Hurtt v. United States, 345-61.

• Decision Date: 07 November 1962
• Docket Number: No. 345-61.,345-61.
• Parties: Ethel R. HURTT v. The UNITED STATES.
• Court: U.S. Claims Court

159 Ct. Cl. 126, 309 F.2d 404 (1962)

Ethel R. HURTT v. The UNITED STATES.

No. 345-61.

United States Court of Claims.

November 7, 1962.

Claude L. Dawson, Washington, D. C., for plaintiff.

Robert R. Donlan, with whom was Joseph D. Guilfoyle, Acting Asst. Atty. Gen., for defendant.

JONES, Chief Judge.

This is a suit for a cost-of-living annuity increase granted by the Congress in 1958 to certain annuitants and their survivors which plaintiff, the widow of a Federal employee, claims was wrongly denied her by the United States Civil Service Commission.

Plaintiff's husband died on March 6, 1955. At the time of his death he was an employee of the Federal Government and had contributed into the civil service retirement and disability fund a total of $3,147.15, thereby earning an annuity of $1,507.27.

Shortly after her husband's death, plaintiff applied to the United States Civil Service Commission for death benefits.¹ She was informed by its Retirement Division, in a letter dated April, 19, 1955, that it had been determined that "you are entitled" to a widow's annuity and that payments would commence the first of the month after she had reached age 50. That letter contained the following statement:

"A careful review has been made of your application * * * under the Civil Service Retirement System, and based on the information you give, it has been determined that you are entitled to a widow\'s annuity payable in monthly installments which will commence the first of the month after you reach age 50 and will continue for life unless you marry again." Emphasis supplied.

Plaintiff became 50 years of age on August 16, 1958. Thereafter, beginning on September 1, 1958, she was paid an annuity of $63 per month, an amount equal to one-half of the annuity adjusted to the nearest dollar which would have been payable to her husband had he been eligible for retirement on the date of his death. This was in accordance with the law in effect on March 6, 1955, the date of her husband's death.²

Shortly before plaintiff received her first payment, the Congress provided, in the Act of June 25, 1958, 72 Stat. 218 hereinafter referred to as the 1958 Act); a 10 percent cost-of-living increase in the civil service retirement annuities of annuitants and survivors who on August 1, 1958, were receiving or entitled to receive an annuity based on service which terminated prior to October 1, 1956. That Act provided, in pertinent part, as follows:

"Sec. 1. That (a) the annuity of each retired employee or Member of Congress who, on August 1, 1958, is receiving or entitled to receive an annuity from the civil service retirement and disability fund based on service which terminated prior to October 1, 1956, shall be increased by 10 per centum, * * *.

"(b) The annuity otherwise payable from the civil service retirement and disability fund to —

"(1) each survivor who on August 1, 1958, is receiving or entitled to receive an annuity based on service which terminated prior to October 1, 1956, and

"(2) each survivor of a retired employee or Member of Congress described in subsection (a) of this section,

shall be increased by 10 per centum. * * * Emphasis supplied.

* * * * * *

"Sec. 3. (a) An increase in annuity provided by subsection (a), or clause (1) of subsection (b), of the first section of this Act shall take effect on August 1, 1958. An increase in annuity provided by clause (2) of such subsection (b) shall take effect on the commencing date of the survivor annuity."

As the unremarried widow of a Federal employee whose service was terminated by death prior to October 1, 1956, plaintiff requested that the United States Civil Service Commission increase her annuity in the amount of $6 per month, beginning September 1, 1958, in accordance with section 1(b) (1) of the 1958 Act. Her request was rejected and, after an appeal, finally denied on July 31, 1961.

The sole question in this suit is whether plaintiff was "entitled to receive" an annuity on August 1, 1958, within the meaning of the 1958 Act, and therefore eligible for the annuity increase provided therein.

Defendant upholds the administrative construction of the 1958 Act which denied plaintiff's claim on the ground that survivors "entitled to receive" an annuity on August 1, 1958, were only those eligible to receive payment on that date, i. e., survivors who would have been actually receiving an annuity on August 1, 1958, had they applied for it. Thus defendant attempts to avoid the language of the Civil Service Commission's letter of April 19, 1955, in which it informed plaintiff "you are entitled to receive" a widow's annuity, by contending that the statutory words "entitled to receive" should be construed to mean merely "eligible to receive." Moreover, defendant asserts, in its argument in opposition to plaintiff's motion for summary judgment, "Since plaintiff was neither receiving an annuity nor eligible to receive an annuity on August 1, 1958, she had no annuity to which the increase could be applied as of August 1, 1958." Emphasis supplied.

The 1958 Act nowhere requires that a survivor be "eligible" for an annuity on August 1, 1958, in the sense of being fully qualified to receive one payable on that date. All that it requires is that the survivor be "entitled" to receive, on August 1, 1958, an annuity based on service which terminated prior to October 1, 1956. The word "entitle" means "to give right to," to furnish with grounds for seeking or claiming with success; it means the granting of a privilege upon which no limitation can be arbitrarily imposed.³ The Act of February 28, 1948, gave plaintiff the right to an annuity in words mandatory and unequivocal:

"In case any * * * employee * * * shall die * * * after having rendered at least five years of civilian service * * * and is survived by a widow, such widow shall be paid an annuity beginning the first day of the month following the death of the * * * employee or following the widow\'s attainment of age fifty, whichever is the later, * * *."⁴ Emphasis supplied.

This statutory right or title was duly acknowledged in the normal course of business by the Civil Service Commission on April 19, 1955, in words appropriately chosen: She was "entitled" to an annuity, the Retirement Division said. The 1958 Act required only that she still be so entitled on August 1, 1958. If death or remarriage had occurred in the interim, she would not have been "entitled" to an annuity on that date. Neither of these events had transpired on August 1, 1958. She was therefore still legally entitled to receive a widow's annuity on that date. The fact that she could not then enjoy the benefit conferred upon her by the 1958 Act in no way subtracted from her right to do so which had been fully established even though actual payment would not begin until she attained age fifty. Defendant cannot with justice read into the 1958 Act a requirement that survivors be eligible to receive payment on August 1, 1958, or lose forever their rights to the annuity increase provided therein.

Defendant's conclusion that, in order to be "entitled to receive" an annuity on August 1, 1958, within the meaning of section 1(b) (1) of the 1958 Act, plaintiff must have been receiving an annuity, or at least eligible to receive payment on that date, is without merit for the further reason that it tends to obliterate the statutory distinction between one receiving an annuity and one only entitled to receive it. Since both those receiving and those entitled to receive were granted the increase, it seems hardly likely that the terms were intended to be synonymous, or practically so.

Defendant's conclusion in this regard is apparently deduced from the first sentence in section 3(a) of the 1958 Act, which provided that the annuity increases "shall take effect on August 1, 1958." A provision that a statute will take effect on a given date is a routine one and ordinarily cannot and should not be given a power and significance which it does not actually have. This was a provision necessary for administrative and budgetary purposes, but defendant interprets it to mean that a claimant under the Act, for all practical purposes, must have had an annuity in being to which the increase could have been applied on August 1, 1958. On this basis plaintiff was excluded from the benefits of the Act. Among other inadequacies, this position is inconsistent with defendant's concession that a survivor merely "eligible" to receive an annuity on August 1 qualified for the increase. The result is that one who was not receiving an annuity only because he had not applied for it, nevertheless had an annuity to which the increase could be applied, while one who had no annuity merely because 15 days short of 50 years of age had no annuity to which the increase could be applied. If the true test were an actual annuity in being to which an increase could be applied, it would seem that if one of these hypothetical annuitants were to be denied the increase, then both should be denied it.

Further evidence of the invalidity of defendant's interpretation is to be found in the fact that the Congress, in the same subsection under which plaintiff claims, had no hesitancy in conferring the benefit of the increase on a class of future annuitants whose identity and number was unknown on August 1, 1958.⁵

Can it, then, be maintained that it was the intent of the Congress that plaintiff, who had already been waiting over 3 years to receive the first payment of the annuity to which she had become entitled when her husband died on March 6, 1955, was to be excluded on the ground that she had nothing to which the increase could be applied on August 1, 1958?

The 1958 Act was for the sole purpose of providing annuity increases to those annuitants — and their survivors — whose service terminated prior to October 1, 1956, a class to which plaintiff unquestionably belonged. Apparently everyone claiming under service which...