B-160158, DEC. 2, 1966

B-160158, DEC. 2, 1966

TO BOYLE, BILBY, THOMPSON AND SCHOENHAIR:

REFERENCE IS MADE TO YOUR LETTER DATED NOVEMBER 9, 1966, PRESENTING ON BEHALF OF MR. DONALD H. FRIELING, TUCSON, ARIZONA, AN OFFER TO SETTLE A CLAIM OF THE GOVERNMENT AGAINST HIM IN THE AMOUNT OF $3,500, BY PAYMENT OF A TOTAL OF $1,000 AT THE RATE OF $100 PER MONTH COMMENCING ON DECEMBER 1, 1966, WITHOUT INTEREST.

THE GOVERNMENT'S CLAIM COVERS EDUCATIONAL ALLOWANCES AND TUITION REFUNDS WHICH MR. FRIELING RECEIVED FROM THE GENERAL ELECTRIC COMPANY DURING THE YEARS 1963 AND 1964. THE CLAIM WAS CONSIDERED IN OUR DECISION TO YOU OF OCTOBER 18, 1966, WHICH SET FORTH THAT THE GENERAL ELECTRIC COMPANY ASSIGNED ITS CLAIM IN THE MATTER TO THE UNITED STATES IN ACCORDANCE WITH THE TERMS OF THAT COMPANY'S CONTRACT WITH THE UNITED STATES ATOMIC ENERGY COMMISSION, COVERING OPERATION OF THE HANFORD ATOMIC ENERGY FACILITY AT OR IN THE VICINITY OF RICHLAND, WASHINGTON. BECAUSE MR. FRIELING REFUSED TO RETURN TO HANDFORD AS AN EMPLOYEE OF THE GENERAL ELECTRIC COMPANY AFTER THE PERIOD OF HIS EDUCATIONAL LEAVE HAD EXPIRED, IT WAS CONSIDERED THAT HE WAS LEGALLY LIABLE TO THE GENERAL ELECTRIC COMPANY TO MAKE RESTITUTION FOR THE EDUCATIONAL ALLOWANCES AND TUITION REFUNDS; AND THAT, AS ASSIGNEE OF THAT COMPANY'S CLAIM, THE GOVERNMENT IS ENTITLED TO RECOVER THE AMOUNT OF $3,500 FROM MR. FRIELING.

MR. FRIELING'S VARIOUS CONTENTIONS IN SUPPORT OF HIS POSITION THAT HE IS NOT LIABLE FOR REPAYMENT OF THE SUM OF $3,500 WERE CONSIDERED IN THE DECISION OF OCTOBER 18, 1966, AND IT REMAINS OUR OPINION THAT HE IS INDEBTED TO THE GOVERNMENT IN THE PRINCIPAL SUM OF $3,500. WE DID NOT DEMAND THE PAYMENT OF INTEREST BUT INDICATED THAT WE WOULD WITHHOLD ACTION IN THE CASE IF MR. FRIELING AGREED TO LIQUIDATE HIS INDEBTEDNESS THROUGH MONTHLY INSTALLMENT PAYMENTS OVER A PERIOD OF NOT TO EXCEED TWO YEARS.

IT IS YOUR PRESENT CONTENTION THAT THE GENERAL ELECTRIC COMPANY, ACTING IN CONCERT WITH THE ATOMIC ENERGY COMMISSION, ATTEMPTED TO AVOID ITS CONTRACTUAL OBLIGATIONS BY FORCING MR. FRIELING TO WORK FOR ANOTHER COMPANY AT HANFORD. WE DO NOT AGREE THAT THIS WAS THE SITUATION. THERE WAS INVOLVED ONLY A PRACTICAL INTERPRETATION OF THAT COMPANY'S GENERAL EDUCATIONAL LEAVE POLICY STATEMENT AS APPLIED TO AN EMPLOYEE WHO HAD BEEN PERFORMING SERVICES AT HANFORD WHICH WERE DIRECTLY RELATED TO THE PERFORMANCE BY THE GENERAL ELECTRIC COMPANY OF A COST-REIMBURSABLE TYPE OF CONTRACT WITH THE GOVERNMENT. IT WAS BELIEVED THAT THE RESPONSIBILITY FOR OPERATION OF THE HANFORD FACILITY WOULD BE TRANSFERRED TO ANOTHER COMPANY AND THAT THE BENEFITS OF MR. FRIELING'S ADVANCED EDUCATIONAL WORK SHOULD ACCRUE TO THE ATOMIC ENERGY COMMISSION SINCE THE GOVERNMENT HAD ASSUMED THE COST OF THE EDUCATIONAL ALLOWANCES AND TUITION REFUNDS RECEIVED BY HIM FROM THE GENERAL ELECTRIC COMPANY. MR. FRIELING DID NOT OBJECT TO THE PARTICULAR INTERPRETATION OF THE POLICY STATEMENT AT ANY TIME BEFORE HE WAS OFFERED REEMPLOYMENT AT HANFORD, AND HE APPARENTLY REFUSED TO RETURN TO HANFORD AS AN EMPLOYEE OF THE GENERAL ELECTRIC COMPANY FOR THE REASON THAT HE WAS NOT SATISFIED WITH THE PROPOSED NEW SALARY RATE IN CONNECTION WITH SUCH REEMPLOYMENT.

WE FIND NO BASIS FOR ANY REDUCTION IN THE GOVERNMENT'S CLAIM AGAINST MR. FRIELING AND THE SETTLEMENT OFFER MUST BE, AND IS HEREBY REJECTED. PROPOSE TO REFER THE CASE TO THE DEPARTMENT OF JUSTICE AT THE EARLIEST PRACTICABLE DATE AND IT WOULD BE FOR THE DEPARTMENT OF JUSTICE TO DETERMINE WHETHER THE ACCEPTANCE OF ANY COMPROMISE SETTLEMENT OFFER SUBMITTED AFTER SUCH REFERRAL WOULD BE IN THE BEST INTERESTS OF THE GOVERNMENT.