B-180597 May 10, 1974

B-180597 May 10, 1974

The Honorable Mark O. Hatfield United States Senate

Dear Senator Hatfield:

This refers further to your letter of March 15, 1974, concerning the claim of Mr. Philip S. Cheney of Portland, Oregon, for a civil service annity. This matter was the subject of our letter of March 8, 1974, to you.

You have asked that we give consideration to submission of a report and recommendation for enactment of a private relief bill under provisions of the Meritorious Claims Act of April 10, 1928, 45 Stat. 413, 31 U.S.C. 236. That law authorizes submission of such reports and recommendations in cases where a claim against the United States is filed "that may not lawfully be adjusted by the use of the appropriation theretofore made, but which claim or demand in the judgement of the Comptroller General of the United States contains such elements of legal liability or equity as to be deserving of the consideration of the Congress."

We have carefully reviewed the information submitted to this Office concerning Mr. Cheney's claim. Special consideration has been given to the equity of the claim on the grounds that (1) Mr. Cheney was separated from the civil service less than 2 months before enactment of the act of january 24, 1942, 56 Stat.13, 16, under which law he would have acquired a vested right to a deferred annuity and (2) Mr. cheney was erroneously inforemed by the Department of State by the letter dated June 2, 1943, that he would be entitled to a deferred annuity at the age of 62 if he left his retirement deductions in the civil service tetirement and disability fund. However, for the reasons stated below we have reluctantly come to the conclusion that Mr. Cheney's claim is not the type that we may submit to the congress under the Meritorious Claims Act.

The purpose of the Meritorious Claims Act is to provide a means of relief in cases of claims subject to adjudication by the Comptroller General which cannot lawfully be allowed but which present such strong reasons for special consideration that this Office is compelled to recommend legislation by the Congress on behalf of the claimant. See testimony of Comptroller General J.R. McCarl before the House Committee on Expenditures in the Executive Departments on January 27, 1928, concerning H.R. 9583, 70th Congress, which was enacted as the Meritorious claims Act.

The record indicates that Mr. Cheney, who had completed 28 years and 2 months service at the age of 47, resigned his position on November 30, 1941, instead of defending himself against charges of misconduct. Under such circumstances his resignation was considered voluntary and under the laws then in effect he was not entitled to an annuity. In 1943 he requested refund of his retirement deductions but he withdrew that request upon advice that he could elect to leave his money in the civil service retirement and disability fund and that it would accumulate interest compounded annually at the rate of 3 percent from the date of his separation until he reached age 62, at which time would receive an annuity based ont he amount he had to his credit in the retirement fund. This information was erroneous since interest on money in the retirement fund was not payable after an employee's resignation and, while the law was changed 2 months after Mr. Cheney's resignation to permit payment of a deferred annuity to former employees with 5 or more years of service at age 62, such law was not retoractive.

Mr. Cheney indicates that he did not seek an annuity until he was about 65--3 years after he reached the age at which he had been erroneously advised that he would be eligible for annuity. At that time he was advised by the Civil Service commision that he did not qualify for an annuity. Presumably he was also notified that he could request refund of the money in the retirement fund. In this connection we point out that jurisdiction to adjudicates claims for retirement annuities has been given to the Civil Service Commision, not our Office. At the time of his resignation in 1941 Mr. Cheney could have defended himself against charges of misconduct. However, at that time, when the matter was fresh and witnesses would have been available to prove or disprove the charges against him, he elected to resign rather than face the charges. Later he delayed his application for an annuity for approximately 3 years after the time he had been advised that he would be eligible for such annuity. Moreover, there is no indication in the recored that Mr. Cheney has ever challenged the propriety of the above actions through administrative appeal or in the courts on the ground that they were arbitrary and capricious. In view of the above circumstances we do not believe that there are such elements of legal liability or equity involved as would warrant reporting Mr. Cheney's claim to the Congress under the Meritorious Claims Act of 1928.

Also, we have reviewed the legislative history of section 131 of the legislative Reorganization Act of 1946, the act of August 2, 1946, 60 Stat. 831, 2 U.S.C. 190g which provides as follows:

Sec. 190g. Nonconsideration of certain private bills and resolutions

No private bill or resolution (including so-called omnibus claims or pension bills), and no amendent to any bill or resolution, authorizing or directing (1) the payment of money for property damages, for personal injuries or death for which suit may be instituted under the Federal Tort Claims Act, or for a pension, (other than to carry out a provision of law or treaty stipulation); ***shall be received or considered in either the Senate or the House of Representatives." (Emphasis supplied.)

We note that this provision was included in the Legislative Reorganization Act of 1946 at every stage of its progression through the congress, from the time the bill, S. 2177 of the 79th Congress. As suggested in the memorandum of the Senate Office of the Legislative Counsel dated January 30, 1974, which was furnished with your initial request, it appears that private relief legislation to provide for a pension and therefore subject to a point of order as being in contravention of the provision quoted above.

Accordingly, we do not believe it would be appropriate for this Office to submit a recommendation for relief of Mr. Cheney under the Meritorious Claims Act.

Sincerely yours,

R. F. Keller Acting Comptroller General of the United States