B-156439(1), JUL 12, 1982

B-156439(1): Jul 12, 1982

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TRECOSTA'S CLAIM IS FOR BACKPAY EQUAL TO THAT RECEIVED BY THE MEMBERS OF THE PLAINTIFF-CLASS IN MARCH V. THE COURT OF APPEALS HELD THAT DOD'S CALCULATION OF THE OVERSEAS DEPENDENTS SCHOOLS (ODS) TEACHERS' SALARIES BY USING THE PRECEDING YEAR'S SALARIES OF STATESIDE TEACHERS VIOLATED THE STATUTORY REQUIREMENT THAT ODS TEACHERS ARE TO BE COMPENSATED "AT RATES EQUAL TO THE AVERAGE OF THE RANGE OF RATES OF BASIC COMPENSATION FOR SIMILAR POSITIONS. ...". CREDIT FOR PAST TEACHING EXPERIENCE WERE PART OF "BASIC COMPENSATION" SO AS TO BRING THEM UNDER THE COVERAGE OF THE "EQUAL TO" REQUIREMENT OF THE ACT. THE COURT HELD THAT THE PLAINTIFFS WERE ENTITLED TO RECOVER MONEY DAMAGES AND REMANDED THE CASE TO THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA.

B-156439(1), JUL 12, 1982

PRECIS-UNAVAILABLE

TO THE CONGRESS OF THE UNITED STATES:

IN ACCORDANCE WITH THE ACT OF APRIL 10, 1928, 45 STAT. 413, 31 U.S.C. SEC. 236 (1976) (MERITORIOUS CLAIMS ACT), WE SUBMIT THE FOLLOWING REPORT AND RECOMMENDATION CONCERNING THE CLAIM OF MR. ROCCO A. TRECOSTA, A TEACHER IN THE DEPARTMENT OF DEFENSE OVERSEAS DEPENDENTS SCHOOLS.

MR. TRECOSTA'S CLAIM IS FOR BACKPAY EQUAL TO THAT RECEIVED BY THE MEMBERS OF THE PLAINTIFF-CLASS IN MARCH V. UNITED STATES, 506 F.2D. 1306 (D.C.CIR. 1974). IN THAT DECISION, THE U. S. COURT OF APPEALS HELD THAT THE DEPARTMENT OF DEFENSE (DOD) HAD NOT PROPERLY IMPLEMENTED THE PAY- SETTING PROCEDURES ESTABLISHED BY PUB.L. NO. 89-391, APRIL 14, 1966, 80 STAT. 117.

THE PROVISION AT ISSUE APPEARS IN ITS PRESENT FORM AT 20 U.S.C. SEC. 903(C) (1976) AND PROVIDES THAT:

"THE SECRETARY OF EACH MILITARY DEPARTMENT SHALL FIX THE BASIC COMPENSATION FOR TEACHERS AND TEACHING POSITIONS IN HIS MILITARY DEPARTMENT AT RATES EQUAL TO THE AVERAGE OF THE RANGE OF RATES OF BASIC COMPENSATION FOR SIMILAR POSITIONS OF A COMPARABLE LEVEL OF DUTIES AND RESPONSIBILITIES IN URBAN SCHOOL JURISDICTIONS IN THE UNITED STATES OF 100,000 OR MORE POPULATION."

THE COURT OF APPEALS HELD THAT DOD'S CALCULATION OF THE OVERSEAS DEPENDENTS SCHOOLS (ODS) TEACHERS' SALARIES BY USING THE PRECEDING YEAR'S SALARIES OF STATESIDE TEACHERS VIOLATED THE STATUTORY REQUIREMENT THAT ODS TEACHERS ARE TO BE COMPENSATED "AT RATES EQUAL TO THE AVERAGE OF THE RANGE OF RATES OF BASIC COMPENSATION FOR SIMILAR POSITIONS. ...", AND DIRECTED DOD TO CALCULATE THE TEACHERS' SALARIES ON THE BASIS OF THE CURRENT SALARIES BEING PAID TO TEACHERS IN COMPARABLE STATESIDE SCHOOL SYSTEMS. THE COURT ALSO HELD THAT SALARY GRADE, STEPS, AND CREDIT FOR PAST TEACHING EXPERIENCE WERE PART OF "BASIC COMPENSATION" SO AS TO BRING THEM UNDER THE COVERAGE OF THE "EQUAL TO" REQUIREMENT OF THE ACT. FINALLY, THE COURT HELD THAT THE PLAINTIFFS WERE ENTITLED TO RECOVER MONEY DAMAGES AND REMANDED THE CASE TO THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA. THAT COURT HAD ENJOINED DOD FROM REFUSING TO PLACE ODS TEACHERS IN STEPS COMPARABLE TO THOSE IN WHICH THEY WOULD HAVE BEEN PLACED IN THE UNITED STATES, BUT DENIED MONETARY RELIEF AND OTHER RELIEF SOUGHT BY THE TEACHERS. A JUDGMENT IMPLEMENTING THE COURT OF APPEALS DECISION WAS ENTERED IN THE DISTRICT COURT ON JUNE 30, 1975, PROVIDING BACKPAY FOR THE PLAINTIFFS FOR THE PERIOD FROM APRIL 14, 1966, TO THE DATE OF THAT JUDGMENT.

MARCH WAS BROUGHT AS A CLASS ACTION AND OUT OF A TOTAL OF APPROXIMATELY 23,000 POTENTIAL PLAINTIFFS, FOUR INDIVIDUALS, ONE OF WHOM WAS MR. TRECOSTA, WERE SPECIFICALLY EXCLUDED FROM COVERAGE UNDER THE JUDGMENT. THE THREE INDIVIDUALS OTHER THAN MR. TRECOSTA WERE EXCLUDED BECAUSE THEY SPECIFICALLY CHOSE NOT TO BE MEMBERS OF THE CLASS. MR. TRECOSTA WAS EXCLUDED BECAUSE IN 1971, APPEARING PRO SE, HE HAD BROUGHT AN ACTION IN THE COURT OF CLAIMS, CONTENDING, AS DID THE PLAINTIFFS IN MARCH, THAT THE PROVISIONS OF PUBLIC LAW 89-391, MANDATED THE COMPUTATION OF SALARY RATES FOR OVERSEAS TEACHERS ON THE BASIS OF THE CURRENT SALARIES, RATHER THAN THE PRIOR YEAR'S SALARIES, OF STATESIDE TEACHERS. THE COURT OF CLAIMS, 3 YEARS PRIOR TO THE MARCH DECISION, DECIDED THE CASE ON CROSS MOTIONS FOR SUMMARY JUDGMENT, ISSUING A BRIEF ORDER DENYING MR. TRECOSTA'S CLAIM. TRECOSTA V. UNITED STATES, 194 CT.CL. 1025 (1971).

THE COURT OF CLAIMS REASONED THAT, ALTHOUGH CONGRESS KNEW THAT, UNDER AN EARLIER STATUTE, DOD USED THE PRIOR YEAR'S SALARIES OF STATESIDE TEACHERS TO SET RATES, THE LEGISLATIVE HISTORY OF PUBLIC LAW 89-391 ESTABLISHED THAT CONGRESS DID NOT INTEND TO MODIFY THAT PROCEDURE. THE COURT OF APPEALS IN MARCH TOOK NOTE OF THE TRECOSTA DECISION BUT DISAGREED WITH ITS CONCLUSION.

IT APPEARS THAT, BUT FOR MR. TRECOSTA'S SUIT IN THE COURT OF CLAIMS, HE WOULD HAVE BEEN CONSIDERED PART OF THE PLAINTIFF-CLASS IN MARCH. FURTHERMORE, BUT FOR THAT SUIT, HE COULD HAVE BEEN PAID ADMINISTRATIVELY. AFTER MARCH WAS DECIDED, MR. TRECOSTA WROTE TO OUR CLAIMS DIVISION REQUESTING RETROACTIVE ADJUSTMENT OF HIS SALARY ON THE BASIS OF THAT DECISION. BY SETTLEMENT CERTIFICATE Z-2272889, AUGUST 6, 1975, OUR CLAIMS DIVISION DENIED HIS CLAIM, STATING THAT THE MATTER WAS RES JUDICATA AND THAT THE PROVISIONS OF SECTION 2519, TITLE 28 OF THE U.S.C. PRECLUDED ADMINISTRATIVE PAYMENT OF HIS CLAIM. THAT SECTION PROVIDES THAT:

"CONCLUSIVENESS OF JUDGMENT.

A FINAL JUDGMENT OF THE COURT OF CLAIMS AGAINST ANY PLAINTIFF SHALL FOREVER BAR ANY FURTHER CLAIM, SUIT, OR DEMAND AGAINST THE UNITED STATES ARISING OUT OF THE MATTERS INVOLVED IN THE CASE OR CONTROVERSY."

IN OUR DECISION, LLEWELLYN LIBER ET AL., 57 COMP.GEN. 856 (1978), WE ADOPTED THE INTERPRETATION OF PUBLIC LAW 89-391 SET FORTH IN MARCH, AND WE HELD THAT, IN CONTRAST TO MR. TRECOSTA, THE THREE INDIVIDUALS WHO OPTED OUT OF THE PLAINTIFF CLASS IN MARCH COULD BE PAID BACKPAY ON AN INDEPENDENT ADMINISTRATIVE BASIS.

MR. TRECOSTA IS THUS ONE OF THE FEW OVERSEAS TEACHERS, BUT NOT THE ONLY ONE, WHO HAS NOT BEEN COMPENSATED FOR THE PERIOD DOD IMPROPERLY COMPUTED THEIR PAY. WE HAVE BEEN ADVISED BY THE DEPARTMENT OF DEFENSE THAT 20,781 OVERSEAS TEACHERS HAVE BEEN COMPENSATED UNDER THE MARCH JUDGMENT. THE DIFFERENCE BETWEEN THIS FIGURE AND THE APPROXIMATE TOTAL OF 23,000 POTENTIAL PLAINTIFFS IS APPARENTLY ATTRIBUTABLE TO THOSE TEACHERS WHO ASSERTED CLAIMS AFTER THE TIME LIMITS SET FORTH IN THE JUDGMENT, THOSE WHO WERE IDENTIFIED BUT COULD NOT BE LOCATED DESPITE EFFORTS, AND THOSE WHO WERE IDENTIFIED BUT NO ATTEMPTS WERE MADE TO LOCATE BECAUSE OF INSUFFICIENT INFORMATION. HOWEVER, NO OTHER INDIVIDUAL IS IN PRECISELY THE SAME POSITION AS IS MR. TRECOSTA. ONLY MR. TRECOSTA CHALLENGED DOD'S PRACTICES AND WAS EXCLUDED FROM THE CLASS SOLELY BECAUSE OF THAT CHALLENGE.

CLAIMS SUBMITTED TO THE CONGRESS UNDER THE MERITORIOUS CLAIMS ACT ARE GENERALLY LIMITED TO THOSE WHICH ARE UNUSUAL AND, FOR THE MOST PART, WE DECLINE TO REPORT CASES WHERE THE CIRCUMSTANCES ARE LIKELY TO RECUR. DO SO MIGHT RESULT IN PREFERENTIAL TREATMENT OF ONE INDIVIDUAL OVER OTHERS SIMILARLY SITUATED. ALTHOUGH, AS WE HAVE POINTED OUT, MR. TRECOSTA IS NOT THE ONLY OVERSEAS TEACHER WHO WAS NOT COMPENSATED, WE BELIEVE HIS SITUATION IS EXTRAORDINARY AND CONTAINS SUCH ELEMENTS OF EQUITY AS TO BE DESERVING OF THE CONSIDERATION OF CONGRESS.

IN ORDER TO PREVENT PREFERENTIAL TREATMENT OF MR. TRECOSTA, HOWEVER, WE BELIEVE THAT ANY RELIEF THE CONGRESS MAY GRANT HIM SHOULD BE LIMITED AS WAS THE RELIEF RECEIVED BY THE PLAINTIFFS IN MARCH. THE JUDGMENT LIMITED THE RECOVERY OF EACH INDIVIDUAL CLASS MEMBER TO THE GROSS AMOUNT OF $10,000, AND FROM THAT AMOUNT DEDUCTIONS WERE TO BE MADE, AS APPLICABLE, FOR CIVIL SERVICE RETIREMENT, SOCIAL SECURITY, FEDERAL EMPLOYEES GROUP LIFE INSURANCE, FEDERAL INCOME TAX WITHHOLDINGS, AND ANY OTHER SIMILAR OR RELATED RIGHTS AND OBLIGATIONS. IN OUR DECISION OVERSEAS SCHOOL TEACHERS, B-157414, APRIL 26, 1978, WE HELD THAT MEMBERS OF THE PLAINTIFF-CLASS IN MARCH COULD NOT RECOVER ON AN ADMINISTRATIVE CLAIM FOR BACKPAY IN EXCESS OF THE $10,000 JURISDICTIONAL LIMITATION OF THE DISTRICT COURT IMPOSED BY 28 U.S.C. SEC. 1346(A)(2). THEREFORE, OUR PROPOSED LANGUAGE FOR THE BILL FOR MR. TRECOSTA'S RELIEF CONTAINS THE PROVISION THAT HIS RECOVERY SHALL BE COMPUTED BY THE SAME METHOD AND WILL BE LIMITED TO THE SAME EXTENT AS THAT RECEIVED BY THE PLAINTIFFS IN MARCH.

IF THE CONGRESS SHOULD CONCUR IN OUR RECOMMENDATION IN THIS CASE, IT IS OUR OPINION THAT ENACTMENT OF A STATUTE IN SUBSTANTIALLY THE FOLLOWING LANGUAGE WILL ACCOMPLISH THE RELIEF RECOMMENDED:

"BE IT ENACTED BY THE SENATE AND THE HOUSE OF REPRESENTATIVES OF THE UNITED STATES OF AMERICA IN CONGRESS ASSEMBLED, THAT THE SECRETARY OF DEFENSE BE, AND HEREBY IS, AUTHORIZED AND DIRECTED TO SETTLE AND ADJUST THE CLAIM OF MR. ROCCO A. TRECOSTA, AN EMPLOYEE OF THE DEPARTMENT OF DEFENSE OVERSEAS DEPENDENTS SCHOOLS, FOR BACKPAY BY THE SAME METHOD AND TO THE SAME EXTENT AS IF HE WERE A MEMBER OF THE PLAINTIFF CLASS IN MARCH V. UNITED STATES, 506 F.2D 1306 (D.C.CIR. 1974). SUCH CLAIM SHALL BE PAYABLE FROM THE APPLICABLE APPROPRIATIONS OF THE DEPARTMENT OF DEFENSE."