B-144081, MAR. 16, 1961

B-144081, MAR. 16, 1961

TO CHIEF OF INDUSTRIAL RELATIONS, DEPARTMENT OF THE NAVY:

ON DECEMBER 9, 1960, FILE OIR 270:MHF, YOUR DEPUTY CHIEF OF INDUSTRIAL RELATIONS FURNISHED INFORMATION CONCERNING CERTAIN ASPECTS OF THE SITUATION CONSIDERED IN OUR DECISION OF OCTOBER 20, 1960, B 144081, TO THE DISBURSING OFFICER, NAVAL SUPPLY DEPOT, SUBIC BAY, PHILIPPINES.

THE PAPERS WHICH THE COMPTROLLER OF THE NAVY SUBMITTED TO US ON SEPTEMBER 23, 1960, FROM THE NAVAL SUPPLY DEPOT DID NOT REVEAL THAT THE MATTER IN QUESTION CONCERNED ONLY ONE POSITION. ALSO, THE RECORD DID NOT INDICATE THAT THE APPOINTEE'S CITIZENSHIP STATUS WAS IN DOUBT AT THE TIME OF HER APPOINTMENT ON AUGUST 18, 1955, OR THAT THE APPOINTMENT WAS CONDITIONED ON THE APPOINTEE'S FURNISHING ACCEPTABLE EVIDENCE OF HER UNITED STATES CITIZENSHIP; OR THAT SOME SEPARATE PERSONNEL ACTION OR ADMINISTRATIVE DETERMINATION SUBSEQUENTLY WAS NOT REQUIRED IN THE MATTER, SUCH AS MIGHT BE COMPARABLE TO A RECLASSIFICATION OR A CONVERSION OF THE POSITION AND EMPLOYEE UNDER AUTHORITY OTHER THAN THE ORIGINAL APPOINTING AUTHORITY.

THE LETTER OF DECEMBER 9, 1960, IN PERTINENT PART, IS AS FOLLOWS:

"A. IN THE NAVY, POSITIONS WHICH WOULD OTHERWISE BE UNDER THE CLASSIFICATION ACT OF 1949, AS AMENDED, ARE DESIGNATED GROUP IVB-TYPE WHEN THEY ARE FILLED BY NON-U.S. CITIZENS. IF, ON THE OTHER HAND, THEY ARE OCCUPIED BY U.S. CITIZENS, THEY ARE SUBJECT TO THE CLASSIFICATION ACT, AND ARE KNOWN AS GROUP IVB POSITIONS.

"B. THE REGULATIONS OF THIS DEPARTMENT PROVIDE THAT A U.S. CITIZEN WILL BE PAID IN ACCORDANCE WITH THE CLASSIFICATION ACT. IF, HOWEVER, THE EMPLOYEE IS A NON-U.S. CITIZEN, HE IS PAID IN ACCORDANCE WITH THE SCHEDULE OF WAGES FOR GROUP IVB-TYPE POSITIONS, ENCLOSURE (1).

"* * * THE QUESTION STILL EXISTS AS TO WHETHER IT IS MANDATORY OR PERMISSIVE TO COMPENSATE A U.S. CITIZEN EMPLOYEE AT THE APPROPRIATE RATE PRESCRIBED BY THE CLASSIFICATION ACT. FOR SOME TIME, THE DEPARTMENT'S REGULATIONS HAVE PRESCRIBED THAT U.S. CITIZENS WILL BE COMPENSATED AT THE APPROPRIATE CLASSIFICATION ACT RATE. IF IT IS PERMISSIVE TO COMPENSATE U.S. CITIZENS AT EITHER THE CLASSIFICATION ACT RATE OR THE RATE ACT FOR NON-U.S. CITIZENS (GROUP IVB-TYPE POSITIONS), THEN IT IS PRESUMED THAT THE NAVY IS AT LIBERTY TO CHANGE ITS REGULATIONS.'

ON JANUARY 17, 1961, WE REQUESTED THE CIVIL SERVICE COMMISSION TO FURNISH US AN EXPRESSION OF ITS VIEWS ON THE ASPECTS OF THE MATTER COMING WITHIN THE COMMISSION'S JURISDICTION. WE ARE ENCLOSING FOR YOUR INFORMATION COPIES OF OUR LETTER OF JANUARY 17 AND OF THE ACTING CHAIRMAN'S REPLY DATED FEBRUARY 23, 1961.

THE ACTING CHAIRMAN'S LETTER OF FEBRUARY 23, THIRD PARAGRAPH, EXPRESSES THE VIEW THAT THERE IS NO AUTHORITY FOR AN AGENCY TO PAY A RATE OTHER THAN THE APPROPRIATE CLASSIFICATION ACT RATE TO A UNITED STATES CITIZEN OCCUPYING AN OVERSEAS POSITION OF THE TYPE WHICH "NORMALLY, IS SUBJECT TO THAT ACT. THE FOURTH PARAGRAPH REFERS TO SUBSECTION 202 (11) OF THE CLASSIFICATION ACT WHICH EXEMPTS FROM THE ACT "ALIENS OR PERSONS" WHO ARE NOT CITIZENS OF THE UNITED STATES AND WHO OCCUPY POSITIONS OUTSIDE THE SEVERAL STATES AND THE DISTRICT OF COLUMBIA. THE FIFTH AND SIXTH PARAGRAPHS INDICATE THAT IT IS PROPER TO ESTABLISH ONE OVERSEAS POSITION OF THE TYPE ORDINARILY COVERED BY THE CLASSIFICATION ACT AND, DEPENDING UPON WHETHER IT IS OCCUPIED BY A U.S. CITIZEN OR A NONCITIZEN, PAY THE INCUMBENT EITHER THE STATUTORY RATE UNDER THE ACT, 5 U.S.C. 1113, OR THE WAGE RATE PRESCRIBED ADMINISTRATIVELY THEREUNDER, 5 U.S.C. 1082 (11). THE ACTING CHAIRMAN'S CONCLUSIONS STATED IN THE SIXTH PARAGRAPH--- (1) THAT ANY DECISION AS TO WHICH OF THOSE RATES SHALL BE PAID IS NOT DISCRETIONARY, THAT BEING DEPENDENT UPON THE APPOINTEE'S CITIZENSHIP AT THE TIME, AND (2) THAT IF THE APPOINTEE IS A CITIZEN OF THE UNITED STATES, THE RATE UNDER 5 U.S.C. 1113 IS THE ONLY AUTHORIZED RATE--- ARE, HOWEVER, QUALIFIED BY THE VIEWS REPRESENTED IN THE SEVENTH AND EIGHTH PARAGRAPHS OF THE LETTER.

THE SEVENTH PARAGRAPH REFERS TO CERTAIN OF OUR UNPUBLISHED DECISIONS IN SIMILAR CASES. IN THAT REGARD, THE COMMISSION SAYS IT WOULD NOT DISAGREE WITH A CONCLUSION THAT THE OBTAINING OF A POSITION BY MISREPRESENTATION--- ON THE PART OF AN APPOINTEE--- WHEN THE AGENCY WOULD NOT HAVE EMPLOYED THE APPOINTEE EXCEPT FOR THE MISREPRESENTATION, SHOULD BAR THE APPOINTEE FROM CLAIMING COMPENSATION ABOVE THE RATE WHICH HAD BEEN PAID BY THE AGENCY IN GOOD FAITH.

THE COMMISSION IS OF THE OPINION THAT IF AN APPOINTEE FURNISHES THE APPOINTING OFFICER WITH ADEQUATE NOTICE OF OR GOOD REASON TO BELIEVE THE APPOINTEE HAS UNITED STATES CITIZENSHIP AT THE TIME OF APPOINTMENT TO A POSITION PROPERLY CLASSIFIED FOR PURPOSES OF THE CLASSIFICATION ACT, THE PAY RATES OF SECTION 603 OF THE ACT, 5 U.S.C. 1113, ARE APPLICABLE TO SUCH APPOINTEE IN SUCH A POSITION, PROVIDED, HOWEVER, THAT THE AGENCY MAY DEFER FULL PAYMENT OF SUCH A RATE UNTIL THE APPOINTEE FURNISHES ACCEPTABLE DOCUMENTARY EVIDENCE OF HIS CITIZENSHIP STATUS EXISTING ON AND AFTER THE DATE OF HIS APPOINTMENT.

WE CONCUR IN THE VIEWS OF THE COMMISSION IN THIS MATTER.

SPECIFICALLY, IN REPLY TO THE TWO-PART QUESTION POSED IN THE NEXT TO LAST PARAGRAPH OF THE LETTER OF DECEMBER 9, 1960, WHICH IS QUOTED LAST ABOVE, YOU ARE INFORMED THAT UNDER THE CLASSIFICATION ACT, AND THE COMMISSION'S VIEW, IN WHICH WE GENERALLY WOULD CONCUR, THE CONCLUSION IS THAT IT IS NOT PERMISSIVE FOR AN AGENCY TO COMPENSATE UNITED STATES CITIZENS IN A CLASSIFICATION ACT POSITION AT A SALARY RATE OTHER THAN THE CLASSIFICATION ACT RATE (5 U.S.C. 1113). THUS, THE MANDATORY REQUIREMENT OF THE NAVY REGULATIONS IN THAT REGARD IS CORRECT.

THUS, WE COME TO THE PARAMOUNT QUESTION OF FACT STATED IN THE NEXT TO THE LAST PARAGRAPH OF OUR DECISION OF OCTOBER 20, 1960. THEREIN, WE OBSERVED THAT THE EMPLOYEE WAS NOT APPOINTED TO A CLASSIFICATION ACT POSITION AT THE TIME IN QUESTION. WE HAVE GATHERED, THOUGH NOT SO STATED BY US, THAT SHE APPARENTLY WAS NOT THEN ADMINISTRATIVELY INTENDED TO BE SO APPOINTED, BASED UPON THE PRIMA FACIE EVIDENCE OF THE CHANGED ANSWER RELATING TO HER U.S. CITIZENSHIP--- REGARDLESS OF WHO CHANGED IT--- ON HER APPLICATION FORM. THE RECORD FAIRLY SUGGESTS THAT, FOR SOME REASON NOT EXPLAINED IN THE RECORD, THE APPLICANT DID NOT THEN SUPPLY THE INTERVIEWING OFFICER OR THE APPOINTING OFFICER WITH ADEQUATE PROOF OF HER U.S. CITIZENSHIP. THE ABSENCE OF SUCH EVIDENCE, THE ADMINISTRATIVE INTENT THEN PREVAILING SEEMS TO HAVE BEEN TO HIRE HER AS A NONCITIZEN. ANY DOUBT OR MENTAL RESERVATION ADMINISTRATIVELY WHICH MIGHT HAVE EXISTED IN HER FAVOR AT THE TIME SEEMS NOT TO HAVE BEEN RESOLVED UNTIL THE FACT OF HER U.S. CITIZENSHIP WAS ESTABLISHED, EVIDENTLY SEVERAL YEARS LATER. THERE IS NOT EVIDENCE OF RECORD HERE INDICATING THAT, DURING THE PERIOD INTERVENING BETWEEN THE DATE OF HER APPOINTMENT AND THE FURNISHING OF THE PROOF OF U.S. CITIZENSHIP, THE EMPLOYEE HAD PROTESTED THE DETERMINATION MADE AT THE TIME OF HER APPOINTMENT AS TO HER ELIGIBILITY ONLY FOR THE GROUP IVB TYPE POSITION.

WITH FURTHER REFERENCE TO THE DECISION OF OCTOBER 20, 1960, THE ADMINISTRATIVE REPORT OF FEBRUARY 15, 1960, FILE NS30 12000 SER: 553, FORWARDED TO THE OFFICE OF INDUSTRIAL RELATIONS, FILES OIR 270 AND 270/245), LETTERS DATED APRIL 12 AND JULY 8, 1960, REPORTED ADMINISTRATIVE CONCLUSIONS OF FACT REACHED "AFTER THE FACT" OF THE APPOINTMENT OF AUGUST 18, 1955. THEREIN, THE OVERSEAS OFFICE GATHERED THAT "SOMEONE" AT THE TIME SHE WAS HIRED AND OBVIOUSLY "FROM THE INK SED" AFTER SHE HAD SUBMITTED HER APPLICATION, CROSSED OUT THE AFFIRMATIVE ANSWER SHE HAD GIVEN TO THE STANDARD FORM 57 QUESTION "ARE YOU A CITIZEN OF THE UNITED STATES OF AMERICA? " THE REPORT OF FEBRUARY 15, 1960, FURTHER SAYS THIS MATTER WAS DISCUSSED WITH THE APPOINTEE--- APPARENTLY SUBSEQUENT TO THE DATE OF HER APPOINTMENT--- THAT SHE HAS ACTED IN GOOD FAITH AND HAS NOW SUBMITTED EVIDENCE THAT "SHE IS A UNITED STATES CITIZEN," AND THAT SUCH FACT HAS BEEN CONFIRMED BY THE AMERICAN EMBASSY IN MANILA. HOWEVER, THAT REPORT DID NOT ESTABLISH THAT AT THE TIME OF THE APPOINTMENT THE APPOINTING OFFICE IN THIS CASE KNEW OR HAD GOOD REASON TO BELIEVE THE APPOINTEE WAS ON AUGUST 18, 1955, A CITIZEN OF THE UNITED STATES; NOR DOES THE RECORD ESTABLISH THAT THE EMPLOYING AGENCY UNDERSTOOD THAT HER NONCITIZENSHIP STATUS WAS IN DOUBT FROM THE BEGINNING OF THE EMPLOYMENT AND THAT PAYMENT OF THE CLASSIFICATION ACT'S RATE WAS MERELY DEFERRED UNTIL THE EMPLOYEE'S U.S. CITIZENSHIP WAS PROVED.

IN THE CIRCUMSTANCES, THE EMPLOYEE'S SUBSEQUENT ASSERTION OF U.S. CITIZENSHIP, FOR THE PURPOSES OF APPLYING THE PAY PROVISIONS OF THE CLASSIFICATION ACT, PROPERLY IS TO BE APPLIED PROSPECTIVELY FROM THE DATE THE AGENCY RECEIVED NOTIFICATION OF THE U.S. CITIZENSHIP. IN THE LIGHT OF THE ADDITIONAL FACTS, OUR DECISION OF OCTOBER 20, 1960, IN THIS CASE, IS MODIFIED TO THAT EXTENT AND THE DISBURSING OFFICER SHOULD BE SO NOTIFIED IN ORDER THAT THE NECESSARY ADJUSTMENT OF THE EMPLOYEE'S PAY CAN BE EFFECTED, IF OTHERWISE PROPER.