B-152180, DEC. 26, 1963

B-152180, DEC. 26, 1963

TO MR. LIONEL A PETTY:

YOUR LETTER OF JULY 22, 1963, REQUESTS RECONSIDERATION OF OUR SETTLEMENT OF JULY 8, 1963, WHICH DISALLOWED YOUR CLAIM FOR AN ADJUSTMENT IN SALARY AS AN EMPLOYEE OF THE DEPARTMENT OF THE AIR FORCE, PURCHASING CENTER, LONDON, ENGLAND, FOR THE PERIOD FROM SEPTEMBER 1961 TO NOVEMBER 1962.

YOUR CLAIM WAS DISALLOWED BECAUSE YOU WERE HIRED AS A NON-UNITED STATES CITIZEN IN A LOCAL WAGE RATE POSITION. THE INFORMATION AVAILABLE SHOWS THAT YOU WERE BORN IN ENGLAND, MIGRATED TO THE UNITED STATES AND BECAME A NATURALIZED CITIZEN OF THAT COUNTRY ON NOVEMBER 3, 1959, IN THE U.S. DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA.

AFTER YOUR RETURN TO ENGLAND AND A PERIOD OF PRIVATE EMPLOYMENT YOU APPLIED FOR AN APPOINTMENT TO THE POSITION PROCUREMENT AGENT, GRADE GS 9, WITH THE UNITED STATES AIR FORCE FOR WHICH POSITION YOU WERE ELIGIBLE TO BE CONSIDERED BY VIRTUE OF HAVING PASSED A UNITED STATES CIVIL SERVICE EXAMINATION. NO AMERICAN RATE POSITION WAS OPEN AT THE TIME AND YOU WERE INFORMED BY THE CONSOLIDATED INDUSTRIAL RELATIONS OFFICE, UNDER THE UNITED STATES NAVY, THAT SINCE YOU WERE AN AMERICAN CITIZEN YOU COULD NOT BE GIVEN A LOCAL RATE EQUIVALENT POSITION. SHORTLY AFTER, YOU WERE OFFERED A POSITION OF ACCOUNTS CLERK, GRADE GS 5, WHICH YOU WERE ABOUT TO ACCEPT AND REPORT FOR DUTY TWO WEEKS HENCE.

DURING THE INTERIM YOU WERE REQUESTED TO VISIT THE INDUSTRIAL RELATIONS OFFICE FOR AN INTERVIEW CONCERNING YOUR INITIAL APPLICATION. AT THAT TIME YOU WERE INFORMED THAT FURTHER INVESTIGATION WITH THE BRITISH HOME OFFICE DISCLOSED THAT THE BRITISH GOVERNMENT REGARDED YOU AS A DUAL NATIONAL HAVING CITIZENSHIP STATUS BOTH AS AN AMERICAN AND A SUBJECT OF GREAT BRITAIN.

ON THE BASIS OF YOUR BRITISH CITIZENSHIP THE INDUSTRIAL RELATIONS OFFICE CONCLUDED THAT YOU WERE ELIGIBLE FOR APPOINTMENT TO A LOCAL RATE POSITION AND TENDERED YOU AN OFFER OF APPOINTMENT TO SUCH A POSITION IN THE PROCUREMENT AREA IN WHICH YOU WERE INTERESTED. ON SEPTEMBER 5, 1961, YOU ACCEPTED THE APPOINTMENT TO THE LOCAL RATE POSITION, NOTWITHSTANDING THAT THE SALARY OFFERED, $3,736, WAS LESS THAN THAT REQUIRED FOR THE GRADE GS-5 POSITION, $4,345, WHICH HAD BEEN TENDERED YOU.

IN AUGUST 1962, IT APPARENTLY BECAME NECESSARY TO ESTABLISH A GRADE GS-9 POSITION IN LIEU OF THE LOCAL RATE POSITION HELD BY YOU AND YOU WERE INFORMED THAT THE CLASSIFIED POSITION MUST BE FILLED COMPETITIVELY WITHIN THE EUROPEAN THEATER. WHILE YOU FILED YOUR APPLICATION, THE POSITION WAS FILLED BY SOMEONE WITH GREATER ELIGIBILITY AND YOUR LOCAL RATE POSITION WAS ABOLISHED. ACCORDINGLY, YOUR SERVICES WERE TERMINATED.

YOU NOW CLAIM THE DIFFERENCE BETWEEN THE LAWFUL RATE FOR THE GRADE GS-9 POSITION AND THE LOCAL RATE RECEIVED BY YOU IN THE POSITION WHICH YOU OCCUPIED DURING THE PERIOD OF YOUR EMPLOYMENT. YOUR CLAIM IS PREDICATED UPON THE PROPOSITION THAT AS AN AMERICAN CITIZEN YOU WERE NOT ELIGIBLE FOR APPOINTMENT TO A POSITION OTHER THAN AN AMERICAN RATE POSITION UNDER THE CLASSIFICATION ACT OF 1949, AS AMENDED, 5 U.S.C. 1071. YOU REFER TO B- 144081, DATED MARCH 16, 1961. THAT DECISION IS NOT A DUAL CITIZENSHIP CASE AND IS NOT CONTROLLING HERE.

SECTION 202 OF THE CLASSIFICATION ACT OF 1949, READS IN PERTINENT PART, AS FOLLOWS:

"THIS ACT * * * SHALL NOT APPLY TO---

"/11) ALIENS OR PERSONS NOT CITIZENS OF THE UNITED STATES WHO OCCUPY POSITIONS OUTSIDE THE SEVERAL STATES AND THE DISTRICT OF COLUMBIA; "

SECTION 203 OF THE ACT PROVIDES:

"THE CIVIL SERVICE COMMISSION, HEREINAFTER REFERRED TO AS THE "COMMISSION," IS AUTHORIZED AND DIRECTED TO DETERMINE FINALLY THE APPLICABILITY OF SECTIONS 201 AND 202 TO SPECIFIC POSITIONS, OFFICERS, AND EMPLOYEES.'

THE QUESTION OF WHETHER AN AMERICAN CITIZEN WHO ALSO IS A BRITISH CITIZEN, IS ELIGIBLE FOR APPOINTMENT TO A LOCAL RATE POSITION HERETOFORE HAD NOT BEEN THE SUBJECT OF A RULING BY THE COMMISSION. THEREFORE, FOR FUTURE GUIDANCE THE QUESTION ARISING IN YOUR CASE WAS REFERRED TO THAT BODY FOR A RULING. THE COMMISSION, BY LETTER OF NOVEMBER 5, 1963, INFORMED US THAT AN AMERICAN CITIZEN REGARDLESS OF ANY QUESTION OF DUAL NATIONALITY MAY NEITHER BE TENDERED NOR ACCEPT A LOCAL RATE POSITION. THE COMMISSION POINTS OUT, HOWEVER, THAT ITS RULING IS NOT REQUIRED TO BE RETROACTIVELY APPLIED AND THAT ORDINARILY THE ADJUSTMENT ACTION WOULD BE PROSPECTIVE.

OUR OPINION IS THAT IN THE CIRCUMSTANCES OF YOUR CASE, SET OUT ABOVE, WE WOULD NOT BE WARRANTED IN GIVING A RETROACTIVE OPERATION TO THE COMMISSION'S DETERMINATION. THE AGENCY ACTED IN GOOD FAITH, AND YOU ACCEPTED THE POSITION WITH FULL KNOWLEDGE OF THE RATE OF PAY YOU WOULD EARN BASED ON YOUR BEING A BRITISH CITIZEN. WE HOLD THAT YOU ARE ESTOPPED FROM ASSERTING A VALID CLAIM FOR WAGES UNDER THE CLASSIFICATION ACT FOR THE PERIOD IN QUESTION.