B-14010, FEBRUARY 12, 1941, 20 COMP. GEN. 443

B-14010, FEBRUARY 12, 1941, 20 COMP. GEN. 443

RETIREMENT - CIVILIAN - EFFECT OF REEMPLOYMENT AS PROJECT WORKER OR CIVILIAN CONSERVATION CORPS ENROLLEE THE STATUTORY PROVISIONS PROHIBITING PAYMENT OF RETIREMENT ANNUITY UNDER THE CIVIL SERVICE RETIREMENT LAW AFTER REEMPLOYMENT OF THE ANNUITANT DO NOT REQUIRE SUSPENSION OF THE ANNUITY BY REASON OF REEMPLOYMENT AS A "WORK -RELIEF PROJECT WORKER" OR " CIVILIAN CONSERVATION CORPS ROLLEE," EMPLOYMENT OF THIS CHARACTER HAVING BEEN EXCLUDED BY CIVIL SERVICE COMMISSION CIRCULAR NO. 77, JULY 25, 1940, FROM CREDIT IN THE COMPUTATION OF ANNUITIES AS NOT HAVING BEEN RENDERED BY ,EMPLOYEES OF THE GOVERNMENT" WITHIN THE MEANING OF THE RETIREMENT LEGISLATION.

COMPTROLLER GENERAL WARREN TO THE PRESIDENT, UNITED STATES CIVIL SERVICE COMMISSION, FEBRUARY 12, 1941:

THERE HAVE BEEN CONSIDERED THE MATTERS SUBMITTED IN YOUR LETTER OF DECEMBER 10, 1940, AS OLLOWS:

THE COMMISSION DESIRES TO REFER TO NUMEROUS DECISIONS BY YOUR OFFICE HOLDING THAT IN NO CASE MAY BOTH RETIREMENT ANNUITY AND CIVILIAN COMPENSATION BE PAID TO THE SAME PERSON FOR THE SAME PERIOD OF TIME, ONE OF WHICH (14 COMP. GEN. 285) STATES THAT THIS PRINCIPLE IS APPLICABLE TO ANY REEMPLOYMENT IN ANY CAPACITY IN THE GOVERNMENT CIVIL SERVICE WHICH MAY BE COUNTED TOWARD LONGEVITY IN COMPUTING RETIREMENT ANNUITY.

IN THE ADMINISTRATION OF THE CIVIL SERVICE RETIREMENT LAW CONSIDERABLE DIFFICULTY IS EXPERIENCED IN DETERMINING THE PROPER ACTION TO BE TAKEN UPON THE REEMPLOYMENT OF CERTAIN ANNUITANTS. FOR EXAMPLE, AN ANNUITANT (WHO HAS NOT ATTAINED SUPERANNUATION RETIREMENT AGE) MAY ENTER EMPLOYMENT WHICH IS NOT CREDITABLE FOR RETIREMENT PURPOSES, OR IS NOT GOVERNMENT SERVICE WITHIN THE MEANING OF THE LEAVE STATUTES AND REGULATIONS, BUT THE SALARY, IF THE INDIVIDUAL WERE SERVING IN A DUAL CAPACITY, WOULD BE ILLEGAL UNDER THE ACT OF MAY 10, 1916, AS AMENDED.

THE COMMISSION HAS BEFORE IT THE QUESTION OF WHETHER ANNUITY SHOULD BE SUSPENDED DURING THE FOLLOWING TYPES OF EMPLOYMENT, OR IF THE ANNUITANT INVOLVED COULD CONTINUE IN RECEIPT OF RETIREMENT BENEFITS WHILE SO SERVING:

ASSISTANT EDUCATIONAL ADVISER (ENROLLEE) IN A CIVILIAN CONSERVATION CORPS CAMP; $30 TO $36 PER MONTH.

TIMEKEEPER ON COUNTY W.P.A. PROJECT; $55 PER MONTH.

STATISTICIAN IN W.P.A. PROJECT--- SERVED IN BUREAU OF LABOR STATISTICS, DEPARTMENT OF LABOR; $70 TO $79 PER MONTH.

W.P.A. INTERVIEWER OR INVESTIGATOR--- APPOINTED BY STATE ADMINISTRATOR; $85 PER MONTH.

CLERK IN W.P.A. PROJECT IN COUNTY ASSESSOR'S OFFICE; $70 TO $79 PER MONTH.

CLERK IN CITY W.P.A. PROJECT--- COMPILING CITY ORDINANCES; $79 PER MONTH.

TEACHER IN COUNTY HIGH SCHOOL--- W.P.A. EDUCATIONAL PROJECT; $77 PER MONTH.

ACCOUNTANT, COUNTY W.P.A. PROJECT; $70 TO $85 PER MONTH.

THE STATE ADMINISTRATOR, WORK PROJECTS ADMINISTRATION, ADVISES THAT THE ANNUITANT IN QUESTION WAS NOT AT ANY TIME CARRIED ON THE ADMINISTRATIVE PAY ROLL. UNDER THESE CONDITIONS NONE OF THE SERVICE REFERRED TO IS CONSIDERED GOVERNMENT SERVICE WITHIN THE MEANING OF THE RETIREMENT ACT OR THE CIVIL SERVICE ACT AND RULES; SEE IN THIS CONNECTION RETIREMENT CIRCULAR NO. 77, SUPPLEMENT NO. 3, COPY ATTACHED.

UNLESS THE PRESENT PRACTICE OF SUSPENDING ANNUITY PAYMENTS UPON REEMPLOYMENT IS AFFECTED BY THE COURT OF CLAIMS' DECISION DATED JANUARY 8, 1940 IN THE CASE OF WILLIAM W. BRUNSWICK V. UNITED STATES, THE COMMISSION WOULD APPRECIATE IF YOUR OFFICE WOULD LAY DOWN A GENERAL RULE TO GOVERN THE ACTION IN SUCH CASES. YOUR PARTICULAR DECISION WITH RESPECT TO THE SERVICE LISTED IN THIS SUBMISSION IS ALSO RESPECTFULLY REQUESTED.

THE DECISION CITED IN YOUR LETTER, 14 COMP. GEN. 285, INVOLVED THE REEMPLOYMENT OF A PERSON RETIRED FOR DISABILITY PURSUANT TO SECTION 6 OF THE CIVIL RETIREMENT ACT OF MAY 29, 1930, 46 STAT. 472. REFERENCE WAS MADE TO THE STATEMENT IN THE PRIOR DECISION, 13 COMP. GEN. 54. THAT IN NO CASE MAY BOTH RETIREMENT ANNUITY AND CIVILIAN COMPENSATION BE PAID TO THE SAME PERSON FOR THE SAME PERIOD OF TIME AND IT WAS SAID THAT---

THIS PRINCIPLE IS APPLICABLE TO ANY REEMPLOYMENT IN ANY CAPACITY IN THE GOVERNMENT CIVIL SERVICE WHICH MAY BE COUNTED TOWARD LONGEVITY IN COMPUTING RETIREMENT ANNUITY, INCLUDING SERVICE WITH GOVERNMENT-OWNED CORPORATIONS. * * * ( ITALICS SUPPLIED.)

THE "TYPES OF EMPLOYMENT" LISTED IN YOUR LETTER ALL APPEAR TO BE WITHIN THE CATEGORIES OF ,WORK-RELIEF PROJECT WORKERS" OR " CIVILIAN CONSERVATION CORPS ENROLLEES," AS TO WHICH CIVIL SERVICE COMMISSION CIRCULAR NO. 77, SUPPLEMENT NO. 3, JULY 25, 1940, PROVIDES, IN PART, AS FOLLOWS:

RECONSIDERATION HAS BEEN GIVEN BY THE COMMISSION TO THE STATUS OF PERSONS EMPLOYED ON WORK-RELIEF PROJECTS SPONSORED BY A REGULAR FEDERAL ESTABLISHMENT WHERE SERVICE IS RENDERED IN OR FOR THE BENEFIT OF SUCH ESTABLISHMENT. THE COMMISSION IS OF THE OPINION THAT WORK RELIEF PROJECT WORKERS ARE NOT EMPLOYEES OF THE GOVERNMENT. HENCE, PURELY RELIEF OR PROJECT SERVICE RENDERED IN OR FOR THE BENEFIT OF REGULAR FEDERAL ESTABLISHMENTS WILL NO LONGER BE CREDITED FOR RETIREMENT AND REINSTATEMENT PURPOSES. * * *

RECONSIDERATION HAS BEEN GIVEN BY THE COMMISSION TO THE CREDITABILITY OF SERVICE AS CIVILIAN CONSERVATION CORPS ENROLLEE FOR RETIREMENT AND REINSTATEMENT PURPOSES. THE COMMISSION HAS HELD THAT SUCH SERVICE IS NOT CREDITABLE FOR CLASSIFICATION PURPOSES BECAUSE CIVILIAN CONSERVATION CORPS ENROLLEES ARE NOT GOVERNMENT EMPLOYEES. HENCE, SERVICE AS CIVILIAN CONSERVATION CORPS ENROLLEE WILL NO LONGER BE CREDITABLE FOR RETIREMENT AND REINSTATEMENT PURPOSES.

THESE PROVISIONS ARE IN CONSONANCE WITH NUMEROUS DECISIONS AS TO THE STATUS OF WORK-RELIEF WORKERS AND CIVILIAN CONSERVATION CORPS ENROLLEES. SEE 15 COMP. GEN. 1058; ID. 1129; 16 ID. 181; ID. 394; 17 ID. 179; ID 276; ID 351; ID. 359; ID. 904; 19 ID. 383. COMPARE 17 COMP. GEN. 238; 18 ID. 716, 720. WORK-RELIEF PROJECT WORKERS AND CIVILIAN CONSERVATION CORPS ENROLLEES ARE NOT APPOINTED AS OFFICERS OR EMPLOYEES OF THE UNITED STATES, 16 COMP. GEN. 181; ID. 394; 17 ID. 351, AND IT MAKES NO DIFFERENCE IN THEIR STATUTE IN THIS RESPECT THAT THEY MAY BE ASSIGNED TO "WHITE COLLAR" OR SUPERVISORY WORK AND PAID ON A DIFFERENT SCALE THAN THOSE PERFORMING MECHANICAL OR OTHER WORK. 15 COMP. GEN. 1129. DECISION OF SEPTEMBER 21, 1939, 19 COMP. GEN. 383. 386, IS IN PART AS FOLLOWS:

PROJECT WORKERS PAID UPON A SECURITY WAGE BASIS OR SUPERVISORY AND ADMINISTRATIVE EMPLOYEES ENGAGED UPON PROJECTS AND PAID FROM PROJECT FUNDS UPON A MONTHLY SALARY BASIS, WHO ARE NOT APPOINTED TO POSITIONS- - AS DISTINGUISHED FROM ADMINISTRATIVE EMPLOYEES PAID THE REGULAR RATE OF COMPENSATION FOR THE POSITION TO WHICH REGULARLY APPOINTED FROM ALLOCATIONS FOR ADMINISTRATIVE EXPENSES--- ARE NOT REGARDED AS OFFICERS OR EMPLOYEES OF THE UNITED STATES FOR ANNUAL OR SICK LEAVE PURPOSES. (15 COMP. GEN. 1129; 16 ID. 181; ID 394.) PROJECT WORKERS AND PROJECT SUPERVISORY PERSONNEL HAVE BEEN EXPRESSLY EXCLUDED FROM LEAVE PRIVILEGES BY THE PRESIDENT'S UNIFORM ANNUAL AND SICK LEAVE REGULATIONS (SECTION 19 (E) OF THE ANNUAL LEAVE REGULATIONS AND SECTION 23 (F) OF THE SICK LEAVE REGULATIONS, EXECUTIVE ORDERS NOS. 7845 AND 7846, DATED MARCH 21, 1938) BECAUSE OF THE PROVISION IN THE ANNUAL AND SICK LEAVE ACTS OF MARCH 14, 1936 (49 STAT. 1161 AND 1162), LIMITING THE LEAVE PRIVILEGES TO "CIVILIAN OFFICERS AND EMPLOYEES OF THE UNITED STATES WHEREVER STATIONED AND OF THE GOVERNMENT OF THE DISTRICT OF COLUMBIA," WITH CERTAIN EXCEPTIONS NOT HERE MATERIAL. ALSO, THE ADMINISTRATIVE AND SUPERVISORY PERSONNEL ENGAGED ON W.P.A. PROJECTS HAVE BEEN HELD AS NOT BEING "IN THE SERVICE OF THE UNITED STATES" WITHIN THE PURVIEW OF SECTION 6 OF THE ACT OF JUNE 30, 1906, 34 STAT. 763, WHICH PRESCRIBES RULES FOR DIVISION OF TIME AND COMPUTATION OF PAY FOR SERVICES OF "ANY PERSON IN THE SERVICE OF THE UNITED STATES" WHOSE COMPENSATION IS UPON AN ANNUAL OR MONTHLY BASIS. (17 COMP. GEN. 359, 361.) IN VIEW OF THE SEVERAL HOLDINGS IN THE ABOVE-CITED DECISIONS OF THIS OFFICE IT WOULD APPEAR LOGICAL TO CONCLUDE THAT PROJECT WORKERS PAID EITHER A SECURITY WAGE OR A SALARY IN A SUPERVISORY CAPACITY ARE NOT TO BE REGARDED AS ,PERSONNEL" WITHIN THE MEANING OF SECTION 10 (B) OF THE REORGANIZATION ACT.

SECTION 204 OF THE ECONOMY ACT OF JUNE 30, 1932, 47 STAT. 404, PROVIDES:

* * * THAT NO SUCH PERSON HERETOFORE OR HEREAFTER SEPARATED FROM THE SERVICE OF THE UNITED STATES OR THE DISTRICT OF COLUMBIA UNDER ANY PROVISION OF LAW OR REGULATION PROVIDING FOR SUCH RETIREMENT ON ACCOUNT OF AGE SHALL BE ELIGIBLE AGAIN TO APPOINTMENT TO ANY APPOINTIVE OFFICE, POSITION, OR EMPLOYMENT UNDER THE UNITED STATES OR THE DISTRICT OF COLUMBIA * * *. ( ITALICS SUPPLIED.)

SECTION 7 OF THE CIVIL RETIREMENT ACT OF MAY 29, 1930, 46 STAT. 474, PROVIDES WITH RESPECT TO PERSONS ALLOWED ANNUITIES PURSUANT TO THAT SECTION ON INVOLUNTARY SEPARATION FROM THE SERVICE UNDER CERTAIN CONDITIONS AS TO AGE AND LENGTH OF SERVICE 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. * * * ( ITALICS SUPPLIED.)

SECTIONS 8 (A) AND 8 (B) OF THE ACT OF JUNE 16, 1933, 48 STAT. 305, 306, PROVIDE WITH RESPECT TO PERSONS ALLOWED ANNUITIES PURSUANT TO THOSE SECTIONS UPON INVOLUNTARY SEPARATION FROM THE SERVICE PRIOR TO JULY 1, 1935, AFTER AT LEAST 30 YEARS' SERVICE 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 * * *. ( ITALICS SUPPLIED.)

THESE PROVISIONS ARE IN BROAD AND COMPREHENSIVE FORM, BUT SO FAR AS CIVIL EMPLOYMENT IN THE EXECUTIVE BRANCH OF THE GOVERNMENT IS CONCERNED, THEY APPEAR NO MORE COMPREHENSIVE THAN THE TERMS OF SECTION 5 OF THE CIVIL RETIREMENT ACT, 46 STAT. 472, PROVIDING THAT THE PERIOD OF SERVICE FOR CALCULATING RETIREMENT BENEFITS UNDER THE ACT SHALL BE COMPUTED FROM THE DATE "OF ORIGINAL EMPLOYMENT, WHETHER AS A CLASSIFIED OR AN UNCLASSIFIED EMPLOYEE IN THE CIVIL SERVICE OF THE UNITED STATES, OR IN THE SERVICE OF THE DISTRICT OF COLUMBIA, INCLUDING PERIODS OF SERVICE AT DIFFERENT TIMES AND IN ONE OR MORE DEPARTMENTS, BRANCHES, OR INDEPENDENT OFFICES, * * *.' HOWEVER, AS COMPREHENSIVE AS THIS LATTER PROVISION MAY BE, IT DOES NOT INCLUDE ALL PERSONAL SERVICES RENDERED UNDER THE SUPERVISION AND DIRECTION OF THE EXECUTIVE DEPARTMENTS OR AGENCIES, OR OFFICERS THEREOF. SEE DISMUKE V. UNITED STATES, 297 U.S. 167, HOLDING THAT SERVICE AS AN EMPLOYEE OF THE UNITED STATES SHOULD NOT BE COUNTED IN THE COMPUTATION OF HIS RETIREMENT ANNUITY. WHILE ON SOMEWHAT DIFFERENT GROUNDS, THE CONCLUSION THAT WORK-RELIEF PROJECT WORKERS AND CIVILIAN CONSERVATION CORPS ENROLLEES ARE NOT EMPLOYEES OF THE UNITED STATES WITHIN THE MEANING OF SUCH PROVISION APPEARS EQUALLY JUSTIFIED.

THERE MAY BE SOME ADMINISTRATIVE QUESTION, VARYING WITH DIFFERENT CASES, AS TO WHETHER PERSONS RECEIVING A GOVERNMENT RETIREMENT ANNUITY ARE IN SUCH NEEDY CIRCUMSTANCES AS TO JUSTIFY THEIR EMPLOYMENT ON WORK RELIEF PROJECTS, OR ENROLLMENT IN THE CIVILIAN CONSERVATION CORPS, TO SUPPLEMENT SUCH ANNUITIES, AND, SO FAR AS PERSONS RETIRED FOR DISABILITY ARE CONCERNED, SUCH EMPLOYMENT MAY BE SOME EVIDENCE OF RECOVERY AND RESTORATION TO AN EARNING CAPACITY WHICH WOULD "PERMIT HIM TO BE APPOINTED TO SOME APPROPRIATE POSITION FAIRLY COMPARABLE IN COMPENSATION TO THE POSITION OCCUPIED AT THE TIME OF RETIREMENT" AS SPECIFIED IN SECTION 6 OF THE CIVIL RETIREMENT ACT, 46 STAT. 472, WHICH, AS AMENDED BY SECTION 3 (B) OF THE ACT OF AUGUST 4, 1939, 53 STAT. 1202, PROVIDES THAT IN SUCH CASE "PAYMENT OF THE ANNUITY SHALL BE CONTINUED TEMPORARILY TO AFFORD THE ANNUITANT OPPORTUNITY TO SEEK SUCH AVAILABLE POSITION, BUT NOT IN ANY CASE EXCEEDING ONE YEAR FROM THE DATE OF THE MEDICAL EXAMINATION SHOWING SUCH RECOVERY.' BUT, ASIDE FROM SUCH MATTERS, I THINK IT MAY BE CONCLUDED WITH RESPECT TO THE TYPES OF EMPLOYMENT LISTED IN YOUR LETTER THAT WHERE SUCH EMPLOYMENT IS OF A CHARACTER WHICH IS EXCLUDED BY THE SAID CIVIL SERVICE COMMISSION CIRCULAR NO. 77, JULY 25, 1940, FROM CREDIT AS SERVICE IN THE COMPUTATION OF ANNUITIES BECAUSE NOT RENDERED AS EMPLOYEES OF THE GOVERNMENT WITHIN THE MEANING OF THE RETIREMENT LEGISLATION, SUCH EMPLOYMENT DOES NOT REQUIRE THE SUSPENSION OF RETIREMENT ANNUITIES PURSUANT TO THE STATUTORY PROVISIONS QUOTED OR THE PRINCIPLES OF THE DECISION 14 COMP. GEN. 285, SUPRA. COMPARE BRUNSWICK V. UNITED STATES, 90 CT.1CLS. 285, REFERRED TO IN YOUR LETTER, WHERE IT WAS HELD THAT A FOREIGN SERVICE OFFICER RETIRED FOR DISABILITY UNDER THE PROVISIONS OF THE FOREIGN SERVICE ACT OF MAY 24, 1924, 43 STAT. 140, AS AMENDED BY THE ACT OF FEBRUARY 23, 1931, 46 STAT. 1207, WAS ENTITLED TO HIS RETIREMENT ANNUITY WHILE TEMPORARILY EMPLOYED IN POSITIONS NOT UNDER THAT ACT.