B-29039, OCTOBER 1, 1942, 22 COMP. GEN. 300

B-29039, OCTOBER 1, 1942, 22 COMP. GEN. 300

REEMPLOYMENT AFTER RETIREMENT FOR AGE - RETENTION OF COMPENSATION AND ANNUITY PAYMENTS WHILE THE REEMPLOYMENT, BY CONTRACT OR APPOINTMENT, OF A PERSON RETIRED FOR AGE WITHOUT COMPLIANCE WITH THE CONDITIONS OF STATUTES AUTHORIZING REEMPLOYMENT OF SUCH PERSONS IS IN CONTRAVENTION OF LAW, WHERE THE CIRCUMSTANCES SURROUNDING THE REEMPLOYMENT ARE SUCH AS TO CONSTITUTE THE PERSON A DE FACTO EMPLOYEE, NO REFUND OF COMPENSATION PREVIOUSLY RECEIVED FOR SERVICES RENDERED IS REQUIRED, BUT REFUND IS REQUIRED OF ALL ANNUITY PAYMENTS MADE DURING THE PERIOD OF REEMPLOYMENT FOR WHICH COMPENSATION WAS RECEIVED.

COMPTROLLER GENERAL WARREN TO COL. F. PEARSON, U.S. ARMY, OCTOBER 1, 1942:

BY FIRST ENDORSEMENT DATED SEPTEMBER 17, 1942, THE CHIEF OF FINANCE, WAR DEPARTMENT, FORWARDED HERE FOR CONSIDERATION YOUR LETTER OF SEPTEMBER 12, 1942, AS FOLLOWS:

1. TRANSMITTED HEREWITH IS PAYROLL FOR PERSONAL SERVICES COVERING CLAIM FOR PAY OF CHARLES E. YATES, CCC CAMP PHYSICIAN FOR THE PERIOD JANUARY 1 TO FEBRUARY 13, 1942. THIS VOUCHER WAS SUBMITTED TO THE UNDERSIGNED, WHO IS A DISBURSING OFFICER, FOR PAYMENT AND IS FORWARDED FOR AN ADVANCE DECISION AS TO WHETHER OR NOT PAYMENT MAY PROPERLY BE MADE IN VIEW OF THE FACT THAT CLAIMANT WAS RECEIVING CIVIL SERVICE ANNUITY DURING THE PERIOD COVERED BY THE PAYROLL AND ALSO DURING THE PERIOD JULY 1, 1938 TO DEC. 31, 1941, WHILE EMPLOYED IN THE SAME CAPACITY.

2. THERE IS FILED IN SUPPORT OF THE CLAIM CORRESPONDENCE WHICH FULLY STATES THE CASE.

THE FACTS IN THE CASE APPEAR IN A STATEMENT DATED AUGUST 13, 1942, MADE BY THE ACTING ASSISTANT ADJUTANT GENERAL, OMAHA, NEBRASKA, AS FOLLOWS:

1. FACTS:

A. DR. CHARLES E. YATES, RETIRED INDIAN SERVICE EMPLOYEE, WAS FIRST EMPLOYED BY THE CIVILIAN CONSERVATION CORPS JULY 1, 1938, AS A FULL TIME CONTRACT PHYSICIAN AT $200 PER MONTH.

B. RECORDS INDICATE THAT PRIOR TO APPOINTMENT, DR. YATES INFORMED THE CORPS AREA SURGEON THAT HE WAS A RETIRED INDIAN SERVICE EMPLOYEE HAVING BEEN IN THAT SERVICE FOR APPROXIMATELY EIGHTEEN YEARS AND HAVING RETIRED ON JUNE 30, 1938, WITH A MONTHLY ANNUITY AT THE RATE OF $737.76 PER ANNUM COMMENCING JULY 1, 1938, ON ACCOUNT OF HAVING REACHED RETIREMENT AGE.

C. HE WAS INFORMED BY LETTER FROM THE CORPS AREA SURGEON'S OFFICE:

"IN REPLY TO YOUR LETTER OF APRIL 14, WE ARE GLAD TO NOTE THAT YOUR RETIREMENT FUND IS NOT CLASSED AS SALARY WITHIN THE MEANING OF THE LAW; THEREFORE WE ARE ABLE TO DISREGARD THE MATTER.'

D. DR. YATES SERVED IN THE CAPACITY OF FULL-TIME CONTRACT PHYSICIAN, $200 PER MONTH, UNTIL OCTOBER 31, 1939, WHEN HIS SERVICES WERE TERMINATED IN ORDER THAT HE MIGHT BE REAPPOINTED NOVEMBER 1, 1939, AS CCC ASSOCIATE MEDICAL OFFICER, GRADE P-3, $3200 PER ANNUM, WHICH APPOINTMENT WAS CONFIRMED BY THE SECRETARY OF WAR.

E. DR. YATES SERVED AS CCC ASSOCIATE MEDICAL OFFICER THROUGH FEBRUARY 13, 1942, ON WHICH DATE HE RESIGNED DUE TO OUTSIDE INTERESTS.

F. DR. YATES' SALARY WAS PAID IN FULL FROM JULY 1, 1938, TO JANUARY 1, 1942; SUM TOTALING $10,133.33. HE HAS PRESENTED PROOF THAT HE HAS RECEIVED EACH MONTH, BEGINNING WITH JULY, 1938, AND INCLUDING DECEMBER, 1941, A MONTHLY ANNUITY TOTALLING $736.76 PER ANNUM; SUM TOTALING $2,578.56. WHETHER OR NOT ANNUITY IS STILL BEING PAID DR. YATES IS UNKNOWN.

G. HIS SALARY FROM JANUARY 1, 1942, TO FEBRUARY 13, 1942, IS BEING WITHHELD PENDING DECISIONS ON QUESTIONS SET FORTH IN PARAGRAPH 4 BELOW.

THE QUESTIONS SET FORTH IN THE REFERRED-TO PARAGRAPH 4, ARE AS FOLLOWS:

A. IS THERE ANY PROVISION OF LAW THAT MAKES ANY RECOVERY MANDATORY?

B. IF RECOVERY IS MANDATORY, SHOULD NOT THE ANNUITY BE RECOVERED RATHER THAN THE SALARY?

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

ON AND AFTER JULY 1, 1932, NO PERSON RENDERING CIVILIAN SERVICE IN ANY BRANCH OR SERVICE OF THE UNITED STATES GOVERNMENT OR THE MUNICIPAL GOVERNMENT OF THE DISTRICT OF COLUMBIA WHO SHALL HAVE REACHED THE RETIREMENT AGE PRESCRIBED FOR AUTOMATIC SEPARATION FROM THE SERVICE, APPLICABLE TO SUCH PERSON, SHALL BE CONTINUED IN SUCH SERVICE, NOTWITHSTANDING ANY PROVISION OF LAW OR REGULATION TO THE CONTRARY: PROVIDED, THAT THE PRESIDENT MAY, BY EXECUTIVE ORDER, EXEMPT FROM THE PROVISIONS OF THIS SECTION ANY PERSON WHEN, IN HIS JUDGMENT, THE PUBLIC INTEREST SO REQUIRES: PROVIDED FURTHER, 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: PROVIDED FURTHER, THAT THIS SECTION SHALL NOT APPLY TO ANY PERSON NAMED IN ANY ACT OF CONGRESS PROVIDING FOR THE CONTINUANCE OF SUCH PERSON IN THE SERVICE. THERE IS FOR NOTING PARTICULARLY THE SECOND PROVISO OF THE STATUTES. SEE, ALSO, THE LAST PARAGRAPH OF SECTION 2 OF THE CIVIL SERVICE RETIREMENT ACT OF MAY 29, 1930, 46 STAT. 469, 470, AND COMPARE SECTION 92, TITLE II OF THE CANAL ZONE CODE, AS ORIGINALLY ENACTED (WHICH INCORPORATED THEREIN THE PROVISIONS OF SECTION 204 OF THE ACT OF JUNE 30, 1932), AND AS AMENDED BY THE ACT OF JULY 29, 1942, 56 STAT. 726, PUBLIC LAW 687, TO AUTHORIZE REEMPLOYMENT OF RETIRED PERSONNEL UNDER CERTAIN CONDITIONS. ALSO, COMPARE SECTION 6 OF THE ACT OF JUNE 28, 1940, 54 STAT. 679, AUTHORIZING THE WAR AND NAVY DEPARTMENTS TO REEMPLOY PERSONS RETIRED UNDER THE CIVIL SERVICE RETIREMENT ACT OF MAY 29, 1930, 46 STAT. 468.

THERE IS FOR NOTING TOO, THE ACT OF JANUARY 24, 1942, 56 STAT. 13, PUBLIC LAW 411, WHICH AMENDED THE CIVIL SERVICE RETIREMENT ACT SO AS TO AUTHORIZE REEMPLOYMENT, GENERALLY, UNDER CERTAIN CONDITIONS OF PERSONS RETIRED FOR AGE, THE STATUTE BEING, IN PERTINENT PART, AS FOLLOWS:

NO PERSON SEPARATED FROM THE SERVICE WHO IS RECEIVING AN ANNUITY UNDER THE PROVISIONS OF SECTION 1 OF THIS ACT SHALL BE ELIGIBLE AGAIN TO APPOINTMENT TO ANY APPOINTIVE OFFICE, POSITION, OR EMPLOYMENT UNDER THE UNITED STATES OR OF THE GOVERNMENT OF THE DISTRICT OF COLUMBIA UNLESS THE APPOINTING AUTHORITY DETERMINES THAT HE IS POSSESSED OF SPECIAL QUALIFICATIONS, IN WHICH EVENT PAYMENT OF HIS ANNUITY SHALL BE TERMINATED DURING THE PERIOD OF HIS APPOINTMENT. ANY SUCH PERSON WHOSE ANNUITY IS TERMINATED SHALL, UPON THE TERMINATION OF HIS APPOINTMENT, HAVE HIS SUBSEQUENT ANNUITY RIGHTS DETERMINED UNDER THE PROVISIONS OF LAW IN EFFECT AT THE TIME OF SUCH TERMINATION.

IT WAS NOT UNTIL ON AND AFTER JANUARY 24, 1942, DATE OF THE STATUTE LAST ABOVE QUOTED THAT DOCTOR YATES, A FORMER EMPLOYEE OF THE INDIAN SERVICE RETIRED FOR AGE, MIGHT HAVE BEEN REEMPLOYED BY THE CIVILIAN CONSERVATION CORPS. HOWEVER, APPROVAL OF THE ACT OF JANUARY 24, 1942, DID NOT IPSO FACTO VALIDATE HIS REEMPLOYMENT (PREVIOUSLY ENTERED INTO BY THE CIVILIAN CONSERVATION CORPS) ON AND AFTER JANUARY 24, 1942, THROUGH FEBRUARY 13, 1942, WHEN HIS SERVICES WERE TERMINATED, BECAUSE REEMPLOYMENT UNDER THAT STATUTE IS SUBJECT TO CERTAIN CONDITIONS, AND REQUIRES AFFIRMATIVE ACTION BY THE ADMINISTRATIVE OFFICE TO DETERMINE THAT THE REEMPLOYED PERSON IS POSSESSED OF SPECIAL QUALIFICATIONS. IT IS NOT UNDERSTOOD THAT HE WAS AN EMPLOYEE OF THE WAR DEPARTMENT COMING WITHIN THE PURVIEW OF SECTION 6 OF THE ACT OF JUNE 28, 1940, SUPRA.

ACCORDINGLY, DURING THE ENTIRE TIME COVERED BY THE INVOLVED VOUCHER, TO WIT, FROM JANUARY 1, 1942, TO FEBRUARY 13, 1942, AND ALSO PRIOR THERETO (SINCE JULY 1, 1938) WHILE HE WAS UNDER REEMPLOYMENT BY THE CIVILIAN CONSERVATION CORPS, DOCTOR YATES, BY REASON OF HIS RETIRED STATUS, WAS DISQUALIFIED FOR APPOINTMENT TO AND INELIGIBLE TO HOLD A CIVILIAN "OFFICE, POSITION, OR EMPLOYMENT" UNDER THE CIVILIAN CONSERVATION CORPS EITHER ON THE BASIS OF A CONTRACT OR APPOINTMENT. THE ADMINISTRATIVE ADVICE TO HIM THAT HE WAS ELIGIBLE FOR REEMPLOYMENT NOTWITHSTANDING HIS RETIRED STATUS WAS CLEARLY IN ERROR.

IN A DECISION DATED SEPTEMBER 7, 1942, B-28211, TO THE SECRETARY OF THE NAVY, INVOLVING THE CASE OF REEMPLOYMENT BY THE NAVY DEPARTMENT OF AN EMPLOYEE WHO HAD BEEN RETIRED FOR AGE UNDER THE CANAL ZONE RETIREMENT ACT PRIOR TO THE AMENDMENT IN THAT STATUTE AUTHORIZING REEMPLOYMENT OF RETIRED PERSONNEL UNDER CERTAIN CONDITIONS, IT WAS HELD:

* * * HOWEVER, HIS APPOINTMENT WAS MADE BY THE PROPER APPOINTING AUTHORITY IN ACCORDANCE WITH THE USUAL PROCEDURE, APPEARED REGULAR ON ITS FACE, AND THE PRESCRIBED OATH OF OFFICE WAS TAKEN. HE WAS IN POSSESSION OF THE OFFICE OR POSITION UNDER COLOR OF TITLE, PERFORMED ITS DUTIES, AND RECEIVED THE REGULAR COMPENSATION FIXED FOR THE OFFICE OR POSITION BY OR PURSUANT TO STATUTE. THERE WAS NO FRAUD INVOLVED. CLEARLY, HE WAS A DE FACTO OFFICER WHILE HE SERVED UNDER THE APPOINTMENT.

AS A GENERAL RULE, AND IN THE ABSENCE OF A SPECIFIC PROVISION OF LAW, SUCH AS A PROHIBITION IN AN APPROPRIATION ACT, MONEY PAID FOR SERVICES ACTUALLY RENDERED BY A DE FACTO OFFICER MAY NOT BE RECOVERED BACK BY THE GOVERNMENT. BADEAU V. UNITED STATES, 130 U.S. 439, 452; UNITED STATES V. ROYER, 268 U.S. 394, 398; 6 COMP. GEN. 263; 4 ID. 43; 3 ID. 823; AND B- 13546, DECEMBER 12, 1940. COMPARE 18 COMP. GEN. 815, WHEREIN WAS CONSIDERED AN APPROPRIATION RESTRICTION AGAINST THE EMPLOYMENT OF ALIENS.

ACCORDINGLY, REFERRING TO THE PENULTIMATE PARAGRAPH OF YOUR LETTER, MR. MILLOY MAY BE PERMITTED TO RETAIN THE SUMS HERETOFORE PAID HIM AS SALARY FOR THE SERVICES PERFORMED UNDER HIS APPOINTMENT AS A DE FACTO OFFICER. HOWEVER, RETIREMENT ANNUITY INSTALLMENTS ARE NOT PAYABLE FOR THE PERIOD HE WAS IN RECEIPT OF COMPENSATION FOR SERVICES RENDERED UNDER SUCH APPOINTMENT. SEE 10 COMP. GEN. 309; 13 ID. 54; 14 ID. 285; AND 16 ID. 121.

THE FACTS DISCLOSED IN THE INSTANT CASE ALSO JUSTIFY THE CONCLUSION THAT DOCTOR YATES WAS A DE FACTO OFFICER AND AS SUCH MAY RETAIN THE COMPENSATION PAID TO HIM PRIOR TO JANUARY 1, 1942. HOWEVER, HE WILL BE REQUIRED TO REFUND ALL ANNUITY PAYMENTS RECEIVED DURING THE PERIOD HE WAS UNDER REEMPLOYMENT WITH THE CIVILIAN CONSERVATION CORPS PRIOR TO JANUARY 1, 1942. THE DE FACTO RULE DOES NOT AUTHORIZE PAYMENT OF COMPENSATION NOT ALREADY PAID TO AN EMPLOYEE WHOSE APPOINTMENT WAS INVALID. 8 COMP. GEN. 73, 74, AND DECISIONS THEREIN CITED. ACCORDINGLY, YOU ARE NOT AUTHORIZED TO PAY THE VOUCHER FOR COMPENSATION COVERING THE PERIOD JANUARY 1 TO FEBRUARY 13, 1942.

THE VOUCHER WILL BE RETAINED IN THIS OFFICE.

A COPY OF THIS DECISION IS BEING FORWARDED TO THE UNITED STATES CIVIL SERVICE COMMISSION FOR APPROPRIATE ACTION WITH REFERENCE TO THE ILLEGAL PAYMENTS OF ANNUITY BENEFITS.