A-58815, JANUARY 9, 1935, 14 COMP. GEN. 527

A-58815: Jan 9, 1935

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AS FOLLOWS: THERE IS SUBMITTED FOR YOUR CONSIDERATION AND DECISION THE QUESTION OF WHETHER A PERSON SEPARATED FROM THE SERVICE OF THE UNITED STATES AND RETIRED ON ANNUITY ON ACCOUNT OF AGE MAY LEGALLY BE EMPLOYED UNDER THE FEDERAL HOUSING ADMINISTRATION. FOR RETIREMENT IN THE POSITION IN WHICH HE WAS EMPLOYED. HE WAS SEPARATED FROM THE SERVICE ON AUGUST 31. 9 DAYS OF SERVICE AND WAS AWARDED AN ANNUITY AT THE RATE OF $773.28 PER ANNUM EFFECTIVE SEPTEMBER 1. LERCH WAS RETIRED FOR AGE. PAYMENT OF SALARY TO HIM BY THIS ADMINISTRATION FOR THE ABOVE PERIOD WAS ILLEGAL. IT WILL BE NECESSARY TO SECURE A REFUND THEREOF.'. ANNUITY PAYMENTS IN THIS CASE HAVE BEEN SUSPENDED PENDING YOUR DECISION.

A-58815, JANUARY 9, 1935, 14 COMP. GEN. 527

FEDERAL HOUSING ADMINISTRATION - REAPPOINTMENT OF RETIRED EMPLOYEE THE BROAD AUTHORITY IN THE NATIONAL HOUSING ACT OF JUNE 27, 1934, 48 STAT. 1246, FOR EMPLOYMENT OF PERSONNEL "WITHOUT REGARD TO THE PROVISIONS OF OTHER LAW APPLICABLE TO THE EMPLOYMENT OR COMPENSATION OF OFFICERS AND EMPLOYEES OF THE UNITED STATES," DOES NOT AUTHORIZE THE DISREGARD OF SECTION 204 OF THE ECONOMY ACT DISQUALIFYING FOR REAPPOINTMENT EMPLOYEES WHO HAD BEEN RETIRED FOR AGE.

COMPTROLLER GENERAL MCCARL TO THE PRESIDENT, UNITED STATES CIVIL SERVICE COMMISSION, JANUARY 9, 1935:

THERE HAS BEEN RECEIVED YOUR LETTER OF NOVEMBER 14, 1934, AS FOLLOWS:

THERE IS SUBMITTED FOR YOUR CONSIDERATION AND DECISION THE QUESTION OF WHETHER A PERSON SEPARATED FROM THE SERVICE OF THE UNITED STATES AND RETIRED ON ANNUITY ON ACCOUNT OF AGE MAY LEGALLY BE EMPLOYED UNDER THE FEDERAL HOUSING ADMINISTRATION.

MR. FRANK S. LERCH, FORMERLY EMPLOYED AS PROOFREADER, GOVERNMENT PRINTING OFFICE, REACHED THE AGE PRESCRIBED BY SECTION 1 OF THE ACT OF MAY 29, 1930, FOR RETIREMENT IN THE POSITION IN WHICH HE WAS EMPLOYED, 65 YEARS, ON AUGUST 11, 1933, AND HE WAS SEPARATED FROM THE SERVICE ON AUGUST 31, 1933, AFTER COMPLETION OF 19 YEARS, 4 MONTHS, AND 9 DAYS OF SERVICE AND WAS AWARDED AN ANNUITY AT THE RATE OF $773.28 PER ANNUM EFFECTIVE SEPTEMBER 1, 1933.

ON AUGUST 16, 1934, HE RECEIVED A TEMPORARY APPOINTMENT UNDER THE FEDERAL HOUSING ADMINISTRATION AS ASSISTANT PRINTING CLERK AT $1,620.00 PER ANNUM, WHICH APPOINTMENT TERMINATED OCTOBER 4, 1934. SECTION 204 OF THE ECONOMY ACT OF JUNE 30, 1932, PROVIDES IN PART:

"* * * THAT NO SUCH PERSON HERETOFORE OR HEREAFTER SEPARATED FROM THE SERVICE OF THE UNITED STATES OR THE DISTRICT OF COLUMBIA UNDER ANY PROVISION OF LAW OR REGULATION PROVIDING FOR SUCH RETIREMENT ON ACCOUNT OF AGE SHALL BE ELIGIBLE AGAIN TO APPOINTMENT TO ANY APPOINTIVE OFFICE, POSITION, OR EMPLOYMENT UNDER THE UNITED STATES OR THE DISTRICT OF COLUMBIA: * * *.'

SECTION 1 OF THE ACT CREATING THE FEDERAL HOUSING ADMINISTRATION (PUBLIC, NO. 479, 73D CONGRESS) PROVIDES IN PART:

"IN ORDER TO CARRY OUT THE PROVISIONS OF THIS TITLE AND TITLES II AND III, THE ADMINISTRATION MAY ESTABLISH SUCH AGENCIES, ACCEPT AND UTILIZE SUCH VOLUNTARY AND UNCOMPENSATED SERVICES, UTILIZE SUCH FEDERAL OFFICERS AND EMPLOYEES, AND, WITH THE CONSENT OF THE STATE, SUCH STATE AND LOCAL OFFICERS AND EMPLOYEES, AND APPOINT SUCH OTHER OFFICERS AND EMPLOYEES AS HE MAY FIND NECESSARY, AND MAY PRESCRIBE THEIR AUTHORITIES, DUTIES, RESPONSIBILITIES, AND TENURE AND FIX THEIR COMPENSATION, WITHOUT REGARD TO THE PROVISIONS OF OTHER LAWS APPLICABLE TO THE EMPLOYMENT OR COMPENSATION OF OFFICERS AND EMPLOYEES OF THE UNITED STATES.'

UNDER DATE OF OCTOBER 22, 1934, THE DIRECTOR OF PERSONNEL, FEDERAL HOUSING ADMINISTRATION, REQUESTED THAT ANNUITY PAYMENTS BE SUSPENDED STATING:

"AS IT APPEARS FROM YOUR LETTER THAT MR. LERCH WAS RETIRED FOR AGE, PAYMENT OF SALARY TO HIM BY THIS ADMINISTRATION FOR THE ABOVE PERIOD WAS ILLEGAL, AND IT WILL BE NECESSARY TO SECURE A REFUND THEREOF.'

ANNUITY PAYMENTS IN THIS CASE HAVE BEEN SUSPENDED PENDING YOUR DECISION.

SECTION 1 OF THE NATIONAL HOUSING ACT OF JUNE 27, 1934, 48 STAT. 1246, QUOTED IN YOUR LETTER, SPECIFICALLY AUTHORIZES THE APPOINTMENT OF SUCH OFFICERS AND EMPLOYEES AS THE ADMINISTRATOR MAY FIND NECESSARY TO CARRY OUT THE PROVISIONS OF THE ACT "WITHOUT REGARD TO THE PROVISIONS OF OTHER LAW APPLICABLE TO THE EMPLOYMENT OR COMPENSATION OF OFFICERS AND EMPLOYEES OF THE UNITED STATES.' ALSO, SAID SECTION AUTHORIZES THE ADMINISTRATOR TO MAKE SUCH EXPENDITURES AS ARE NECESSARY TO CARRY OUT THE PROVISIONS OF TITLES I, II, AND III OF THE ACT "WITHOUT REGARD TO ANY OTHER PROVISIONS OF LAW GOVERNING THE EXPENDITURE OF PUBLIC FUNDS.'

WHILE THE AUTHORITY THUS VESTED IN THE ADMINISTRATOR IS BROADER THAN THAT USUALLY GRANTED, EVEN BY EMERGENCY LEGISLATION, TO EMPLOY AND PAY PERSONNEL WITHOUT REGARD FOR THE PROVISIONS OF THE CIVIL SERVICE LAWS AND THE CLASSIFICATION ACT, THERE APPEARS NOTHING SUGGESTING A LEGISLATIVE PURPOSE TO AUTHORIZE DISREGARD OF A STATUTE SPECIFICALLY DISQUALIFYING A PARTICULAR PERSON OR CLASS OF PERSONS FOR "APPOINTMENT TO ANY APPOINTIVE OFFICE, POSITION, OR EMPLOYMENT UNDER THE UNITED STATES OR THE DISTRICT OF COLUMBIA.' ONE OF THE PURPOSES OF SECTION 204 OF THE ECONOMY ACT OF JUNE 30, 1932, WAS TO SPREAD EMPLOYMENT BY PROHIBITING REEMPLOYMENT OF THOSE RETIRED WITH ANNUITY BECAUSE OF AGE. IT DOES NOT PRESCRIBE QUALIFICATIONS FOR APPOINTMENT AS DO THE CIVIL SERVICE LAWS AND REGULATIONS--- IT DISQUALIFIES FOR APPOINTMENT--- AND THE DISQUALIFICATION IS NOT OVERCOME BY THE PROVISIONS OF THE ACT CREATING THE FEDERAL HOUSING ADMINISTRATION, AN AGENCY OF THE UNITED STATES.

IN VIEW OF THE ROOM FOR MISUNDERSTANDING BECAUSE OF THE BROAD LANGUAGE EMPLOYED IN THE ACT CREATING THE FEDERAL HOUSING ADMINISTRATION, OTHERWISE PROPER PAYMENTS HERETOFORE MADE FOR SERVICES RENDERED UNDER THE TEMPORARY APPOINTMENT, NOW TERMINATED, NEED NOT BE RECOVERED BY THE APPLICATION THERETO OF AMOUNTS OTHERWISE DUE ON ACCOUNT OF RETIREMENT ANNUITY.