[House Report 104-547]
[From the U.S. Government Publishing Office]



104th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES

 2d Session                                                     104-547
_______________________________________________________________________


 
                           ROCCO A. TRECOSTA

                                _______


May 1, 1996.--Committed to the Committee of the Whole House and ordered 
                             to be printed

_______________________________________________________________________


Mr. Smith of Texas, from the Committee on the Judiciary, submitted the 
                               following

                              R E P O R T

                        [To accompany H.R. 2765]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on the Judiciary, to whom was referred the 
bill (H.R. 2765) for the relief of Rocco A. Trecosta having 
considered the same, report favorably thereon without amendment 
and recommend that the bill do pass.

                                Purpose

    H.R. 2765, a meritorious claim, would pay to Mr. Rocco A. 
Trecosta, a former teacher in the Department of Defense 
Overseas Dependent Schools, backpay he would have been awarded 
had he been a member of the plaintiff class in March v. United 
States, 506 F.2d 1306 (D.C. Cir. 1974).

                               Background

    In March v. United States, 506 F.2d 1306 (D.C. Cir. 1974), 
the U.S. Court of Appeals held that the Department of Defense 
(DOD) had not properly implemented the pay-setting procedures 
established by Public Law 89-391. That law provided that:

    The Secretary of each military department shall fix the 
basic compensation for teachers and teaching positions in his 
military department at rates equal to the average of the range 
of rates of basic compensation for similar positions of a 
comparable level of duties and responsibilities in urban school 
jurisdictions in the United States of 100,000 or more 
population.

    The Court of Appeals held that DOD's calculation of the 
Overseas Dependents Schools (ODS) teacher's salaries by using 
the preceding year's salaries of stateside teachers violated 
the statutory requirement that ODS teachers be compensated ``at 
rates equal to the average of the rates of basic compensation 
for similar positions . . .'', and directed DOD to base the ODS 
teachers' salaries on the basis of current salaries being paid 
to stateside teachers. The Court also held that the plaintiffs 
were entitled to recover money damages. A judgment was entered 
in the District Court on June 30, 1975, providing backpay for 
the plaintiffs for the period from April 14, 1966, to the date 
of that judgment.
    Out of 23,000 potential plaintiffs, four individuals were 
specifically excluded from coverage under the judgment. Three 
of the individuals were excluded because they specifically 
chose not to be members of the class. Mr. Trecosta, the fourth 
individual, had previously brought an action in the Court of 
Claims which was denied by the Court.
    But for Mr. Trecosta's suit in the Court of Claims, he 
would have been considered part of the plaintiff-class in 
March. Furthermore, if not for that suit, he could have been 
paid administratively. After March was decided, Mr. Trecosta 
requested administrative payment of his claim. The General 
Accounting Office denied his claim, stating that the matter was 
res judicata and that the provisions of 28 U.S.C. 2519 
precluded administrative payment of his claim. Those provisions 
provide that a final judgment of the Court of Claims against 
any plaintiff bars any further claim against the U.S. arising 
out of the matters involved in the case. These provisions did 
not, however, apply to the other three individuals, who were 
paid backpay on an independent administrative basis.
    No other individual is in precisely the same position as is 
Mr. Trecosta. He is the only teacher who challenged DOD's 
practices, and was excluded from the class solely because of 
that challenge.

                            Committee Action

    On December 13, 1995, the Subcommittee on Immigration and 
Claims favorably recommended the bill H.R. 2765, to the 
Judiciary Committee.
    On March 12, 1996, the Committee on the Judiciary favorably 
ordered reported by voice vote H.R. 2765, a quorum being 
present.

                      Committee Oversight Findings

    In compliance with clause 2(l)(3)(A) of rule XI of the 
Rules of the House of Representatives, the Committee reports 
that the findings and recommendations of the Committee, based 
on oversight activities under clause 2(b)(1) of rule X of the 
Rules of the House of Representatives, are incorporated in the 
descriptive portions of this report.

         Committee on Government Reform and Oversight Findings

    No findings or recommendations of the Committee on 
Government Reform and Oversight were received as referred to in 
clause 2(l)(3)(D) of rule XI of the Rules of the House of 
Representatives.

               New Budget Authority and Tax Expenditures

    Clause 2(l)(3)(B) of House rule XI is inapplicable because 
this legislation does not provide new budgetary authority or 
increased tax expenditures.

               Congressional Budget Office Cost Estimate

    In compliance with clause 2(l)(3)(C) of rule XI of the 
Rules of the House of Representatives, the Committee sets 
forth, with respect to the bill, H.R. 2765, the following 
estimate and comparison prepared by the Director of the 
Congressional Budget Office under section 403 of the 
Congressional Budget Act of 1974:

                                     U.S. Congress,
                               Congressional Budget Office,
                                    Washington, DC, April 15, 1996.
Hon. Henry J. Hyde,
Chairman, Committee on the Judiciary,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
reviewed H.R. 2765, a bill for the relief of Rocco A. Trecosta, 
as ordered reported by the House Committee on the Judiciary on 
March 12, 1996. The bill would require the Secretary of Defense 
to make a payment of between $5,000 and $10,000, depending on 
the amount withheld for federal income tax and other 
withholdings. We expect this outlay would occur in fiscal year 
1996. Because the bill would increase direct spending, pay-as-
you-go procedures would apply.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is John R. 
Righter.
            Sincerely,
                                         June E. O'Neill, Director.

                              Agency Views

    The Comptroller General recommends that the Congress enact 
legislation that would treat Mr. Murty as though he had been a 
member of the plaintiff class in March v. United States, 506 
F.2d 1306 (D.C. Cir. 1974). According to the General Accounting 
Office: ``we believe his situation is extraordinary and 
contains such elements of equity as to be deserving of the 
consideration of Congress.''
    The Executive Communication from the General Accounting 
Office follows:

                            U.S. General Accounting Office,
                                  Washington, DC, November 2, 1995.
Hon. Henry J. Hyde,
Chairman, Committee on the Judiciary,
House of Representatives.
    Dear Mr. Chairman: The American Federation of Teachers 
(AFT), has asked that we provide to your Committee a 
Meritorious Claims Act recommendation that the General 
Accounting Office sent to Congress on July 12, 1982. It 
proposed legislation under the Meritorious Claims Act, now 31 
U.S.C. Sec. 3702(d) (1988), to authorize backpay to Mr. Rocco 
A. Trecosta, a former teacher in the Department of Defense 
Dependents schools.
    A copy of our original request and AFT's letter to us is 
enclosed. An identical letter has been sent to the Chairman of 
the Senate Judiciary Committee.
            Sincerely yours,
                                               Seymour Epos
                           (For Robert P. Murphy, General Counsel).
    Enclosures.
                              ----------                              

                  Comptroller General of the United States,
                                     Washington, DC, July 12, 1982.
Hon. George Bush,
President of the Senate.
    Dear Mr. President: Pursuant to the Act of April 10, 1928, 
45 Stat. 413, 31 U.S.C. Sec. 236 (1976), we have the honor to 
transmit our report and recommendation to the Congress 
concerning the claim of Mr. Rocco A. Trecosta for backpay, with 
the request that you present the same to the United States 
Senate.
    Mr. Trecosta, a teacher in the Department of Defense 
Overseas Dependents Schools, makes a claim for backpay on the 
basis of March v. United States, 506 F.2d 1306 (D.C. Cir. 
1974). The Court of Appeals there held that the Department of 
Defense had not properly implemented the pay-setting procedures 
of Pub. L. No. 89-391, April 14, 1966, 80 Stat. 117, and that 
teachers in the Overseas Dependents Schools System were 
entitled to backpay. March v. United States was brought as a 
class action, but Mr. Trecosta was excluded because he had been 
the plaintiff in Trecosta v. United States, 194 Ct. Cl. 1025 
(1971), in which the Court of Claims ruled that procedures used 
by the Department of Defense under Pub. L. 89-391 were proper.
    For the reasons set forth in our report we believe that Mr. 
Trecosta's claim contains such elements of equity as to be 
deserving of consideration by the Congress as a Meritorious 
Claim.
    We are sending an identical report to the Speaker of the 
House of Representatives.
            Sincerely yours,
                                          Milton J. Socolar
                    (For Comptroller General of the United States).
                              ----------                              

                  Comptroller General of the United States,
                                     Washington, DC, July 12, 1982.
To the Congress of the United States:
    In accordance with the Act of April 10, 1928, 45 Stat. 413, 
31 U.S.C. Sec. 236 (1976) (Meritorious Claims Act), we submit 
the following report and recommendation concerning the claim of 
Mr. Rocco A. Trecosta, a teacher in the Department of Defense 
Overseas Dependents Schools.
    Mr. Trecosta's claim is for backpay equal to that received 
by the members of the plaintiff-class in March v. United 
States, 506 F.2d. 1306 (D.C. Cir. 1974). In that decision, the 
U.S. Court of Appeals held that the Department of Defense (DOD) 
had not properly implemented the pay-setting procedures 
established by Pub. L. No. 89-391, April 14, 1966, 80 Stat. 
117.
    The provision at issue appears in its present form at 20 
U.S.C. Sec. 903(c) (1976) and provides that:
    ``The Secretary of each military department shall fix the 
basic compensation for teachers and teaching positions in his 
military department at rates equal to the average of the range 
of rates of basic compensation for similar positions of a 
comparable level of duties and responsibilities in urban school 
jurisdictions in the United States of 100,000 or more 
population.''
    The Court of Appeals held that DOD's calculation of the 
Overseas Dependents Schools (ODS) teachers' salaries by using 
the preceding year's salaries of stateside teachers violated 
the statutory requirement that ODS teachers are to be 
compensated ``at rates equal to the average of the range of 
rates of basic compensation for similar positions * * *'' 
(italic added), and directed DOD to calculate the teachers' 
salaries on the basis of the current salaries being paid to 
teachers in comparable stateside school systems. The Court also 
held that salary grade, steps, and credit for past teaching 
experience were part of ``basic compensation'' so as to bring 
them under the coverage of the ``equal to'' requirement of the 
Act. Finally, the Court held that the plaintiffs were entitled 
to recover money damages and remanded the case to the United 
States District Court for the District of Columbia. That Court 
had enjoined DOD from refusing to place ODS teachers in steps 
comparable to those in which they would have been placed in the 
United States, but denied monetary relief and other relief 
sought by the teachers. A judgment implementing the Court of 
Appeals decision was entered in the District Court on June 30, 
1975, providing backpay for the plaintiffs for the period from 
April 14, 1996, to the date of that Judgment.
    March was brought as a class action and out of a total of 
approximately 23,000 potential plaintiffs, four individuals, 
one of whom was Mr. Trecosta, were specifically excluded from 
coverage under the Judgment. The three individuals other than 
Mr. Trecosta were excluded because they specifically chose not 
to be members of the class. Mr Trecosta was excluded because in 
1971, appearing pro se, he had brought an action in the Court 
of Claims, contending, as did the plaintiffs in March, that the 
provisions of Public Law 89-391, mandated the computation of 
salary rates for overseas teachers on the basis of the current 
salaries, rather than the prior year's salaries, of stateside 
teachers. The Court of Claims, 3 years prior to the March 
decision, decided the case on cross motions for summary 
judgment, issuing a brief order denying Mr. Trecosta's claim. 
Trecosta v. United States, 194 Ct. C1. 1025 (1971).
    The Court of Claims reasoned that, although Congress knew 
that, under an earlier statute, DOD used the prior year's 
salaries of stateside teachers to set rates, the legislative 
history of Public Law 89-391 established that Congress did not 
intend to modify that procedure. The Court of Appeals in March 
took note of the Trecosta decision but disagreed with its 
conclusion.
    It appears that, but for Mr. Trecosta's suit in the Court 
of Claims, he would have been considered part of the plaintiff-
class in March. Furthermore, but for that suit, he could have 
been paid administratively. After March was decided, Mr. 
Trecosta wrote to our Claims Division requesting retroactive 
adjustment of his salary on the basis of that decision. By 
Settlement Certificate Z-2272889, August 6, 1975, our Claims 
Division denied his claim, stating that the matter was a res 
judicata and that the provisions of section 2519, title 28 of 
the United States Code precluded administrative payment of his 
claim. That section provides that:

                      ``Conclusiveness of judgment

    ``A final judgment of the Court of Claims against any 
plaintiff shall forever bar any further claim, suit, or demand 
against the United States arising out of the matters involved 
in the case or controversy.''
    In our decision, Llewellyn Liber et al., 57 Comp. Gen. 856 
(1978), we adopted the interpretation of Public Law 89-391 set 
forth in March, and we held that, in contrast to Mr. Trecosta, 
the three individuals who opted out of the plaintiff class in 
March could be paid backpay on an independent administrative 
basis.
    Mr. Trecosta is thus one of the few overseas teachers, but 
not the only one, who has not been compensated for the period 
DOD improperly computed their pay. We have been advised by the 
Department of Defense that 20,781 overseas teachers have been 
compensated under the March Judgment. The difference between 
this figure and the approximate total of 23,000 potential 
plaintiffs is apparently attributable to those teachers who 
asserted claims after the time limits set forth in the 
Judgment, those who were identified but could not be located 
despite efforts, and those who were identified but no attempts 
were made to locate because of insufficient information. 
However, no other individual is in precisely the same position 
as is Mr. Trecosta. Only Mr. Trecosta challenged DOD's 
practices and was excluded from the class solely because of 
that challenge.
    Claims submitted to the Congress under the Meritorious 
Claims Act are generally limited to those which are unusual 
and, for the most part, we decline to report cases where the 
circumstances are likely to recur. To do so might result in 
preferential treatment of one individual over others similarly 
situated. Although, as we have pointed out, Mr. Trecosta is not 
the only overseas teacher who was not compensated, we believe 
his situation is extraordinary and contains such elements of 
equity as to be deserving of the consideration of Congress.
    In order to prevent preferential treatment of Mr. Trecosta, 
however, we believe that any relief the Congress may grant him 
should be limited as was the relief received by the plaintiffs 
in March. The Judgment limited the recovery of each individual 
class member to the gross amount of $10,000, and from that 
amount deductions were to be made, as applicable, for Civil 
Service Retirement, Social Security, Federal Employees Group 
Life Insurance, Federal income tax withholdings, and any other 
similar or related rights and obligations. In our decision 
Overseas School Teachers, B-157414, April 26, 1978, we held 
that members of the plaintiff-class in March could not recover 
on an administrative claim for backpay in excess of the $10,000 
jurisdictional limitation of the District Court imposed by 28 
U.S.C. Sec. 1346(a)(2). Therefore, our proposed language for 
the bill for Mr. Trecosta's relief contains the provision that 
his recovery shall be computed by the same method and will be 
limited to the same extent as that received by the plaintiffs 
in March.
    If the Congress should concur in our recommendation in this 
case, it is our opinion that enactment of a statute in 
substantially the following language will accomplish the relief 
recommended:
    ``Be it enacted by the Senate and the House of 
Representatives of the United States of America in Congress 
assembled. That the Secretary of Defense be, and hereby is, 
authorized and directed to settle and adjust the claim of Mr. 
Rocco A. Trecosta, an employee of the Department of Defense 
Overseas Dependents Schools, for backpay by the same method and 
to the same extent as if he were a member of the plaintiff 
class in March v. United States 506 F. 2d. 1306 (D.C. Cir. 
1974). Such claim shall be payable from the applicable 
appropriations of the Department of Defense.''

            Sincerely,
                                          Milton J. Socolar
                    (For Comptroller General of the United States).
                              ----------                              

                           American Federation of Teachers,
                                     Washington, DC, July 25, 1995.
Mr. Charles A. Bowsher,
Comptroller General, General Accounting Office,
 Washington, DC.
    Dear Mr. Bowsher: I am writing to request the attention of 
the General Accounting Office to a meritorious claim, B-156439, 
that has languished for more than 13 years. Mr. Rocco A. 
Trecosta, formerly a teacher in the Department of Defense 
Dependent Schools and a retired member of the American 
Federation of Teachers, has been denied justified back pay 
because of the loss of a suit challenging the computation of 
pay for DODDS teachers. Subsequently a class action suit on 
this issue prevailed, but Mr. Trecosta was excluded from the 
settlement because of his failed individual action.
    On July 12, 1982, GAO sent to Congress proposed legislation 
under the Meritorious Claims Act to correct this inequity. No 
action was ever taken on this bill and the committees of 
jurisdiction never considered it. Mr. Trecosta, a former member 
of our union now living in Florida, asks that GAO please 
consider resubmitting on his behalf a request for his justified 
back pay. I hope this can be swiftly done and that the 13 year 
delay can be corrected by passage of a bill granting the back 
pay to which Mr. Trecosta is entitled.
    I am writing on Mr. Trecosta's behalf at this request. I 
have no financial interest in this matter.
    Thank you for your attention.
            Sincerely,
                               Gregory A. Humphrey,
                       Executive Assistant to the President
                                       and the Secretary-Treasurer.

                                
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