B-164337, AUG 7, 1974

B-164337: Aug 7, 1974

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ENCLOSED IS A COPY OF OUR DECISION B-176580 OF THIS DATE DISALLOWING TWO CLAIMS EXEMPLARY OF THE SEVERAL HUNDRED SUBMITTED PURSUANT TO THE BATES DECISION. YOU WILL NOTE THAT WE HAVE STATED THEREIN THAT WE REGARD OUR DETERMINATION AS DISPOSITIVE OF THE CLAIMS OF OTHER EMPLOYEES IDENTICALLY SITUATED. EACH SUCH CLAIMANT WILL BE SO ADVISED BY OUR TRANSPORTATION AND CLAIMS DIVISION. IN REACHING OUR CONCLUSION WE HAVE GIVEN THOROUGH CONSIDERATION TO THE POINTS RAISED DURING DISCUSSION WITH YOU AND OTHER REPRESENTATIVES OF THE AFGE AND SUMMARIZED BY MR. WE REQUESTED ANY EVIDENCE YOU MIGHT HAVE DEMONSTRATING THAT THE DIRECTOR OF THE BUREAU OF MEDICINE AND SURGERY AUTHORIZED OR APPROVED THE WORK IN QUESTION IN ACCORDANCE WITH THE LIBERAL STANDARDS RECENTLY SET FORTH BY THE COURT OF CLAIMS IN BAYLOR ET AL.

B-164337, AUG 7, 1974

PRECIS-UNAVAILABLE

MR. L. M. PELLERZI

WE REFER TO YOUR LETTER OF JANUARY 18, 1974, REFERNCE 8/6-217 & L 2342, AND TO YOUR CONTINUING INTEREST IN THE DISPOSITION OF CLAIMS SUBMITTED TO OUR TRANSPORTATION AND CLAIMS DIVISION PURSUANT TO THE HOLDING BY THE COURT OF CLAIMS IN BATES ET AL. V. UNITED STATES, 196 CT. CL. 362 (1971).

ENCLOSED IS A COPY OF OUR DECISION B-176580 OF THIS DATE DISALLOWING TWO CLAIMS EXEMPLARY OF THE SEVERAL HUNDRED SUBMITTED PURSUANT TO THE BATES DECISION. YOU WILL NOTE THAT WE HAVE STATED THEREIN THAT WE REGARD OUR DETERMINATION AS DISPOSITIVE OF THE CLAIMS OF OTHER EMPLOYEES IDENTICALLY SITUATED. EACH SUCH CLAIMANT WILL BE SO ADVISED BY OUR TRANSPORTATION AND CLAIMS DIVISION.

IN REACHING OUR CONCLUSION WE HAVE GIVEN THOROUGH CONSIDERATION TO THE POINTS RAISED DURING DISCUSSION WITH YOU AND OTHER REPRESENTATIVES OF THE AFGE AND SUMMARIZED BY MR. MERRIGAN IN HIS LETTER OF JULY 12, 1974. MR. MERRIGAN SUGGESTS THAT THE RESULT IN THE BATES CASE BE ADOPTED WITHOUT REGARD TO THE COURT'S DECISION IN ANDERSON ET AL. V. UNITED STATES, 201 CT. CL. 660 (1973), AND IN THE ALTERNATIVE THAT WE ADOPT THE ANDERSON DECISION BASED UPON THE EQUITABLE CONSIDERATIONS THERE RELIED UPON BY THE COURT. WHILE WE SUBSCRIBE TO THE PRINCIPLE OF EQUAL TREATMENT OF EMPLOYEES WORKING UNDER COMPARABLE CIRCUMSTANCES, WE CANNOT CONSIDER OURSELVES BOUND BY A DECISION SUCH AS BATES BASED WHOLLY UPON AN ERRONEOUS STIPULATION OF FACT. NEITHER CAN WE, FOR PURELY EQUITABLE REASONS, ADOPT AN OPINION SUCH AS ANDERSON, SO BROADLY DEPARTING FROM A LONG-STANDING AND REASONABLE ADMINISTRATIVE INTERPRETATION OF SUBSTANTIALLY THE SAME REGULATORY LANGUAGE.

IN OUR LETTER TO YOU OF JUNE 6, 1974, WE REQUESTED ANY EVIDENCE YOU MIGHT HAVE DEMONSTRATING THAT THE DIRECTOR OF THE BUREAU OF MEDICINE AND SURGERY AUTHORIZED OR APPROVED THE WORK IN QUESTION IN ACCORDANCE WITH THE LIBERAL STANDARDS RECENTLY SET FORTH BY THE COURT OF CLAIMS IN BAYLOR ET AL. V. UNITED STATES, 198 CT. CL. 133 (1972). THE EVIDENCE SO PRESENTED IN PART III OF MR. MERRIGAN'S LETTER FURTHER DOCUMENTS THE EXTENT OF THE REPORTING AND DEPARTURE PROCEDURES INVOLVED BUT DOES NOT, IN OUR VIEW, DEMONSTRATE THAT THE WORK IN QUESTION WAS DULY AUTHORIZED OR APPROVED.

WE APPRECIATE YOUR ASSISTANCE IN ATTEMPTING TO PROVIDE EVIDENCE WHICH WOULD ESTABLISH A LEGAL BASIS FOR A MORE EQUITABLE RESOLUTION OF THESE CLAIMS.

R. F. KELLER

DEPUTY COMPTROLLER GENERAL OF THE UNITED STATES ..END :