5 U.S.C. § 8425 — Mandatory separation

Page 1140 TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES § 8425 1 So in original. Probably should be followed by a comma. scendants of deceased children by representa- tion. Fourth, if none of the above, to the parents of the employee or Member or the survivor of them. Fifth, if none of the above, to the duly ap- pointed executor or administrator of the es- tate of the employee or Member. Sixth, if none of the above, to such other next of kin of the employee or Member as the Office determines to be entitled under the laws of the domicile of the employee or Member at the date of death of the employee or Member. For the purpose of this subsection, ‘‘child’’ in- cludes a natural child and an adopted child, but does not include a stepchild. (e) If an employee or Member, or former em- ployee or Member, dies— (1) without a survivor, or (2) with a survivor or survivors and the right of all survivors under subchapter IV termi- nates before a claim for survivor annuity under such subchapter is filed, the lump-sum credit shall be paid. (f) If all annuity rights under this chapter (other than under subchapter III of this chapter) based on the service of a deceased employee or Member terminate before the total annuity paid equals the lump-sum credit, the difference shall be paid. (g) If an annuitant dies, annuity accrued and unpaid shall be paid. (h) Annuity accrued and unpaid on the termi- nation, except by death, of the annuity of an an- nuitant or survivor shall be paid to that indi- vidual. Annuity accrued and unpaid on the death of a survivor shall be paid in the following order of precedence, and the payment bars recovery by any other person: First, to the duly appointed executor or ad- ministrator of the estate of the survivor. Second, if there is no executor or adminis- trator, payment may be made, after 30 days from the date of death of the survivor, to such next of kin of the survivor as the Office deter- mines to be entitled under the laws of the domicile of the survivor at the date of death. (Added Pub. L. 99–335, title I, § 101(a), June 6, 1986, 100 Stat. 539; amended Pub. L. 106–361, § 3(b), Oct. 27, 2000, 114 Stat. 1402; Pub. L. 111–84, div. A, title XIX, § 1904(b)(4), Oct. 28, 2009, 123 Stat. 2617.) Editorial Notes AMENDMENTS 2009—Subsec. (a). Pub. L. 111–84 substituted ‘‘based, until the employee or Member is reemployed in the service subject to this chapter.’’ for ‘‘based.’’ in con- cluding provisions. 2000—Subsec. (b)(1). Pub. L. 106–361 amended par. (1) generally. Prior to amendment, par. (1) read as follows: ‘‘Payment of the lump-sum credit under subsection (a)— ‘‘(A) may be made only if any current spouse and any former spouse of the employee or Member are no- tified of the application by the employee or Member; and ‘‘(B) in any case in which there is a former spouse, shall be subject to the terms of a court decree of di- vorce, annulment, or legal separation issued with re- spect to such former spouse if— ‘‘(i) the decree expressly relates to any portion of the lump-sum credit involved; and ‘‘(ii) payment of the lump-sum credit would affect any right or interest of the former spouse with re- spect to a survivor annuity under section 8445, or to any portion of an annuity under section 8467.’’ § 8425. Mandatory separation (a) An air traffic controller who is otherwise eligible for immediate retirement under section 8412(e) shall be separated from the service on the last day of the month in which that air traffic controller becomes 56 years of age or completes 20 years of service if then over that age. The Secretary, under such regulations as the Sec- retary may prescribe, may exempt a controller having exceptional skills and experience as a controller from the automatic separation provi- sions of this subsection until that controller be- comes 61 years of age. The Secretary shall no- tify the controller in writing of the date of sepa- ration at least 60 days before that date. Action to separate the controller is not effective, with- out the consent of the controller, until the last day of the month in which the 60-day notice ex- pires. For purposes of this subsection, the term ‘‘air traffic controller’’ or ‘‘controller’’ has the meaning given to it under section 8401(35)(A). (b)(1) A law enforcement officer, firefighter, nuclear materials courier, or customs and bor- der protection officer who is otherwise eligible for immediate retirement under section 8412(d)(1) shall be separated from the service on the last day of the month in which that law en- forcement officer, firefighter, nuclear materials courier, or customs and border protection offi- cer 1 as the case may be, becomes 57 years of age or completes 20 years of service if then over that age. If the head of the agency judges that the public interest so requires, that agency head may exempt such an employee from automatic separation under this subsection until that em- ployee becomes 60 years of age. The employing office shall notify the employee in writing of the date of separation at least 60 days before that date. Action to separate the employee is not ef- fective, without the consent of the employee, until the last day of the month in which the 60- day notice expires. (2) In the case of employees of the Federal Bu- reau of Investigation, the second sentence of paragraph (1) shall be applied by substituting ‘‘65 years of age’’ for ‘‘60 years of age’’. The au- thority to grant exemptions in accordance with the preceding sentence shall cease to be avail- able after December 31, 2011. (c) A member of the Capitol Police who is oth- erwise eligible for immediate retirement under section 8412(d)(1) shall be separated from the service on the last day of the month in which such member becomes 57 years of age or com- pletes 20 years of service if then over that age. The Capitol Police Board, when in its judgment the public interest so requires, may exempt such a member from automatic separation under this subsection until that member becomes 60 years of age. The Board shall notify the member in writing of the date of separation at least 60 days before that date. Action to separate the member Page 1141 TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES § 8425 is not effective, without the consent of the member, until the last day of the month in which the 60-day notice expires. (d) A member of the Supreme Court Police who is otherwise eligible for immediate retire- ment under section 8412(d)(1) shall be separated from the service on the last day of the month in which such member becomes 57 years of age or completes 20 years of service if then over that age. The Marshal of the Supreme Court of the United States, when in his judgment the public interest so requires, may exempt such a member from automatic separation under this sub- section until that member becomes 60 years of age. The Marshal shall notify the member in writing of the date of separation at least 60 days before the date. Action to separate the member is not effective, without the consent of the member, until the last day of the month in which the 60-day notice expires. (e) The President, by Executive order, may ex- empt an employee (other than a member of the Capitol Police or Supreme Court Police) from automatic separation under this section if the President determines the public interest so re- quires. (Added Pub. L. 99–335, title I, § 101(a), June 6, 1986, 100 Stat. 540; amended Pub. L. 101–428, § 3(b)(1)(A), (2), Oct. 15, 1990, 104 Stat. 929, 930; Pub. L. 101–509, title V, § 529 [title IV, § 409(b)], Nov. 5, 1990, 104 Stat. 1427, 1468; Pub. L. 102–378, § 2(67), Oct. 2, 1992, 106 Stat. 1354; Pub. L. 103–283, title III, § 307(b)(1), July 22, 1994, 108 Stat. 1441; Pub. L. 105–261, div. C, title XXXI, § 3154(k), Oct. 17, 1998, 112 Stat. 2256; Pub. L. 106–553, § 1(a)(2) [title III, § 308(c)(5)], Dec. 21, 2000, 114 Stat. 2762, 2762A–87; Pub. L. 107–27, § 2(b), Aug. 20, 2001, 115 Stat. 207; Pub. L. 108–176, title II, § 226(a)(3)(B), Dec. 12, 2003, 117 Stat. 2529; Pub. L. 108–447, div. B, title I, § 112(b), Dec. 8, 2004, 118 Stat. 2868; Pub. L. 108–458, title II, § 2005(b), Dec. 17, 2004, 118 Stat. 3704; Pub. L. 110–161, div. E, title V, § 535(b)(6), Dec. 26, 2007, 121 Stat. 2076; Pub. L. 111–259, title IV, § 444(b), Oct. 7, 2010, 124 Stat. 2733; Pub. L. 117–225, § 3(b)(2)(A)(v), Dec. 9, 2022, 136 Stat. 2296.) Editorial Notes AMENDMENTS 2022—Subsecs. (b)(1), (c), (d). Pub. L. 117–225 inserted ‘‘(1)’’ after ‘‘section 8412(d)’’. 2010—Subsec. (b)(2). Pub. L. 111–259, § 444(b)(2), struck out par. (2) added by section 2005(b)(2) of Pub. L. 108–458 which read as follows: ‘‘In the case of employees of the Federal Bureau of Investigation, the second sentence of paragraph (1) shall be applied by substituting ‘65 years of age’ for ‘60 years of age’. The Federal Bureau of In- vestigation may not grant more than 50 exemptions in any fiscal year in accordance with the preceding sen- tence, and the authority to grant such exemptions shall cease to be available after September 30, 2007.’’ Pub. L. 111–259, § 444(b)(1), amended par. (2) relating to employees of the Federal Bureau of Investigation and providing that authority to grant exemptions shall cease to be available after Dec. 31, 2009, by substituting ‘‘2011’’ for ‘‘2009’’. 2007—Subsec. (b)(1). Pub. L. 110–161 substituted ‘‘nu- clear materials courier, or customs and border protec- tion officer who’’ for ‘‘or nuclear materials courier who’’ and ‘‘nuclear materials courier, or customs and border protection officer’’ for ‘‘or nuclear materials courier,’’. 2004—Subsec. (b). Pub. L. 108–447, § 112(b)(1), and Pub. L. 108–458, § 2005(b)(1), amended subsec. (b) identically, designating existing provisions as par. (1). Subsec. (b)(2). Pub. L. 108–458, § 2005(b)(2), added par. (2) relating to employees of the Federal Bureau of In- vestigation, limiting number of exemptions to 50 per fiscal year, and providing that authority to grant such exemptions shall cease to be available after Sept. 30, 2007. Pub. L. 108–447, § 112(b)(2), added par. (2) relating to employees of the Federal Bureau of Investigation and providing that authority to grant exemptions shall cease to be available after Dec. 31, 2009. 2003—Subsec. (a). Pub. L. 108–176 inserted at end ‘‘For purposes of this subsection, the term ‘air traffic con- troller’ or ‘controller’ has the meaning given to it under section 8401(35)(A).’’ 2001—Subsec. (b). Pub. L. 107–27 struck out first sen- tence which read ‘‘A firefighter who is otherwise eligi- ble for immediate retirement under section 8412(d) shall be separated from the service on the last day of the month in which such firefighter becomes 55 years of age or completes 20 years of service if then over that age.’’ and, in second sentence, inserted ‘‘, firefighter,’’ after ‘‘law enforcement officer’’ in two places and sub- stituted ‘‘courier, as the case may be, becomes 57 years of age’’ for ‘‘courier becomes 57 years of age’’. 2000—Subsec. (d). Pub. L. 106–553, § 1(a)(2) [title III, § 308(c)(5)(A)], added subsec. (d). Former subsec. (d) re- designated (e). Subsec. (e). Pub. L. 106–553, § 1(a)(2) [title III, § 308(c)(5)], redesignated subsec. (d) as (e) and sub- stituted ‘‘Police or Supreme Court Police)’’ for ‘‘Po- lice)’’. 1998—Subsec. (b). Pub. L. 105–261, in second sentence, inserted ‘‘or nuclear materials courier’’ after ‘‘law en- forcement officer’’ in two places. 1994—Subsec. (b). Pub. L. 103–283, § 307(b)(1)(A), struck out ‘‘member of the Capitol Police or’’ before ‘‘fire- fighter who is’’ and ‘‘member or’’ before ‘‘firefighter be- comes’’ in first sentence. Subsecs. (c), (d). Pub. L. 103–283, § 307(b)(1)(B), (C), added subsec. (c) and redesignated former subsec. (c) as (d). 1992—Subsec. (b). Pub. L. 102–378 amended first sen- tence generally and, in second sentence, substituted ‘‘becomes’’ for ‘‘become’’. Prior to amendment, first sentence read as follows: ‘‘A law enforcement officer, member of the Capitol Police, or firefighter who is oth- erwise eligible for immediate retirement under section 8412(d) shall be separated from the service on the last day of the month in which that law enforcement offi- cer, member of the Capitol Police, or firefighter be- comes 55 years of age or completes 20 years of service if then over that age.’’ 1990—Subsec. (b). Pub. L. 101–509, § 529 [title IV, § 409(b)(1)], which directed the amendment of subsec. (b) by striking out ‘‘law enforcement officer or’’ wherever appearing in first sentence, could not be executed be- cause of a prior amendment by Pub. L. 101–428, § 3(b)(1)(A), see below. Pub. L. 101–509, § 529 [title IV, § 409(b)(2)], inserted after first sentence ‘‘A law enforcement officer who is otherwise eligible for immediate retirement under sec- tion 8412(d) shall be separated from the service on the last day of the month in which that law enforcement officer become 57 years of age or completes 20 years of service if then over that age.’’ Pub. L. 101–428, § 3(b)(1)(A), substituted ‘‘officer, mem- ber of the Capitol Police, or’’ for ‘‘officer or’’ in two places. Subsec. (c). Pub. L. 101–428, § 3(b)(2), inserted ‘‘(other than a member of the Capitol Police)’’ after ‘‘em- ployee’’. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2022 AMENDMENT Amendment by Pub. L. 117–225 effective Dec. 9, 2022, and applicable to an individual who suffers an illness or Page 1142 TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES § 8431 injury described in certain Code provisions on or after the date that is 2 years after Dec. 9, 2022, see section 3(f) of Pub. L. 117–225, set out as a note under section 8336 of this title. EFFECTIVE DATE OF 2007 AMENDMENT; TRANSITION RULES Amendment by Pub. L. 110–161 effective on the later of June 30, 2008, or the first day of the first pay period beginning at least 6 months after Dec. 26, 2007, with transition rules and rights of election, see section 535(e) of Pub. L. 110–161, set out as a note under section 3307 of this title. EFFECTIVE DATE OF 2003 AMENDMENT Amendment by Pub. L. 108–176 effective on 60th day after Dec. 12, 2003, and applicable with respect to any annuity entitlement based on an individual’s separa- tion from service occurring on or after such effective date, and any service performed by any such individual before, on, or after such effective date, subject to spe- cial rule relating to deposit requirement, see section 226(c) of Pub. L. 108–176, set out as a note under section 8401 of this title. EFFECTIVE DATE OF 2000 AMENDMENT Amendment by Pub. L. 106–553 effective on the first day of the first applicable pay period that begins on Dec. 21, 2000, and applicable only to an individual who is employed as a member of the Supreme Court Police after Dec. 21, 2000, see section 1(a)(2) [title III, § 308(i), (j)] of Pub. L. 106–553, set out in a Supreme Court Police Retirement note under section 8331 of this title. EFFECTIVE DATE OF 1998 AMENDMENT Amendment by Pub. L. 105–261 effective 1 year after Oct. 17, 1998, and applicable only to an individual who is employed as a nuclear materials courier, as defined by section 8331(27) or 8401(33) of this title, after Oct. 17, 1998, see section 3154(m), (n) of Pub. L. 105–261, set out as a note under section 8331 of this title. 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. EXCEPTION TO AUTOMATIC SEPARATION OF MEMBERS OF CAPITOL POLICE Pub. L. 101–428, § 3(b)(1)(B), Oct. 15, 1990, 104 Stat. 929, provided that: ‘‘Nothing in section 8425(b) of title 5, United States Code, as amended by subparagraph (A), shall require the automatic separation of any member of the Capitol Police before the end of the 2-year period beginning on the date of enactment of this Act [Oct. 15, 1990].’’ SUBCHAPTER III—THRIFT SAVINGS PLAN § 8431. Certain transfers to be treated as a sepa- ration (a) For purposes of this subchapter, separation from Government employment includes a trans- fer from a position that is subject to one of the retirement systems described in subsection (b) to a position that is not subject to any of them. (b) The retirement systems described in this subsection are— (1) the retirement system under this chap- ter; (2) the retirement system under subchapter III of chapter 83; and (3) any other retirement system under which individuals may contribute to the Thrift Sav- ings Fund through withholdings from pay. (Added Pub. L. 106–168, title II, § 203(a)(1), Dec. 12, 1999, 113 Stat. 1820.) Editorial Notes PRIOR PROVISIONS A prior section 8431, added Pub. L. 99–335, title I, § 101(a), June 6, 1986, 100 Stat. 541; amended Pub. L. 101–509, title V, § 529 [title I, § 101(b)(6)(B)], Nov. 5, 1990, 104 Stat. 1427, 1440, provided a definition of ‘‘basic pay’’ for this subchapter, prior to repeal by Pub. L. 104–208, div. A, title I, § 101(f) [title VI, § 659 [title II, §§ 206(a)(2), 207]], Sept. 30, 1996, 110 Stat. 3009–314, 3009–372, 3009–378, effective Sept. 30, 1996. Statutory Notes and Related Subsidiaries EFFECTIVE DATE Pub. L. 106–168, title II, § 203(c), Dec. 12, 1999, 113 Stat. 1820, provided that: ‘‘The amendments made by this section [enacting this section and amending section 8351 of this title] shall apply with respect to transfers occurring before, on, or after the date of the enactment of this Act [Dec. 12, 1999], except that, for purposes of applying such amendments with respect to any transfer occurring before such date of enactment, the date of such transfer shall be considered to be the date of the enactment of this Act. The Executive Director (within the meaning of section 8401(13) of title 5, United States Code) may prescribe any regulations necessary to carry out this subsection.’’ § 8432. Contributions (a)(1) An employee or Member may contribute to the Thrift Savings Fund in any pay period, pursuant to an election under subsection (b), an amount not to exceed the maximum percentage of such employee’s or Member’s basic pay for such pay period allowable under paragraph (2). Contributions under this subsection pursuant to such an election shall, with respect to each pay period for which such election remains in effect, be made in accordance with a program of reg- ular contributions provided in regulations pre- scribed by the Executive Director. (2) The maximum percentage allowable under this paragraph shall be determined in accord- ance with the following table: In the case of a pay period beginning in fiscal year: The maximum percentage allowable is: 2001 ................................................ 11 2002 ................................................ 12 2003 ................................................ 13 2004 ................................................ 14 2005 ................................................ 15 2006 or thereafter .......................... 100. (3) Notwithstanding any limitation under this subsection, an eligible participant (as defined by section 414(v) of the Internal Revenue Code of 1986) may make such additional contributions to the Thrift Savings Fund as are permitted by such section 414(v) and regulations of the Execu- tive Director consistent therewith. (b)(1)(A)(i) The Executive Director shall pre- scribe regulations under which employees and Members may make contributions under sub- section (a), to modify the amount to be contrib- uted under such subsection, or to terminate such contributions. (ii) An election to make contributions under this paragraph— (I) may be made at any time; (II) shall take effect on the earliest date after the election that is administratively fea- sible; and