The opinion
NICHOLS, Judge
(concurring):
It seems quite apparent to me that in the enactment of 18 U.S.C., Sec. 202 , quoted in the court’s opinion, the Congress did not intend that anyone should forfeit his office or place, or be disqualified from holding any office of honor, trust or profit, unless such person was guilty of the offense of bribery, therein defined. Nevertheless, from the holding of this court in McMullen v. United States, 100 Ct.Cl. 323 (1943), cert. denied 321 U.S. 790 , 64 S.Ct. 786 , 88 L.Ed. 1080 (1944), a strange doctrine has come down to us that under certain circumstances persons completely innocent of the offense of bribery may be subject to the forfeiture and disqualification prescribed in the statute. I do not see how anything so obviously repugnant to the Congressional purpose can be persisted in.
McMullen was decided in 1943. In 1946 the United States Supreme Court gave a contemporary effect to the rule against bills of attainder, a type of legislation most of us had supposed to be of historical interest only. The ease was United States v. Lovett, 328 U.S. 303 , 66 S.Ct. 1073 , 90 L.Ed. 1252 (1946). On the basis of that decision, I do not have any doubt that this court in McMullen had given an unconstitutional interpretation to Sec. 202. The Congressional enactment struck down in the Lovett ease convicted Lovett of certain offenses without trial and sentenced him to forfeiture of office. Section 202 likewise, as construed in McMullen , sentences persons to forfeiture of office without regard to whether they are validly convicted of any offense. It appears to me, therefore, that the Lovett case requires a re-examination of McMullen and requires its rule to be reconsidered, consistent with all the respect we may entertain for stare decisis. The statute should now receive a constitutional reinterpretation.
In my opinion, the plaintiff should not have had to go to the Board For Correction of Military Records, and the Secretary could and should have restored his Commission immediately upon his being informed of the action of the District Court rendering plaintiff’s conviction null and void. The conviction was then void for all purposes and could not be made any more so by the fiat of any official or body. Certainly persons in plaintiff’s position and future Service Secretaries should not be left with the impression that it is in future necessary to go through any form of ritual in order to avoid the attainder prescribed by McMullen .
However, courts can and frequently do limit the retroactive effect of their decisions. When plaintiff went to the board, McMullen was on the books and for all he knew, we would follow it with devoted zeal. He, therefore, acted reasonably and prudently in exhausting his administrative remedy with the Board before bringing suit. I would limit the retroactive effect of the holding I would make to the extent that up to today, but not afterwards resort to the Board was a prerequisite to bringing suit. Otherwise our plaintiff would be barred by the statute of limitations, which in the circumstances would be most unjust.