Skip to main content

B-143029, DEC. 26, 1962

B-143029 Dec 26, 1962
Jump To:
Skip to Highlights

Highlights

SIMPSON WAS EMPLOYED BY THE VETERANS ADMINISTRATION HOSPITAL OFFICE. THE INDEBTEDNESS RESULTED BECAUSE NO DEDUCTIONS WERE MADE FROM THE PAYMENT MR. SIMPSON RECEIVED UNDER HIS CONTRACTS IN AN AMOUNT EQUAL TO THE RETIREMENT ANNUITY ALLOCABLE TO THE PERIODS HE WAS EMPLOYED BY CONTRACT AS REQUIRED BY SECTION 13 (B) OF THE CIVIL SERVICE RETIREMENT ACT. SIMPSON BY A SERIES OF CONTRACTS AFTER HIS RETIREMENT WE DETERMINED THE RELATIONSHIP CREATED BY THOSE CONTRACTS WAS THAT OF AN EMPLOYER-EMPLOYEE AND NOT THAT OF AN INDEPENDENT CONTRACTOR. OUR POSITION IN THAT REGARD WAS STATED IN OUR DECISION OF SEPTEMBER 28. A COPY OF WHICH IS ENCLOSED. IS SUCH THAT THE DECISION OF THE COURT OF CLAIMS IN THE BOYLE CASE MAY BE APPLIED TO THE SIMPSON CASE AND THE INDEBTEDNESS TO THE UNITED STATES CANCELLED.

View Decision

B-143029, DEC. 26, 1962

TO MR. ARNOLD P. ACTKINSON:

ON DECEMBER 10, 1962, YOU REQUESTED THAT WE RECONSIDER OUR DECISION REGARDING THE INDEBTEDNESS TO THE UNITED STATES IN THE CASE OF THE LATE LOUIS J. SIMPSON WHICH AROSE WHEN MR. SIMPSON WAS EMPLOYED BY THE VETERANS ADMINISTRATION HOSPITAL OFFICE, SAN ANTONIO, TEXAS, BY CONTRACT AFTER HIS RETIREMENT FROM SERVICE WITH THAT AGENCY. THE INDEBTEDNESS RESULTED BECAUSE NO DEDUCTIONS WERE MADE FROM THE PAYMENT MR. SIMPSON RECEIVED UNDER HIS CONTRACTS IN AN AMOUNT EQUAL TO THE RETIREMENT ANNUITY ALLOCABLE TO THE PERIODS HE WAS EMPLOYED BY CONTRACT AS REQUIRED BY SECTION 13 (B) OF THE CIVIL SERVICE RETIREMENT ACT, AS AMENDED, 5 U.S.C. 2263 (B).

ALTHOUGH THE VETERANS ADMINISTRATION EMPLOYED MR. SIMPSON BY A SERIES OF CONTRACTS AFTER HIS RETIREMENT WE DETERMINED THE RELATIONSHIP CREATED BY THOSE CONTRACTS WAS THAT OF AN EMPLOYER-EMPLOYEE AND NOT THAT OF AN INDEPENDENT CONTRACTOR. OUR POSITION IN THAT REGARD WAS STATED IN OUR DECISION OF SEPTEMBER 28, 1960, B-143029, TO THE ADMINISTRATOR OF THE VETERANS ADMINISTRATION, A COPY OF WHICH IS ENCLOSED.

YOU SUGGEST THAT THE SIMILARITY BETWEEN THE FACTS IN MR. SIMPSON'S EMPLOYMENT AND THOSE INVOLVED IN THE CASE OF BOYLE V. UNITED STATES, CT.CL.NO. 300-60, DECIDED NOVEMBER 7, 1962, IS SUCH THAT THE DECISION OF THE COURT OF CLAIMS IN THE BOYLE CASE MAY BE APPLIED TO THE SIMPSON CASE AND THE INDEBTEDNESS TO THE UNITED STATES CANCELLED.

WE DO NOT BELIEVE THAT THE DECISION OF THE COURT OF CLAIMS IN THAT CASE IS TO BE INTERPRETED AS HOLDING THAT ALL RETIRED EMPLOYEES ENGAGED BY THE GOVERNMENT BY MEANS OF A CONTRACT ARE EXEMPT FROM THE PROVISIONS OF SECTION 13 (B) OF THE CIVIL SERVICE RETIREMENT ACT. THUS, WE MUST STILL LOOK TO THE RELATIONSHIP CREATED BY A CONTRACT WITH A RETIRED ANNUITANT TO DETERMINE WHETHER THE EMPLOYER-EMPLOYEE RELATIONSHIP EXISTS AND IF IT DOES EXIST SECTION 13 (B) MUST BE APPLIED AND APPROPRIATE DEDUCTIONS MADE.

ALTHOUGH MANY FACTORS ENTER INTO A DETERMINATION OF WHETHER THE EMPLOYER- EMPLOYEE RELATIONSHIP EXISTS THE FACTOR OF SUPERVISION AND CONTROL PROVIDES A BASIS FOR DISTINGUISHING THE BOYLE CASE FROM THE FACTS OF MR. SIMPSON'S EMPLOYMENT. IN THE BOYLE CASE THE COURT HELD THAT NO SUPERVISION WAS TO BE EXERCISED OVER THE PETITIONER UNDER THE TERMS OF HIS CONTRACTS WITH THE GENERAL SERVICES ADMINISTRATION AND THAT THE PAYMENTS MADE UNDER THOSE CONTRACTS WERE FEES ARISING FROM THE ATTORNEY CLIENT--- INDEPENDENT CONTRACTOR--- RELATIONSHIP. MR. SIMPSON'S CONTRACTS ON THE OTHER HAND CONTAINED PROVISIONS WHICH NECESSITATED SUPERVISION AND CONTROL OVER HIM DURING THEIR EXECUTION. THE FOLLOWING PROVISIONS OF MR. SIMPSON'S CONTRACTS COULD NOT BE PERFORMED WITHOUT THE EXERCISE OF DIRECT SUPERVISION: "RENDER SERVICES IN THE LOAN GUARANTY DIVISION AS A CONSTRUCTION AND VALUATION TECHNICIAN * * * AND PERFORMING OTHER RELATED DUTIES AS REQUIRED; " ,RATE OF PRODUCTION WILL BE EQUIVALENT TO THAT EXPECTED OF STAFF TECHNICIANS; " AND "DUTY HOURS WILL BE THE SAME (AS STAFF TECHNICIANS).' THEREFORE, AND SINCE HE WAS PAID ON A TIME BASIS, OUR OPINION IS THAT MR. SIMPSON WAS AN EMPLOYEE OF THE UNITED STATES WHEN HE WORKED UNDER THE CONTRACTS IN QUESTION AND THAT HIS COMPENSATION THEREUNDER WAS SUBJECT TO REDUCTION UNDER SECTION 13 (B) OF THE CIVIL SERVICE RETIREMENT ACT.

DECISIONS OF THE COURT OF CLAIMS ARE CAREFULLY CONSIDERED BY US WHEN SIMILAR MATTERS COME BEFORE US FOR DECISION OR SETTLEMENT. WHILE, GENERALLY, WE FOLLOW SUCH DECISIONS WE HAVE ASKED THE DEPARTMENT OF JUSTICE TO SEEK RECONSIDERATION OF THE BOYLE CASE BY THE COURT OF CLAIMS EVEN THOUGH THE COURT DID SPECIFY THAT THEIR DECISION WAS APPLICABLE TO "THE WRITTEN CONTRACTS AND THE SPECIFIC FACTS"--- PAGE 8 OF THE SLIP OPINION IN THE BOYLE CASE--- BECAUSE CERTAIN STATEMENTS MADE IN THAT DECISION MAY BE CONSTRUED AS PRECEDENT AND BECAUSE OUR OPINION IS THAT THE COURT SHOULD HAVE FOUND THAT THE EMPLOYER-EMPLOYEE RELATIONSHIP DID EXIST BETWEEN BOYLE AND THE GOVERNMENT UNDER HIS CONTRACTS.

GAO Contacts

Office of Public Affairs