206(j)(1), Nov. 5, 1990, 104 Stat. 1663 ; Pub. L. 102–83, §5(c)(2), Aug. 6, 1991, 105 Stat. 406 ; Pub. L. 102–190, div. A, title VI, §655(a)(1), Dec. 5, 1991, 105 Stat. 1390 ; Pub. L. 102–378, §8(a), Oct. 2, 1992, 106 Stat. 1359 .)

Historical and Revision Notes

Derivation	U.S. Code	Revised Statutes and Statutes at Large
	5 U.S.C. 3102(a)–(e).	Aug. 19, 1964, Pub. L. 88–448, §201(a)–(e), 78 Stat. 484 .

The word "position" is substituted for "civilian office" throughout the section to conform to the definition in section 5531.

In subsection (d), the words "and issue" are omitted as surplusage.

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

References in Text

Level V of the Executive Schedule, referred to in subsec. (c)(1), (2)(A), is set out in section 5316 of this title.

The effective date of the Civil Service Reform Act of 1978, referred to in subsec. (e), is 90 days after the date of the enactment of Pub. L. 95–454, which was approved Oct. 13, 1978.

Codification

Amendment of subsec. (f)(2) by Pub. L. 99–500 and 99–591 is based on provisions under the subheading "Federal Aviation Administration, Operations", in title I of H.R. 5205 (Department of Transportation and Related Agencies Appropriations Act, 1987), as incorporated by reference by section 101(l) of Pub. L. 99–500 and 99–591, and enacted into law by section 106 of Pub. L. 100–202.

Pub. L. 99–591 is a corrected version of Pub. L. 99–500.

Amendments

1992-Subsec. (g). Pub. L. 102–378 repealed Pub. L. 101–510, §1206(j)(1). See 1990 Amendment note below.

1991-Subsec. (d)(1)(B). Pub. L. 102–83 substituted reference to section 1101 of title 38 for reference to section 301 of title 38.

Subsecs. (h) to (j). Pub. L. 102–190 added subsecs. (h) to (j).

1990-Subsec. (g). Pub. L. 101–510, §1206(j)(1), which added a subsec. (g) identical to that added by Pub. L. 101–509, see below, was repealed by Pub. L. 102–378, §8(a). See Elimination of Duplicative Amendments note below.

Subsec. (g). Pub. L. 101–509 added subsec. (g).

1988-Subsec. (f)(2). Pub. L. 100–457 substituted "1989" for "1988".

1987-Subsec. (f)(2). Pub. L. 100–202, §101(l) [title I, §101], substituted "1988" for "1987".

For amendment by section 106 of Pub. L. 100–202, see 1986 Amendment note below.

1986-Subsec. (f)(2). Pub. L. 99–500 and Pub. L. 99–591, §101(l), as enacted by Pub. L. 100–202, §106, substituted "December 31, 1987" for "December 31, 1986". See Codification note above.

1985-Subsec. (f)(2). Pub. L. 99–88 substituted "December 31, 1986" for "December 31, 1985".

1984-Subsec. (f)(1). Pub. L. 98–525, §1537(b)(1), inserted "or of the Secretary of Defense".

Subsec. (f)(2). Pub. L. 98–525, §1537(b)(2), inserted "or the Secretary of Defense" and "or such Secretary, respectively".

Pub. L. 98–396 substituted "December 31, 1985" for "December 31, 1984".

1982-Subsec. (f). Pub. L. 97–276 added subsec. (f).

1978-Pub. L. 95–454, §308(f)(1), substituted "members of the uniformed services; reduction in retired or retainer pay" for "officers of the uniformed services; reduction in retired or retirement pay; exceptions" in section catchline.

Subsec. (b). Pub. L. 95–454, §308(e), substituted "or retainer" for "or retirement" wherever appearing.

Subsec. (c). Pub. L. 95–454, §308(a), added subsec. (c) and redesignated former subsec. (c) as (d).

Subsec. (d). Pub. L. 95–454, §308(a), (c), redesignated former subsec. (c) as (d), substituted provisions respecting retainer pay, for provisions respecting retirement pay, struck out reference to requirements under subsec. (b) of this section, and redesignated former subsec. (d) as (e).

Subsec. (e). Pub. L. 95–454, §308(a), (d), redesignated former subsec. (d) as (e) and substituted provisions relating to functions of the Office of Personnel Management under this section with respect to exceptions from restrictions, for provisions relating to functions of the Civil Service Commission under this section with respect to exceptions from restrictions under former subsec. (b) of this section.

Effective Date of 1992 Amendment

Amendment by Pub. L. 102–378 effective Nov. 5, 1990, see section 9(b)(6) of Pub. L. 102–378, set out as a note under section 6303 of this title.

Effective and Termination Dates of 1990 Amendments

Section 1206(j)(4) of Pub. L. 101–510 provided that (A) unless sections 5532(g), 8344(i), and 8468(f) of this title did not take effect as provided in subpar. (B), such sections would cease to be in effect on the earlier of Oct. 1, 1992, or the date of the enactment of the Federal Employees Pay Comparability Act of 1990 [Nov. 5, 1990], and (B) sections 5532(g), 8344(i), and 8468(f) of this title would not take effect if the Federal Employees Pay Comparability Act of 1990 [Pub. L. 101–509] was enacted before the date of the enactment of this Act [Nov. 5, 1990]. Pub. L. 102–378, §8(a), repealed Pub. L. 101–510, §1206(j)(4), and provided that this title shall read as if section 1206(j)(4) had not been enacted.

Amendment by Pub. L. 101–509 effective on such date as the President shall determine, but not earlier than 90 days, and not later than 180 days, after Nov. 5, 1990, see section 529 [title III, §305] of Pub. L. 101–509, set out as an Effective Date of 1990 Amendment note under section 5301 of this title.

Effective Date of 1986 Amendment

Section 106 of Pub. L. 100–202 provided that the amendment made by Pub. L. 99–500 and 99–591 is effective on date of enactment [Oct. 18, 1986] of the "pertinent joint resolution" making continuing appropriations for fiscal year 1987 [Pub. L. 99–500 and 99–591].

Effective Date of 1984 Amendment

Amendment by Pub. L. 98–525 effective Oct. 1, 1984, see section 1537(f) of Pub. L. 98–525, set out as a note under section 4109 of this title.

Effective Date of 1982 Amendment

Amendment by Pub. L. 97–276 effective at 5 o'clock ante meridian eastern daylight time, Aug. 3, 1981, see section 151(h)(1) of Pub. L. 97–276, set out as an Effective Date note under section 5546a of this title.

Effective Date of 1978 Amendment

Amendment by Pub. L. 95–454 effective 90 days after Oct. 13, 1978, see section 907 of Pub. L. 95–454, set out as a note under section 1101 of this title.

Elimination of Duplicative Amendments

Section 8(a) of Pub. L. 102–378 provided that: "Subsections (i) and (j) of section 1206 of the Defense Acquisition Workforce Improvement Act, as contained in the National Defense Authorization Act for Fiscal Year 1991 (Public Law 101–510; 104 Stat. 1662, 1663) [enacting section 5380 of this title, amending this section and sections 8344 and 8468 of this title, and enacting provisions set out as a note under this section and section 5380 of this title], are repealed, and title 5, United States Code, shall read as if such subsections had not been enacted."

Annual Report to Congress

Section 655(d) of Pub. L. 102–190 provided that:

"(1) For the purpose of this subsection, the term 'agency in the legislative branch' has the meaning given such term by section 5531(4) of title 5, United States Code, as amended by subsection (a).

"(2) Each agency in the legislative branch shall submit to the Speaker of the House of Representatives and the Committee on Rules and Administration of the Senate, for each calendar year, a written report on how any authority made available as a result of the enactment of this section [amending this section and sections 5531, 8344, and 8468 of this title] was used by such agency during the period covered by such report.

"(3) A report under this subsection-

"(A) shall include the number of instances in which each type of authority was exercised, the circumstances justifying the exercise of authority, and, unless previously submitted, a description of the policies and procedures governing each type of authority exercised; and

"(B) shall be submitted not later than 30 days after the end of the calendar year to which it relates."

Reduction in Pay of Members of a Uniformed Service Holding Civilian Positions While Receiving Retired or Retainer Pay

Pub. L. 97–253, title III, §301(d), Sept. 8, 1982, 96 Stat. 791 , as amended by Pub. L. 97–346, §3(h), Oct. 15, 1982, 96 Stat. 1648 , which provided that in the case of any member or former member of a uniformed service who, during any period in fiscal year 1983, 1984, or 1985, was receiving retired or retainer pay and held a civilian position, there would be deducted from the pay for such position, in accordance with regulations issued by the Office of Personnel Management, an amount equal to the amount of any increase in such individual's retired or retainer pay pursuant to section 1401a(b) of Title 10, Armed Forces, which took effect during any of such fiscal years in which he held such a civilian position and which was allocable to the period of actual employment in such civilian position, was repealed by Pub. L. 98–369, div. B, title II, §2203, July 18, 1984, 98 Stat. 1059 , effective with respect to pay periods beginning after July 18, 1984.

Dual Pay Requirements for Pay Periods Subsequent to Enactment of Civil Service Act of 1978

Section 308(g) of Pub. L. 95–454 provided that:

"(1) Except as provided in paragraph (2) of this subsection, the amendments made by this section [amending sections 5531 and 5532 of this title] shall apply only with respect to pay periods beginning after the effective date of this Act [see Effective Date note set out under section 1101 of this title] and only with respect to members of the uniformed services who first receive retired or retainer pay (as defined in section 5531(3) of title 5, United States Code (as amended by this section)), after the effective date of this Act.

"(2) Such amendments shall not apply to any individual employed in a position on the date of the enactment of this Act [Oct. 13, 1978] so long as the individual continues to hold any such position (disregarding any break in service of 3 days or less) if the individual, on that date, would have been entitled to retired or retainer pay but for the fact the individual does not satisfy any applicable age requirement.

"(3) The provisions of section 5532 of title 5, United States Code, as in effect immediately before the effective date of this Act, shall apply with respect to any retired officer of a regular component of the uniformed services who is receiving retired pay on or before such date, or any individual to whom paragraph (2) applies, in the same manner and to the same extent as if the preceding subsections of this section had not been enacted."

Cross References

Restrictions on performance of civil functions by regular officers on active duty, see section 973 of Title 10, Armed Forces.

Time limitation on claims against Government employees who received dual compensation in violation of the dual compensation laws, see section 3712 of Title 31, Money and Finance.

Section Referred to in Other Sections

This section is referred to in sections 5531, 8116, 8339, 8344 of this title; title 10 section 2113; title 20 section 4512; title 22 sections 2584, 4048; title 24 sections 417, 421; title 28 section 371; title 38 section 7426; title 39 sections 410, 1005; title 42 sections 2038, 12619.