B-125640, OCTOBER 20, 1955, 35 COMP. GEN. 216

B-125640: Oct 20, 1955

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AN INTERNAL REVENUE SERVICE EMPLOYEE WHO WAS SEPARATED FROM THE SERVICE FOR FALSELY REPRESENTING HERSELF AS A UNITED STATES CITIZEN AT THE TIME OF EMPLOYMENT IN 1919. WHEN IN FACT SHE WAS A RUSSIAN NATIONAL. IS NOT ENTITLED TO UNPAID COMPENSATION. IS REQUIRED TO REFUND COMPENSATION RECEIVED DURING THE PERIODS FROM JULY 1. UNTIL SEPARATION IN 1955 WHEN THE EXEMPTION FROM THE STATUTORY RESTRICTION FOR NATIONALS ALLIED WITH THE UNITED STATES IN THE PROSECUTION OF THE WAR WAS CHANGED TO NATIONALS ALLIED WITH THE UNITED STATES IN THE CURRENT DEFENSE EFFORT. AN ADMINISTRATIVE DETERMINATION THAT RUSSIA WAS "ALLIED WITH THE UNITED STATES" DURING WORLD WAR II WITHIN THE MEANING OF THE EXEMPTION IN THE PROHIBITION AGAINST THE USE OF APPROPRIATIONS FOR COMPENSATION OF NONCITIZENS WOULD MAKE THE EMPLOYMENT OF A RUSSIAN NATIONAL WHO FALSELY REPRESENTED HERSELF AS A UNITED STATES CITIZEN DURING THE PERIOD JULY 1.

B-125640, OCTOBER 20, 1955, 35 COMP. GEN. 216

ALIENS, EMPLOYMENT - STATUTORY PROHIBITION - FORFEITURE OF COMPENSATION, LEAVE, ETC. AN INTERNAL REVENUE SERVICE EMPLOYEE WHO WAS SEPARATED FROM THE SERVICE FOR FALSELY REPRESENTING HERSELF AS A UNITED STATES CITIZEN AT THE TIME OF EMPLOYMENT IN 1919, WHEN IN FACT SHE WAS A RUSSIAN NATIONAL, IS NOT ENTITLED TO UNPAID COMPENSATION, AND IS REQUIRED TO REFUND COMPENSATION RECEIVED DURING THE PERIODS FROM JULY 1, 1938, THROUGH JUNE 30, 1943, IN VIOLATION OF PROHIBITION IN ANNUAL APPROPRIATIONS FOR THE TREASURY DEPARTMENT AGAINST PAYMENT OF COMPENSATION TO NONCITIZENS, AND FROM JULY 1, 1951, UNTIL SEPARATION IN 1955 WHEN THE EXEMPTION FROM THE STATUTORY RESTRICTION FOR NATIONALS ALLIED WITH THE UNITED STATES IN THE PROSECUTION OF THE WAR WAS CHANGED TO NATIONALS ALLIED WITH THE UNITED STATES IN THE CURRENT DEFENSE EFFORT. AN ADMINISTRATIVE DETERMINATION THAT RUSSIA WAS "ALLIED WITH THE UNITED STATES" DURING WORLD WAR II WITHIN THE MEANING OF THE EXEMPTION IN THE PROHIBITION AGAINST THE USE OF APPROPRIATIONS FOR COMPENSATION OF NONCITIZENS WOULD MAKE THE EMPLOYMENT OF A RUSSIAN NATIONAL WHO FALSELY REPRESENTED HERSELF AS A UNITED STATES CITIZEN DURING THE PERIOD JULY 1, 1943, THROUGH JUNE 30, 1951, VOIDABLE RATHER THAN VOID, AND IN THE ABSENCE OF ACTION TO TERMINATE HER EMPLOYMENT SHE MAY RETAIN COMPENSATION RECEIVED DURING SUCH PERIOD. ALTHOUGH CIVIL SERVICE RETIREMENT DEDUCTIONS MADE FROM THE SALARY OF AN EMPLOYEE DURING PERIODS IN WHICH SHE WAS NOT ENTITLED TO COMPENSATION ON ACCOUNT OF STATUTORY RESTRICTIONS AGAINST PAYMENT OF COMPENSATION TO NONCITIZENS ARE NOT AVAILABLE FOR SET-OFF, CIVIL SERVICE COMMISSION SHOULD BE REQUESTED TO TRANSFER TO THE EMPLOYING AGENCY'S APPROPRIATION ALL RETIREMENT DEDUCTIONS MADE, AND THE AMOUNT TO BE RECOVERED FROM THE EMPLOYEE MAY BE REDUCED ACCORDINGLY. AN EMPLOYEE WHO WAS SEPARATED FROM THE SERVICE FOR FALSIFYING HER CITIZENSHIP ON EMPLOYMENT DOCUMENTS MAY NOT BE ALLOWED CREDIT FOR LEAVE ACCRUING DURING THE PERIODS IN WHICH THE STATUTORY PROHIBITION AGAINST THE USE OF APPROPRIATIONS FOR PAYMENT OF SALARY TO NONCITIZENS WAS IN EFFECT; HOWEVER, WHILE CREDIT FOR ANNUAL LEAVE COULD BE ALLOWED FOR THE INTERIM PERIOD WHEN THE EMPLOYEE CAME WITHIN THE STATUTORY PROHIBITION EXEMPTION FOR NATIONALS OF COUNTRIES ALLIED WITH THE UNITED STATES IN THE PROSECUTION OF WAR, A LUMP-SUM PAYMENT THEREFOR MAY NOT BE MADE FROM CONCURRENT APPROPRIATIONS.

TO THE SECRETARY OF THE TREASURY, OCTOBER 20, 1955:

BY LETTER OF SEPTEMBER 26, 1955, WITH ENCLOSURES, THE ACTING SECRETARY REQUESTS OUR ADVICE REGARDING THE PROPER ADMINISTRATIVE ACTION TO BE TAKEN IN THE CASE OF A FORMER EMPLOYEE OF THE INTERNAL REVENUE SERVICE, THE FACTS OF WHICH ARE HEREINAFTER RELATED.

THE EMPLOYEE ENTERED ON DUTY WITH THE INTERNAL REVENUE SERVICE MARCH 10, 1919, AND SERVED CONTINUOUSLY FROM THAT TIME UNTIL SHE WAS PLACED ON LEAVE WITHOUT PAY SEPTEMBER 17, 1954. SHE WAS SEPARATED FROM THE SERVICE JANUARY 14, 1955, ON CHARGES OF HAVING FALSIFIED EMPLOYMENT DOCUMENTS. THE FORMS EXECUTED BY HER AT THE TIME OF HER APPOINTMENT SHE STATED THAT SHE WAS A CITIZEN OF THE UNITED STATES, BUT IN SUBSEQUENT DISCUSSIONS REGARDING DISCREPANCIES IN HER RECORD SHE NAMED BOTH LONDON, ENGLAND, AND CLEVELAND, OHIO, AS HER PLACE OF BIRTH. FINALLY SHE ADVISED THAT IN THE COURSE OF HER EFFORTS TO OBTAIN CITIZENSHIP BY A DECLARATION OF INTENTION FILED SEPTEMBER 28, 1954, SHE RECEIVED INFORMATION FROM THE BUREAU OF CENSUS THAT HER BIRTHPLACE ACTUALLY WAS IN RUSSIA.

IN VIEW OF THE LENGTH OF THE EMPLOYMENT AND THE CHANGES IN THE APPLICABLE LAWS AND REGULATIONS DURING THE PERIOD THEREOF, THE ACTING SECRETARY SPECIFICALLY ASKS OUR DECISION CONCERNING THE FOLLOWING QUESTIONS:

(1) WHAT DISPOSITION SHOULD BE MADE OF THE UNPAID SALARY EARNED BY THE EMPLOYEE PRIOR TO HER SEPARATION FROM THE SERVICE, THE AMOUNT DUE AS A LUMP-SUM PAYMENT FOR ACCRUED ANNUAL LEAVE, AND THE MONIES TO HER CREDIT IN THE RETIREMENT FUND?

(2) WHAT PART, IF ANY, OF THE COMPENSATION PAID TO HER PRIOR TO HER SEPARATION WILL SHE BE REQUIRED TO REFUND?

RESTRICTIONS IN THE APPROPRIATION ACTS FOR THE TREASURY DEPARTMENT FROM JULY 1, 1938, TO JUNE 30, 1943, PROHIBITED THE USE OF TREASURY DEPARTMENT APPROPRIATIONS FOR THE PAYMENT OF COMPENSATION TO ANY OFFICER OR EMPLOYEE WHO WAS NOT A CITIZEN OF THE UNITED STATES. SEE SECTION 5 OF THE ACT OF MARCH 28, 1938, 52 STAT. 148, AND SECTION 304 OF THE ACT OF MARCH 10, 1942, 56 STAT. 170.

FROM JULY 1, 1943, THROUGH JUNE 30, 1951, THE STATUTORY RESTRICTIONS AGAINST THE USE OF APPROPRIATIONS FOR COMPENSATION TO NONCITIZENS EXEMPTED NATIONALS OF COUNTRIES ALLIED WITH THE UNITED STATES IN THE PROSECUTION OF THE WAR. SEE SECTION 205 OF THE ACT OF JUNE 28, 1943, 57 STAT. 196, 5 U.S.C. 16A, AND SECTION 1202 OF THE ACT OF SEPTEMBER 6, 1950, 64 STAT. 763, 5 U.S.C. 78A-1.

BEGINNING WITH THE FISCAL YEAR 1952, HOWEVER, THE EXEMPTION WAS CHANGED, FROM NATIONALS OF COUNTRIES ALLIED WITH THE UNITED STATES IN THE PROSECUTION OF THE WAR, TO NATIONALS OF COUNTRIES ALLIED WITH THE UNITED STATES IN THE CURRENT DEFENSE EFFORT. SEE SECTION 1302, OF THE ACT OF SEPTEMBER 1, 1951, 65 STAT. 755, AND SECTION 1302, OF THE ACT OF AUGUST 26, 1954, 68 STAT. 828.

IN THE LIGHT OF THE FOREGOING LEGISLATION THE ABOVE QUESTIONS ARE ANSWERED GENERALLY AS FOLLOWS:

CONCERNING THE FIRST PERIOD--- JULY 1, 1938, THROUGH JUNE 30, 1943-- WHEN THERE WAS NO EXEMPTION FROM THE CITIZENSHIP REQUIREMENTS, IT WAS RULED IN 18 COMP. GEN. 815, QUOTING FROM THE SYLLABUS:

WHERE AN INDIVIDUAL, PROBATIONALLY APPOINTED, WAS SUBSEQUENTLY SEPARATED FROM THE SERVICE UPON REQUEST OF THE CIVIL SERVICE COMMISSION BECAUSE OF HIS MISTAKENLY HAVING CERTIFIED HIMSELF TO BE ACITIZEN OF THE UNITED STATES, HE MAY NOT BE PERMITTED TO RETAIN THE SALARY RECEIVED UNDER THE SAID APPOINTMENT SUBSEQUENT TO JULY 1, 1938, ON THE BASIS OF HAVING BEEN A DE FACTO EMPLOYEE, THE APPROPRIATION ACT INVOLVED THEREAFTER--- SECTION 5 OF THE INDEPENDENT OFFICES APPROPRIATION ACT, 1939, 52 STAT. 435--- HAVING SPECIFICALLY PROHIBITED PAYMENT OF COMPENSATION THEREFROM TO ANY PERSON NOT MEETING THE CITIZENSHIP REQUIREMENTS OF THE ACT.

CF. 29 COMP. GEN. 75; 18 COMP. GEN. 868. ACCORDINGLY, IN LINE WITH THOSE DECISIONS COMPENSATION RECEIVED BY HER DURING THAT PERIOD PROPERLY IS FOR RECOVERY.

THE QUESTIONS SO FAR AS THEY RELATE TO THE PERIODS JULY 1, 1943, THROUGH JUNE 30, 1951, AND JULY 1, 1951, THROUGH JANUARY 14, 1954, REQUIRE DETERMINATIONS OF POLITICAL FACTS, WHICH DETERMINATIONS INITIALLY ARE NOT WITHIN THE PROVINCE OF ACCOUNTING OFFICERS. IN THE ABSENCE OF OTHER AUTHORITY DESIGNATED BY STATUTE THE PRIMARY RESPONSIBILITY FOR SUCH DETERMINATIONS DEVOLVES UPON THE AGENCIES WHOSE APPROPRIATIONS ARE TO BE OBLIGATED. IN THAT REGARD DETERMINATIONS BASED UPON REASONABLE GROUNDS WOULD NOT BE QUESTIONED BY THE GENERAL ACCOUNTING OFFICE. WE BELIEVE IT TO BE A COMMONLY ACCEPTED FACT THAT RUSSIA WAS ALLIED WITH THE UNITED STATES DURING WORLD WAR II. A CONTRACT BELIEF IS HELD REGARDING THE RELATIONSHIP OF RUSSIA TO THE UNITED STATES IN THE CURRENT DEFENSE EFFORT. IF YOU CONCUR IN THOSE VIEWS IT WOULD SEEM THAT HER EMPLOYMENT DURING THE PERIOD JULY 1, 1943, THROUGH JUNE 30, 1951, WAS NOT VOID BUT ONLY VOIDABLE AND, SINCE NO ACTION WAS TAKEN TO TERMINATE HER EMPLOYMENT SHE IS ENTITLED TO RETAIN ALL COMPENSATION RECEIVED DURING THAT PERIOD. -110831, AUGUST 4, 1952. HOWEVER, FOR THE REASONS STATED ABOVE, IT IS OUR VIEW THAT HER EMPLOYMENT SINCE JULY 1, 1951, WAS UNAUTHORIZED.

IN ACCORDANCE WITH THE FOREGOING, THE EMPLOYEE WOULD NOT BE ENTITLED TO ANY UNPAID COMPENSATION AND SHOULD BE REQUIRED TO REFUND ALL COMPENSATION RECEIVED BY HER FOR THE PERIODS FROM JULY 1, 1938, THROUGH JUNE 30, 1943, AND FROM JULY 1, 1951, TO THE DATE OF HER SEPARATION.

THE CIVIL SERVICE COMMISSION SHOULD BE INFORMED OF OUR DECISION AND BE REQUESTED TO TRANSFER TO YOUR DEPARTMENT'S APPROPRIATIONS ALL CIVIL SERVICE RETIREMENT DEDUCTIONS MADE FROM HER SALARY DURING THOSE PERIODS IN WHICH SHE WAS NOT ENTITLED TO COMPENSATION. WHILE THE RETIREMENT DEDUCTIONS ARE NOT AVAILABLE FOR SET-OFF, THE TRANSFER OF FUNDS MAY BE AFFECTED IN ACCORDANCE WITH THE PROCEDURE APPROVED IN OUR LETTER OF JULY 22, 1955, B-115338, 35 COMP. GEN. 38, A COPY OF WHICH IS ENCLOSED. THE AMOUNT TO BE RECOVERED FROM THIS EMPLOYEE MAY BE REDUCED BY SUCH RETIREMENT DEDUCTIONS WHEN THEY ARE TRANSFERRED TO THE PROPER APPROPRIATIONS.

THE EMPLOYEE MAY BE ALLOWED NO CREDIT FOR LEAVE ACCRUING DURING THOSE PERIODS IN WHICH THE STATUTORY PROHIBITION AGAINST THE USE OF THE APPROPRIATIONS WAS APPLICABLE. WHILE CREDIT COULD BE ALLOWED FOR ANNUAL LEAVE DURING THE PERIOD JULY 1, 1943, THROUGH JUNE 30, 1951, A LUMP-SUM PAYMENT THEREFOR MAY NOT BE MADE FROM APPROPRIATIONS NOW AVAILABLE. COMP. GEN. 297.

THE PERSONNEL FILE FORWARDED WITH THE ACTING SECRETARY'S LETTER IS RETURNED AS REQUESTED.