A-62390, JULY 22, 1935, 15 COMP. GEN. 55

A-62390, JULY 22, 1935, 15 COMP. GEN. 55

RETIREMENT - REEMPLOYMENT - COMMISSIONER APPOINTED BY UNITED STATES COURT A CIVIL ANNUITANT RETIRED FOR AGE IS BARRED BY SECTION 204 OF THE ECONOMY ACT OF JUNE 30, 1932, 47 STAT. 404, FROM SERVING AS A FACT FINDING COMMISSIONER UNDER APPOINTMENT BY A UNITED STATES DISTRICT COURT IN CONNECTION WITH LEGAL PROCEEDINGS INSTITUTED BY THE UNITED STATES TO PERFECT TITLE TO LAND BY RIGHT OF EMINENT DOMAIN UNDER THE ACT OF AUGUST 1, 1888, 25 STAT. 357, OR ANY OTHER FEDERAL STATUTE AUTHORIZING CONDEMNATION OF LAND FOR A SPECIFIC FEDERAL PURPOSE.

COMPTROLLER GENERAL MCCARL TO THE PRESIDENT, UNITED STATES CIVIL SERVICE COMMISSION, JULY 22, 1935:

THERE WAS RECEIVED YOUR LETTER OF MAY 22, 1935, AS FOLLOWS:

THIS COMMISSION HAS BEFORE IT THE QUESTION OF WHETHER AN ANNUITANT RETIRED FOR AGE IS BARRED BY THE PROVISIONS OF SECTION 204 OF THE ACT OF JUNE 30, 1932, FROM SERVING AS COMMISSIONER UNDER APPOINTMENT BY A UNITED STATES DISTRICT COURT IN CONNECTION WITH LEGAL PROCEEDINGS INSTITUTED BY THE UNITED STATES TO PERFECT TITLE TO LAND BY THE RIGHT OF EMINENT DOMAIN.

MR. JAMES J. MCGUIRK WAS SEPARATED FROM HIS POSITION AS RURAL CARRIER, EAST WALLINGFORD, VERMONT, ON NOVEMBER 10, 1928, BECAUSE OF HAVING ATTAINED THE AGE PRESCRIBED FOR AUTOMATIC SEPARATION AND WAS GRANTED AN ANNUITY OF $838.92 PER ANNUM, EFFECTIVE NOVEMBER 11, 1928, UNDER THE PROVISIONS OF THE ACT OF JULY 3, 1926. THIS SUM WAS INCREASED TO $1006.68 PER ANNUM, EFFECTIVE JULY 1, 1930, IN ACCORDANCE WITH THE TERMS OF THE ACT OF MAY 29, 1930, WHICH RATE HE IS STILL RECEIVING.

IN RESPONSE TO REQUEST ADDRESSED TO MR. MCGUIRK FOR A STATEMENT REGARDING HIS PRESENT EMPLOYMENT, A LETTER DATED MAY 17, 1935, WAS RECEIVED FROM THE HONORABLE HARLAND B. HOWE, JUDGE OF THE UNITED STATES DISTRICT COURT, BURLINGTON, VERMONT, AS FOLLOWS:

"THE UNITED STATES GOVERNMENT PROCURED OPTIONS ON 5,568 ACRES OF LAND IN RUTLAND COUNTY, VERMONT, AND IN ORDER TO GET A PERFECT TITLE TO THIS LAND, WHICH IS OWNED BY SEVENTEEN DIFFERENT PERSONS, IT INSTITUTED LEGAL PROCEEDINGS IN THIS COURT TO PERFECT SUCH A TITLE THERETO BY THE RIGHT OF EMINENT DOMAIN. BY THE LAW OF VERMONT, THE COURT APPOINTED THREE COMMISSIONERS TO HEAR THIS CASE, ESTABLISH THE BOUNDARIES TO THE MANY DIFFERENT PARCELS, ETC., AND REPORT THEIR PROCEEDINGS BACK TO THE COURT. MR. MCGUIRK IS A RETIRED RURAL POSTAL CARRIER. HE WAS RETIRED ON ACCOUNT OF AGE, BEING OVER SIXTY-FIVE, ON NOV. 11, 1928, AND HAS AN ANNUITY OF $84.89 A MONTH. AS HE IS A MAN OF MUCH EXPERIENCE IN WOOD AND TIMBERLANDS, RUNNING LINES, ETC., HE WAS APPOINTED ONE OF THE THREE COMMISSIONERS AND MADE CHAIRMAN OF THE COMMISSION. THE COMMISSION HAS NEARLY COMPLETED THE DUTIES OF ITS APPOINTMENT, HAVING HELD HEARINGS AND LOCATED BOUNDARIES FOR APPROXIMATELY TWENTY DAYS IN THIS CASE. THE COURT FIXED THE COMPENSATION OF THE COMMISSIONERS AT $10 A DAY, TO BE PAID BY THE UNITED STATES.

"I HAVE JUST LOOKED AT SECTION 204, REFERRED TO IN YOUR LETTER, AND HASTILY AT SOME OF THE OTHER PROVISIONS OF THE ACT--- SECTION 104 A, B, AND C--- BUT I HAVEN-T TAKEN TIME TO STUDY THE QUESTION, FOR I AM ASSUMING THAT THE COMMISSION HAS GIVEN A CONSTRUCTION TO THE ACT AND ADOPTED A DEFINED POLICY.

"MR. MCGUIRK IS NOT SERVING, AS YOU ARE INFORMED, AS A MEMBER OF THE COMMISSION OF THE GREEN MOUNTAIN NATIONAL FOREST. HE IS SERVING BY APPOINTMENT FROM THE COURT. THESE COMMISSIONERS ARE REPRESENTATIVES OF THE COURT. THEY FIND AND REPORT THE FACTS TO THE COURT. THEY ARE LIKE A JURY, TO DECIDE THE FACTS, AND I DO NOT THINK A JURYMAN OR A COMMISSIONER SELECTED BY THE COURT, THOUGH PAID BY THE GOVERNMENT, IS AN OFFICER OR HOLDING A POSITION OR EMPLOYMENT UNDER THE UNITED STATES, WITHIN THE MEANING OF THIS STATUTE, UNLESS IT CAN BE SAID THAT THE COURT BEING ESTABLISHED BY THE UNITED STATES, ALL SUCH PERSONS APPOINTED BY THE COURT ARE FILLING POSITIONS OR HAVING EMPLOYMENT UNDER THE UNITED STATES.

"THE COMMISSION DOES NOT HAVE ANY OFFICE IN THE FEDERAL BUILDING AT RUTLAND, BUT IS USING MY CHAMBERS AND THE DISTRICT ATTORNEY'S OFFICE THERE AT OUR INVITATION AND TO SAVE EXPENSE.

"IF MR. MCGUIRK, BY THIS APPOINTMENT IS AN OFFICER OR EMPLOYEE WITHIN THE MEANING OF THE STATUTE, I SUGGEST THAT YOU ASK THE PRESIDENT, OR DELAY UNTIL THE COURT OR THE DISTRICT ATTORNEY--- JOSEPH A. MCNAMARA, ESQ., OF BURLINGTON, VERMONT, WHO REPRESENTS THE GOVERNMENT IN THIS CASE--- HAS AN OPPORTUNITY TO ASK THE PRESIDENT FOR AN ORDER EXEMPTING MR. MCGUIRK FROM THE PROVISIONS OF SECTION 204 UNTIL HE CAN COMPLETE THIS CASE, WHICH WILL TAKE FOUR OR FIVE DAYS MORE. I AM QUITE SURE THAT THE PRESIDENT WOULD DECIDE THAT THE PUBLIC INTEREST REQUIRED SUCH ACTION, INSTEAD OF APPOINTING A NEW COMMISSION TO DO THIS WORK ALL OVER A SECOND TIME.

"I WISH YOU WOULD ADVISE ME DIRECT, AS WELL AS ADVISE MR. MCGUIRK, OF YOUR ACTION AND DECISION, FOR BY MY DIRECTION THE COMMISSION HAS SUSPENDED THE HEARINGS UNTIL WE HEAR FURTHER FROM YOU.'

IN YOUR DECISION OF APRIL 25, 1935, A-60762, IT WAS HELD THAT THE OFFICE OF UNITED STATES COMMISSIONER IS AN "APPOINTIVE OFFICE, POSITION, OR EMPLOYMENT UNDER THE UNITED STATES" WITHIN THE MEANING OF SECTION 204 AND THAT AN EMPLOYEE RETIRED FOR AGE WOULD BE INELIGIBLE FOR AN APPOINTMENT TO SUCH POSITION SUBSEQUENT TO JUNE 30, 1932.

IN VIEW OF THE FOREGOING, YOUR OPINION AS TO WHETHER OR NOT MR. MCGUIRK'S APPOINTMENT AND SERVICE IS IN CONTRAVENTION OF SECTION 204 OF THE ACT OF JUNE 30, 1932, IS REQUESTED.

BY LETTER OF JULY 13, 1935, YOU ADVISE THAT JUDGE HOWE HAS SUBMITTED A FURTHER STATEMENT AS FOLLOWS:

ANOTHER CONDEMNATION CASE HAS JUST BEEN ENTERED IN COURT. THIS IS A PROCEEDING BY WHICH THE GOVERNMENT IS SEEKING TO TAKE OVER DIVERS PARCELS OF VARIOUS LAND BY THE RIGHT OF EMINENT DOMAIN. BY THE LAW OF VERMONT, THE COURT APPOINTS THREE PERSONS TO ACT AS COMMISSIONERS TO HEAR WITNESSES ON THE QUESTION OF BOUNDARY LINES AND THE VALUE OF THE LAND, AND REPORT THEIR DECISION ON THESE QUESTIONS TO THE COURT. ON THE COMING IN OF THEIR REPORT, THE COURT HEARS THE PARTIES, AND EITHER ACCEPTS AND APPROVES OF THE DECISION OF THE COMMISSIONERS, OR REJECTS OR MODIFIES IT. THESE COMMISSIONERS ARE MUCH THE SAME AS JURORS, TO HEAR AND DECIDE THE FACTS; THEY ARE NOT UNITED STATES COMMISSIONERS. THEIR COMPENSATION IS FIXED BY THE COURT AND PAID BY THE GOVERNMENT. I HAVE HABITUALLY FIXED IT AT $10 A DAY.

MR. JAMES J. MCGUIRK, OF MOUNT HOLLY, P.O. EAST WALLINGWORD, HAS BEEN ACTING AS COMMISSIONER IN SEVERAL OF THESE CASES. COMPLAINT WAS MADE TO YOU AGAINST HIS ACTING, BECAUSE HE WAS A RETIRED POSTAL CARRIER AND RECEIVING AN ANNUITY FROM THAT SERVICE. YOU WROTE HIM IN DETAIL ON MAY 13. ON MAY 17, I WROTE YOU IN DETAIL, AND ON MAY 22 YOU WROTE ME THAT THE QUESTION HAD BEEN REFERRED FOR DECISION. I AM EXCEEDINGLY DESIROUS OF APPOINTING MR. MCGUIRK ONE OF THE COMMISSIONERS IN THE CASE JUST ENTERED, AS WELL AS IN OTHER CASES WHICH ARE TO FOLLOW, FOR HE IS A MAN OF MUCH EXPERIENCE AND GOOD SENSE IN DECIDING SUCH QUESTIONS. THEREFORE, IN THE CIRCUMSTANCES OF THIS SITUATION I WOULD APPRECIATE VERY MUCH YOUR OPINION AND DECISION AS TO WHETHER SUCH AN APPOINTMENT WOULD BE AGAINST THE LAW OR ANY OF THE RULES OR REGULATIONS OF THE CIVIL SERVICE COMMISSION.

SECTION 204 OF THE ECONOMY 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.

THE ACT OF AUGUST 1, 1888, 25 STAT. 357, PROVIDES AS FOLLOWS:

THAT IN EVERY CASE IN WHICH THE SECRETARY OF THE TREASURY OR ANY OTHER OFFICER OF THE GOVERNMENT HAS BEEN, OR HEREAFTER SHALL BE, AUTHORIZED TO PROCURE REAL ESTATE FOR THE ERECTION OF A PUBLIC BUILDING OR FOR OTHER PUBLIC USES HE SHALL BE, AND HEREBY IS, AUTHORIZED TO ACQUIRE THE SAME FOR THE UNITED STATES BY CONDEMNATION, UNDER JUDICIAL PROCESS, WHENEVER IN HIS OPINION IT IS NECESSARY OR ADVANTAGEOUS TO THE GOVERNMENT TO DO SO, AND THE UNITED STATES CIRCUIT OR DISTRICT COURTS OF THE DISTRICT WHEREIN SUCH REAL ESTATE IS LOCATED, SHALL HAVE JURISDICTION OF PROCEEDINGS FOR SUCH CONDEMNATION, AND IT SHALL BE THE DUTY OF THE ATTORNEY GENERAL OF THE UNITED STATES, UPON EVERY APPLICATION OF THE SECRETARY OF THE TREASURY, UNDER THIS ACT, OR SUCH OTHER OFFICER, TO CAUSE PROCEEDINGS TO BE COMMENCED FOR CONDEMNATION, WITHIN THIRTY DAYS FROM THE RECEIPT OF THE APPLICATION AT THE DEPARTMENT OF JUSTICE.

SEC. 2. THE PRACTICE, PLEADINGS, FORMS, AND MODES OF PROCEEDINGS IN CAUSES ARISING UNDER THE PROVISIONS OF THIS ACT SHALL CONFORM, AS NEAR AS MAY BE, TO THE PRACTICE, PLEADINGS, FORMS, AND PROCEEDINGS EXISTING AT THE TIME IN LIKE CAUSES IN THE COURTS OF RECORD OF THE STATE WITHIN WHICH SUCH CIRCUIT OR DISTRICT COURTS ARE HELD, ANY RULE OF THE COURT TO THE CONTRARY NOTWITHSTANDING.

A FACT-FINDING COMMISSIONER APPOINTED BY A UNITED STATES DISTRICT COURT UNDER AUTHORITY OF THIS STATUTE, OR ANY OTHER FEDERAL STATUTE AUTHORIZING CONDEMNATION OF LAND FOR A SPECIFIC FEDERAL PURPOSE, WHOSE COMPENSATION IS PAID FROM FEDERAL FUNDS, UNQUESTIONABLY OCCUPIES AN "APPOINTIVE OFFICE, POSITION, OR EMPLOYMENT UNDER THE UNITED STATES OR THE DISTRICT OF COLUMBIA" (QUOTING FROM SECTION 204 OF THE ECONOMY ACT). THE FACT THAT THE COMMISSIONER MAY BE APPOINTED PURSUANT TO A STATE PROCEDURE AS AUTHORIZED BY THE FEDERAL STATUTE DOES NOT CHANGE THE STATUS OF THE COMMISSIONER FROM THAT OF A FEDERAL OFFICER TO A STATE OFFICER. SUCH A COMMISSIONER IS AN OFFICER OF THE UNITED STATES COURT AND, ACCORDINGLY, A UNITED STATES OFFICER OR EMPLOYEE WITHIN THE MEANING OF SECTION 204 OF THE ECONOMY ACT, SUPRA. SEE 14 COMP. GEN. 791.

THEREFORE THE APPOINTMENT, AFTER JUNE 30, 1932, DATE OF THE ECONOMY ACT, OF JAMES J. MCGUIRK AS A SPECIAL COMMISSIONER, WAS UNLAWFUL AND ENTITLES HIM TO NO PAYMENT OF COMPENSATION AS SUCH.

WITH REGARD TO JUDGE HOWE'S SUGGESTION THAT THE PRESIDENT BE ASKED TO EXEMPT MCGUIRK FROM THE TERMS OF SECTION 204 OF THE ECONOMY ACT, REFERENCE IS MADE TO THE FOLLOWING QUOTATION FROM DECISION OF MAY 31, 1935, A-61476, 14 COMP. GEN. 865, TO THE SECRETARY OF LABOR:

THE PROVISO IN SECTION 204 OF THE ACT OF JUNE 30, 1932, RELATIVE TO EXEMPTION BY EXECUTIVE ORDER RELATES ONLY TO THE CONTINUANCE IN SERVICE OF PERSONS ALREADY EMPLOYED AND HAS NO APPLICATION TO THE INHIBITION IN THE FURTHER PROVISO WHICH FOLLOWS IT RELATIVE TO REEMPLOYMENTS. UNDER THE PROVISIONS OF SAID SECTION 204, NO PERSON WHO HAS HAD FIFTEEN YEARS OF SERVICE AND ATTAINED THE AGE FOR AUTOMATIC RETIREMENT MAY BE REEMPLOYED, REGARDLESS OF HIS ANNUITY STATUS.

AS MR. MCGUIRK WAS UNLAWFULLY REEMPLOYED THERE IS NO AUTHORITY IN THE PRESIDENT TO EXEMPT HIM FROM THE TERMS OF SECTION 204 OF THE ECONOMY ACT OR TO OTHERWISE CONTINUE HIM IN SUCH UNLAWFUL EMPLOYMENT.