B-136322, JUL. 18, 1958

B-136322, JUL. 18, 1958

TO MR. HARRY J. SIMON:

REFERENCE IS MADE TO YOUR LETTER OF APRIL 28, 1958, WRITTEN IN BEHALF OF DR. BERNARD TEITEL, AND REQUESTING THAT WE RECONSIDER HIS INDEBTEDNESS TO THE UNITED STATES IN THE AMOUNT OF $1,778.84, REPRESENTING THE BALANCE DUE FOR LIQUIDATED DAMAGES UNDER A CAREER RESIDENCY AGREEMENT WITH THE VETERANS ADMINISTRATION.

THE RECORD SHOWS THAT DR. TEITEL ENTERED INTO A CAREER RESIDENCY AGREEMENT WITH THE VETERANS ADMINISTRATION ON JANUARY 12, 1955, FOR RESIDENCY TRAINING IN NEUROLOGY AND PSYCHIATRY FOR A PERIOD OF FROM ONE TO THREE YEARS AS DETERMINED BY THE VETERANS ADMINISTRATION. THE EVIDENCE INDICATES THAT IN SEPTEMBER 1955, AFTER APPROXIMATELY EIGHT MONTHS OF TRAINING, HE FIRST REQUESTED THAT THE AGREEMENT BE TERMINATED. THIS REQUEST FOR TERMINATION OF THE AGREEMENT IS REFERRED TO IN LETTER OF OCTOBER 12, 1955, TO DR. TEITEL FROM DR. EDWARDS. THE REQUEST WAS APPROVED EFFECTIVE FEBRUARY 1, 1956, SUBJECT TO THE TERMS OF THE AGREEMENT WHICH PROVIDED FOR THE PAYMENT OF LIQUIDATED DAMAGES TO THE UNITED STATES OF $2,655. THERE WAS DUE DR. TEITEL AS SALARY AT THE TIME OF HIS RESIGNATION $416.11 AND $460.05 WAS IN THE CIVIL SERVICE RETIREMENT ACCOUNT, WHICH AMOUNTS WERE SET-OFF AGAINST THE INDEBTEDNESS LEAVING A BALANCE DUE THE UNITED STATES OF $1,778.84. THE RECORD SHOWS THAT DR. TEITEL STATED THAT HE WOULD BE UNABLE TO MAKE ANY ATTEMPT TO LIQUIDATE THE INDEBTEDNESS FOR A PERIOD OF ONE YEAR AFTER THE TERMINATION OF THE CAREER RESIDENCY. A MORATORIUM OF TWELVE MONTHS WAS GRANTED, PROVIDED THE INDEBTEDNESS WAS LIQUIDATED OVER A REASONABLE PERIOD OF TIME AND PAYMENT WOULD BE MADE DURING THE ONE YEAR MORATORIUM IF THE CIRCUMSTANCES PERMITTED.

IN YOUR LETTER OF APRIL 28, 1958, YOU SAY THAT DR. TEITEL ENTERED INTO NEGOTIATIONS AND CONVERSATIONS WITH VARIOUS DOCTORS, DURING THE YEAR 1954, WHO WERE APPARENTLY IN CHARGE OF THE RESIDENCY TRAINING AT THE LONG BEACH VETERANS ADMINISTRATION HOSPITAL, CALIFORNIA. YOU SAY HE WAS GIVEN STRONG ASSURANCE BY THESE DOCTORS THAT HE WOULD COMPLETE THE PERIOD OF SERVICE AT THE LONG BEACH VETERANS ADMINISTRATION HOSPITAL. YOU FURTHER SAY THAT DR. TEITEL RESIGNED WHEN, IN DECEMBER 1955 OR JANUARY 1956, HE WAS ORDERED TO BE TRANSFERRED TO A COLORADO VETERANS ADMINISTRATION HOSPITAL. CONSIDERED THIS A BREACH OF THE AGREEMENT AND THE ORAL PROMISES WHICH HAD PRECEDED THE AGREEMENT. IN THAT REGARD WE NOTE AN INCONSISTENCY IN THAT THE EVIDENCE SHOWS THAT HE FIRST TENDERED HIS RESIGNATION IN SEPTEMBER 1955 OR THREE TO FOUR MONTHS PRIOR TO THE TIME YOU SAY HE WAS ORDERED TO BE TRANSFERRED TO COLORADO.

CONCERNING THE ALLEGED ORAL NEGOTIATIONS AND CONVERSATIONS WITH VARIOUS DOCTORS AT THE LONG BEACH VETERANS ADMINISTRATION HOSPITAL PRIOR TO HIS SIGNING THE EMPLOYMENT AGREEMENT, THE RULE IS--- AS YOU DOUBTLESS KNOW--- THAT WHERE PRELIMINARY NEGOTIATIONS ARE CONSUMMATED BY A WRITTEN AGREEMENT, OR AN ORAL CONTRACT IS EVIDENCED BY A SUBSEQUENT AGREED MEMORANDUM IN WRITING, THE WRITING, WHERE COMPLETE AND UNAMBIGUOUS, SUPERSEDES, ALL PREVIOUS UNDERSTANDINGS, AND THE INTENT OF THE PARTIES MUST BE ASCERTAINED THEREFROM. REPRESENTATIONS MADE DURING THE NEGOTIATION OF A CONTRACT WHICH ARE NOT INCLUDED IN THE FINAL AGREEMENT ARE NOT A PART OF IT AND ARE NOT BINDING. 32 C.J.S. 322. SEE ALSO, NATIONAL CASH REGISTER CO. V. HOSIER, 232 N.W. 177; SIMON V. AETNA CASUALTY AND SURETY CO., 148 S.E. 648; UNION PAVING CO. V. UNITED STATES, 115 F.SUPP. 179; CALLAHAN CONSTRUCTION CO. V. UNITED STATES, 47 C.CLS. 177; BRAWLEY V. UNITED STATES, 96 U.S. 168, 173; SIMPSON V. UNITED STATES, 172 U.S. 372, 379; AND GRIEFEN V. UNITED STATES, 43 C.CLS. 107, 113.

THERE IS ON FILE IN OUR OFFICE AN APPLICATION FOR RESIDENCY TRAINING IN NEUROLOGY AND PSYCHIATRY IN THE DEPARTMENT OF MEDICINE AND SURGERY OF THE VETERANS ADMINISTRATION, SIGNED BY BERNARD TEITEL, M.D., AND ACCEPTED BY THE UNITED STATES ON JANUARY 12, 1955, WHICH PROVIDES, IN PART, AS FOLLOWS:

"4. I WILL ACCEPT MY TRANSFER ORDERED BY THE VETERANS ADMINISTRATION FROM ONE STATION TO ANOTHER STATION, SAME TO BE AT GOVERNMENT EXPENSE WITH RESPECT TO ME AND MY FAMILY AND MY HOUSEHOLD GOODS INSOFAR AS THE THEN APPLICABLE GOVERNMENT REGULATIONS WILL PERMIT.

"5. THE DURATION OF THE TRAINING HEREIN CONTEMPLATED MAY BE ONE YEAR OR TWO YEARS OR THREE YEARS, AS DETERMINED BY THE VETERANS ADMINISTRATION. IN CONSIDERATION OF THE PROVIDING OF SUCH TRAINING AS MAY BE AWARDED TO ME, I AGREE TO REMAIN IN THE EMPLOYMENT OF THE VETERANS ADMINISTRATION AS A FULL-TIME PHYSICIAN IN THE DEPARTMENT OF MEDICINE AND SURGERY IN THE FIELD OF PSYCHIATRY AND NEUROLOGY THEREOF AS FOLLOWS:

"/A) FOR ONE YEAR SERVED IN TRAINING STATUS, THE OBLIGATED SERVICE SHALL BE ONE ADDITIONAL YEAR.

"/B) FOR TWO YEARS SERVED IN TRAINING STATUS, THE OBLIGATED SERVICE SHALL BE ONE AND ONE-HALF ADDITIONAL YEARS.

"/C) FOR THREE YEARS SERVED IN TRAINING STATUS, THE OBLIGATED SERVICE SHALL BE TWO ADDITIONAL YEARS.

"THE TERM "YEAR SERVED IN TRAINING STATUS," AS USED HEREIN, MEANS 12 MONTHS OR ANY PORTION OF A YEAR OF SIX MONTHS OR MORE.

"6. THE PERIODS OF EMPLOYMENT MENTIONED ABOVE WHICH EXCEED THE RESPECTIVE PERIODS OF TRAINING ARE HEREIN REFERRED TO AS "OBLIGATED SERVICE PERIODS.' THE VETERANS ADMINISTRATION SHALL BE ENTITLED TO SUCH "OBLIGATED SERVICE PERIODS:" IN WHOLE OR IN PART, EITHER AT THE END OF THE FIRST YEAR'S TRAINING OR AT THE END OF THE SECOND YEAR, IF ANY, OR AT THE END OF THE THIRD YEAR, IF ANY. IN THE EVENT THAT SUCH "OBLIGATED SERVICE" OCCURS PRIOR TO COMPLETING THE TOTAL TRAINING PERIOD AWARDED ME, AND AT A HOSPITAL DIFFERENT FROM THAT WHERE I WAS ORIGINALLY ENROLLED AS A RESIDENT, I SHALL RETURN TO SUCH HOSPITAL TO COMPLETE SUCH RESIDENCY TRAINING BUT SUCH RETURN SHALL BE AT THE EXPENSE OF THE GOVERNMENT, WITH TRANSPORTATION OF MYSELF, MY FAMILY, IF ANY, AND HOUSEHOLD GOODS, WITHIN THE LIMITS OF THE THEN APPLICABLE GOVERNMENT REGULATIONS.

"8. UNLESS MY EMPLOYMENT SHALL BE EARLIER TERMINATED BY THE GOVERNMENT, I SHALL BE OBLIGATED TO CONTINUE SAID EMPLOYMENT IN THE DEPARTMENT OF MEDICINE AND SURGERY OF THE VETERANS ADMINISTRATION IN THE FIELD OF PSYCHIATRY OR NEUROLOGY AT SUCH STATION OR STATIONS DESIGNATED BY THE CHIEF MEDICAL DIRECTOR OF THE VETERANS ADMINISTRATION DURING THE PERIOD OF "OBLIGATED SERVICE" CONSEQUENT THEREON AS HEREINABOVE STATED AND BECAUSE THE AMOUNT OF DAMAGES FOR BREACH OF THIS AGREEMENT WOULD BE DIFFICULT OF EXACT ASCERTAINMENT, IT IS NOW AGREED THAT I SHALL BE OBLIGATED TO PAY TO THE UNITED STATES NOT AS A PENALTY BUT AS AGREED LIQUIDATED DAMAGES THE SUM OF $2,655.00 FOR EACH YEAR (12 MONTHS) OR EACH LESSER PERIOD OF SIX MONTHS OR MORE FOR WHICH I FAIL TO PERFORM THE OBLIGATED SERVICE HEREBY ASSUMED.'

IT WILL BE NOTED FROM THE AGREEMENT THAT THERE IS NO OBLIGATION ON THE PART OF THE GOVERNMENT TO KEEP DR. TEITEL AT ANY DESIGNATED STATION DURING HIS PERIOD OF DUTY WITH THE VETERANS ADMINISTRATION. ON THE CONTRARY, THE TERMS OF THE AGREEMENT, PROVIDED THAT HE MAY BE TRANSFERRED FROM ONE STATION TO ANOTHER STATION BY THE CHIEF MEDICAL DIRECTOR OF THE VETERANS ADMINISTRATION AS THE NEEDS OF THE SERVICE MIGHT REQUIRE DURING THE PERIOD OF THE OBLIGATED SERVICE. SINCE HE VIOLATED THE AGREEMENT BY RESIGNING BEFORE THE PERIOD OF SERVICE EXPIRED, HE WAS CERTIFIED TO BE INDEBTED TO THE GOVERNMENT PURSUANT TO THE PROVISIONS OF THE ABOVE-QUOTED AGREEMENT.

THEREFORE, UPON REVIEW, THE PREVIOUS ACTION TAKEN BY OUR OFFICE IS SUSTAINED. ACCORDINGLY, THE AMOUNT DUE SHOULD BE REMITTED BY DR. TEITEL TO OUR OFFICE. PAYMENT SHOULD BE IN THE FORM OF A BANK DRAFT, CERTIFIED CHECK OR MONEY ORDER MADE PAYABLE TO "U.S. GENERAL ACCOUNTING OFFICE" AND FORWARDED TO THE CLAIMS DIVISION, UNITED STATES GENERAL ACCOUNTING OFFICE, POST OFFICE BOX 2610, WASHINGTON 13, D.C., REFERRING TO CLAIM NO. DB-Z1- 845-827.