Baker v. United States

• Decision Date: 23 January 1980
• Docket Number: No. 88-78.,88-78.
• Citation: 614 F.2d 263
• Parties: O. Kenneth BAKER and John R. Langenbach v. The UNITED STATES.
• Court: U.S. Claims Court

614 F.2d 263

O. Kenneth BAKER and John R. Langenbach v. The UNITED STATES.

No. 88-78.

United States Court of Claims.

January 23, 1980.

COPYRIGHT MATERIAL OMITTED

Philip G. Sunderland, Washington, D. C., attorney of record for plaintiffs; Bruce J. Terris, Washington, D. C., of counsel.

Ransey G. Cole, Jr., Washington, D. C., with whom was Asst. Atty. Gen. Alice Daniel, Washington, D. C., for defendant; Lydia Parnes, Washington, D. C., of counsel.

Before SKELTON, Senior Judge, KASHIWA and BENNETT, Judges.

ON PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT AND DEFENDANT'S CROSS-MOTION FOR PARTIAL SUMMARY JUDGMENT

SKELTON, Senior Judge:

O. Kenneth Baker, plaintiff, a former employee of the Department of Labor (DOL), seeks retirement credit under the Civil Service Retirement Law (5 U.S.C.A. §§ 8331-8348) for his service in a federal-state cooperative program in the State of New York. The case is before us on cross-motions for a partial summary judgment.¹

The facts on which Baker bases his claim are as follows: From October 1, 1931, to April 14, 1941, he was employed by the New York State Employment Service (NYSES), an agency of the State of New York. On June 6, 1933, the Wagner-Peyser Act (Act of June 6, 1933, ch. 49, 48 Stat. 113), 29 U.S.C. § 49, et seq. was enacted, establishing a federal-state cooperative program designed to reduce unemployment. After electing to participate in this program, which was administered by the United States Employment Service (USES) of the DOL, the State of New York received funds and technical assistance under the Act. From June 6, 1933, to April 14, 1941 (the time period forming the basis of Baker's claim for retirement credit in his motion), Baker participated in this federal-state cooperative employment program through his service with the NYSES. On April 15, 1941, Baker became an employee of the DOL and remained an employee until his retirement from that Department on May 1, 1971. On September 11, 1945, Baker submitted an Application for Service Credit to the Civil Service Commission (CSC) requesting retirement credit for his service with the NYSES from January 1, 1940, through April 14, 1941. This request was denied. After his retirement on May 1, 1971, Baker began drawing an annuity based upon his service with the DOL from April 15, 1941, to May 1, 1971. His service with the NYSES was not included. On September 10, 1976, Baker filed a claim with the CSC for retirement credit for his prior service with the NYSES. On January 18, 1977, the Bureau of Retirement, Insurance and Occupational Health denied his claim. On January 28, 1977, he appealed the Bureau's denial of his claim to the CSC's Board of Appeals and Review. The Board affirmed the Bureau's decision on December 2, 1977. On December 27, 1977, Baker requested reconsideration of the Board's decision by the Commissioners of the CSC. His request was denied by the Commissioners on February 8, 1978. On March 14, 1978, Baker filed the present suit in this court. He contends that he is entitled to retirement credit under the federal CSC laws for his service with the NYSES because he was a federal employee during his service with that program. He argues that his employment and work in New York satisfied the three-fold test for federal employment set forth in 5 U.S.C. § 2105, namely, federal appointment, federal supervision, and federal function. Consequently, he says that he should be allowed retirement credit for such service.

There is a serious question whether Baker's suit was timely filed, but we find it unnecessary to decide that question because we think that on the merits he clearly cannot recover.

The case presents the basic issue of whether Baker's service with the NYSES meets the three-fold test for federal employment.²

I. FEDERAL EMPLOYMENT

As stated above, Baker claims that his work with the NYSES was creditable service performed by him as a federal employee that entitles him to additional annuity payments. He bases his claim for such retirement credit on 5 U.S.C.A. § 8332, which states in pertinent part:

"§ 8332. Creditable service

(a) The total service of an employee or Member is the full years and twelfth parts thereof, excluding from the aggregate the fractional part of a month, if any.

(b) The service of an employee shall be credited from the date of original employment to the date of separation on which title to annuity is based in the civilian service of the Government." (Emphasis supplied).

The Government contends that Baker was not employed by the Federal Government for the NYSES work. The definition of an "employee" for CSC purposes is contained in 5 U.S.C. § 2105³ which states:

"§ 2105. Employee

(a) For the purpose of this title, `employee', except as otherwise provided by this section or when specifically modified, means an officer and an individual who is —

(1) appointed in the civil service by one of the following acting in an official capacity —

(A) the President;

(B) a Member or Members of Congress, or the Congress;

(C) a member of a uniformed service;

(D) an individual who is an employee under this section;

(E) the head of a Government controlled corporation; or

(F) the adjutants general designated by the Secretary concerned under section 709(c) of title 32, United States Code;

(2) engaged in the performance of a Federal function under authority of law or an Executive act; and

(3) subject to the supervision of an individual named by paragraph (1) of this subdivision while engaged in the performance of the duties of this position." (Emphasis supplied).

It is obvious, therefore, that for Baker to be considered a "federal employee", he must meet all three tests of this statutory definition, i. e., federal appointment, federal supervision, and federal function. We will first consider the federal appointment portion of this three-fold test. If Baker did not have a federal appointment, it will not be necessary to consider the other two requirements, as it is well settled that all three tests must be met by an individual before he can be a federal employee.

Baker contends that he meets the federal appointment requirement based on a CSC ruling in 1957 involving employees in the Extension Service of the United States Department of Agriculture.⁴ That case involving employees of the extension service program of the U.S.D.A. is not now before us and, therefore, we cannot review it. Baker's claim will be decided only on the facts upon which it is based and in accordance with the Constitution and existing statutory and case law. We cannot consider a past CSC ruling in another case not before us, particularly the one upon which Baker relies, because, as far as we know, it involved a different set of facts and a different statutory framework. If the CSC ruling in that case complied with the relevant statutory provisions, then it was correct as far as it applied to those individuals involved and their particular circumstances. On the other hand, if the ruling violated the statutes, then it was invalid. However, we are in no position to say whether it was valid or invalid since that case is not before us. Even if the ruling there by the CSC were unauthorized, the Government is not thereby estopped to correctly apply the annuity retirement law to Baker's claim in the instant case. Federal Crop Insurance Corp. v. Merrill, 332 U.S. 380, 68 S.Ct. 1, 92 L.Ed. 10 (1947). The CSC could not by a ruling change the law enacted by Congress. See Montilla v. United States, 457 F.2d 978, 198 Ct.Cl. 48 (1972). However, it could change its interpretation of the law. This is frequently done by government departments, especially the Internal Revenue Service. It is not unusual for the IRS to reverse its position on a particular tax problem, but such reversal does not change the statutory law. We must apply and enforce the law in the case here regardless of what the CSC may have done in the past in another case.

Our review of the law governing government positions and appointments thereto must begin with the United States Constitution. Article 2, Section 2, Clause 2 of the Constitution provides as follows:

"He the President shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments." (Emphasis supplied).

While the Constitution speaks only of the appointment of "Officers" and "inferior Officers" and not of employees, these terms are, in practice, synonymous. This fact is recognized by 5 U.S.C.A. § 2105 which defines an "employee" as an "officer and individual." Also, in this regard, the Supreme Court in considering the differences between a government officer and an employee and how they obtain their respective positions stated in Burnap v. United States, 252 U.S. 512, 40 S.Ct. 374, 64 L.Ed. 692 (1920):

"The term `employ' as used in a statute, Rev.Stat. § 169, stating that a head of a Department is authorized to employ clerks, etc. is used as the equivalent of appoint.

. . . . . .

"The distinction between officer and employee in this connection the interpretation of Rev.Stat. § 169 does not rest upon differences in the qualifications necessary to fill the positions or in the character of the service to be performed. Whether the incumbent is an officer or an employee is determined by the manner in which Congress has specifically provided for the creation of the several positions, their duties and appointment thereto." 252 U.S. at 515-16, 40 S.Ct. at 376, 64 L.Ed.

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