B-95271, SEP. 13, 1955

B-95271: Sep 13, 1955

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ATTORNEYS AT LAW: REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 28. WHICH IS NOW PENDING IN THE COURT OF CLAIMS. IN YOUR LETTER IT IS STATED THAT THE PRESENT CLAIM ON BEHALF OF MR. DYER IS BASED UPON FACTS WHICH BRING IT WITHIN THE PURVIEW OF THE DECISION OF THE UNITED STATES. THE COURT CONCLUDED THAT INASMUCH AS THE PLAINTIFF WAS NOT A FLYING OFFICER WITHIN THE STATUTORY DEFINITION OF THAT TERM. HE OF NECESSITY WAS A NONFLYING OFFICER WITHIN CONTEMPLATION OF THE SEVERAL APPLICABLE ANNUAL APPROPRIATION PROVISIONS FIXING THE RATE OF $720 PER ANNUM AS THE MAXIMUM AMOUNT PAYABLE TO NONFLYING OFFICERS WHO BY COMPETENT FLYING DUTY ORDERS WERE REQUIRED TO AND DID PARTICIPATE REGULARLY AND FREQUENTLY IN AERIAL FLIGHTS.

B-95271, SEP. 13, 1955

TO ANSELL AND ANSELL, ATTORNEYS AT LAW:

REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 28, 1955, CONCERNING THE CLAIM OF MR. JOHN W. DYER (OUR CLAIMS DIVISION FILE NO. Z-143398), FOR FLYING PAY AS A NONFLYING OFFICER FOR THE PERIOD FROM ABOUT DECEMBER 9, 1942, TO ABOUT OCTOBER 7, 1948. A MOTION TO DISCUSS THE SUIT, WHICH IS NOW PENDING IN THE COURT OF CLAIMS, HAS BEEN FILED IN ESCROW WITH THE DEPARTMENT OF JUSTICE.

IN YOUR LETTER IT IS STATED THAT THE PRESENT CLAIM ON BEHALF OF MR. DYER IS BASED UPON FACTS WHICH BRING IT WITHIN THE PURVIEW OF THE DECISION OF THE UNITED STATES, C.CLS. NO. 49742, DECIDED JUNE 8, 1954, IN WHICH JUDGMENT HAS BECOME FINAL.

IN THE GRIFFIN CASE, THE COURT CONCLUDED THAT INASMUCH AS THE PLAINTIFF WAS NOT A FLYING OFFICER WITHIN THE STATUTORY DEFINITION OF THAT TERM, HE OF NECESSITY WAS A NONFLYING OFFICER WITHIN CONTEMPLATION OF THE SEVERAL APPLICABLE ANNUAL APPROPRIATION PROVISIONS FIXING THE RATE OF $720 PER ANNUM AS THE MAXIMUM AMOUNT PAYABLE TO NONFLYING OFFICERS WHO BY COMPETENT FLYING DUTY ORDERS WERE REQUIRED TO AND DID PARTICIPATE REGULARLY AND FREQUENTLY IN AERIAL FLIGHTS. THE TERM ,NONFLYING OFFICER" HAS NOT, GENERALLY, BEEN UNDERSTOOD BY EITHER THE ADMINISTRATIVE OR THE ACCOUNTING OFFICERS AS EXTENDING TO OR INCLUDING FOR FLIGHT PAY PURPOSES, OFFICERS SERVING AS MAIL COURIERS AND PERFORMING THEIR ASSIGNED DUTIES UNDER ORDERS AUTHORIZING THEM TO TRAVEL BY AIR IN THE DELIVERY OF MESSAGES. HOWEVER, BY PARAGRAPH 32, WAR DEPARTMENT SPECIAL ORDERS NO. 256, ISSUED OCTOBER 26, 1945, GRIFFIN WAS DIRECTED TO PARTICIPATE REGULARLY AND FREQUENTLY IN AERIAL FLIGHTS DURING THE PERIOD OCTOBER 26, 1945 TO JUNE 30, 1946, INCLUSIVE, WHILE IN THE PERFORMANCE OF HIS DUTIES AS A DIPLOMATIC COURIER WITH THE STATE DEPARTMENT.

IN HIS PETITION GRIFFIN CLAIMED PAY AT THE RATE OF $720 PER ANNUM AS A NONFLYING OFFICER FOR PERIODS BOTH PRIOR AND SUBSEQUENT TO THE PERIOD COVERED BY THE ORDERS OF OCTOBER 26, 1945. THE SEVERAL TEMPORARY DUTY AND TRAVEL ORDERS WHICH WERE ISSUED IN THE GRIFFIN CASE BOTH PRIOR TO AND SUBSEQUENT TO THE SPECIAL ORDERS OF OCTOBER 26, 1945, WERE ADDRESSED TO HIM AS A MAIL COURIER AND MERELY AUTHORIZED HIM TO PERFORM TRAVEL BETWEEN DIFFERENT TERMINI SOLELY IN CONNECTION WITH DELIVERY OF MESSAGES, LEAVING THE PARTICULAR MODE OF TRAVEL TO BE USED BY HIM TO HIS DISCRETION AND DEPENDENT UPON THE AVAILABILITY OF SUCH MODE OF TRANSPORTATION WHEN NEEDED. THUS, CONTRARY TO THE COURT'S UNDERSTANDING IN THE MATTER, THE SEVERAL TEMPORARY DUTY AND TRAVEL ORDERS DID NOT REQUIRE THE PERFORMANCE OF ANY DUTY BY THE PLAINTIFF, GRIFFIN, WHEN TRAVELING BY AIR, NOR DID THOSE ORDERS REQUIRE HIM TO PARTICIPATE REGULARLY AND FREQUENTLY IN AERIAL FLIGHTS. NOTWITHSTANDING THE FOREGOING, THE COURT DECIDED THAT GRIFFIN WAS ENTITLED TO RECOVER, APPARENTLY ON THE THEORY THAT HIS TRAVEL BY AIR, ALTHOUGH PERFORMED AS A PASSENGER ON COMMERCIAL OR GOVERNMENT AIRCRAFT, WAS OF THE SAME NATURE AS THE TRAVEL PERFORMED BY HIM UNDER THE SPECIAL ORDERS OF OCTOBER 26, 1945. ALSO, AS A BASIS FOR ESTABLISHING THAT HE HAD MET THE MINIMUM FLIGHT REQUIREMENTS AS A NONFLYING OFFICER THE COURT ACCEPTED HIS EX PARTE AND SELF-SERVING STATEMENT AS TO THE NUMBER OF FLIGHTS PERFORMED BECAUSE, AS THE COURT SAID,"THIS PROOF WAS NOT CONTRADICTED.'

THE FACTS IN THE GRIFFIN CASE DIFFER SIGNIFICANTLY FROM THOSE FOUND IN THE PRESENT DYER CASE AND, HENCE, THAT DECISION IS NOT CONTROLLING AND CONSTITUTES NO BASIS FOR ALLOWANCE OF THE DYER CLAIM. THE SEVERAL TRAVEL AND TEMPORARY DUTY ORDERS ISSUED TO MR. DYER COVERING THE PERIOD OF HIS CLAIM HAVE AGAIN BEEN CAREFULLY EXAMINED, AND NOT ONE OF THEM, EITHER IN EXPRESS TERMS OR BY ANY REASONABLE IMPLICATION, REQUIRED HIM TO PARTICIPATE AS A NONFLYING OFFICER IN REGULAR AND FREQUENT AERIAL FLIGHTS WITHIN THE PURVIEW OF THE APPLICABLE PROVISIONS OF LAW. UNDER THOSE ORDERS, THE PARTICULAR MODE OF TRAVEL UTILIZED BY MR. DYER AS A MAIL COURIER IN DELIVERING MESSAGES WAS, SUBJECT TO ITS AVAILABILITY AND CERTAIN CONDITIONS AS THEREIN SPECIFIED, LEFT TO HIS OWN CHOICE AND ELECTION. THE FACT THAT INCIDENT TO HIS ASSIGNED DUTIES AS A MAIL COURIER HE MAY HAVE TRAVELED BY COMMERCIAL OR MILITARY AIR WHERE SUCH MODE OF TRAVEL WAS THE ONLY AVAILABLE MEANS OF TRANSPORTATION DID NOT SERVE TO PLACE HIM IN AN AUTHORIZED FLYING DUTY STATUS AS A NONFLYING OFFICER.

CONSEQUENTLY, IN THE ABSENCE OF COMPETENT ORDERS DIRECTING OR REQUIRING THE PLAINTIFF DYER TO PARTICIPATE REGULARLY AND FREQUENTLY IN AERIAL FLIGHTS, HIS RIGHT TO FLYING DUTY PAY AS A NONFLYING OFFICER ON THE BASIS OF THE AIR TRAVEL WHICH HE PERFORMED AS A MAIL COURIER DURING THE PERIOD OF HIS CLAIM IS TOO DOUBTFUL TO JUSTIFY OR WARRANT SETTLEMENT IN HIS FAVOR BY THIS OFFICE.

ACCORDINGLY, THE PLAINTIFF DYER IS FREE TO CONTINUE TO PROSECUTE HIS CLAIM BEFORE THE COURT OF CLAIMS.