B-132818, MARCH 9, 1961, 40 COMP. GEN. 500

B-132818: Mar 9, 1961

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OATHS - ALIEN SCIENTISTS - DELEGATED APPOINTMENT AUTHORITY ALIEN SCIENTISTS WHO ARE LAWFULLY APPOINTED TO THE DEPARTMENTAL SERVICE UNDER DELEGATED AUTHORITY BY SUBORDINATE OFFICIALS OF THE DEPARTMENT ARE NOT REGARDED AS OFFICERS OF THE UNITED STATES IN THE CONSTITUTIONAL SENSE TO BE REQUIRED TO TAKE THE OATH SPECIFIED FOR SUCH OFFICERS IN SECTION 1757. THE ASSISTANT SECRETARY OF COMMERCE REQUESTED OUR DECISION WHETHER ALIEN SCIENTISTS APPOINTED IN THE DEPARTMENTAL SERVICE OF YOUR DEPARTMENT BY A SUBORDINATE OFFICIAL OF THE DEPARTMENT ARE REQUIRED TO TAKE THE OATH OF OFFICE PRESCRIBED BY SECTION 1757 REVISED STATUTES. DO SOLEMNLY SWEAR (OR AFFIRM) THAT I WILL SUPPORT AND DEFEND THE CONSTITUTION OF THE UNITED STATES AGAINST ALL ENEMIES.

B-132818, MARCH 9, 1961, 40 COMP. GEN. 500

OATHS - ALIEN SCIENTISTS - DELEGATED APPOINTMENT AUTHORITY ALIEN SCIENTISTS WHO ARE LAWFULLY APPOINTED TO THE DEPARTMENTAL SERVICE UNDER DELEGATED AUTHORITY BY SUBORDINATE OFFICIALS OF THE DEPARTMENT ARE NOT REGARDED AS OFFICERS OF THE UNITED STATES IN THE CONSTITUTIONAL SENSE TO BE REQUIRED TO TAKE THE OATH SPECIFIED FOR SUCH OFFICERS IN SECTION 1757, REVISED STATUTES, 5 U.S.C. 16, AND, THEREFORE, SUCH ALIEN SCIENTISTS MAY BE PAID COMPENSATION FOR SERVICE NOTWITHSTANDING THAT THE OATH HAS NOT BEEN TAKEN; HOWEVER, THE SECRETARY OF THE DEPARTMENT MAY BY REGULATION REQUIRE SUCH OATH AS HE DEEMS NECESSARY AND APPROPRIATE.

TO THE SECRETARY OF COMMERCE, MARCH 9, 1961:

ON JANUARY 11, 1961, THE ASSISTANT SECRETARY OF COMMERCE REQUESTED OUR DECISION WHETHER ALIEN SCIENTISTS APPOINTED IN THE DEPARTMENTAL SERVICE OF YOUR DEPARTMENT BY A SUBORDINATE OFFICIAL OF THE DEPARTMENT ARE REQUIRED TO TAKE THE OATH OF OFFICE PRESCRIBED BY SECTION 1757 REVISED STATUTES, 5 U.S.C. 16, BEFORE COMPENSATION MAY BE PAID FOR THEIR SERVICES.

THAT STATUTE PROVIDES:

THE OATH TO BE TAKEN BY ANY PERSON ELECTED OR APPOINTED TO ANY OFFICER OF HONOR OR PROFIT EITHER IN THE CIVIL, MILITARY, OR NAVAL SERVICE, EXCEPT THE PRESIDENT OF THE UNITED STATES SHALL BE AS FOLLOWS: " I, A B, DO SOLEMNLY SWEAR (OR AFFIRM) THAT I WILL SUPPORT AND DEFEND THE CONSTITUTION OF THE UNITED STATES AGAINST ALL ENEMIES, FOREIGN AND DOMESTIC; THAT I WILL BEAR TRUE FAITH AND ALLEGIANCE TO THE SAME; THAT I TAKE THIS OBLIGATION FREELY, WITHOUT ANY MENTAL RESERVATION OR PURPOSE OF EVASION; AND THAT I WILL WELL AND FAITHFULLY DISCHARGE THE DUTIES OF THE OFFICE ON WHICH I AM ABOUT TO ENTER. SO HELP ME GOD.' THIS SECTION SHALL NOT AFFECT THE OATHS PRESCRIBED ON MAY 13, 1884, IN RELATION TO THE PERFORMANCE OF DUTIES IN SPECIAL OR PARTICULAR SUBORDINATE OFFICES AND EMPLOYMENTS.

THAT STATUTE HAS BEEN UNIFORMLY INTERPRETED TO BE APPLICABLE ONLY TO OFFICERS OF THE UNITED STATES IN THE CONSTITUTIONAL SENSE. 1 COMP. DEC. 540; 4 ID. 92; 6 COMP. GEN. 112.

IN OUR DECISION 14 COMP. GEN. 345, WE HELD THAT PERSONS APPOINTED UNDER AUTHORITY DELEGATED FROM THE HEADS OF DEPARTMENTS AND INDEPENDENT ESTABLISHMENTS TO DELEGATE THEIR AUTHORITY TO MAKE APPOINTMENTS TO FIELD SERVICE POSITIONS--- ARE NOT OFFICERS IN THE CONSTITUTIONAL SENSE. CONSISTENT WITH THAT DECISION PERSONS APPOINTED IN THE DEPARTMENTAL SERVICE WOULD NO LONGER BE OFFICERS IN THE CONSTITUTIONAL SENSE UPON A SIMILAR DELEGATION HAVING BEEN MADE UNDER SECTION 12 OF THE ADMINISTRATIVE EXPENSE ACT OF 1946, 60 STAT. 809, 5 U.S.C. 22A, WHICH SECTION AUTHORIZES THE HEADS OF DEPARTMENTS TO DELEGATE THEIR AUTHORITY TO MAKE APPOINTMENTS IN THE DEPARTMENTAL SERVICE. THIS CONCLUSION LIKEWISE WOULD HOLD TRUE IN CASES OF DELEGATIONS UNDER REORGANIZATION PLAN NO. 5 OF 1950, 5 U.S.C. 1132-15, UNDER WHICH THE FUNCTIONS OF ALL OFFICERS AND EMPLOYEES OF THE DEPARTMENT OF COMMERCE WERE TRANSFERRED TO THE SECRETARY OF COMMERCE WITH THE POWER TO DELEGATE SUCH FUNCTIONS.

THEREFORE, WE HOLD THAT AN ALIEN SCIENTIST LAWFULLY APPOINTED UNDER DELEGATED AUTHORITY BY A SUBORDINATE OFFICIAL OF THE DEPARTMENT TO A POSITION IN THE DEPARTMENTAL SERVICE IS NOT REQUIRED BY SECTION 1757 TO TAKE AN OATH OF OFFICE AND, THEREFORE, MAY BE PAID COMPENSATION FOR SUCH SERVICE, NOTWITHSTANDING SUCH OATH IS NOT TAKEN. THE SECRETARY OF COMMERCE, NEVERTHELESS, MAY REQUIRE BY REGULATION SUCH OATH AS HE DEEMS NECESSARY AND APPROPRIATE. CF. 50 U.S.C. APP. 454 (I) (7) AND 455 (A).