B-131457, DEC. 5, 1963
Highlights
- WHICH WAS DEDUCTED FROM THE COMPENSATION EARNED BY YOU AS A CONSULTANT UNDER VARIOUS EMPLOYMENT CONTRACTS WITH THE DEPARTMENT OF THE NAVY. CLEARLY SUPPORTS YOUR CONTENTION THAT YOU WERE NOT EMPLOYED WITHIN THE APPLICABLE PROVISIONS OF THE CIVIL SERVICE RETIREMENT ACT WHICH REQUIRE THAT THE SALARY OF A REEMPLOYED ANNUITANT BE REDUCED BY THE AMOUNT OF HIS RETIREMENT ANNUITY. IN THE BOYLE CASE THE COURT REACHED THE CONCLUSION THAT THE PLAINTIFF WAS AN INDEPENDENT CONTRACTOR AND NOT AN EMPLOYEE. IN SO DOING IT APPARENTLY RELIED HEAVILY UPON THE LANGUAGE OF THE CONTRACT WHICH EXPRESSLY STATED THAT THE ARRANGEMENT BETWEEN THE PLAINTIFF AND THE GOVERNMENT WAS THAT OF ATTORNEY AND CLIENT ON A FEE BASIS AND NOT AN APPOINTMENT.
B-131457, DEC. 5, 1963
TO MR. THEODORE SPECTOR:
WE REFER TO YOUR LETTER OF OCTOBER 14, 1963, REQUESTING RECONSIDERATION OF OUR DECISION OF OCTOBER 2, 1963, SUSTAINING OFFICE SETTLEMENT OF AUGUST 8 OF THIS YEAR, WHICH DISALLOWED YOUR CLAIM FOR REFUND OF THE AGGREGATE AMOUNT--- EQUAL TO THE RETIREMENT ANNUITY ALLOCABLE TO THE PERIOD OF CIVILIAN EMPLOYMENT--- WHICH WAS DEDUCTED FROM THE COMPENSATION EARNED BY YOU AS A CONSULTANT UNDER VARIOUS EMPLOYMENT CONTRACTS WITH THE DEPARTMENT OF THE NAVY.
YOU EXPRESS THE OPINION THAT THE CASE OF BOYLE V. UNITED STATES, CT.CL. NO. 300-60, DECIDED NOVEMBER 7, 1962, CLEARLY SUPPORTS YOUR CONTENTION THAT YOU WERE NOT EMPLOYED WITHIN THE APPLICABLE PROVISIONS OF THE CIVIL SERVICE RETIREMENT ACT WHICH REQUIRE THAT THE SALARY OF A REEMPLOYED ANNUITANT BE REDUCED BY THE AMOUNT OF HIS RETIREMENT ANNUITY.
IN THE BOYLE CASE THE COURT REACHED THE CONCLUSION THAT THE PLAINTIFF WAS AN INDEPENDENT CONTRACTOR AND NOT AN EMPLOYEE. IN SO DOING IT APPARENTLY RELIED HEAVILY UPON THE LANGUAGE OF THE CONTRACT WHICH EXPRESSLY STATED THAT THE ARRANGEMENT BETWEEN THE PLAINTIFF AND THE GOVERNMENT WAS THAT OF ATTORNEY AND CLIENT ON A FEE BASIS AND NOT AN APPOINTMENT. FURTHER, THE COURT APPEARS TO HAVE RELIED UPON REPRESENTATIONS THAT THE PLAINTIFF'S WORK WAS TOTALLY FREE FROM SUPERVISION AND CONTROL, SAYING "NO OFFICER OR EMPLOYEE OF GSA EVER INTERVENED IN ANY SUCH OPINION OR DECISION" OF THE PLAINTIFF.
WHILE AS A MATTER OF LAW, ALL OF THE FACTS RATHER THAN THE LANGUAGE OF AN AGREEMENT DETERMINE THE TRUE RELATIONSHIP BETWEEN THE PARTIES, THERE IS NO LANGUAGE IN YOUR WRITTEN AGREEMENT OR EVIDENCE IN THE OTHER FACTS SURROUNDING YOUR EMPLOYMENT BY THE DEPARTMENT OF THE NAVY TO SUGGEST THAT YOUR RELATIONSHIP WITH THE GOVERNMENT WAS THAT OF ATTORNEY AND CLIENT. FURTHER, THE DEPARTMENT OF THE NAVY REPORTS THAT SUBSTANTIALLY THE SAME SUPERVISION WAS EXERCISED BY THE GENERAL COUNSEL OVER YOUR WORK AS OVER THAT OF OTHER ATTORNEYS EMPLOYED BY THE DEPARTMENT. IT IS REPORTED THAT YOU WORKED UNDER THE DIRECTION AND CONTROL OF THE GENERAL COUNSEL AND THAT YOUR WORK WAS SUBJECT TO REVIEW AND REVISION BY THOSE IN HIGHER AUTHORITY.
FOR THESE REASONS WE DO NOT CONSIDER THAT YOUR CASE FALLS WITHIN THE CONFINES OF THE BOYLE CASE, AND WE FIND NO BASIS IN THAT CASE FOR THE ALLOWANCE OF YOUR CLAIM. OUR DECISION OF OCTOBER 2, 1963, SUSTAINING THE DISALLOWANCE OF YOUR CLAIM THEREFOR IS SUSTAINED.