B-144640, JAN. 3, 1961

B-144640: Jan 3, 1961

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RETIRED: REFERENCE IS MADE TO YOUR UNDATED LETTER RECEIVED HERE ON NOVEMBER 28. WHILE YOU WERE IN RECEIPT OF MILITARY RETIRED PAY. THAT YOU WERE EMPLOYED AS A FEDERAL CIVILIAN EMPLOYEE FOR THE PERIOD APRIL 25 TO JUNE 21. IT IS THE COMBINED ANNUAL RATE OF CIVILIAN COMPENSATION AND RETIRED PAY WHICH CONTROLS. A RETIRED OFFICER WHO IS EMPLOYED ON A "WHEN ACTUALLY EMPLOYED BASIS" UNDER A CONTRACT WHICH LIMITS THE HOURS OR DAYS OF WORK BUT PERMITS THE RECEIPT OF A TOTAL AMOUNT OF RETIRED PAY. IS REQUIRED TO HAVE HIS CIVILIAN COMPENSATION AND RETIRED PAY REDUCED UNDER THE ACT.'. - WHO WAS EMPLOYED AS A CONSULTANT BY THE GOVERNMENT ON A WHEN-ACTUALLY-EMPLOYED BASIS. - WAS ENTITLED TO HIS NAVY RETIRED PAY DURING THE CALENDAR YEAR 1956.

B-144640, JAN. 3, 1961

TO FIRST LIEUTENANT ARTHUR S. DICKINSON, AFUS, RETIRED:

REFERENCE IS MADE TO YOUR UNDATED LETTER RECEIVED HERE ON NOVEMBER 28, 1960, WHEREIN YOU REQUEST REVIEW OF OUR SETTLEMENT DATED OCTOBER 31, 1960, WHICH DISALLOWED YOUR CLAIM FOR REFUND OF $180.11, ADMINISTRATIVELY COLLECTED FROM YOU PURSUANT TO THE PROVISIONS OF SECTION 212 OF THE ECONOMY ACT OF JUNE 30, 1932, AS AMENDED, 5 U.S.C. 59A, BECAUSE OF YOUR EMPLOYMENT AS A FEDERAL CIVILIAN EMPLOYEE FOR THE PERIOD APRIL 25 TO JUNE 21, 1951, WHILE YOU WERE IN RECEIPT OF MILITARY RETIRED PAY.

IT APPEARS THAT YOU RETIRED APRIL 1, 1951, UNDER THE PROVISIONS OF THE ACT OF APRIL 3, 1939, 53 STAT. 557, AND THAT YOU WERE EMPLOYED AS A FEDERAL CIVILIAN EMPLOYEE FOR THE PERIOD APRIL 25 TO JUNE 21, 1951, AT A COMBINED ANNUAL RATE OF CIVILIAN COMPENSATION AND RETIRED PAY WHICH EXCEEDED THE $3,000 LIMITATION IN EFFECT THROUGH AUGUST 3, 1955, UNDER THE PROVISIONS OF SECTION 212 OF THE ECONOMY ACT.

IN 38 COMP. GEN. 774, WE HELD IN PERTINENT PART AS FOLLOWS (QUOTING FROM THE SYLLABUS):

"IN DETERMINING THE APPLICABILITY OF THE DUAL COMPENSATION LIMITATION IN SECTION 212 OF THE ECONOMY ACT OF 1932, 5 U.S.C. 59A, IT IS THE COMBINED ANNUAL RATE OF CIVILIAN COMPENSATION AND RETIRED PAY WHICH CONTROLS, IRRESPECTIVE OF THE NUMBER OF DAYS OF WORK IN THE CIVILIAN POSITION, AND NOT THE TOTAL AMOUNT OF CIVILIAN COMPENSATION AND RETIRED PAY RECEIVED DURING THE YEAR OR FRACTION OF A YEAR; THEREFORE, A RETIRED OFFICER WHO IS EMPLOYED ON A "WHEN ACTUALLY EMPLOYED BASIS" UNDER A CONTRACT WHICH LIMITS THE HOURS OR DAYS OF WORK BUT PERMITS THE RECEIPT OF A TOTAL AMOUNT OF RETIRED PAY, PLUS CIVILIAN COMPENSATION WHICH EXCEEDS THE $3,000 LIMITATION, IN EFFECT THROUGH AUGUST 3, 1955 OR THE $10,000 LIMITATION, WHICH BECAME EFFECTIVE ON AUGUST 4, 1955, IS REQUIRED TO HAVE HIS CIVILIAN COMPENSATION AND RETIRED PAY REDUCED UNDER THE ACT.'

IN YOUR LETTER YOU REFER TO THE DECISION IN THE CASE OF GARRET L. SCHUYLER V. UNITED STATES, CT.CL.NO. 548-58, DECIDED JANUARY 20, 1960. THE COURT HELD IN THE SCHUYLER CASE THAT THE PLAINTIFF--- WHO WAS EMPLOYED AS A CONSULTANT BY THE GOVERNMENT ON A WHEN-ACTUALLY-EMPLOYED BASIS, AT THE RATE OF $50 PER DAY, WITH A LIMIT OF 130 DAYS' EMPLOYMENT PER YEAR--- WAS ENTITLED TO HIS NAVY RETIRED PAY DURING THE CALENDAR YEAR 1956, NOTWITHSTANDING THE FACT THAT HIS COMBINED CIVILIAN COMPENSATION AND RETIRED PAY EXCEEDED THE RATE OF $10,000 PER ANNUM, WHICH BECAME EFFECTIVE ON AUGUST 4, 1955, UNDER THE PROVISIONS OF SECTION 212, AS AMENDED. THE COURT'S OPINION WAS BASED ON THE CONCLUSION THAT WHEN BOTH PARAGRAPHS (A) AND (B) OF SECTION 212 "ARE READ TOGETHER AND INTERPRETED TOGETHER IT BECOMES CLEAR THAT IT WAS THE INTENTION OF THE CONGRESS TO MAKE THE STATUTE INAPPLICABLE TO CASES WHERE THE ACTUAL CIVILIAN PAY PLUS RETIRED PAY AMOUNTS TO LESS THAN $10,000.'

THE CONCLUSION REACHED BY THE COURT IS INCONSISTENT WITH OUR CONTEMPORANEOUS AND CONSISTENT CONSTRUCTION OF SECTION 212, NAMELY, THAT IT IS THE ANNUAL RATE OF CIVILIAN COMPENSATION AND RETIRED PAY WHICH IS CONTROLLING IN SUCH CASES. CF. 12 COMP. GEN. 256 AND 38 COMP. GEN. 774. IN VIEW OF THE MANY UNCERTAINTIES AS TO THE GENERAL INTERPRETATION WHICH SHOULD BE GIVEN SECTION 212 UNDER THE DECISION REACHED IN THE SCHUYLER CASE, WE HAVE TAKEN THE VIEW THAT UNTIL THE DECISION IN THAT CASE HAS BEEN EXPLAINED AND AMPLIFIED BY THE COURT, THERE WOULD BE NO BASIS FOR CHANGING OUR PRIOR DECISIONS RELATING TO THE APPLICATION OF SECTION 212 ON THE BASIS OF THAT DECISION. IT HAS BEEN DETERMINED, THEREFORE, THAT THE RULES SET FORTH IN OUR PRIOR DECISIONS (SEE 38 COMP. GEN. 774) WILL CONTINUE TO BE APPLIED PENDING A CLARIFICATION OF THE POSITION TAKEN BY THE COURT IN THE SCHUYLER CASE. B-136959, B-143431, DATED SEPTEMBER 29, 1960, 40 COMP. GEN. 193.