Hiss Act: Pension Forfeiture for National Security and Corruption Crimes

The Hiss Act is the informal name for a group of federal statutes, codified at 5 U.S.C. §§ 8311–8322, that cancel federal retirement benefits for anyone convicted of treason, espionage, sabotage, or a handful of other national security crimes. Pension forfeiture under the Hiss Act reaches civilian employees, military members, Members of Congress, and D.C. government workers, and it can apply whether the person is still working, recently retired, or drew their last paycheck decades ago. The law is named for Alger Hiss, a former State Department official whose 1950 perjury conviction in connection with a Cold War espionage investigation prompted Congress to act in 1954.

Crimes That Trigger Forfeiture

The heart of the law is 5 U.S.C. § 8312, which lists the specific offenses that end pension eligibility. All of them relate to national security or the defense of the United States.¹

Treason, misprision of treason, rebellion, seditious conspiracy, and advocating the overthrow of the government.
Espionage-related crimes, including harboring spies, gathering or transmitting defense information, delivering classified material to a foreign government, and disclosing classified information.
Sabotage offenses under chapter 105 of title 18.
Atomic energy offenses involving restricted nuclear data, including communicating, receiving, or tampering with that data.
Subversive-activity offenses originally enacted under the Internal Security Act of 1950 (now in title 50) and the disclosure of covert intelligence agents’ identities.
Military equivalents under the Uniform Code of Military Justice — aiding the enemy, espionage, and spying — plus any UCMJ conviction based on charges describing the civilian offenses above, provided the sentence includes death, dishonorable discharge, or dismissal.

The conduct does not have to occur during federal service. A conviction before, during, or after a government career triggers forfeiture, and no statute of limitations applies to the pension consequence.¹

Perjury is included, but only in narrow circumstances. A perjury conviction triggers forfeiture if the false statement denied one of the listed national security offenses, involved testimony to a federal court, grand jury, or court-martial about the individual’s government service in a national security matter, or was given before a congressional committee investigating national security threats. Subornation of perjury in those same circumstances carries the identical consequence. Ordinary perjury unconnected to national security does not qualify.

Foreign convictions can also count. Under § 8312(d), the Attorney General may certify that a covered individual was convicted by an impartial foreign court of conduct that would violate the U.S. offenses listed above. The certification requires findings that the foreign proceedings met U.S. due process standards, that the evidence would have been admissible in a U.S. court, and that the conviction is final. The individual can challenge that certification in the U.S. Court of Claims.¹

Forfeiture Without a Criminal Conviction

Two companion statutes cut off pension rights based on conduct that may never lead to criminal charges.

Section 8314 applies when someone refuses to appear, testify, or produce documents before a federal grand jury, court, court-martial, or congressional committee, if the proceeding concerns their relationship with a foreign government or a national security matter. Forfeiture runs from the date of the refusal.²

Section 8315 applies when an employee knowingly makes a false statement or conceals a material fact on a federal employment application. The statute specifically targets concealment of past or present Communist Party membership, membership in any organization advocating violent overthrow of the government, a prior qualifying conviction, or a prior refusal to testify.³

Who Is Covered

The statute defines “employee” broadly. It covers every civilian federal employee, Members of Congress and Delegates, current and former members of the uniformed services, and employees of the District of Columbia government. The same definition applies across the whole subchapter, so every forfeiture trigger reaches the same pool of people.⁴

Current employment status does not matter. A retiree already collecting monthly payments, a former employee who separated years ago, and a current worker are equally exposed. A conviction for espionage twenty years into retirement will stop the pension. The condition of loyal service travels with the benefit.

What You Lose, and What You Keep

The Pension Itself

Forfeiture ends the right to receive an annuity or retired pay based on the covered federal service. Family members feel the effect too, because survivor benefits derive from the employee’s own entitlement. Section 8312 states plainly that “an individual, or his survivor or beneficiary, may not be paid annuity or retired pay” once a qualifying offense triggers forfeiture.¹

Section 8318(e) creates a narrow “innocent spouse” exception: a spouse can still receive spousal pension benefits if the Attorney General finds the spouse fully cooperated with federal authorities during the investigation and prosecution. Passive ignorance of the criminal activity is not enough.⁵

Refund of Contributions

The government does not pocket everything paid into the retirement system. Under 5 U.S.C. § 8316, the employee’s own contributions, minus employment taxes and any annuity payments already received, are refunded. If the employee has died, the money goes to the designated beneficiary or through the statutory order of precedence.⁶

Interest is included, but only up to a cutoff — the date of conviction or the relevant statutory date (September 1, 1954 or September 26, 1961), whichever is later. Interest earned after that point is not part of the refund. If the refund exceeds $200, the Office of Personnel Management withholds 20 percent for federal income tax, unless the money is directly rolled into an IRA or other eligible retirement plan. A 60-day window for a rollover remains available even after a direct payment.⁷

Social Security

Social Security benefits are handled separately and are not automatically forfeited. Under 20 CFR § 404.465, a sentencing court that convicts someone of espionage, sabotage, treason, sedition, or subversive activities may impose an additional penalty directing the Social Security Administration to exclude wages earned in the quarter of conviction and every earlier quarter from the benefit calculation.⁸ The penalty applies only if the sentencing court orders it, and a presidential pardon reverses it.

The Hiss Act’s own definition of “annuity” carves out the Social Security amount that would be payable without any federal employment, so benefits earned through private-sector work are protected even when the court-ordered penalty hits federal wages.⁴

Thrift Savings Plan

The TSP sits outside the Hiss Act’s core language, which targets “annuity or retired pay.” An employee’s own TSP contributions and their investment earnings are personal property. Government matching contributions and their earnings are less clear. TSP regulations do allow the fund to honor certain criminal restitution orders, but they explicitly exclude general forfeiture orders from the categories the TSP record keeper will honor.⁹

Retiree Health Coverage

Federal Employees Health Benefits enrollment in retirement requires entitlement to an immediate annuity, plus continuous FEHB coverage for the five years before retirement or since the first opportunity to enroll.¹⁰ Because that eligibility rides on the annuity, losing the pension almost certainly ends retiree health coverage as well.

Restoring a Forfeited Pension

Recovering a forfeited pension is difficult, and the statute offers only one explicit route for § 8312 convictions: a presidential pardon. Under 5 U.S.C. § 8318, a pardon restores the right to receive annuity or retired pay as of the date of the pardon.⁵

Back payments are not available. The statute prohibits any annuity payment for the period before the pardon date. If five years passed between the forfeiture and the pardon, those five years of payments are gone. Anyone who took a contribution refund during the forfeiture period must redeposit it before the underlying service credit counts again.

For forfeitures triggered by refusal to testify under § 8314 or a false employment application under § 8315 — not a criminal conviction — the President has a broader restoration authority and can pick the effective date, though the same rule against payments for the pre-restoration period applies.

A Note on Members of Congress

Members of Congress face Hiss Act forfeiture on the same terms as anyone else, but a separate set of rules under the Honest Leadership and Open Government Act of 2007 and the STOCK Act of 2012 reaches a much wider list of public corruption offenses, including bribery, acting as a foreign agent, fraud, honest services violations, extortion, and racketeering. Every element of the offense must have occurred while the individual served as a Member, the President, or the Vice President and must relate directly to official duties.¹¹

The consequence is narrower than the Hiss Act’s. A Member convicted under the STOCK Act provisions loses only the pension credit attributable to congressional service; any non-congressional federal service credit is preserved.¹² OPM also has discretion to authorize payments to a spouse or children when it finds doing so “necessary and appropriate” based on the totality of the circumstances, including whether family members took part in the offense and their financial needs.

1
Office of the Law Revision Counsel. 5 U.S.C. 8312 – Conviction of Certain Offenses
2
Office of the Law Revision Counsel. 5 U.S.C. 8314 – Refusal to Testify
3
Office of the Law Revision Counsel. 5 U.S.C. 8315 – Falsifying Employment Applications
4
Office of the Law Revision Counsel. 5 U.S.C. 8311 – Definitions
5
Office of the Law Revision Counsel. 5 U.S.C. 8318 – Restoration of Annuity or Retired Pay
6
Office of the Law Revision Counsel. 5 U.S.C. 8316 – Refund of Contributions and Deposits
7
U.S. Office of Personnel Management. Can I Roll Over My Refund of Retirement Contributions?
8
Social Security Administration. 20 CFR 404.465 – Conviction for Subversive Activities
9
eCFR. 5 CFR 1653.33 – Qualifying Criminal Restitution Order
10
U.S. Office of Personnel Management. Annuitants – FEHB Reference
11
Office of the Law Revision Counsel. 5 U.S.C. 8411 – Creditable Service
12
Office of the Law Revision Counsel. 5 U.S.C. 8332 – Creditable Service