B-208417 L/M, AUG 30, 1982

B-208417 L/M, AUG 30, 1982

PRECIS-UNAVAILABLE

DAVID L. BOREN, UNITED STATES SENATE:

WE REFER AGAIN TO YOUR SUBMISSION OF JULY 21, 1982, WITH ENCLOSURES, ON BEHALF OF MR. DONALDSON COOK, A RETIRED FEDERAL AVIATION ADMINISTRATION (FAA) EMPLOYEE, WHO QUESTIONS THE COMPUTATION OF HIS CREDITABLE FEDERAL SERVICE FOR PURPOSES OF THE CIVIL SERVICE RETIREMENT ACT (5 U.S.C. 8331, ET SEQ.).

IN HIS LETTER DATED FEBRUARY 6, 1982, MR. COOK STATES THAT HE SERVED IN THE UNITED STATES ARMY FROM 1940 TO 1945, AND WORKED FOR THE FAA FROM 1961 TO 1979. MR. COOK STATES THAT FROM 1951 TO 1960 HE WORKED FOR ANDERSON AIR ACTIVITIES AT MALDEN AIR BASE IN MALDEN, MISSOURI. HE CONTENDS THAT ALTHOUGH ANDERSON AIR ACTIVITIES PROVIDED SERVICES UNDER CONTRACT TO THE AIR FORCE, ANDERSON EMPLOYEES CONSIDERED THEMSELVES TO BE WORKING FOR THE FEDERAL GOVERNMENT.

MR. COOK ADVISES THAT HE RETIRED IN 1979 BELIEVING THAT HIS EMPLOYMENT AT MALDEN AIR BASE WOULD COUNT TOWARD HIS CIVIL SERVICE RETIREMENT ANNUITY. HOWEVER, THE OFFICE OF PERSONNEL MANAGEMENT DETERMINED THAT MR. COOK SHOULD NOT BE CREDITED FOR THAT TIME SINCE HE WAS NOT A FEDERAL EMPLOYEE WHILE WORKING AT MALDEN. MR. COOK QUESTIONS THE CORRECTNESS OF THIS DETERMINATION AND CONTENDS THAT HIS NINE YEARS AT MALDEN AIR BASE CONSTITUTES FEDERAL EMPLOYMENT. ACCORDINGLY, YOU HAVE ASKED US TO DETERMINE WHETHER THE OFFICE OF PERSONNEL MANAGEMENT CORRECTLY INTERPRETED THE CIVIL SERVICE RETIREMENT ACT IN COMPUTING MR. COOK'S ANNUITY.

WHAT CONSTITUTES CREDITABLE SERVICE FOR PURPOSES OF THE CIVIL SERVICE RETIREMENT ACT IS A MATTER WITHIN THE JURISDICTION OF THE OFFICE OF PERSONNEL MANAGEMENT. ACCORDINGLY, WE DO NOT HAVE AUTHORITY TO REVIEW OR MODIFY THEIR DETERMINATIONS WITH RESPECT TO SUCH MATTERS. SEE 5 U.S.C. 8347; MATTER OF FILOMENO Q. ORTIZ, B-193337, JANUARY 4, 1979; AND 55 COMP.GEN. 684, 687-688 (1976).

MR. COOK IS NOT WITHOUT RECOURSE IF HE DISAGREES WITH THE OFFICE OF PERSONNEL MANAGEMENT'S DETERMINATION IN HIS CASE. SUBSECTION 8347(D) OF TITLE 5, U.S.C. PERMITS AN INDIVIDUAL TO APPEAL TO THE MERIT SYSTEMS PROTECTION BOARD ANY ADMINISTRATIVE ACTIONS OR ORDER RELATING TO HIS RETIREMENT BENEFITS. ALSO, WITHIN 30 DAYS OF THE RECEIPT OF OFFICIAL NOTICE OF A FINAL ORDER OR DECISION OF THE MERIT SYSTEMS PROTECTION BOARD, THE EMPLOYEE MAY SEEK JUDICIAL REVIEW BY THE UNITED STATES COURT OF CLAIMS OR A UNITED STATES COURT OF APPEALS. 5 U.S.C. 7703 (SUPP. III 1979).

ALTHOUGH WE CANNOT DISTURB THE DETERMINATION OF THE OFFICE OF PERSONNEL MANAGEMENT AND THE APPROPRIATE AVENUE FOR MR. COOK TO HAVE THEIR DETERMINATION REVIEWED IS AS OUTLINED ABOVE, WE OFFER THE FOLLOWING INFORMATION.

SECTION 8331 OF TITLE 5, U.S.C. PROVIDES IN PERTINENT PART, THAT AN "EMPLOYEE" FOR PURPOSES OF CIVIL SERVICE RETIREMENT MEANS AN EMPLOYEE AS DEFINED BY SECTION 2105 OF TITLE 5. SECTION 2105 OF TITLE 5, U.S.C. PROVIDES IN PERTINENT PART THAT FOR PURPOSES OF TITLE 5, "EMPLOYEE," EXCEPT AS OTHERWISE PROVIDED IN THAT SECTION OR WHEN SPECIFICALLY MODIFIED, MEANS AN INDIVIDUAL WHO IS (1) APPOINTED IN THE CIVIL SERVICE BY A MEMBER OF A UNIFORMED SERVICE OR A FEDERAL EMPLOYEE, (2) ENGAGED IN THE PERFORMANCE OF A FEDERAL FUNCTION UNDER AUTHORITY OF LAW OR AN EXECUTIVE ACT, AND (3) SUBJECT TO THE SUPERVISION OF A MEMBER OF A UNIFORMED SERVICE OR A FEDERAL EMPLOYEE. AN INDIVIDUAL MUST MEET ALL THREE CRITERIA OF THIS STATUTORY DEFINITION IN ORDER TO BE CONSIDERED A FEDERAL EMPLOYEE. BAKER V. UNITED STATES, 222 CT.CL., 614 F.2D 263, 266 (1980).

WE NOTE THAT IN HIS CONTENTION THAT HE WAS A FEDERAL EMPLOYEE DURING THE PERIOD THAT HE WORKED FOR ANDERSON AIR ACTIVITIES AT MALDEN AIR BASE MR. COOK HAS EMPHASIZED THE SO-CALLED PELLERZI ELEMENTS WHICH WERE SET FORTH IN OCTOBER 1967 BY THE GENERAL COUNSEL OF THE CIVIL SERVICE COMMISSION (NOW OFFICE OF PERSONNEL MANAGEMENT). IN COSTNER V. UNITED STATES, CT.CL. NO. 167-79C, NOVEMBER 18, 1981, THE COURT REJECTED THE PLAINTIFF'S ARGUMENTS THAT AN APPOINTMENT IN THE FEDERAL CIVIL SERVICE EXISTS WHEN THE PELLERZI ELEMENTS - WHICH RELATE PRIMARILY TO THE STATUTORY CRITERION OF SUPERVISION, ESSENTIALLY THE COMMON-LAW TEST FOR THE MASTER-SERVANT RELATIONSHIP - HAVE BEEN SATISFIED. THE COURT POINTED OUT THAT THE FEDERAL STATUTE WITH ITS THREE CRITERIA FOR FEDERAL EMPLOYMENT EXPRESSLY GOES BEYOND THE COMMON-LAW TEST FOR EMPLOYMENT.

WE TRUST THIS INFORMATION WILL SERVE THE PURPOSE OF YOUR INQUIRY. AS YOU REQUESTED WE ARE RETURNING THE ENCLOSURES YOU SENT US, AND WE ARE ALSO ENCLOSING COPIES OF THE DECISIONS CITED IN THIS LETTER.