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JOHN BOYLE: REFERENCE IS MADE TO YOUR LETTERS OF AUGUST 25 AND SEPTEMBER 9. THE RECORDS SHOW THAT YOU WERE RETIRED FOR AGE FROM THE POSITION OF ATTORNEY. YOU WERE GIVEN AN APPOINTMENT ON THE FOLLOWING DAY TO A POSITION SUBJECT TO THE PROVISION OF SECTION 2 (B) OF THE ACT OF FEBRUARY 28. DUE TO A REDUCTION IN FORCE YOUR SERVICES WERE TERMINATED ON MAY 15. PAYMENT WAS MADE TO YOU FOR 280 HOURS' ANNUAL LEAVE. FROM WHICH PAYMENT THERE WAS DEDUCTED THE AMOUNT OF YOUR RETIREMENT ANNUITY COVERING THE PERIOD OF SUCH LEAVE. YOUR LETTER OF AUGUST 25 PROTESTS THAT YOU NOW ARE PAID ON A FEE BASIS. THAT YOUR COMPENSATION IS NOT SUBJECT TO THE REDUCTION REQUIRED BY THE ACT OF FEBRUARY 28. - ACCOUNTING OFFICERS OF THE GOVERNMENT CONSISTENTLY HAVE RULED THAT WHERE THE COMPENSATION OF AN INDIVIDUAL FOR SERVICES RENDERED BY HIM IS BASED UPON THE TIME ACTUALLY WORKED.

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B-125559, DEC. 27, 1955

TO MR. JOHN BOYLE:

REFERENCE IS MADE TO YOUR LETTERS OF AUGUST 25 AND SEPTEMBER 9, 1955, REQUESTING FURTHER CONSIDERATION OF GENERAL ACCOUNTING OFFICE SETTLEMENTS DATED MAY 21, 1954, AND JULY 21, 1955, WHICH DISALLOWED YOUR CLAIMS FOR ADDITIONAL COMPENSATION AND A SUPPLEMENTAL LUMP-SUM PAYMENT INCIDENT TO YOUR EMPLOYMENT, AFTER RETIREMENT FOR AGE, WITH THE GENERAL SERVICES ADMINISTRATION.

THE RECORDS SHOW THAT YOU WERE RETIRED FOR AGE FROM THE POSITION OF ATTORNEY, GRADE P-6, AT THE RATE OF $8,389.80 PER ANNUM, WITH THE GENERAL SERVICES ADMINISTRATION, EFFECTIVE AT THE CLOSE OF BUSINESS ON DECEMBER 31, 1948. HOWEVER, SINCE YOU POSSESSED SPECIAL QUALIFICATIONS, YOU WERE GIVEN AN APPOINTMENT ON THE FOLLOWING DAY TO A POSITION SUBJECT TO THE PROVISION OF SECTION 2 (B) OF THE ACT OF FEBRUARY 28, 1948, 62 STAT. 49. DUE TO A REDUCTION IN FORCE YOUR SERVICES WERE TERMINATED ON MAY 15, 1953, AND PAYMENT WAS MADE TO YOU FOR 280 HOURS' ANNUAL LEAVE, FROM WHICH PAYMENT THERE WAS DEDUCTED THE AMOUNT OF YOUR RETIREMENT ANNUITY COVERING THE PERIOD OF SUCH LEAVE. THEREAFTER, BY AGREEMENTS OF JUNE 29, 1953, AND JULY 15, 1954, AS AMENDED DECEMBER 1954, YOU CONTINUED TO SERVE ON AN INTERMITTENT BASIS AT VARIOUS PER DIEM RATES OF COMPENSATION. YOUR LETTER OF AUGUST 25 PROTESTS THAT YOU NOW ARE PAID ON A FEE BASIS, AND THAT YOUR COMPENSATION IS NOT SUBJECT TO THE REDUCTION REQUIRED BY THE ACT OF FEBRUARY 28, 1948. YOUR LETTER OF SEPTEMBER 9 OBJECTS TO THE REDUCTION OF THE LUMP-SUM PAYMENT MADE TO YOU FOR LEAVE, IN APPLYING THE PROVISIONS OF THE SAME STATUTE.

WITH REGARD TO YOUR EMPLOYMENT UNDER THE SEVERAL AGREEMENTS, IT MUST BE SAID THAT ASIDE FROM THE APPARENT ABSENCE OF AUTHORITY IN THE GENERAL SERVICES ADMINISTRATION TO ENGAGE THE SERVICES OF ATTORNEYS UPON A FEE BASIS--- SEE SECTION 365, REVISED STATUTES, 5 U.S.C. 314--- ACCOUNTING OFFICERS OF THE GOVERNMENT CONSISTENTLY HAVE RULED THAT WHERE THE COMPENSATION OF AN INDIVIDUAL FOR SERVICES RENDERED BY HIM IS BASED UPON THE TIME ACTUALLY WORKED, RATHER THAN UPON THE ACCOMPLISHMENT OF A PARTICULAR RESULT THE SERVICES OF THE INDIVIDUAL MUST BE REGARDED AS PERSONAL RATHER THAN CONTRACTUAL IN NATURE. SEE 27 COMP. GEN. 695, 698; ALSO, DISCUSSION IN 26 COMP. GEN. 468 AND CASES CITED THEREIN. FURTHER, IN THE ABSENCE OF URGENT AND COMPELLING REASONS, A GOVERNMENT AGENCY MAY NOT PROCURE FROM AN INDEPENDENT CONTRACTOR SERVICES NORMALLY SUSCEPTIBLE OF BEING PERFORMED BY GOVERNMENT EMPLOYEES. 27 COMP. GEN. 503. IN THAT REGARD, WE ARE INFORMED THAT YOU NOW ARE PERFORMING THE SAME DUTIES ON AN INTERMITTENT BASIS THAT YOU PERFORMED UNDER YOUR APPOINTMENT OF JANUARY 1, 1949. NOTHING IS FOUND IN SECTION 710 (C) OF THE DEFENSE PRODUCTION ACT OF 1950, 64 STAT. 798, AS AMENDED, WHICH WOULD AUTHORIZE YOUR EMPLOYMENT IN CONTRAVENTION OF THE FOREGOING. ACCORDINGLY, IF WE ARE TO REGARD YOUR EMPLOYMENT AS LEGAL IN ANY RESPECT, WE MUST CONCLUDE THAT YOU ARE AN EMPLOYEE OF THE GOVERNMENT, AND THAT YOUR COMPENSATION IS SUBJECT TO THE PROVISION OF SECTION 2 (B) OF THE ACT OF FEBRUARY 28, 1948.

THE ARGUMENTS PRESENTED IN YOUR LETTER OF SEPTEMBER 9, RELATIVE TO THE PROPRIETY OF LUMP-SUM LEAVE PAYMENT MADE TO YOU, PRIMARILY SEEM TO ARISE FROM A FAILURE TO DISTINGUISH THE TERM ,RETIREMENT DEDUCTIONS" APPEARING IN THE LAST PROVISO OF SECTION 1 OF THE ACT OF DECEMBER 21, 1944, 58 STAT. 845, FROM THE LANGUAGE "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," CONTAINED IN SECTION 2 (B) OF THE 1948 ACT. THE TERM "RETIREMENT DEDUCTIONS" IN THE 1944 ACT COMPREHENDS ONLY THE 6 PERCENT RETIREMENT CONTRIBUTION REQUIRED OF ALL EMPLOYEES SUBJECT TO THE CIVIL SERVICE RETIREMENT SYSTEM. BY THE LANGUAGE OF SECTION 2 (B) OF THE 1948 ACT, THE COMPENSATION OF REEMPLOYED ANNUITANTS OVER 60 YEARS OF AGE IS NOT SUBJECT TO THAT DEDUCTION AND SUCH CONTRIBUTIONS WERE NOT DEDUCTED EITHER FROM YOUR COMPENSATION OR FROM YOUR LUMP-SUM PAYMENT FOR LEAVE. HOWEVER, THE QUOTED PROVISION FROM SECTION 2 (B) OF THE 1948 ACT CLEARLY PROVIDES THAT THE COMPENSATION OTHERWISE PAYABLE TO A REEMPLOYED ANNUITANT MUST BE REDUCED BY THE AMOUNT OF HIS ANNUITY AND THUS YOUR COMPENSATION AS SUCH AN ANNUITANT WAS NOT $9,360 PER ANNUM, AS CONTENDED BY YOU, BUT $7,200 PER ANNUM. YOU WOULD HAVE RECEIVED $2,160 PER ANNUM AS AN ANNUITY REGARDLESS OF WHETHER OR NOT YOU WERE EMPLOYED.

IN THE LIGHT OF THE FOREGOING, WE MUST CONCLUDE THAT THE SETTLEMENTS REFERRED TO ABOVE ARE CORRECT, AND UPON REVIEW, THEY ARE SUSTAINED.

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