B-147813, DEC. 27, 1961

B-147813, DEC. 27, 1961

TO DIRECTOR, ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS:

ON DECEMBER 18, 1961, YOU REQUESTED OUR DECISION UPON THE LEGALITY OF APPOINTING AN OFFICER OF THE ARKANSAS NATIONAL GUARD--- IN AN INACTIVE DUTY STATUS--- TO THE POSITION OF REFEREE IN BANKRUPTCY.

THE QUALIFICATIONS OF REFEREES IN BANKRUPTCY ARE SET FORTH IN 11 U.S.C. 63, WHICH READS, IN PART, AS FOLLOWS:

"INDIVIDUALS SHALL NOT BE ELIGIBLE TO APPOINTMENT AS REFEREES UNLESS THEY ARE (1) COMPETENT TO PERFORM THE DUTIES OF A REFEREE IN BANKRUPTCY; (2) NOT HOLDING ANY OFFICE OF PROFIT OR EMOLUMENT UNDER THE LAWS OF THE UNITED STATES OR OF ANY STATE OR SUBDIVISION THEREOF OTHER THAN CONCILIATION COMMISSIONER OR SPECIAL MASTER UNDER THIS TITLE * * *.'

IN 26 COMP. GEN. AT 868, TO WHICH YOU REFER, WE HELD THAT A MEMBER OF THE IOWA NATIONAL GUARD HOLDS AN OFFICE UNDER THE STATE OF IOWA AND, THEREFORE, IS INELIGIBLE UNDER 11 U.S.C. 63 FOR APPOINTMENT TO THE POSITION OF REFEREE IN BANKRUPTCY. YOUR SPECIFIC QUESTION IS WHETHER THE CHANGES IN THE LAW RELATING TO THE NATIONAL GUARD THAT HAVE BEEN ENACTED SINCE THE DATE OF THAT DECISION NOW WARRANT A DIFFERENT CONCLUSION.

SECTION 2 OF THE ACT OF JULY 1, 1947, 61 STAT. 239--- ENACTED LESS THAN TWO MONTHS AFTER THE DATE OF OUR DECISION MAY 14, 1947 (26 COMP. GEN. 868/ --- AMENDED SECTION 80 OF THE NATIONAL DEFENSE ACT OF 1916, AS AMENDED, TO INCLUDE THE FOLLOWING PROVISO IN SUCH SECTION:

"* * * THAT NO EXISTING LAW SHALL BE CONSTRUED TO PREVENT ANY MEMBER OF THE NATIONAL GUARD FROM ACCEPTING EMPLOYMENT IN ANY CIVIL BRANCH OF THE PUBLIC SERVICE NOR FROM RECEIVING THE PAY INCIDENT TO SUCH EMPLOYMENT IN ADDITION TO ANY PAY AND ALLOWANCES TO WHICH HE MAY BE ENTITLED UNDER THE PROVISIONS OF LAW RELATING TO THE NATIONAL GUARD * * *.'

THE QUOTED PROVISION WAS CONSOLIDATED WITH A SIMILAR PROVISION APPLICABLE TO OFFICER RESERVE CORPS AND ENLISTED RESERVE CORPS (SEE SECTION 1 OF THE ACT OF JULY 1, 1947, 61 STAT. 239) AND REENACTED AS SECTION 29 (C) OF THE ACT OF AUGUST 10, 1956, 70A STAT. 632, 5 U.S.C. 30R (C). THE CURRENT CODE PROVISION IS, IN PART, AS FOLLOWS:

"ANY RESERVE OR MEMBER OF THE NATIONAL GUARD MAY ACCEPT ANY CIVILIAN POSITION UNDER THE UNITED STATES OR THE DISTRICT OF COLUMBIA AND MAY RECEIVE THE PAY INCIDENT TO THAT EMPLOYMENT IN ADDITION TO PAY AND ALLOWANCES AS A RESERVE OR MEMBER OF THE NATIONAL GUARD * * *.'

AFTER FULLY CONSIDERING THE MATTER, WE ARE OF THE VIEW THAT THE CURRENT PROVISION APPEARING IN 5 U.S.C. 30R (C), QUOTED ABOVE, OVERCOMES THE RESTRICTION IN 11 U.S.C. 63, SO FAR AS THAT RESTRICTION OTHERWISE WOULD PRECLUDE AN OFFICER OF A STATE NATIONAL GUARD FROM BEING APPOINTED TO THE POSITION OF REFEREE IN BANKRUPTCY. IT ALSO OVERCOMES THE RULE STATED IN 26 COMP. GEN. 868. HENCE, THE INDIVIDUAL CONCERNED MAY BE APPOINTED TO THE POSITION IN ADDITION TO ANY PAY AND ALLOWANCES TO WHICH HE MAY BE ENTITLED AS A MEMBER OF THE NATIONAL GUARD.