B-126014, NOV. 21, 1957

B-126014, NOV. 21, 1957

TO MR. JAMES F. WALSH:

THIS REFERS TO YOUR LETTERS OF AUGUST 18 AND NOVEMBER 1, 1957, SUBMITTED IN FURTHER EXPLANATION OF YOUR CLAIM UNDER PRIVATE LAW 85 13. THE LETTER FROM SENATOR DIRKSEN REFERRED TO IN YOUR NOVEMBER 1 LETTER HAS BEEN RECEIVED HERE.

YOUR LETTER OF AUGUST 18, 1957, ACCEPTS THE ACCOUNTING OF CERTIFICATE OF SETTLEMENT NO. 2285081 OF JUNE 13, 1957, AS EXPLAINED IN OUR LETTER OF AUGUST 14, BUT CONTESTS OUR INTERPRETATION OF PRIVATE LAW 85-13, APPROVED MAY 16, 1957, IN DENYING PAYMENT OF $817.45 TO YOU FOR "SIX WEEKS OF SERVICE" FOR WHICH CHECKS WERE EITHER CANCELED OR NOT DRAWN, PLUS "APPROXIMATELY TWO WEEKS OF UNUSED ANNUAL LEAVE.' YOU SAY THAT UNLESS FAVORABLE DECISION IS FORTHCOMING FROM OUR OFFICE YOU WILL FILE CLAIM AGAINST THE GOVERNMENT FOR $873.45 BECAUSE PRIVATE LAW 85-13 WAS NOT WRITTEN WITH THE INTENTION OF ELIMINATING REMUNERATION FOR THIS PERIOD OF WORK. YOU SAY THAT THE LANGUAGE "OR WITHHELD FROM SUMS OTHERWISE DUE HIM" CONTAINED IN SECTION 2 OF THE ACT WAS ADDED BY YOU, AND A COMMITTEE STAFF MEMBER, FOR THE EXPRESS PURPOSE OF INCLUDING THE AMOUNTS COVERED BY THE CANCELED CHECKS AND THAT REPRESENTING UNUSED ANNUAL LEAVE. WE ACCEPT YOUR EXPLANATION IN THAT REGARD BUT MUST SAY THAT THE BILL AS ENACTED DID NOT ACCOMPLISH THAT PURPOSE.

THE INTERPRETATION OF PRIVATE LAW 85-13 BY OUR OFFICE IS BASED SOLELY ON THE CLEAR AND UNAMBIGUOUS LANGUAGE OF THE ACT. NO RULES OF STATUTORY INTERPRETATION ARE NEEDED FOR DISCERNING THE OBJECTIVE OF THIS ACT SINCE ITS LANGUAGE IS CLEAR AND ITS PURPOSE UNMISTAKABLE. AS EXPLAINED IN OUR LETTER OF AUGUST 14 TO YOU, PRIVATE LAW 85-13 PROVIDES THAT YOU ARE TO BE RELIEVED OF ALL LIABILITY TO REFUND TO THE UNITED STATES THE SUM OF $6,472.35. SUCH SUM REPRESENTS COMPENSATION RECEIVED BY YOU IN VIOLATION OF THE DUAL EMPLOYMENT RESTRICTION CONTAINED IN THE ACT OF JULY 31, 1894, AS AMENDED (5 U.S.C. 62). THE PURPOSE AND COVERAGE OF THE ACT IS ADDRESSED BY ITS LANGUAGE TO "COMPENSATION RECEIVED" IN THE TOTAL AMOUNT OF $6,472.35. THE VIEW THAT PAYMENT OF ILLEGAL SALARY REPRESENTED BY THE CANCELED CHECKS OR CHECKS NOT DRAWN WAS NEVER CONTEMPLATED BY THE CONGRESS IS BORNE OUT BY AN EXAMINATION OF THE ADMINISTRATIVE REPORTS OF THE DEPARTMENT OF THE AIR FORCE TO THE COMMITTEES AND OF COMMITTEE REPORTS NOS. 89 AND 367 ON THE BILL, S. 120. SECTION 2 OF THE ACT REFERS TO AMOUNTS DUE WHICH WERE COLLECTED FROM YOUR RETIRED PAY AND WHICH WERE APPLIED TOWARD THE REDUCTION OF YOUR INDEBTEDNESS. ITEMIZATION OF THESE AMOUNTS WAS SUPPLIED IN OUR LETTER OF AUGUST 14, 1957.

YOUR APPOINTMENT TO A REGULAR FULL-TIME GOVERNMENT CIVILIAN POSITION AT A SALARY IN EXCESS OF $2,500 PER ANNUM WAS VOID AB INITIO AND PAYMENT OF THE SALARY OF THE CIVILIAN POSITION WAS ILLEGAL FROM THE DATE OF SUCH APPOINTMENT. 21 COMP. GEN. 1129. IN CANCELING THE CHECKS ALREADY DRAWN BUT NOT DELIVERED, THE ADMINISTRATIVE OFFICIALS PROPERLY TOOK SUCH STEPS AS WERE AVAILABLE TO THEM TO CORRECT THE ILLEGAL SITUATION. FURTHER, NO RIGHT EXISTED TO PAYMENT OF CASH VALUE OF UNUSED ANNUAL LEAVE AT DATE OF SEPARATION. 20 COMP. GEN. 288.

AS PREVIOUSLY EXPLAINED TO YOU, PRIVATE LAW 85-13 DID NOT VALIDATE YOUR APPOINTMENT TO THE CIVILIAN POSITION, IT MERELY RELIEVED YOU OF LIABILITY FOR THE ILLEGALLY PAID COMPENSATION. THE BASIS OF SUCH RELIEF DID NOT EXTEND TO OTHER THAN THE AMOUNT STATED IN THE ACT BECAUSE IT WAS NOT REQUIRED, IN LAW AND LOGIC, TO EXTEND FARTHER.

IN VIEW OF THE FACTS PLACED BEFORE THE COMMITTEE IN ITS CONSIDERATION OF THE BILL, AND THE LANGUAGE OF THE ACT ITSELF, WE HAVE NO ALTERNATIVE OTHER THAN TO RULE THAT YOU ARE NOT ENTITLED TO PAYMENT OF THE AMOUNT NOW CLAIMED.

THE CLAIM PRESENTED IN YOUR LETTER OF NOVEMBER 17, 1957, WILL RECEIVE SEPARATE CONSIDERATION AND YOU WILL BE NOTIFIED OF THE ACTION TAKEN THEREON.