B-87711, JULY 18, 1949, 29 COMP. GEN. 27

B-87711: Jul 18, 1949

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

WHOSE PETITION WAS NOT HEARD UNTIL AFTER SAID SECTION WAS AMENDED BY THE ACT OF JUNE 25. IS NOT ENTITLED TO REFUND OF THE FEE PAID FOR INITIATING SUCH PROCEEDINGS. THE COLLECTION OF WHICH WAS VALID AT THE TIME THE PETITION WAS RECEIVED AND FILED. 1949: REFERENCE IS MADE TO YOUR LETTER OF JULY 6. WHICH PETITION WAS DENIED BY REASON OF A CHANGE IN THE LAW BETWEEN THE TIME OF FILING AND THE TIME OF FINAL HEARING. IT APPEARS THAT THE PETITION IN THE CASE INVOLVED WAS FILED ON MAY 6. PETITIONER'S DECLARATION WAS DATED OCTOBER 23. THE WORD "TEN" WAS CHANGED TO "SEVEN.'. IT WAS DENIED BY THE DISTRICT JUDGE UPON THE GROUND THAT IT HAD BEEN FILED MORE THAN SEVEN YEARS AFTER THE PETITIONER'S DECLARATION OF INTENTION AND THAT THE LAW IN FORCE AT THE TIME OF FINAL HEARING WAS CONTROLLING.

B-87711, JULY 18, 1949, 29 COMP. GEN. 27

FEES - NATURALIZATION - REFUNDS A PETITIONER FOR NATURALIZATION WHO FILED HIS PETITION WITHIN 10 YEARS OF MAKING HIS DECLARATION OF INTENTION AS PRESCRIBED BY SECTION 322 (A) OF THE NATIONALITY ACT OF 1940, BUT WHOSE PETITION WAS NOT HEARD UNTIL AFTER SAID SECTION WAS AMENDED BY THE ACT OF JUNE 25, 1948, WHICH CHANGED SUCH ALLOWABLE FILING PERIOD TO 7 YEARS, THEREBY NOT ENTITLING HIM UNDER THE LAW IN EFFECT AT THE TIME OF HEARING TO A CERTIFICATE OF NATURALIZATION BECAUSE OF A LAPSE OF MORE THAN 7 YEARS IN FILING HIS PETITION AFTER DECLARATION OF INTENTION, IS NOT ENTITLED TO REFUND OF THE FEE PAID FOR INITIATING SUCH PROCEEDINGS, THE COLLECTION OF WHICH WAS VALID AT THE TIME THE PETITION WAS RECEIVED AND FILED.

COMPTROLLER GENERAL WARREN TO C. E. WALLER, DEPARTMENT OF JUSTICE, JULY 18, 1949:

REFERENCE IS MADE TO YOUR LETTER OF JULY 6, 1949, FILE NO. A 4306763, WITH ENCLOSURES, REQUESTING ADVISE AS TO WHETHER YOU PROPERLY MAY CERTIFY FOR PAYMENT A VOUCHER, TRANSMITTED THEREWITH, IN FAVOR OF THE CLERK OF THE UNITED STATES DISTRICT COURT, BROOKLYN, NEW YORK, FOR REFUND OF $8 FEE RECEIVED IN HIS OFFICE FOR THE FILING OF A PETITION FOR NATURALIZATION, WHICH PETITION WAS DENIED BY REASON OF A CHANGE IN THE LAW BETWEEN THE TIME OF FILING AND THE TIME OF FINAL HEARING.

IT APPEARS THAT THE PETITION IN THE CASE INVOLVED WAS FILED ON MAY 6, 1948, ON WHICH DATE SECTION 332 (A) OF THE NATIONALITY ACT OF 1940, 54 STAT. 1154, PROVIDED FOR THE FILING OF SUCH PETITIONS NOT LESS THAN TWO NOR MORE THAN TEN YEARS AFTER THE MAKING OF A DECLARATION OF INTENTION. PETITIONER'S DECLARATION WAS DATED OCTOBER 23, 1939. BY ACT OF JUNE 25, 1948, PUBLIC LAW 783, 80TH CONGRESS, 62 STAT. 1026, THE WORD "TEN" WAS CHANGED TO "SEVEN.' ON THAT DATE THE PETITION IN QUESTION HAD NOT BEEN HEARD, BUT ON MAY 26, 1949, IT WAS DENIED BY THE DISTRICT JUDGE UPON THE GROUND THAT IT HAD BEEN FILED MORE THAN SEVEN YEARS AFTER THE PETITIONER'S DECLARATION OF INTENTION AND THAT THE LAW IN FORCE AT THE TIME OF FINAL HEARING WAS CONTROLLING.

THE FEE IN QUESTION IS PRESCRIBED BY SECTION 342 (A) (2), AS AMENDED BY ACT OF SEPTEMBER 28, 1944, 58 STAT. 755, FOR MAKING, FILING, AND DOCKETING A PETITION FOR NATURALIZATION. WHILE IT ALSO COVERS FINAL HEARING AND THE ISSUANCE OF A CERTIFICATE OF NATURALIZATION, IF AUTHORIZED, THERE IS NO BASIS FOR ALLOCATION OF THE SINGLE FEE AMONG THESE SEVERAL SERVICES. SEE 10 COMP. GEN. 240.

IN 15 COMP. GEN. 38 THERE WAS THOROUGHLY CONSIDERED THE PROPRIETY OF REFUNDS OF FEES WHERE, BY CHANGE OF ADMINISTRATIVE INTERPRETATION OF LAW, THE RELIEF SOUGHT BY THE APPLICATIONS IN CONNECTION WITH WHICH THE FEES WERE PAID COULD NO LONGER BE GRANTED. THE CONCLUSION THERE REACHED REAFFIRMED AND REINFORCED THE PREVIOUSLY ESTABLISHED RULE OF THIS OFFICE THAT FEES REQUIRED FOR THE INITIATION OF PROCEEDINGS PROVIDED FOR BY LAW MAY BE REFUNDED ONLY IN CASES WHERE THE NON ENTITLEMENT OF THE APPLICANT TO THE ACTION SOUGHT IS, OR SHOULD BE, KNOWN TO THE OFFICER OR AGENT RECEIVING THE FEE AT THE TIME OF THE APPLICATION. THE FOLLOWING QUOTATION FROM THAT DECISION, WHICH HAS NOT BEEN DEPARTED FROM, IS DECISIVE OF THE QUESTION SUBMITTED BY YOU:

* * * THE SERVICE OR PRIVILEGE FOR WHICH THE FEE IS REQUIRED BY LAW TO BE COLLECTED IS RENDERED OR RECEIVED AT THE TIME THE APPLICATION IS FILED IF IT WAS PROPER AND LAWFUL TO RECEIVE AND FILE THE APPLICATION, THAT IS, IF THERE WAS NOTHING APPEARING ON ITS FACE TO PLACE THE GOVERNMENT ON NOTICE THAT IT SHOULD NOT BE RECEIVED AND FILED. A SUBSEQUENT DISCOVERY OF A HIDDEN DEFECT, OR A SUBSEQUENT CHANGE IN THE LAW, OR IN THE ADMINISTRATIVE INTERPRETATION OF EXISTING LAW, MAKING IT NECESSARY TO REJECT THE APPLICATION, OR DISCONTINUING THE RIGHT OR PRIVILEGE OF FILING SUCH APPLICATIONS, COULD HAVE NO RETROACTIVE EFFECT TO INVALIDATE THE COLLECTION OF THE FEES FOR RECEIVING AND FILING APPLICATIONS VALID AT THE TIME THEY WERE RECEIVED AND FILED, AND REFUND OF THE FEES UNDER SUCH CIRCUMSTANCES IS NOT AUTHORIZED. SEE, GENERALLY, 4 COMP. GEN. 81; 5 ID. 306; ID. 879.

YOU ARE ACCORDINGLY ADVISED THAT THE FEES COLLECTED IN THIS AND SIMILAR CASES BEFORE YOU MAY NOT BE REFUNDED, AND THE SUBJECT VOUCHER, WHICH WILL BE RETAINED HERE TOGETHER WITH THE OTHER ENCLOSURES, MAY NOT BE CERTIFIED.