B-122747, MARCH 30, 1955, 34 COMP. GEN. 485

B-122747: Mar 30, 1955

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OFFICERS AND EMPLOYEES - SUSPENSIONS AND SEPARATIONS IN INTEREST OF NATIONAL SECURITY - LEGISLATIVE EMPLOYEES AGENCIES UNDER THE LEGISLATIVE BRANCH OF THE GOVERNMENT ARE NOT WITHIN THE SCOPE OF THE ACT OF AUGUST 26. CONSTITUTES AUTHORITY FOR YOU TO ALLOW RETROACTIVE COMPENSATION TO EMPLOYEES OF THE LIBRARY OF CONGRESS WHO ARE RESTORED TO DUTY FOLLOWING PERIODS OF SUSPENSION OR SEPARATION FOR REASONS OF NATIONAL SECURITY. IT ALSO CONFERS IN THE HEAD OF EACH OF THE ENUMERATED DEPARTMENTS AND AGENCIES DISCRETIONARY AUTHORITY TO RESTORE EMPLOYEES WHOSE SERVICES ARE SUSPENDED OR TERMINATED UNDER THE AUTHORITY OF THAT ACT. COMPENSATION IS AUTHORIZED TO BE PAID FOR ALL OR ANY PART OF THE PERIOD OF SUSPENSION OR SEPARATION IN THE DISCRETION OF THE AGENCY HEAD CONCERNED.

B-122747, MARCH 30, 1955, 34 COMP. GEN. 485

OFFICERS AND EMPLOYEES - SUSPENSIONS AND SEPARATIONS IN INTEREST OF NATIONAL SECURITY - LEGISLATIVE EMPLOYEES AGENCIES UNDER THE LEGISLATIVE BRANCH OF THE GOVERNMENT ARE NOT WITHIN THE SCOPE OF THE ACT OF AUGUST 26, 1950, RELATING TO NATIONAL SECURITY SUSPENSIONS AND SEPARATIONS OF EMPLOYEES OF DEPARTMENTS AND AGENCIES UNDER THE EXECUTIVE BRANCH OF THE GOVERNMENT.

ASSISTANT COMPTROLLER GENERAL WEITZEL TO THE LIBRARIAN OF CONGRESS, MARCH 30, 1955:

YOUR LETTER OF JANUARY 25, 1955, REQUESTS OUR DECISION WHETHER THE ACT OF AUGUST 26, 1950, 64 STAT. 476, PUBLIC LAW 733, CONSTITUTES AUTHORITY FOR YOU TO ALLOW RETROACTIVE COMPENSATION TO EMPLOYEES OF THE LIBRARY OF CONGRESS WHO ARE RESTORED TO DUTY FOLLOWING PERIODS OF SUSPENSION OR SEPARATION FOR REASONS OF NATIONAL SECURITY.

PUBLIC LAW 733 AUTHORIZES THE HEADS OF CERTAIN ENUMERATED DEPARTMENTS AND AGENCIES IN THE EXECUTIVE BRANCH OF THE GOVERNMENT TO SUSPEND OR SEPARATE EMPLOYEES IN THE INTERESTS OF NATIONAL SECURITY. IT ALSO CONFERS IN THE HEAD OF EACH OF THE ENUMERATED DEPARTMENTS AND AGENCIES DISCRETIONARY AUTHORITY TO RESTORE EMPLOYEES WHOSE SERVICES ARE SUSPENDED OR TERMINATED UNDER THE AUTHORITY OF THAT ACT. UPON RESTORATION OF AN EMPLOYEE, COMPENSATION IS AUTHORIZED TO BE PAID FOR ALL OR ANY PART OF THE PERIOD OF SUSPENSION OR SEPARATION IN THE DISCRETION OF THE AGENCY HEAD CONCERNED.

YOUR DOUBT IN THE MATTER IS STATED TO ARISE FROM THE FACT THAT THE LIBRARY OF CONGRESS IS AN AGENCY UNDER THE LEGISLATIVE RATHER THAN THE EXECUTIVE BRANCH OF THE GOVERNMENT.

SECTION 3 OF THE ACT, 64 STAT. 477, IS, IN PART, AS FOLLOWS:

THE PROVISIONS OF THIS ACT SHALL APPLY TO SUCH OTHER DEPARTMENTS AND AGENCIES OF THE GOVERNMENT AS THE PRESIDENT MAY, FROM TIME TO TIME, DEEM NECESSARY IN THE BEST INTERESTS OF NATIONAL SECURITY. * * *

SECTION 1 OF EXECUTIVE ORDER NO. 10450 OF APRIL 27, 1953, IS AS FOLLOWS:

IN ADDITION TO THE DEPARTMENTS AND AGENCIES SPECIFIED IN THE SAID ACT OF AUGUST 26, 1950, AND EXECUTIVE ORDER NO. 10237 OF APRIL 26, 1951, THE PROVISIONS OF THAT ACT SHALL APPLY TO ALL OTHER DEPARTMENTS AND AGENCIES OF THE GOVERNMENT.

A LITERAL INTERPRETATION OF THE LANGUAGE EMPLOYED IN SECTION 3 OF PUBLIC LAW 733, WHEN VIEWED SEPARATELY FROM THE OTHER PROVISIONS OF THE ACT, SUGGESTS THE CONCLUSION THAT THE PRESIDENT MAY EXTEND SUCH ACT TO ANY AGENCY UNDER ANY BRANCH OF THE GOVERNMENT. HOWEVER, WE HAVE SERIOUS DOUBTS WHETHER THAT WAS THE INTENT OF THE LEGISLATORS. ALL THE OFFICERS AND AGENCIES OF THE GOVERNMENT SPECIFICALLY ENUMERATED IN SECTION 1 OF THE ACT ARE IN THE EXECUTIVE BRANCH OF THE GOVERNMENT. THAT FACT LENDS SUPPORT TO THE VIEW THAT THE TERM "OTHER DEPARTMENTS AND AGENCIES OF THE OVERNMENT" AS USED IN SECTION 3 WAS INTENDED TO APPLY ONLY TO OTHER DEPARTMENTS AND AGENCIES IN THE EXECUTIVE BRANCH OF THE GOVERNMENT. THE LEGISLATIVE HISTORY UPON THE QUESTION IS NOT CLEAR. WHILE SENATE REPORT NO. 2158, JULY 25, 1950, ON H.R. 7439, STATES THAT SECTION 3 OF THE BILL PROVIDES THAT THE PRESIDENT MAY EXTEND THE COVERAGE OF THIS ACT TO "ANY DEPARTMENT OR AGENCY," HOUSE REPORT NO. 2330, DATED JUNE 26, 1950, ON H.R. 7439, MERELY STATES THAT THE PRESIDENT MAY EXTEND THE BILL TO THE HEADS OF "OTHER DEPARTMENTS AND AGENCIES OF THE GOVERNMENT.' AT PAGE 15 OF THE HEARINGS BEFORE THE COMMITTEE ON ARMED SERVICES, UNITED STATES SENATE, IN CONNECTION WITH H.R. 7439, IT WAS STATED THAT " SECTION 3 GIVES THE PRESIDENT THE RIGHT TO CLASSIFY EVERY AGENCY AS A SENSITIVE AGENCY.' THE OTHER HAND, IN CONNECTION WITH CONSIDERATION OF H.R. 7439 ON THE FLOOR OF THE HOUSE, IT WAS RATED THAT (SEE PAGE 10176, CONGRESSIONAL RECORD, HOUSE, JULY 12, 1950):

IN SECTION 3 OF THE BILL THE PRESIDENT IS GIVEN AUTHORITY TO INCLUDE, IN THE TERMS OF THIS ACT, ALL EXECUTIVE AGENCIES. SO THIS APPLIES POTENTIALLY TO EVERY EXECUTIVE AGENCY, NOT ONLY THE SENSITIVE ONES. MUST KEEP THAT IN MIND IN THE FIRST PLACE.

WE ARE OF THE VIEW THAT EXECUTIVE AUTHORITY AND CONTROL OVER AGENCIES UNDER THE LEGISLATIVE BRANCH OF THE GOVERNMENT NEVER SHOULD BE IMPLIED IN THE ABSENCE OF CLEAR, CONVINCING, AND UNCONTRADICTORY EVIDENCE THAT SUCH WAS THE INTENT OF THE CONGRESS. SINCE PUBLIC LAW 733 SPECIFICALLY INCLUDES ONLY OFFICERS AND AGENCIES IN THE EXECUTIVE BRANCH OF THE GOVERNMENT, AND THE LEGISLATIVE HISTORY OF THAT LAW RAISES SERIOUS DOUBT REGARDING THE INTENT OF THE LEGISLATORS, WE WOULD NOT BE WARRANTED IN CONCLUDING THAT THE LIBRARY OF CONGRESS IS WITHIN THE SCOPE OF THAT LAW. CONSEQUENTLY, WE MUST CONCLUDE THAT PUBLIC LAW 733 DOES NOT VEST IN YOU AUTHORITY TO ALLOW RETROACTIVE COMPENSATION TO EMPLOYEES OF THE LIBRARY OF CONGRESS WHO ARE RESTORED TO DUTY FOLLOWING SUSPENSIONS OR SEPARATIONS FROM SERVICE FOR REASONS OF NATIONAL SECURITY.