B-165552, NOV. 12, 1970

B-165552, NOV. 12, 1970

COMPENSATION - RATES - NONCITIZENS REAFFIRMING DECISION OF DECEMBER 2, 1968, SUSTAINING DISALLOWANCE OF CLAIM FOR DIFFERENCE IN COMPENSATION PAID U.S. CITIZENS AND RATE PAID NONCITIZENS. EMPLOYEE WHO OBTAINED POSITION BY STATEMENTS AS TO NONCITIZENSHIP WHEN THE AGENCY MIGHT NOT HAVE EMPLOYED THE APPOINTEE EXCEPT FOR SUCH STATEMENTS SHOULD BAR THE APPOINTEE FROM CLAIMING COMPENSATION ABOVE THE RATE PAID BY THE AGENCY IN GOOD FAITH. SINCE NOTHING SHOWS INDIVIDUAL PROTESTED PAYMENT OF THE NONCITIZEN RATE OF PAY, DENIAL OF CLAIM MUST BE SUSTAINED.

TO MR. MAX ABRAMS: ESQUIRE

REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 2, 1970, REQUESTING ON BEHALF OF MRS. MAE A. CRUZ A REVIEW OF THE DISALLOWANCE OF HER CLAIM, AS AN EMPLOYEE OF THE DEPARTMENT OF THE NAVY, UNITED STATES NAVAL STATION, SUBIC BAY, PHILIPPINES, FOR THE DIFFERENCE IN COMPENSATION BETWEEN THE RATE PAID UNITED STATES CITIZENS UNDER THE CLASSIFICATION ACT AND THE RATE PAID NONCITIZENS DURING THE PERIOD OCTOBER 7, 1955, TO JULY 21, 1967.

IN OUR DECISION OF DECEMBER 2, 1968, B-165552, SUSTAINING GENERAL ACCOUNTING OFFICE SETTLEMENT DATED SEPTEMBER 30, 1968, WE ADVISED MRS. CRUZ OF THE REASONS UNDERLYING THE DISALLOWANCE OF HER CLAIM. A COPY OF THAT LETTER IS ENCLOSED. IN GENERAL THE CLAIM WAS DISALLOWED BECAUSE MRS. CRUZ HAD ON SEVERAL OCCASIONS RESPONDED NEGATIVELY TO THE QUESTION OF HER CITIZENSHIP AND HAD ACCEPTED THE LOWER PAY OF A NONCITIZEN FOR A NUMBER OF YEARS WITHOUT ESTABLISHING HER CITIZENSHIP. YOU ADVISE THAT THE NEGATIVE REPLIES AS TO HER CITIZENSHIP ON CERTAIN APPLICATION FORMS WERE DUE TO THE FACT THAT, AT THE TIME, MRS. CRUZ WAS UNDER THE IMPRESSION THAT HER CITIZENSHIP HAD BEEN TAKEN AWAY AS A CONSEQUENCE OF HER VOTING IN A FOREIGN ELECTION IN OR AROUND 1961. YOU STATE YOUR UNDERSTANDING TO BE THAT THE LAW PROVIDING HER SUCH ALIENATION WAS SUBSEQUENTLY INVALIDATED AND IN 1967 MRS. CRUZ WAS CONSIDERED A CITIZEN BY THE UNITED STATES EMBASSY IN THE PHILIPPINES. YOU EXPRESS THE VIEW THAT MRS. CRUZ SHOULD NOT BE PENALIZED UNDER SUCH CIRCUMSTANCES.

SUBSECTION 349(A)(5) OF THE IMMIGRATION AND NATIONALITY ACT, APPROVED JUNE 27, 1952, 66 STAT. 163, 268, 8 U.S.C. 1481(A)(5), PROVIDES, IN PART, THAT A PERSON WHO IS A NATIONAL OF THE UNITED STATES, WHETHER BY BIRTH OR NATURALIZATION, SHALL LOSE HIS NATIONALITY BY VOTING IN A POLITICAL ELECTION IN A FOREIGN STATE. THE SUPREME COURT OF THE UNITED STATES SUBSEQUENTLY HELD THAT THE CONGRESS HAS NO POWER TO TAKE AWAY A PERSON'S CITIZENSHIP BECAUSE HE VOTED IN A FOREIGN ELECTION. AFROYIM V RUSK, 387 U.S. 253 (1967).

THE RECORD INDICATES THAT THE AMERICAN EMBASSY IN THE PHILIPPINES BY LETTER DATED JULY 17, 1967, ADVISED THE NAVY THAT MRS. CRUZ WAS AN AMERICAN CITIZEN. HER APPOINTMENT WAS CONVERTED TO OVERSEAS LIMITED EFFECTIVE JULY 21, 1967. ALTHOUGH FROM YOUR LETTER IT WOULD APPEAR THAT THE APPOINTMENT CONVERSION STEMMED FROM THE CITED COURT DECISION, OUR RECORDS DO NOT OTHERWISE SHOW THAT TO BE THE CASE. IN ANY EVENT, WHETHER THE EFFECTIVE DATE OF THE CONVERSION SHOULD HAVE BEEN MADE RETROACTIVE IS NOT AFFECTED.

IN CASES SUCH AS THE INSTANT CASE THE CIVIL SERVICE COMMISSION AND THIS OFFICE HAVE CONCLUDED THAT THE OBTAINING OF A POSITION BY ANY STATEMENTS AS TO NONCITIZENSHIP ON THE PART OF THE APPOINTEE--WHEN THE AGENCY MIGHT NOT HAVE EMPLOYED THE APPOINTEE EXCEPT FOR THE STATEMENTS- SHOULD BAR THE APPOINTEE FROM CLAIMING COMPENSATION ABOVE THE RATE PAID BY THE AGENCY IN GOOD FAITH. SEE B-167510, AUGUST 21, 1969, COPY ENCLOSED.

IN VIEW OF THE ABOVE AND SINCE THERE IS NOTHING IN THE RECORD TO SHOW THAT MRS. CRUZ HAD PROTESTED THE PAYMENT TO HER OF THE NONCITIZEN RATE OF PAY (EVEN FOR SEVERAL YEARS PRIOR TO 1961 DURING WHICH PERIOD MRS. CRUZ APPARENTLY HAD NO REASON TO BELIEVE THERE WAS ANY QUESTION AS TO HER CITIZENSHIP), WE HAVE NO ALTERNATIVE BUT TO ADVISE THAT THERE IS NO PROPER BASIS FOR DISTURBING THE PREVIOUS ACTION ON MRS. CRUZ'S CLAIM.