B-112015, FEB 12, 1953

B-112015, FEB 12, 1953

PRECIS-UNAVAILABLE

SECRETARY OF THE INTERIOR:

REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 22, 1952, REQUESTING A DECISION AS TO THE APPLICATION OF THE PROVISIONS OF SECTION 212 OF THE ACT OF JUNE 30, 1932, 47 STAT. 406 (5 U.S.C. 59A) TO A RETIRED COMMISSIONED OFFICER OF THE ARMED FORCES (NOT RETIRED FOR A SERVICE INCURRED DISABILITY) WHO IS EMPLOYED IN A DEPARTMENT OF THE GOVERNMENT OF AMERICAN SAMOA.

THE REFERRED-TO ACT PROVIDES AS FOLLOWS:

"SEC. 212. (A) AFTER THE DATE OF THE ENACTMENT OF THIS ACT, NO PERSON HOLDING A CIVILIAN OFFICE OR POSITION, APPOINTIVE OR ELECTIVE, UNDER THE UNITED STATES GOVERNMENT OR THE MUNICIPAL GOVERNMENT OF THE DISTRICT OF COLUMBIA OR UNDER ANY CORPORATION, THE MAJORITY OF THE STOCK OF WHICH IS OWNED BY THE UNITED STATES, SHALL BE ENTITLED DURING THE PERIOD OF SUCH INCUMBENCY, TO RETIRED PAY FROM THE UNITED STATES FOR OR ON ACCOUNT OF SERVICES AS A COMMISSIONED OFFICER IN ANY OF THE SERVICES MENTIONED IN THE PAY ADJUSTMENT ACT OF 1922 (U.S.C. TITLE 37), AT A RATE IN EXCESS OF AN AMOUNT WHICH WHEN COMBINED WITH THE ANNUAL RATE OF COMPENSATION FROM SUCH CIVILIAN OFFICE OR POSITION, MAKES THE TOTAL RATE FROM BOTH SOURCES MORE THAN 3,000; AND WHEN THE RETIRED PAY AMOUNTS TO OR EXCEEDS THE RATE OF 3,000 PER ANNUM SUCH PERSON SHALL BE ENTITLED TO THE PAY OF THE CIVILIAN OFFICE OR POSITION OR THE RETIRED PAY, WHICHEVER HE MAY ELECT. AS USED IN THIS SECTION, THE TERM 'RETIRED PAY' SHALL BE CONSTRUED TO INCLUDE CREDITS FOR ALL SERVICE THAT LAWFULLY MAY ENTER INTO THE COMPUTATION THEREOF.

"(B) THIS SECTION SHALL NOT APPLY TO ANY PERSON WHOSE RETIRED PAY PLUS CIVILIAN PAY AMOUNTS TO LESS THAN 3,000: PROVIDED, THAT THIS SECTION SHALL NOT APPLY TO REGULAR OR EMERGENCY COMMISSIONED OFFICERS RETIRED FOR DISABILITY INCURRED ON COMBAT WITH AN ENEMY OF THE UNITED STATES."

IT IS REPORTED THAT, PURSUANT TO EXECUTIVE ORDER NO. 10264 DATED JUNE 29, 1951, AND THE ACT OF FEBRUARY 20, 1929, 45 STAT. 1253, A TERRITORIAL GOVERNMENT HAS BEEN FUNCTIONING IN SAMOA FROM THE INCEPTION OF THE NAVAL ADMINISTRATION OF THE TERRITORY, BEGINNING IN 1900 AND CONTINUING WITH THE TRANSFER OF JURISDICTION OVER SAMOA TO THE SECRETARY OF THE INTERIOR IN 1951. THE FUNDS FOR THE EXPENSES OF THE GOVERNMENT OF AMERICAN SAMOA ARE STATED TO BE DERIVED PARTLY FROM LOCAL SOURCES, SUCH AS TAXES, AND PARTLY FROM APPROPRIATIONS, THE LATTER CONSISTING OF DIRECT APPROPRIATION BY THE CONGRESS FOR THE EXPENSES OF THE GOVERNOR'S OFFICE, THE LEGISLATIVE BODY AND THE HIGHEST JUDICIAL BODY, AND THE BALANCE OF THE APPROPRIATED FUNDS FROM GRANTS TO THE TERRITORIAL GOVERNMENT FROM THE FEDERAL GOVERNMENT. THE GRANT IN AID FUNDS ARE MINGLED WITH LOCAL REVENUES AND ARE THE SOURCE FROM WHICH PAYMENTS ARE MADE TO EMPLOYEES OF THE VARIOUS DEPARTMENTS OF THE TERRITORIAL GOVERNMENT, WHO ARE EITHER SAMOANS OR PERSONS RECRUITED FROM THE UNITED STATES AND HAWAII.

WHILE THE FACT THAT AN OFFICER OR EMPLOYEE IS NOT PAID FROM APPROPRIATED FUNDS MAY BE AN INDICATION OF NON-FEDERAL EMPLOYMENT STATUS, IT HAS BEEN HELD BY THIS OFFICE THAT THE APPLICATION OF SECTION 212 OF THE ABOVE ACT IS NOT DEPENDENT UPON WHETHER THE COMPENSATION OF THE CIVILIAN OFFICE OR POSITION IS PAID FROM APPROPRIATED FUNDS, THE CONTROLLING TEST BEING WHETHER THE CIVILIAN OFFICE OR POSITION SO HELD IS, IN FACT, AN OFFICE OR POSITION "UNDER THE UNITED STATES GOVERNMENT OR THE MUNICIPAL GOVERNMENT OF THE DISTRICT OF COLUMBIA." 24 COMP. GEN. 771; 26 ID. 122; 28 ID. 588. COMPARE 25 COMP. GEN. 912; 27 ID. 552.

YOUR LETTER FAILS TO STATE THAT THE DUTIES OF THE RETIRED OFFICER UNDER THE CONTRACT OF EMPLOYMENT WITH THE GOVERNMENT OF AMERICAN SAMOA, CONSIST OF TERRITORIAL DUTIES, AS DISTINGUISHED FROM FEDERAL DUTIES IN THE BROADER SENSE; BUT IT IS ASSUMED THAT SUCH IS TRUE IN THE CASE OF AN EMPLOYEE OF A DEPARTMENT OF THE LOCAL GOVERNMENT. UPON THAT BASIS IT MAY BE CONCLUDED THAT THE EMPLOYEE INVOLVED IS TO BE REGARDED AS A TERRITORIAL EMPLOYEE RATHER THAN AN OFFICER OR EMPLOYEE OF THE UNITED STATES WITHIN THE MEANING OF SECTION 212 OF THE ACT OF JUNE 30, 1932, SUPRA. ..END :