# Arthur C. Schmid, Jr. v. The United States

> United States Court of Claims · January 22, 1971 · 436 F.2d 987

URL: https://www.frixlaw.com/law-library/cases/9456413

## Case

- **Full name:** Arthur C. SCHMID, Jr. v. the UNITED STATES
- **Court:** United States Court of Claims
- **Decided:** January 22, 1971
- **Citations:** 436 F.2d 987; 193 Ct. Cl. 780; 1971 U.S. Ct. Cl. LEXIS 88
- **Precedential status:** Published
- **Opinion:** Dissent by Nichols
- **Judges:** Cowen, Laramore, Durfee, Davis, Collins, Skelton, Nichols
- **Cited by:** 13 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9456413

## Opinion text

NICHOLS, Judge
(dissenting).
I think § 687 is ambiguous by reason of the words “* * * who has completed, immediately before his release, at least five years of continuous active duty * * This I read as saying that anything under five years is not enough. It is seemingly contradicted by subsection (2.) as Judge Collins quotes it. If two parts of a statute can be read as not contradicting one another, that reading is to be preferred, but such a reading is difficult here. I agree that the legislative history looks both ways and the Navy practice is not of long enough standing to control, nor are we *992 shown what the other Services have done.
Confronted with an ambiguous statute, with legislative history and prior administrative practice unhelpful, and with no prior court decisions cited to us, we must fall back on our. intuition for the intent of Congress. It may be debatable how finely tuned my intuition is, but for whatever it is worth, I just cannot force myself to believe the Congress intended that anyone having under five years active service should qualify. It might be said, if the Congress meant four years and six months when it wrote five years, it would have been simpler to have written four years and six months. I do not say it because, in all honesty, I know that the Congress sometimes elects the long way around. That approach is too simplistic. We may ask ourselves instead what legislative scheme or plan would envision four years and six months as a qualifying period. How was it selected?
In resolving ambiguity, we must allow ourselves some recognition of the existence of sheer inadvertence in the legislative process. I think that in 1962 they just simply overlooked that in adopting a change of language, there might be some literal-minded persons who would infer a change of meaning. The struggle between the brash re-codifer who wants to “clean up” the language, and is sure he knows how to do so without changing substance, as against the cautious one who clings to obsolete and opaque terminology, for fear of making an inadvertent change, is ancient in the field of legislative draftsmanship. Notorious examples exist in other fields, as for example the standard policy of marine insurance. Conceding that, if I am right, the reeodifieation here- was not skillfully done, I think the result gives aid and comfort to the anti-re-codification school of thought and tends to discourage an activity which, in my view, is in the public interest on the whole.
That the change was inadvertent is strongly supported by the reports reproduced in 1962-2 U.S.Code Cong. & Ad. News, at p. 2457. They set forth the statutory sources of § 687, purport to show each change of language, and to explain in each instance the lack of any substantive change. Yet the reduction of the qualifying period from five years to four years six months is nowhere mentioned. I believe that the Congress, had it consciously considered reducing the qualifying period as alleged, would have held hearings and received reports and testimony. This would have been a matter of importance to the GAO, which commented on the 1956 legislation, as well as to executive agencies, and to veteran’s organizations. Apparently nothing of the kind occurred.
I take this occasion to reiterate what I wrote, concurring, in Sarkes Tarzian, Inc. v. United States, 412 F.2d 1203, 1214 , 188 Ct.Cl. 766, 787 (1969):
Defendant forgets that the intent of Congress must be our lodestar, and that any statutory construction necessarily imputes an intent to Congress. If Congress didn’t intend it, the statute doesn’t do it. "* * *
There it was defendant that forgot. Here I fear it is the court.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9456413. Public record. Not legal advice.