U.S. Court of Appeals for Veterans Claims: Retroactive Reimbursement of Professional Liability Insurance Costs, B-300866, May 30, 2003

B-300866 May 30, 2003 Jump To VIEW DECISION RELATED PAGES GAO CONTACTS Highlights Sec. 7287 was not explicitly made retroactive. DECISION This is in response to a request for an advance decision pursuant to 31 U.S.C. We find that the effective date of the authority to pay the premium involved is not earlier than December 27. Nor does the legislative history clearly indicate that such entitlement was meant to be retroactive. BACKGROUND The CAVC was established by Congress under Article I of the Constitution as an independent tribunal not subject to the control of the President or the Administrative Office of the U.S. Is permitted to develop its own personnel and job classification system for its judicial and nonjudicial personnel. 38 U.S.C. There have been various times that the CAVC has requested and Congress has enacted various gap-filling statutory provisions. View Decision U.S. Court of Appeals for Veterans Claims: Retroactive Reimbursement of Professional Liability Insurance Costs, B-300866, May 30, 2003 DIGEST DECISION This is in response to a request for an advance decision pursuant to 31 U.S.C. Sec. 3529 by the Financial Manager of the United States Court of Appeals for Veterans Claims (CAVC) on whether the CAVC may retroactively reimburse an eligible Court employee for one-half the cost of professional liability insurance paid during calendar years 1998 to 2001. For the reasons stated below, we find that the effective date of the authority to pay the premium involved is not earlier than December 27, 2001, the date of passage of the amendment adding 38 U.S.C. Sec. 7287, which allowed the CAVC to utilize the professional liability insurance reimbursement authority. The statutory language of 38 U.S.C. Sec. 7287 does not specifically state that any entitlements arising under its authority should be provided retroactively, nor does the legislative history clearly indicate that such entitlement was meant to be retroactive. BACKGROUND The CAVC was established by Congress under Article I of the Constitution as an independent tribunal not subject to the control of the President or the Administrative Office of the U.S. Courts. 38 U.S.C. Sec. 7281. The CAVC submits its budget directly to and receives its appropriations directly from Congress, and is permitted to develop its own personnel and job classification system for its judicial and nonjudicial personnel. 38 U.S.C. Secs. 7281(a)--(g), 7282. As a result of this independent status, the CAVC has not had available to it the same general management, administrative, and expenditure authorities available to the Article III courts. Since its establishment, there have been various times that the CAVC has requested and Congress has enacted various gap-filling statutory provisions. See S. Rep. No. 86, 107th Cong., 1st Sess., at 28 (2001) and H.R. Rep. No. 156, 107th Cong., 1st Sess., at 6-7, 22-24 (2001) for a list of gap-filling statutory provisions. One authority from which the CAVC was definitionally excluded was the authority to cover a portion of the costs incurred by its employees for professional liability insurance. Government employees, whose jobs place them in positions where they risk being sued for certain tortious conduct, may purchase liability insurance as a protection against such suits, which may result in an award of compensatory or punitive damages that the federal employees themselves would be required to pay. See B-211883, Dec. 14, 1983. In 1996, as part of the Omnibus Consolidated Appropriations Act for Fiscal Year 1997, /1/ Congress enacted legislation authorizing the reimbursement of "qualified employees" of the executive and legislative branches for up to one-half the costs incurred by such employees for professional liability insurance. These permissive reimbursements were to be paid from amounts appropriated for salaries and expenses. In 1998, Congress amended the law to include as "qualified employees" justices, judges, judicial officers, supervisors, and managers within the judicial branch. /2/ In doing so, the amendment defined "justices" and "judges" as those covered by 28 U.S.C. Sec. 451, which excluded judges of the CAVC. Then, in 1999, Congress once again amended the law to make the reimbursement mandatory as of October 1, 1999. /3/ The statute now provides in relevant part: "Notwithstanding any other provision of law, amounts appropriated . . . for salaries and expenses shall be used to reimburse any qualified employee for not to exceed one-half the costs incurred by such employee for professional liability insurance. A payment under this section shall be contingent upon the submission of such information or documentation as the employing agency may require." /4/ The statute provides that a "qualified employee" means an agency employee whose position is that of a law enforcement officer or a supervisor or management official. Id. It defines the term "agency" to mean: an "Executive agency" as defined by 5 U.S.C.