such person proves to the satisfaction of the Attorney General that his absence from the United States for such period has been for such purpose.
In determining whether the applicant has sustained the burden of establishing good moral character and the other qualifications for citizenship specified in subsection (a) of this section, the Attorney General shall not be limited to the applicant’s conduct during the five years preceding the filing of the application, but may take into consideration as a basis for such determination the applicant’s conduct and acts at any time prior to that period.
Whenever the Director of Central Intelligence, the Attorney General and the Commissioner of Immigration determine that an applicant otherwise eligible for naturalization has made an extraordinary contribution to the national security of the United States or to the conduct of United States intelligence activities, the applicant may be naturalized without regard to the residence and physical presence requirements of this section, or to the prohibitions of section 1424 of this title, and no residence within a particular State or district of the Service in the United States shall be required: Provided, That the applicant has continuously resided in the United States for at least one year prior to naturalization: Provided further, That the provisions of this subsection shall not apply to any alien described in clauses (i) through (v) of section 1158(b)(2)(A) of this title.
An applicant for naturalization under this subsection may be administered the oath of allegiance under section 1448(a) of this title by any district court of the United States, without regard to the residence of the applicant. Proceedings under this subsection shall be conducted in a manner consistent with the protection of intelligence sources, methods and activities.
The number of aliens naturalized pursuant to this subsection in any fiscal year shall not exceed five. The Director of Central Intelligence shall inform the Select Committee on Intelligence and the Committee on the Judiciary of the Senate and the Permanent Select Committee on Intelligence and the Committee on the Judiciary of the House of Representatives within a reasonable time prior to the filing of each application under the provisions of this subsection.
“(C) such reduction is necessary for the applicant to represent the United States at an international event.
“(B) demonstrates that such expedited adjudication is related to such representation.
“(3) An applicant is ineligible for expedited adjudication under paragraph (2) if the Secretary of Homeland Security determines that such expedited adjudication poses a risk to national security. Such a determination by the Secretary shall not be subject to review.
“(4)(A) In addition to any other fee authorized by law, the Secretary of Homeland Security shall charge and collect a $1,000 premium processing fee from each applicant described in this subsection to offset the additional costs incurred to expedite the processing of applications under this subsection.
“(B) The fee collected under subparagraph (A) shall be deposited as offsetting collections in the Immigration Examinations Fee Account.” See Termination Date of 2005 Amendment note below.
1996—Subsec. (f)(1). Pub. L. 104–208 substituted “clauses (i) through (v) of section 1158(b)(2)(A) of this title” for “subparagraphs (A) through (D) of section 1253(h)(2) of this title”.
1990—Subsec. (a). Pub. L. 101–649, § 407(c)(2), substituted references to applicant and application for references to petitioner and petition wherever appearing.
Pub. L. 101–649, § 402, substituted “and who has resided within the State or within the district of the Service in the United States in which the applicant filed the application for at least three months” for “and who has resided within the State in which the petitioner filed the petition for at least six months” in cl. (1).
Subsec. (b). Pub. L. 101–649, § 407(d)(1)(A), (B), substituted “the Attorney General” for “the court” in first par. and subpar. (2) of second par., and “date of any hearing under section 1447(a) of this title” for “date of final hearing” in first par.
Pub. L. 101–649, § 407(c)(2), substituted references to applicant and application for references to petitioner and petition wherever appearing.
Subsec. (c). Pub. L. 101–649, § 407(c)(2), substituted references to applicant and application for references to petitioner and petition wherever appearing.
Subsec. (d). Pub. L. 101–649, § 407(c)(2), substituted reference to applicant for reference to petitioner.
Subsec. (e). Pub. L. 101–649, § 407(d)(1)(C), substituted “the Attorney General” for “the court”.
Pub. L. 101–649, § 407(c)(2), substituted references to applicant, applicant’s, and application for references to petitioner, petitioner’s, and petition wherever appearing.
Subsec. (f)(1). Pub. L. 101–649, § 407(d)(1)(D), substituted “within a particular State or district of the Service in the United States” for “within the jurisdiction of the court”.
Pub. L. 101–649, § 407(c)(2), substituted references to applicant for references to petitioner wherever appearing.
Subsec. (f)(3). Pub. L. 101–649, § 407(c)(2), substituted reference to application for reference to petition.
1985—Subsec. (g). Pub. L. 99–169 added subsec. (g).
1981—Subsec. (b). Pub. L. 97–116 inserted provision that the spouse and dependent unmarried sons and daughters who are members of the household of a person who qualifies for the benefits of this subsection also be entitled to such benefits during the period for which they were residing abroad as dependent members of the household of the person.
With the approval of the Director of Central Intelligence, the Attorney General, and the Commissioner of Immigration and Naturalization, an applicant described in subsection (b) and otherwise eligible for naturalization may be naturalized without regard to the residence and physical presence requirements of section 316(a) of the Immigration and Nationality Act [8 U.S.C. 1427(a)], or to the prohibitions of section 313 of such Act [8 U.S.C. 1424], and no residence within a particular State or district of the Immigration and Naturalization Service in the United States shall be required.
is not described in clauses (i) through (iv) of section 241(b)(3)(B) of such Act [8 U.S.C. 1231(b)(3)(B)].
An applicant for naturalization under this section may be administered the oath of allegiance under section 337(a) of the Immigration and Nationality Act [8 U.S.C. 1448(a)] by the Attorney General or any district court of the United States, without regard to the residence of the applicant. Proceedings under this subsection shall be conducted in a manner consistent with the protection of intelligence sources, methods, and activities.


text:
UNITED STATES v. ATLANTIC MUT. INS. CO.
1. A "Both-to-Blame" clause of an ocean bill of lading, which, in the case of a collision due to the negligent navigation of both ships, requires the cargo owner to indemnify the carrier for such amount as the carrier may lose by reason of a recovery by the cargo owner from the noncarrier for cargo damages which are included in the aggregate damages to be divided between the two ships, held invalid. Pp. 237-242.
(a) It is a general rule of law that common carriers cannot stipulate for immunity from their own or their agents' negligence. P. 239.
(b) The language of the Harter Act, 46 U.S.C. 192, substantially reenacted by the Carriage of Goods by Sea Act, 46 U.S.C. 1304 (2), did not carve out a special statutory exception to the general rule so as to permit a carrier to deprive its cargo owners of a part of the fruits of any judgment they obtain in a direct action against a noncarrying vessel that contributes to a collision. Pp. 239-241.
2. Neither the Harter Act nor the Carriage of Goods by Sea Act altered the long-established rule that the full burden of the losses sustained by both ships in a both-to-blame collision is to be shared equally. Pp. 241-242.
3. If the rule that, without congressional authority, ocean common carriers cannot stipulate against their own negligence (or that of their agents or servants) is to be changed, the change should be made by Congress, not by the shipowners. P. 242.
4. The Jason, 225 U.S. 32 , distinguished. P. 242, n. 10.
In a suit brought in the District Court to determine liability arising out of a collision in which both vessels were at fault, the District Court held valid a "Both-to-Blame" [343 U.S. 236, 237] clause of an ocean bill of lading. 90 F. Supp. 836. The Court of Appeals reversed. 191 F.2d 370. This Court granted certiorari. 342 U.S. 913 . Affirmed, p. 242.
James L. Morrisson argued the cause for the United States. With him on the brief were Solicitor General Perlman, Assistant Attorney General Baldridge, Samuel D. Slade, Roscoe H. Hupper and Ray Rood Allen.
Leonard J. Matteson argued the cause for the Farr Sugar Corporation et al., respondents. With him on the brief were Oscar R. Houston and Richard F. Shaw.
Cletus Keating, Edwin S. Murphy and Louis J. Gusmano submitted on brief for the Belgian Overseas Transport, S. A., respondent.
(a) The collision was due to negligent navigation by employees of both ships. The cargo owners were in no way at fault.
(c) Because of 3 of the Harter Act 2 and 4 (2) of the Carriage of Goods by Sea Act, 3 the cargo owners are barred from directly suing the Bacon for cargo damages.
(e) In computing the aggregate damages caused both ships, account should be taken of the cargo damages recovered from the Belgium by the cargo owners.
(f) The bill of lading issued by the Bacon to the cargo owners contained a "Both-to-Blame" clause. 5 This clause, if valid, requires the cargo owners to indemnify the carrier Bacon for any amounts the [343 U.S. 236, 239] Bacon loses because damages recovered by the cargo owners from the Belgium are included in the aggregate damages divided between the two ships.
The only question presented to us is whether the "Both-to-Blame" clause is valid. Respondent cargo owners contend that it is void and unenforceable as a violation of the long-standing rule of law which forbids common carriers from stipulating against the consequences of their own or their employees' negligence. Petitioner, the United States, contends that 3 of the Harter Act, as substantially reenacted in 4 (2) of the Carriage of Goods by Sea Act, provides special statutory authorization permitting ocean carriers to deviate from the general rule and to stipulate against their negligence as they did here. The District Court held the clause valid. 90 F. Supp. 836. The Court of Appeals reversed. 191 F.2d 370. Deeming the question decided of sufficient importance to justify our review, this Court granted certiorari. 342 U.S. 913 .
There is a general rule of law that common carriers cannot stipulate for immunity from their own or their agents' negligence. While this general rule was fashioned by the courts, it has been continuously accepted as a guide to common-carrier relationships for more than a century 6 and has acquired the force and precision of a legislative enactment. Considering the relationship of the rule to the Harter Act, this Court said in 1901 that "in view [343 U.S. 236, 240] of the well-settled nature of the general rule at the time the statute was adopted, it must result that legislative approval was by clear implication given to the general rule as then existing in all cases where it was not changed." The Kensington, 183 U.S. 263, 268 -269. Our question therefore is whether the language of the Harter Act, substantially reenacted in the Carriage of Goods by Sea Act, has carved out a special statutory exception to the general rule so as to permit a carrier to deprive its cargo owners of a part of the fruits of any judgment they obtain in a direct action against a noncarrying vessel that contributes to a collision.
Prior to the passage of the Harter Act in 1893, cargo damages incurred in a both-to-blame collision could be recovered in full from either ship. The Atlas, 93 U.S. 302 . The Harter Act, under some circumstances, took away the right of the cargo owner to sue his own carrier for cargo damages caused by the negligent navigation of the carrier's servants or agents. It did not deprive the cargo owner of his tort action against the noncarrying ship. The Chattahoochee, 173 U.S. 540, 549 -550. Nor did the Harter Act go so far as to insulate the carrier from responsibility to another vessel for physical damages caused to the ship by negligent navigation of the carrier's servants or agents. In The Delaware, 161 U.S. 459, 471 , 474, this Court declined to give the Harter Act such a broad interpretation even though the language itself, if "broadly construed" and considered alone, would have justified such an interpretation. In addition, the Harter Act does not exonerate the carrier from its obligation to share with the noncarrier one-half the damages paid by the noncarrier to the cargo owners. The Chattahoochee, supra, at pp. 551-552; see also Aktslsk. Cuzco v. The Sucarseco, 294 U.S. 394, 401 -402.
Apparently it was not until about forty years after the passage of the Harter Act that shipowners first attempted [343 U.S. 236, 241] by stipulation to deprive cargo owners of a part of their recovery against noncarrying ships. See The W. W. Bruce, 14 F. Supp. 894, rev'd on other grounds, 94 F.2d 834. The present effort of shipowners appears to date from 1937 when the North Atlantic Freight Conference adopted the "Both-to-Blame" clause. 7 So far as appears, this is the first test of the legality of the clause that has appeared in the courts. When Congress passed the Carriage of Goods by Sea Act in 1936, it indicated no purpose to bring about a change in the long-existing relationships and obligations between carriers and shippers which would be relevant to the validity of the "Both-to-Blame" clause. At that time all interested groups such as cargo owners, shipowners, and the representatives of interested insurance companies were before the congressional committees. 8 Although petitioner and respondents both appear to find comfort in the language and the hearings of the 1936 Act, nothing in either persuades us that Congress intended to alter the Harter Act in any respect material to this controversy.
Petitioner argues that the clause does nothing more than remove an "anomaly" which arises from this Court's construction of the Harter Act. It is said to be "anomalous" to hold a carrier not liable at all if it alone is guilty of negligent navigation but at the same time to hold it indirectly liable for one-half the cargo damages if another ship is jointly negligent with it. Assuming for the moment that all rules of law must be symmetrical, we think it would be "anomalous" to hold that a cargo owner, who has an unquestioned right under the law to recover full damages from a noncarrying vessel, can be compelled to [343 U.S. 236, 242] give up a portion of that recovery to his carrier because of a stipulation exacted in a bill of lading. Moreover, there is no indication that either the Harter Act or the Carriage of Goods by Sea Act was designed to alter the long-established rule that the full burden of the losses sustained by both ships in a both-to-blame collision is to be shared equally. Yet the very purpose of exacting this bill of lading stipulation is to enable one ship to escape its equal share of such losses by shifting a part of its burden to its cargo owners.
[ Footnote 1 ] Certain insurance companies are parties to this suit as subrogees of their insured cargo owners. Some cargo owners were not insured.
[ Footnote 2 ] 27 Stat. 445, 46 U.S.C. 192. This section provides that if due diligence is exercised by the shipowner in making the ship seaworthy and properly manned, equipped, and supplied, then "neither the vessel, her owner or owners, agent, or charterers, shall become or be held responsible for damage or loss resulting from faults or errors in navigation or in the management of said vessel . . . ."
[ Footnote 3 ] 49 Stat. 1210, 46 U.S.C. 1304 (2). This section provides that "Neither the carrier nor the ship shall be responsible for loss or damage arising or resulting from - (a) Act, neglect, or default of the master, mariner, pilot, or the servants of the carrier in the navigation or in the management of the ship; . . . ."
[ Footnote 4 ] The shipowners have stipulated that in this case the Esso Belgium is to bear two-thirds and the Nathaniel Bacon one-third of the total damages, although the normal admiralty rule requires an equal division of damages. Halcyon Lines v. Haenn Ship Corp., 342 U.S. 282, 284 .
"If the ship comes into collision with another ship as a result of the negligence of the other ship and any act, neglect or default of the Master, mariner, pilot or the servants of the Carrier in the navigation or in the management of the ship, the owners of the goods carried hereunder will indemnify the Carrier against all loss or liability to the other or non-carrying ship or her owners in so far as such loss or liability represents loss of, or damage to, or any claim whatsoever [343 U.S. 236, 239] of the owners of said goods, paid or payable by the other or non-carrying ship or her owners to the owners of said goods and setoff, recouped or recovered by the other or non-carrying ship or her owners as part of their claim against the carrying ship or Carrier."
[ Footnote 6 ] See, e. g., Liverpool Steam Co. v. Phenix Ins. Co., 129 U.S. 397, 438 -444 (1889); Knott v. Botany Mills, 179 U.S. 69, 71 (1900); Railroad Co. v. Lockwood, 17 Wall. 357 (1873); Boston & Maine R. Co. v. Piper, 246 U.S. 439, 445 (1918); San Giorgio I v. Rheinstrom Co., 294 U.S. 494, 496 (1935). And see cases collected in 9 Am. Jur. 874-877.
[ Footnote 7 ] Robinson, Admiralty, 872, 873; Knauth, Ocean Bills of Lading (3d ed. 1947), 95, 136, 175.
[ Footnote 8 ] Hearings before Senate Committee on Commerce on S. 1152, 74th Cong., 1st Sess.
[ Footnote 9 ] Halcyon Lines v. Haenn Ship Corp., 342 U.S. 282, 286 .
[ Footnote 10 ] We have not overlooked the argument that this bill of lading stipulation should be upheld because of this Court's holding and opinion in The Jason, 225 U.S. 32 . The Jason case upheld a stipulation that both shipowner and cargo owner should contribute in general average on account of sacrifices and expenses necessarily incurred by the master of the ship in order to preserve the cargo as a whole. Moreover, this general average clause "was sustained because it admitted the shipowner to share in general average only in circumstances [343 U.S. 236, 243] where by the Harter Act he was relieved from responsibility." Aktslsk. Cuzco v. The Sucarseco, 294 U.S. 394, 403 . Here the shipowner attempted to relieve itself from responsibility for negligence of its employees in connection with damages inflicted on another ship - "circumstances where by the Harter Act he was [not] relieved from responsibility."
MR. JUSTICE FRANKFURTER, whom MR. JUSTICE BURTON joins, dissenting.
Only a few weeks ago this Court reversed a unanimous opinion of the Court of Appeals for the Fourth Circuit which had held opposed to public policy, agreements whereby retailers of eyeglasses turned over a portion of [343 U.S. 236, 243] the purchase price to the oculist who referred the customer to them. In so doing, "we voice[d] no approval of the business ethics or public policy involved" in the agreements. Lilly v. Commissioner, 343 U.S. 90, 97 . This refusal to make our private views of right into the legal standards for the activities of men of affairs has increasingly characterized our decisions in the vague and shifting area of agreements challenged as unenforceable because offensive to what must be deemed to be legally controlling policy. "In the absence of a plain indication of that [dominant public] policy through long governmental practice or statutory enactments, or of violations of obvious ethical or moral standards, this Court should not assume to declare contracts of the War Department contrary to public policy." Muschany v. United States, 324 U.S. 49, 66 -67. No more unrestrained justification warrants courts to strike down private business agreements. Judged by such a standard, the agreements before us should be enforced.
Before 1893, when the Harter Act 1 was passed, the obligations of seagoing carriers with respect to passengers and cargo were defined by this Court in the exercise of its admiralty and maritime jurisdiction from case to case. Toward cargo the ocean carrier stood in the relation of an insurer, liable for any damage save that caused by act of God; and to passengers it owed the duty of highest care. Only by holding carriers to this mark was it thought that [343 U.S. 236, 244] safety in operation could be achieved and undue imposition by carriers eliminated.
The carriers sought to avoid these obligations by special contracts or stipulations in bills of lading, relieving them of liabilities which they would incur under the rules laid down by the courts in the absence of such agreements. Although the courts upheld some such efforts, they reserved the right to refuse to enforce contractual exemptions from liability which trenched upon judicial notions of public policy. 2 The most important limit thus set to the power of the carrier to contract out of his common-law liability was the rule that courts would strike down any stipulation which relieved the carrier for hire from liability for damage caused by its own negligence. Applied first by this Court to the railroads, Railroad Co. v. Lockwood, 17 Wall. 357, the doctrine was extended to carriers by sea a few years later in Liverpool & Great Western Steam Co. v. Phenix Ins. Co., 129 U.S. 397 . Underlying the decision was the premise that such an agreement, if enforced, would tend to relax the vigilance and care in seamanship which the threat of liability encouraged. See Railroad Co. v. Lockwood, supra, at 371, 377-378.
The judge's function and responsibility become otherwise once the legislature has formulated public policy. Courts are then no longer at large. They must carry out the defined policy and disregard their own determination of what the public good demands. See Twin City Co. v. Harding Glass Co., 283 U.S. 353, 357 . By the Harter Act, Congress supplanted the judicial view of public policy with its own ideas. The legislation, as is so often the case, represents a compromise among competing interests. The carriers were relieved of their judicially imposed insurers' liability. In return they were required to forego the possibility of avoiding by contract certain specified obligations. Finally, if those obligations were in fact performed, 3 recovery against the carrier for damages to cargo due to faulty navigation was altogether disallowed. This provision, embodied in 3 of the Harter Act, 4 necessarily expressed a rejection of the judicially conceived premise as to public policy which was the foundation of the decisions which antedated legislation, namely, that liability for negligent navigation was a necessary spur to the carrier's exercise of care. Since that premise has been discarded by Congress, no justification remains for us to revive it as a basis for striking down the agreement here in question. "The Legislature has the power to decide what the policy of the law shall be, and if it has intimated its will, however indirectly, that will should be recognized and obeyed. The major premise of the conclusion expressed in a statute, the change of policy that induces the enactment, may not be set out in terms, but it is not an adequate discharge of duty for courts to say: We see what you are driving at, but you have not said it, and therefore we shall go on as before." Johnson [343 U.S. 236, 246] v. United States, 163 F. 30, 32 (per Holmes, J.); see Landis, Statutes and the Sources of Law, in Harvard Legal Essays, 213.
To be sure, the Harter Act did not in terms prescribe that the carrier should have recovery over against cargo for the amount of its liability to a non-carrying ship, attributable to payments made by the non-carrier for damage to cargo in a collision for which both vessels were to blame. Hence we held in The Chattahoochee, 173 U.S. 540 , that no such recovery was available to a carrier by mere force of the Act. Similarly, and in the same period shortly after the passage of the Harter Act, we held that, since the Act did not specify that the carrier should participate in a general average 5 when the peril to which it related was the result of the carrier's faulty navigation, no such participation could be had if the carrier had not stipulated for it. The Irrawaddy, 171 U.S. 187 . But when a carrier did contract for such participation, the force of the Harter Act required this Court to sustain the stipulation. The Jason, 225 U.S. 32 .
"Instead of merely sanctioning covenants and agreements limiting [the shipowner's] liability, Congress went further and rendered such agreements unnecessary by repealing the liability itself, declaring that if the shipowner should exercise due diligence to make the vessel in all respects seaworthy, and properly manned, equipped and supplied, neither the vessel, [343 U.S. 236, 247] her owner or owners, etc., should be responsible for damage or loss resulting from faults or errors in navigation or in the management of the vessel, etc., etc. The antithesis is worth noting. Congress says to the shipowner - `In certain respects you shall not be relieved from the responsibilities incident to your public occupation as a common carrier, although the cargo owners agree that you shall be relieved; in certain other respects (provided you fulfill conditions specified) you shall be relieved from responsibility, even without a stipulation from the owners of cargo.'" The Jason, supra, at 50-51.
"In our opinion, so far as the Harter Act has relieved the shipowner from responsibility for the negligence of his master and crew, it is no longer against the policy of the law for him to contract with the cargo-owners for a participation in general average contribution growing out of such negligence; . . . ." Id., at 55.
The present case bears exactly the same relation to The Chattahoochee that The Jason bore to The Irrawaddy. To revive notions of public policy which Congress rejected in 1893, disregards the appropriate considerations that governed application of the Harter Act in the earlier decisions. 6 To derive from a statute, which relieves a [343 U.S. 236, 248] ship entirely of liability to cargo when the ship is wholly to blame for the loss, an implied restriction against a voluntary arrangement for relief from liability when the ship is only half to blame, is surely an odd use to which to put such a statute. When this Court does fashion a rule of public policy it ought to be less perverse and illogical than that in its operation.
It is suggested, however, that the real meaning of the Harter Act is that carriers are remitted to Congress for whatever immunities they were to be granted. That is a most doctrinaire view to take of the legislation, and The Jason, supra, disposes of the nation. 7 What Congress did was to legislate generally about the relations between carrier and cargo in seagoing commerce. Generally, but not comprehensively as though it formulated a maritime code excluding all consensual arrangements within the [343 U.S. 236, 249] industry. That legislation "indicate[s] or require[s] as its justification a change in the policy of the law, although it expresses that change only in the specific cases most likely to occur to the mind." Johnson v. United States, supra, at 32. We should heed the admonition of Mr. Justice Holmes "that courts in dealing with statutes sometimes have been too slow to recognize that statutes even when in terms covering only particular cases may imply a policy different from that of the common law, and therefore may exclude a reference to the common law for the purpose of limiting their scope." Panama R. Co. v. Rock, 266 U.S. 209, 215 -216 (Holmes, J., with Taft, C. J., McKenna and Brandeis, JJ., dissenting). This is such a statute. I would recognize that the Congressional pronouncement of public policy - when it exempted carriers from liability for faulty navigation - precludes our striking down the clause here in issue.
[ Footnote 1 ] Act of Feb. 13, 1893, 27 Stat. 445. The Act has now been superseded by the Carriage of Goods by Sea Act of 1936, 49 Stat. 1207, 46 U.S.C. 1300 et seq., but any changes are not relevant to the issues here involved.
[ Footnote 2 ] The courts based this reservation upon the observation that such contracts were not in fact consensual agreements. The shipper had little choice but to accept the carriers' terms. See, e. g., Railroad Co. v. Lockwood, 17 Wall. 357, 379; Liverpool & Great Western Steam Co. v. Phenix Ins. Co., 129 U.S. 397, 441 . This circumstance did not necessarily void the agreement, since many stipulations were upheld. But it provided justification for refusing to enforce those which offended judicially pronounced public policy.
[ Footnote 3 ] This proviso was eliminated by the Carriage of Goods by Sea Act of 1936, 49 Stat. 1207, 1210, 46 U.S.C. 1304.
[ Footnote 4 ] 27 Stat. 445.
[ Footnote 5 ] The general average is a doctrine of maritime law which provides that where a portion of ship or cargo is sacrificed to save the residue from peril of shipwreck, each owner of property saved contributes in proportion to the value of that property to make up the loss of those whose property has been sacrificed for the common benefit. It was characteristic of Dean James Barr Ames's power of fertile generalization to find in the maritime doctrine of general average manifestation of the more comprehensive quasi-contractual principle against unjust enrichment.
[ Footnote 6 ] Reliance by the Court on The Kensington, 183 U.S. 263 , is surely misplaced, and the quotation from it must be put in its setting. That was a case in which recovery was sought for damage to a passenger's baggage, although the ticket contained a stipulation against the carrier's liability. The Court noted that the Harter Act immunity from liability for negligence applied only to vessels "when engaged in the classes of carriage coming within the terms of the statute." Id., at 268. Without deciding whether passengers' baggage was such a class of carriage, the Court struck down the stipulation on the ground that, if the Harter Act applied, the agreement was void as violative of the Act in that it sought immunity for negligent [343 U.S. 236, 248] stowage, specifically forbidden by the Act; if the carriage of passengers' baggage was not among the classes exempted from liability by the Act, then of course, the cases voiding such stipulations with respect to baggage retained their force. Certainly a decision affirming the continued applicability of these cases as to baggage, goods for which Congress has not withdrawn carrier liability for negligence, and in any event not for negligent stowage, is totally inapposite to the question whether pre-existing case law should be applied to cargo, where Congress has granted the carrier immunity from such liability.

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CARVALHO, J. L. N.; NOGUEIROL, R. C.; MENANDRO, L. M. S.; BORDONAL, R. B.; BORGES, C. D.; CANTARELLA, H.; FRANCO, H. C. J. Agronomic and environmental implications of sugarcane straw removal: a major review. GCB Bioenergy. v. 9, p. 1181-1195, 2017.
CARDOSO, T.F.; CHAGAS, M.F.; RIVERA, E.C.; CAVALETT, O.; MORAIS, E.R.; GERALDO, V.C.; BRAUNBECK, O.; Cunha, M.P.; Cortez, L.A.B.; Bonomi, A. A vertical integration simplified model for straw recovery as feedstock in sugarcane biorefineries. Biomass and Bioenergy. Volume 81, 216–223. 2015.
CARDOSO, T.F.; CAVALETT, O.; CHAGAS, M.F.; MORAIS, E.R.; CARVALHO, J.L.N.; FRANCO, H.C.J.; GALDOS, M.V.; SCARPARE, F.V.; BRAUNBECK, O.A.; CORTEZ, L.A.B.; BONOMI, A. Technical and economic assessment of trash recovery in the sugarcane bioenergy production system. Sci Agric 70:353-360. 2013.
FRANCO, H.C.J.; PIMENTA, M.T.B.; CARVALHO, J.L.N.; MAGALHÃES, P.S.G.; ROSSELL, C.E.V.; BRAUNBECK, O.; Vitti, A.C.; KOLLN, O.; ROSSI NETO, J. Assessment of sugarcane trash for agronomic and energy purposes in Brazil. Scientia Agrícola (USP Impresso), v. 70, p. 305-312, 2013.
CARVALHO, J.L.N.; OTTO, R.; FRANCO, H.; TRIVELIN, P.C.O. Input of sugarcane post-harvest residues into the soil. Scientia Agrícola (USP. Impresso), v. 70, p. 336-344, 2013.
LEAL, M.R.L.V.; GALDOS, M.V.; SCARPARE, F.V. ; SEABRA, J.E A.; WALTER, A.C.S.; OLIVEIRA, C.O. Sugarcane straw availability, quality, recovery and energy use: A literature review. Biomass & Bioenergy, v. 53, p. 11-19, 2013.
CANTARELLA, H.; CERRI, C.E.P.; CARVALHO, J.L.N.; MAGALHÃES, P.S.G. How much sugarcane trash should be left on the soil? Scientia Agrícola (USP Impresso), v. 70, n. 5, p. 1-2, 2013.
Duft, D. G.; Picoli, M. C. A.; Galdos, M. V.; Scarpare, F. V.; Leal, M. R. L. V. Estimação da produtividade dos resíduos da cana-de-açúcar por meio do sensor MODIS. In: XVI Simpósio Brasileiro de Sensoriamento Remoto, 2013, Foz do Iguaçu. XVI Simpósio Brasileiro de Sensoriamento Remoto, 2013.
Cardoso, T. F., Chagas, M. F., Cavalett, O., Junqueira, T. L., Cunha, M. P., Braunbeck, O. A., Cortez, L. A. B., Bonomi, A. Sustainable sugarcane straw recovery in Brazil: Part 1 Economic and environmental assessment using the Life Cycle Assessment methodology In: 21st International Symposium on Alcohol Fuels – Sustainable Alcohol Fuels Promoting Mobility and Climate Stabilization, 2015, Gwangju, Korea. The 21st International Symposium on Alcohol Fuels. Gwangju: Chonnam National University (CNU) and The Korean Society of Automotive Engineers (KSAE), v.1. p.77 – 77, 2015.
Chagas, M. F., Cardoso, T. F., Cavalett, O., Morais, E. R., Franco, H. C. J., Rivera, E. A. C., Geraldo, V. C., Braunbeck, O. A., Bonomi, A. A model-based method for sustainability optimization of straw recovery in sugarcane biorefineries In: 5th International Conference on Engineering for Waste and Biomass Valorisation, 2014, Rio de Janeiro. Proceedings – The 5th International Conference on Engineering for Waste and Biomass Valorisation (WasteEng2014). Albi: École des Mines d’Albi, v.1. p.179 – 188, 2014.
Menandro, L.M.S.; Carvalho, J.L.N.; Franco, H.C.J; Pimenta, M.T.B.; Kolln, O.T.; Cantarella, H.; Zanutto, G.M. Tops and dry leaves: parts of the sugarcane straw with different chacacteristics and potential. In: 2nd Brazilian BioEnergy Science and Technology Conference, 2014, Campos do Jordão. 2nd Brazilian BioEnergy Science and Technology Conference, 2014.
Menandro, L.M.S.; Franco, H.C.J.; Pimenta, M.T.B.; Carvalho, J.L.N.; Magalhães, P.S.G.; Vitti, A.C.; Kolln, O.T.; Rossi Neto, J. Palha de cana-de-açúcar: possibilidades distintas para o campo e para indústria. In: VI Workshop Agroenergia: Matérias Primas, 2013, Ribeirão Preto. VI Workshop Agroenergia: Matérias Primas, 2013.
Cardoso, T.F. Avaliação socioeconômica e ambiental de sistemas de recolhimento e uso da palha de cana-de-açúcar. [Socioeconomic and environmental evaluation of recovery systems and use of sugarcane straw]. PhD Thesis, Faculty of Agricultural Engineering, University of Campinas. 2014.

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The Retirement Board is responsible for providing City employees and retirees with information regarding retirement benefits and regulations.
To provide accurate, timely, and consistent guidance and benefits to members and their beneficiaries in a courteous and professional manner.
To ensure that the investment portfolio is adequately diversified at an acceptable risk level to provide sufficient assets to fund the benefits when due.
To become a retirement benefits leader in member counseling and benefits delivery by embracing technology, supporting staff development, and focusing on member needs.
The Holyoke Contributory Retirement System is one of 105 contributory retirement systems within the Commonwealth of Massachusetts. Chapter 32 of the Massachusetts General Laws defines the benefits, contribution requirements, accounting procedures and funding for all 105 systems. The Public Employee Retirement Administration Commission (PERAC) oversees the systems and ensures that all boards are in compliance with Chapter 32.
The retirement system is funded by an annual appropriation from City departments and from employee contributions. These funds are invested in fixed income, domestic and international equities, commodities, private equity and real estate.
The Holyoke Retirement Board is responsible for providing all city employees with information regarding benefits and regulations pertaining to retirement, in addition to overseeing the administration of the office. The Board is made up of 5 members; an Ex-Officio member, 2 elected members, 1 member appointed by the Mayor, and 1 member appointed by the other 4 members.
Click below to access 2018 Direct Deposit Calendar.
Click below for Direct Deposit Authorization Form.
IS MEMBERSHIP REQUIRED FOR ALL NEW EMPLOYEES?
Membership is mandatory by state law for nearly all public employees who are regularly and permanently employed on a full-time basis. Part-time (less than 20 hours per week), seasonal and temporary employees who are ineligible for membership are required to contribute to a deferred compensation plan.
FOR WHOM IS MEMBERSHIP OPTIONAL?
Elected officials may elect to become members within 90 days of commencement of service.
Group 1 members are officials and general employees included clerical, administrative and technical workers, laborers, mechanics and all others not otherwise classified.
Group 4 consists of public safety officers, such as policemen and firefighters, and certain employees with hazardous occupations.
Contribution rate is determined by your most recent entry into the system. Members who re-enter with funds on deposit or who transfer from another contributory retirement system within Massachusetts maintain their former contribution rate.
**Employees hired after January 1, 1979 will pay their regular contribution rate plus an additional 2% on any compensation over $30,000.
WHAT IS THE INTEREST RATE CREDITED TO MY ACCOUNT?
The interest rate is statutorily set by PERAC by averaging pass book savings account rates as of January 1st of the year in question.
HOW IS CREDITABLE SERVICE ACHIEVED?
In general, you earn creditable service toward your retirement allowance for the period during which you made contributions to your annuity savings account in the retirement system. It is prorated based on the hours worked versus full-time.
WHAT EFFECT DOES TRANSFERRING HAVE ON MY CREDITABLE SERVICE AND ACCUMULATED DEDUCTIONS?
Career changes of public employees may entail a transfer from a job presently held to a new job in a different governmental unit with a different retirement system. The accumulated total deductions (or annuity savings account) and corresponding creditable service of members involved in such a change will be transferred to the new retirement system.
ARE ALL FORMS OF COMPENSATION FROM MY EMPLOYER SUBJECT TO RETIREMENT WITHHOLDINGS?
WHAT IF ABSENCE IS CAUSED BY A WORK RELATED INJURY OR HAZARD?
Any member-in-service who sustains an injury or undergoes a hazard in the course of employment which results in total incapacitation for which workers’ compensation benefits are received, is awarded full creditable service during the period of absence. The member receives the creditable service without having to contribute to the retirement system.
WHAT ABOUT LEAVES OF ABSENCE FOR OTHER REASONS?
For absences other than work related, the member’s creditable service will be prorated.
NO! Under state law, your retirement account has no provisions for withdrawal under any circumstances.
At the time of termination, you must file for a refund of your annuity savings account. You may come to the Retirement Board office or download the application form, (http://www.mass.gov/perac/forms/1003ApplicationforWithdrawal.pdf) complete and mail in.However mailed in forms must be NOTARIZED.
If you voluntarily terminate your public service with at least ten years of creditable service, or if you are involuntarily terminated, you will receive 100% of the regular interest that has accrued to your Annuity Savings Account.
If you voluntarily terminate your public service with less than ten years of service, you will receive interest on your Annuity Savings Account at the annual rate of 3%.
WILL I BE TAXED ON THIS REFUND?
There will be 20% deducted for federal tax if you take a direct refund of your deductions rather than directly rolling them over into another qualified retirement plan; i.e. an IRA. If you are under age 59 ½ the IRS will also impose an additional 10% penalty.
MAY ANY AGENCY INTERCEPT MY REFUND?
An individual’s ability to obtain a refund may be affected by a Department of Revenue Child Support Enforcement Order.
IS ANYONE INELIGIBLE TO APPLY FOR A REFUND?
You are appealing a dismissal or you have otherwise expressed your intent to continue in public employment.
MAY I BUY BACK CREDITABLE SERVICE?
If you terminate your public service and take a refund of your accumulated total deductions and later return to public service, you may re-establish your prior creditable service by buying it back. But, you will begin as a new member, making contributions at the current rate. Of note, if a person who is a member of a retirement system as of February 16, 2012 fails to buy back certain prior service before April 2, 2013, such a member will have to pay actuarial assumed interest instead of buy back interest on the purchase. Those who re-enter or re-establish service on or after February 16, 2012 will also have until April 2, 2013 to buy back certain prior service, or they must pay actuarial assumed interest instead of buy back interest on the purchase.
WHEN MAY I COLLECT MY RETIREMENT?
If you membership began prior to April 2, 2012, you are eligible for a retirement allowance when you have at least 10 years of creditable service and are 55 years old, or if you have 20 years of service at any age. If your membership began after April 2, 2012, you are eligible with 10 years of service at age 60.
“Superannuation” is the term which is used to describe the process of being retired upon reaching a certain age and meeting other requirements, such as length of service.
WHEN CAN I FILE FOR RETIREMENT?
You may receive retirement counseling at any time. However, retirement papers may not be accepted any sooner than 120 days before you plan to retire. You can also file for retirement up to 60 days after you leave employment. You can file after 60 days, but your benefits will not be retroactive to your termination date.
WHAT IS MY RETIREMENT ALLOWANCE?
Your retirement benefit is made up of 2 parts. The ANNUITY portion is based on the total amount of your annuity savings or accumulated deductions and your age on the date of your retirement. The City of Holyoke makes up the difference between the retirement benefit provided by law and what is provided by your annuity. That difference is called the PENSION.
WHAT FACTORS AFFECT THE AMOUNT OF MY RETIREMENT ALLOWANCE?
If your membership began prior to April 2, 2012, an average of the 3 highest consecutive years of regular compensation is used in the calculation. If you became a member after April 2, 2012, an average of 5 years is used.
WHAT IS MY BENEFIT RATE?
Your age at retirement and your group classification determine your benefit rate. The benefit rate is a specific percentage of the amount of your average annual rate of regular compensation. Click to see the percentages used in the formula which are specified in Chapter 32.
“Options” is the term used to describe how your retirement allowance is allotted. Your benefit must be paid to you in lifetime monthly payments, but the apportionment of those payments will differ depending on your option selection. Option choice also determines what benefits, if any, will be paid to survivors after a retiree’s death.
Election of Option A means that you will receive the full retirement allowance in monthly payments as long as you live. All allowance payments will cease upon your death and no benefits will be provided to your survivors.
Option B provides you with a lifetime allowance which is 1-3% less per month than Option A. The annuity portion of your allowance is reduced to allow a lump sum benefit for your beneficiary. Upon your death, your surviving beneficiary(ies) of record will be paid the unexpended balance of your annuity savings account. Although your retirement allowance is not reduced because of a depletion of your annuity savings, generally your accumulated deductions will be used up within 8 to 12 years.
Option C is also known as the joint or last survivor allowance. Selecting this option means that the allowance payments which you will receive during your lifetime will be 10-12% lower than those you would receive under Option A. Upon your death, your designated beneficiary will be paid a monthly allowance for the remainder of his or her lifetime. The allowance will be equal to 2/3 the allowance which was being paid to you at the time of your death.
DOES OPTION B LIMIT MY CHOICE OF BENEFICIARY?
You may designate any person(s) or charity or institution as your beneficiary. You may at any time after retirement change your Option B beneficiary.
WHO MAY I NAME AS BENEFICIARY UNDER OPTION C?
Eligibility is determined at the time of retirement. Only one beneficiary may be named under Option C and is limited to your spouse, your former spouse who has not remarried at the time you designated him/her as your beneficiary, your child, parent or sibling.
MAY I CHANGE MY OPTION C BENEFICIARY?
You may NOT change your Option C beneficiary once your retirement becomes effective.
WHAT IF MY OPTION C BENEFICIARY DIES BEFORE I DO?
If your Option C beneficiary dies before you do, you will thereafter be paid the full retirement allowance you would have received had you selected Option A at the time of your retirement. This conversion is commonly referred to as the Option C “Pop-Up.” All payments cease upon your death.
DOES DIVORCE FOLLOWING RETIREMENT ALTER THE STATUS OF MY SPOUSE AS MY OPTION C BENEFICIARY?
No, spouses who are the designated beneficiaries of Option C retirees and who become divorced from the member following the member’s retirement do not lose their eligibility as beneficiary.
WHEN MUST I MAKE MY OPTION SELECTION?
You must make your selection on or before the date your retirement allowance becomes effective. If you refuse or fail to select an option before the effective date, the law provides that you shall be retired under Option B.
WHAT ABOUT WORKING AFTER RETIREMENT?
There are no limitations if you work in the private sector. However, if you are re-employed in the service of the Commonwealth or any of its counties, cities or towns, there are 2 strict limitations on further public employment. Your earnings in the first year of retirement when added to your retirement allowance cannot be greater than the salary currently being paid for the position for which you retired. After the first year of retirement, $15,000 may be added to this figure. You cannot work more than 960 hours in a calendar year. Your employment must cease when either limitation is reached, or your retirement allowance must be waived.
The law limits a retiree who is receiving a retirement allowance to 960 hours of employment within the public sector in any calendar year. A second limitation is the salary which can be paid for such public sector employment. When added to the retiree’s retirement allowance, the salary cannot exceed the salary that is currently being paid for the position from which the member was retired, plus $15,000, after 12 months of retirement. The law places the obligation of enforcing these restricitions upon the Treasurers of the governmental units hiring public sector retirees.
• Section 91 applies to any public employment, regardless of whether or not it occurs with the same governmental unit from which the employee retired.
• It is irrelevant whether an employee-retiree chooses to classify him or herself as a “consultant” or “independent contractor.” The Section 91 earnings limitations will apply.
• A retiree may not avoid the limitations in Section 91 by forming a company if the primary reason for the formation is to avoid the limitations.
• Earnings for “details” which are paid by city or town payroll are included in the Section 91 limitations, regardless of whether the city or town ultimately bills a private entity for the work.
• The Section 91 limitations apply solely to retirees, not to survivors or beneficiaries.
• Earnings from elective office, jury service and emergency employment with a public entity are unrestricted.
If you are entitled to both Social Security and a Massachusetts public pension your Social Security benefit may be reduced.
There are two rules that may reduce your Social Security benefit. One, called the “Government Pension Offset” (GPO) applies only if you receive a government pension from a job not covered by Social Security and are eligible for Social Security benefits as a spouse or widow(er). This offset will reduce the amount of your Social Security spouse’s or widow(er)’s benefit by two-thirds of the amount of your government pension. Here is an example of the GPO: if you receive a monthly pension from the Holyoke Retirement System of $600, two-thirds of that, or $400, must be used to offset your Social Security spouse’s or widow(er)’s benefit. If you are eligible for a Social Security spouse’s or widow(er)’s benefit of $500 monthly, you will receive $100 per month from Social Security after the offset has been applied ($500 – $400 = $100). Depending on the amounts of the two benefits, it is entirely possible that your Social Security spouse’s or widow(er)’s benefit could be completely wiped out by GPO.
The second rule, called the “Windfall Elimination Provision” (WEP) affects the way your own Social Security retirement benefits are calculated when you receive your Massachusetts public pension. This rule affects a worker who spent most of his/her career in Massachusetts public service, but who also worked at other jobs where the worker paid Social Security taxes long enough to qualify for Social Security retirement benefits.
Prior to 1983, employees who spent time in jobs not covered by Social Security received the advantage of a formula under which lower-paid workers received larger benefits in relation to their earnings than higher paid workers. Because of this formula, those who worked only part of their lives in jobs covered by Social Security had their benefits figured as if they were long-term, low-wage workers. These workers received the advantage of the higher percentage Social Security benefits in addition to their public pension. The benefit formula was modified in 1983 to eliminate this inequity.
Here’s how the WEP formula works: Social Security benefits are based on the worker’s average monthly earnings adjusted for inflation. When Social Security computes your benefits, it separates your average earnings into three amounts and multiplies the figures using three factors. For example, for a worker who became 65 in 1995, the first $387 of average monthly earnings is multiplied by 90%; the next $1946 is multiplied by 32%; and the remainder by 15%. In the modified WEP formula, the 90% factor is reduced. For those who reached 62 or become disabled in 1990 or later, the 90% factor is reduced to 40%.
There are some exceptions to this rule. For example, the 90% factor is not reduced if you have 30 or more years of “substantial” earnings where you paid Social Security taxes. If you have 21 to 29 years of “substantial” earnings, the 90% factor is reduced to somewhere between 45 and 85 percent. “Substantial” earnings are a certain amount of yearly earnings required for a year of coverage for this provision.
No one plans to die before retirement. Nevertheless, if that does happen, you can designate where the money you have been contributing to the retirement system should go.
The Holyoke Retirement Board is providing this information to assist active members when completing the member’s Beneficiary Selection Form, http://www.mass.gov/perac/forms/01lgBeneficiarySelection.pdf. The public employee retirement statute, Chapter 32 of the Massachusetts General Laws, is notoriously complex, and the information contained herein is not a substitute for competent legal advice. Various sections of Chapter 32 will come into play depending upon whether a member dies as a result of an on-duty injury, or leaves a spouse and minor children.
The member’s Beneficiary Selection Form instructs the Holyoke Retirement Board on the disposition of your retirement benefits in the event that you should die prior to retirement. You have the right at any time prior to retiring to change your beneficiaries.
The first part of the Beneficiary Selection form asks you to name a beneficiary or beneficiaries who, upon your death, will be entitled to receive a one-time payment of your accumulated retirement deductions which have been withheld from your compensation and credited to your account. This is paid in accordance with G.L. c. 32, § 11(2). You can name any person as your beneficiary to receive this benefit. The Board will pay the amount owed to the beneficiary or beneficiaries named on the Beneficiary Selection Form, unless another section of the retirement statute supersedes, as discussed below. This is a lump sum payment without an allowance. The Board cannot return the deceased member’s accumulated deductions to the § 11(2) beneficiary if there is an eligible beneficiary nominated under another section of the law, § 12(2)(d), or if there is an eligible spouse, or if there are minor or dependent children.
The second page of the form asks you to name a § 12(2)(d) or “Option D” beneficiary. You can name only one Option D beneficiary, and it must be your spouse, child, a former spouse who has not remarried, mother, father, brother or sister. The Option D beneficiary will receive a Member Survivor Allowance for life. There would be no return of the accumulated deductions made to the § 11(2) beneficiary, because the Option D beneficiary’s rights are superior. Some members select a minor child as their Option D beneficiary in order to maximize the retirement benefit.
Irrespective of what is stated on the Beneficiary Selection Form, if an active member dies having worked for at least two years and having been married for at least one year, and if the member and spouse were living together, the surviving spouse may elect to receive the Member Survivor Allowance provided in § 12(2)(d). The surviving spouse’s right trumps the right of any other beneficiary named by the member. Thus, a member is entitled to name a young child as the Option D beneficiary, knowing that the surviving spouse can always elect to receive the allowance instead of the child.
Members should make sure to designate both § 11(2) beneficiary or beneficiaries and a § 12(2)(d) beneficiary. If the member should die as the result of an on-duty injury, the accidental death benefit in § 9 provides that accumulated total deductions shall be paid in a lump sum to the named § 11(2) beneficiary. In addition to the lump sum payment, the Board will pay a lifetime allowance to the surviving spouse or other eligible beneficiary. Thus, accumulated deductions can be paid to one person and an allowance paid to a different person, as long as the member has designated a § 11(2) beneficiary. The member can name a spouse or other eligible beneficiary as both the § 11(2) and § 12(2)(d) beneficiary.
If you are killed in the line of duty, or die as a result of injuries sustained while in the performance of duties, your dependents are entitled to statutory benefits under various sections of MGL Chapter 32, the public employee retirement law. However, if your death is not job related, then Option D, or the “Member-Survivor Allowance” can provide benefits to your survivors.
Option D provides your named beneficiary with the monthly retirement allowance that you have received under Option C had you retired on the date of death. If you are under age 55 at death, your age will be “bumped up” to 55 to calculate the allowance. (For members joining the system after April 2, 2012, the age is 60.) The age of your beneficiary is also “bumped up” to an equal amount. If over 55 (or 60 for newer members), the calculation factor for your actual age at death is used.
Who can be an Option D beneficiary? Only one Option D beneficiary may be named, and only a spouse, child, former spouse who has not remarried, mother, father, brother or sister is eligible for designation. Unless trumped by a spousal election, your nominated Option D beneficiary must receive the allowance.
You and your spouse have been living together at the time of your death.
If you and your spouse were not living together at the time of your death, the Board must find that you were living apart for justifiable cause, other than desertion or moral turpitude on the part of your spouse.
The rights of an eligible surviving spouse will always trump any other person nominated as the Option D beneficiary. The retirement board will notify your spouse of his or her right to elect Option D benefits and your spouse has 90 days from the date of this notice to elect Option D benefits. To be effective, the election must be made on a prescribed form and filed with the Board. However, if your spouse is named by you as the Option D beneficiary, your spouse MUST receive the monthly allowance, and may not choose between the allowance and a one-time lump sum return of your accumulated contributions.
Dependent Children. When a member-survivor Option D allowance is paid, another statute, Section 12B, provides an additional allowance to your minor children of $120 per month to the oldest child, and $90 per month to each additional child. These benefits will end upon adoption or marriage, or upon reaching age 18, or age 22 if a full-time student. Benefits to children will not end if the child is physically or mentally incapacitated from earning on the date of your death. If you have no spouse, your children can, in some circumstances, receive the benefits a spouse would have received alone with Section 12B benefits.
A member-survivor Option D allowance may also be available to a beneficiary of an inactive member. However, no benefit for children is available under Section 12B.
How are my retirement benefits an issue in my divorce?
Your pension from the Holyoke Retirement System is generally considered a marital asset and, whether you are currently receiving a retirement allowance or are still actively in service, it may be subject to valuation and division in a divorce.
A domestic relations order—commonly known as a DRO—is a judgment, decree or order (including approval of a property settlement agreement) that sets out how a person’s retirement benefits are to be allocated between parties who are in the process of divorcing or who are already divorced. The DRO must be reviewed and accepted by the Retirement Board to ensure that it complies with the General Laws and is enforceable.
1) The parties submit the DRO to the Board.
2) The Board’s attorney reviews the DRO to be sure that it complies with the Massachusetts General Laws chapter 32) and can be implemented. If the DRO is not acceptable, the Board will notify, in writing ,the attorney submitting the DRO that revisions need to be made. If the DRO is acceptable and has been signed by the court, a standard letter is prepared accepting it as a qualified Domestic Relations Order.
3) The order is filed in the member’s file and noted on our computer system. We strongly recommend that both parties keep a copy of the order for their own files.
DROs deal primarily with retirement benefits. Because a pension is an asset that becomes payable at some future date, and involves many “unknowns,” it is necessary to address how it will be divided in a very specific document. This document usually gives to an alternate payee the right to receive part of the benefits that would be payable to a participant under the plan. The DRO may not alter the amount or form of the benefits of the plan.
See below for a sample Domestic Relations Order and a description of actions that the court cannot order the Board to take.
As a member of the Holyoke Retirement System who is now receiving or will be entitled to receive a retirement allowance, do I need to have a Domestic Relations Order as part of my divorce?
Not necessarily. Depending on your particular financial situation, you may be able to address the division of your retirement allowance in another way, such as calculating the present value of your benefits and then apportioning it along with your other assets. However, this is an issue for you to discuss with your attorney.
Can the Retirement Board determine the present value of my future retirement benefits?
No. We can only give information regarding current account balances. For computation of the present value of the member’s benefits, you will need to consult an actuary or other financial professional. The information that an actuary will need to assign value to your retirement allowance can be provided.
Can a court order the Holyoke Retirement Board to divide current or future benefits by issuing separate checks, part to the member and part to an alternate payee?
Yes. Pursuant to M.G.L. c. 32, §19, payments from the Holyoke Retirement Board may be made to another person (known as an alternate payee) who is expressly provided for in the terms of any Domestic Relations Order or court decree.
May benefit rights be assigned or attached to satisfy a support obligation?
In certain cases, yes. The rights of members are normally exempt from execution, garnishment or other process unless a support order has been issued under M.G.L. cc. 208, 209,209A, 209C, 209D or 273. Benefit rights may be assigned or attached in connection with child support orders or alimony.
Are the payments made by the Holyoke Retirement Board subject to either the Retirement Equity Act or the Employment Retirement Income Security Act (ERISA)?
No. Public and government plans are specifically exempt from the provisions of both those federal acts.
Can anyone other than the member require the Holyoke Retirement Board to disclose information contained in that member’s file, such as a beneficiary designation or the account balance?
the information has been subpoenæd, we have notified the member of the request and given him or her the opportunity to quash the subpoena, and the subpoena has not been quashed.
Can a representative of the Retirement Board be called upon to testify in court?
Yes—however, most—if not all—of the information you need to compose a Domestic Relations Order can be communicated by written documentation, which we will gladly provide.
I am a retiree who is getting divorced. In what way can a Domestic Relations Order affect my retirement allowance?
Your retirement allowance may be apportioned, but neither the total amount nor the option you selected at the time of your retirement may be changed. If applicable, we will divide your monthly allowance according to the terms of the Court’s order or the parties’ agreement.
From the Retirement Board’s perspective, what issues do I need to address in structuring a Domestic Relations Order?
On March 20, 2019, the Board determined that John T. McCarthy was the only candidate nominated for election. Therefore it was voted to declare John T. McCarthy to be an elected member of the Holyoke Retirement Board and that no election shall be held. His term will commence on June 1, 2019 and expire on May 31, 2022. He will serve in all respects as though he had been elected by election.
Pursuant to Chapter 121 of the Acts of 2016, An Act to Improve Public Records, every Retirement Board must appoint a Records Access Officer to coordinate responses to public records requests.
You may make a public record request with the Board’s Records Access Officer in person, or by written request, or by telephone, email or fax.
Commonly requested public records on our website include: Valuation Reports, Annual Statements, Board Meeting Minutes.