B-145804, NOV 3, 1970, 50 COMP GEN 329

B-145804, NOV 3, 1970, 50 COMP GEN 329

COMPENSATION - OVERPAYMENTS - WAIVER - ALIENS THE AUTHORITY IN 5 U.S.C. 5584 TO WAIVE ERRONEOUS PAYMENTS OF COMPENSATION MADE TO EMPLOYEES OF THE EXECUTIVE AGENCIES IS APPLICABLE TO NON-UNITED STATES CITIZENS EMPLOYED BY THE UNITED STATES IN FOREIGN AREAS, AS THE TERM "EMPLOYEE" AS USED IN SECTION 5584 MEANS AN EMPLOYEE AS DEFINED IN 5 U.S.C. 2105; THAT IS, AN INDIVIDUAL APPOINTED IN THE "CIVIL SERVICE," WHICH CONSTITUTES ALL APPOINTED POSITIONS IN THE EXECUTIVE, JUDICIAL, AND LEGISLATIVE BRANCHES OF THE GOVERNMENT, EXCEPT POSITIONS IN THE UNIFORMED SERVICES (5 U.S.C. 2101(1)). THEREFORE, A PHILIPPINE CITIZEN, PROPERLY APPOINTED TO A POSITION IN THE EXECUTIVE BRANCH TO PERFORM A FEDERAL FUNCTION SUPERVISED BY A FEDERAL EMPLOYEE, IS AN EMPLOYEE UNDER 5 U.S.C. 5584 AND ENTITLED TO THE WAIVER OF ERRONEOUS COMPENSATION PAYMENTS WITHOUT REGARD TO THE FACT THE EMPLOYMENT IS UNDER A LABOR AGREEMENT WITH THE PHILIPPINE GOVERNMENT.

TO THE SECRETARY OF THE NAVY, NOVEMBER 3, 1970:

WE REFER TO LETTER OF YOUR OFFICE DATED AUGUST 24, 1970, WITH ENCLOSURES, REQUESTING OUR DECISION WHETHER THE WAIVER PROVISIONS OF 5 U.S.C. 5584 ARE APPLICABLE TO NON-UNITED STATES CITIZENS EMPLOYED BY THE UNITED STATES IN FOREIGN AREAS. SPECIFICALLY, YOUR INQUIRY CONCERNS PHILIPPINE CITIZENS EMPLOYED BY THE UNITED STATES IN FOREIGN AREAS UNDER DETAILED LABOR AGREEMENTS NEGOTIATED WITH THE PHILIPPINE GOVERNMENT.

GENERALLY, THE PROVISIONS OF 5 U.S.C. 5584 AUTHORIZE, UNDER CERTAIN CONDITIONS, THE WAIVER OF ERRONEOUS PAYMENTS OF PAY MADE TO EMPLOYEES OF EXECUTIVE AGENCIES. THE TERM "EMPLOYEE" AS USED IN SECTION 5584 MEANS AN INDIVIDUAL DEFINED AS AN "EMPLOYEE" IN 5 U.S.C. 2105 WHICH PROVIDES IN PART AS FOLLOWS:

(A) FOR THE PURPOSE OF THIS TITLE, "EMPLOYEE," EXCEPT AS OTHERWISE PROVIDED BY THIS SECTION OR WHEN SPECIFICALLY MODIFIED, MEANS AN OFFICER AND AN INDIVIDUAL WHO IS -

(1) APPOINTED IN THE CIVIL SERVICE BY ONE OF THE FOLLOWING ACTING IN AN OFFICIAL CAPACITY -

(A) THE PRESIDENT;

(B) A MEMBER OR MEMBERS OF CONGRESS, OR THE CONGRESS;

(C) A MEMBER OF A UNIFORMED SERVICE;

(D) AN INDIVIDUAL WHO IS AN EMPLOYEE UNDER THIS SECTION; OR

(E) THE HEAD OF A GOVERNMENT CONTROLLED CORPORATION;

(2) ENGAGED IN THE PERFORMANCE OF A FEDERAL FUNCTION UNDER AUTHORITY OF LAW OR AN EXECUTIVE ACT; AND

(3) SUBJECT TO THE SUPERVISION OF AN INDIVIDUAL NAMED BY PARAGRAPH (1) OF THIS SUBSECTION WHILE ENGAGED IN THE PERFORMANCE OF THE DUTIES OF HIS POSITION.

THE TERM "CIVIL SERVICE," APPEARING IN (A)(1), ABOVE, MEANS ALL APPOINTIVE POSITIONS IN THE EXECUTIVE, JUDICIAL, AND LEGISLATIVE BRANCHES OF THE GOVERNMENT, EXCEPT POSITIONS IN THE UNIFORMED SERVICES. 5 U.S.C. 2101(1).

THE FACT THAT A PERSON IS NOT A CITIZEN OF THE UNITED STATES HAS NO BEARING ON HIS STATUS AS AN "EMPLOYEE" UNDER THE ABOVE DEFINITION. THUS, IF AN INDIVIDUAL IS PROPERLY APPOINTED TO A POSITION IN THE EXECUTIVE BRANCH, IS ENGAGED IN THE PERFORMANCE OF A FEDERAL FUNCTION, AND IS SUPERVISED BY A FEDERAL EMPLOYEE, HE IS AN "EMPLOYEE" WITHIN THE MEANING OF 5 U.S.C. 5584. MOREOVER, WE DO NOT REGARD THE LABOR AGREEMENTS PREVIOUSLY REFERRED TO AS AFFECTING SUCH A DETERMINATION. YOUR QUESTION IS ANSWERED ACCORDINGLY.