B-165378, OCT. 25, 1968

B-165378: Oct 25, 1968

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UNDER YOUR ORIGINAL CONTRACT WHICH WAS DATED MARCH 6. YOUR COMPENSATION FOR THE DAYS WORKED AS STIPULATED IN THE CONTRACTS WAS REDUCED BY THE AMOUNT OF THE CIVIL SERVICE ANNUITY YOU RECEIVED FOR SUCH DAYS UNDER THE PROVISIONS OF SECTION 13 (B) OF THE CIVIL SERVICE RETIREMENT ACT. YOUR CLAIM FOR THE AMOUNTS DEDUCTED FROM YOUR COMPENSATION UNDER THAT PROVISION IS BASED ON THE ALLEGATION THAT THE PAYMENTS MADE UNDER THE CONTRACTS WERE FEES PAID TO YOU AS AN INDEPENDENT CONTRACTOR AND NOT SALARY FOR DAYS WORKED AS AN EMPLOYEE OF THE COMMISSION. AT/30-3/-611) PROVIDED IN PARAGRAPH 1 THAT YOUR SERVICES WERE TO BE RENDERED UNDER THE DIRECTION AND GENERAL SUPERVISION OF THE COMMISSION. IN PARAGRAPH 3 THAT YOU WERE TO BE PAID AT A DAILY RATE FOR SERVICES ACTUALLY PERFORMED.

B-165378, OCT. 25, 1968

TO COOPER B. RHODES:

WE REFER TO YOUR LETTER OF SEPTEMBER 30, 1968, BY WHICH YOU REQUEST RECONSIDERATION OF THE SETTLEMENT OF OUR OFFICE DATED SEPTEMBER 19, 1968, DISALLOWING YOUR CLAIM FOR ADDITIONAL PAYMENTS INCIDENT TO THE WORK YOU PERFORMED FOR THE ATOMIC ENERGY COMMISSION BETWEEN MARCH 1963 AND JUNE 1968.

SUBSEQUENT TO YOUR RETIREMENT FROM A LEGAL POSITION WITH THE ATOMIC ENERGY COMMISSION ON MARCH 1, 1963, YOU ENTERED INTO A CONTRACT WITH THE COMMISSION FOR THE PERFORMANCE OF LEGAL SERVICES ON AN INTERMITTENT BASIS AT A SPECIFIED DAILY RATE FOR EACH DAY OF ACTUAL SERVICE. UNDER YOUR ORIGINAL CONTRACT WHICH WAS DATED MARCH 6, 1963, AND A FURTHER CONTRACT DATED APRIL 12, 1965, YOU PERFORMED SEVERAL DAYS OF SERVICE FOR THE COMMISSION. HOWEVER, YOUR COMPENSATION FOR THE DAYS WORKED AS STIPULATED IN THE CONTRACTS WAS REDUCED BY THE AMOUNT OF THE CIVIL SERVICE ANNUITY YOU RECEIVED FOR SUCH DAYS UNDER THE PROVISIONS OF SECTION 13 (B) OF THE CIVIL SERVICE RETIREMENT ACT, 5 U.S.C. 2263 (B) (1964 ED.), NOW 5 U.S.C. 8344, WHICH REQUIRES THAT SUCH REDUCTIONS BE MADE FROM SALARIES DUE REEMPLOYED ANNUITANTS. YOUR CLAIM FOR THE AMOUNTS DEDUCTED FROM YOUR COMPENSATION UNDER THAT PROVISION IS BASED ON THE ALLEGATION THAT THE PAYMENTS MADE UNDER THE CONTRACTS WERE FEES PAID TO YOU AS AN INDEPENDENT CONTRACTOR AND NOT SALARY FOR DAYS WORKED AS AN EMPLOYEE OF THE COMMISSION.

THE CONTRACT OF MARCH 6, 1963 (NO. AT/30-3/-611) PROVIDED IN PARAGRAPH 1 THAT YOUR SERVICES WERE TO BE RENDERED UNDER THE DIRECTION AND GENERAL SUPERVISION OF THE COMMISSION; IN PARAGRAPH 3 THAT YOU WERE TO BE PAID AT A DAILY RATE FOR SERVICES ACTUALLY PERFORMED; IN PARAGRAPH 8 THAT YOU WERE ENGAGED ON AN INTERMITTENT BASIS AND NOT ENTITLED TO LEAVE; IN PARAGRAPH 9 THAT THE COMPENSATION PAID YOU WAS SUBJECT TO DEDUCTION FOR "SOCIAL SECURITY" AND TO FEDERAL INCOME TAX WITHHOLDING; AND IN PARAGRAPH 10 THAT YOUR APPOINTMENT AFFIDAVITS WERE A PART OF THE CONTRACT. SIMILAR PROVISIONS WERE CONTAINED IN CONTRACT OF APRIL 12, 1965, NO. AT/30-3/- 614. THE CONTRACTS DID NOT PROVIDE THAT YOUR SERVICES WOULD BE RENDERED ON A NONPERSONAL SERVICE OR INDEPENDENT CONTRACTOR BASIS OR THAT YOU WOULD BE PAID A FEE RATHER THAN A SALARY FOR SUCH SERVICES. ON THE CONTRARY, THE CITED PROVISIONS OF YOUR CONTRACTS INDICATE THAT YOU WERE APPOINTED TO THE POSITION OF CONSULTANT WITH DUTIES, PAY AND BENEFITS AS SPECIFIED THEREIN. FURTHER, THE REPORT OF THE ATOMIC ENERGY COMMISSION WITH REGARD TO YOUR CLAIM INDICATES THAT THEY CONSIDER CONTRACTS SUCH AS THOSE UNDER WHICH YOUR SERVICES WERE OBTAINED AS CREATING AN EMPLOYEE EMPLOYER RELATIONSHIP.

THE CASE BOYLE V UNITED STATES, 159 CT. CL. 230 (1962) WHICH YOU CITE IN SUPPORT OF YOUR CLAIM INVOLVED A CONTRACT WHICH SPECIFICALLY PROVIDED THAT IT WAS TO BE PERFORMED ON AN ATTORNEY AND CLIENT OR FEE BASIS AND THAT IT WAS NOT AN APPOINTMENT. IN VIEW OF THE DISSIMILAR PROVISIONS OF THE CONTRACTS IN YOUR CASE, WE DO NOT BELIEVE THAT THE BOYLE CASE PROVIDES SUPPORT FOR PAYMENT OF YOUR CLAIM.

REGARDING THE QUESTION OF WHETHER SUPERVISION AND CONTROL WERE EXERCISED OVER YOU DURING THE PERFORMANCE OF WORK UNDER THE CONTRACTS, THE COMMISSION BY THE TERMS OF YOUR CONTRACTS RETAINED THE RIGHT TO DIRECT AND SUPERVISE YOU IN THE PERFORMANCE OF WORK THEREUNDER. EVEN IF LITTLE OR NO SUPERVISION AND CONTROL WERE EXERCISED, THE EMPLOYEE EMPLOYER RELATIONSHIP CREATED BY THE CONTRACTS WOULD NOT BE ALTERED BECAUSE THE RIGHT TO EXERCISE SUPERVISION OR CONTROL, NOT THE EXERCISE THEREOF, IS THE TEST OF WHETHER THE EMPLOYEE-EMPLOYER RELATIONSHIP EXISTS. SEE 56 C.J.S. MASTER AND SERVANT SEC. 3 (3).

FOR THE REASONS STATED THE SETTLEMENT OF SEPTEMBER 19, 1968, DISALLOWING YOUR CLAIM IS SUSTAINED.