B-167510, AUG. 21, 1969

B-167510, AUG. 21, 1969

CIVIL PAY - COMPENSATION - FILIPINO - NONCITIZEN AT WAGE RATES DECISION DISALLOWING CLAIM FOR DIFFERENCE BETWEEN PHILIPPINE PESOS AND U.S. DOLLARS FOR WAGES INCIDENT TO WORK WITH NAVAL INSTALLATION. EMPLOYEE WHO WAS EMPLOYED AS NONCITIZEN AT WAGE RATES APPLICABLE TO NONCITIZENS AND WHO DID NOT PROTEST DETERMINATION MAY NOT BE ALLOWED HIGHER COMPENSATION RATE APPLICABLE TO CITIZENS.

TO MR. MATHEW RAZO:

YOUR LETTER OF JUNE 26, 1969, WITH ENCLOSURES, REQUESTS RECONSIDERATION OF YOUR CLAIM FOR THE DIFFERENCE BETWEEN PHILIPPINE PESOS AND AMERICAN DOLLARS FOR WAGES COVERING THE PERIOD JULY 1958 TO SEPTEMBER 1967 WHICH WAS DISALLOWED BY OUR SETTLEMENT CERTIFICATE DATED APRIL 9, 1969.

YOUR CLAIM AS PRESENTED TO US IN YOUR LETTERS OF FEBRUARY 6 AND SEPTEMBER 4, 1968, IS BASED UPON THE FACTS AND CIRCUMSTANCES (1) THAT ON OCTOBER 1, 1946, YOU ACQUIRED THE STATUS OF A NATURALIZED UNITED STATES CITIZEN BY CERTIFICATE OF NATURALIZATION NO. OM-29862, BUT (2) THAT ON APRIL 5, 1956, YOU WERE INFORMED THAT THE UNITED STATES DEPARTMENT OF STATE HAD APPROVED THE CERTIFICATE OF LOSS OF NATIONALITY WHICH WAS EXECUTED IN YOUR CASE ON FEBRUARY 27, 1956, AND (3) THAT THE CERTIFICATE OF LOSS OF NATIONALITY WAS NOT VOIDED BY THE UNITED STATES EMBASSY AT MANILA UNTIL DECEMBER 22, 1965, BASED ON THE SUPREME COURT'S DECISION OF MAY 18, 1964, IN THE CASE OF SCHNEIDER V RUSK, 377 U.S. 163. FURTHER, ON DECEMBER 22, 1965, YOU WERE INFORMED BY THE EMBASSY "IF YOU DESIRE TO VERIFY YOUR CONTINUED UNITED STATES CITIZENSHIP, TO RECEIVE A UNITED STATES PASSPORT, TO REGISTER AS A UNITED STATES CITIZEN, OR TO OBTAIN ANY INFORMATION CONCERNING POSSIBLE DERIVATIVE CITIZENSHIP, PLEASE FILL OUT AND SIGN THE ENCLOSED FORM C-39 AND RETURN IT TO THE EMBASSY.' IT APPEARS THAT NOT UNTIL JUNE 14, 1967, DID YOU REQUEST FURTHER INFORMATION FROM THE EMBASSY CONCERNING YOUR NATURALIZATION CERTIFICATE, WHICH WAS DELIVERED TO YOU BY THE EMBASSY'S LETTER OF AUGUST 9, 1967.

THE RECORD SHOWS THAT WHEN YOU WERE EMPLOYED ON JULY 1, 1958, THE UNITED STATES NAVAL INSTALLATION WAS NOT AWARE THAT YOU HAD ANY STATUS AS A UNITED STATES CITIZEN. YOU WERE, THEREFORE, HIRED AS A NONCITIZEN. YOU DID NOT BRING IN PROOF OF YOUR CITIZENSHIP UNTIL AFTER YOUR SEPARATION FROM SERVICE ON SEPTEMBER 22, 1967.

PRIOR THERETO YOU WERE INFORMED BY THE NAVY DEPARTMENT ON AUGUST 31, 1966, THAT YOUR PAY RATE COULD BE CORRECTED ONLY UPON PROOF OF CITIZENSHIP AND THAT SUCH ACTION CANNOT BE MADE RETROACTIVELY. THE INDUSTRIAL RELATIONS OFFICE FURTHER INFORMED YOU ON DECEMBER 14, 1967, AS FOLLOWS:

"THE U.S. CIVIL SERVICE COMMISSION HAS DETERMINED THAT AT THE TIME AN EMPLOYEE IN A CLASSIFICATION ACT POSITION SUBMITS PROOF OF U.S. CITIZENSHIP HE WILL RECEIVE PAY IN DOLLARS FROM THAT DATE ON. IN NO CASE WILL PAYMENT BE MADE RETROACTIVE.

"SINCE YOU DID NOT SUBMIT PROOF OF U.S. CITIZENSHIP AT THE TIME YOU WERE EMPLOYED, WE ARE UNABLE TO HONOR YOUR REQUEST. YOUR CASE IS CONSIDERED CLOSED. THEREFORE, FURTHER APPEAL ON THE SAME WILL NO LONGER BE ENTERTAINED.' ON MARCH 13, 1968, THAT OFFICE AGAIN ASKED YOU TO BRING YOUR CERTIFICATE OF NATURALIZATION TO THAT OFFICE, AND ADVISED YOU THAT PAYMENT OF UNITED STATES CITIZEN RATE MAY NOT BE MADE RETROACTIVE.

IN CASES SUCH AS YOURS 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, WHICH RATE HAS BEEN ACCEPTED BY THE APPOINTEE UNTIL ON OR AFTER THE DATE HE IS SEPARATED FROM SERVICE.

THERE IS NOTHING IN THE RECORD BEFORE US SHOWING THAT DURING THE PERIOD FROM JULY 1, 1958, TO SEPTEMBER 22, 1967, YOU HAD PROTESTED THE DETERMINATION MADE AT THE TIME OF YOUR APPOINTMENT TO HIRE YOU AT THE RATE APPLICABLE TO NONCITIZENS BASED UPON YOUR APPLICATION FOR EMPLOYMENT AS A NONCITIZEN.

IN THE CIRCUMSTANCES, THE SETTLEMENT OF APRIL 9, 1969, WHICH DISALLOWED YOUR CLAIM IS SUSTAINED.