B-127382, JULY 6, 1956, 36 COMP. GEN. 13

B-127382: Jul 6, 1956

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

REGULATIONS - ADMINISTRATIVE - NECESSITY FOR CONFORMANCE TO LAW - WITHHOLDING OF PAY ON ACCOUNT OF INDEBTEDNESS TO UNITED STATES A NAVY REGULATION WHICH WAS ISSUED IN 1948 TO IMPLEMENT SECTION 1766. PROHIBITING PAYMENT OF COMPENSATION TO PERSONS WHO ARE IN ARREARS TO THE UNITED STATES. THE WITHHOLDING OF PAY AND ALLOWANCES OF A NAVY OFFICER SUBSEQUENT TO THE 1952 ACT ON THE BASIS OF THE NAVY REGULATION WAS CONTRARY TO LAW. A SPECIAL ORDER WHICH WAS PROPERLY ISSUED PURSUANT TO THE 1952 ACT STATING A RETROSPECTIVELY EFFECTIVE DATE DOES NOT AFFORD A BASIS FOR THE ILLEGAL WITHHOLDING OF PAY UNDER THE REGULATION. 1956: REFERENCE IS MADE TO LETTER OF MARCH 19. PRIOR TO THE TIME SUCH ORDER WAS SUPERSEDED BY A SPECIAL ORDER ISSUED BY THE SECRETARY OF THE NAVY ON DECEMBER 22.

B-127382, JULY 6, 1956, 36 COMP. GEN. 13

REGULATIONS - ADMINISTRATIVE - NECESSITY FOR CONFORMANCE TO LAW - WITHHOLDING OF PAY ON ACCOUNT OF INDEBTEDNESS TO UNITED STATES A NAVY REGULATION WHICH WAS ISSUED IN 1948 TO IMPLEMENT SECTION 1766, REVISED STATUTES, PROHIBITING PAYMENT OF COMPENSATION TO PERSONS WHO ARE IN ARREARS TO THE UNITED STATES, MAY NOT BE REGARDED AS A VALID REGULATION SUBSEQUENT TO THE ACT OF JULY 10, 1952, 34 U.S.C. 890, WHICH SUSPENDED THE OPERATION OF SECTION 1766, REVISED STATUTES; AND, THEREFORE, THE WITHHOLDING OF PAY AND ALLOWANCES OF A NAVY OFFICER SUBSEQUENT TO THE 1952 ACT ON THE BASIS OF THE NAVY REGULATION WAS CONTRARY TO LAW, AND A SPECIAL ORDER WHICH WAS PROPERLY ISSUED PURSUANT TO THE 1952 ACT STATING A RETROSPECTIVELY EFFECTIVE DATE DOES NOT AFFORD A BASIS FOR THE ILLEGAL WITHHOLDING OF PAY UNDER THE REGULATION.

TO THE SECRETARY OF THE NAVY, JULY 6, 1956:

REFERENCE IS MADE TO LETTER OF MARCH 19, 1956, WITH ENCLOSURES, FROM THE ASSISTANT SECRETARY OF THE NAVY ( PERSONNEL AND RESERVE FORCES) REQUESTING A DECISION AS TO THE LEGALITY OF THE ACTION TAKEN BY THE DEPARTMENT OF THE NAVY IN WITHHOLDING PAY AND ALLOWANCES FROM AN OFFICER, USN, UNDER MILITARY PAY ORDER NO. 77, OCTOBER 14, 1955, PRIOR TO THE TIME SUCH ORDER WAS SUPERSEDED BY A SPECIAL ORDER ISSUED BY THE SECRETARY OF THE NAVY ON DECEMBER 22, 1955 (STATED TO BE RETROACTIVELY EFFECTIVE FROM OCTOBER 15, 1955), WHICH DIRECTED THE WITHHOLDING OF $200 PER MONTH FROM HIS PAY UNDER THE ACT OF JULY 10, 1952, 66 STAT. 575, 34 U.S.C. 890, AND SECTION 1766 OF THE REVISED STATUTES.

IT APPEARS THAT THE OFFICER WAS ARRESTED AND THAT HIS PAY AND ALLOWANCES WERE WITHHELD FOLLOWING AN INSPECTION ON SEPTEMBER 26, 1955, WHICH REVEALED A SHORTAGE OF $12,350 IN HIS ACCOUNTS, WHILE HE WAS SERVING AS OFFICER-IN-CHARGE, NAVY ACCOUNTS AND DISBURSING OFFICE, FIRST NAVAL DISTRICT. THE PAY ORDER OF OCTOBER 14 WAS BASED ON SECTION 1766 OF THE REVISED STATUTES, 5 U.S.C. 82--- AND IMPLEMENTING REGULATIONS CONTAINED IN ARTICLE 1931, NAVY REGULATIONS, 1948--- WHICH PROVIDES IN PART THAT "NO MONEY SHALL BE PAID TO ANY PERSON FOR HIS COMPENSATION WHO IS IN ARREARS TO THE UNITED STATES, UNTIL HE HAS ACCOUNTED FOR AND PAID INTO THE TREASURY ALL SUMS FOR WHICH HE MAY BE LIABLE.'

THE ACT OF JULY 16, 1892, 10 U.S.C. (1946 USED.) 877, SUSPENDED THE OPERATION OF SECTION 1766, REVISED STATUTES, INSOFAR AS OFFICERS OF THE ARMY ARE CONCERNED, EXCEPT IN THOSE CASES WHERE THE INDEBTEDNESS INVOLVED IS ADMITTED OR SHOWN BY THE JUDGMENT OF A COURT "BUT NOT OTHERWISE UNLESS UPON A SPECIAL ORDER ISSUED ACCORDING TO THE DISCRETION OF THE SECRETARY OF WAR.' THE CITED NAVY REGULATIONS OF 1948 WERE A PROPER IMPLEMENTATION OF SECTION 1766 OF THE REVISED STATUTES SINCE NAVAL OFFICERS WERE NOT THEN MENTIONED IN THE 1892 ACT, BUT THE APPLICATION OF SUCH REGULATIONS APPEARS TO HAVE BEEN EFFECTED PRIOR TO THE PERIOD HERE INVOLVED, BY VIRTUE OF THE ACT OF JULY 10, 1952, WHICH AMENDED THE 1892 ACT SO AS TO INCLUDE, AMONG OTHERS, OFFICERS OF THE NAVY.

ARTICLE 1931, NAVY REGULATIONS, 1948, PROVIDES AS FOLLOWS:

WHEN ANY PERSON IN THE NAVAL ESTABLISHMENT IS PLACED UNDER ARREST FOR AN OFFENSE INVOLVING LOSS OF PUBLIC FUNDS, THE COMMANDING OFFICER CONCERNED SHALL IMMEDIATELY NOTIFY THE DISBURSING OFFICER CARRYING THE ACCOUNTS OF SUCH PERSON. THE COMMANDING OFFICER SHALL BE HELD RESPONSIBLE FOR ANY LOSS TO THE GOVERNMENT RESULTING FROM HIS FAILURE SO TO NOTIFY THE DISBURSING OFFICER (SECTION 1766 REVISED STATUTES).

WHILE IT REASONABLY MAY BE ASSUMED THAT THE PURPOSE OF ARTICLE 1931 WAS TO INITIATE APPLICATION OF THE PROHIBITORY PROVISIONS OF SECTION 1766 OF THE REVISED STATUTES, SUCH PROHIBITION COULD NO MORE BE APPLIED TO NAVAL OFFICERS SUBSEQUENT TO THE ACT OF JULY 10, 1952, THAN COULD SECTION 1766 BE APPLIED TO OFFICERS OF THE ARMY SUBSEQUENT TO THE ACT OF JULY 16, 1892, EXCEPT AS THEREIN SPECIFICALLY PROVIDED.

AS A BASIS FOR GIVING LIMITED APPLICATION TO ARTICLE 1931, NAVY REGULATIONS, 1948, SUBSEQUENT TO JULY 10, 1952, REFERENCE IS MADE TO THE CASE OF BOSKE V. COMINGORE, 177 U.S. 479, AND 42 AM. JUR., PUBLIC ADMINISTRATIVE LAW, SECTION 99. HOWEVER, THE RATIONALE OF SAID REFERENCES APPEARS INAPPOSITE, IF NOT DIRECTLY CONTRARY, TO THE PURPOSE SOUGHT TO BE ACCOMPLISHED BY THE 1952 ACT. THE BOSKE V. COMINGORE CASE INVOLVED A REGULATION OF SECRETARY OF THE TREASURY WHICH PROHIBITED COLLECTORS OF TAXES FROM FURNISHING CERTAIN DATA EXCEPT AS THEREIN SPECIFICALLY PROVIDED, AND THE COURT HELD THAT THE REGULATION WAS A VALID EXERCISE OF DISCRETION "IN THE ABSENCE OF A STATUTE TO THE CONTRARY.' IT WILL BE SEEN FROM AN EXAMINATION OF THAT CASE THAT THE COURT HAD NO OCCASION TO CONSIDER A STATUTE OF ANY KIND TENDING TO CONFLICT WITH THE PROVISIONS OF THE CONTESTED REGULATION.

IN THE TEXT TO SECTION 99, 42 AM. JUR., PUBLIC ADMINISTRATIVE LAW, WILL BE FOUND THE STATEMENT (CITING CASES), AS FOLLOWS:

* * * IT IS A WHOLESOME AND NECESSARY PRINCIPLE THAT AN ADMINISTRATIVE AGENCY MUST PURSUE THE PROCEDURE AND RULES ENJOINED UPON IT BY THE STATUTE CREATING IT, AND SHOW A SUBSTANTIAL COMPLIANCE THEREWITH, TO GIVE VALIDITY TO ITS ACTION. ADMINISTRATIVE REGULATIONS WHICH GO BEYOND WHAT THE LEGISLATURE HAS AUTHORIZED HAVE BEEN SAID TO BE VOID AND MAY BE DISREGARDED. OTHER CASES SAY THAT SUCH REGULATIONS ARE INVALID, * * *.

IN THE LETTER OF MARCH 19, IT IS SUGGESTED THAT THE PURPOSE OF THE NAVY REGULATION IS TO MAINTAIN THE STATUS QUO OF AN ACCOUNTABLE OFFICER'S PAY ACCOUNT, I.E., "THE OFFICER ACCRUES PAY AND ALLOWANCES," ETC. HOWEVER, HAVING PREVIOUSLY ADMITTED THAT THE PARTICULAR REGULATIONS ARE FOR GENERAL APPLICATION, APPLYING TO ALL PERSONS IN THE CLASS SPECIFIED, IT APPEARS REASONABLY CLEAR TO US THAT THE EXISTING CONFLICT BETWEEN THE SAID REGULATIONS (IF APPLIED SO AS TO WITHHOLD CURRENT MONEY ACCRUING TO A NAVAL OFFICER) AND THE ACT OF JULY 10, 1952, CANNOT BE RECONCILED. THE MAINTENANCE OF A SO-CALLED STATUS QUO IN FACT REQUIRES A WITHHOLDING OF THE OFFICER'S ACCRUED PAY AND ALLOWANCES AND, HENCE, IN OUR OPINION VIOLATES THE EXPRESS PROVISIONS OF THE ACT OF JULY 10, 1952, ABSENT ONE OF THE CONDITIONS THEREIN STIPULATED. THE POSITION OF THE NAVY IS FULLY APPRECIATED BUT THE PARTICULAR NAVY REGULATIONS, INSOFAR AS THEY PURPORT TO DIRECT OR AUTHORIZE A WITHHOLDING OF PAY, MUST BE CONSIDERED INEFFECTIVE SUBSEQUENT TO THE ACT OF JULY 10, 1952. IT FOLLOWS THAT THE WITHHOLDING OF THE OFFICER'S PAY FROM OCTOBER 15 TO DECEMBER 21, 1955, WAS CONTRARY TO THE STATUTE, AND SUCH ACTION CANNOT BE VIEWED AS HAVING BEEN RETROACTIVELY VALIDATED BY STATING A RETROSPECTIVELY EFFECTIVE DATE IN THE SPECIAL ORDER OF DECEMBER 22, 1955, AS A BASIS FOR CONTINUING THE ILLEGAL WITHHOLDING.