B-25314, APRIL 25, 1942, 21 COMP. GEN. 947

B-25314, APRIL 25, 1942, 21 COMP. GEN. 947

EXTENSION OF CLASSIFICATION ACT TO POSITIONS OUTSIDE UNITED STATES; SALARY DIFFERENTIALS; ETC. THE PROVISIONS OF THE ACT OF NOVEMBER 26, 1940, AND OF EXECUTIVE ORDER NO. 8955, EXTENDING UNDER AUTHORITY OF SAID ACT THE PROVISIONS OF THE CLASSIFICATION ACT TO CIVILIAN POSITIONS IN THE WAR AND NAVY DEPARTMENTS IN CERTAIN AREAS OUTSIDE THE UNITED STATES AND ESTABLISHING A SALARY DIFFERENTIAL THEREFOR, RELATE EXCLUSIVELY TO THE CLASSIFICATION OF POSITIONS RATHER THAN TO THE QUALIFICATION OF INDIVIDUAL EMPLOYEES, AND, THEREFORE, NEITHER THE CITIZENSHIP STATUS OF AN APPOINTEE OR INCUMBENT, NOR THE PLACE FROM WHICH HIRED--- WHETHER LOCALLY IN ONE OF THE INVOLVED AREAS OR ELSEWHERE--- WOULD HAVE ANY BEARING UPON THE ALLOCATION OF THE POSITION OR THE FIXING OF HIS SALARY RATE TO INCLUDE THE DIFFERENTIAL. THE USE OF THE WORDS "POSITIONS * * * FOR WHICH CITIZENS OF THE UNITED STATES ARE RECRUITED" IN EXECUTIVE ORDER NO. 8955, EXTENDING THE CLASSIFICATION ACT TO CIVILIAN POSITIONS IN THE WAR AND NAVY DEPARTMENTS IN CERTAIN AREAS OUTSIDE THE UNITED STATES AND ESTABLISHING A SALARY DIFFERENTIAL THEREFOR, HAS THE EFFECT OF EXCLUDING FROM THE OPERATION OF THE ORDER THOSE CLASSES OF POSITIONS WHICH THERETOFORE HAD BEEN FILLED BY NATIVES PAID UNDER NATIVE SCHEDULES, AND OF INCLUDING ONLY THOSE CLASSES OF POSITIONS THE DUTIES OF WHICH USUALLY ARE PERFORMED BY AMERICAN CITIZENS--- THE QUESTION OF THE CATEGORY IN WHICH A PARTICULAR CLASS OF POSITIONS FALLS BEING FOR DETERMINATION JOINTLY BY THE ADMINISTRATIVE OFFICE CONCERNED AND THE CIVIL SERVICE COMMISSION. WHERE, UNDER EXECUTIVE ORDER NO. 8955, EXTENDING THE CLASSIFICATION ACT TO, AND ESTABLISHING A SALARY DIFFERENTIAL FOR, CIVILIAN POSITIONS IN THE WAR AND NAVY DEPARTMENTS "FOR WHICH CITIZENS OF THE UNITED STATES ARE RECRUITED" AND WHICH ARE LOCATED IN CERTAIN AREAS OUTSIDE THE UNITED STATES, IT ONCE HAS BEEN DETERMINED THAT A POSITION IS COVERED BY THE EXECUTIVE ORDER AND THE ALLOCATION MADE, NEITHER THE ALLOCATION OF THE POSITION NOR THE PAYMENT OF THE SALARY DIFFERENTIAL IN THAT GRADE IS AFFECTED BY THE CITIZENSHIP STATUS OF AN INDIVIDUAL INCUMBENT. THE RULE THAT THE ALLOCATION OR REALLOCATION OF A POSITION APPROVED BY THE CIVIL SERVICE COMMISSION IS EFFECTIVE FROM THE BEGINNING OF THE PAY PERIOD CURRENT WHEN THE NOTICE OF THE APPROVAL IS RECEIVED IN THE ADMINISTRATIVE OFFICE SHOULD BE APPLIED TO THE ALLOCATION OR REALLOCATION OF POSITIONS WITHIN THE PURVIEW OF EXECUTIVE ORDER NO. 8955, EXTENDING THE CLASSIFICATION ACT TO, AND ESTABLISHING A SALARY DIFFERENTIAL FOR, CIVILIAN POSITIONS IN THE WAR AND NAVY DEPARTMENTS IN CERTAIN AREAS OUTSIDE THE UNITED STATES, AND THE SALARY DIFFERENTIAL, AS WELL AS THE ALLOCATION OR REALLOCATION, WILL BE EFFECTIVE FROM THE BEGINNING OF SUCH PAY PERIOD. WHERE, NOTWITHSTANDING THE GENERAL RULE THAT A NEW POSITION, AS DISTINGUISHED FROM AN IDENTICAL ADDITIONAL ONE, SHOULD BE ALLOCATED PRIOR TO AN APPOINTMENT THERETO, APPOINTMENTS ARE NECESSARILY MADE DURING THE PRESENT WAR EMERGENCY PRIOR TO FINAL ALLOCATION ACTION BY THE CIVIL SERVICE COMMISSION, NO PAYMENT OF SALARY SHOULD BE MADE, IF THE DELAY BE SHORT, UNTIL THE SALARY RATE LEGALLY PAYABLE BASED ON THE ALLOCATION OF THE POSITION SHALL HAVE BEEN DETERMINED. WHERE FINAL ALLOCATION ACTION BY THE CIVIL SERVICE COMMISSION WITH RESPECT TO CERTAIN POSITIONS IN THE WAR AND NAVY DEPARTMENTS OUTSIDE THE UNITED STATES, TO WHICH POSITIONS THE CLASSIFICATION ACT HAS BEEN EXTENDED BY EXECUTIVE ORDER NO. 8955, IS DELAYED FOR EXTENDED PERIODS DUE TO THE DISTANCES AND OTHER CIRCUMSTANCES INVOLVED, NO OBJECTION WILL BE MADE TO ADMINISTRATIVE ESTABLISHMENT OF TENTATIVE SALARY RATES, SUBJECT TO SUBSEQUENT ADJUSTMENT, TO BE PAID PENDING THE FINAL ALLOCATION ACTION. WHERE A POSITION IS DETERMINED NOT TO BE ONE "FOR WHICH CITIZENS OF THE UNITED STATES ARE RECRUITED" WITHIN THE MEANING OF EXECUTIVE ORDER NO. 8955, EXTENDING THE CLASSIFICATION ACT TO, AND ESTABLISHING A SALARY DIFFERENTIAL FOR, CIVILIAN POSITIONS IN THE WAR AND NAVY DEPARTMENTS IN CERTAIN AREAS OUTSIDE THE UNITED STATES, BUT, RATHER, A POSITION THE INCUMBENT OF WHICH IS PAID ON THE BASIS OF AN ADMINISTRATIVELY ADOPTED NATIVE SCHEDULE, NO SALARY DIFFERENTIAL WOULD BE PAYABLE TO THE INCUMBENT REGARDLESS OF WHETHER HE BE A NATIVE OR AN AMERICAN CITIZEN. THE FACT THAT AN INCUMBENT OF A POSITION COVERED BY EXECUTIVE ORDER NO. 8955, EXTENDING THE CLASSIFICATION ACT TO, AND ESTABLISHING A SALARY DIFFERENTIAL FOR, CIVILIAN POSITIONS IN THE WAR AND NAVY DEPARTMENTS IN CERTAIN AREAS OUTSIDE OF THE UNITED STATES, MAY BE PAID IN FOREIGN CURRENCY WOULD NOT FORFEIT HIS RIGHT TO THE SALARY DIFFERENTIAL, AND HIS SALARY RATE, INCLUDING THE DIFFERENTIAL, SHOULD BE COMPUTED ON THE BASIS, AND BE THE EQUIVALENT, OF UNITED STATES CURRENCY. PAYMENT OF THE SALARY DIFFERENTIAL TO AN INCUMBENT OF A POSITION COVERED BY EXECUTIVE ORDER NO. 8955, EXTENDING THE CLASSIFICATION ACT TO, AND FIXING SUCH DIFFERENTIAL FOR, POSITIONS IN THE WAR AND NAVY DEPARTMENTS IN CERTAIN AREAS OUTSIDE THE UNITED STATES, IS NOT AN "EQUIVALENT INCREASE IN COMPENSATION" WITHIN THE MEANING OF SECTION 2 OF THE UNIFORM WITHIN-GRADE SALARY-ADVANCEMENT STATUTE OF AUGUST 1 AND DOES NOT AFFECT THE INCUMBENT'S ELIGIBILITY TO A WITHIN-GRADE SALARY ADVANCEMENT UNDER THAT ACT.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF WAR, APRIL 25, 1942:

I HAVE YOUR LETTER OF APRIL 8, 1942, AS FOLLOWS:

(1) EXECUTIVE ORDER 8955 EXTENDS THE PROVISIONS OF THE CLASSIFICATION ACT OF 1923, AS AMENDED, TO POSITIONS IN THE WAR DEPARTMENT LOCATED IN CERTAIN ENUMERATED GEOGRAPHIC AREAS.

(2) INFORMATION IS REQUESTED AS TO WHETHER THE FACT THAT THE EMPLOYEES HIRED LOCALLY IN THE REGIONS ENUMERATED IN SECTION I OF THE ABOVE- MENTIONED EXECUTIVE ORDER WOULD PRECLUDE SUCH EMPLOYEES' RIGHT TO THE SUBJECT DIFFERENTIAL, ASSUMING NECESSARY ALLOCATING ACTION HAS BEEN TAKEN BY THE CIVIL SERVICE COMMISSION.

(3) THE WORDING IN SECTION OF E.O. 8955 READS AS FOLLOWS: "THE PROVISIONS OF THE CLASSIFICATION ACT OF 1923, AS AMENDED, ARE HEREBY EXTENDED TO POSITIONS IN THE WAR DEPARTMENT * * * FOR WHICH CITIZENS OF THE UNITED STATES ARE RECRUITED" * * *. ( ITALICS SUPPLIED.) THEREFORE, IN THE ABSENCE OF A PROHIBITION OF HIRING A NONCITIZEN, IT WOULD APPEAR THAT THE FILLING OF SUCH POSITION BY A NONCITIZEN WOULD HAVE THE EFFECT OF EXCLUDING THE POSITION FROM REQUIREMENTS CONTAINED IN THE PROVISIONS OF E.O. 8955. CONFIRMATION OF THIS VIEW IS REQUESTED.

(4) INFORMATION IS ALSO REQUESTED AS TO PROPRIETY OF ALLOWANCE OF THE DIFFERENTIAL PROVIDED FOR BY E.O. 8955 WHEN AN INDIVIDUAL NOT A CITIZEN OF THE UNITED STATES IS HIRED VICE PREVIOUS INCUMBENT OF A POSITION WHICH HAS BEEN ALLOCATED BY THE CIVIL SERVICE COMMISSION AND WHEN SUCH PREVIOUS INCUMBENT HAS BEEN PAID THE 25 PERCENT DIFFERENTIAL PROVIDED FOR BY SUCH EXECUTIVE ORDER. IN THE EVENT THE DIFFERENTIAL UNDER SUCH CIRCUMSTANCES WOULD NOT BE ALLOWABLE TO THE NONCITIZEN, AND APPOINTMENT IS VICE PREVIOUS INCUMBENT WHO WOULD APPARENTLY HAVE HAD A STATUS IN THE COMPETITIVE CLASSIFIED CIVIL SERVICE, WHAT IS THE STANDING OF THE APPOINTED NONCITIZEN WITH RESPECT TO THE CLASSIFIED SERVICE? IF SUCH NONCITIZEN WERE LATER REPLACED IN THE POSITION BY A UNITED STATES CITIZEN, WOULD THE LATTER, UPON APPOINTMENT, BE ENTITLED TO THE DIFFERENTIAL AND HAVE A STATUS SIMILAR TO THE INDIVIDUAL WHO HELD THE POSITION AT TIME SAME WAS ORIGINALLY ALLOCATED BY THE CIVIL SERVICE COMMISSIONS?

(5) IF A CITIZEN WERE APPOINTED IN ALASKA ON FEBRUARY 11, 1942, AND THE POSITION TO WHICH HE WAS APPOINTED WAS NOT ALLOCATED BY THE CIVIL SERVICE COMMISSION UNTIL MARCH 25, 1942, WOULD HE BE ENTITLED TO THE 25 PERCENT DIFFERENTIAL FROM FEBRUARY 11, 1942, OR FROM MARCH 25, 1942? CAN APPOINTMENT BE MADE TO A POSITION SUBJECT TO E.O. 8955 BEFORE THE POSITION IS FIRST ALLOCATED BY THE CIVIL SERVICE COMMISSION? WHEN A POSITION IS ALLOCATED BY THE CIVIL SERVICE COMMISSION UNDER THE NAME OF THE INCUMBENT OF THE POSITION CONCERNED, WHAT GOVERNS THE EFFECTIVE DATE FOR PAYING THE 25 PERCENT DIFFERENTIAL?

(6) IF A PERSON WERE SERVING IN A POSITION SUBJECT OT E.O. 8955 WHEN THE ORDER BECAME EFFECTIVE AND HIS POSITION HAS NOT BEEN ALLOCATED BY THE CIVIL SERVICE COMMISSION, WOULD HE HAVE JUST CLAIM FOR THE 25 PERCENT DIFFERENTIAL FROM DATE OF EXECUTIVE ORDER, OR CAN HE BE CONTINUED IN HIS PRESENT POSITION INDEFINITELY WITHOUT BEING PAID THE 25 PERCENT DIFFERENTIAL?

(7) WOULD AN AMERICAN CITIZEN APPOINTED TO A POSITION SUBJECT TO THE E.O. 8955 BE ENTITLED TO THE 25 PERCENT DIFFERENTIAL WHEN HIS SALARY WAS PAID ON A NATIVE RATE BASIS AND IN LOCAL CURRENCY ( NEWFOUNDLAND CURRENCY/?

(8) WOULD AN AMERICAN CITIZEN APPOINTED TO A POSITION SUBJECT TO THE E.O. 8955 BE ENTITLED TO THE 25 PERCENT DIFFERENTIAL WHEN HIS SALARY WAS ONE OF THE RATES FOUND IN THE COMPENSATION SCHEDULES OF THE CLASSIFICATION ACT, BUT WAS PAID IN LOCAL CURRENCY ( NEWFOUNDLAND CURRENCY/?

(9)AN EMPLOYEE OF THE WAR DEPARTMENT RECEIVED AN AUTOMATIC PROMOTION EFFECTIVE OCTOBER 1, 1941, UNDER THE PROVISIONS OF THE MEAD RAMSPECK ACT. ON JANUARY 1, 1942, THIS EMPLOYEE WAS TRANSFERRED TO A POSITION AT ONE OF THE ISLAND BASES AT THE SAME GRADE AND SALARY, BUT WAS GIVEN 25 PERCENT DIFFERENTIAL UNDER PROVISIONS OF E.O. 8955. WOULD THIS EMPLOYEE HAVE TO BEGIN A NEW WAITING PERIOD BEGINNING JANUARY 1, 1942, THE DATE OF THE 25 PERCENT DIFFERENTIAL OR WOULD THE WAITING PERIOD BE COMPUTED FROM OCTOBER 1, 1941?

THE PARAGRAPHS IN YOUR LETTER HAVE BEEN NUMBERED FOR CONVENIENT REFERENCE IN ANSWERING THE QUESTIONS PRESENTED.

SECTIONS 3 (A) AND 3 (C), TITLE II, OF THE ACT OF NOVEMBER 26, 1940, 54 STAT. 1212, 1213, PROVIDE IN PERTINENT PART AS FOLLOWS:

SEC. 3. (A) SUBJECT TO THE LIMITATIONS CONTAINED IN THIS SECTION, WHENEVER THE PRESIDENT, AFTER SUCH CLASSIFICATION AND COMPENSATION SURVEYS OR INVESTIGATIONS AS HE MAY DIRECT THE COMMISSION TO UNDERTAKE, AND UPON CONSIDERATION OF THE COMMISSION'S RESULTING REPORTS AND RECOMMENDATIONS, SHALL FIND AND DECLARE THAT AN EXTENSION OF THE PROVISIONS OF THE CLASSIFICATION ACT OF 1923, AS AMENDED, TO ANY OFFICES OR POSITIONS IN THE AGENCIES OF THE GOVERNMENT IS NECESSARY TO THE MORE EFFICIENT OPERATION OF THE GOVERNMENT, HE MAY BY EXECUTIVE ORDER EXTEND THE PROVISIONS OF THE CLASSIFICATION ACT OF 1923, AS AMENDED, TO ANY SUCH OFFICES OR POSITIONS NOT AT THE TIME SUBJECT TO SUCH PROVISIONS: * * *

(C) WHENEVER THE PRESIDENT, UPON REPORT AND RECOMMENDATION BY THE COMMISSION, SHALL FIND AND DECLARE THAT THE RATES OF THE COMPENSATION SCHEDULES OF THE CLASSIFICATION ACT OF 1923, AS AMENDED, ARE INADEQUATE FOR ANY OFFICES OR POSITIONS UNDER SUCH ACT, AS AMENDED AND EXTENDED, HE MAY BY EXECUTIVE ORDER ESTABLISH NECESSARY SCHEDULES OF DIFFERENTIALS IN THE RATES PRESCRIBED IN SUCH COMPENSATION SCHEDULES, BUT THE DIFFERENTIALS IN THE COMPENSATION OF ANY SUCH OFFICE OR POSITION SHALL NOT EXCEED 25 PERCENTUM OF THE MINIMUM RATE OF THE GRADE TO WHICH SUCH OFFICE OR POSITION IS ALLOCATED UNDER SUCH COMPENSATION SCHEDULES: PROVIDED, THAT THE PROVISIONS OF THIS SUBSECTION SHALL BE APPLICABLE ONLY TO SUCH OFFICES OR POSITIONS HAVING THE FOLLOWING CHARACTERISTICS:

OFFICES OR POSITIONS * * * WHICH ARE LOCATED OUTSIDE THE STATES OF THE UNITED STATES AND THE DISTRICT OF COLUMBIA: * * *

EXECUTIVE ORDER 8955, DATED DECEMBER 1, 1941, PROVIDES AS FOLLOWS:

WHEREAS UPON CONSIDERATION OF REPORTS AND RECOMMENDATIONS OF THE CIVIL SERVICE COMMISSION, I FIND AND DECLARE (1) THAT AN EXTENSION OF THE PROVISIONS OF THE CLASSIFICATION ACT OF 1923, AS AMENDED, TO THE HEREINAFTER-DESCRIBED POSITIONS IN THE WAR AND NAVY DEPARTMENTS, OUTSIDE THE STATES OF THE UNITED STATES AND THE DISTRICT OF COLUMBIA, IS NECESSARY TO THE MORE EFFICIENT OPERATION OF THE GOVERNMENT, AND (2) THAT THE RATES OF THE COMPENSATION SCHEDULES OF THE CLASSIFICATION ACT OF 1923, AS AMENDED, ARE INADEQUATE TO PERMIT EFFECTIVE AND IMMEDIATE RECRUITING OF QUALIFIED CITIZENS FOR SUCH POSITIONS, WHICH IS NECESSARY IN THE INTERESTS OF THE NATIONAL-DEFENSE PROGRAM:

NOW, THEREFORE, BY VIRTUE OF THE AUTHORITY VESTED IN ME BY SECTIONS 3 (A) AND 3 (C), TITLE II OF THE ACT OF NOVEMBER 26, 1940, 54 STAT. 1212, IT IS ORDERED AS FOLLOWS:

1. THE PROVISIONS OF THE CLASSIFICATION ACT OF 1923, AS AMENDED, ARE HEREBY EXTENDED TO POSITIONS IN THE WAR DEPARTMENT AND IN THE NAVY DEPARTMENT FOR WHICH CITIZENS OF THE UNITED STATES ARE RECRUITED, WHICH ARE MADE NECESSARY BY NATIONAL-DEFENSE PROJECTS, WHICH FALL INTO CLASSES OF EMPLOYMENT TO WHICH THE CLASSIFICATION ACT OF 1923, AS AMENDED, IS APPLICABLE, AND WHICH ARE LOCATED IN THE FOLLOWING-NAMED GEOGRAPHIC AREAS:

ALASKA. JAMAICA.

BRITISH GUIANA. BERMUDA.

TRINIDAD. 1 THE BAHAMAS.

ANTIGUA. NEWFOUNDLAND.

ST. LUCIA.

2. A SALARY DIFFERENTIAL IS HEREBY ESTABLISHED FOR THE AFORESAID POSITIONS AS FOLLOWS: TO THE RATES OF PAY APPLICABLE TO SUCH POSITIONS AS SPECIFIED IN THE CLASSIFICATION ACT OF 1923, AS AMENDED, THERE SHALL BE ADDED TWENTY-FIVE PERCENTUM OF THE MINIMUM RATE OF THE GRADE TO WHICH EACH SUCH POSITION IS ALLOCATED. THE DIFFERENTIAL HEREIN AUTHORIZED SHALL NOT APPLY AFTER JUNE 30, 1943.

3. THIS ORDER SUPERSEDES EXECUTIVE ORDER NO. 8657 OF FEBRUARY 3, 1941, ENTITLED " EXTENDING THE CLASSIFICATION ACT OF 1923, AS AMENDED, TO CERTAIN POSITIONS IN THE NAVY DEPARTMENT AND ESTABLISHING A SALARY DIFFERENTIAL THEREFOR.'

IN LINE WITH THE UNIFORM APPLICATION OF THE CLASSIFICATION ACT OF 1923, AS AMENDED, IT MUST BE CONCLUDED THAT THE ABOVE-QUOTED PROVISIONS OF THE ACT OF NOVEMBER 26, 1940, AND THE EXECUTIVE ORDER ISSUED PURSUANT THERETO, RELATE EXCLUSIVELY TO THE CLASSIFICATION OF POSITIONS, NOT TO THE QUALIFICATION OF INDIVIDUAL EMPLOYEES OR INCUMBENTS. SEE THE PROVISIONS OF THE ORIGINAL CLASSIFICATION ACT, 42 STAT. 1488, AS WELL AS TITLE II OF THE ACT OF NOVEMBER 26, 1940, IN ITS ENTIRETY, WHICH RELATE TO "OFFICES OR POSITIONS.' SEE, ALSO, 4 COMP. GEN. 239; ID. 474; ID. 493; ID. 827; 5 ID. 763; 6 ID. 530, 531; 8 ID. 496; 13 ID. 1; 17 ID. 578; 18 ID. 796; 19 ID. 160; 20 ID. 451; ID. 579. ACCORDINGLY, THE EXECUTIVE ORDER, EXTENDING THE CLASSIFICATION ACT TO THE POSITIONS INVOLVED, MUST BE INTERPRETED AND APPLIED IN THE LIGHT OF THE BASIC CONCEPT OF THE CLASSIFICATION ACT.

WITH REFERENCE TO THE QUESTION PRESENTED IN PARAGRAPH 2 OF YOUR LETTER, THE STATUTORY AUTHORITY VESTED IN THE PRESIDENT TO EXTEND THE CLASSIFICATION ACT AND TO FIX A DIFFERENTIAL RELATES TO POSITIONS "WHICH ARE LOCATED OUTSIDE THE STATES OF THE UNITED STATES AND THE DISTRICT OF COLUMBIA.' HENCE, THE PLACE FROM WHICH AN EMPLOYEE MAY BE HIRED FOR A POSITION AT ANY OF THE PLACES LISTED IN THE EXECUTIVE ORDER, SUPRA, WOULD SEEM TO HAVE NO BEARING UPON THE ALLOCATION OF THE POSITION TO WHICH THE APPOINTMENT IS MADE, OR THE FIXING OF THE EMPLOYEE'S SALARY RATE FOR THAT POSITION. ACCORDINGLY, THIS QUESTION IS ANSWERED IN THE NEGATIVE.

LIKEWISE, THE CITIZENSHIP STATUS OF AN APPOINTEE OR INCUMBENT OF THE POSITION HAS NO BEARING UPON THE ALLOCATION OF THE POSITION OR THE FIXING OF HIS SALARY RATE. THERE IS NOTHING IN THE ACT OF NOVEMBER 26, 1940, AUTHORIZING THE PRESIDENT TO FIX A DIFFERENTIAL IN SALARY FOR POSITIONS OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES TO WHICH HE HAS EXTENDED THE CLASSIFICATION ACT, WHICH WOULD PRECLUDE PAYMENT OF SUCH DIFFERENTIAL TO THE INCUMBENT OF SUCH A POSITION SOLELY BECAUSE HE IS NOT A CITIZEN OF THE UNITED STATES. THE AUTHORITY IN THE STATUTE TO FIX A DIFFERENTIAL OPERATES ONLY IN RESPECT OF THE GEOGRAPHICAL LOCATION OF THE DUTIES TO BE PERFORMED; NOT WITH RESPECT TO THE CITIZENSHIP STATUS OF THE EMPLOYEE. ACCORDINGLY, THE WORDS IN THE EXECUTIVE ORDER LIMITING ITS SCOPE "TO POSITIONS * * * FOR WHICH CITIZENS OF THE UNITED STATES ARE RECRUITED" EVIDENTLY WERE INTENDED TO EXCLUDE FROM THE OPERATION OF THE ORDER THOSE CLASSES OF POSITIONS WHICH THERETOFORE HAD BEEN FILLED GENERALLY BY THE HIRING OF NATIVES AUTHORIZED TO BE PAID ON THE BASIS OF NATIVE SCHEDULES PURSUANT TO DECISIONS OF THIS OFFICE EXCLUDING SUCH POSITIONS FROM THE PURVIEW OF THE CLASSIFICATION ACT AND OTHER GENERAL COMPENSATION STATUTES, AND TO INCLUDE ONLY THOSE CLASSES OF POSITIONS THE DUTIES OF WHICH USUALLY ARE PERFORMED BY AMERICAN CITIZENS. SEE DECISION OF JANUARY 23, 1931, 10 COMP. GEN. 322, 323, WHEREIN IT WAS STATED:

* * * WHILE SECTION 2 OF THE BROOKHART SALARY ACT, ABOVE QUOTED, IS BROAD ENOUGH TO EMBRACE ALL EMPLOYEES CARRIED UNDER GROUP 4-B, INCLUDING DRAFTING GROUPS, IN THE SCHEDULE OF WAGES FOR CIVIL EMPLOYEES UNDER THE NAVAL ESTABLISHMENTS, AND MAKES NO DISTINCTION BETWEEN DIFFERENT CLASSES OF EMPLOYEES WHO COME WITHIN SAID GROUP 4-B, NEVERTHELESS, I AM CONSTRAINED TO VIEW THE MATTER, AS YOU HAVE DONE, THAT THE CONGRESS COULD NOT HAVE INTENDED TO INCLUDE EMPLOYEES BEYOND THE CONTINENTAL LIMITS OF THE UNITED STATES THERETOFORE PAID UNDER NATIVE AND ALIEN SCHEDULES WHICH ARE NOT AT ALL COMPARABLE WITH THE SCHEDULES ESTABLISHED BY THE CLASSIFICATION ACT FOR POSITIONS IN THE DISTRICT OF COLUMBIA. THE ENTIRE BASIS OF THE CLASSIFICATION OF CIVILIAN EMPLOYEES, AND THE ESTABLISHMENT OF THE SALARY RATES PRESCRIBED BY THE CLASSIFICATION ACT,AS ORIGINALLY ENACTED AND AS AMENDED, HAVE BEEN ON THE AMERICAN STANDARD OF LIVING AND NOT ON THE STANDARDS MAINTAINED AMONG NATIVES LIVING IN THE INSULAR OR ISLAND POSSESSIONS OF THE UNITED STATES. * * *

SEE, ALSO, 13 COMP. GEN. 370 (RELATIVE TO THE 40-HOUR WEEK STATUTE); 18 ID. 206, 209 (RELATIVE TO THE HOLIDAY STATUTE); AND 20 COMP. GEN. 552 (RELATIVE TO EMPLOYMENT OF NATIVES IN CLERICAL AND STENOGRAPHIC POSITION IN THE SELECTIVE SERVICE SYSTEM IN PUERTO RICO).

THE EXECUTIVE ORDER DOES NOT SPECIFY THE CLASSES OF POSITIONS "FOR WHICH CITIZENS OF THE UNITED STATES ARE RECRUITED.' AS PREVIOUSLY STATED HEREIN, THE ACT OF NOVEMBER 26, 1940, DOES NOT VEST AUTHORITY IN THE PRESIDENT TO EXTEND THE CLASSIFICATION ACT AND TO FIX A DIFFERENTIAL IN SALARY SOLELY ON THE BASIS OF CITIZENSHIP STATUS, BUT RATHER, ON THE BASIS OF THE GEOGRAPHICAL LOCATION OF THE DUTIES TO BE PERFORMED. THE MATTER IS ONE FOR DETERMINATION ON THE BASIS OF THE DUTIES USUALLY PERFORMED BY AMERICAN CITIZENS, AND THE DUTIES USUALLY PERFORMED BY NATIVES, HAVING IN MIND, ALSO, THAT THE RECRUITING OF CITIZENS OF THE UNITED STATES TO THE POSITIONS AT THE LOCATIONS STATED IN THE EXECUTIVE ORDER IS NECESSARY IN CONNECTION WITH NATIONAL DEFENSE PROJECTS. IN THE ABSENCE OF ANY DIRECTION IN THE EXECUTIVE ORDER, IT IS PROPER TO ASSUME THAT THE MATTER IS ONE FOR DETERMINATION BY THE JOINT ACTION OF THE PARTICULAR ADMINISTRATIVE OFFICE CONCERNED--- IN THIS INSTANCE THE WAR DEPARTMENT--- AND THE CIVIL SERVICE COMMISSION BASED UPON THE CONDITIONS EXISTING AT THE VARIOUS LOCATIONS OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES MENTIONED IN THE EXECUTIVE ORDER. COMPARE 14 COMP. GEN. 70; 16 ID. 250; ID. 703; 17 ID. 537; 20 ID. 451. WHEN SUCH ACTION SHALL HAVE BEEN TAKEN, IT IS TO BE ASSUMED THAT THE CIVIL SERVICE COMMISSION WILL REFRAIN FROM TAKING ANY CLASSIFICATION ACTION UPON POSITIONS THE DUTIES OF WHICH ARE TO BE PERFORMED BY NATIVES, AND THE SALARIES OF WHICH ARE AUTHORIZED TO BE PAID UNDER NATIVE SCHEDULES, AND THAT THE COMMISSION WILL LIMIT ITS ALLOCATION OF POSITIONS TO THOSE WHICH HAVE BEEN DETERMINED BY SUCH JOINT ACTION TO BE "POSITIONS * * * FOR WHICH CITIZENS OF THE UNITED STATES ARE RECRUITED.' AS TO ANY POSITION DETERMINED BY SUCH JOINT ACTION TO BE IN THIS CLASS AND WHICH HAS BEEN ALLOCATED BY THE CIVIL SERVICE COMMISSION TO A GRADE PRESCRIBED BY THE CLASSIFICATION ACT, THE FILLING OF THE POSITION BY A NONCITIZEN, OTHERWISE QUALIFIED, WOULD NOT HAVE THE EFFECT OF EXCLUDING THE POSITION FROM THE REQUIREMENTS CONTAINED IN THE PROVISIONS OF EXECUTIVE ORDER 8955. ACCORDINGLY, THIS OFFICE IS UNABLE TO CONFIRM THE VIEWS EXPRESSED IN PARAGRAPH 3 OF YOUR LETTER.

AS TO THE QUESTIONS PRESENTED IN PARAGRAPH 4, THE DIFFERENTIAL IS PAYABLE TO THE INCUMBENT OF A POSITION WHICH HAS BEEN DETERMINED TO BE ONE "FOR WHICH CITIZENS OF THE UNITED STATES ARE ECRUITED" AND WHICH HAS BEEN PROPERLY ALLOCATED TO A GRADE BY THE CIVIL SERVICE COMMISSION, REGARDLESS OF WHETHER THE INCUMBENT BE A CITIZEN OR NONCITIZEN, IF OTHERWISE QUALIFIED. ANY QUESTION INVOLVING THE COMPETITIVE CLASSIFIED CIVIL SERVICE STATUS OF THE INCUMBENT IS NOT FOR DETERMINATION BY THIS OFFICE. THE ALLOCATION OF A POSITION ONCE MADE AND PAYMENT OF THE AUTHORIZED DIFFERENTIAL IN THAT GRADE AS REQUIRED BY THE EXECUTIVE ORDER ARE NOT AFFECTED BY THE CITIZENSHIP STATUS OF AN INDIVIDUAL INCUMBENT.

IN DECISION OF AUGUST 22, 1939, 19 COMP. GEN. 237, 245, IT WAS STATED, IN PERTINENT PART, AS FOLLOWS:

(O) THE RULE OF LONG STANDING HAS BEEN THAT THE CHANGE IN CLASSIFICATION GRADE AND COMPENSATION RATE PURSUANT TO THE REALLOCATION OF A POSITION APPROVED BY THE CIVIL SERVICE COMMISSION IS EFFECTIVE FROM THE BEGINNING OF THE PAY PERIOD CURRENT WHEN THE NOTICE OF THE APPROVAL OF THE REALLOCATION BY THE CIVIL SERVICE COMMISSION IS RECEIVED IN THE ADMINISTRATIVE OFFICE. 4 COMP. GEN. 280; ID. 395; 5 ID. 202; 6 ID. 202; ID. 355; ID. 530; 8 ID. 40; 9 ID. 128; 10 ID. 284; 11 ID. 395; AND 18 ID. 794. * * *

REFERENCE TO THE DECISIONS CITED IN THE ABOVE-QUOTED DECISION WILL SHOW THAT THE RULE HAS BEEN APPLIED TO THE FIRST ALLOCATION OF POSITIONS PREVIOUSLY OCCUPIED BUT NOT THERETOFORE REQUIRED TO BE ALLOCATED AS WELL AS TO THE REALLOCATION OF POSITIONS. NO REASON IS PERCEIVED WHY THE SAME GENERAL RULE SHOULD NOT BE APPLIED TO THE ALLOCATION OR REALLOCATION OF POSITIONS COMING WITHIN THE PURVIEW OF EXECUTIVE ORDER 8955, INCLUDING THE EFFECTIVE DATE OF THE DIFFERENTIAL BASED ON THE MINIMUM SALARY RATE OF THE GRADE RESULTING FROM SUCH ALLOCATION OR REALLOCATION. THE GENERAL RULE HAS BEEN STATED THAT A NEW POSITION, AS DISTINGUISHED FROM AN IDENTICAL ADDITIONAL POSITION WHICH DOES NOT REQUIRE ALLOCATION ACTION BY THE CIVIL SERVICE COMMISSION, SHOULD BE ALLOCATED PRIOR TO APPOINTMENT IN ORDER TO DETERMINE THE LEGAL SALARY RATE PAYABLE. 4 COMP. GEN. 827; 5 ID. 202. HOWEVER, THIS OFFICE RECOGNIZES THAT DURING THE PRESENT WAR EMERGENCY WHEN THE FORCE OF CIVILIAN EMPLOYEES SUBJECT TO THE CLASSIFICATION ACT HAS BEEN GREATLY EXPANDED AND NUMEROUS NEW POSITIONS ARE REQUIRED TO BE CREATED, THE POSITIONS MUST BE FILLED PROMPTLY, IN MANY CASES PRIOR TO FINAL ALLOCATION ACTION BY THE CIVIL SERVICE COMMISSION. IN SUCH CASES, IF THE DELAY BE SHORT, NO PAYMENT OF SALARY SHOULD BE MADE UNTIL THE SALARY RATE LEGALLY PAYABLE BASED ON THE ALLOCATION OF THE POSITION SHALL HAVE BEEN DETERMINED. OF COURSE, IT SHOULD BE BORNE IN MIND THAT IDENTICAL ADDITIONAL POSITIONS, HAVING IDENTICAL DUTIES AND RESPONSIBILITIES AS POSITIONS ALREADY ALLOCATED BY THE COMMISSION, DO NOT REQUIRE ALLOCATION ACTION. 9 COMP. GEN. 101; 11 ID. 321. ALSO, IN THE INSTANT MATTER, WHERE DISTANCE AND OTHER CONSIDERATIONS INVOLVED MAY DELAY FINAL ALLOCATION ACTION BY THE CIVIL SERVICE COMMISSION FOR AN EXTENDED PERIOD, IN ORDER THAT THE EMPLOYEES AFFECTED MAY NOT BE WITHOUT INCOME FOR SUBSISTING PURPOSES, THIS OFFICE WILL NOT OBJECT TO THE FIXING OF A TENTATIVE SALARY RATE BY ADMINISTRATIVE ACTION FOR NEW UNALLOCATED POSITIONS, AS DISTINGUISHED FROM IDENTICAL ADDITIONAL POSITIONS, AS NEARLY AS MAY BE ADMINISTRATIVELY DETERMINED TO BE IN THE PROPER GRADE, WHICH SALARY RATE MAY BE PAID PENDING THE FINAL ALLOCATION ACTION OF THE CIVIL SERVICE COMMISSION, SUBJECT TO PROPER ADJUSTMENT WHEN NOTICE OF THE ALLOCATION OF THE POSITION BY THE CIVIL SERVICE COMMISSION SHALL HAVE BEEN RECEIVED IN THE ADMINISTRATIVE OFFICE. REFERRING TO THE ILLUSTRATION STATED IN THE FIRST SENTENCE OF PARAGRAPH 5, AND ASSUMING THAT THE APPOINTMENT OF FEBRUARY 11, 1942, FIXED THE RATE OF COMPENSATION TO BE PAID INITIALLY, THE DIFFERENTIALS WOULD BE PAYABLE FROM THE BEGINNING OF THE PAY PERIOD CURRENT WHEN NOTICE OF THE ALLOCATION APPROVAL BY THE CIVIL SERVICE COMMISSION ON MARCH 25, 1942, WAS RECEIVED IN THE WAR DEPARTMENT. THE OTHER QUESTIONS IN THIS PARAGRAPH HAVE BEEN ANSWERED ABOVE.

THE ANSWER TO THE QUESTIONS IN PARAGRAPH 5 ANSWERS, ALSO, THE QUESTION PRESENTED IN PARAGRAPH 6. THAT IS TO SAY, THE EMPLOYEE WOULD NOT HAVE A CLAIM FOR THE DIFFERENTIAL FROM THE DATE OF THE EXECUTIVE ORDER, BUT FROM THE BEGINNING OF THE PAY PERIOD CURRENT WHEN NOTICE OF THE ALLOCATION OF THE POSITION BY THE CIVIL SERVICE COMMISSION WAS RECEIVED IN THE WAR DEPARTMENT.

IN ANSWER TO THE QUESTION PRESENTED IN PARAGRAPH 7, IF A POSITION IS DETERMINED BY THE JOINT ACTION OF THE CIVIL SERVICE COMMISSION AND THE ADMINISTRATIVE OFFICE NOT TO BE OF A CLASS "FOR WHICH CITIZENS OF THE UNITED STATES ARE RECRUITED" AND THE EMPLOYEE IS PROPERLY PAID ON THE BASIS OF A NATIVE SCHEDULE ADMINISTRATIVELY ADOPTED, NO DIFFERENTIAL WOULD BE PAYABLE TO THE INCUMBENT OF SUCH POSITION, REGARDLESS OF WHETHER HE BE A NATIVE OR AN AMERICAN CITIZEN.

IF IN THE CASE REFERRED TO IN PARAGRAPH 8 THE POSITION HAS BEEN ALLOCATED BY THE CIVIL SERVICE COMMISSION, THE SALARY RATE OF THE INCUMBENT, INCLUDING THE DIFFERENTIAL, SHOULD BE COMPUTED ON THE BASIS OF UNITED STATES CURRENCY AND ANY PAYMENTS IN NEWFOUNDLAND CURRENCY SHOULD BE THE EQUIVALENT IN AMERICAN CURRENCY. THE MERE FACT THAT THE EMPLOYEES MAY BE PAID IN NEWFOUNDLAND CURRENCY WOULD NOT FORFEIT HIS RIGHT TO THE DIFFERENTIAL.

IN DECISION OF NOVEMBER 22, 1941, 21 COMP. GEN. 478, IT WAS HELD AS FOLLOWS (QUOTING FROM THE SYLLABUS):

THE GRANTING UNDER AUTHORITY OF SECTION 15 OF THE FEDERAL HIGHWAY ACT OF 1940 OF A PERCENTAGE DIFFERENTIAL OF THE BASE PAY INCIDENT TO THE ASSIGNMENT OF AN EMPLOYEE FROM THE CONTINENTAL UNITED STATES FOR ENGINEERING SERVICES OUTSIDE THE CONTINENTAL UNITED STATES IS NOT AN "EQUIVALENT INCREASE IN COMPENSATION" WITHIN THE MEANING OF SECTION 2 OF THE UNIFORM WITHIN-GRADE SALARY-ADVANCEMENT STATUTE OF AUGUST 1, 1941, AND DOES NOT AFFECT THE EMPLOYEE'S ELIGIBILITY TO A WITHIN-GRADE SALARY- ADVANCEMENT UNDER THE LATTER ACT. DECISION B-20925, OCTOBER 27, 1941, 21 COMP. GEN. 369, DISTINGUISHED.

IN LINE WITH SAID DECISION THE "WAITING PERIOD" IN THE CASE ILLUSTRATED IN PARAGRAPH 9 OF YOUR LETTER WOULD BE COMPUTED FROM OCTOBER 1, 1941.