B-139208, OCT. 16, 1959

B-139208: Oct 16, 1959

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YOUR CLAIM WAS DISALLOWED BY OUR SETTLEMENT OF MARCH 25. THE COMMISSION SHALL HAVE AUTHORITY. ALIEN AND NATIVE EMPLOYEES WERE NEVER TREATED AS SUBJECT TO THE CLASSIFICATION ACT OF 1923. WHEN ACTION WAS TAKEN TO BRING CERTAIN POSITIONS OUTSIDE THE UNITED STATES WITHIN THE PURVIEW OF THE CLASSIFICATION ACT. SUCH ACTION WAS LIMITED TO POSITIONS OCCUPIED BY CITIZENS OF THE UNITED STATES. IT WAS THE PRACTICE IN MANY AREAS OUTSIDE THE UNITED STATES TO ESTABLISH TWO SETS OF POSITIONS WHICH MIGHT HAVE INVOLVED THE SAME DUTIES. THESE WERE (1) THOSE POSITIONS NORMALLY OCCUPIED BY ALIEN AND NATIVE EMPLOYEES WHO WERE NOT SUBJECT TO THE CLASSIFICATION ACT AND (2) THOSE POSITIONS WHICH WERE REQUIRED TO BE FILLED BY CITIZENS OF THE UNITED STATES AND THUS SUBJECT TO THE CLASSIFICATION ACT.

B-139208, OCT. 16, 1959

TO MR. BALBINO V. FLORES:

YOUR LETTER OF SEPTEMBER 1, 1959, REQUESTS FURTHER CONSIDERATION OF YOUR CLAIM FOR ADDITIONAL COMPENSATION FROM 1949 TO MARCH 4, 1956, AS AN EMPLOYEE OF THE DEPARTMENT OF THE AIR FORCE, MANILA, PHILIPPINES. YOUR CLAIM WAS DISALLOWED BY OUR SETTLEMENT OF MARCH 25, 1958.

IN YOUR LETTER OF SEPTEMBER 1, AS THE BASIS FOR YOUR REQUEST FOR RECONSIDERATION, YOU REFER TO A PART OF TITLE V OF THE CLASSIFICATION ACT OF 1949, WHICH READS IN PART, AS FOLLOWS:

"SEC. 501. (A) NOTWITHSTANDING SECTION 502, THE COMMISSION SHALL HAVE AUTHORITY, WHICH MAY BE EXERCISED AT ANY TIME IN ITS DISCRETION, TO---

"/2) PLACE IN AN APPROPRIATE CLASS AND GRADE ANY NEWLY CREATED POSITION OR ANY POSITION COMING INITIALLY UNDER THIS ACT:

"/4) CHANGE ANY POSITION FROM ONE CLASS OR GRADE TO ANOTHER CLASS OR GRADE WHENEVER THE FACTS WARRANT.'

ALIEN AND NATIVE EMPLOYEES WERE NEVER TREATED AS SUBJECT TO THE CLASSIFICATION ACT OF 1923. WHEN ACTION WAS TAKEN TO BRING CERTAIN POSITIONS OUTSIDE THE UNITED STATES WITHIN THE PURVIEW OF THE CLASSIFICATION ACT, SUCH ACTION WAS LIMITED TO POSITIONS OCCUPIED BY CITIZENS OF THE UNITED STATES. FOR EXAMPLE, SEE EXECUTIVE ORDER NO. 8955 OF DECEMBER 1, 1941.

SECTION 202 (11) OF THE CLASSIFICATION ACT OF 1949, AS AMENDED, 5 U.S.C. 1082, SPECIFICALLY PROVIDES THAT SUCH ACT SHALL NOT APPLY TO "ALIENS OR PERSONS NOT CITIZENS OF THE UNITED STATES WHO OCCUPY POSITIONS OUTSIDE THE SEVERAL STATES AND THE DISTRICT OF COLUMBIA.' WE UNDERSTAND THAT UNDER THAT PROVISION AS WELL AS UNDER THE REGULATIONS AND STATUTES IN EFFECT PRIOR TO OCTOBER 28, 1949, THE EFFECTIVE DATE OF THE CLASSIFICATION ACT OF 1949, IT WAS THE PRACTICE IN MANY AREAS OUTSIDE THE UNITED STATES TO ESTABLISH TWO SETS OF POSITIONS WHICH MIGHT HAVE INVOLVED THE SAME DUTIES. THESE WERE (1) THOSE POSITIONS NORMALLY OCCUPIED BY ALIEN AND NATIVE EMPLOYEES WHO WERE NOT SUBJECT TO THE CLASSIFICATION ACT AND (2) THOSE POSITIONS WHICH WERE REQUIRED TO BE FILLED BY CITIZENS OF THE UNITED STATES AND THUS SUBJECT TO THE CLASSIFICATION ACT.

THE PAY OF THE ALIEN AND NATIVE EMPLOYEES USUALLY WAS PRESCRIBED BY THE DEPARTMENT OR AGENCY TO ACCORD WITH THE RATES PREVAILING IN THE PARTICULAR AREA, THE COMPENSATION THUS ESTABLISHED GENERALLY BEING LOWER THAN THE COMPENSATION PROVIDED BY THE CLASSIFICATION ACT SCHEDULES.

CONCERNING YOUR CONTENTION THAT YOU WERE REQUIRED BY THE CIVILIAN PERSONNEL OFFICE TO WAIVE THE AMERICAN RATE OF PAY TO WHICH YOU WERE ENTITLED AS AN AMERICAN CITIZEN, THE RECORD SHOWS THAT YOU AGREED TO REMAIN ON DUTY IN THE POSITION TO WHICH YOU WERE ORIGINALLY ASSIGNED AT THE RATE OF COMPENSATION ASSIGNED TO THAT POSITION UNTIL SUCH TIME AS A UNITED STATES SPACE BECAME AVAILABLE. THE RECORD SHOWS ALSO THAT YOU WERE PAID THE RATE OF COMPENSATION ASSIGNED TO THE POSITION HELD BY YOU.

WHEN POSITIONS ARE ESTABLISHED IN A PARTICULAR AREA OUTSIDE THE UNITED STATES AND THE DISTRICT OF COLUMBIA WHICH NORMALLY ARE OCCUPIED BY ALIEN OR NATIVE EMPLOYEES, WE ARE NOT AWARE OF ANY PROVISION IN THE CLASSIFICATION ACT OF 1949, AS AMENDED, WHICH PRECLUDES THE APPOINTMENT OF A CITIZEN OF THE UNITED STATES TO ONE OF SUCH POSITIONS ASSUMING, OF COURSE, THAT HE IS WILLING TO ACCEPT SUCH POSITION AND IS AWARE OF THE DIFFERENCE IN COMPENSATION BETWEEN SUCH A POSITION AND ONE WHICH IS ESTABLISHED FOR OCCUPANCY BY A CITIZEN OF THE UNITED STATES.

AS INDICATED IN OUR SETTLEMENT OF MARCH 25, 1958, IT WAS OBVIOUS TO YOU WHEN YOU WERE FIRST EMPLOYED THAT THE POSITION TO BE OCCUPIED WAS ONE OF THOSE ESTABLISHED AT THE NATIVE RATE. MOREOVER, THERE WAS NO OBLIGATION ON THE PART OF THE DEPARTMENT OF THE AIR FORCE TO CREATE AN ADDITIONAL POSITION UNDER THE CLASSIFICATION ACT IN ORDER TO EFFECT YOUR EMPLOYMENT AS A CITIZEN OF THE UNITED STATES. PRESUMABLY, SUCH AN ACTION WOULD HAVE BEEN PRECLUDED BECAUSE OF LIMITATION OF FUNDS EVEN IF IT HAD BEEN DESIRABLE.

UNDER THE CIRCUMSTANCES WE MUST SUSTAIN THE ACTION TAKEN IN OUR SETTLEMENT OF MARCH 25, 1958, IN DENYING ADDITIONAL COMPENSATION TO YOU DURING THE PERIOD IN QUESTION.