B-112849, JANUARY 8, 1953, 32 COMP. GEN. 315

B-112849, JANUARY 8, 1953, 32 COMP. GEN. 315

ALLOWANCES AND DIFFERENTIALS - MILITARY, NAVAL, ETC., PERSONNEL - STATION ALLOWANCE - RETROACTIVE INCREASE WHILE ADMINISTRATIVE REGULATIONS MAY BE AMENDED PROSPECTIVELY TO INCREASE OR DECREASE THE RIGHTS THEREUNDER THEY MAY NOT BE AMENDED RETROACTIVELY IN THE ABSENCE OF AN OBVIOUS ERROR, AND THEREFORE, THE STATION PER DIEM ALLOWANCE RATES PRESCRIBED IN APPENDIX B OF THE JOINT TRAVEL REGULATIONS FOR MILITARY MEMBERS ON DUTY IN THE PHILIPPINES MAY NOT BE INCREASED RETROACTIVELY BY THE ISSUANCE OF AN AMENDMENT TO SUCH REGULATIONS.

ACTING COMPTROLLER GENERAL FISHER TO THE SECRETARY OF THE AIR FORCE, JANUARY 8, 1953:

REFERENCE IS MADE TO LETTER OF NOVEMBER 15, 1952, FROM THE ASSISTANT SECRETARY OF THE AIR FORCE, REQUESTING DECISION AS TO WHETHER THE STATION PER DIEM ALLOWANCE RATES PRESCRIBED IN APPENDIX B OF THE JOINT TRAVEL REGULATIONS FOR MILITARY MEMBERS ON DUTY IN MANILA, REPUBLIC OF THE PHILIPPINES, MAY NOW BE EXTENDED TO INCLUDE ALL OF RIZAL PROVINCE, WHICH INCLUDES THE ENTIRE METROPOLITAN AREA OF MANILA, EFFECTIVE AS OF NOVEMBER 1, 1951.

IT APPEARS THAT SEPARATE RATES WERE FIXED FOR MEMBERS ON DUTY IN MANILA AND FOR THOSE ON DUTY ELSEWHERE IN THE PHILIPPINE ISLANDS, BY INSTRUCTION MEMORANDUM 2-4, JANUARY 1, 1952, EFFECTIVE AS OF NOVEMBER 1, 1951, THE RATES BEING HIGHER FOR DUTY IN MANILA. IT IS STATED SUCH HIGHER RATES WERE FIXED ON THE BASIS OF COST OF LIVING DATA ERRONEOUSLY ASSUMED TO RELATE ONLY TO AREAS WITHIN THE CORPORATE LIMITS OF MANILA, BUT THAT IT HAS SINCE BEEN LEARNED THAT SUCH DATA RELATED TO ADJOINING SUBURBS AS WELL, AND INCLUDED ALL COMMANDS WITHIN THE ENTIRE METROPOLITAN AREA OF MANILA. IT IS STATED FURTHER THAT THE PER DIEM TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE HAS REEXAMINED THE COST OF LIVING DATA OBTAINED FROM MEMBERS STATIONED BOTH WITHIN THE CORPORATE LIMITS OF MANILA AND IN ADJOINING SUBURBS, AND THAT IT HAS BEEN DETERMINED THAT THE LIVING COSTS IN BOTH AREAS ARE VIRTUALLY IDENTICAL. IT IS PROPOSED THAT THE STATION PER DIEM ALLOWANCE RATES PRESCRIBED FOR MANILA, BE REDESIGNATED AS APPLICABLE TO RIZAL PROVINCE, THE LIMITS OF WHICH ENCOMPASS THE ENTIRE METROPOLITAN AREA OF MANILA, EFFECTIVE AS OF NOVEMBER 1, 1951.

THE REGULATIONS IN QUESTION WERE COMPLETE AND UNAMBIGUOUS ON THEIR FACE WHEN ISSUED AND, WHILE IT IS INDICATED THAT THE COMMITTEE CHARGED WITH THEIR PREPARATION MAY NOT HAVE MADE AS COMPREHENSIVE AN ANALYSIS OF THE COST OF LIVING DATA FROM THE PHILIPPINES AS MIGHT HAVE BEEN DESIRABLE, IT DOES NOT APPEAR THAT THEIR ACTION IN THAT RESPECT COULD BE CONSIDERED AS RESULTING IN AN OBVIOUS ERROR WHICH COULD BE CORRECTED ADMINISTRATIVELY BY THE ISSUANCE OF A RETROACTIVE AMENDMENT. WHILE NO EXPRESS JUDICIAL DETERMINATION HAS BEEN FOUND REGARDING THE RIGHT OF AN ADMINISTRATIVE OFFICE TO ISSUE RETROACTIVE AMENDMENTS TO REGULATIONS GENERALLY, IT WOULD APPEAR THAT ONCE SUCH REGULATIONS ARE ISSUED, THE RIGHTS THEREUNDER BECOME FIXED, AND ALTHOUGH SUCH REGULATIONS MAY BE AMENDED PROSPECTIVELY TO INCREASE OR DECREASE THE RIGHTS GIVEN THEREBY, THEY MAY NOT BE SO AMENDED RETROACTIVELY. CF. ARIZONA GROCERY V. ATCHISON RY., 284 U.S. 370. CERTAINLY THAT WOULD BE TRUE IN THE INSTANT CASE IF THE EFFECT OF THE AMENDMENT WERE TO DECREASE RETROACTIVELY THE ALLOWANCES PREVIOUSLY AUTHORIZED FOR THE PERSONNEL CONCERNED (31 COMP. GEN. 619), AND NO SOUND REASON IS PERCEIVED WHY A DIFFERENT RULE SHOULD APPLY WHERE THE EFFECT OF THE AMENDMENT IS TO INCREASE RETROACTIVELY THE OBLIGATIONS ON THE GOVERNMENT. WHILE THE CONGRESS IS EMPOWERED TO ENACT LEGISLATION RETROACTIVELY INCREASING OR CREATING NEW GOVERNMENT OBLIGATIONS, IT IS NOT TO BE SUPPOSED, IN THE ABSENCE OF DEFINITE STATUTORY PROVISION, THAT THE CONGRESS HAS INTENDED TO GRANT SUCH AUTHORITY TO ADMINISTRATIVE OFFICIALS. TO RECOGNIZE SUCH AN ADMINISTRATIVE AUTHORITY WOULD MEAN THAT THE GOVERNMENT'S OBLIGATION UNDER EXISTING AND PREEXISTING REGULATIONS WOULD NEVER BE FIXED OR FINALLY SETTLED. THAT IS NOT TO SAY, OF COURSE, THAT REGULATIONS REQUIRED BY STATUTE MAY NOT, WHEN FIRST ISSUED, BE MADE RETROACTIVE IN PROPER CASES TO THE DATE CONTEMPLATED BY THE STATUTE. CF. FRIEDLANDER V. UNITED STATES, 120 C.1CLS.

IN ANY EVENT, I AM SURE YOU WILL AGREE THAT, IN VIEW OF THE MANY LAWS PRESENTLY IN EFFECT AND THE MANY LAWS WHICH UNDOUBTEDLY WILL BE ENACTED IN THE FUTURE, DEPENDING ON THE ISSUANCE OF REGULATIONS FOR THEIR IMPLEMENTATION, THE QUESTION OF RETROACTIVE AMENDMENT OF PREEXISTING VALID REGULATIONS TO INCREASE RETROACTIVELY THE GOVERNMENT'S LEGAL OBLIGATIONS IS ONE OF EXTREME IMPORTANCE AND, IN THE ABSENCE OF A CLEAR AFFIRMATIVE JUDICIAL DETERMINATION THEREOF, OR DEFINITE STATUTORY PROVISIONS AUTHORIZING SUCH AMENDMENTS, THIS OFFICE WOULD NOT BE WARRANTED IN AUTHORIZING PAYMENTS BASED SOLELY THEREON. ACCORDINGLY, THE QUESTION PRESENTED IS ANSWERED IN THE NEGATIVE.