B-114329, B-124299, NOV. 2, 1956

B-114329, B-124299, NOV. 2, 1956

TO WACHTEL, WIENER AND ROSS:

REFERENCE IS MADE TO YOUR LETTER OF MAY 25, 1956, REQUESTING RECONSIDERATION OF OUR DECISION OF MARCH 6, 1956, CONCERNING THE CLAIM OF RADIO TELEVISION TRAINING ASSOCIATION, INC., FOR PAYMENT OF ADMINISTRATIVE ALLOWANCES ALLEGED TO BE DUE UNDER THE VETERANS' READJUSTMENT ASSISTANT ACT OF 1952, PUBLIC LAW 550, 82D CONGRESS, 66 STAT. 663, 38 U.S.C. 975, WHICH HAS BEEN IN ABEYANCE PURSUANT TO YOUR LETTER OF AUGUST 7, 1956.

IN OUR DECISION OF MARCH 6, 1956, IT WAS DETERMINED THAT OUR OFFICE WOULD NOT BE WARRANTED IN HOLDING THAT THE APPLICABLE ADMINISTRATIVE REGULATION, 38 C.F.R. 21.2303 (C) (3), WHICH EXPRESSLY PRECLUDES PAYMENT OF ADMINISTRATIVE ALLOWANCES UNDER SECTION 265 (B) OF THE 1952 ACT TO CORRESPONDENCE SCHOOLS WAS SO CLEARLY INCONSISTENT WITH THE ACT AS TO BE INVALID AND THAT, THEREFORE, CERTIFICATION OF THE CLAIM WAS NOT JUSTIFIED.

IT IS URGED IN YOUR LETTER OF MAY 25, 1956, THAT THE POSITION TAKEN BY THE VETERANS ADMINISTRATION FRUSTRATES THE LEGISLATIVE PURPOSES AND RESULTS IN UNLAWFUL DISCRIMINATION AGAINST RTTA CONTRARY TO THE INTENT OF CONGRESS. IN SUPPORT OF YOUR CONTENTIONS YOU POINT OUT THAT SECTION 265 (B) OF THE 1952 ACT DIRECTED THAT "THE ADMINISTRATOR SHALL PAY TO EACH EDUCATIONAL INSTITUTION WHICH IS REQUIRED TO SUBMIT REPORTS * * * AN ALLOWANCE AT THE RATE OF $1.50 PER MONTH FOR EACH ELIGIBLE VETERAN ENROLLED IN AND ATTENDING SUCH INSTITUTION UNDER THE PROVISIONS OF THIS TITLE TO ASSIST THE EDUCATIONAL INSTITUTION IN DEFRAYING THE EXPENSE OF PREPARING AND SUBMITTING SUCH REPORTS AND CERTIFICATIONS.' YOU CONTEND THAT IF SECTION 265 (B) MEANS WHAT THE VETERANS ADMINISTRATION HAS CONSTRUED IT TO MEAN BY ITS INTERPRETATIVE REGULATION, 38 C.F.R. 21.2303 (C) (3), THEN ITS REGULATION IS A VALID EXERCISE OF THE REGULATORY AUTHORITY SET FORTH IN SECTION 261 (A) OF THE ACT. BY THE SAME TOKEN, HOWEVER, YOU CONTEND THAT "IF SUCH INTERPRETATION IS INCORRECT, THEN ITS REGULATION IS INVALID, ARBITRARY AND CAPRICIOUS AND IN EXCESS OF THE ADMINISTRATOR'S AUTHORITY (SEE MCSWEENY V. UNITED STATES, 131 C.CLS. 445; ATLANTIC INSURANCE AGENCY V. JORDON, 229 F.2D 758). YOU CONTEND FURTHER THAT IF THE ADMINISTRATIVE INTERPRETATION ,TRULY EXPRESSES THE WILL AND INTENT OF CONGRESS, THEN CONGRESS HAS ENACTED A PROVISION WHICH IS DISCRIMINATORY AND VIOLATES THE CONSTITUTIONAL RIGHTS OF RTTA.' YOU CONCLUDE THAT "THE VETERANS ADMINISTRATION'S INTERPRETATION OF 265 (B) DOES NOT EXPRESS THE WILL AND INTENT OF CONGRESS BUT IS RATHER A MANIFESTATION OF THE PREDILECTION OF THE VETERANS ADMINISTRATION TO THE ROLE OF THE CORRESPONDENCE SCHOOL IN THE FIELD OF EDUCATION.'

THE LEGISLATIVE HISTORY, CONGRESSIONAL INTENT AND THE ADMINISTRATIVE INTERPRETATION OF THE LANGUAGE OF SECTION 265 (B) WERE REVIEWED AND CONSIDERED IN OUR DECISION OF MARCH 6, 1956. YOU HAVE SUBMITTED NO NEW INFORMATION OR DATA TO WARRANT A MODIFICATION OF OUR VIEWS THEREIN EXPRESSED.

FURTHERMORE, IT IS UNDERSTOOD THAT YOU HAVE INFORMALLY CONCEDED THAT IF THE DESIGNATION OF CORRESPONDENCE SCHOOLS AS A CLASS HAS A REASONABLE BASIS AND DOES NOT CONSTITUTE AN ARBITRARY SELECTION WITHOUT REAL DIFFERENCE BETWEEN THE INSTITUTIONS INCLUDED AND THOSE OMITTED UNDER THE REGULATION, IT MAY NOT BE SAID THAT THE STATUTE OR THE REGULATION IS ARBITRARY OR SO OPPRESSIVE AS TO BE INVALID ON CONSTITUTIONAL GROUNDS. MANIFESTLY, DISTINCT AND FUNDAMENTAL DIFFERENCES EXIST BETWEEN INSTITUTIONS OFFERING COURSES EXCLUSIVELY BY CORRESPONDENCE AND INSTITUTIONS OFFERING RESIDENCE COURSES REQUIRING ACTUAL ATTENDANCE. ALL CORRESPONDENCE SCHOOLS ARE TREATED ALIKE UNDER THE REGULATION AND, AS POINTED OUT IN OUR DECISION OF MARCH 6, 1956, SEVERAL PROVISIONS OF THE STATUTE AFFORD A REASONABLE AND PRACTICABLE BASIS FOR THE ADMINISTRATIVE INTERPRETATION.

WITH REGARD TO YOUR REFERENCE TO THE FACT THAT THE WAR ORPHANS' EDUCATIONAL ASSISTANCE ACT OF 1956, PUBLIC LAW 634, 84TH CONGRESS, 70 STAT. 411, CONTAINS SIMILAR PROVISIONS UNDER SECTION 505 (B) OF THIS ACT FOR PAYMENT OF ADMINISTRATIVE ALLOWANCES, THIS CAN HARDLY BE ACCORDED THE SIGNIFICANCE YOU INDICATE IN INTERPRETING THE LANGUAGE OF THE 1952 ACT IN VIEW OF THE PROVISIONS OF SECTION 304 (C) OF THE 1956 ACT WHICH EXPRESSLY PROHIBIT APPROVAL OF "ANY COURSE TO BE PURSUED BY CORRESPONDENCE.'