A-87123, AUGUST 4, 1937, 17 COMP. GEN. 92

A-87123: Aug 4, 1937

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WAS DISALLOWED FOR INSUFFICIENT PROOF THAT DISABILITY WAS NOT DUE TO HIS MISCONDUCT. IS ENTITLED TO HAVE HIS APPLICATION REINSTATED AND REDETERMINED UNDER THE PROVISIONS OF THE AMENDATORY ACT OF JUNE 24. ANNUITY ACCRUES FROM THE SAME DATE HIS RETIREMENT WOULD HAVE BEEN EFFECTIVE HAD HIS APPLICATION ORIGINALLY BEEN ALLOWED. IS AS FOLLOWS: THE COMMISSION RESPECTFULLY REQUESTS A RULING AS TO WHETHER THE PROVISO IN THE ACT OF JUNE 24. WHO WAS EMPLOYED IN THE POLICE DEPARTMENT OF THE CANAL ZONE FROM 1907 UNTIL JUNE 13. WHEN HE WAS HOSPITALIZED FOR MEDICAL TREATMENT. WAS DISALLOWED BY THE VETERANS' ADMINISTRATION ON SEPTEMBER 15. ON THE GROUND THAT HIS DISABILITY WAS NOT SHOWN TO BE INDEPENDENT OF THE EFFECTS OF VICIOUS HABITS AND WILLFUL MISCONDUCT ON HIS PART.

A-87123, AUGUST 4, 1937, 17 COMP. GEN. 92

LEGISLATION - RETIREMENT - RETROACTIVE EFFECT EMPLOYEE OF PANAMA CANAL WHOSE APPLICATION FOR DISABILITY RETIREMENT ANNUITY UNDER THE ACT OF MARCH 2, 1931, 46 STAT. 1472, WAS DISALLOWED FOR INSUFFICIENT PROOF THAT DISABILITY WAS NOT DUE TO HIS MISCONDUCT, ETC., IS ENTITLED TO HAVE HIS APPLICATION REINSTATED AND REDETERMINED UNDER THE PROVISIONS OF THE AMENDATORY ACT OF JUNE 24, 1936, 49 STAT. 1904, MODIFYING THE REQUIREMENT AS TO THE PROOF NECESSARY TO ESTABLISH THE RIGHT TO AN ANNUITY, AND IF ALLOWED, ANNUITY ACCRUES FROM THE SAME DATE HIS RETIREMENT WOULD HAVE BEEN EFFECTIVE HAD HIS APPLICATION ORIGINALLY BEEN ALLOWED.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE PRESIDENT, UNITED STATES CIVIL SERVICE COMMISSION, AUGUST 4, 1937:

YOUR LETTER OF JUNE 18, 1937, IS AS FOLLOWS:

THE COMMISSION RESPECTFULLY REQUESTS A RULING AS TO WHETHER THE PROVISO IN THE ACT OF JUNE 24, 1936, AMENDING THE CANAL ZONE RETIREMENT ACT, SHOULD BE CONSTRUED AS HAVING RETROACTIVE OPERATION WITH RESPECT TO THE PAYMENT OF ANNUITIES IN THE CASES OF CLAIMS REINSTATED AND REDETERMINED IN ACCORDANCE WITH ITS PROVISIONS.

THE QUESTION ARISES IN THE CASE OF MR. WILLIAM L. COOPER, WHO WAS EMPLOYED IN THE POLICE DEPARTMENT OF THE CANAL ZONE FROM 1907 UNTIL JUNE 13, 1932, WHEN HE WAS HOSPITALIZED FOR MEDICAL TREATMENT. ON JULY 7, 1932, THE DISTRICT COURT OF THE CANAL ZONE FOUND HIM TO BE OF UNSOUND MIND AND ORDERED HIM COMMITTED TO THE INSANE ASYLUM. MR. COOPER'S CLAIM TO ANNUITY BECAUSE OF TOTAL DISABILITY, FILED BY HIS GUARDIAN, WAS DISALLOWED BY THE VETERANS' ADMINISTRATION ON SEPTEMBER 15, 1932, ON THE GROUND THAT HIS DISABILITY WAS NOT SHOWN TO BE INDEPENDENT OF THE EFFECTS OF VICIOUS HABITS AND WILLFUL MISCONDUCT ON HIS PART.

UNDER THE ACT OF MARCH 2, 1931, GOVERNING THE RETIREMENT OF EMPLOYEES OF THE PANAMA CANAL AT THE TIME MR. COOPER'S CASE FIRST AROSE, IT WAS REQUIRED THAT THE CLAIMANT'S DISABILITY MUST BE SHOWN TO BE NOT DUE TO VICIOUS HABITS, INTEMPERANCE, OR WILLFUL MISCONDUCT ON THE PART OF THE EMPLOYEE BEFORE TITLE TO ANNUITY COULD BE RECOGNIZED. THE ACT OF JUNE 24, 1936, AMENDING THE CANAL ZONE CODE, PROVIDES THAT PROOF OF FREEDOM FROM VICIOUS HABITS, INTEMPERANCE, OR WILLFUL MISCONDUCT FOR A PERIOD OF MORE THAN FIVE YEARS NEXT PRIOR TO BECOMING DISABLED FOR USEFUL AND EFFICIENT SERVICE SHALL NOT BE REQUIRED IN ANY CASE. IT IS FURTHER PROVIDED BY THE AMENDATORY ACT THAT ANY CLAIM HERETOFORE DISALLOWED BY REASON OF THE REQUIREMENT OF SUCH PROOF WITH RESPECT TO A LONGER PERIOD THAN FIVE YEARS SHALL, UPON REQUEST OF THE APPLICANT, BE REINSTATED AND THEREUPON BE REDETERMINED UNDER THE PROVISIONS OF THE SECTION AS AMENDED. MR. COOPER'S CLAIM WAS REINSTATED AND AN ANNUITY CERTIFICATE HAS BEEN ISSUED EFFECTIVE JULY 1, 1936. AN APPEAL FROM THIS ACTION SO FAR AS THE EFFECTIVE DATE IS CONCERNED HAS BEEN ENTERED, IT BEING CONTENDED THAT THE ACT OF JUNE 24, 1936, IS RETROACTIVE WITH RESPECT TO THE PAYMENT OF ANNUITY AND THAT, ACCORDINGLY, MR. COOPER'S ANNUITY SHOULD BE EFFECTIVE FROM 1932 WHEN HE FIRST BECAME DISABLED. IT IS UPON THIS POINT THAT THE COMMISSION DESIRES YOUR RULING.

FOR SUCH USE AS YOU MAY WISH TO MAKE OF THEM, THERE ARE INCLOSED COPIES OF VARIOUS OFFICE MEMORANDA RELATING TO THE LEGAL ISSUE INVOLVED. THE COMMISSION WOULD APPRECIATE AN EARLY DECISION.

SECTION 4 (B) OF THE ACT OF MARCH 2, 1931, 46 STAT. 1472, PROVIDES:

ANY EMPLOYEE TO WHOM THIS ACT APPLIES WHO SHALL HAVE SERVED FOR A TOTAL PERIOD OF NOT LESS THAN FIVE YEARS, AND WHO, BEFORE BECOMING ELIGIBLE FOR RETIREMENT UNDER THE CONDITIONS DEFINED IN SECTION 2 HEREOF, SHALL HAVE BECOME TOTALLY DISABLED FOR USEFUL AND EFFICIENT SERVICE IN THE GRADE OR CLASS OF POSITION OCCUPIED BY THE EMPLOYEE, BY REASON OF DISEASE OR INJURY NOT DUE TO VICIOUS HABITS, INTEMPERANCE, OR WILLFUL MISCONDUCT ON THE PART OF THE EMPLOYEE, SHALL UPON HIS OWN APPLICATION OR UPON REQUEST OR ORDER OF THE GOVERNOR OF THE PANAMA CANAL, BE RETIRED ON AN ANNUITY COMPUTED IN ACCORDANCE WITH THE PROVISIONS OF SECTION 6 HEREOF.

NO CLAIM SHALL BE ALLOWED UNDER THE PROVISIONS OF THIS SECTION UNLESS THE APPLICATION FOR RETIREMENT SHALL HAVE BEEN EXECUTED PRIOR TO THE APPLICANT'S SEPARATION FROM THE SERVICE OR WITHIN SIX MONTHS THEREAFTER.

THIS SECTION WAS REENACTED VERBATIM AS SECTION 94 (B), TITLE 2, OF THE CANAL CODE, AND THE FIRST PARAGRAPH OF SUBDIVISION (B) WAS AMENDED BY THE ACT OF JUNE 24, 1936, 49 STAT. 1904, TO EAD:

ANY EMPLOYEE TO WHOM THIS ARTICLE APPLIES WHO SHALL HAVE SERVED FOR A TOTAL PERIOD OF NOT LESS THAN FIVE YEARS, AND WHO, BEFORE BECOMING ELIGIBLE FOR RETIREMENT UNDER THE CONDITIONS DEFINED IN SECTION 92 OF THIS TITLE, SHALL HAVE BECOME TOTALLY DISABLED FOR USEFUL AND EFFICIENT SERVICE IN THE GRADE OR CLASS OF POSITION OCCUPIED BY THE EMPLOYEE, BY REASON OF DISEASE OR INJURY NOT DUE TO VICIOUS HABITS, INTEMPERANCE, OR WILLFUL MISCONDUCT ON THE PART OF THE EMPLOYEE, SHALL UPON HIS OWN APPLICATION OR UPON REQUEST OR ORDER OF THE GOVERNOR OF THE PANAMA CANAL, BE RETIRED ON AN ANNUITY COMPUTED IN ACCORDANCE WITH THE PROVISIONS OF SECTION 96 OF THIS TITLE: PROVIDED, THAT PROOF OF FREEDOM FROM VICIOUS HABITS, INTEMPERANCE, OR WILLFUL MISCONDUCT FOR A PERIOD OF MORE THAN FIVE YEARS NEXT PRIOR TO BECOMING SO DISABLED FOR USEFUL AND EFFICIENT SERVICE, SHALL NOT BE REQUIRED IN ANY CASE; AND ANY CLAIM HERETOFORE DISALLOWED UNDER THIS SECTION BY REASON OF THE REQUIREMENT OF SUCH PROOF WITH RESPECT TO A LONGER PERIOD THAN FIVE YEARS, SHALL UPON REQUEST OF THE APPLICANT BE REINSTATED, AND SHALL THEREUPON BE REDETERMINED UNDER THE PROVISIONS OF THE SECTION AS HEREIN AMENDED.

IT IS A GENERAL RULE THAT AN AMENDMENT OF A STATUTE IS NOT TO BE CONSTRUED AS RETROACTIVELY EFFECTIVE UNLESS IT IS SO PROVIDED THEREIN EITHER SPECIFICALLY OR BY NECESSARY IMPLICATION. ACCORDINGLY, THE PROVISO ADDED BY THE AMENDMENT WOULD BE PROSPECTIVE ONLY IN ITS APPLICATION (REYNOLDS V. MCARTHUR, 2 PET. 417-435; SOUTHWESTERN COAL CO. V. MCBRIDE, 185 U.S. 499-503; WRIGHTMAN V. BOONE CO., 88 FED.REP. 435; JASPER V. UNITED STATES, 43 CT.CLS. 368; 7 COMP. GEN. 266) BUT FOR THE LAST CLAUSE THEREOF SPECIFICALLY PROVIDING FOR THE REINSTATEMENT AND REDETERMINATION OF ANY CLAIM THERETOFORE DISALLOWED BECAUSE OF PREVIOUS REQUIREMENTS WITH RESPECT TO PROOF. THIS CLEARLY IS RETROSPECTIVE IN ITS OPERATION. SEE ALSO, IN THIS CONNECTION, SECTION 59 C.J. 1178, AND CASES THEREIN CITED.

IT IS TO BE NOTED THAT THE ORIGINAL STATUTE REQUIRED THE APPLICATION FOR DISABILITY ANNUITY TO BE FILED BEFORE OR WITHIN 6 MONTHS AFTER DATE OF SEPARATION FROM THE SERVICE. THE AMENDED STATUTE MAKES NO CHANGE IN THIS RESPECT AND DOES NOT AUTHORIZE OR REQUIRE THE FILING OF A NEW APPLICATION OR CLAIM BEYOND THE 6 MONTHS' PERIOD. IT DOES, HOWEVER, PROVIDE THAT ANY CLAIM THERETOFORE DISALLOWED BY REASON OF THE PROOF PREVIOUSLY REQUIRED IN EXCESS OF THAT REQUIRED UNDER THE AMENDED STATUTE SHALL, UPON REQUEST OF THE APPLICANT, BE REINSTATED AND REDETERMINED. PRIOR TO THE ENACTMENT OF THE AMENDMENT HERE IN QUESTION, UPON THE FAVORABLE DETERMINATION OF A CLAIM PROPERLY FILED WITHIN THE 6 MONTHS' PERIOD THE BENEFITS WOULD BECOME EFFECTIVE UPON THE FIRST DAY OF THE MONTH SUCCEEDING THAT IN WHICH THE RETIREMENT WOULD OTHERWISE HAVE BECOME EFFECTIVE. SEE ACT OF APRIL 23, 1930, 46 STAT. 253; 11 COMP. GEN. 1; 12 ID. 54. THAT IS TO SAY, THE ANNUITY WOULD BEGIN TO ACCRUE THE FIRST DAY OF THE MONTH FOLLOWING THE DISABILITY OR THE FIRST DAY OF THE MONTH FOLLOWING THE EXPIRATION AFTER THE DISABILITY OF ANY ACCRUED LEAVE WITH PAY. THE AMENDMENT MADE NO CHANGE IN THIS BUT MERELY CHANGES THE REQUIREMENT AS TO THE PROOF NECESSARY TO ESTABLISH A RIGHT TO ANY ANNUITY UNDER THE ACT.

IN REINSTATING AND REDETERMINING A CLAIM THERETOFORE DISALLOWED, THE DETERMINATION OF THE CLAIMANT'S RIGHT TO ANNUITY MUST STAND OR FALL UPON EVIDENCE OF THE EXISTENCE OF THE DISABILITY PRIOR TO THE FILING OF THE APPLICATION. THERE IS NO AUTHORITY IN THE AMENDED ACT TO RECEIVE OR CONSIDER EVIDENCE OF A DISABILITY OCCURRING AT SOME DATE SUBSEQUENT TO THE ORIGINAL APPLICATION FOR ANNUITY. BUT UPON A DETERMINATION THAT THE CLAIMANT BECAME TOTALLY DISABLED AS OF A DATE PRIOR TO THE FILING OF THE ORIGINAL APPLICATION, AND THAT THE DISABILITY WAS NOT DUE TO VICIOUS HABITS, INTEMPERANCE, OR WILLFUL MISCONDUCT, IT NECESSARILY FOLLOWS THAT THE DATE FROM WHICH THE ANNUITY IS TO BE COMPUTED IS THE SAME AS THOUGH THE PROOF FURNISHED IN SUPPORT OF THE ORIGINAL APPLICATION HAD BEEN FOUND SUFFICIENT UNDER THE REQUIREMENTS EXISTING PRIOR TO THE ENACTMENT OF THE AMENDMENT. IN OTHER WORDS, THE AMENDMENT OF JUNE 24, 1936, MADE NO CHANGE IN THIS FORMER EMPLOYEE'S RIGHTS UNDER THE RETIREMENT ACT BUT CHANGED ONLY THE REQUIREMENT AS TO THE PROOF NECESSARY TO ESTABLISH THOSE RIGHTS.