B-60736, OCTOBER 2, 1946, 26 COMP. GEN. 227

B-60736, OCTOBER 2, 1946, 26 COMP. GEN. 227

EMPLOYMENT OF PERSONS OUTSIDE CONTINENTAL LIMITS OF U.S. - EXTENT TO WHICH AUTHORIZED; AGGREGATE COMPENSATION LIMITATION UNDER THE AUTHORITY PROVIDED BY THE DEPARTMENT OF STATE APPROPRIATION ACT, 1947, FOR THE EMPLOYMENT OF PERSONS OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES WITHOUT REGARD TO CIVIL SERVICE AND CLASSIFICATION LAWS, THE OFFICE OF FOREIGN LIQUIDATION, STATE DEPARTMENT, IN CARRYING OUT ITS FUNCTIONS AND ACTIVITIES RELATING TO THE DISPOSAL OF SURPLUS PROPERTY ABROAD, MAY EMPLOY NOT ONLY NATIVE LABOR AT PREVAILING LOCAL WAGE RATES BUT, ALSO, UNITED STATES CITIZENS WHILE OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES; HOWEVER, PERSONS MAY NOT BE EMPLOYED IN THE UNITED STATES FOR ASSIGNMENT OUTSIDE THE CONTINENTAL LIMITS THEREOF. THE AUTHORITY OF THE OFFICE OF FOREIGN LIQUIDATION, STATE DEPARTMENT, TO EMPLOY PERSONS OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES WITHOUT REGARD TO THE CIVIL SERVICE AND CLASSIFICATION LAWS IN CARRYING OUT ITS FUNCTIONS AND ACTIVITIES RESPECTING THE DISPOSITION OF SURPLUS PROPERTY ABROAD HAVING BEEN FIRST GRANTED BY THE DEPARTMENT OF STATE APPROPRIATION ACT, 1947, FUNDS APPROPRIATED BY SAID ACT MAY ONLY BE USED FOR THE PAYMENT OF COMPENSATION TO PERSONS WHO WERE SO EMPLOYED SUBSEQUENT TO JULY 1, 1946, OR FOR THE SERVICES RENDERED THEREAFTER BY PERSONNEL WHO MAY HAVE BEEN SO EMPLOYED PRIOR TO THAT DATE. INASMUCH AS THE COMPENSATION OF PERSONS EMPLOYED BY THE OFFICE OF FOREIGN LIQUIDATION, STATE DEPARTMENT, WITHOUT REGARD TO CIVIL SERVICE OR CLASSIFICATION LAWS IN CONNECTION WITH SURPLUS PROPERTY DISPOSAL OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES, PURSUANT TO AUTHORITY IN THE DEPARTMENT OF STATE APPROPRIATION ACT, 1947, WOULD NOT BE INCREASED OR OTHERWISE AFFECTED BY THE FEDERAL EMPLOYEES PAY ACTS OF 1945 OR 1946, SUCH EMPLOYEES ARE NOT SUBJECT TO THE $10,000 PER ANNUM AGGREGATE COMPENSATION LIMITATION IMPOSED BY SECTION 7 (B) OF THE 1946 PAY ACT. (AMPLIFIED BY 26 COMP. GEN. 402.)

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF STATE, OCTOBER 2, 1946:

I HAVE THE FOLLOWING LETTER DATED SEPTEMBER 19, 1946, FROM THE ACTING COMMISSIONER OF THE OFFICE OF THE FOREIGN LIQUIDATION COMMISSION:

THE FOLLOWING LANGUAGE, INTER ALIA, APPEARS IN THE DEPARTMENT OF STATE APPROPRIATION ACT, 1947 ( TITLE I," SURPLUS PROPERTY DISPOSAL," PUBLIC LAW NO. 490, 79TH CONG., APPROVED JULY 5, 1946):

"FOR ALL EXPENSES NECESSARY TO ENABLE THE DEPARTMENT OF STATE TO CARRY OUT ITS FUNCTIONS AND ACTIVITIES RELATIVE TO DISPOSITION OF SURPLUS PROPERTY PURSUANT TO THE PROVISIONS OF THE SURPLUS PROPERTY ACT OF 1944 ( PUBLIC LAW 457), AS AMENDED, INCLUDING PERSONAL SERVICES IN THE DISTRICT OF COLUMBIA AND ELSEWHERE, AND EMPLOYMENT OF PERSONS OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES WITHOUT REGARD TO CIVIL-SERVICE AND CLASSIFICATION LAWS * * *" (ITALICS SUPPLIED.)

IN THE APPLICATION OF THE ITALICIZED LANGUAGE CERTAIN QUESTIONS HAVE ARISEN AS TO THE INTENT OF CONGRESS. IN THE LIGHT OF THE WELL ESTABLISHED RULE THAT THE EMPLOYMENT OF ALL PERSONS IN THE EXECUTIVE BRANCH OF THE FEDERAL GOVERNMENT, WHETHER DEPARTMENTAL OR FIELD SERVICE, IS SUBJECT TO THE PROVISIONS OF THE CIVIL-SERVICE AND CLASSIFICATION LAWS, UNLESS SPECIFICALLY EXEMPTED BY STATUTE, OR BY THE PRESIDENT, THE SCOPE OF THE STATUTORY EXEMPTION, IN THE PRESENT CASE, IS UNCLEAR.

THE LEGISLATIVE HISTORY OF THE STATUTE THROWS NO LIGHT ON THE INTENT OF CONGRESS. IT IS NOT CLEAR WHICH OF VARIOUS POSSIBLE READINGS OF THE INTENT OF CONGRESS IN PUBLIC LAW NO. 490 IS CORRECT. CONGRESS MEANT TO APPROPRIATE FUNDS FOR THE FISCAL YEAR 1947, FOR THE PAYMENT OF THE SALARIES OF PERSONS EMPLOYED OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES, (1) WHO, PRIOR TO THE ENACTMENT OF PUBLIC LAW NO. 490, HAD ALREADY BEEN EMPLOYED "WITHOUT REGARD TO CIVIL SERVICE AND CLASSIFICATION LAWS," OR (2) WHO, AFTER THE ENACTMENT OF THAT ACT, WOULD BE EMPLOYED "WITHOUT REGARD TO CIVIL-SERVICE AND CLASSIFICATION LAWS," OR (3) WHO ARE ONLY IN THE CATEGORY OF NATIVE LABOR HIRED AT LOCAL NATIVE PREVAILING WAGE RATES.

AS TO THE FIRST OF THESE POSSIBLE INTERPRETATIONS, THE ONLY RELEVANT STATUTORY EXEMPTION, OF WHICH WE HAVE KNOWLEDGE, WHICH ALREADY EXISTED AS TO PERSONNEL EMPLOYED IN THE ADMINISTRATION OF THE SURPLUS PROPERTY ACT OF 1944, AS AMENDED, OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES, WAS THE EXEMPTION CONTAINED IN 5 U.S.C. SEC. 902 (B):

"* * * EMPLOYEES OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES, INCLUDING THOSE IN ALASKA, WHO ARE PAID IN ACCORDANCE WITH LOCAL NATIVE PREVAILING WAGE RATES FOR THE AREA IN WHICH EMPLOYED * * *"

BUT TO SAY THAT CONGRESS ALLUDED ONLY TO THE FOREGOING CATEGORY OF EMPLOYEES APPEARS TO NECESSITATE A CONCLUSION WHICH SEEMS UNTENABLE, I.E., THAT CONGRESS IN EXPRESSING ITS INTENT AS TO EMPLOYMENT OF PERSONS OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES,APPROPRIATED ONLY AS TO PERSONS PAID IN ACCORDANCE WITH LOCAL NATIVE WAGE SCALES, AND MADE NO APPROPRIATION AS TO HIGHER PAID " SCHEDULE A" EMPLOYEES. IF THIS BE TRUE, IT WOULD APPEAR TO FOLLOW THAT UNDER THE DOCTRINE, EXPRESSIO UNIUS EST EXCLUSIO ALTERIUS, NO FUNDS WOULD BE AVAILABLE FOR THE FISCAL YEAR 1947 TO PAY THE LATTER EMPLOYEES, SINCE THE OTHER LANGUAGE OF THE PROVISION, I.E., "AND ELSEWHERE" IS NORMALLY APPLICABLE ONLY TO DOMESTIC PERSONNEL.

THE INTENT OF CONGRESS MAY HAVE BEEN THAT THE APPROPRIATED FUNDS BE AVAILABLE FOR THE PAYMENT OF THE SALARIES OF PERSONS WHO MIGHT BE EMPLOYED OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES WITHOUT REGARD TO CIVIL-SERVICE AND CLASSIFICATION LAWS AFTER THE EFFECTIVE DATE OF PUBLIC LAW NO. 490. SINCE FUNDS WERE MADE AVAILABLE, THE SECRETARY OF STATE, UNDER THIS INTERPRETATION, WOULD BE AUTHORIZED TO EMPLOY SUCH PERSONS WITHOUT REGARD TO CIVIL-SERVICE AND CLASSIFICATION LAWS. THE LANGUAGE WOULD BE INTERPRETED AS CREATING A STATUTORY EXEMPTION FOR FUTURE EMPLOYMENT.

WE ARE ADVISED, ALSO, THAT LONG ESTABLISHED CIVIL SERVICE COMMISSION ADMINISTRATIVE CONSTRUCTION OF THE WORD "EMPLOYMENT" IN OVERSEAS SERVICE, GENERALLY HOLDS THAT IT IS TO BE INTERPRETED AS MEANING A POST OF DUTY OUTSIDE OF THE UNITED STATES. IN THE PRESENT CASE IT WOULD MEAN A POST OF DUTY OUTSIDE OF THE CONTINENTAL LIMITS OF THE UNITED STATES. IT WOULD SEEM TO FOLLOW THAT A PERSON CAN BE EMPLOYED OUTSIDE OF THE CONTINENTAL LIMITS OF THE UNITED STATES ALBEIT HE IS RECRUITED IN THE UNITED STATES PROVIDING HIS POST OF DUTY IS OUTSIDE OF THE CONTINENTAL LIMITS OF THE UNITED STATES.

THE QUESTION HAS ALSO BEEN RAISED AS TO WHETHER PERSONS NOT SUBJECT TO THE CIVIL-SERVICE AND CLASSIFICATION LAWS ARE SUBJECT TO THE $10,000 PER ANNUM LIMITATION ON AGGREGATE PAY SET FORTH IN SECTION 7 (B) OF THE FEDERAL EMPLOYEES PAY ACT OF 1946. THE THIRTEEN SUBSTANTIVE PROVISIONS OF THAT ACT EVIDENTLY DEAL WITH MATTERS WHICH, CATEGORICALLY, CANNOT BE BETTER DESCRIBED THAN IN THE VERY LANGUAGE OF PUBLIC LAWNO. 490, SUPRA, I.E., "CIVIL-SERVICE AND CLASSIFICATION LAWS.' THE FEDERAL EMPLOYEES PAY ACT OF 1946 WAS APPROVED MAY 24, 1946. PUBLIC LAW NO. 490, 79TH CONGRESS, WAS APPROVED JULY 5, 1946. IT WOULD SEEM TO FOLLOW THAT THE FEDERAL EMPLOYEES PAY ACT OF 1946, AND SECTION 7 (B) THEREOF, WERE WITHIN THE STATUTORY EXEMPTION OF PUBLIC LAW NO. 490 WHICH PERTAINED TO ALL EXISTING CIVIL-SERVICE AND CLASSIFICATION LAWS.

EVEN ASSUMING THAT SECTION 7 (B) OF THE FEDERAL EMPLOYEES PAY ACT OF 1946 IS SEVERABLE AND IS NEITHER A "CIVIL-SERVICE OR CLASSIFICATION LAW," THE CEILING LIMITATION IS NOT NECESSARILY APPLICABLE IN THE PRESENT CASE. THE CEILING LIMITATION IS NEITHER CATEGORICAL NOR UNCONDITIONAL. IT RELATES TO SALARY INCREASES "BY REASON OF THE ENACTMENT OF THIS ACT (THE FEDERAL EMPLOYEES PAY ACT OF 1946)," A PERCENTAGE WISE INCREASE OF SALARIES PAID PURSUANT TO EXISTING CIVIL SERVICE AND CLASSIFICATION LAWS, WHETHER GENERAL OR SPECIFIC. "WITHOUT REGARD" TO SUCH LAWS WOULD ALSO SEEM TO BE "WITHOUT REGARD" TO THE CEILING LIMITATION.

PRIOR TO ADMINISTRATIVE RELIANCE UPON THESE STATUTORY INTERPRETATIONS, WE SHOULD WANT TO BE CERTAIN OF YOUR VIEWS THEREON. ACCORDINGLY, WE SUBMIT THE FOLLOWING QUESTIONS WHICH ARE OF IMMEDIATE ADMINISTRATIVE CONCERN:

1. DOES THE EXEMPTION IN PUBLIC LAW NO. 490, SUPRA, APPLY TO PERSONS RECRUITED AND APPOINTED IN THE UNITED STATES FOR ASSIGNMENT TO POSTS OF DUTY OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES?

2. IS THE EXEMPTION IN PUBLIC LAW NO. 490, SUPRA, LIMITED TO CITIZENS OF THE UNITED STATES RECRUITED AND APPOINTED WHILE OUTSIDE OF THE CONTINENTAL LIMITS OF THE UNITED STATES FOR ASSIGNMENT TO POSTS OF DUTY OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES?

3. DOES THE PROVISION IN PUBLIC LAW NO. 490, SUPRA, MERELY AUTHORIZE THE EXPENDITURE OF THE APPROPRIATED FUNDS FOR THE PAYMENT OF THE WAGES OR SALARIES OF NATIVES EMPLOYED OUTSIDE OF THE CONTINENTAL LIMITS OF THE UNITED STATES WHO ARE PAID IN ACCORDANCE WITH LOCAL NATIVE PREVAILING WAGE RATES FOR THE AREA IN WHICH EMPLOYED?

4. ARE THE APPROPRIATED FUNDS IN PUBLIC LAW NO. 490, SUPRA, LIMITED TO EMPLOYMENT AFTER JULY 1, 1946, OR MAY THEY ALSO BE EXPENDED FOR THE PAYMENT, AFTER JULY 1, 1946, OF PERSONS EMPLOYED BEFORE JULY 1, 1946?

5. ARE PERSONS EMPLOYED UNDER PUBLIC LAW NO. 490, SUPRA, WITHOUT REGARD TO THE CIVIL-SERVICE AND CLASSIFICATION LAWS SUBJECT TO THE $10,000 PER ANNUM LIMITATION ON AGGREGATE PAY SET FORTH IN SECTION 7 (B) OF THE FEDERAL EMPLOYEES PAY ACT OF 1946 ( PUBLIC LAW NO. 390, 79TH CONG., APPROVED MAY 24, 1946/?

WE SHALL BE GLAD TO FURNISH SUCH FURTHER PARTICULARS AS YOU MAY CARE TO HAVE. YOUR EARLY OPINION ON THESE MATTERS IS RESPECTFULLY REQUESTED.

EXAMINATION OF THE HEARINGS ON THE DEPARTMENTS OF STATE, JUSTICE, COMMERCE, AND JUDICIARY APPROPRIATION ACT OF 1947, PUBLIC LAW 490 ( H.R. 6056), 79TH CONGRESS, 60 STAT. 446, 448, BEFORE THE SUBCOMMITTEE OF THE COMMITTEE ON APPROPRIATIONS, UNITED STATES SENATE, TOGETHER WITH THE REPORT OF THE SENATE COMMITTEE ON APPROPRIATIONS ON THE SAID BILL, DISCLOSES THAT THE PROVISION HERE IN QUESTION WAS INCORPORATED INTO THE PORTION OF THE BILL MAKING APPROPRIATIONS FOR THE DEPARTMENT OF STATE IN ORDER TO PROVIDE FUNDS FOR THE CARRYING OUT OF THE FUNCTIONS AND ACTIVITIES WITH RESPECT TO DISPOSAL OF SURPLUS PROPERTY ABROAD WHICH WERE TRANSFERRED TO YOUR DEPARTMENT BY EXECUTIVE ORDERS 9630 AND 9689, DATED SEPTEMBER 27, 1945, AND JANUARY 31, 1946. AS IS INDICATED IN THE ABOVE- QUOTED LETTER, THE LANGUAGE OF THE BILL PERTAINING TO THE EMPLOYMENT OF PERSONS OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES WITHOUT REGARD TO CIVIL SERVICE AND CLASSIFICATION LAWS IS NOT CLEAR AS TO WHAT SPECIFICALLY WAS INTENDED THEREBY. MOREOVER, AS IS ALSO STATED IN THE SAID LETTER, NOTHING APPEARS IN THE COMMITTEE REPORT OR IN REPORT OF THE HEARINGS WITH RESPECT TO THE EXTENT OF THE AUTHORITY INTENDED TO BE CONFERRED BY THE CONGRESS UPON YOUR DEPARTMENT BY VIRTUE OF THE SAID LANGUAGE. HENCE, IT BECOMES NECESSARY TO CONSIDER THE LANGUAGE IN QUESTION IN THE LIGHT OF THE AUTHORITY OF THE OFFICE OF FOREIGN LIQUIDATION TO EMPLOY PERSONNEL PRIOR TO THE ENACTMENT OF PUBLIC LAW NO. 490.

PREVIOUS TO JULY 1, 1946, THE EXPENSES OF THE OFFICE OF FOREIGN LIQUIDATION IN CONNECTION WITH THE DISPOSAL OF SURPLUS PROPERTY ABROAD APPEAR TO HAVE BEEN PAID FROM FUNDS TRANSFERRED TO THE STATE DEPARTMENT BY THE WAR DEPARTMENT IN ACCORDANCE WITH AUTHORITY GRANTED BY THE REFERRED-TO EXECUTIVE ORDERS. IN THIS CONNECTION SEE PAGES 316 AND 317 OF THE HEARINGS BEFORE THE SUBCOMMITTEE OF THE COMMITTEE ON APPROPRIATIONS, UNITED STATES SENATE. HOWEVER, NOTHING IS CONTAINED IN THE EXECUTIVE ORDERS OR IN ANY APPLICABLE STATUTE WHICH CONSTITUTED AUTHORITY FOR THE OFFICE OF FOREIGN LIQUIDATION TO EMPLOY PERSONNEL OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES WITHOUT REGARD TO CIVIL SERVICE AND CLASSIFICATION LAWS. THEREFORE, IT IS APPARENT THAT THE LANGUAGE IN QUESTION HAD THE EFFECT OF BROADENING THE AUTHORITY OF YOUR DEPARTMENT TO EMPLOY PERSONNEL OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES IN CARRYING OUT THE ACTIVITIES AND FUNCTIONS INCIDENT TO THE DISPOSAL OF SURPLUS PROPERTY ABROAD. HENCE, I FEEL THAT, UNDER THE PROVISION OF LAW INVOLVED, YOUR DEPARTMENT WOULD BE AUTHORIZED TO EMPLOY OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES WITHOUT REGARD TO CIVIL SERVICE AND CLASSIFICATION LAWS NOT ONLY NATIVE LABOR BUT, ALSO, SUCH OTHER PERSONS AS ARE NECESSARY TO CARRY OUT THE DUTIES IMPOSED ON YOUR DEPARTMENT BY THE AFORESAID EXECUTIVE ORDERS. HOWEVER, I DO NOT FEEL THAT THE LANGUAGE OF THE PROVISION INVOLVED IS SUFFICIENTLY BROAD TO JUSTIFY THE CONCLUSION THAT YOUR DEPARTMENT HAS AUTHORITY TO RECRUIT AND APPOINT PERSONS IN THE UNITED STATES FOR ASSIGNMENT TO POSTS OF DUTY OUTSIDE THE CONTINENTAL LIMITS OF THIS COUNTRY WITHOUT REGARD TO CIVIL SERVICE AND CLASSIFICATION LAWS.

ACCORDINGLY, QUESTIONS 1 AND 3 ARE ANSWERED IN THE NEGATIVE AND QUESTION 2 IN THE AFFIRMATIVE.

THE SITUATION INTENDED TO BE PRESENTED BY QUESTION 4 IS NOT CLEARLY UNDERSTOOD. HOWEVER, IT MAY BE SAID THAT SINCE, AS IS INDICATED ABOVE, THE OFFICE OF FOREIGN LIQUIDATION HAD NO AUTHORITY PRIOR TO THE ENACTMENT OF PUBLIC LAW 490 TO EMPLOY PERSONS OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES WITHOUT REGARD TO THE CIVIL SERVICE AND CLASSIFICATION LAWS, THE FUNDS APPROPRIATED BY SAID LAW MAY ONLY BE USED FOR THE PAYMENT OF COMPENSATION OF PERSONS WHO WERE SO EMPLOYED SUBSEQUENT TO JULY 1, 1946, OR FOR THE SERVICES RENDERED AFTER JULY 1, 1946, OF PERSONNEL WHO MAY HAVE BEEN SO EMPLOYED PRIOR TO SAID DATE.

WITH RESPECT TO QUESTION 5, SUBSECTION 7 (B) OF THE FEDERAL EMPLOYEES PAY ACT OF 1946, PUBLIC LAW 390, 79TH CONGRESS, 60 STAT. 218, IS AS FOLLOWS:

NOTWITHSTANDING ANY OTHER PROVISION OF THIS ACT, NO OFFICER OR EMPLOYEE SHALL, BY REASON OF THE ENACTMENT OF THIS ACT, BE PAID WITH RESPECT TO ANY PAY PERIOD, BASIC COMPENSATION, OR BASIC COMPENSATION PLUS ANY ADDITIONAL COMPENSATION PROVIDED BY THE FEDERAL EMPLOYEES PAY ACT OF 1945, AS AMENDED, AT A RATE IN EXCESS OF $10,000 PER ANNUM.

SINCE THE COMPENSATION OF PERSONS WHO MAY BE EMPLOYED BY YOUR DEPARTMENT OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES WITHOUT REGARD TO CIVIL SERVICE AND CLASSIFICATION LAWS UNDER THE AUTHORITY CONTAINED IN PUBLIC LAW NO. 490, WOULD NOT BE INCREASED OR OTHERWISE AFFECTED BY THE FEDERAL EMPLOYEES PAY ACT OF 1945, 59 STAT. 295, OR OF 1946, THE $10,000 LIMITATION CONTAINED IN THE ABOVE-QUOTED SECTION 7 (B) OF THE FEDERAL EMPLOYEES PAY ACT OF 1946 IS NOT APPLICABLE TO SAID PERSONS.