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B-155751, JAN. 14, 1965

B-155751 Jan 14, 1965
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WE ARE MAKING AN EXCEPTION IN THIS PARTICULAR CASE. WE NEED ONLY POINT OUT THAT SUCH FACTS AND ITEMS DISCUSSED IN YOUR LETTER WOULD NOT LEAD US TO THE CONCLUSION THAT THE OFFICERS AND EMPLOYEES OF THE COLLEGE ARE EMPLOYEES OF A BUREAU OR DIVISION OF THE DEPARTMENT OF HEALTH. OR THAT THEY OTHERWISE ARE OFFICERS AND EMPLOYEES OF THE UNITED STATES GOVERNMENT FOR ALL PURPOSES OF LAW. IN THE BUREAU OF THE BUDGET'S ANNUAL ESTIMATES OF APPROPRIATIONS THE ITEMS FOR PURPOSES OF SUBSIDIZING "SALARIES AND EXPENSES" OF GALLAUDET COLLEGE ARE DESCRIBED AS BEING FOR "NON-FEDERAL EMPLOYEES. " AND THE COLLEGE IS DESCRIBED AS A "PRIVATE. DISTRICT OF COLUMBIA CODE) THE INSTITUTION WAS HELD TO BE A "PRIVATE CORPORATION.'.

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B-155751, JAN. 14, 1965

TO MR. CARL H. KNUEMANN:

YOUR LETTER OF DECEMBER 11, 1964, ENCLOSED A COPY OF THE MEMORANDUM DATED DECEMBER 10, 1964, RECEIVED FROM THE COMPTROLLER, OFFICE OF THE SECRETARY, DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE, CONCERNING THE REFUSAL OF THE PUBLIC HEALTH SERVICE TO ACCEPT TRANSFER CREDIT OF THE LEAVE UNUSED BY YOU PRIOR TO SEPTEMBER 1963 WHILE EMPLOYED BY THE GALLAUDET COLLEGE. YOU ALSO ENCLOSE COPIES OF OTHER CORRESPONDENCE AND ASK FOR OUR OPINION IN THE MATTER.

ORDINARILY YOU WOULD NOT BE ENTITLED TO A DECISION AT YOUR OWN REQUEST UPON THE MATTER HERE INVOLVED. SEE 31 U.S.C. 74, 82D. HOWEVER, BECAUSE OF THE NEED FOR A DECISION DEFINING THE STATUS OF EMPLOYEES OF GALLAUDET COLLEGE, SEVERAL INFORMAL QUESTIONS HAVING RECENTLY BEEN RAISED IN REGARD THERETO, WE ARE MAKING AN EXCEPTION IN THIS PARTICULAR CASE.

AS TO THE VIEWS YOU EXPRESS REGARDING THE CORPORATE NATURE OF GALLAUDET COLLEGE AND AS TO THE CHANNELING OF FEDERAL APPROPRIATIONS ANNUALLY TO SUPPORT THE COLLEGE, WE NEED ONLY POINT OUT THAT SUCH FACTS AND ITEMS DISCUSSED IN YOUR LETTER WOULD NOT LEAD US TO THE CONCLUSION THAT THE OFFICERS AND EMPLOYEES OF THE COLLEGE ARE EMPLOYEES OF A BUREAU OR DIVISION OF THE DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE, OR THAT THEY OTHERWISE ARE OFFICERS AND EMPLOYEES OF THE UNITED STATES GOVERNMENT FOR ALL PURPOSES OF LAW. IN THE BUREAU OF THE BUDGET'S ANNUAL ESTIMATES OF APPROPRIATIONS THE ITEMS FOR PURPOSES OF SUBSIDIZING "SALARIES AND EXPENSES" OF GALLAUDET COLLEGE ARE DESCRIBED AS BEING FOR "NON-FEDERAL EMPLOYEES," AND THE COLLEGE IS DESCRIBED AS A "PRIVATE, NONPROFIT, INSTITUTION.' FURTHER, AS TO THE CORPORATE NATURE OF GALLAUDET COLLEGE (FORMERLY COLUMBIA INSTITUTION FOR THE DEAF--- SEE CHAPTER 10, TITLE 31, DISTRICT OF COLUMBIA CODE) THE INSTITUTION WAS HELD TO BE A "PRIVATE CORPORATION.' MILLER ET AL. V. BOARD OF EDUCATION OF DISTRICT OF COLUMBIA ET AL. (1952), 106 F.SUPP. 988, 991.

WHILE UNDER SECTION 31-1022 OF THE DISTRICT OF COLUMBIA CODE THE SECRETARY OF THE DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE IS CHARGED WITH "SUPERVISION OF PUBLIC BUSINESS RELATING TO GALLAUDET COLLEGE," THE INTERNAL AFFAIRS AND ADMINISTRATION OF THE COLLEGE IS UNDER THE ,DIRECTION AND CONTROL" OF THE BOARD OF DIRECTORS COMPOSED AS DESCRIBED IN SECTION 31 -1029, WITH THE CORPORATE POWERS ENUMERATED IN SECTION 31-1030 WHEREIN SUBSECTIONS (D) AND (H) WOULD RELATE TO THE DISPOSITION TO BE MADE OF YOUR LEAVE BALANCE AT GALLAUDET COLLEGE.

WE NOTE THAT IN H.REPT. NO. 1572 TO ACCOMPANY H.R. 66555, WHICH BECAME PUB.L. 420, 83D CONGRESS, 68 STAT. 265, APPROVED JUNE 18, 1954, 31 D.C. CODE 1022-1034, ENTITLED AN ACT "TO AMEND THE CHARTER OF THE COLUMBIA INSTITUTION FOR THE DEAF, CHANGE ITS NAME, DEFINE ITS CORPORATE POWERS, AND PROVIDE FOR ITS ORGANIZATION AND ADMINISTRATION, AND FOR OTHER PURPOSES," THERE APPEAR THE FOLLOWING STATEMENTS:

"COLUMBIA INSTITUTION WAS INCORPORATED BY THE ACT OF CONGRESS APPROVED FEBRUARY 16, 1857 (11 STAT.L. 161). IT WAS AUTHORIZED TO CONFER DEGRESS BY ACT OF CONGRESS APPROVED BY PRESIDENT LINCOLN, APRIL 8, 1864 (13 STAT.L. 45). THROUGHOUT ITS HISTORY IT HAS NEVER BEEN A FEDERAL INSTRUMENTALITY ALTHOUGH MOST OF ITS FACILITIES AND SUPPORT HAS COME FROM FEDERAL APPROPRIATIONS. * * *

"THE BILL WILL LAY A SOUND UP-TO-DAY STATUTORY BASIS FOR THE INSTITUTION UNDER WHICH PLANS FOR IMPROVING ITS PLANT, STRENGTHENING ITS ACADEMIC STANDING, AND OTHERWISE INCREASING ITS USEFULNESS TO THE DEAF AND TO THE NATION CAN BE PUT INTO EFFECT WITHOUT FURTHER DELAY. THE BILL WILL PROVIDE A NEW CHARTER FOR THE INSTITUTION UNDER WHICH THE BOARD OF DIRECTORS WILL BE GIVEN FULL POWERS OVER THE INSTITUTION, INCLUDING APPOINTMENT OF OFFICERS, FACULTY MEMBERS, OR OTHER EMPLOYEES OF THE INSTITUTION (WHO ARE NOT FEDERAL EMPLOYEES, EXCEPT FOR PURPOSES OF THE CIVIL SERVICE RETIREMENT ACT), AND AUTHORITY WITH RESPECT TO THE CURRICULUM AND ALL OTHER ASPECTS OF NAGEMENT.'

"THE "VARIOUS FEDERAL EMPLOYEES BENEFITS ACTS" COVERING GALLAUDET EMPLOYEES, TO WHICH YOU REFER, MAY BE THE PROVISIONS IN 5 U.S.C. 2091 REGARDING LIFE INSURANCE, 5 U.S.C. 2251/K) REGARDING DEDUCTIONS AND SERVICE CREDIT FOR RETIREMENT ANNUITIES, AND 5 U.S.C. 3001 (A) REGARDING HEALTH BENEFITS, WHICH ARE SPECIFICALLY MADE APPLICABLE TO SUCH EMPLOYEES.

THUS, IT APPEARS THAT BY REASONS OF SOVEREIGNTY AND PUBLIC POLICY THE CONGRESS HAS RETAINED OVERSIGHT OF THE OPERATIONS OF GALLAUDET COLLEGE UNDER ITS CORPORATE CHARTER. PUBLIC FUNDS ARE APPROPRIATED ANNUALLY FOR THE BENEFIT OF THE COLLEGE AND THE LAWS CITED ABOVE GRANT TO EMPLOYEES OF THE COLLEGE PARTICIPATION IN CERTAIN PERSONAL BENEFITS. HOWEVER, OUR OPINION IS THAT SUCH ACTS BY CONGRESS DO NOT MAKE THE INSTITUTION A CORPORATION "WHOLLY OWNED OR CONTROLLED BY THE UNITED STATES," WITHIN THE MEANING OF SECTION 202/A) OF THE ANNUAL AND SICK LEAVE ACT OF 1951, 5 U.S.C. 2061/A). AND AS INDICATED ABOVE EMPLOYEES OF THE COLLEGE ARE NOT OTHERWISE TO BE REGARDED AS EMPLOYEES OF THE UNITED STATES SO AS TO COME WITHIN THE PURVIEW OF THAT ACT.

CONCERNING THE LETTER DATED SEPTEMBER 15, 1964, FROM THE BUREAU OF RETIREMENT AND INSURANCE, WHEREIN YOU WERE ADVISED THAT YOUR PERIOD OF SERVICE AT GALLAUDET COLLEGE IS CREDITABLE FOR PURPOSES OF DETERMINING YOUR LEAVE ACCRUAL CATEGORY AS AN EMPLOYEE OF THE PUBLIC HEALTH SERVICE, SEE 5 U.S.C. 2062/A).

AS TO YOUR QUESTION "CAN I SATISFY MY CLAIM THROUGH STRICTLY CIVIL ACTIONS," WE ASSUME YOU REFER TO COURT ACTIONS. IN THAT REGARD IT WOULD SEEM THAT ANY SUCH ACTION SHOULD BE BROUGHT AGAINST THE COLLEGE SINCE THE ACT OF JUNE 18, 1954, PUB.L. 420, 83D CONGRESS, SPECIFICALLY PROVIDES THAT THE COLLEGE SHALL HAVE THE RIGHT TO SUE OR BE SUED.

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