B-160747, AUG. 2, 1967

B-160747: Aug 2, 1967

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CLAIM IS DISTINGUISHED FROM THAT REPORTED TO CONGRESS ON BEHALF OF VERNON M. THE SECTION PROVIDES THAT WHEN THE COMPTROLLER GENERAL FINDS THERE IS NO STATUTORY AUTHORITY TO ADJUST A CLAIM. LEATHERMAN WAS SELECTED FOR THE POSITION OF DEPUTY DIRECTOR FOR EDUCATION AT THE MARSING JOB CORPS CONSERVATION CENTER. HIS FIRST ASSIGNMENT WAS TO REPORT TO GRANTS. HE WAS GIVEN AN EXCEPTED APPOINTMENT ON APRIL 4. HE WAS ADVISED THAT HE COULD NO LONGER BE CONSIDERED FOR THE POSITION OF DEPUTY DIRECTOR FOR EDUCATION OF THE MARSING CAMP AND TOLD TO RETURN TO HIS HOME. LEATHERMAN INDICATED A DESIRE TO BE CONSIDERED FOR A LOWER GRADE TEACHING POSITION AND WAS NOT IMMEDIATELY SEPARATED FROM THE JOB CORPS ROLLS.

B-160747, AUG. 2, 1967

CLAIMS - EQUITABLE DECISION TO SECY. OF INTERIOR CONCERNING CLAIM FOR RETURN TRANSPORTATION COSTS FOR EMPLOYEE WHO DID NOT COMPLETE TRAINING ASSIGNMENT. CLAIM IS DISTINGUISHED FROM THAT REPORTED TO CONGRESS ON BEHALF OF VERNON M. NICHOLS, PRIVATE LAW 89-309. IN VIEW OF SMALL AMOUNT INVOLVED ($212.80) AND DEGREE OF HARDSHIP, CLAIM DOES NOT CONTAIN SUCH ELEMENTS OF LEGAL LIABILITY OR EQUITY AS WOULD WARRANT REPORTING TO CONGRESS.

TO MR. SECRETARY:

THIS REFERS TO THE LETTER OF JANUARY 20, 1967, FROM THE ASSISTANT SECRETARY OF THE INTERIOR, MR. KENNETH HOLUM, AND SUBSEQUENT CORRESPONDENCE FROM YOUR DEPARTMENT, BRINGING TO OUR ATTENTION A CASE THAT YOUR DEPARTMENT BELIEVES DESERVES CONSIDERATION UNDER THE PROVISIONS OF SECTION 236 OF TITLE 31, UNITED STATES CODE. THE SECTION PROVIDES THAT WHEN THE COMPTROLLER GENERAL FINDS THERE IS NO STATUTORY AUTHORITY TO ADJUST A CLAIM, AND THE CLAIM CONTAINS ELEMENTS OF LEGAL LIABILITY OR EQUITY WHICH JUSTIFIES ITS CONSIDERATION BY CONGRESS, HE SHALL SUBMIT THE CLAIM TO THE CONGRESS.

THE BUREAU OF RECLAMATION, IN COOPERATION WITH THE OFFICE OF ECONOMIC OPPORTUNITY, OPERATES THE MARSING JOB CORPS CONSERVATION CENTER IN BOISE, IDAHO. IN MARCH 1965 MR. JOHN D. LEATHERMAN WAS SELECTED FOR THE POSITION OF DEPUTY DIRECTOR FOR EDUCATION AT THE MARSING JOB CORPS CONSERVATION CENTER. HIS FIRST ASSIGNMENT WAS TO REPORT TO GRANTS, NEW MEXICO, FOR A BRIEF TRAINING PROGRAM. HE WAS GIVEN AN EXCEPTED APPOINTMENT ON APRIL 4, 1965, UNDER THE AUTHORITY OF CIVIL SERVICE REGULATION 213.3212/B) IN THE SECOND STEP OF GRADE GS 12. AFTER A FEW DAYS AT GRANTS, NEW MEXICO, THE EVALUATION TEAM OF THE OFFICE OF ECONOMIC OPPORTUNITY DETERMINED THAT MR. LEATHERMAN HAD FAILED TO SATISFACTORILY COMPLETE THE TRAINING SESSION. APRIL 10, 1965, HE WAS ADVISED THAT HE COULD NO LONGER BE CONSIDERED FOR THE POSITION OF DEPUTY DIRECTOR FOR EDUCATION OF THE MARSING CAMP AND TOLD TO RETURN TO HIS HOME. AT THAT TIME MR. LEATHERMAN INDICATED A DESIRE TO BE CONSIDERED FOR A LOWER GRADE TEACHING POSITION AND WAS NOT IMMEDIATELY SEPARATED FROM THE JOB CORPS ROLLS. A DECISION AS TO WHETHER OR NOT HE WOULD BE SELECTED FOR ONE OF THE TEACHING POSITIONS AT MARSING COULD NOT BE MADE UNTIL A NEW DEPUTY DIRECTOR FOR EDUCATION WAS CHOSEN. MR. LEATHERMAN WAS NOT SELECTED FOR A TEACHING POSITION. HE SUBSEQUENTLY APPLIED FOR A RESIDENT YOUTH WORKER POSITION AT A LOWER GRADE, BUT WAS NOT SELECTED. MR. LEATHERMAN SUBSEQUENTLY WAS SEPARATED EFFECTIVE JULY 7, 1965.

YOUR DEPARTMENT HAS REFUSED TO REIMBURSE MR. LEATHERMAN FOR HIS TRANSPORTATION COSTS FROM GRANTS, NEW MEXICO, BACK TO WASHINGTON, D. C., OR TO PAY HIS SALARY FOR THE PERIOD BEGINNING APRIL 10, 1965, AND ENDING JULY 7, 1965. THIS REFUSAL WAS BASED ON A DECISION OF OUR OFFICE B- 158406, DATED FEBRUARY 11, 1966. IN THAT DECISION WE INFORMED YOUR OFFICE THAT THERE WAS NO LEGAL BASIS FOR THE PAYMENT OF SALARY OR FOR REIMBURSEMENT OF TRAVEL EXPENSES TO THE HOME OF A FORMER EMPLOYEE (MR. VERNON M. NICHOLS) OF THE BUREAU OF RECLAMATION APPOINTED TO THE JOB CORPS CONSERVATION CENTER AT MCCOOK, NEBRASKA, WHO, BECAUSE OF CERTAIN DIFFICULTIES, WAS NOT APPOINTED TO THE POSITION FOR WHICH ORIGINALLY HIRED AND WAS SENT HOME IN A LEAVE WITHOUT-PAY STATUS TO AWAIT APPOINTMENT TO ANOTHER CONSERVATION POSITION WHICH NEVER OCCURRED. IN THAT CASE, PURSUANT TO THE ACT OF APRIL 10, 1928, 45 STAT. 413, 31 U.S.C. 236, WE MADE A REPORT TO THE CONGRESS RECOMMENDING THAT PAYMENT OF THE SALARY FOR THE PERIOD OF LEAVE WITHOUT PAY AND TRAVEL EXPENSES BE PAID. CONGRESS APPROVED THE LEGISLATION AND IT BECAME PRIVATE LAW 89-309 ON SEPTEMBER 17, 1966.

YOUR DEPARTMENT BELIEVES THAT THE SIMILARITY BETWEEN THE NICHOLS CASE AND THAT OF MR. LEATHERMAN JUSTIFIES BRINGING THE LEATHERMAN CASE TO OUR ATTENTION FOR OUR CONSIDERATION FOR TRANSMITTAL TO THE CONGRESS UNDER THE AUTHORITY OF SECTION 236, TITLE 31 OF THE UNITED STATES CODE, AS WAS DONE IN THE NICHOLS CASE. THE RECOMMENDATION OF YOUR DEPARTMENT IN THAT REGARD IS CONFINED TO THE SUM OF $212.80, THE STATED COST OF RETURN TRANSPORTATION FROM GRANTS, NEW MEXICO, TO WASHINGTON, D. C.

THE FACTS IN MR. NICHOLS' CASE DIFFER FROM THOSE IN MR. LEATHERMAN'S CASE IN THAT MR. NICHOLS RESIGNED HIS SCHOOL POSITION TO ACCEPT WHAT HE UNDERSTOOD TO BE A FIRM OFFER OF EMPLOYMENT AND WAS WITHOUT INCOME DURING THE PERIOD OF HIS CLAIM. WHILE IT WAS ORIGINALLY REPORTED THAT MR. LEATHERMAN HAD TERMINATED HIS POSITION IN WASHINGTON, D. C., WE WERE LATER ADVISED THAT HE ACTUALLY HAD NOT TERMINATED HIS POSITION AND DURING THE PERIOD OF HIS CLAIM RECEIVED THE SAME RATE OF PAY IN THAT POSITION AS HE WAS RECEIVING PRIOR TO HIS ACCEPTANCE OF THE APPOINTMENT IN THE JOB CORPS. IT IS FOR THAT REASON YOUR DEPARTMENT DOES NOT BELIEVE A CLAIM FOR SALARY SHOULD BE CONSIDERED UNDER 31 U.S.C. 236. MR. NICHOLS SUCCESSFULLY COMPLETED THE TRAINING COURSE BUT BECAUSE OF CERTAIN DIFFICULTIES IT WAS AGREED THAT HE SHOULD NOT BE CONSIDERED FOR FURTHER EMPLOYMENT AT THE MCCOOK CENTER, BUT HE COULD BE CONSIDERED FOR PLACEMENT ELSEWHERE IN THE JOB CORPS PROGRAM. MR. LEATHERMAN FAILED TO SATISFACTORILY COMPLETE THE TRAINING SESSION AND INDICATED A DESIRE TO BE CONSIDERED FOR SEVERAL LOWER GRADE TEACHING POSITIONS. MR. NICHOLS WAS INSTRUCTED TO RETURN HOME IN A LEAVE WITHOUT-PAY STATUS TO AWAIT A POSSIBLE TELEPHONE CALL FROM JOB CORPS OFFICIALS REGARDING ASSIGNMENT TO A CONSERVATION CENTER ELSEWHERE. HE WAS TOLD THAT TRANSPORTATION EXPENSES WOULD BE PAID BY THE GOVERNMENT AND WAS FURNISHED A TRANSPORTATION REQUEST WHICH HE USED TO PROCURE AIRPLANE TRANSPORTATION TO HIS HOME. HE WAITED FOR THE TELEPHONE CALL REGARDING FURTHER ASSIGNMENT UNTIL JUNE 12, 1965, WHEN HE SUBMITTED HIS RESIGNATION. WAITING FOR THE TELEPHONE CALL WHICH NEVER OCCURRED RESTRICTED HIS CHANCES OF SECURING OTHER EMPLOYMENT. MR. LEATHERMAN RETURNED TO WASHINGTON IMMEDIATELY AFTER BEING TOLD OF HIS FAILURE TO QUALIFY. HE WAS NOT FURNISHED A TRANSPORTATION REQUEST NOR WAS HE TOLD THAT HIS TRAVEL EXPENSES WOULD BE REIMBURSED. WHILE HE HAD REQUESTED TO BE CONSIDERED FOR LOWER GRADE POSITIONS THERE IS NOTHING OF RECORD TO SHOW THAT THE ADMINISTRATIVE OFFICE REQUESTED THAT HE STAND BY AWAITING FURTHER ASSIGNMENT.

AFTER CONSIDERING ALL PERTINENT FACTS AND CIRCUMSTANCES, INCLUDING THE RELATIVELY SMALL AMOUNT OF HIS CLAIM FOR TRAVEL EXPENSES AND THE DEGREE OF HARDSHIP, WE DO NOT FIND THAT THE CLAIM CONTAINS SUCH ELEMENTS OF LEGAL LIABILITY OR EQUITY AS WOULD WARRANT OUR REPORTING THE MATTER FOR CONSIDERATION OF THE CONGRESS UNDER THE ACT OF APRIL 10, 1928, 45 STAT. 413, 31 U.S.C. 236.