B-28268, SEPTEMBER 11, 1942, 22 COMP. GEN. 221

B-28268, SEPTEMBER 11, 1942, 22 COMP. GEN. 221

OFFICERS AND EMPLOYEES - NEGLIGENCE -GOVERNMENT LIABILITY THE GOVERNMENT ITSELF IS NOT RESPONSIBLE FOR THE WRONGS, NEGLIGENCE OR OMISSIONS OF DUTY OF ITS OFFICERS OR AGENTS, AND THEREFORE, IN THE ABSENCE OF SPECIFIC STATUTORY PROVISION TO THE CONTRARY, APPROPRIATED FUNDS OF THE CIVIL SERVICE COMMISSION MAY NOT BE USED TO PAY THE STATUTORY FEES FOR THE ISSUANCE OF NEW NATURALIZATION CERTIFICATES IN LIEU OF CERTAIN NATURALIZATION CERTIFICATES, FILED WITH THE COMMISSION BY CIVIL SERVICE APPLICANTS, WHICH WERE DESTROYED THROUGH THE NEGLIGENCE OF GOVERNMENT EMPLOYEES.

COMPTROLLER GENERAL WARREN TO THE PRESIDENT, UNITED STATES CIVIL SERVICE COMMISSION, SEPTEMBER 11, 1942:

I HAVE YOUR LETTER OF AUGUST 17, 1942, AS FOLLOWS:

IN DECEMBER 1940 AND JANUARY 1941, A CONSIDERABLE NUMBER OF APPLICATIONS FOR CIVIL SERVICE EXAMINATIONS WERE DESTROYED, BEFORE BEING PROCESSED, BY MEMBERS OF THE BUILDING AND MAINTENANCE CLEANING FORCE, ON DUTY IN THE COMMISSION'S MAIN BUILDING AT 8TH AND F STREETS NW.

AMONG THE MATERIAL LOST AT THAT TIME WERE APPROXIMATELY TWENTY NATURALIZATION CERTIFICATES, WHICH WERE FORWARDED BY APPLICANTS BY REGISTERED MAIL TO ESTABLISH THEIR CLAIMS TO UNITED STATES CITIZENSHIP, AND FOR WHICH THE APPLICANTS HAVE RETURN RECEIPTS. THE COMMISSION DESIRES, OF COURSE, TO BE OF ALL POSSIBLE ASSISTANCE TO THESE APPLICANTS, AND IN THESE CASES WE HAVE REQUESTED THEM TO FILL OUT AND RETURN TO THIS OFFICE APPLICATIONS FOR NEW NATURALIZATION PAPERS IN LIEU OF THOSE LOST, FORM N-565, A COPY OF WHICH IS INCLOSED. WE NOW HAVE RECEIVED A FORM N- 565 FROM EACH APPLICANT INVOLVED, AND WISH TO SUBMIT SUCH FORMS TO THE COMMISSIONER OF THE IMMIGRATION AND NATURALIZATION SERVICE IN ORDER THAT NEW CERTIFICATES MAY BE ISSUED BY HIS AGENCY DIRECT TO THE APPLICANTS.

THE CHARGE FOR EACH NEW CERTIFICATE IN LIEU OF ONE LOST IS ONE DOLLAR ($1.00), AND ADVICE IS REQUESTED AS TO WHETHER APPROPRIATED FUNDS AVAILABLE TO THE UNITED STATES CIVIL SERVICE COMMISSION ARE PROPERLY CHARGEABLE WITH SUCH AN EXPENDITURE.

AN EXAMINATION OF THE TERMS OF THE LEGISLATION APPROPRIATING FUNDS FOR THE NECESSARY EXPENSES OF THE CIVIL SERVICE COMMISSION FAILS TO DISCLOSE ANY PROVISION EXPRESSLY AUTHORIZING AN EXPENDITURE OF THE TYPE TO WHICH YOU REFER. MOREOVER, ALTHOUGH IT IS APPARENT THAT THE NATURALIZATION CERTIFICATES RECEIVED BY YOUR COMMISSION FROM THE CIVIL SERVICE APPLICANTS HERE INVOLVED WERE DESTROYED AS THE RESULT OF THE NEGLIGENCE OF AN EMPLOYEE OR EMPLOYEES OF THE GOVERNMENT, IT IS A WELL ESTABLISHED PRINCIPLE, AS WAS STATED BY THE SUPREME COURT OF THE UNITED STATES IN THE CASE OF ROBERTSON V. SICHEL, 127 U.S. 507, 515, THAT---

THE GOVERNMENT ITSELF IS NOT RESPONSIBLE FOR THE MISFEASANCES OR WRONGS, OR NEGLIGENCES, OR OMISSIONS OF DUTY OF THE SUBORDINATE OFFICERS OR AGENTS EMPLOYED IN THE PUBLIC SERVICE; FOR IT DOES NOT UNDERTAKE TO GUARANTEE TO ANY PERSON THE FIDELITY OF ANY OF ITS OFFICERS OR AGENTS WHOM IT EMPLOYS; SINCE THAT WOULD INVOLVE IT, IN ALL ITS OPERATIONS, IN ENDLESS EMBARRASSMENTS, AND DIFFICULTIES, AND LOSSES, WHICH WOULD BE SUBVERSIVE OF THE PUBLIC INTERESTS. AND, IN THE ABSENCE OF ANYTHING TO INDICATE A CONTRARY INTENT, THE CONCLUSION IS REQUIRED THAT THE CONGRESS, IN APPROPRIATING THE FUNDS WHICH ARE AVAILABLE TO THE CIVIL SERVICE COMMISSION, CONTEMPLATED THAT SUCH FUNDS WOULD NOT BE EXPENDED IN DEROGATION OF THE ABOVE-STATED PRINCIPLE. HENCE, UNDER THE CIRCUMSTANCES, IT MUST BE HELD THAT THE APPROPRIATED FUNDS AVAILABLE TO THE CIVIL SERVICE COMMISSION PROPERLY MAY NOT BE USED TO PAY THE STATUTORY FEE REQUIRED IN CONNECTION WITH THE ISSUANCE OF NEW NATURALIZATION CERTIFICATES. ACCORDINGLY, THE QUESTION PRESENTED IS ANSWERED IN THE NEGATIVE.

IT IS NOTED, HOWEVER, THAT THE LAST PARAGRAPH OF SECTION 341 OF THE NATIONALITY ACT OF 1940 (54 STAT. 1161) PROVIDES AS FOLLOWS:

(E) THE COMMISSIONER OR A DEPUTY COMMISSIONER IS AUTHORIZED TO MAKE AND ISSUE, WITHOUT FEE, CERTIFICATIONS OF ANY PART OF THE NATURALIZATION RECORDS OF ANY COURT, OR OF ANY CERTIFICATE OF NATURALIZATION OR CITIZENSHIP, FOR USE IN COMPLYING WITH ANY STATUTE, STATE OR FEDERAL, OR IN ANY JUDICIAL PROCEEDING. NO SUCH CERTIFICATION SHALL BE MADE BY ANY CLERK OF COURT EXCEPT UPON ORDER OF THE COURT.

IF THE CERTIFICATES OF NATURALIZATION IN THE CASES TO WHICH YOU REFER ARE REQUIRED BY YOUR COMMISSION IN THE PERFORMANCE OF ITS FUNCTIONS AS AUTHORIZED AND REQUIRED BY LAW, WITH RESPECT TO PENDING APPLICATIONS OF THE PERSONS CONCERNED, THE ISSUANCE OF NEW CERTIFICATES MAY BE FOR CONSIDERATION BY THE NATURALIZATION SERVICE UNDER THIS SUBSECTION WITHOUT REQUIRING THE PAYMENT OF FEES.