B-171342, DEC. 8, 1970

B-171342: Dec 8, 1970

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WHILE CLAIMANT CONCEDES THAT THE DEDUCTION PROPERLY REFLECTS LEGISLATIVE MANDATE UNDER THE ACT HE ALLEGES THAT THE ACT IS UNCONSTITUTIONAL. THIS QUESTION IS NOT WITHIN THE PURVIEW OF THE GAO. WHICH WAS DEDUCTED FROM YOUR RETIRED PAY FOR THE PERIOD DECEMBER 18. YOU CONCEDE THAT OUR SETTLEMENT PROPERLY REFLECTS THE LEGISLATIVE MANDATE AS APPLICABLE TO YOUR CASE AND BASE YOUR CLAIM UPON THE CONTENTION THAT THE STATUTE INVOLVED SHOULD NOT BE APPLIED BECAUSE IT IS UNCONSTITUTIONAL. REQUEST THAT A BOARD OF REVIEW CONSIDER YOUR CLAIM AND RULE THAT THE DUAL COMPENSATION ACT IS INVALID AND UNCONSTITUTIONAL ON GROUNDS THAT IT IS DISCRIMINATORY AND THAT IT DEPRIVES YOU AND OTHERS SIMILARLY SITUATED FROM RECEIVING RETIREMENT PAY IN ACCORDANCE WITH AN AGREEMENT WITH THE UNITED STATES GOVERNMENT.

B-171342, DEC. 8, 1970

RETIRED PAY - DUAL COMPENSATION ACT - CONSTITUTIONALITY DENIAL OF CLAIM FOR $4,285.46 DEDUCTED FROM RETIRED PAY THROUGH THE OPERATION OF THE DUAL COMPENSATION ACT. WHILE CLAIMANT CONCEDES THAT THE DEDUCTION PROPERLY REFLECTS LEGISLATIVE MANDATE UNDER THE ACT HE ALLEGES THAT THE ACT IS UNCONSTITUTIONAL. THIS QUESTION IS NOT WITHIN THE PURVIEW OF THE GAO.

TO CAPTAIN ADDISON JOSEPH JOHNSON:

THIS REFERS TO YOUR LETTER OF NOVEMBER 10, 1970, CONCERNING OUR SETTLEMENT OF NOVEMBER 3, 1970, WHICH DISALLOWED YOUR CLAIM FOR REFUND OF $4,285.46, WHICH WAS DEDUCTED FROM YOUR RETIRED PAY FOR THE PERIOD DECEMBER 18, 1966, THROUGH JANUARY 31, 1970, UNDER THE PROVISIONS OF THE DUAL COMPENSATION ACT.

YOU CONCEDE THAT OUR SETTLEMENT PROPERLY REFLECTS THE LEGISLATIVE MANDATE AS APPLICABLE TO YOUR CASE AND BASE YOUR CLAIM UPON THE CONTENTION THAT THE STATUTE INVOLVED SHOULD NOT BE APPLIED BECAUSE IT IS UNCONSTITUTIONAL. YOU, THEREFORE, REQUEST THAT A BOARD OF REVIEW CONSIDER YOUR CLAIM AND RULE THAT THE DUAL COMPENSATION ACT IS INVALID AND UNCONSTITUTIONAL ON GROUNDS THAT IT IS DISCRIMINATORY AND THAT IT DEPRIVES YOU AND OTHERS SIMILARLY SITUATED FROM RECEIVING RETIREMENT PAY IN ACCORDANCE WITH AN AGREEMENT WITH THE UNITED STATES GOVERNMENT.

WE DO NOT CONSIDER IT OUR PREROGATIVE OR DUTY TO QUESTION THE CONSTITUTIONALITY OF LAWS ENACTED BY THE CONGRESS. RATHER, IT IS OUR VIEW THAT THIS OFFICE SHOULD GIVE FULL EFFECT TO SUCH LAWS UNLESS AND UNTIL A FINAL DETERMINATION OF UNCONSTITUTIONALITY HAS BEEN MADE BY THE COURTS. UNDER OUR SYSTEM OF GOVERNMENT THE DETERMINATION OF THE CONSTITUTIONALITY OF STATUTES IS RESERVED TO THE COURTS AND PRECLUDES ANY INHERENT INDEPENDENT POWER IN THE ADMINISTRATIVE OR ACCOUNTING OFFICES TO NULLIFY LEGISLATIVE ENACTMENTS BECAUSE OF PERSONAL BELIEFS THAT THEY CONTRAVENE THE CONSTITUTION. PANITZ V DISTRICT OF COLUMBIA, 112 F. 2D 39 (1940); UNITED STATES V BUTLER, 297 U.S. 1, 62 (1935); ADKINS V CHILDREN'S HOSPITAL, 261 U.S. 525, 544 (1923); 38 OP ATTY. GEN. 252 (1935); 39 ID. 11 (1937).

ACCORDINGLY, WE MUST SUSTAIN THE ACTION TAKEN IN OUR SETTLEMENT OF NOVEMBER 3, 1970, DISALLOWING YOUR CLAIM.

AS TO WHERE YOU MAY HAVE YOUR CASE REVIEWED, IT WOULD APPEAR THAT THE ONLY RECOURSE OPEN TO YOU WOULD BE TO INITIATE SUIT IN THE COURTS OF THE UNITED STATES. YOUR ATTENTION IS DIRECTED TO THE PROVISIONS OF 28 U.S.C. 1346; ID. 1491, CONCERNING MATTERS COGNIZABLE IN THE DISTRICT COURTS OF THE UNITED STATES AND IN THE UNITED STATES COURT OF CLAIMS.