B-90765, JAN. 16, 1962

B-90765: Jan 16, 1962

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WHETHER YOU ARE ENTITLED TO A REFUND OF ANY BALANCE TO YOUR CREDIT IN THE RETIREMENT FUND. YOU WERE FOUND TO HAVE RECOVERED FROM THIS CONDITION ON SEPTEMBER 9. A CHEST X-RAY TAKEN AT THE TIME OF YOUR MEDICAL EXAMINATION IN 1954 WAS NEGATIVE. SECTION 4 (E) OF WHICH READS IN PERTINENT PART AS FOLLOWS: "IN THE CASE OF AN ANNUITANT WHOSE ANNUITY IS HERETOFORE OR HEREAFTER DISCONTINUED BECAUSE OF A MEDICAL FINDING THAT THE ANNUITANT HAS RECOVERED FROM DISABILITY AND SUCH ANNUITANT IS NOT REEMPLOYED IN ANY POSITION INCLUDED IN THE PROVISIONS OF THIS ACT. THE CIVIL SERVICE COMMISSION DENIED YOUR REQUEST BECAUSE YOUR PRESENT DISABILITY IS NOT A RECURRENCE OF THAT FOR WHICH YOU WERE RETIRED. DOES NOT APPLY TO YOUR CASE SINCE YOUR DISABILITY OCCURRED PRIOR TO ITS ENACTMENT AND FURTHER THAT THE LAW IS DISCRIMINATORY AND THEREFORE UNCONSTITUTIONAL.

B-90765, JAN. 16, 1962

TO MR. EDGAR P. SEARCY:

ON DECEMBER 27, 1961, YOU REQUESTED OUR DECISION WHETHER YOU MAY BE RESTORED TO THE DISABILITY ANNUITY ROLLS AND, IF NOT, WHETHER YOU ARE ENTITLED TO A REFUND OF ANY BALANCE TO YOUR CREDIT IN THE RETIREMENT FUND.

THE LETTER OF DECEMBER 19, 1961, FROM THE UNITED STATES CIVIL SERVICE COMMISSION TO HONORABLE GEORGE ANDREWS, HOUSE OF REPRESENTATIVES, WHICH YOU FORWARDED WITH YOUR REQUEST, SHOWS THAT YOU RETIRED ON DISABILITY BECAUSE OF CHRONIC EXZEMA OF THE SKIN ON AUGUST 1, 1953. YOU WERE FOUND TO HAVE RECOVERED FROM THIS CONDITION ON SEPTEMBER 9, 1954, AND DROPPED FROM THE DISABILITY ROLLS ON AUGUST 31, 1955. A CHEST X-RAY TAKEN AT THE TIME OF YOUR MEDICAL EXAMINATION IN 1954 WAS NEGATIVE. A RECENT MEDICAL EXAMINATION SHOWS THAT YOU BECAME TOTALLY DISABLED FROM PULMONARY TUBERCULOSIS IN SEPTEMBER 1961, SOME SIX YEARS AFTER YOU HAD BEEN DROPPED FROM THE ANNUITY ROLLS.

ON THE BASIS OF THIS LATER DISABILITY YOU REQUESTED THAT YOU BE RESTORED TO THE ANNUITY ROLLS UNDER THE PROVISIONS OF PUBLIC LAW 87 350, APPROVED OCTOBER 4, 1961, SECTION 4 (E) OF WHICH READS IN PERTINENT PART AS FOLLOWS:

"IN THE CASE OF AN ANNUITANT WHOSE ANNUITY IS HERETOFORE OR HEREAFTER DISCONTINUED BECAUSE OF A MEDICAL FINDING THAT THE ANNUITANT HAS RECOVERED FROM DISABILITY AND SUCH ANNUITANT IS NOT REEMPLOYED IN ANY POSITION INCLUDED IN THE PROVISIONS OF THIS ACT, ANNUITY AT THE SAME RATE SHALL BE RESTORED EFFECTIVE FROM THE DATE OF MEDICAL EXAMINATION SHOWING A RECURRENCE OF SUCH ABILITY.'

THE CIVIL SERVICE COMMISSION DENIED YOUR REQUEST BECAUSE YOUR PRESENT DISABILITY IS NOT A RECURRENCE OF THAT FOR WHICH YOU WERE RETIRED.

YOU NOW CONTEND THAT PUBLIC LAW 87-350, SUPRA, DOES NOT APPLY TO YOUR CASE SINCE YOUR DISABILITY OCCURRED PRIOR TO ITS ENACTMENT AND FURTHER THAT THE LAW IS DISCRIMINATORY AND THEREFORE UNCONSTITUTIONAL.

PUBLIC LAW 87-350, SUPRA, IS AN AMENDMENT TO THE CIVIL SERVICE RETIREMENT ACT, AS AMENDED. UNDER THE PROVISIONS OF THE ACT THE ADMINISTRATION OF THE RETIREMENT SYSTEM IS VESTED IN THE UNITED STATES CIVIL SERVICE COMMISSION AND ITS DETERMINATION AS TO ELIGIBILITY FOR BENEFITS THEREUNDER IS NOT SUBJECT TO REVIEW BY US. SEE 5 U.S.C. 2266. SIMILARLY, WE ARE WITHOUT AUTHORITY TO ADJUDGE AN ACT OF THE CONGRESS TO BE UNCONSTITUTIONAL SUCH QUESTION BEING FOR CONSIDERATION BY THE DULY CONSTITUTED COURTS.

WE REGRET TO INFORM YOU, THEREFORE, THAT WE ARE UNABLE TO GRANT YOU ANY ASSISTANCE IN THE MATTER COMPLAINED OF BY YOU.