B-144919, FEB. 23, 1961

B-144919, FEB. 23, 1961

TO ADMINISTRATOR, HOUSING AND HOME FINANCE AGENCY:

BY LETTER RECEIVED HERE JANUARY 31, 1961, THE THEN ACTING ADMINISTRATOR, HOUSING AND HOME FINANCE AGENCY, REQUESTED OUR DECISION CONCERNING THE APPLICABILITY OF THE RESTRICTIONS OF THE ACT OF JULY 31, 1894, AS AMENDED, 5 U.S.C. 62, TO MR. JOSE FUENTES, ASSISTANT FISCAL MANAGEMENT OFFICER, GS- 12, WHO HAS BEEN EMPLOYED IN THE REGIONAL OFFICE OF THAT AGENCY AT SAN JUAN, PUERTO RICO, SINCE NOVEMBER 3, 1955.

THE QUESTIONS PRESENTED ARE STATED AS FOLLOWS:

"1. IS SECTION 2 OF THE ACT OF JULY 31, 1894, AS AMENDED (5 U.S.C. 62), APPLICABLE TO MR. FUENTES' EMPLOYMENT BY THE HOUSING AND HOME FINANCE AGENCY?

"2. IF YOUR ANSWER IS IN THE AFFIRMATIVE, WHAT ACTION IS NOW REQUIRED WITH RESPECT TO MR. FUENTES' EMPLOYMENT AND PAY?

IT APPEARS THAT MR. FUENTES (A MEMBER OF THE OFFICERS' RESERVE CORPS) WAS RELEASED FROM ACTIVE DUTY ON OCTOBER 23, 1950, TO ACCEPT AN APPOINTMENT AS A WARRANT OFFICER, JUNIOR GRADE, REGULAR ARMY, AND THAT HIS TEMPORARY APPOINTMENT AS A MAJOR IN THE ARMY OF THE UNITED STATES, IN WHICH HE WAS THEN SERVING, WAS TERMINATED ON THE SAME DATE. IT IS REPORTED THAT AFTER ACCEPTING SUCH APPOINTMENT AS A WARRANT OFFICER, HE WAS RETIRED BY THE ARMY AT HIS OWN REQUEST FOR YEARS OF SERVICE OVER 30 YEARS) ON OCTOBER 31, 1950, AS A REGULAR ARMY WARRANT OFFICER, AND THAT EFFECTIVE NOVEMBER 1, 1950, HE WAS ADVANCED ON THE RETIRED LIST TO THE RANK OF MAJOR, UNDER AUTHORITY OF SECTION 203 (C) OF THE ARMY AND AIR FORCE VITALIZATION AND RETIREMENT EQUALIZATION ACT OF 1948, APPROVED JUNE 29, 1948, 62 STAT. 1085. ON OCTOBER 30, 1952, HE WAS APPOINTED A LIEUTENANT COLONEL IN THE OFFICER'S RESERVE CORPS FOR AN INDEFINITE TERM AND ASSIGNED TO THE HONORARY RESERVE. ON NOVEMBER 3, 1955, HE ACCEPTED A TEMPORARY CIVILIAN APPOINTMENT IN YOUR AGENCY AS A BUDGET AND COST ANALYST, GS-11, AT THE RATE OF $6,390 PER ANNUM. ON SEPTEMBER 23, 1959, AFTER THREE EXTENSIONS, THE TEMPORARY APPOINTMENT WAS CONVERTED TO A CAREER CONDITIONAL APPOINTMENT AND IT IS STATED THAT HE HAS BEEN CONTINUOUSLY EMPLOYED SINCE THAT TIME BY YOUR AGENCY.

THE ACT OF JULY 31, 1894, AS AMENDED, 5 U.S.C. 62, PROVIDES THAT:

"NO PERSON WHO HOLDS AN OFFICE THE SALARY OR ANNUAL COMPENSATION ATTACHED TO WHICH AMOUNTS TO THE SUM OF TWO THOUSAND FIVE HUNDRED DOLLARS SHALL BE APPOINTED TO OR HOLD ANY OTHER OFFICE TO WHICH COMPENSATION IS ATTACHED UNLESS SPECIALLY AUTHORIZED THERETO BY LAW; BUT THIS SHALL NOT APPLY TO RETIRED OFFICERS OF THE ARMY, NAVY, AIR FORCE, MARINE CORPS, OR COAST GUARD WHENEVER THEY MAY BE ELECTED TO PUBLIC OFFICE OR WHENEVER THE PRESIDENT SHALL APPOINT THEM TO OFFICE BY AND WITH THE ADVICE AND CONSENT OF THE SENATE. RETIRED ENLISTED MEN OF THE ARMY, NAVY, AIR FORCE, MARINE CORPS, OR COAST GUARD RETIRED FOR ANY CAUSE, AND RETIRED OFFICERS OF THE ARMY, NAVY, AIR FORCE, MARINE CORPS, OR COAST GUARD WHO HAVE BEEN RETIRED FOR INJURIES RECEIVED IN BATTLE OR FOR INJURIES OR INCAPACITY INCURRED IN LINE OF DUTY SHALL NOT, WITHIN THE MEANING OF THIS SECTION, BE CONSTRUED TO HOLD OR TO HAVE HELD AN OFFICE DURING SUCH RETIREMENT.'

IT IS WELL ESTABLISHED THAT RETIRED WARRANT OFFICERS--- NOT RETIRED FOR INJURIES OR INCAPACITY INCURRED IN LINE OF DUTY--- HOLD AN OFFICE WITHIN THE MEANING OF THE 1894 ACT. SEE 16 COMP. GEN. 234; 21 ID. 38; 36 ID. 399. WE HAVE HELD THAT A RETIRED OFFICER MAY NOT AVOID THE PROHIBITION OF THE STATUTE BY RETAINING HIS RETIRED OFFICE AND WAIVING HIS RETIRED PAY DURING THE PERIOD OF HIS OCCUPANCY OF A CIVILIAN POSITION. 14 COMP. GEN. 289. THEREFORE, UNLESS THE RETIRED OFFICER IS WITHIN A CLASS SPECIFICALLY EXEMPTED FROM THE OPERATION OF THE 1894 ACT, OR HIS EMPLOYMENT (ON A TEMPORARY BASIS) DID NOT CONSTITUTE THE HOLDING OF AN "OFFICE" WITHIN THE PURVIEW OF THE STATUTE, THE PROVISIONS OF THE 1894 ACT OPERATED AS A BAR TO HIS APPOINTMENT AS A CIVILIAN EMPLOYEE. IN THIS LATTER CONNECTION, WE HAVE HELD THAT IT IS ONLY THOSE TEMPORARY POSITIONS IN WHICH THE EMPLOYMENT IS RESTRICTED TO THE ACCOMPLISHMENT OF A PARTICULAR PURPOSE, FOR WHICH THE TEMPORARY POSITIONS ARE CREATED FOR A LIMITED PERIOD, AND WHICH POSITIONS CEASE TO EXIST UPON THE ACCOMPLISHMENT OF THE STATED OBJECTIVE, WHICH DO NOT CONSTITUTE THE HOLDING OF AN "OFFICE" WITHIN THE PURVIEW OF THE 1894 ACT. COMPARE 14 COMP. GEN. 68; 16 ID. 47; 19 ID. 391. IT APPEARS THAT THE TEMPORARY POSITION HELD BY MR. FUENTES PRIOR TO SEPTEMBER 23, 1959, WAS NOT OF THIS TYPE.

THE FACT THAT MR. FUENTES WAS ADVANCED ON THE RETIRED LIST TO THE RANK OF MAJOR UNDER SECTION 203 (C) OF THE ACT OF JUNE 29, 1948, A RANK NOT HELD BY HIM AS A MEMBER OF THE REGULAR ARMY, IS WITHOUT SIGNIFICANCE, SINCE SUCH ACTION DID NOT AFFECT THE "OFFICE" HELD BY HIM AS A RETIRED REGULAR WARRANT OFFICER. UNDER ANALOGOUS CIRCUMSTANCES, WE HAVE HELD THAT AN ENLISTED MAN WHO IS RETURNED TO AN INACTIVE STATUS WITH HIGHER COMMISSIONED GRADE PURSUANT TO THE PROVISIONS OF SECTION 10 OF THE ACT OF JULY 24, 1941, 55 STAT. 605, AS AMENDED, RETAINS THE "OFFICE" OF THE PERMANENT RANK OR GRADE IN WHICH RETIRED WITHIN THE MEANING OF THE 1894 ACT. SEE 26 COMP. GEN. 271, 275. CF. 28 COMP. GEN. 727, 31 ID. 529; 36 ID. 503, 505. ALSO, THE FACT THAT THE ORDERS OF OCTOBER 20, 1950, WHICH TERMINATED HIS APPOINTMENT AS AN OFFICER IN THE ARMY OF THE UNITED STATES, DID NOT PURPORT TO AFFECT HIS STATUS AS A MEMBER OF THE OFFICERS' RESERVE CORPS NOT ON ACTIVE DUTY, IS NOT REGARDED AS MATERIAL, SINCE HE ACTUALLY WAS RETIRED AS A REGULAR ARMY WARRANT OFFICER.

SINCE MR. FUENTES RETIRED AS A REGULAR ARMY WARRANT OFFICER FOR LENGTH OF SERVICE ONLY, THAT IS TO SAY, OTHER THAN FOR "INJURIES OR INCAPACITY INCURRED IN LINE OF DUTY," WE CONCLUDE THAT HE HOLDS AN "OFFICE" WITHIN THE MEANING OF THE 1894 STATUTE; HENCE, HIS APPOINTMENT TO THE CIVILIAN POSITION MUST BE CONSIDERED AS VOID AB INITIO. 19 COMP. GEN. 751 (PARAGRAPH BEGINNING AT FOOT OF PAGE 755). IN THE CIRCUMSTANCES, THE SERVICE PERFORMED BY HIM IN THE CIVILIAN POSITION MAY NOT BE REGARDED AS DE FACTO SERVICE AND, ON THE PRESENT RECORD, THERE MUST BE RECOVERED FROM HIM THE TOTAL AMOUNT OF SALARY PAID FROM THE DATE OF HIS ORIGINAL APPOINTMENT ON NOVEMBER 3, 1955. COMPARE 21 COMP. GEN. 1129, 1132; 23 ID. 445; 36 ID. 803.