B-144396, DEC. 16, 1960

B-144396: Dec 16, 1960

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YOUR REQUEST IS THAT WE OVERRULE OUR DECISION OF APRIL 20. IS IN PERTINENT PART AS FOLLOWS: "SEC. 103A. IN THE SERVICE OF WHICH SUCH OFFICER OR EMPLOYEE WAS ENGAGED. IS HEREBY AUTHORIZED. TO PAY FROM THE APPROPRIATION AVAILABLE FOR THE ACTIVITY IN WHICH HE WAS ENGAGED. - "/A) IN CASE OF THE DEATH OF THE OFFICER OR EMPLOYEE IS SUCH TRAVEL STATUS IN THE UNITED STATES. YOU ACKNOWLEDGE THAT UNDER THE QUOTED SECTION THE TRANSPORTATION OF REMAINS IS PROVIDED FOR UPON A DIFFERENT BASIS DEPENDING UPON WHETHER THE DECEASED EMPLOYEE WAS STATIONED. THAT THE LEGISLATIVE HISTORY OF THE 1940 STATUTE CLEARLY ESTABLISHES THAT THIS DISTINCTION WAS BASED UPON DISTANCE AND GEOGRAPHICAL LOCATION ALONE AND NOT UPON THE TERRITORIAL STATUS OF ALASKA OR HAWAII.

B-144396, DEC. 16, 1960

TO E. R. QUESADA, ADMINISTRATOR, FEDERAL AVIATION AGENCY:

ON NOVEMBER 4, 1960, YOU REQUESTED OUR DECISION CONCERNING THE AUTHORITY TO PREPARE AND TRANSPORT AT GOVERNMENT EXPENSE THAT REMAINS OF AN EMPLOYEE WHO DIED IN ALASKA, FROM ALASKA TO HIS ACTUAL PLACE OF RESIDENCE ELSEWHERE IN THE UNITED STATES. IN EFFECT, YOUR REQUEST IS THAT WE OVERRULE OUR DECISION OF APRIL 20, 1960, B-142477, 39 COMP. GEN. 716, CONSTRUING SECTION 1 OF THE ACT OF JULY 8, 1940, 5 U.S.C. 103A. THAT DECISION HELD THAT AFTER THE ADMISSION OF ALASKA AND HAWAII AS STATES OF THE UNITED STATES, GOVERNMENT EMPLOYEES DYING WITHIN THOSE JURISDICTIONS WOULD BE ENTITLED UNDER SECTION 1 OF THE 1940 ACT, TO THE SAME BENEFITS APPLICABLE TO EMPLOYEES STATIONED ELSEWHERE WITHIN THE UNITED STATES RATHER THAN THOSE APPLICABLE TO EMPLOYEES STATIONED IN TERRITORIES AND POSSESSIONS, ETC.

SECTION 1 OF THE ACT OF JULY 8, 1940, IS IN PERTINENT PART AS FOLLOWS:

"SEC. 103A. REMAINS, DEPENDENTS, AND EFFECTS OF OFFICERS AND EMPLOYEES DYING ABROAD, OR AWAY FROM OFFICIAL STATION, TRANSPORTATION

"IN CASE ANY CIVILIAN OFFICER OR EMPLOYEE OF THE UNITED STATES DIES (1) WHILE IN A TRAVEL STATUS AWAY FROM HIS OFFICIAL STATION IN THE UNITED STATES OR (2) WHILE PERFORMING OFFICIAL DUTIES IN A TERRITORY OR POSSESSION OF THE UNITED STATES OR IN A FOREIGN COUNTRY OR IN TRANSIT THERETO OT THEREFROM, THE HEAD OF THE DEPARTMENT, INDEPENDENT ESTABLISHMENT, AGENCY, OR FEDERALLY OWNED OR CONTROLLED CORPORATION, HEREINAFTER CALLED DEPARTMENT, IN THE SERVICE OF WHICH SUCH OFFICER OR EMPLOYEE WAS ENGAGED, IS HEREBY AUTHORIZED, UNDER REGULATIONS TO BE PRESCRIBED BY THE PRESIDENT AND EXCEPT AS OTHERWISE PROVIDED BY LAW, TO PAY FROM THE APPROPRIATION AVAILABLE FOR THE ACTIVITY IN WHICH HE WAS ENGAGED---

"/A) IN CASE OF THE DEATH OF THE OFFICER OR EMPLOYEE IS SUCH TRAVEL STATUS IN THE UNITED STATES, OR IN THE CASE OF THE DEATH OF THE OFFICER OR EMPLOYEE WHILE PERFORMING OFFICIAL DUTIES IN A TERRITORY OR POSSESSION OF THE UNITED STATES OR IN A FOREIGN COUNTRY OR IN TRANSIT THERETO OR THEREFROM, THE EXPENSES OF PREPARING AND TRANSPORTING THE REMAINS OF SUCH OFFICER OR EMPLOYEE TO HIS HOME OR OFFICIAL STATION OR SUCH OTHER PLACE AS THE HEAD OF THE DEPARTMENT CONCERNED SHALL DETERMINE TO BE THE APPROPRIATE PLACE OF INTERMENT.

"/B) IN CASE OF THE DEATH OF THE OFFICER OR EMPLOYEE WHILE PERFORMING OFFICIAL DUTIES IN A TERRITORY OR POSSESSION OF THE UNITED STATES OR IN A FOREIGN COUNTRY OR IN TRANSIT THERETO OR THEREFROM, THE TRANSPORTATION EXPENSES OF THIS DEPENDENTS, INCLUDING EXPENSES INCURRED IN PACKING, CRATING, DRAYAGE, AND TRANSPORTATION OF HOUSEHOLD EFFECTS AND OTHER PERSONAL PROPERTY TO HIS FORMER HOME OR SUCH OTHER PLACE AS THE HEAD OF THE DEPARTMENT SHALL DETERMINE.'

YOU ACKNOWLEDGE THAT UNDER THE QUOTED SECTION THE TRANSPORTATION OF REMAINS IS PROVIDED FOR UPON A DIFFERENT BASIS DEPENDING UPON WHETHER THE DECEASED EMPLOYEE WAS STATIONED, AT THE TIME OF HIS DEATH, WITHIN A TERRITORY OR POSSESSION OF THE UNITED STATES, OR WITHIN ONE OF THE SEVERAL STATES OF THE UNITED STATES. HOWEVER, YOU SAY, IN EFFECT, THAT THE LEGISLATIVE HISTORY OF THE 1940 STATUTE CLEARLY ESTABLISHES THAT THIS DISTINCTION WAS BASED UPON DISTANCE AND GEOGRAPHICAL LOCATION ALONE AND NOT UPON THE TERRITORIAL STATUS OF ALASKA OR HAWAII.

ADMITTEDLY, THERE IS SOME SUPPORT FOR THAT VIEW IN THE LEGISLATIVE HISTORY OF THE 1940 STATUTE. HOWEVER, NEITHER ALASKA NOR HAWAII HAD BEEN GRANTED STATEHOOD AT THE TIME THE 1940 STATUTE WAS ENACTED. HAD STATEHOOD BEEN GRANTED PRIOR TO THE ENACTMENT OF THAT ACT, THE CONGRESS WOULD HAVE BEEN CONFRONTED WITH DIFFERENT POLICY CONSIDERATIONS FROM THOSE WITH WHICH IT WAS CONFRONTED AT THE TIME OF ENACTMENT OF THE 1940 STATUTE. ONE OF THESE CONSIDERATIONS WOULD HAVE BEEN WHETHER EMPLOYEES OF THE GOVERNMENT STATIONED IN CERTAIN STATES SHOULD BE GRANTED BENEFITS DIFFERENT FROM THE GREATER THAN EMPLOYEES STATIONED IN OTHER STATES. ALSO, THERE WOULD HAVE BEEN THE QUESTION OF THE EFFECT OF GRANTING PREFERENTIAL TREATMENT TO EMPLOYEES STATIONED IN ALASKA OR HAWAII UPON THE BASIC POLICY OF ENCOURAGING GOVERNMENT EMPLOYEES TO ESTABLISH PERMANENT HOMES (DOMICILES) IN THE NEW STATES.

WHILE WE DO NOT THINK IT CAN BE FAIRLY DETERMINED AT THIS TIME HOW CONGRESS WOULD HAVE ACTED HAD ALASKA AND HAWAII BEEN GRANTED STATEHOOD PRIOR TO ENACTMENT OF THE 1940 STATUTE, WE DO THINK THAT IS IS SIGNIFICANT THAT ALASKA AND HAWAII HAD NOT BEEN GRANTED STATEHOOD AT THAT TIME. OUR OPINION THAT FACT WARRANTS THE CONCLUSION THAT THE PLAIN WORDING OF THE STATUTE SHOULD NOT BE CONSTRUED AWAY IN RELIANCE UPON CERTAIN GENERAL STATEMENTS APPEARING IN THE LEGISLATIVE HISTORY OF THAT STATUTE--- REFERRED TO IN YOUR LETTER--- THAT DID NOT CONTEMPLATE THE ACTUAL SITUATION AS IT EXISTS AFTER THE ADMISSION OF ALASKA AND HAWAII AS STATES.

IN SUPPORT OF YOUR VIEW YOU REFER TO SECTION 49 OF BOTH THE HAWAIIAN OMNIBUS ACT, 74 STAT. 424, AND THE ALASKAN OMNIBUS ACT, 73 STAT. 154. YOU QUOTE SECTION 49 IN YOUR LETTER AS FOLLOWS:

"THE AMENDMENT BY THIS ACT OF CERTAIN STATUTES BY DELETING THEREFROM SPECIFIC REFERENCES TO HAWAII (ALASKA) OR SUCH PHRASES AS "TERRITORY OF HAWAII (ALASKA)" SHALL NOT BE CONSTRUED TO AFFECT THE APPLICABILITY OR INAPPLICABILITY IN OR TO HAWAII (ALASKA) OF OTHER STATUTES NOT SO AMENDED.'

WE THINK THAT THE EFFECT OF SECTION 49 IS NOTHING MORE THAN TO PRECLUDE ANY INFERENCE FROM BEING DRAWN THAT THE INCLUSION IN THE ALASKAN OMNIBUS ACT AND IN THE HAWAIIAN OMNIBUS ACT OF AMENDMENTS TO CERTAIN STATUTES AND OMISSIONS OF AMENDMENTS TO OTHERS WAS INTENDED TO AFFECT THE APPLICABILITY OF STATUTES NOT SPECIFICALLY REFERRED TO IN THOSE ACTS. HOWEVER, THIS DOES NOT MEAN THAT ALL STATUTES NOT SO AMENDED MUST CONTINUE TO BE CONSTRUED AFTER THE ADMISSION OF ALASKA AND HAWAII AS STATES AS THEY THERETOFORE HAD BEEN CONSTRUED. RATHER, THE APPLICATION OF ANY PARTICULAR STATUTE WOULD DEPEND UPON A CONSTRUCTION OF THE LANGUAGE AND THE LEGISLATIVE HISTORY OF THE STATUTE INVOLVED.

IN THAT CONNECTION WE DO NOT CONSIDER THAT OUR RULING IN THE DECISION OF APRIL 20, 1960, IS IN CONFLICT WITH OUR DECISION APPEARING IN 38 COMP. GEN. 447, REFERRED TO IN YOUR LETTER. OUR VIEW IS THAT THE LEGISLATIVE HISTORY OF THE ACT OF JULY 8, 1940, WHICH CONTAINS NO INDICATION THAT THE ADMISSION OF ALASKA AND HAWAII WAS CONTEMPLATED BY THE CONGRESS IN CONNECTION WITH ITS CONSIDERATION OF THE 1940 STATUTE DOES NOT REQUIRE OR WARRANT OUR DISREGARDING THE CLEAR MEANING OF THE SPECIFIC WORDING OF THAT STATUTE. WE, THEREFORE, AFFIRM THE CONCLUSION STATED IN OUR DECISION OF APRIL 20, 1960.

FOR SIMILAR REASONS, WE SEE NO SOUND BASIS FOR MODIFYING OUR DECISION CONCERNING THE ANNUAL LEAVE ACCUMULATION CEILING APPLICABLE TO EMPLOYEES STATIONED IN ALASKA (38 COMP. GEN. 201) ALSO REFERRED TO IN YOUR LETTER.

WHILE THE CONCLUSION REACHED THEREIN IS REQUIRED, WE RECOGNIZE THAT THE ADMISSION OF ALASKA AND HAWAII AS STATES CREATES CERTAIN INCONSISTENCIES IN THE OPERATION OF SECTION 1 OF THE ACT OF JULY 8, 1940, AS AMENDED. THUS, WHILE PAYMENT WILL BE DENIED UNDER THAT ACT FOR REIMBURSEMENT OF THE COST OF PREPARATION AND TRANSPORTATION OF THE REMAINS OF AN EMPLOYEE WHO DIES--- OTHER THAN IN A TRAVEL STATUS--- IN ALASKA OR HAWAII TO HIS "HOME OR OFFICIAL STATION OR SUCH OTHER PLACE AS THE HEAD OF THE DEPARTMENT CONCERNED SHALL DETERMINE TO BE THE APPROPRIATE PLACE OF INTERMENT," PAYMENT OF SUCH COSTS WILL CONTINUE TO BE MADE IN CONNECTION WITH THE DEATH OF DEPENDENTS OF THE EMPLOYEE UNDER SECTION (C) OF THAT SECTION. SEE 5 U.S.C. 103A (C). ALSO, UNDER SECTION 7 OF THE ADMINISTRATIVE EXPENSES ACT OF 1946, AS AMENDED, 5 U.S.C. 73B-3, PAYMENT WOULD BE AUTHORIZED FOR RETURN TRANSPORTATION OF THE EMPLOYEE SHOULD HE SURVIVE AND COMPLETE HIS CONTRACT OF EMPLOYMENT. MOREOVER, IN GENERAL, PAYMENT OF TRANSPORTATION EXPENSES OF THE DEPENDENTS OF AN EMPLOYEE STATIONED IN ALASKA OR HAWAII WILL CONTINUE TO BE MADE UNDER SECTION 7 OF THE ADMINISTRATIVE EXPENSES ACT OF 1946 WHEN THE EMPLOYEE'S DEATH PREVENTS THE COMPLETION OF HIS AGREED TOUR OF SERVICE. SEE DECISION OF SEPTEMBER 29, 1960, 40 COMP. GEN. 196.

WHILE THE QUESTION WHETHER THE ALLOWANCE SHOULD BE AUTHORIZED IS CLEARLY ONE OF POLICY FOR DECISION BY THE CONGRESS AND CONCERNING WHICH WE TAKE NO POSITION, IN THE LIGHT OF THE OBVIOUS INCONSISTENCIES CONCERNING THE PAYMENT OF THIS AND SIMILAR TYPES OF ALLOWANCES, WE ARE DIRECTING THE MATTER TO THE ATTENTION OF THE COMMITTEES ON POST OFFICE AND CIVIL SERVICE OF THE SENATE AND THE HOUSE OF REPRESENTATIVES.