B-168974, MAR. 20, 1970

B-168974, MAR. 20, 1970

MISSING PERSONS ACT--CIVILIAN EMPLOYEES STATIONED IN ALASKA ALASKA NEED NOT BE CONSIDERED WITHIN CONTINENTAL UNITED STATES FOR PURPOSE OF MISSING PERSONS ACT (WHICH ORIGINALLY DEFINED EMPLOYEES ENTITLED TO IS BENEFITS AS THOSE ASSIGNED OUTSIDE CONTINENTAL U.S. OR IN ALASKA BUT NO LONGER INCLUDED SUCH WORDING AFTER 1957 AMENDMENT) BUT SHOULD STILL BE REGARDED AS TERRITORY FOR PURPOSES OF ACT, SINCE PUB. L. ADMITTING ALASKA INTO UNION DOES NOT EXPRESSLY MODIFY ACT, AND NO INDICATION IS FOUND OF LEGISLATIVE INTENT TO ABOLISH THEREUNDER DIFFERENTIATION BETWEEN ALASKA AND 48 STATES COMPRISING CONTINENTAL U.S. SEE COMP. GEN. DECS. CITED.

TO MR. SHAFFER:

THIS IS IN REPLY TO LETTER OF JANUARY 30, 1970, FROM THE ACTING ADMINISTRATOR, REQUESTING ADVICE AS TO WHETHER ALASKA MUST BE CONSIDERED TO BE WITHIN THE CONTINENTAL LIMITS OF THE UNITED STATES FOR THE PURPOSES OF THE MISSING PERSONS ACT, AS AMENDED, 5 U.S.C. 5561 5568. OUR OPINION IS ALSO REQUESTED ON THE LIMITS OF THE ADMINISTRATIVE DISCRETION ALLOWABLE FOR A DETERMINATION THAT THE "MISSING STATUS" WAS ENTERED AS A PROXIMATE RESULT OF FEDERAL EMPLOYMENT.

THE ACT AS ORIGINALLY ENACTED DEFINED EMPLOYEES ENTITLED TO ITS BENEFITS AS THOSE ASSIGNED FOR DUTY OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES OR IN ALASKA. SECTION 1 OF PUBLIC LAW 85-217, APPROVED AUGUST 29, 1957, 71 STAT. 491, AMENDED THE ACT IN PERTINENT PART AS FOLLOWS:

"(A) SECTION 1 (A) (3) IS AMENDED TO READ AS FOLLOWS:

"'(3) CIVILIAN OFFICERS AND EMPLOYEES OF THE DEPARTMENTS, EXCLUSIVE OF PART TIME OR INTERMITTENT EMPLOYEES OR NATIVE LABOR CASUALLY HIRED ON AN HOURLY OR PER DIEM BASIS, WHO ARE CITIZENS OR NATIONALS OF THE UNITED STATES, OR WHO ARE ALIENS WHO HAVE BEEN ADMITTED TO THE UNITED STATES FOR PERMANENT RESIDENCE, EXCEPT THAT THE FOLLOWING CATEGORIES OF CIVILIAN OFFICERS AND EMPLOYEES SHALL BE COVERED ONLY UPON A DETERMINATION BY THE HEAD OF THE DEPARTMENT CONCERNED THAT SUCH STATUS IS THE PROXIMATE RESULT OF EMPLOYMENT BY THE DEPARTMENT:

"'(I) PERSONS WHO ENTER ANY STATUS LISTED IN SECTION 2 OF THIS ACT WITHIN THE CONTINENTAL LIMITS OF THE UNITED STATES AND

"'(II) PERSONS WHO ENTER ANY STATUS LISTED IN SECTION 2 OF THIS ACT WHO ARE RESIDENTS AT OR IN THE VICINITY OF THEIR PLACES OF EMPLOYMENT IN THE TERRITORIES AND POSSESSIONS OR IN FOREIGN COUNTRIES AND WHO WERE NOT LIVING THERE SOLELY AS A RESULT OF THEIR EMPLOYMENT.'"

AFTER THE AMENDMENT THE TERM "OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES OR IN ALASKA" NO LONGER APPEARED IN THE ACT. UNTIL THE ADMISSION OF ALASKA INTO THE UNION, EMPLOYEES IN ALASKA WOULD HAVE BEEN COVERED BY THE PROVISIONS OF SUBSECTION (II) ABOVE RELATING TO EMPLOYMENT IN THE TERRITORIES.

THE TERM "CONTINENTAL UNITED STATES" IS NOT DEFINED IN THE ACT OR IN CHAPTER 55 OF TITLE 5, U.S.C. WHEREIN THE ACT IS NOW CODIFIED. WHETHER A STATUTE PROVIDING DIFFERENT BENEFITS FOR EMPLOYEES IN ALASKA AS COMPARED TO EMPLOYEES IN THE "CONTINENTAL UNITED STATES," SUCH AS THE MISSING PERSONS ACT, WAS MODIFIED BY THE ADMISSION OF ALASKA INTO THE UNION, WOULD DEPEND UPON THE LANGUAGE AND LEGISLATIVE HISTORY OF SUCH LAW. 38 COMP. GEN. 447 (1958). PUBLIC LAW 85-508, APPROVED JULY 7, 1958, 72 STAT. 339, PROVIDING FOR THE ADMISSION OF ALASKA, DOES NOT EXPRESSLY MODIFY THE MISSING PERSONS ACT AND WE FIND NO INDICATION OF A LEGISLATIVE INTENT TO ABOLISH THE DIFFERENTIATION BETWEEN ALASKA AND THE 48 STATES COMPRISING THE "CONTINENTAL UNITED STATES" IN 1958 UNDER THE PROVISIONS OF THE ACT. ACCORDINGLY, ALASKA NEED NOT BE CONSIDERED TO BE WITHIN THE "CONTINENTAL UNITED STATES" BUT RATHER SHOULD STILL BE REGARDED AS A TERRITORY FOR THE PURPOSES OF THE ACT.

WITH RESPECT TO THE LIMITS OF THE ADMINISTRATIVE DISCRETION ALLOWABLE WHEN A DETERMINATION IS REQUIRED THAT THE "MISSING STATUS" WAS ENTERED AS A PROXIMATE RESULT OF FEDERAL EMPLOYMENT, SEE DECISION 48 COMP. GEN. 527 (1969).