B-125250, SEP. 1, 1955

B-125250, SEP. 1, 1955

TO MISS DOROTHY J. AUSTIN, AUTHORIZED CERTIFYING OFFICER, FEDERAL CIVIL DEFENSE ADMINISTRATION:

YOUR LETTER OF AUGUST 15, 1955, REQUESTS OUR DECISION WHETHER MR. JAMES H. DEFANDORF MAY BE PAID COMPENSATION AS CONSULTANT AT $40 PER DAY UNDER AN APPOINTMENT OF JUNE 2, 1955 (UPON AN INTERMITTENT BASIS NOT TO EXCEED 130 DAYS IN ANY ONE YEAR) WHILE HE ALSO IS IN RECEIPT OF $305.35 PER MONTH RETIRED PAY AS RETIRED ARMY OFFICER, AND $217 PER MONTH AS CIVIL SERVICE ANNUITY AS A RETIRED CIVILIAN EMPLOYEE.

REGARDING THE RIGHT OF A CERTIFYING OFFICER TO OBTAIN A DECISION BY THE COMPTROLLER GENERAL WHERE, AS HERE, THE SUBMISSION IS NOT ACCOMPANIED BY THE VOUCHER PRESENTED TO THE CERTIFYING OFFICER FOR CERTIFICATION, SEE 21 COMP. GEN. 1128. FOR PURPOSES OF THIS CASE IT IS ASSUMED THAT THERE IS BEFORE YOU A VOUCHER FOR CERTIFICATION INVOLVING THE QUESTIONS PRESENTED BY YOU.

ACCORDING TO THE OFFICIAL ARMY REGISTER MR. DEFANDORF WAS RETIRED APRIL 30, 1952, UNDER TITLE III ACT OF JUNE 29, 1948, 62 STAT. 1081 1087, AS A RESERVE OFFICER.

IN 28 COMP. GEN. 367, WE HELD, QUOTING FROM THE SYLLABUS:

"THE PAYMENT OF RETIRED PAY UNDER TITLE III OF THE ARMY AND AIR FORCE VITALIZATION AND RETIREMENT EQUALIZATION ACT OF 1948 TO RESERVE OFFICERS ON INACTIVE DUTY, WHO ALSO OCCUPY FEDERAL CIVILIAN POSITIONS THE COMPENSATION ATTACHED TO WHICH EQUALS OR EXCEEDS $2,500 PER ANNUM, NEED NOT BE REGARDED AS IN CONTRAVENTION OF THE DUAL EMPLOYMENT RESTRICTION IN THE ACT OF JULY 31, 1894, AS AMENDED.

"COMMISSIONED RESERVE OFFICERS RETIRED UNDER TITLE III OF THE ARMY AND AIR FORCE VITALIZATION AND RETIREMENT EQUALIZATION ACT OF 1948, WITH RETIRED PAY COMPUTED ON THE BASIS OF THEIR HIGHEST GRADES, AND WHO ALSO HOLD CIVILIAN POSITIONS WITH THE FEDERAL GOVERNMENT, ARE TO BE REGARDED AS RECEIVING RETIRED PAY "FOR OR ON ACCOUNT OF SERVICES AS A COMMISSIONED OFFICER" WITHIN THE MEANING OF SECTION 212 OF THE ECONOMY ACT OF JUNE 30, 1932, AS AMENDED, SO AS TO BE PROHIBITED FROM RECEIVING COMBINED RETIRED PAY AND CIVILIAN COMPENSATION IN EXCESS OF $3,000 PER ANNUM.'

THE ACT OF AUGUST 4, 1955, PUBLIC LAW 239, AMENDED SECTION 212 OF THE ECONOMY ACT REFERRED TO IN THE DECISION SUBSTITUTING $10,000 FOR $3,000 WHEREVER THE LESSER FIGURE APPEARS IN THAT SECTION. AS MR. DEFANDORF'S RETIRED ARMY PAY AMOUNTS TO OVER $3,000 HE WOULD NOT BE ENTITLED UNDER THE ABOVE DECISION TO ANY CIVILIAN COMPENSATION FOR SERVICES RENDERED PRIOR TO AUGUST 4, 1955, SO LONG AS HE CONTINUED IN RECEIPT OF RETIRED PAY. COMP. GEN. 381. OF COURSE HE COULD UNDER THE STATUTE ELECT TO RECEIVE EITHER THE CIVILIAN PAY OR THE RETIRED PAY ON THE DAYS HE RENDERED SERVICE. BUT, ON AND AFTER AUGUST 4, 1955, THE RECEIPT OF ARMY RETIRED PAY WOULD NOT BAR THE RECEIPT OF CIVILIAN COMPENSATION SO LONG AS THE COMBINED RATE DOES NOT EXCEED $10,000 PER YEAR.

HOWEVER, THERE ALSO IS FOR CONSIDERATION THE RIGHT TO CIVILIAN RETIRED PAY AND COMPENSATION AS A CONSULTANT. SECTION 2/B) OF THE CIVIL SERVICE RETIREMENT ACT, AS AMENDED BY THE ACT OF FEBRUARY 28, 1948, 62 STAT. 48, PROVIDES IN PERTINENT PART:

"/B) NO PERSON WHO IS RECEIVING AN ANNUITY UNDER THE PROVISIONS OF THIS ACT AND WHO HAS REACHED THE AGE OF SIXTY YEARS SHALL BE ELIGIBLE AGAIN TO APPOINTMENT TO ANY APPOINTIVE OFFICE, POSITION, OR EMPLOYMENT UNDER THE GOVERNMENT OF THE UNITED STATES OR OF THE DISTRICT OF COLUMBIA, UNLESS THE APPOINTING AUTHORITY DETERMINES THAT HE IS POSSESSED OF SPECIAL QUALIFICATIONS: PROVIDED, THAT NO DEDUCTIONS FOR THE RETIREMENT FUND SHALL BE WITHHELD FROM THE SALARY, PAY, OR COMPENSATION OF SUCH PERSON, BUT THERE SHALL BE DEDUCTED FROM HIS SALARY, PAY, OR COMPENSATION OTHERWISE PAYABLE A SUM EQUAL TO THE RETIREMENT ANNUITY ALLOCABLE TO THE PERIOD OF ACTUAL EMPLOYMENT: PROVIDED FURTHER, THAT THE ANNUITY IN SUCH CASE SHALL NOT BE REDETERMINED UPON SUCH PERSON'S SUBSEQUENT SEPARATION FROM THE SERVICE. * * *"

ACCORDINGLY, IF MR. DEFANDORF IS OVER 60 YEARS OF AGE ANY CIVILIAN COMPENSATION HE MAY RECEIVE IS REQUIRED TO BE REDUCED BY THE AMOUNT OF CIVIL SERVICE ANNUITY ALLOCABLE TO THE PERIOD OF ACTUAL EMPLOYMENT; THAT IS, EACH DAY HE DRAWS CIVILIAN COMPENSATION HIS COMPENSATION MUST BE REDUCED BY THE AMOUNT OF THE CIVIL SERVICE ANNUITY FOR THAT DAY.

THE QUESTION OF THE RIGHT OF RETIRED RESERVE OFFICERS TO BE EXEMPTED FROM ALL DUAL COMPENSATION STATUTES IS PENDING BEFORE THE COURT IN THE CASE OF TANNER V. UNITED STATES, C.CLS. 543-53, IN WHICH FINAL JUDGMENT IN FAVOR OF THE CLAIMANT WAS ENTERED BY THE COURT OF CLAIMS MAY 3, 1955, BUT WE ARE INFORMALLY ADVISED THAT A PETITION FOR CERTIORARI HAS BEEN FILED IN THE SUPREME COURT OF THE UNITED STATES BY THE DEPARTMENT OF JUSTICE. ACCORDINGLY, ANY DECISION OR OPINION HERE EXPRESSED REGARDING THE OPERATION OF SECTION 212 OF THE ECONOMY ACT OF 1932 ABOVE REFERRED TO, WILL BE SUBJECT TO REVISION SHOULD THE UNITED STATES SUPREME COURT SUSTAIN THE RULING OF THE LOWER COURT.