B-171176, JAN 14, 1971

B-171176, JAN 14, 1971

MERITORIOUS CLAIMS ACT - ERRONEOUS INFORMATION REAFFIRMING PRIOR DECISION DENYING CLAIM OF SERGEANT ROBERT J. GORMAN TO REIMBURSEMENT FOR $126 THE AMOUNT IN EXCESS OF THE ANTICIPATED COST OF TELEPHONE CALLS BASED ON ERRONEOUS RATES POSTED IN CONNECTION WITH THE CALL HOME PROGRAM, AT PLEIKU AIR FORCE BASE, VIETNAM. REIMBURSEMENT UNDER THE MERITORIOUS CLAIM ACT OF 1928, 31 U.S.C. 236 IS RECOMMENDED WHEN THE CLAIM IS AN EXTRAORDINARY ONE INVOLVING CIRCUMSTANCES OF AN UNUSUAL NATURE WHICH ARE UNLIKELY TO PRESENT A RECURRING PROBLEM. THE CASE OF A PERSON INCURRING A LOSS AS A RESULT OF RELIANCE UPON ERRONEOUS INFORMATION GIVEN BY OFFICERS OR EMPLOYEES OF THE UNITED STATES GOVERNMENT IS, IN FACT, A RECURRING PROBLEM.

TO MR. ANDREW P. VECCHIONE:

REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 18, 1970, IN WHICH YOU REQUEST, IN EFFECT, RECONSIDERATION OF OUR DETERMINATION OF DECEMBER 3, 1970, B-171176, NOT TO REPORT THE CLAIM OF SERGEANT ROBERT J. GORMAN TO THE CONGRESS UNDER THE MERITORIOUS CLAIMS ACT OF 1928, 31 U.S.C. 236.

THE FACTS AS YOU PRESENT THEM ARE THAT SERGEANT GORMAN PLACED TWO CALLS TO HIS WIFE PURSUANT TO THE CALL HOME PROGRAM. RELYING ON THE RATES POSTED AT THE PLEIKU AIR FORCE BASE, SERGEANT GORMAN SPOKE AT GREAT LENGTH. HOWEVER, THE POSTED RATES WERE ERRONEOUS AND AS A RESULT, THE CALLS COST $126, PLUS FEDERAL EXCISE TAX, MORE THAN HAD BEEN ANTICIPATED BY THE SERGEANT AND HIS WIFE. THE AIR FORCE DENIED SERGEANT GORMAN'S CLAIM ON THE BASIS THAT 31 U.S.C. 680(A) PRECLUDES IT FROM PAYMENT OF LONG -DISTANCE TELEPHONE CHARGES WHICH ARE NOT INCURRED IN THE TRANSACTION OF OFFICIAL PUBLIC BUSINESS.

IN A LETTER DATED OCTOBER 26, 1970, YOU REQUESTED, ON BEHALF OF SERGEANT GORMAN, THAT THIS OFFICE SUBMIT THE MATTER TO CONGRESS UNDER THE MERITORIOUS CLAIMS ACT OF 1928. WE STATED IN OUR DECEMBER 3RD LETTER TO YOU THAT THE REMEDY PROVIDED BY THAT ACT IS AN EXTRAORDINARY ONE AND ITS USE IS LIMITED TO EXTRAORDINARY CIRCUMSTANCES; THAT CASES WE HAVE REPORTED TO CONGRESS ARE THOSE INVOLVING CIRCUMSTANCES OF AN UNUSUAL NATURE WHICH ARE UNLIKELY TO PRESENT A RECURRING PROBLEM; AND THAT THE SITUATION INVOLVED HEREIN DOES NOT CONTAIN SUCH ELEMENTS OF LEGAL LIABILITY OR EQUITY AS WOULD WARRANT OUR REPORTING IT TO THE CONGRESS.

YOU ATTACK OUR PRIOR DETERMINATION ON THE BASIS THAT THE SITUATION IS UNLIKELY TO REOCCUR, THAT YOU FAIL TO SEE HOW OTHER CLAIMANTS WOULD BE PREJUDICED BY PRESENTATION OF THIS CLAIM TO THE CONGRESS AND THAT YOU DO NOT FIND STATUTORY OR CASE LAW AUTHORITY FOR DENYING RECOVERY UNDER THE MERITORIOUS CLAIMS ACT OF 1928 MERELY BECAUSE THE POSSIBILITY EXISTS THAT FUTURE CLAIMS MAY BE PRESENTED.

IN THE FIRST PLACE, WE MUST POINT OUT THAT WE HAVE NO WAY OF KNOWING HOW MANY OTHER PERSONS, EITHER AT THE PLEIKU AIR FORCE BASE OR AT ANY OTHER PLACE WHERE THE NOTICE WITH ERRONEOUS RATES MAY HAVE BEEN POSTED, ACTUALLY RELIED UPON THE ERRONEOUS RATES TO THEIR DETRIMENT; HOWEVER, IT IS QUITE CONCEIVABLE THAT THERE WERE OTHERS ASIDE FROM SERGEANT GORMAN. AS WE STATED IN OUR EARLIER LETTER "*** TO REPORT TO CONGRESS A PARTICULAR CASE, WHERE SIMILAR EQUITIES EXIST OR ARE LIKELY TO ARISE WITH RESPECT TO OTHER CLAIMANTS, WOULD CONSTITUTE PREFERENTIAL TREATMENT OVER OTHERS IN SIMILAR CIRCUMSTANCES." IN OTHER WORDS, TO REPORT SERGEANT GORMAN'S CLAIM WHEN THERE IS A LIKELIHOOD THAT THERE ARE OTHERS IN SIMILAR CIRCUMSTANCES WHO HAVE NOT AND WILL NOT FILE CLAIMS WITH THIS OFFICE WOULD CONSTITUTE PREFERENTIAL TREATMENT TO SERGEANT GORMAN.

MOREOVER, THE REAL CRUX OF THE MATTER IS NOT THAT THE PARTICULAR FACTUAL SITUATION HEREIN INVOLVED IS LIKELY TO PRESENT A RECURRING PROBLEM BUT THAT THE GENERAL FACTUAL PATTERN - THAT OF ANY PERSON INCURRING A LOSS AS A RESULT OF BEING GIVEN ERRONEOUS INFORMATION BY OFFICERS AND EMPLOYEES OF TH GOVERNMENT - DOES, IN FACT, PRESENT A RECURRING PROBLEM. FOR EXAMPLE, COMPARE 36 COMP. GEN. 507; ID. 831. THE CONGRESS BY ENACTING PUBLIC LAW 85-413, 72 STAT. 118, PROVIDED RELIEF TO CERTAIN PERSONS WHO RELIED IN GOOD FAITH ON INCORRECT OR INCOMPLETE INFORMATION FURNISHED BY FEDERAL EMPLOYEES. IT IS BECAUSE OF THE MAGNITUDE OF SUCH CLAIMS WHICH WE MIGHT HAVE TO REPORT TO THE CONGRESS ON AN INDIVIDUAL BASIS THAT WE STATED IN OUR PREVIOUS LETTER TO YOU:

"THERE HAVE BEEN NUMEROUS CASES BEFORE THIS OFFICE IN WHICH IT HAS APPEARED THAT MEMBERS OF THE UNIFORMED SERVICES, CIVILIAN EMPLOYEES OF THE GOVERNMENT, AND NON-GOVERNMENT PERSONNEL, HAVE BEEN GIVEN ERRONEOUS INFORMATION BY GOVERNMENT OFFICERS AND EMPLOYEES. IN SUCH CASES IT HAS OFTEN BEEN URGED THAT WHERE THE CLAIMANT HAD BEEN GIVEN ERRONEOUS INFORMATION, THAT FACT BY ITSELF SHOULD BE REGARDED AS SUFFICIENT JUSTIFICATION FOR THE PAYMENT OF THE CLAIM. IN OUR OPINION THE RECEIPT BY SERGEANT GORMAN OF ERRONEOUS INFORMATION DOES NOT AFFORD A LEGAL BASIS FOR PAYMENT OF THIS CLAIM AND SINCE THERE ARE NUMEROUS CASES IN WHICH MEMBERS OF THE ARMED FORCES, AS WELL AS OTHERS, HAVE BEEN IMPROPERLY ADVISED BY GOVERNMENT OFFICERS AND AGENTS, WE FIND NO BASIS FOR CONSIDERING THIS CLAIM AS CONTAINING ELEMENTS OF EQUITY OF AN UNUSUAL NATURE."

ACCORDINGLY, WE MUST AFFIRM OUR EARLIER DETERMINATION THAT THIS CLAIM DOES NOT CONTAIN SUCH ELEMENTS OF LEGAL LIABILITY OR EQUITY AS WOULD WARRANT REPORTING IT TO THE CONGRESS UNDER THE MERITORIOUS CLAIMS ACT OF 1928.