
    JOHN BOYLE v. THE UNITED STATES
    [No. 300-60.
    Decided November 7, 1962.
    Defendant’s motion for reconsideration denied April 5, 1963]
    
      
      Jess Larson, for plaintiff.
    
      Kendall M. Barnes, with whom was Acting Assistant Attorney General Josef h D. Guilfoyle, for defendant.
   Dueeee, Judge,

delivered the opinion of the court:

This is an action for refund of deductions made by defendant from plaintiff’s compensation for legal services rendered under a series of contracts with the General Services Administration from 1953 to date.

Plaintiff was a patent lawyer who retired from Government service at the age of 70 in 1948 with retirement annuity. Immediately thereafter he was re-employed in the same status. This re-employment was finally terminated through a reduction in force by the General Services Administration (GSA) in 1953.

In June 1953 plaintiff was tendered, and accepted, a contract with GSA as Patent-Counsel on a per diem fee basis. Successive contracts have continued down to June 30, 1962. Deductions have been made from the amounts payable to plaintiff under these contracts of such portions of plaintiff’s retirement annuity as was allocable to the period of services rendered. Plaintiff seeks to recover these deductions, which were made from 1953 to 1956 under the following provisions of the Civil Service Retirement Act, 5 TJ.S.C. (1952 ed.) 715(b) Sec. 2(b) Civil Service Retirement Act of 1930:

No person who is receiving an annuity under the provisions of this Act and who has reached the age of sixty years shall be eligible again to appointment to any appointive office, position, or employment under the Government of the United States or of the District of Columbia, unless the appointing authority determines that he is possessed of special qualifications: Provided, That no deductions for the retirement fund will be withheld from the salary, pay, or compensation of such person, but 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: * * *. [Emphasis supplied.]

As revised in 1956, Sec. 13 (b) Civil Service Retirement Act of 1956, 70 Stat. 757, 5 U.S.C. (1958 ed.) § 2263(b), this provision reads as follows:

If an annuitant under this chapter * * * hereafter becomes.employed, or on July 31, 1956 is serving, in an appointive or elective position, his service on and after the date he was or is so employed shall be covered by this chapter. No deductions for the fund shall be withheld from his salary, but there shall be deducted from his salary * * * a sum equal to the annuity allocable to the period of actual employment * *. [Emphasis supplied.]

Plaintiff asserts that during the period of 1953 to 1962 when these successive contracts were in effect, he was not appointed “to any appointive office, position or employment” in the Government, receiving “salary, pay, or compensation” within the meaning of section 2(b) of the Civil Service Retirement Act of 1930; nor was he “employed” or “serving in an appointive or elective position,” receiving “salary” from the Government within the meaning of section 13(b) of the Ketirement Act of 1956, on or after its effective date of July 31, 1956.

Plaintiff contends that he was engaged by the Government under these successive contracts as an independent contractor from 1953 to 1962, and therefore entitled to recover the deductions made from his compensation or fees.

The first contract was contained in a letter from the General Services Administration (GSA) dated June 24, 1953, and provided:

Pursuant to the authority vested in me by Section 710(0) of the Defense Production Act of 1950, as amended, and Executive Order 10161, as amended, you are offered a contract as Patent Counsel for one (1) year, effective as of the date of this letter, on a retainer-fee basis of fifty dollars ($50.00) per diem, payable monthly, when called upon to render legal services relating to the business of this Administration.
In connection with the performance of legal services, you will be provided with the necessary office space and secretarial assistance.
The fee to be paid you shall not exceed four hundred dollars ($400) per month unless otherwise specifically authorized.
All vouchers for professional services rendered, traveling expenses and subsistence should be prepared in accordance with standard Government regulations.
The arrangement herein set forth is that of attorney and client on a contract or fee basis and is not an appointment and either party may terminate this arrangement at wild.
Please confirm that you will make your services available to the Administration upon the foregoing basis by indicating your acceptance on and returning the duplication of this letter which is enclosed. [Emphasis supplied.]

The subsequent contracts were essentially the same.

On December 27, 1955 the Comptroller General denied plaintiff’s first claim for refund of the amounts withheld, and stated:

* * * 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. * * *

Section 208 (b) of the Federal Property and Administrative Services Act of 1949, 63 Stat. 391; 5 U.S.C. § 630h(b), provides:

To such extent as he finds necessary to carry out the provisions of this chapter, chapter 10 of Title 40, chapter 4 of Title 41 and chapter 11 of Title 44, the Administrator is authorized to procure the temporary (not in excess of one year) or intermittent services of experts or consultants * * * by contract or appointment, and in such cases such service shall be without regard to the civil-service and classification laws, * * *.

Section 710(c) of the Defense Production Act of 1950, 64 Stat. 819, provides:

The President is authorized, to the extent he deems it necessary and appropriate in order to carry out the provisions of this Act to employ experts and consultants * * *, as authorized by section 55a of Title 5 of the United States Code. Individuals so employed may be compensated at rates not in excess of $50 per diem * * *.

Title 5 U.S.C. § 55a as referred to in the foregoing statutes, provides :

The head of any department, when authorized in an appropriation or other Act, may procure the temporary (not in excess of one year) or intermittent services of experts or consultants * * * by contract, and in such cases such service shall be without regard to the civil-service and classification laws * * *.

Clearly, under these provisions, the head of the GSA had full authority to secure the “temporary — or intermittent” services of “experts or consultants” by “contract or appointment” and “in such cases such service shall be without regard to the civil-service and classification laws.” The GSA expressly contracted with plaintiff pursuant to this authority. It is likewise clear from the contract that at the outset, both GSA and plaintiff intended to establish an independent contractor relationship, as distinguished from the employment status of a person holding “any appointive office, position or employment” receiving “salary, pay, or compensation” under the 1930 Retirement Act or “employed — or serving in an appointive or elective position” and receiving “salary” under the 1956 Retirement Act.

The first contract specified that the arrangement was “that of attorney and client on a contract or fee basis and is not an appointment and either party can terminate this arrangement at will,” and the subsequent contracts were essentially the same, as concluded by the Comptroller General in his letter to plaintiff dated July 30, 1957.

Another basis of the denial by the Comptroller General was “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.”

Plaintiff’s compensation under the contract was based upon both considerations, viz: the time that he actually worked and upon the accomplishment of a particular result in specific patent law problems. These specific problems were assigned solely to him and demanded the exercise of his own independent, professional judgment free from supervision or control as to any of his opinions or decisions. No officer or employee of GSA ever intervened in any such opinion or decision. His per diem fees, though limited in time and amount under Government restrictions applicable to outside experts and consultants, were paid for “the accomplishment of a particular result,” in the words of the Comptroller General.

Plaintiff was not being paid a “salary” within the meaning of section 13 (b) of the Civil Service Retirement Act of 1956. To reach a contrary conclusion would require us to disregard the explicit language of the contracts as to “retainer-fee basis,” “fees” or “per diem payment,” which are not fixed periodical stipends for regular weekly, monthly or annual periods of work. United States v. Gorman, 76 F. Supp. 218 (D.C. La., 1948); Benedict v. United States, 176 U.S. 357 (1900).

When Congress changed the authority for deductions from “salary, pay, or compensation” as expressed in the 1930 Retirement Act to “salary” as stated in the 1956 Act this was either to clarify the meaning of the earlier words “salary, pay, or compensation” or to further limit the deductions.

Section 2(b) of the Act of 1930 refers only to Federal annuitants “eligible again to appointment to any appointive office, position or employment.” Section 13(b) of the Act of 1956 refers to annuitants hereafter employed, or on July 31, 1956, are serving “in an appointive or elective position.” Plaintiff was not appointed or elected; he was offered, and accepted, a contract which clearly intended that he was to be an independent contractor.

In the absence of any language indicating a contrary intent of Congress, we conclude that neither the Act of 1930 nor the Act of 1956 was intended to include plaintiff’s attorney fees as being subject to the Civil Service Retirement pay deductions.

Another reason given by the Comptroller General for his denial of plaintiff’s claim for refund of deductions was that “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.”

The evidence is clear, as set forth in our findings, that plaintiff’s qualifications to serve the agency needs were unique in the particular area of patent law for which the Government contracted for Ms services. Immediately after Ms compulsory retirement at age 70 in 1948, be was reemployed pursuant to a determination by tlie War Assets Administration that be was “possessed of special qualifications,” as required by section 2(b) of the Act of 1930. This re-employment was terminated through reduction in force on May 15, 1953. A month later GSA offered plaintiff his first part-time contract, since the volume of work was insufficient to require full-time services by plaintiff. From this apparent compulsion on the part of GSA to acquire plaintiff’s particular services, it is clear that the agency had “urgent and compelling reasons” to procure plaintiff’s services on a contract basis, and that these were not “services normally susceptible of being performed by Government employees,” as concluded by the Comptroller General.

During plaintiff’s service as a full-time employee, prior to the first contract in 1953, he reported for work regularly and worked regular hours as required by regulations. After 1953, he came to work when he saw fit and kept no regular office hours.

As an employee prior to 1953, he was under general supervision as to the performance of his work, which came to Mm automatically through established supervisory channels. After 1953, as a contractor, his case assignments did not flow through established channels of supervision. The particular patent cases and problems of which he had unique knowledge were referred to him directly by the General Counsel or by the Assistant General Counsels of the various divisions of GSA entirely without regard one to the other. The matters on which he worked and the results of his actions were entirely witlfin his own unsupervised determination.

The evidence discloses that under the several letter contracts with GSA, plaintiff had rendered extensive services as a consultant and expert adviser to the Department of Justice. Consultations had been arranged by and between plaintiff and the Department of Justice entirely without supervision or review by GSA of any appointment made or advice given by plaintiff.

Defendant concedes that viz-a-viz his client, a lawyer is the classic example of an independent contractor, but that a lawyer who is paid a salary as a member of the legal staff of a corporation, the lawyer employed by a large law firm, or the lawyer working in a Government agency, clearly has the status of an employee.

Plaintiff was not paid a “salary;” he contracted to work on what the GSA correctly described as a “retainer-fee” and “per diem” basis. He was not a member of the legal staff of the GSA; his services were contracted for under a special statute because he was an expert and consultant with unusual and unique qualifications in his field. He was completely free from supervision in the determination of the specific cases and problems assigned to him.

We conclude that plaintiff was not hired as an employee under the provisions of either the 1930 or 1956 Civil Service Retirement Acts which authorized deductions from the salary of re-employed Federal annuitants. Under the written contracts and the particular facts, plaintiff was an independent contractor, validly engaged as an expert and consultant under section 710 of the Defense Production Act as implemented. Plaintiff is entitled to judgment for refund of the retirement deductions withheld from his compensation from June 29, 1953, to date.

Plaintiff bases his claim upon a breach of his contract with the GSA, alleging that defendant failed to fully compensate him for his services pursuant to the terms of the contract. The statute provides that interest may not be awarded by this court on claims based on contract unless the contract itself calls for interest. 28 U.S.C. § 2516. Mississippi Valley Generating Co. v. United States, 147 Ct. Cl. 1, rvs'd. on other grounds, 364 U.S. 520. Plaintiff’s contract does not provide for the payment of interest.

Judgment will be entered for plaintiff with the amount of recovery to be determined pursuant to Rule 38(c).

Davis, Judge; LaRamoee, Judge; Whitaker, Judge; and JONES, Chief Judge, concur.

FINDINGS OF FACT

The court, having considered the evidence, the report of Trial Commissioner W. Ney Evans, and the briefs and argument of counsel, makes findings of fact as follows:

1. (a) On December 31,1948, plaintiff, having then reached tbe age of 70, was retired, from tbe classified position of P-6 Attorney in tbe office of tbe General Counsel, War Assets Administration. His salary was $8,389.80 per annum.

(b) Plaintiff’s retirement annuity was at that time fixed at $180 per month ($2,160 per year). Subsequent legislation has increased tbe amount to $219 per month ($2,628 per year).

(c) On January 1,1949, pursuant to a requisite determination by tbe employing agency that he was possessed of special qualifications, plaintiff was reemployed by the War Assets Administration in the same position, at the same salary, and without a break in service.

(d) On May 15, 1953, following notice duly given, the employment described in the preceding paragraph was terminated through reduction in force by the employing agency, which was then War Assets Administration’s successor, the General Services Administration (hereinafter GSA).

2. (a) On June 24, 1953, the Administrator of GSA tendered to plaintiff (without solicitation on his part) the following:

Pursuant to the authority vested in me by Section 710(c) of the Defense Production Act of 1950, as amended, and Executive Order 10161, as amended, you are offered a contract as Patent Counsel for one (1) year, effective as of the date of this letter, on a retainer-fee basis of fifty dollars ($50.00) per diem, payable monthly, when called upon to render legal services relating to the business of this Administration.
In connection with the performance of legal services, you will be provided with the necessary office space and secretarial assistance.
The fee to be paid you shall not exceed four hundred dollars. ($400) per month unless otherwise specifically authorized.
All. vouchers for professional services rendered, traveling expenses and subsistence should be prepared in accordance with standard Government regulations.
The arrangement herein set forth is that of attorney and client on a contract or fee basis and is not an appointment and either party may terminate this arrangement at will.
Please confirm that you will make your services available to the Administration upon the foregoing basis by indicating your acceptance on and returning the duplication of this letter which is enclosed.

(b) On June 29, 1953, plaintiff accepted the offer, and thereafter rendered legal services pursuant to the agreement in manner hereinafter described.

(c) On July 15, 1954, the Administrator of GSA addressed to plaintiff, and plaintiff signed as accepted, the following letter contract:

Pursuant to the authority vested in me by Section 710(c) of the Defense Production Act of 1950, as amended, and Executive Order 10480, you are offered a contract as Patent Counsel, effective as of the date of this letter, on the basis of Forty-five Dollars ($45.00) per diem, payable monthly, when called upon to render legal services relating to the business of this Administration.
In performance of these legal services you will be provided with the necessary office space and secretarial assistance.
Your services will be required on an intermittent basis, but in no event shall your services be used in excess of one hundred days per annum unless otherwise specifically authorized.
The per diem payment set out above shall be in full compensation for all services rendered by you as a contract attorney in the performance of your duties but any expense for travel and subsistence incurred by you in connection with such duties shall be at the expense of the Government (subject to the limitations imposed by law and regulations upon Government employees).
For subsistence expenses there shall be allowed jrou, in lieu of actual subsistence expenses, the same per diem allowances as are permitted employees of the United States Government under General Services Administration Manual GS-2, Volume GS 2-4, Part 5, Section 505.01, the provisions of which are hereby incorporated by reference. Any changes subsequently made in such regulation shall also, if applicable, cover payment of subsistence expenses under this contract.
Either party may terminate this arrangement at will.
It is an express condition of this contract that no member or delegate to Congress or resident commissioner shall be admitted to any share or part of this contract or to any benefit arising therefrom and it is further agreed that this contract shall not be assigned.
Please confirm that you will make your services available to the Administration upon the foregoing basis by indicating your acceptance on and returning the duplicate of this letter.

(d) When payment was made of plaintiff’s voucher for services rendered in October 1954 in performance of the foregoing contract, there was deducted from the amount certified as due such portion of plaintiff’s retirement annuity as was allocable to the period of services rendered. No such deductions had been made theretofore. Thereafter, however, deductions were made retroactively to June 29, 1953, and have been continued to date.

(e) Letter contracts between plaintiff and GSA, similar to the contracts hereinabove set forth, have been continued from 1953 to the present time. The subsisting contract was made as of July 1, 1961, and will terminate June 30, 1962.

(f) At the outset of the series of letter contracts, the Administrator of GSA as well as plaintiff intended to provide for professional services to be rendered by plaintiff as an independent contractor as distinguished from an appointment to a position where the employee would be compensated “when actually employed.”

3. (a) GSA’s need for plaintiff’s services, as arranged by the series of letter contracts, has been genuine but limited, in that the agency urgently needed legal advice in plaintiff’s specialized field of competence, although the volume of work was insufficient to require full-time work if the services were rendered by plaintiff.

(b) Plaintiff’s qualifications to serve the agency needs are unique. He is a graduate engineer in mining and metallurgy, an attorney at law admitted to practice in several Federal courts, a patent attorney of long and varied experience, and possessed, by reason of assignments in Government service over a period of years, of detailed and specialized knowledge of various patent law problems engaging agency attention.

(c) Specific patent law problems engaging GSA attention, upon which plaintiff has advised both as a full-time employee prior to May 15,1953, and as a contractor for part-time services, include legal proceedings pending in:

(1) The United States District Court in Kansas wherein the Government seeks recovery from an oil refinery on the basis of highly technical wartime oil cracking patent license agreements, this suit being the fourth of its kind (recovery having been established against three other refiners); and

(2) The United States Court of Claims, wherein Dominion Magnesium, Ltd., in Case No. 667-53, claims $1 million because of the use by Government defense plants of the ferrosilicon process for providing magnesium.

Also, in 1956, plaintiff was alone among the individuals connected with GSA who was fully familiar with the background of the patent aspects of the Nicaro Project, involving technical metallurgical procedures for the processing of nickel ores.

4. (a) Asa full-time employee prior to May 15,1953, and as a contractor for part-time services since June 29, 1953, plaintiff has rendered legal services as a consultant and expert adviser to GSA on patent matters that were referred to him on a case basis.

(b) At all times these cases have comprised matters such as prosecution of patent applications before the United States Patent Office; preparation of patent license agreements and assignments of patents and inventions; review of contracts relating to defense production of metals and minerals; resolution of questions of patent infringement and validity of patents; collaboration with attorneys in other Government agencies with mutual interests in patent litigation; service on Government Patents Board; and settlement of wartime oil cracking patent license agreements.

(c) At all times the cases so assigned to plaintiff have demanded the exercise of independent, professional judgment in applying various laws, court decisions, and procedures and practices relating to patent laws affecting GSA. In the exercise of such judgment, plaintiff has at all times been free from supervision or control as to any opinion or decision. No officer or employee of GSA has ever intervened in any such opinion or decision.

5. (a) As a full-time employee of GSA prior to May 15, 1953, plaintiff was assigned office space by GSA where he reported for work regularly in accordance with regulations. Case assignments came to him through the established channels of the office of the General Counsel. He worked regular hours; was under general supervision as to the performance of his work and as to compliance with applicable, internal regulations of office procedure; received a fixed salary; and was credited with and permitted the use of standard leave allowances.

(b) As a contractor with GSA for part-time services since June 29, 1953, plaintiff has been assigned office space and provided with secretarial assistance by GSA. Plaintiff decides when and if he should come to that office for the purpose of rendering his services. Pie has kept no regular hours in such office. Case assignments no longer flow to him automatically through established channels. Questions and cases relating to patent matters are (and have been) referred to him directly by the General Counsel or by the Assistant General Counsels of the various divisions of GSA, entirely without regard one to the other. The matters upon which he has worked and the results of his action are (and have been) entirely for his own unsupervised determination.

(c) Plaintiff keeps (and has kept) a record of the date and hours or fractions of an hour devoted to each case and renders monthly an itemized statement to the General Counsel, identifying the case and showing the date and time spent on each case. The total number of hours is (and has been) divided by eight, and plaintiff is (and has been) paid for the resulting number of 8-hour days at the contract per diem rate after deduction of the retirement annuity. No leave allowances are (or have been) credited to plaintiff in connection with contract services.

(d) The annual totals of compensation paid to plaintiff by GSA for contract services have varied from year to year.

6. (a) When the letter contracts between the Administrator and plaintiff were referred to the Personnel Office of GSA for recording and processing, that office classified them as standard “Requests for Personnel Action” and listed plaintiff’s relationship to GSA as being an “Excepted Appointment” of a “re-employed annuitant” to be compensated “W.A.E.” (which is personnel shorthand for “when actually employed”).

(b) When the question arose within GSA as to the propriety or, indeed, the legality of paying to plaintiff the compensation specified by the contracts without deducting the retirement annuities allocable to the periods of contract service, the Personnel Office of GSA challenged the authority of the agency to pay the compensation without making the deductions. There followed an interoffice memorandum containing a detailed legal analysis designed to refute the position of the Personnel Office and to justify payment of compensation-without-deductions as being the legal obligation of GSA to an independent contractor. There is no evidence of action by the Administrator of GSA to resolve this conflict of opinion.

(c) Shortly after deductions of allocable retirement pay from contract compensation were begun, plaintiff presented to the Comptroller General claims for payment to him of the amounts withheld. On December 27, 1955, the Comptroller General denied the claim, writing to plaintiff as follows:

* * * 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 N1949. 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. * * *

(d) On December 16, 1957, the Chief of the Betirement Division of the Civil Service Commission, replying to a letter from plaintiff, advised him as follows:

* * * Similar provision for deducting annuity from salary upon reemployment has been in the retirement law since February 28, 1948, and there has never been any question but that the reemployed annuitant was subject to this requirement regardless of the type of his employment. We can only hold therefore that you are not excluded from the provisions of section 13(b) and that the Commission does not, nor does any other agency or person, have authority to so exclude you.
Decision as to compensation due you rests within the jurisdiction of the Comptroller General. His holding in your case is in accord with a long line of prior decisions involving the same subject matter. * * *

(e) Plaintiff has exhausted his administrative remedies.

CONCLTTSION OP LAW

Upon the foregoing findings of fact, which are made a part of the judgment herein, the court concludes as a matter of law that plaintiff is entitled to recover of and from the United States the amount of civil service retirement annuity payments withheld from his compensation from June 29, 1953, to date.

Judgment will be entered for plaintiff with the amount of recovery to be determined pursuant to Rule 38(c).

In accordance with the opinion of the court and on a memorandum report of the commissioner as to the amount due thereunder, it was ordered on October 11, 1963, that judgment for the plaintiff be entered for $6,932.27. 
      
       Plaintiff was born December 30, 1878.
     
      
       These were not deductions of a percentage of earnings as contributions to the civil service retirement fund. They were deductions of allocable portions of plaintiff’s retirement annuity. While his annuity was $180 per month ($2,160 per year), the deductions were computed at $8.0377 for each day worked ($2,160 divided by 260 days). .When the annuity was increased to $219 per month, the deduction became $10.1077 per day.
     
      
      
         On Becember 6, 1954, the Administrator addressed to plaintiff a letter captioned “Amendment of Contract for Personal Services * * in which he stated (and plaintiff accepted) the following: “It is mutually agreed between the contracting parties that the captioned contract is hereby amended whereby the services furnished by the contracting party, John Boyle, are compensated on a Pee Basis, and is not an appointment to any office or position in this Administration. * * *” Subsequent letter contracts included references to compensation on a fee basis.
     
      
       The letter contracts have uniformly cited section 710(c) of the Defense Production Act of 1950, as amended, as basic authority for the administrative action. Among the Executive orders similarly cited (in addition to Executive Orders Nos. 10161 and 10480 cited in the contracts of 1953 and 1954) was Executive Order 10647. Of., Executive Orders 10182 and 10205.
     
      
       Cf., finding 6(a).
     
      
       In 1901, plaintiff received a bachelor of science degree in mining and metallurgy from the Massachusetts Institute of Teehnologv.
     
      
      
         Plaintiff has been admitted to practice in the united states District Court and the united States Court of Appeals for the District of Columbia, the United States Court of Customs and Patent Appeals, and the Supreme Court of the united States.
     
      
       Plaintiff was an examiner in the united States Patent Office from March 23, 1903,, to September 30, 1919. He was engaged in the private practice of patent law before the united States Patent Office and the courts from October lr 1919, to December 81, 1941. On January 1, 1942, he reentered the Federal service and, as a full-time employee, served as patent counsel in the offices of (1) the Alien Property Custodian, (2) the Reconstruction Finance Corporation, (3) the War Assets Administration, and (4) the General Services Administration. His full-time employment was terminated on May 15, 1953, as set forth in finding 1 (d).
     
      
       Under the several letter contracts with GSA, plaintiff has rendered extensive services as a consultant and expert adviser to the Department of Justice in the case of Dominion Magnesium, Ltd. v. United States, Ct. Cl. No. 667-53, involving a question of patent infringement arising out of GSA defense production orders. These consultations have been arranged by and between plaintiff and the Department of Justice entirely without supervision or review by GSA of any appointment made or advice given by plaintiff.
     
      
       In the performance of his contract services, plaintiff has never been subject to supervision as to hours of work or as to compliance with internal regulations of office procedures. His use of an office supplied by GSA facilitates his access to Government records and promotes mutual convenience in his consultations with GSA employees.
     
      
       This method of computation as to the number of days worked has been accepted by the Civil Service Commission.
     
      
       The memorándum was prepared by, an attorney in the office of General Counsel, GSA, and was addressed to the Assistant General Counsel.
     
      
       On May 16, 1957, the Comptroller General advised the Administrator of GSA “* * * to reduce all per diem payments to Mr. Boyle by the Civil Service annuity allocable to days of employment in accordance with 28 Comp. Gen. 693 * * thereby incorporating by reference the position taken in his letter to plaintiff.
     