B-171176, DEC 3, 1970

B-171176, DEC 3, 1970

ERRONEOUS INFORMATION - MERITORIOUS CLAIMS ACT DENIAL OF CLAIM FOR $126 INCURRED THROUGH THE USE OF ERRONEOUS TELEPHONE RATES PURSUANT TO THE CALL HOME PROGRAM BY SGT. ROBERT J. GORMAN STATIONED AT PLEIKU, VIETNAM. THE MERITORIOUS CLAIM ACT OF 1928, 31 U.S.C. 236, IS NOT APPLICABLE TO A CLAIM BASED ON ERRONEOUS INFORMATION CONVEYED BY AN AGENT OF THE GOVERNMENT AS THE REMEDY SUPPLIED BY THAT ACT IS AN EXTRAORDINARY ONE LIMITED TO EXTRAORDINARY CIRCUMSTANCES.

TO MR. ANDREW P. VECCHIONE:

REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 26, 1970, ON BEHALF OF MR. RAYMOND W. RAUCH AND MRS. BARBARA GORMAN, HIS DAUGHTER, CONCERNING CHARGES FOR TELEPHONE CALLS FROM MRS. GORMAN'S HUSBAND, SERGEANT ROBERT J. GORMAN, WHO IS PRESENTLY STATIONED AT PLEIKU, VIETNAM.

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.

THROUGH CONGRESSMAN JAMES J. HOWARD YOU REQUESTED THAT THE AIR FORCE PAY THE DIFFERENCE BETWEEN THE CORRECT COMMERCIAL RATES AND THE NEGLIGENTLY POSTED LOWER RATES. THE AIR FORCE, THROUGH THE CONGRESSIONAL INQUIRY DIVISION OF THE OFFICE OF LEGISLATIVE LIAISON, CITING 31 U.S.C. 680(A), REPLIED THAT IT IS PRECLUDED FROM PAYMENT OF LONG-DISTANCE TELEPHONE CHARGES WHICH ARE NOT INCURRED IN THE TRANSACTION OF OFFICIAL PUBLIC BUSINESS. SERGEANT GORMAN'S CALLS WERE, OF COURSE, OF A PERSONAL NATURE.

RESPONDING TO A SUGGESTION FROM THE AIR FORCE, YOU HAVE SUBMITTED THE MATTER TO THIS OFFICE FOR CONSIDERATION AS A MERITORIOUS CLAIM UNDER THE MERITORIOUS CLAIMS ACT OF 1928, 31 U.S.C. 236. THAT ACT PROVIDES THAT WHEN A CLAIM IS FILED IN THIS OFFICE THAT MAY NOT BE LAWFULLY ADJUSTED BY USE OF AN APPROPRIATION, BUT WHICH CLAIM IN OUR JUDGMENT CONTAINS SUCH ELEMENTS OF LEGAL LIABILITY OR EQUITY AS TO BE DESERVING OF THE CONSIDERATION OF THE CONGRESS, IT SHALL BE SUBMITTED TO THE CONGRESS WITH OUR RECOMMENDATIONS. THIS REMEDY IS AN EXTRAORDINARY ONE AND ITS USE IS LIMITED TO EXTRAORDINARY CIRCUMSTANCES. THE CASES WHICH WE HAVE REPORTED TO CONGRESS HAVE GENERALLY INVOLVED CIRCUMSTANCES OF AN UNUSUAL NATURE WHICH ARE UNLIKELY TO PRESENT A RECURRING PROBLEM SINCE 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.

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 ARE OF THE OPINION 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.