A-54174, APRIL 9, 1934, 13 COMP. GEN. 270

A-54174, APRIL 9, 1934, 13 COMP. GEN. 270

RETIRED EMPLOYEES SERVING AS STAR ROUTE MAIL CONTRACTORS SECTION 7 OF THE CIVIL RETIREMENT ACT, AMENDED BY THE ACT OF MAY 29, 1930, 46 STAT. 474, AND SECTION 8 (A) OF THE ACT OF JUNE 16, 1933, 48 STAT. 305, PROHIBITING REEMPLOYMENT OF RETIRED PERSONNEL, DO NOT PROHIBIT A RETIRED EMPLOYEE FROM ENTERING INTO A STAR ROUTE CONTRACT FOR CARRYING THE MAIL.

COMPTROLLER GENERAL MCCARL TO THE ADMINISTRATOR OF VETERANS' AFFAIRS, APRIL 9, 1934:

THERE HAS BEEN RECEIVED YOUR LETTER OF MARCH 3, 1934, AS FOLLOWS:

SECTION 7 OF THE CIVIL SERVICE RETIREMENT ACT AS AMENDED MAY 29, 1930, 46 STAT. 474, PROVIDES THAT:

"SHOULD AN ANNUITANT UNDER THE PROVISIONS OF THIS SECTION BE REEMPLOYED IN A POSITION INCLUDED IN THE PROVISIONS OF THIS ACT, OR IN ANY OTHER POSITION IN THE GOVERNMENT SERVICE, THE ANNUITY SHALL CEASE, AND ALL RIGHTS AND BENEFITS UNDER THE PROVISIONS OF THIS SECTION SHALL TERMINATE FROM AND AFTER THE DATE OF SUCH EMPLOYMENT.'

SECTIONS 8 (A) OF THE INDEPENDENT OFFICES APPROPRIATION ACT, 1934, APPROVED JUNE 16, 1933 (PUBLIC, NO. 78, 73D CONGRESS), PROVIDES THAT--

"IF AND WHEN ANY SUCH ANNUITANT SHALL BE REEMPLOYED IN THE SERVICE OF THE DISTRICT OF COLUMBIA OR THE UNITED STATES (INCLUDING ANY CORPORATION, THE MAJORITY OF THE STOCK OF WHICH IS OWNED BY THE UNITED STATES) THE RIGHT TO THE ANNUITY PROVIDED BY THIS SECTION SHALL CEASE AND THE SUBSEQUENT ANNUITY RIGHTS OF SUCH PERSON SHALL BE DETERMINED IN ACCORDANCE WITH THE APPLICABLE PROVISIONS OF RETIREMENT LAW EXISTING AT THE TIME OF THE SUBSEQUENT SEPARATION OF SUCH PERSON FROM THE SERVICE.'

IN YOUR DECISION (A-50660) DATED AUGUST 23, 1933 (13 COMP. GEN. 54, 56), YOU ADVISED THE ADMINISTRATOR, NATIONAL RECOVERY ADMINISTRATION, THAT "IN NO CASE MAY BOTH RETIREMENT ANNUITY AND CIVILIAN COMPENSATION BE PAID TO THE SAME PERSON FOR THE SAME PERIOD OF TIME. (SEE 10 COMP. GEN. 309.)

THE QUESTION HAS ARISEN AS TO WHETHER A CIVIL-SERVICE ANNUITANT, UNDER SECTION 8 (A) OF THE INDEPENDENT OFFICES APPROPRIATION ACT, 1934, SUPRA, WOULD BE REQUIRED TO GIVE UP HIS ANNUITY UPON BEING AWARDED A CONTRACT FOR STAR ROUTE MAIL SERVICE IN THE POST OFFICE DEPARTMENT. YOUR DECISION IS RESPECTFULLY REQUESTED AS TO WHETHER THE HOLDER OF A CONTRACT FOR STAR ROUTE MAIL SERVICE HAS BEEN REEMPLOYED IN A POSITION "IN THE GOVERNMENT SERVICE" OR "IN THE SERVICE OF * * * THE UNITED STATES" WITHIN THE MEANING OF THE STATUTORY PROVISIONS ABOVE QUOTED SO AS TO CAUSE THE DISCONTINUANCE OF THE PAYMENT OF ANNUITY BENEFITS IN THOSE CASES IN WHICH A CIVIL SERVICE ANNUITANT IS AWARDED A CONTRACT FOR AND PERFORMS THE DUTIES INCIDENT TO STAR ROUTE MAIL SERVICE IN THE POST OFFICE DEPARTMENT.

SECTION 1822, POSTAL LAWS AND REGULATIONS, 1932, PROVIDES AS FOLLOWS:

THE TERM "STAR ROUTE" SHALL MEAN A POST ROUTE ON WHICH THE MAILS ARE CARRIED UNDER A FORMAL CONTRACT AWARDED TO THE LOWEST BIDDER TENDERING SUFFICIENT GUARANTIES FOR FAITHFUL PERFORMANCE IN ACCORDANCE WITH THE TERMS OF THE ADVERTISEMENT, AND REQUIRING DUE CELERITY, CERTAINTY, AND SECURITY IN THE PERFORMANCE OF THE SERVICE.

SEE, ALSO, SECTIONS 1783 TO 1849 OF SAID POSTAL LAWS AND REGULATIONS, AND SECTIONS 481 AND 493, UNITED STATES CODE. AS THESE STATUTES AND REGULATIONS PROVIDE THAT A STAR ROUTE CONTRACT IS TO BE AWARDED TO THE LOWEST RESPONSIBLE BIDDER AFTER ADVERTISING, THAT BONDS ARE REQUIRED FOR THE FAITHFUL PERFORMANCE OF THE CONTRACT, THAT THE CONTRACT REQUIRES PERFORMANCE OF PERSONAL SERVICE ONLY AS INCIDENT TO THE FURNISHING OF THE EQUIPMENT FOR CARRYING THE MAIL IN ACCORDANCE WITH THE ADVERTISED SPECIFICATIONS, AND THAT WHILE THE CONTRACTOR IS RESPONSIBLE FOR THE FAITHFUL PERFORMANCE OF THE CONTRACT UNDER HIS BOND, HE IS NOT NECESSARILY REQUIRED TO SERVE PERSONALLY AS THE DRIVER OF THE EQUIPMENT USED IN CARRYING THE MAIL. THERE IS LACKING IN THE ARRANGEMENT BETWEEN THE CONTRACTOR AND THE GOVERNMENT THE ESSENTIAL ELEMENTS OF AN EMPLOYMENT OR POSITION IN THE FEDERAL SERVICE AS THOSE TERMS ARE ORDINARILY UNDERSTOOD AND APPLIED, SUCH AS AN OATH OF OFFICE, PERSONAL PERFORMANCE OF THE SERVICE UNDER DIRECT SUPERVISION OF A SUPERIOR, ETC.

IT CANNOT BE HELD, THEREFORE, THAT A STAR ROUTE CONTRACTOR IS "REEMPLOYED IN A POSITION" WITHIN THE MEANING OF SECTION 7 OF THE CIVIL RETIREMENT ACT, AS AMENDED BY THE ACT OF MAY 29, 1930, OR ,REEMPLOYED IN THE SERVICE" WITHIN THE MEANING OF THE PROVISIONS OF SECTION 8 (A) OF THE ACT OF JUNE 16, 1933, QUOTED IN YOUR LETTER.