B-39520, FEBRUARY 9, 1944, 23 COMP. GEN. 576

B-39520: Feb 9, 1944

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1944: I HAVE YOUR LETTER OF JANUARY 18. MISS EMILY PAVELEY WAS APPOINTED AS AN ASSISTANT STENOGRAPHER IN THE UNITED STATES EMPLOYMENT SERVICE FOR NEW YORK. WHEN HER APPOINTMENT WAS TERMINATED BECAUSE IT WAS FOUND ON POST AUDIT BY THE CIVIL SERVICE COMMISSION THAT SHE WAS AN ALIEN. WAS $1. THERE ARE SMALL BALANCES IN THE EMPLOYEE'S RETIREMENT FUND. MISS PAVELEY WAS A CANADIAN NATIONAL. THAT TIME SHE WAS IN THE FEDERAL SERVICE. MISS PAVELEY'S EMPLOYMENT IN THE UNITED STATES EMPLOYMENT SERVICE UNDER THE FEDERAL SECURITY AGENCY AND THE WAR MANPOWER COMMISSION DURING THE FISCAL YEAR 1943 WAS SUBJECT TO THE PROVISIONS OF THE LABOR FEDERAL SECURITY APPROPRIATION ACT. SECTION 702 OF THIS ACT PROVIDES THAT: "NO PART OF ANY APPROPRIATION CONTAINED IN THIS ACT OR AUTHORIZED HEREBY TO BE EXPENDED SHALL BE USED TO PAY THE COMPENSATION OF ANY OFFICER OR EMPLOYEE OF THE GOVERNMENT OF THE UNITED STATES * * * WHOSE POST OF DUTY IS IN CONTINENTAL UNITED STATES UNLESS SUCH OFFICER OR EMPLOYEE IS A CITIZEN OF THE UNITED STATES OR A PERSON IN THE SERVICE OF THE UNITED STATES ON THE DATE OF THE APPROVAL OF THIS ACT WHO BEING ELIGIBLE FOR CITIZENSHIP HAS FILED A DECLARATION OF INTENTION TO BECOME A CITIZEN OR WHO OWES ALLEGIANCE TO THE UNITED STATES.

B-39520, FEBRUARY 9, 1944, 23 COMP. GEN. 576

ALIENS - EFFECT OF SPECIFIC APPROPRIATION FOR EMPLOYMENT OF ALIENS IN VIEW OF THE PROVISION IN SECTION 205 OF THE INDEPENDENT OFFICES APPROPRIATION ACT, 1944, EXEMPTING "NATIONALS OF THOSE COUNTRIES ALLIED WITH THE UNITED STATES IN THE PROSECUTION OF THE AR" FROM THE PROHIBITION AGAINST THE EMPLOYMENT OF ALIENS BY THE UNITED STATES, THE SUM OF $10,000 SPECIFICALLY APPROPRIATED "FOR THE EMPLOYMENT OF ALIENS" BY THE WAR MANPOWER COMMISSION UNDER THE LABOR FEDERAL-SECURITY APPROPRIATION ACT, 1944, MAY BE REGARDED AS APPLICABLE TO THE EMPLOYMENT OF ALIENS OTHER THAN THOSE WHOSE EMPLOYMENT WOULD BE PERMITTED UNDER THE GENERAL STATUTORY PROVISIONS ON THE EMPLOYMENT OF ALIENS.

ACTING COMPTROLLER GENERAL YATES TO THE CHAIRMAN, WAR MANPOWER COMMISSION, FEBRUARY 9, 1944:

I HAVE YOUR LETTER OF JANUARY 18, 1944, AS FOLLOWS:

ON SEPTEMBER 17, 1942, MISS EMILY PAVELEY WAS APPOINTED AS AN ASSISTANT STENOGRAPHER IN THE UNITED STATES EMPLOYMENT SERVICE FOR NEW YORK, AND SHE CONTINUED ON DUTY UNTIL AUGUST 19, 1943, WHEN HER APPOINTMENT WAS TERMINATED BECAUSE IT WAS FOUND ON POST AUDIT BY THE CIVIL SERVICE COMMISSION THAT SHE WAS AN ALIEN. MISS PAVELEY DID NOT MISREPRESENT HER STATUS AS AN ALIEN AT THE TIME OF HER APPOINTMENT. THE GROSS SALARY EARNED BY MISS PAVELEY FROM SEPTEMBER 17, 1942 TO AUGUST 19, 1943, WAS $1,382.06, OF WHICH $1,312.66 HAS ACTUALLY BEEN PAID TO HER. HER SALARY FROM AUGUST 16 TO AUGUST 19, 1943, HAS BEEN WITHHELD, AND THERE ARE SMALL BALANCES IN THE EMPLOYEE'S RETIREMENT FUND, AND WAR BOND DEDUCTION ACCOUNT.

MISS PAVELEY WAS A CANADIAN NATIONAL. SHE SIGNED A DECLARATION OF INTENTION TO BECOME A CITIZEN OF THE UNITED STATES ON MARCH 11, 1942. THAT TIME SHE WAS IN THE FEDERAL SERVICE, HAVING BEEN EMPLOYED BY THE NATIONAL YOUTH ADMINISTRATION AT BINGHAMTON, NEW YORK, FROM MAY 16, 1939 TO JULY 23, 1942.

MISS PAVELEY'S EMPLOYMENT IN THE UNITED STATES EMPLOYMENT SERVICE UNDER THE FEDERAL SECURITY AGENCY AND THE WAR MANPOWER COMMISSION DURING THE FISCAL YEAR 1943 WAS SUBJECT TO THE PROVISIONS OF THE LABOR FEDERAL SECURITY APPROPRIATION ACT, PUB. NO. 647, 77TH CONG., APPROVED JULY 2, 1942. SECTION 702 OF THIS ACT PROVIDES THAT:

"NO PART OF ANY APPROPRIATION CONTAINED IN THIS ACT OR AUTHORIZED HEREBY TO BE EXPENDED SHALL BE USED TO PAY THE COMPENSATION OF ANY OFFICER OR EMPLOYEE OF THE GOVERNMENT OF THE UNITED STATES * * * WHOSE POST OF DUTY IS IN CONTINENTAL UNITED STATES UNLESS SUCH OFFICER OR EMPLOYEE IS A CITIZEN OF THE UNITED STATES OR A PERSON IN THE SERVICE OF THE UNITED STATES ON THE DATE OF THE APPROVAL OF THIS ACT WHO BEING ELIGIBLE FOR CITIZENSHIP HAS FILED A DECLARATION OF INTENTION TO BECOME A CITIZEN OR WHO OWES ALLEGIANCE TO THE UNITED STATES. THIS SECTION SHALL NOT APPLY TO CITIZENS OF THE COMMONWEALTH OF THE PHILIPPINES.'

THE FIRST SUPPLEMENTAL NATIONAL DEFENSE APPROPRIATION ACT, 1943, PUB. NO. 678, 77TH CONG., APPROVED JULY 25, 1942, MADE AN APPROPRIATION FOR THE WAR MANPOWER COMMISSION,"INCLUDING NOT TO EXCEED $10,000 FOR THE EMPLOYMENT OF ALIENS; " SECTION 202 OF THAT ACT CONTAINED GENERAL PROVISIONS PROHIBITING THE EMPLOYMENT OF ALIENS SUBSTANTIALLY SIMILAR TO THOSE QUOTED ABOVE. THE SECOND SUPPLEMENTAL NATIONAL DEFENSE APPROPRIATION ACT, 1943, PUB. NO. 763, 77TH CONG., APPROVED OCTOBER 26, 1942, MADE A FURTHER APPROPRIATION FOR THE WAR MANPOWER COMMISSION FOR THE FISCAL YEAR 1943, PRESUMEDLY FOR THE SAME PURPOSE AND SUBJECT TO THE SAME CONDITIONS.

SIMILAR PROVISIONS TO THOSE IN THE APPROPRIATION ACTS CITED ABOVE APPEAR IN APPROPRIATION ACTS GOVERNING THE ADMINISTRATION OF THE WAR MANPOWER COMMISSION FOR THE FISCAL YEAR 1944. TITLE VII OF THE LABOR FEDERAL SECURITY APPROPRIATION ACT, 1944, PUB. NO. 135, 78TH CONG., APPROVED JULY 12, 1943, PROVIDES "FOR ALL NECESSARY EXPENSES FOR THE GENERAL ADMINISTRATION OF THE WAR MANPOWER COMMISSION, INCLUDING NOT TO EXCEED $10,000 FOR THE EMPLOYMENT OF ALIENS, * * * $11,000,000.' THE SAME TITLE CONTAINS A SEPARATE PARAGRAPH APPROPRIATING FUNDS TO THE WAR MANPOWER COMMISSION FOR EMPLOYMENT OFFICE FACILITIES AND SERVICES, BUT THIS PARAGRAPH DOES NOT INCLUDE ANY CORRESPONDING $10,000 ITEM FOR THE EMPLOYMENT OF ALIENS. IN ADDITION, SECTION 205 OF THE INDEPENDENT OFFICES APPROPRIATION ACT, 1944, PUB. NO. 90, 78TH CONG., APPROVED JUNE 26, 1943, PROVIDES, IN PART, THAT:

"UNLESS OTHERWISE SPECIFIED AND UNTIL JULY 1, 1944, NO PART OF ANY APPROPRIATION CONTAINED IN THIS OR ANY OTHER ACT SHALL BE USED TO PAY THE COMPENSATION OF ANY OFFICER OR EMPLOYEE OF THE GOVERNMENT OF THE UNITED STATES * * * WHOSE POST OF DUTY IS IN CONTINENTAL UNITED STATES UNLESS SUCH PERSON (1) IS A CITIZEN OF THE UNITED STATES, (2) IS A PERSON IN THE SERVICE OF THE UNITED STATES ON THE DATE OF ENACTMENT OF THIS ACT, WHO, BEING ELIGIBLE FOR CITIZENSHIP, HAS FILED A DECLARATION OF INTENTION TO BECOME A CITIZEN OF THE UNITED STATES PRIOR TO SUCH DATE, OR (3) IS A PERSON WHO OWES ALLEGIANCE TO THE UNITED STATES * * *. THIS SECTION SHALL NOT APPLY TO CITIZENS OF THE COMMONWEALTH OF THE PHILIPPINES OR TO NATIONALS OF THOSE COUNTRIES ALLIED WITH THE UNITED STATES IN THE PROSECUTION OF THE WAR: PROVIDED, THAT THIS SECTION SHALL BECOME EFFECTIVE ON THE DATE OF ENACTMENT OF THIS ACT AND SHALL SUPERSEDE AND BE IN LIEU OF SIMILAR PROVISIONS IN APPROPRIATION ACTS RESTRICTING THE EXPENDITURE OF FUNDS DURING THE FISCAL YEAR 1943. * * *"

WHILE MISS PAVELEY WAS AN ALIEN THROUGHOUT THE PERIOD OF HER EMPLOYMENT IN THE UNITED STATES EMPLOYMENT SERVICE, SHE WAS ELIGIBLE FOR CITIZENSHIP AND IN THE SERVICE OF THE UNITED STATES ON THE DATE OF THE ENACTMENT OF ALL ACTS REFERRED TO, AND HAD FILED A DECLARATION TO BECOME A CITIZEN PRIOR TO THE ENACTMENT OF ANY OF THESE ACTS. ALSO, BEING A CANADIAN NATIONAL, SHE WOULD FALL WITHIN THE SPECIAL EXCEPTION FOR "NATIONALS OF THOSE COUNTRIES ALLIED WITH THE UNITED STATES IN THE PROSECUTION OF THE WAR" IN THE QUOTED PORTION OF THE INDEPENDENT OFFICES APPROPRIATION ACT, 1944. THE ONLY IMPEDIMENT TO MISS PAVLEY'S EMPLOYMENT THAT HER ALIEN STATUS MIGHT GIVE RISE TO, WOULD BE THE SPECIAL CLAUSE IN THE WAR MANPOWER COMMISSION APPROPRIATION ACTS FOR THE FISCAL YEARS 1943 AND 1944, THAT IS, THE CLAUSE "INCLUDING $10,000 FOR THE EMPLOYMENT OF ALIENS.'

THIS AGENCY BELIEVES THAT THIS SPECIAL CLAUSE MUST BE CONSTRUED AS APPLICABLE TO THE EMPLOYMENT OF ALIENS OTHER THAN THOSE WHOSE EMPLOYMENT WOULD BE PERMITTED UNDER THE GENERAL STATUTORY PROVISIONS ON THE EMPLOYMENT OF ALIENS, AND SHOULD NOT BE CONSTRUED AS IN ANY WAY LIMITING OR RESTRICTING THE AUTHORITY OF THE WAR MANPOWER COMMISSION TO EMPLOY ALIENS WHOSE EMPLOYMENT IS PERMITTED UNDER SUCH GENERAL PROVISIONS. UNDER ANY DIFFERENT INTERPRETATION, A CLAUSE OBVIOUSLY DESIGNED TO CONFER ADDITIONAL AUTHORITY ON THE COMMISSION WOULD OPERATE INSTEAD TO LIMIT AUTHORITY ELSEWHERE CONFERRED, WHILE THE INTENT OF CONGRESS, AS EXPRESSED IN THE GENERAL STATUTORY PROVISIONS, TO PERMIT THE EMPLOYMENT OF CERTAIN ALIENS WHO ARE RENDERING SERVICE TO THE UNITED STATES (E.G., NATIONALS OF THE PHILIPPINES AND OF OUR ALLIES IN THE WAR) WOULD BE DEFEATED.

ALTHOUGH THE CASE OF MISS PAVELEY MIGHT CONCEIVABLY BE DISPOSED OF WITHOUT SETTLING THE POINT OF INTERPRETATION RAISED IN THE PRECEDING PARAGRAPH--- EITHER BY CHARGING HER SALARY TO THE $10,000 ITEMS OR BY HOLDING THAT THE $10,000 CLAUSE, OCCURRING AS IT DOES IN THE PARAGRAPH DEVOTED TO GENERAL ADMINISTRATIVE EXPENSES OF THE WAR MANPOWER COMMISSION, IS NOT APPLICABLE TO UNITED STATES EMPLOYMENT SERVICE EMPLOYEES--- THE IMPACT OF THE $10,000 CLAUSE ON THE GENERAL AUTHORITY OF THE WAR MANPOWER COMMISSION TO EMPLOY ALIENS WHOSE EMPLOYMENT IS OTHERWISE PERMITTED, IS A CONSTANTLY RECURRING QUESTION UPON WHICH CLARIFICATION IS DESIRED.

YOUR OPINION IS ACCORDINGLY SOLICITED ON THE FOLLOWING QUESTIONS:

1. MAY ALIENS EXCEPTED FROM THE GENERAL STATUTORY PROVISIONS PROHIBITING THE EMPLOYMENT OF ALIENS, BE EMPLOYED BY THE WAR MANPOWER COMMISSION WITHOUT REGARD TO THE SPECIAL $10,000 CLAUSE IN THE WAR MANPOWER COMMISSION APPROPRIATIONS IN THE FIRST AND SECOND SUPPLEMENTAL NATIONAL DEFENSE APPROPRIATION ACT, 1943, AND IN TITLE VII OF THE LABOR-FEDERAL SECURITY APPROPRIATION ACT, 1944?

2. ARE THE $10,000 SUMS SPECIFICALLY PROVIDED IN THE APPROPRIATION ACTS AVAILABLE TO THE WAR MANPOWER COMMISSION FOR THE EMPLOYMENT OF ALIENS WHOSE EMPLOYMENT IS PROHIBITED BY THE GENERAL STATUTORY PROVISIONS ON THE EMPLOYMENT OF ALIENS?

THE FACTS STATED IN RESPECT OF MISS PAVELEY'S EMPLOYMENT APPEAR SUCH AS TO EXCLUDE HER FROM THE PROHIBITORY RESTRICTION CONTAINED IN THE CITED APPROPRIATION ACTS RELATING TO THE EMPLOYMENT OF ALIENS AND YOUR LETTER SEEMS TO RAISE NO QUESTION WITH RESPECT TO THE LEGALITY OF THE SAID APPOINTMENT. RATHER, THE QUESTION PRESENTED APPEARS TO BE AS TO THE EFFECT REQUIRED TO BE GIVEN TO THE $10,000 SPECIFICALLY APPROPRIATED FOR THE EMPLOYMENT OF ALIENS (UNDER THE APPROPRIATION ITEMS CITED IN YOUR LETTER) IN THE LIGHT OF OTHER PROVISIONS IN THE STATUTES RESTRICTING THE EMPLOYMENT OF ALIENS.

THIS OFFICE IS IN AGREEMENT WITH THE VIEW EXPRESSED IN THE SEVENTH PARAGRAPH OF YOUR LETTER, SUPRA, TO THE EFFECT THAT THE SPECIFIC APPROPRIATIONS OF $10,000 FOR EMPLOYMENT OF ALIENS, APPEARING IN THE APPROPRIATION ACTS CITED IN YOUR LETTER, MAY BE "CONSTRUED AS APPLICABLE TO THE EMPLOYMENT OF ALIENS OTHER THAN THOSE WHOSE EMPLOYMENT WOULD BE PERMITTED UNDER THE GENERAL STATUTORY PROVISIONS ON THE EMPLOYMENT OF ALIENS.'

ACCORDINGLY, QUESTIONS (1) AND (2) ARE ANSWERED IN THE AFFIRMATIVE. COURSE, THIS DECISION IS TO BE REGARDED AS LIMITED TO QUESTIONS INVOLVING THE AVAILABILITY OF THE APPROPRIATIONS FOR PAYMENT OF COMPENSATION, AND IS NOT TO BE REGARDED AS IN ANY WISE DETERMINATIVE OF ANY QUESTION INVOLVING THE QUALIFICATION OF ALIENS FOR EMPLOYMENT BY THE UNITED STATES UNDER THE CIVIL SERVICE LAWS AND REGULATIONS, OR OTHER LAWS AND REGULATIONS, EITHER QUALIFYING OR DISQUALIFYING ALIENS FOR EMPLOYMENT BY THE UNITED STATES.