B-141994, MAR. 24, 1960

B-141994, MAR. 24, 1960

TO MASON, MASON AND ALBRIGHT:

REFERENCE IS MADE TO YOUR LETTERS OF JANUARY 18, 1960, AND FEBRUARY 17, 1960, ON BEHALF OF CAPTAIN THOMAS W. MCDANIEL, JR., USN, RETIRED, REQUESTING REVIEW OF OUR SETTLEMENT DATED JANUARY 7, 1960, WHICH DISALLOWED HIS CLAIM FOR REFUND OF AMOUNTS ADMINISTRATIVELY WITHHELD FROM HIS RETIRED PAY INCIDENT TO HIS CIVILIAN EMPLOYMENT BY THE OFFICE OF THE SURGEON GENERAL, USAF HEADQUARTERS, USAF HOSPITAL, CARSWELL AIR FORCE BASE, TEXAS, IN VIEW OF THE LIMITATION ON DUAL COMPENSATION IN SECTION 212 OF THE ECONOMY ACT OF JUNE 30, 1932, AS AMENDED, 5 U.S.C. 59A.

IN YOUR LETTER OF JANUARY 18, 1960, YOU STATE THAT THE BASIS OF CAPTAIN MCDANIEL'S CLAIM IS THAT HE SHOULD NOT BE REGARDED AS OCCUPYING AN "OFFICE OR POSITION" WITHIN THE MEANING OF SECTION 212 OF THE ECONOMY ACT OF JUNE 30, 1932, AS AMENDED, INASMUCH AS A CIVILIAN MEDICAL CONSULTANT HE ACTED MERELY IN AN ADVISORY CAPACITY, WHICH WAS VERY SIMILAR TO THAT HELD EXEMPTED IN 26 COMP. GEN. 501.

ON THE BASIS OF THE INFORMATION AVAILABLE HERE, CAPTAIN MCDANIEL WAS EMPLOYED AS A CIVILIAN CONSULTANT UNDER A SERIES OF ANNUAL (FISCAL YEAR) APPOINTMENTS, AT A SPECIFIED RATE OF $50 PER DAY, WHEN ACTUALLY WORKING. EACH SUCH APPOINTMENT CONTAINED A LIMITATION ON THE NUMBER OF DAYS OF EMPLOYMENT ("EXCEPTED APPOINTMENT WAS NTF 90 DAYS") IN EACH FISCAL YEAR. WHILE CAPTAIN MCDANIEL'S APPOINTMENTS EACH CONTAINED A LIMITATION ON THE NUMBER OF DAYS OF EMPLOYMENT, NEVERTHELESS THEY PERMITTED HIM TO EARN AN AMOUNT WHICH, WHEN COMBINED WITH HIS RETIRED PAY, EXCEEDED THE ANNUAL RATE OF $10,000. CF. 38 COMP. GEN. 774.

THE PROVISIONS OF SECTION 212 UNIFORMLY HAVE BEEN HELD BY THE ACCOUNTING OFFICERS OF THE GOVERNMENT TO APPLY TO RETIRED OFFICERS OF THE ARMED SERVICES NOT OTHERWISE EXCEPTED THEREFROM, WHO SERVE UNDER THE FEDERAL GOVERNMENT IN A TEMPORARY, PART TIME, OR INTERMITTENT STATUS, AND WHO ARE PAID UPON A TIME BASIS. SEE 19 COMP. GEN. 391, AND THE DECISIONS CITED THEREIN. ALSO, IT HAS BEEN HELD THAT SUCH A RETIRED OFFICER, IF EMPLOYED SOLELY IN AN ADVISORY CAPACITY--- SUCH AS FOR CONSULTATION PURPOSES ONLY-- - AND WHO ALSO IS PAID UPON A FEE BASIS FOR EACH SUCH CONSULTATION, DOES NOT HOLD A "CIVILIAN OFFICER OR POSITION" WITHIN THE MEANING OF THE PHRASE AS USED IN SECTION 212, AND THAT, THEREFORE, HE IS NOT SUBJECT TO THE RESTRICTIONS THEREOF. SEE 26 COMP. GEN. 501, REFERRED TO IN YOUR LETTER.

IT HAS BEEN HELD, HOWEVER, THAT THAT DECISION WAS NOT INTENDED TO EXCEPT FROM THE PROVISIONS OF SECTION 212 ALL RETIRED OFFICERS MERELY BECAUSE OF THEIR EMPLOYMENT DESIGNATION (FOR ADMINISTRATIVE PURPOSES) AS "CONSULTANTS," A TITLE WHICH IMPLIES THE RENDITION OF A CERTAIN AMOUNT OF CONSULTATION SERVICES, COMPRISING THE EXPRESSION OF VIEWS AND THE GIVING OF OPINIONS AND RECOMMENDATIONS, BUT WHICH DOES NOT NECESSARILY LIMIT THE SERVICES TO BE RENDERED THEREUNDER TO SUCH NARROW CONFINES. IN 28 COMP. GEN. 381, IT WAS STATED THAT THE PRIOR HOLDING WAS BASED UPON THE PROPOSITION THAT WHERE THE NATURE OF THE DUTIES REQUIRED IS PURELY ADVISORY, GENERALLY PERFORMED AT INFREQUENT INTERVALS, AND THE COMPENSATION PAYABLE THEREFOR IS UPON A FEE BASIS, AS DISTINGUISHED FROM A TIME BASIS, THE STATUS OF THE EMPLOYEE IS NOT SUCH AS WOULD CONSTITUTE THE HOLDING OF AN OFFICE OR POSITION WITHIN THE CONTEMPLATION OF SECTION 212; THAT, WHILE NO PARTICULAR ONE OF THE ENUMERATED ELEMENTS IS CONSIDERED AS DETERMINATIVE OF THE MATTER, THE ABSENCE OF ANY ONE OF SUCH ELEMENTS IS SUFFICIENT TO TAKE A PARTICULAR CASE OUT OF THE RULE ENUNCIATED IN 26 COMP. GEN. 501.

CAPTAIN MCDANIEL WAS EMPLOYED UNDER EACH APPOINTMENT INVOLVED AT A SALARY RATE OF $50 PER DAY WHEN ACTUALLY WORKING. HENCE, HE WAS PAID ON A TIME BASIS AS DISTINGUISHED FROM A FEE BASIS. THEREFORE, HE IS NOT COVERED BY THE HOLDING IN 26 COMP. GEN. 501, BUT MUST BE HELD TO HAVE OCCUPIED AN "OFFICE OR POSITION" WITHIN THE CONTEMPLATION OF SECTION 212 AS PROVIDED BY 28 COMP. GEN. 361.

CONCERNING YOUR LETTER DATED FEBRUARY 17, 1960, RELATIVE TO THE CASE OF GARRET L. SCHUYLER V. UNITED STATES, C.CLS.NO. 548-58,DECIDED JANUARY 20, 1960, WE HAVE NOT BEEN ADVISED BY THE DEPARTMENT OF JUSTICE WHETHER ANY FURTHER PROCEEDINGS ARE CONTEMPLATED. SINCE THE DECISION BY THE COURT IN THAT CASE HAS NOT YET BECOME FINAL, WE MAY NOT CONSIDER WHETHER WE WILL FOLLOW THE SCHUYLER CASE AS A PRECEDENT AT THIS TIME.