A-95901, JUNE 25, 1938, 17 COMP. GEN. 1116

A-95901: Jun 25, 1938

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THAT THEIR REENTRY IN THE SERVICE IS AFTER A BREAK IN SERVICE. IS AS FOLLOWS: A QUESTION HAS ARISEN CONCERNING THE PROPER INTERPRETATION OF SECTION 3 OF THE APPROPRIATION ACT FOR THE DEPARTMENTS OF STATE AND JUSTICE AND FOR THE JUDICIARY. OR OF ANY AGENCY THE MAJORITY OF THE STOCK OF WHICH IS OWNED BY THE GOVERNMENT OF THE UNITED STATES. WHOSE POST OF DUTY IS IN CONTINENTAL UNITED STATES UNLESS SUCH OFFICER OR EMPLOYEE IS A CITIZEN OF THE UNITED STATES OR A PERSON IN THE SERVICE OF THE UNITED STATES ON THE DATE OF THE APPROVAL OF THIS ACT WHO BEING ELIGIBLE FOR CITIZENSHIP HAS FILED A DECLARATION OF INTENTION TO BECOME A CITIZEN OR WHO OWES ALLEGIANCE TO THE UNITED STATES: THE U.S. MANY HAVE RENDERED A NUMBER OF YEARS OF CONTINUOUS SERVICE ON THESE VESSELS.

A-95901, JUNE 25, 1938, 17 COMP. GEN. 1116

APPROPRIATIONS - LIMITATIONS - COMPENSATION OF FILIPINOS - REENTRY INTO SERVICE - COAST AND GEODETIC SURVEY VESSEL CREWS THE STATEMENT IN DECISION OF JUNE 2, 1938, A-95291, 17 COMP. GEN. 1047, THAT FILIPINOS APPOINTED AFTER MARCH 28, 1938, TO POSITIONS WITH POSTS OF DUTY IN THE CONTINENTAL UNITED STATES MAY NOT BE EXEMPTED FROM THE RESTRICTION IN THE TREASURY-POST OFFICE DEPARTMENT APPROPRIATION ACT FOR 1939, APPROVED MARCH 28, 1938, AGAINST EXPENDITURES FOR PAYMENT OF COMPENSATION OF ALIENS UNDER CERTAIN CIRCUMSTANCES, REFERS TO ORIGINAL ENTRY INTO THE SERVICE OF THE UNITED STATES AND NOT TO THOSE IN THE SERVICE ON THAT DATE OR REAPPOINTED THEREAFTER, AND FILIPINOS IN THE SERVICE OF THE UNITED STATES ON APRIL 27, 1938, DATE OF APPROVAL OF THE COMMERCE DEPARTMENT APPROPRIATION ACT FOR 1939, WHETHER AS MEMBERS OF THE CREW OF U.S. COAST AND GEODETIC SURVEY VESSELS RESHIPPED AFTER THAT DATE OR SHIPPED THEREAFTER FROM SERVICE AS EMPLOYEES OF ANY GOVERNMENT AGENCY MAY BE PAID FROM FUNDS APPROPRIATED BY THE LATTER ACT, NOTWITHSTANDING THE SIMILAR RESTRICTIVE PROVISIONS OF THE LATTER ACT, AND THAT THEIR REENTRY IN THE SERVICE IS AFTER A BREAK IN SERVICE.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF COMMERCE, JUNE 25, 1938:

YOUR LETTER OF JUNE 22, 1938, IS AS FOLLOWS:

A QUESTION HAS ARISEN CONCERNING THE PROPER INTERPRETATION OF SECTION 3 OF THE APPROPRIATION ACT FOR THE DEPARTMENTS OF STATE AND JUSTICE AND FOR THE JUDICIARY, AND FOR THE DEPARTMENTS OF COMMERCE AND LABOR FOR 1939, WHICH PROVIDES:

"SEC. 3. NO PART OF ANY APPROPRIATION CONTAINED IN THIS ACT OR AUTHORIZED HEREBY TO BE EXPENDED SHALL BE USED TO PAY THE COMPENSATION OF ANY OFFICER OR EMPLOYEE OF THE GOVERNMENT OF THE UNITED STATES, OR OF ANY AGENCY THE MAJORITY OF THE STOCK OF WHICH IS OWNED BY THE GOVERNMENT OF THE UNITED STATES, WHOSE POST OF DUTY IS IN CONTINENTAL UNITED STATES UNLESS SUCH OFFICER OR EMPLOYEE IS A CITIZEN OF THE UNITED STATES OR A PERSON IN THE SERVICE OF THE UNITED STATES ON THE DATE OF THE APPROVAL OF THIS ACT WHO BEING ELIGIBLE FOR CITIZENSHIP HAS FILED A DECLARATION OF INTENTION TO BECOME A CITIZEN OR WHO OWES ALLEGIANCE TO THE UNITED STATES:

THE U.S. COAST AND GEODETIC SURVEY OF THIS DEPARTMENT EMPLOYS APPROXIMATELY FORTY FILIPINOS ON ITS VARIOUS VESSELS, MAINLY IN THE STEWARD'S DEPARTMENT, AND MANY HAVE RENDERED A NUMBER OF YEARS OF CONTINUOUS SERVICE ON THESE VESSELS. FOR THE CONVENIENCE MAINLY OF THE GOVERNMENT BUT TO SOME EXTENT OF THE MEN THEMSELVES, THE MEMBERS OF THE CREW ARE SHIPPED, IN ACCORDANCE WITH THE REGULATIONS AND SPECIAL SHIPPING ARTICLES OF THE BUREAU, FOR A PERIOD OF ONE YEAR, WITH CONTINUED SERVICE PAY, AUTHORIZED UNDER THE ACT OF FEBRUARY 26, 1931, U.S.C. TITLE 5, SEC. 600A, OFFERED BY THE GOVERNMENT AS A SPECIAL INDUCEMENT TO THE MEN TO CONTINUE IN THE SERVICE. THIS CONTINUED SERVICE PAY RECOGNIZES THE CONTINUING NATURE OF THE SERVICE OF THESE MEN, AND WHILE EACH MAN NECESSARILY RESHIPS EACH YEAR, MOST OF THEM DO SO AS A MATTER OF FORM, AND THEIR SERVICE APPEARS TO BE, TO ALL INTENTS AND PURPOSES, CONTINUOUS.

IN YOUR DECISION OF JUNE 2, 1938, A-95291, YOU STATE THAT "FILIPINOS APPOINTED AFTER MARCH 28, 1938, TO POSITIONS WITH POSTS OF DUTY IN THE CONTINENTAL UNITED STATES MAY NOT BE EXEMPTED FROM THE RESTRICTION" I.E., THEY CANNOT BE PAID FROM APPROPRIATIONS FOR THE FISCAL YEAR 1939. THE PROVISION IN THE APPROPRIATION ACT FOR THE DEPARTMENT OF COMMERCE WOULD MAKE THE EFFECTIVE DATE IN THE CASE OF THIS DEPARTMENT APRIL 27, 1938.

ELSEWHERE IN THIS DECISION YOU STATE THAT "FROM THE DEBATES (ON THE FLOOR OF THE SENATE) IT IS CLEARLY APPARENT THAT THE INTENT WAS TO EXEMPT FROM THE RESTRICTION FILIPINOS IN THE SERVICE OF THE UNITED STATES" ON THE DATE OF THE APPROVAL OF THE ACT. ACCORDING TO THIS INTENT IT WOULD APPEAR THAT FILIPINOS WHO WERE IN THE SERVICE OF THE U.S. COAST AND GEODETIC SURVEY ON THAT DATE AND WHO RESHIP SUBSEQUENT THERETO UPON THE EXPIRATION OF THEIR CURRENT ONE YEAR SHIPMENT, SHOULD BE EXEMPT FROM THE RESTRICTION. OTHERWISE, ALL FILIPINOS IN CONTINENTAL UNITED STATES WOULD BE FORCED OUT OF THE SERVICE DURING 1939 UPON EXPIRATION OF THEIR CURRENT SHIPMENT.

YOUR DECISION IS RESPECTFULLY REQUESTED ON THE FOLLOWING POINTS:

1. MAY COMPENSATION BE PAID DURING THE FISCAL YEAR 1939 TO A FILIPINO WHO WAS IN THE SERVICE OF THE U.S. COAST AND GEODETIC SURVEY ON APRIL 27, 1938, WHOSE SHIPMENT EXPIRES OR IS TERMINATED SUBSEQUENT THERETO, AND WHO RESHIPS

(A) WITH NO BREAK IN CONTINUITY OF SHIPMENTS?

(B) WITH A BREAK IN CONTINUITY OF SHIPMENTS?

2. MAY COMPENSATION BE PAID DURING THE FISCAL YEAR 1939 TO A FILIPINO WHO WAS IN THE SERVICE OF SOME FEDERAL AGENCY OTHER THAN THE U.S. COAST AND GEODETIC SURVEY ON APRIL 27, 1938.

(A) IF THERE IS NO BREAK BETWEEN HIS SERVICE IN SUCH OTHER FEDERAL AGENCY AND IN THE U.S. COAST AND GEODETIC SURVEY?

(B) IF THERE IS A BREAK BETWEEN HIS SERVICE IN SUCH OTHER FEDERAL AGENCY AND IN THE U.S. COAST AND GEODETIC SURVEY?

AS A NUMBER OF THE FILIPINOS NOW IN SERVICE ARE DUE FOR RESHIPMENT DURING THE CURRENT FIELD SEASON WITHIN THE NEXT FEW MONTHS, AN EARLY REPLY IS REQUESTED.

FILIPINOS ARE EXEMPT FROM THE STATUTORY RESTRICTION IN QUESTION IF THEY WERE "IN THE SERVICE OF THE UNITED STATES"--- IN ANY DEPARTMENT OR ESTABLISHMENT OF THE GOVERNMENT--- ON APRIL 27, 1938, DATE OF THE APPROVAL OF THE ACT. THE STATEMENT IN DECISION OF JUNE 2, 1938, A 95291, 17 COMP. GEN. 1047, THAT "FILIPINOS APPOINTED AFTER MARCH 28, 1938, TO POSITIONS WITH POSTS OF DUTY IN THE CONTINENTAL UNITED STATES MAY NOT BE EXEMPTED FROM RESTRICTION," QUOTED IN YOUR LETTER, WAS INTENDED TO REFER TO ORIGINAL ENTRY INTO THE SERVICE OF THE UNITED STATES AFTER MARCH 28, 1938, NOT TO FILIPINOS WHO WERE IN THE SERVICE OF THE UNITED STATES ON THAT DATE AND CONTINUE IN THE SERVICE OR ARE REAPPOINTED THEREAFTER.

THERE IS NOTHING IN THE STATUTE TO REQUIRE APPLICATION OF THE RESTRICTION TO FILIPINOS IN THE SERVICE OF THE UNITED STATES ON THE DATE OF THE APPROVAL OF THE ACT WHO HAVE A BREAK IN SERVICE THEREAFTER OR WHO TRANSFER WITHOUT BREAK IN SERVICE FROM ONE DEPARTMENT OR ESTABLISHMENT TO ANOTHER AFTER THE DATE OF THE APPROVAL OF THE ACT.

ACCORDINGLY, ALL FOUR QUESTIONS PRESENTED ARE ANSWERED IN THE AFFIRMATIVE.