B-140146, JUL. 23, 1959

B-140146: Jul 23, 1959

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YOUR CLAIM WAS DISALLOWED BECAUSE THE RECORD SHOWS THAT THE POSITION YOU OCCUPIED AS FIREFIGHTER WAS ESTABLISHED FOR NON-AMERICAN CITIZENS. THAT YOU WOULD NOT HAVE BEEN ELIGIBLE FOR THE POSITION AS AN AMERICAN CITIZEN. WAS APPROVED DECEMBER 12. THAT DUE TO BUDGETARY AND STATUTORY CEILING LIMITATIONS YOU WERE SEPARATED ON DECEMBER 13. YOU CONTEND THAT YOU WERE AN AMERICAN CITIZEN AND SHOULD HAVE BEEN SUBJECT TO THE CLASSIFICATION ACT SCHEDULES OF COMPENSATION. WE UNDERSTAND THAT UNDER THAT PROVISION 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-140146, JUL. 23, 1959

TO MR. GEORGE P. OVERLY:

YOUR LETTER OF JUNE 9, 1959, REQUESTS RECONSIDERATION OF OUR OFFICE SETTLEMENT OF APRIL 30, 1959, WHICH DISALLOWED YOUR CLAIM FOR ADDITIONAL COMPENSATION BELIEVED TO BE DUE YOU INCIDENT TO YOUR EMPLOYMENT WITH THE DEPARTMENT OF THE NAVY, NAVAL STATION, SANGLEY POINT, PHILIPPINE ISLANDS.

YOUR CLAIM WAS DISALLOWED BECAUSE THE RECORD SHOWS THAT THE POSITION YOU OCCUPIED AS FIREFIGHTER WAS ESTABLISHED FOR NON-AMERICAN CITIZENS; THAT YOU WOULD NOT HAVE BEEN ELIGIBLE FOR THE POSITION AS AN AMERICAN CITIZEN; THAT AFTER YOU PRESENTED EVIDENCE ON APRIL 23, 1958, TO SHOW THAT YOU ACQUIRED CITIZENSHIP ON AUGUST 21, 1956, ACTION TO PLACE YOU IN A POSITION, BUT NOT RETROACTIVELY, SUBJECT TO THE CLASSIFICATION ACT OF 1949, AS AMENDED, WAS APPROVED DECEMBER 12, 1958, TO BECOME EFFECTIVE ON DECEMBER 14, 1958; THAT DUE TO BUDGETARY AND STATUTORY CEILING LIMITATIONS YOU WERE SEPARATED ON DECEMBER 13, 1958, WHICH BECAME EFFECTIVE PRIOR TO ADMINISTRATIVE ACTION TO PLACE YOU IN A POSITION UNDER THE CLASSIFICATION ACT OF 1949.

YOU CONTEND THAT YOU WERE AN AMERICAN CITIZEN AND SHOULD HAVE BEEN SUBJECT TO THE CLASSIFICATION ACT SCHEDULES OF COMPENSATION. 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 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.

IT WAS OBVIOUS TO YOU WHEN YOU FIRST WERE EMPLOYED THAT THE POSITION TO BE OCCUPIED WAS ONE OF THOSE ESTABLISHED IN THE NATIVE RATE. MOREOVER, THERE WAS NO OBLIGATION ON THE PART OF THE DEPARTMENT OF THE NAVY TO CREATE AN ADDITIONAL POSITION UNDER THE CLASSIFICATION ACT IN ORDER TO RETAIN YOU ON THE ROLLS AFTER YOU HAD ESTABLISHED YOUR CITIZENSHIP. PRESUMABLY, SUCH AN ACTION WOULD HAVE BEEN PRECLUDED BECAUSE OF THE LIMITATION OF FUNDS EVEN IF IT HAD BEEN DESIRABLE.

UNDER THE CIRCUMSTANCES WE MUST SUSTAIN THE ACTION IN OUR SETTLEMENT OF APRIL 30, 1959, IN DENYING ADDITIONAL COMPENSATION TO YOU DURING THE PERIOD IN QUESTION.