The opinion of the court was delivered by: JACKSON
The 13 individual plaintiffs were indisputably employees of someone when they worked for varying periods between 1949 and 1964 under a contract for scholarly services between the Georgetown University and the Department of the Army, and they have brought suit here to set aside the decision of the Appeals Review Board ("ARB" or "Board") of the Civil Service Commission upholding the determination of the Bureau of Retirement, Insurance and Occupational Health ("BRIOH") that they were not federal employees within the meaning of 5 U.S.C., § 2105, during their respective tenures and, thus, not entitled to have those periods included in computing their civil service retirement benefits.
The case is now before the Court on cross-motions for summary judgment. For the reasons hereinafter set forth plaintiffs' motion will be denied, the defendant's motion granted, and the complaint dismissed.
This Court may vacate the ARB's decision if it finds it to be arbitrary and capricious, an abuse of discretion, unsupported by substantial evidence, or otherwise not in accordance with law. Jankovic v. United States, 384 F. Supp. 1355, 1358 (D.D.C.1974); McKenzie v. Calloway, 456 F. Supp. 590, 593-95 (E.D.Mich.1978). But its judicial review is confined to the record complied before the agency. The Court is not empowered to undertake a de novo development of the facts, nor may it substitute its judgment for that of the ARB. See Cooperative Services v. HUD, 183 U.S. App. D.C. 344, 562 F.2d 1292, 1295 (D.C.Cir.1976); Beverly Enterprises v. Califano, 446 F. Supp. 599, 604 (D.D.C.1978).
The administrative record establishes that Georgetown University entered into a contract (the "Contract"), pursuant to 10 U.S.C., § 2304(a)(5), with the Department of the Army to perform certain unspecified studies for it.
Section 10 of the Contract expressly provided that all persons employed thereunder were to be employees of the "contractor" and not the U.S. government, but it nonetheless gave the Army's contracting officer ("CO") veto power over the university's hiring decisions and the right to remove personnel already hired for cause. (The CO also supervised all work done on the projects covered by the Contract). Moreover, plaintiffs enjoyed a number of the customary perquisites of official civilian service with the military, such as use of officers' clubs, post exchanges and government parking, and they were issued Army civilian identification cards. On the other hand, plaintiffs were paid directly by the University (and without deductions for civil service retirement contributions).
At common law there were no formal requisites to the creation of the master-servant relationship, see 53 Am.Jur.2d, Master & Servant at §§ 14-15 (1970), the primary indicium of which was simply the exercise of control by the putative employer. Joint Council of Teamsters No. 42 v. N.L.R.B., 146 U.S. App. D.C. 275, 450 F.2d 1322, 1326 (D.C.Cir.1971). See Restatement (Second) of Agency § 220; Prosser, Law of Torts at ch. 13, para. 70 (4th ed. 1971). But a host of consequences attends the federal employment relationship beyond the common law's primary concern with the master's vicarious liability for his servant's tortious conduct. The status of civil servant is sui generis, Shepherd v. Merit Systems Protection Board, 209 U.S. App. D.C. 243, 652 F.2d 1040, 1041 n. 6 (D.C.Cir.1981), and it is clear that bona fide federal employment does not commence unless and until each of the requirements of law is met. National Treasury Employees Union v. Reagan, 214 U.S. App. D.C. 62, 663 F.2d 239, 246 (D.C.Cir.1981); Baker v. United States, 222 Ct. Cl. 263, 614 F.2d 263, 266 (Ct.Cl.1980).
The relevant statute, 5 U.S.C., § 2105, defines a federal employee as an individual who is: (1) appointed to the civil service by a designated federal officer acting in his official capacity as such; (2) engaged in the performance of a federal function under authority of an Act of Congress or Executive Order; and (3) subject to the supervision of a federal officer during the performance of his duties.
The ARB assumed (although OPM has never conceded) that the two latter requirements -- federal function and federal supervision -- were met in this case. It found, however, that plaintiffs were never appointed to a position in the civil service. Holding that a federal appointment must be evidenced by some formal appointive instrument in plaintiffs' personnel records, and finding none, the Board ruled that plaintiffs must have been, as the Contract said they were, employees of Georgetown University.
Plaintiffs contend that evidence of federal appointment is not limited to any particular documentation (which they concededly cannot produce) but should be found from the intent of the parties as manifested by the totality of facts and circumstances surrounding the inception and continuation of the relationship. The totality-of-circumstances test advocated by plaintiffs, however, would render the lack of evidence of appointment a mere technicality, to be remedied by other indicia of intent to employ. Yet since Marbury v. Madison, 5 U.S. (1 Cranch) 137, 2 L. Ed. 60 (1803), it has been clear that there can be no employment of a federal officer until the "last act" necessary to perfect the appointment has been made. See also United States v. Testan, 424 U.S. 392, 402, 96 S. Ct. 948, 955, 47 L. Ed. 2d 114 (1976). Whether the "last act" is ministerial or not, the appointment requirement cannot simply be read out of the statute.
The only case plaintiffs cite which offers substantial support for the totality-of-circumstances test is that of the MSPB in Acosta v. OPM, Docket No. DC 08318010060 (Nov. 26, 1982). While federal courts should ordinarily pay heed to the interpretation of a statute by an agency charged with its enforcement, Udall v. Tallman, 380 U.S. 1, 16, 85 S. Ct. 792, 801, 13 L. Ed. 2d 616 (1965); Miller v. Bond, 206 U.S. App. D.C. 44, 641 F.2d 997, 1002 (D.C.Cir.1981), the principle obtains only when the statute is consistently so applied by the agency. Bamberger v. Clark, 129 U.S. App. D.C. 70, 390 F.2d 485 (D.C.Cir.1968). See Shewmaker v. Parker, 479 F. Supp. 616, 618 (D.D.C.1979). The Acosta decision is an apparent aberration from prior agency and court interpretations of 5 U.S.C., § 2105, and while it might be distinguished from the instant case on several factual bases, the decision is nonetheless fundamentally at odds with the current state of the law in this area which finds most recent expression in Costner v. United States, 229 Ct. Cl. 87, 665 F.2d 1016 (Ct.Cl.1981).
In Costner an electronics technician on a private payroll, who had provided technical services to the Air Force pursuant to its contract with his corporate employer, claimed to be a federal employee for much the same purposes as plaintiffs here, and also satisfied the two latter requirements of 5 U.S.C., § 2105. The Court of Claims held, however, that the statute required formal appointment to the civil service as well. Noting that "this view of the law eliminates a 'totality of the circumstances' approach," the court said, "an abundance of federal function and supervision will not make up for the lack of an appointment." 665 F.2d at 1020. It rejected plaintiff's contention that his interview with a federal officer sufficed as an appointment, reaffirming its prior determination that execution of a standard personnel form was "the sine qua non " of a federal appointment. Id. at 1022, quoting, Goutos v. United States, 212 Ct. Cl. 95, 552 F.2d 922, 924 (Ct.Cl.1976).
As a number of courts have noted, elimination of the formal appointment requirement would create the potential for "chaos in government personnel management," Goutos v. United States, supra by introducing uncertainty into the federal employment process to the confusion of employer and employee alike, not to mention the public which is generally entitled to know when it is treating with a government employee and when it is not. For similar reasons this Court concludes that plaintiffs here were not federal employees within the meaning of 5 U.S.C., § 2105, while employed under the Contract. Federal employment must ultimately depend on the execution of some "last-act" ceremony of "appointment," even so humble a rite as the completion of a standard personnel form, which will thereafter evince an unequivocal intent on the part of the government to admit an individual to its service. See National Treasury Employees Union v. Reagan, 214 U.S. App. D.C. 62, 663 F.2d 239, 246 (D.C.Cir.1981).
ORDERED, that plaintiffs' motion for summary judgment is denied; and it is
FURTHER ORDERED, that defendant's motion for summary judgment is granted and the complaint ...