Petition for Writ of Certiorari — Abt v. United States

Supreme Court brief1959

Ask Donna

What actually matters in this document.

Text

Ne 345 a ve & Bras

SS = T= moe —— ee ~ aes

. ,

“Lua Un

“ Supreme Court of the United States

October Term 1959 |

es eo kis Meh weir uh

: . : ~Petitione: ;

e Paps :

bith NELED SI LIES.

Respondent’ :

a . Bie

“PL tL TON GOR WRT OF CERTIORARL TO THE

UNEEED SEATES COURT OF CLAMS

Rowrannp Wo Fines

ao lituornmey tor Petittoner

216% Penobscot Budding

Detroit 26 Vfichigan

» * -

. 5 2 ° q . ° e

v e J ~ .

e :

yee , . aa

2 ; 3

oe PY . : / ° % eo &

Ri ee ; ar ae ,

F . & 4 ¢ -

: ‘ ‘ © . a epeuaaean . ae y /

1 ene : ay Page :

Opinions Below: ae a Pune. Bo rt ae

4 r —— ° : :

; + e : 3 mat ic ; ‘ = . 7 “9

date of Judgment Soug!: to Be Reviewed (000.0%). y -

: Bags of Jurisdiction 2 07 Moa See ee

\ — Ouesitons Presented 2. | Sar etn ate eo ase

Statutes, and: Executive Orders Involved oe... 65. 7°38 iia

Rye BaP Tey Pe ene ek ey rae Sais aren

Sequion T27a National Defense Actas amended ,

Bg Uk ONE, | Seen eer dae ne teat 3

Joint Resoluiion of Congress. o1 Sept. 22, | ae "2

(eee 8 Sea es 2 rea Cera

Sec. lic) of the Emergence Powers Continuation - :

> . * ~. Base . mise "e ore ‘

Act of 1952 (66 Stat. 338: 10-US@'352)...

—————-F ecutive Order ol the Presidcnt, Nos 710397, rf er

. — Sept. 25g 1952 eo eee Avg heen hse

Executive 7Order oi the edinhs No, 10441, ° ,

ei ; Mar. S1.-b952 id pal ies weir ens tere ae -

. : A . 7 oe. : :

yy Matement of Material Facts +) 2 7, ee Re: :

| >, ; Z P - » =3

Basis ol, Jurisdiction of Court of Claims —. ee Shee rats CN en ae

=e SE a ’ 3 . ‘

—— \rgument: Amplitving Retsous for Granting, the |, poi ae

aes Be ____ Petition’: _- es . 2 y ee

ia °

Conclusion — , ae ake ones fk cy ee

een garek : :

Po .

R , * Y <8

- t

: . a

A - fi

Pe]

¥. f

‘ TA ° } ain

ey Page

fo tae 3 : be TABLE OF CASES ers

Hiatt vs Brown py Hh), SoH Ess, TOS. Ca Ws,

Oth. bal. 694 TA Near eer ep oe

Pfivonius vs. Dirrant. LOPS). deh « nw. 168 F.2d:

URS: cert. denied, ae t" s MS HOS Cr 40098

Ed. 373... SS ise,

knox County vs. N, Bank, li, US OF, 13.8: ,

Cu. 267. 33-1. Fd. , oo. B

Miles vs. Lovey. Fos . er Meat denied 72 , eae, ae

Ce. 966; 3724'S 919, 96 L. Ed. G87... :. \ e

Perovich vs. Perry, 167 Fed. 789: 98 CEA 209 00007 12

‘Rose vs. Siewart, 22; US SI, 38°8. Ct J 1a. 7 hk ‘

Fil. 6296... . eee eh ae

Standard Oil Co. vs. Johnson, 316 Us Il. 2 S. eu BEN

‘ | los. Bee eee, Sees tat « Y:

United States vs. Doherty. 5-USCMA 2 a SC 1h

-- Died States vs: Eltoh, 222 Fed. 428 ::... ...°...: 12

ree \dmonx. vs. United States, 53 C el a Pat

ST ATU TES AND EXEC vu TIVE ORDE RS re I TED

28 USCi255; 62 Stat. O28 Basis ot -Jurisdiation; ee <3 . iat

IO USC S18 (National Detehse Act) 00050 0 8 1. Ln

YD Stats 728 foun Resoliition LOt Congigss al-Sept—

eS. 3:3

O6 Star S38: LO UP SC.352. See. be ol Pincrgenes .

Powers Continuation \oo a

bxvccutive Order Noo TOS97 of Sepi 24. 10a mv }

Precutac Order, No. LOLEL of Maa. 31.1955 Jit. on

ts USC Ltd: 62 Suit tas amended by 67 Stuy

er 22O and OS Stat 2 ET Basis tor Federal Jurys

diction) . ‘ : Pecos » AAs.

HS Saat Be Sr AE a1. vaso amended. Cureer

Compensaudn Vet of 19d9, pees | 0

iy SG Sato By which rephaccd iM, USC IES of =

Nationat Defense Sor ; 11

i) USC 183h. Tide TE Public Law 810) Retire

ment of AUS ofhcers ; it

, . . : “en -

—— mam,

Ese nee t

P ‘ * f il

rr eahS mee HGS : Page. *

caavet peaeva on OTHER REFERENCES | es

Anny Rcwtitadbe 5 ea daied OQciober, 2x, lout ee

eS + Congressional / Oy Thi thie on Joutit osoluion OD a :

{ .” Sega So: SPEC ‘ Sern’ Conegicssional Scr icc

oo 77th Cong’ Ist Sess MOTE, p. 7070 | ‘ ae

Report of Judiciary Cammiittee ot Senate explaining, .

ihe meaning of LOE SE SLES of National Detonse :

~ NCL. Strate Kepoleg ist. Sith ¢ OMe = 9... ae

Catendar No. 2521. page 227. eon. ee

-" ‘sada history ot Secs f pf Bmergenes Ronit A A

Cotiniatinw Mere 2 }. oq of US Code

Cangréssional and Administr: HIV ee. S2d

Cong. 2ad Sts... 1052)

ve Mir kore Regulatign: TABS of 9. \pril 17 is Raney

‘ba Continental Vir Command (00-502...

Fudge Advocate “General ot the \niny biases

JAG AT YSN, holt? Vol. IX No, 5 ‘Par: 216 p.

ing +5 Bull. at jA\ oe

ey Pee eee be ge ee ee

. Juige: Advocate Genegal of the Ait Korce Op: inon P

3 PAGAF PORT OL, 2 Dig. PAG AR. Par. 619 - 10.

Sa Judge Advocate Gener, al of ihe Vimy Opini

Seca are Jai \ AOA2 ssrgeictate ip ea TS. yf +14

. ¢ oe _-* :

. x ¢,/ sy ;

3 ‘e/ ™ «7 . ‘ -

ie ERY e

! ~f- : e

— 2 <* ‘ ay

ave sas i ‘ € .

°- s

° - ?

! : ‘ °

Oe .

. . oo: ~~

ye 1s

es oa 55 MGS "pee _*e

fe sate: . -

ao ees he oie re

PEXIMX =" =e CS 4

3 : « : Ce RE a e' % PB, :

enor pee ) be Page

General Accountifig Othice De cision denying’ ‘pew :

ee Meee ea em as ae a ed la

C comptroller General's Dec. S10 deny ing ‘auauaae ~.

claim x Mae CBee Ain teh Aer (one Sean, \ oy

Decision’ of the U hited St. tics Coit of ‘Claims.

denying peu wot’s clae eas : a ee

Sec. l(c) of ape Powers Con tinuation Act

ce, Fee, oe Pe TA) ag ere ee ere Bt oe |

Jot Resolution ot Congress ot Sept. 99, 1o4] ees loa

~Secuion -127a of the National Detense Act as’

amended by Sec. 20 of the Net! func IS », [983'..- Iva

President's Executive Order 10397 of Sept. 2: 1952

extending appointients ‘under <ceal De-

~ tense het seine ARN EMO a erie PAB e ae a eae +. + 18a

President's Executive Order O44] of ‘heh | ia

1953 ¢ xtending appotntments under. National

Directive of Secrecary o! War of Nov “> i9tl as to

! _policies relating ‘to’ appoinuments. in the Ayaty-

of the L nited Staces during tlre ¢ MEL gETICY pats ces’ Aa

Proclaination of Liniited Natio: wal-Fmergency of

Seniciaher 8, 7039: 37 Stat. DAS os. i 20a

Proc lamatjon of U — : a tonal © Emergency: ol aS

‘ar 27 She a ee es 20a

Proclamation \ccukacbia thie reenngy Emer-

OCNCICS, qclated April 238. 1952: 66 Stat co SL. “ 204

“

An the GY id

. su PREME * :0U RT. OF THE. UNITED STATES |

“p << October Term. 1959

e enc ies : ‘

ha ase

bf ,

~ ont renet: eer \ )

eal ee ee. ies

Sea ak Petitioner, *

“VS. , : °

“THE UNTTED ST ATES,

° | Respondent.

. PETITION FOR Ww REITSOF C ERTIORARI TO THE,

8 - UNITED ST ATES COURT OF CLAIMS

ee ea eat Caton.

‘To the Honosable Chiet “Justice

and Associate Justices of the gs.

Supreme Court of the U nite’ Su ates:

Petitigner, LeRoy J, Abt. prays that a Writ of Certigrari

-issuc to review the judgment of the U nited. States Court

a) Claims entared June 3, 1959. wherein petitioner was

plaintiff, and. The U niled States, was defendant:

> OPINIONS RELOW ee

7 opinion of the United St ates Court of Clainis has

not yet beert- reported, and for “convenience is printed. in

an appendix filed with ical petition. T here 1s also printed: -

e @

ah 4

in said appendix acopy ol the oprions of the General

* Accounting -office and of the Comptroiler-General of the

United states, which Latter opinion constituted a tnal de

termination of petitioner's clam: administratively,

DAT E OPJUDGMENT SOU GH r A BE REV IEWED

The judgment of the United States a of Claims is

~“

dated June 3.1959, and it was citered on that date

+ BASIS “OF JURISDICTION te

Boge is invoked tinder. Title 28 U SC 12 - (June:

TB. Ch. 616. sec. 1. 62 Stat*928.)

-OU ESTIONS PRESENTED FOR REVIEW

“1. Was the Presidepy olfthe, Enited States authorized

in LOd8, in time of war. to appoin and cotminission pet

troner, othyr than as’ 4 regular army ofheer, under Section

127a of the National Defense’ Aci. as amended by Section

20 of the Act of June 15. Lass, Ov SC 51S). og was the

‘President required to take such appotpunenr under the

Joint Resolution of Congress ol 2 23 September 1nd °

9 Did {he Secretary of War, acting through: the Adju-

tant, General “require that ‘all persoms: commnissioned as

fofticers during ‘the World War I Cmergency be appointed

in the Army of the United States under the Joint Résolus—

tion. of Congress dated 99 Septainber HHT ahd wat said

directive binding on Overseas EPheater: Commanders

oa ae peutioner in a military status between July |

iFisS und: February 24: G51 as a result of his : appointment

ae 2 Captain inthe Apmis of the U nited States. imeer Sec’

‘tion 1274 of the ; National Detense Act. on October 8, 1948

or vas his military status terminated July |. 1948 the effec

| =

a -

Live date af the repeal of The Joint Resofution of Congress

ot —— ae itig

‘ a , {

STATUTES AND EXECU TIVE ORDERS INVOLVED

» the following Statities! and Exccuuve Orders: are an-

solved and aresset forth ft the appendix:

d ioe -*

id) > Section: wri ot the Ayaeenat Delense Act. as amend-

ed, lo USC a1 t¥."* ¢

| Mat; 728). . / :

(3). Section ly +) Of the Famergenes Powers Continuation

~~ /ANct ol ISS, gb Stat GA SG 352).

(4) ” Executive a President. No. 1397 Sep-

tember 25, 1953

(3) Exceutive Order ot the President No ro44l, March

SIL 1953.

. .

bd .

ST. eTEMEN T or MATERIAL FACTS *

World War Th. was oficial tormigited’ on \pril oR

(O52, sy Presidential " oc Ran ab rr No. 2974, 60 Stat. ¢ 3H.

nn which the Presidiut proclanr od thatthe national emer-

‘ps (5°.

gencies dee lave’ to oxist by Proclamation 2352 Septe suber

8. 189 (OE Stat. 260%). and, Proclamation JEST. Mav 27,

WAL, (55 Stat. TOA7). ‘tonpinated diss day upon the entry

into force of the, Pret, ct Peace with: Japan” Section bc)

ol the Emergency Powers Continuation, Ver. 660 Stat. $33.

aS S.C. 352. provided, however: hat’ notwits tanding : athe -

terniination on April 28. 1852. of the state of war with

Japan and the national emer genes mentioned iboves and

notwithstanding any prochini ime ns ol peace awith respect

to such ‘wart the President was adthorized to continue in >

effect until and including \pril 1. 1053, all appointments ‘t

as officers or warrant ofheers ol the Army and the Air Forte :

(2):,1 M3 Joint. Resolution of. September bo State (35

Eig 4

> ., ’ ,

VA. - .

- e $ .

‘ »

- ° 8 r 4 LO

wipro terminate alver April 2 1952: and before

Apu | 195A, under ‘certain - provisions of law including

Section ‘ia of the National Defense Act. Such- extension

» April e 1953, was provided for in; Exécutive Order No.

jose. Septehiber 25, 1952. Sasi.

. Petitioner accepted an appointment as. a “Ist. Licutenant

in the > Army of the United States on 11 June 1942, and en-

tered on active duty on 2+4 June 1642. On 8 October. 1943

while serving overseas inthe North African Theater ot |

Operations he was promatea to Gaptain by the Command. .

ing Ge a the North “African: ‘Theater of Operations

(

“by directio& of the President: The pertinent portion of

the ordey JM petition: rs promotion contained the follow=

Ing Se = ' ee

“By direction of the President and under the pro-

visions of Section 27a, National. Detense Act. as

amende@, you are temporarily pygmoted - 4. - on

the: Army of the United States -- -- ~~ This annie,

-Untess sooner terminated, will terminate autoMati

cally.at the expiration of the ¢ me rgency and six rionths

thereatter

"Ons Mareh 10-47, petitioner recerved a commission from

~the President confirming the ap pointinent made in. bO-4S.

the pertinent part of which contained the following:

I-do appoint hitn. temporary, Captam om the

Me the United States. such appointment to date

‘lrrom the eighth dav of October. nineteen hundred

and forts three - 0 - This commission to contintie an

Yored¢ durirke the ple asive of the Praident of the

Mited States lox the time being. and for the dura

non of the present: emergency and. for six months

| ee

Petitioner continued On Active duty until relieved there

yom gu 3 December 1944. at which. time his orders among.

other” things stated:

0 ' Br.

[i , “7

~The temp: apmt an the AUS of this tlicer will contigue.

in force during the period of the present. -emergency ‘and

for six (6) months thereafter ‘unless” sooner terminated

by DP. (DP meant “Direction of the President.’ ') On I9

October 1950, petitioner Was appointed a. Captain in the

United States Air Force Reserve ‘which appainfinent he. °

accepted on 24 February. 1951. ‘He was om active ty

‘taming tronr 15 “May 1951 to 12 August 1951. On 23

Octeber 1951 he was. promoted to Major in the Air Force-

Reserve, Judge Advocate General's Deparment. and “1s

sull serving on active duty in‘that grade.

Inecomputing petitioner's. pay fox. longevity purposes,

the government ‘has refused to credit petitioner for the.

PMiod trom T.July 1048 throygh 23 February 1951, on

“the assumption that’ petitioner Avas appointed as a Captain

} } P] }

on 8 Oct. 1043 under the Joint Resolution of Congress .

of Septentber 99 1041 and tha® his status as an officer ter-’

minated é6n | July 1948. that being the daté Congress fixed

lor the tclanination of Appointments | under one Joint Resohu.

tion. : . “ .

Een submits that he was not appointed, under the

Joint Resolution ‘of September 22. 1941, (55 Stat. 728).

but that he was legally appointed as Captam under Section

12Fa of the National Detense Act. as amended. (10 USC

513). as stated in. the official letter of appointment received —

by him when appointed, Petitioner further submits that

inasmuch as World War II appointments made under Sec-

lion 1274 of the National Defense Act, as amended, ‘8

. St. 3? ih continued until the termination of the wn

(April -2 O52 and six months thgeatter (October

28. 19 ae pe were further catended up to and including

\pril 1, 1953. by virtue of Section’ I (c) of the Emergency

Powers Continuation Act of r952, (66 Stat. 383; 10 USC

52). as implemented by ‘Executive Order Wo. 10397,

dated) September 25. 1952. petitioner's appointment ‘as

. ‘ .

<_ . . : Ps

i ae

. . . . -

° i : . .

e . “.

5 . 2 4 .

Captain prorated an tui teres cand: ctlect to February 24,

LOST. me ae =i se ics =

Pettioner subrats that he ow cntithed to-credit for long

evity from ok Buy TOES theough 23) February POST. by

reason of having bec an A COU AMIS On ved Shauturs “although

* net on active duty during ‘hat time ” :

Ihe question having been detormined. adversely to peti

honer’ bs. the Comp rofler General. sunt: was filed in the

Uaited States Court a Charms. which court denied petb

hioner’s Claim. and disinis sed pctitioner’ s petition,

BASIS Of JURISDICTION IN) THE

COURT OF CLAINIS eae

L Tae one lor federal jiu isdietion mothe © nhed States:

eCourt of Claims was Section (htod. Tithe 28 USE: 4

2. PIS. Ch. 616. 62 stats LO. as amended July ae; fom.

Ch. 253. Section 7. 7 Stat. 226: September 4. 1964, ss

1263. pene La: ‘oul by ON Mt qt. F241). Tithe Pand Section’

M9 (a) * (21. of Lathe WE of thre Caree SS ges Act

of 1949. (Xct of October 12. ber, 63. Stat. 802. 37 T'SC

O8d) cascamencded. and ot! he} OTERCNE statutes ail regula.

, }

LiONs.

LR GUSMENT

l. Appointn Mens Lyn ihe Viesident during war -time

zoel ~ made either wader the Nagional Defense Act or

under the Joint Resclution of Congress.

Pricd to the ciattont of the fom: Resolatron of Con-

vress the President was only authonved to make appoint

HCE ig Arpivcot che Uonited® States’ an time ot ware

under Sec. 127a ot the National Deterise Aes. hich reads

In part as follows:

Mne tince ot way any officer of the Reguiai Viiy

Epvoriil wc] a gy ’ Chapar, 11 \ Sh ade: nwa! hdr

Sag’ . \ f fa

OPLCOVS. Si «eo appomted ane

UTES bone? ol iW ‘i Vitnv oof the Coated States. Such

{ppe PIMC e Ube hy a below ai toot Brigadier Creu

ial shabl be made bt the eiexndcus MhOUC = = 2) pre

nied that an appok ntrnemt.otor than that ob anion

Php ay th, Rigala no Nniny niade jn times o: war. shall.

(Cou antl sine mies hs after ais terminations | |

aor - *y

-tRaaphaagis ours: cae

Lhe Joint Reselution ol deptembe 22 POEL. was enacted

to extend the wartime power of the President to make

@tomporay appointments of officers inv the Army ot the

‘United States. during the then existing emergency. “LE his:

Appears gona statcment by the sponsors | of the Joint Reso.

luuien. appearing “in the Congressional Comment on this

ih Resolutidn m ly. Code C ong) ressional Service, 77th Tong.

Ist Sess. IM. page 79%; where it is said in pertinent part:

he Wil Departa rent. i submatee iy this MICasure,

(the: he nt Rese oluuon ) tor, the consideration of Con

Sloss, popnted out tat end SLIng* ploy isions of law aue

Prorize ein Dorany tp pon sammenmts am the Ania of, the

Ciriged States ay Cistinte suishied bit. ppow Liedits da

the Conpenents vot stich Mamie dime of war, say

rhat ihe ene tment of this joint Pesolvition would wis

Is extend: sach authority to include the present cma

goney. (parenthesis, and) cmiphiasiy ours).

e- . ‘ ' ; -

In implementing the eee Resolution, the Wan Depart

ment, on Qe tober 24. ESAT. Army, Regulationy No. 605

1 cAplicrily Stated chat the [ov isions of those regulations

were not applicable tw [emporary ‘appointments im cre

\rumy ot dhe Enited: States made unde authority othe:

than! ‘tinder the _ Join. Resolution

I his language | i the piialindeniaie regulations clearly

_ recognized that the power to appoint: temporary officers

in the Army of the United States, was not to be exclusively

exercised under the Joint Resolution. :

After the United States passed trom an Emergency to a

state of war, the President‘had two methods of, exercising

his choice in making temporary angdinteents ‘oe promo-

tions. One was under Section 127a of the National De-

fense Act, and the other under the Joint Resolution of

September 22. 1941. err :

In Afiley v. Lovett, 195 F2d 712. Cert. den. 72 8. Ct.

366, 342 CLS. 919.96 L. Ed. 687, the U.S. Circuit Court of

Appeals. Fourts § cuit, speaking of the above -cited Joint

Resolutions, sard- ¢ a oacen

[hese xesolutions incioned above .. /. did not pur-

port to repeal, and did not repeal ‘~. Section I27a

in, the Nationak Defense Act.

Phe conclusion ef the Taited, Ssates Court of Claims

thrat Section, 17a, Nauonal Defense Act. as amended (10

USO 513), does not authorize apport numents m the-Army

‘of the United States. in time’ ol war, of persons other than

Regular officers to a higher temporary grade. is an errone-

ous conclusion.” Phe Judge, Advecates Gerferal.of &rmy

and the Air Force shave cCinisistently ruled in various opin-

tons thai Section, 1274; National Defense “Act, authorizes

original appoiutd&ais in the Arms of the United, States.

In tune of war..of civilians. meluding even the appoint--

ment of aliens. Ndditienally. a has been held that Section

27a, National Delense Act. also authorizes the temporary

promotion of Army of the United: States officers. in time

of war, to a higher Temiporars grade in the Army of the

United. States i

ry ees

>» .

cthe Au Force, re-s .

spectively, have consistently followed thd atoresaid rulings + 9.

of the Judge Advocates General of ihe. \pins and the Air ee

| a Holding that Section 1274, Natighal: Defense Act:

amended, constituted basic autharitye in time of war...

Phe Departments of the \rniv anc

to-emake origivadl appoiniments gud temporary promotions

inthe Army of the United States 7 :

On & September 15s -" Contineytal Ai Command

ssucd acsupplement vot Vir kore aS trhacgnon Po OS Paice:

April 1958 which im Paragraph 2

appointments under Sec 127.4 of

recognized war time

National Detense Act x,

and stated the following:

. : ay A rany oft

& 4d) Appointments unde dilie » Provisions ol

Scctien P27 oo. National Defense Act ot

I916. Comtomed mafesce throteah bE April

QD 53 ,

1993 3 : aE oat

A Regulation such as “is shone quoted. issued hue ——

: sities anilitars services: has been held -by. this Cott to » have |

; the force and cCilect of | - Nina Oi! ( . Johnson. . ea

er S16 US. 48786 Le ed Lott. 625 ‘Ch. 1168). - ar aia

eg The: Judge Advocates: Generdin ith seseral OP IMOns. pes

t _itengnsed that there owas TMT eT tor otrnthe Appoint

Bacnts under the Natianal Datens ~ tlieg Opitoms |

= “are cited because: unde the auting this Court. such ;

opinions’ are- -cmitled te great wer ht ior ati y. Brown

(150), S390 TS 103, W4t. kd ol. TON Ce 195. and iron

PLUS Sea” Tone hits Care 168 FF. 2 -ORM: cen

Pee S35 US sis905 Eb 27 69 8 Ct don nee &

On 27 July 1950. the Judge Advocate General ot the

\riny in-an opinion. JAG A 1950. tbat. Vol IN. Noo a

ay par 2160. page 255, Bulletin of the [AG stated as tollows-

. -

- aa

“Commissions nr the «\imvy-o ae + eisai Si: To

granted officers: pursuant to th ninetete of pare 7,

See? 127a of the National Defense’ Act. supra. tind

which have not been stermina

ccontinucin eHect until six months subsequent to the

legal termination of World War TR Such) officers

“te should ‘be treated in the same mae: as members

v : ; re

The Judge Advocate General ot the Au. Force on

tate October 17. 1950.0 in ‘ee JAGAF 1950 94. 2) Dig

JAG 7 par 614, held that: at,

° 4

Appoinemeses. my the Arms of the U ited States unde:

al are now Vand wall

par 7 Section P27a. National Detomse Vea are: still

Ee :

« in etfect

Lhe Judge Advocate Guin 1 ot the Ammon GO fober

20, 1952. in opimerJ AGN TH? 7 7086. 2° Dig Ops. Off-

cers, Section 77:1 held that:

\Vtempcrary promotion tiade under sibscetron P27 4

7 ot the National Detense Net. supra unless sooner

terminated. continues an ettect for the dunanon of

World War Ld and sin modtiths tfereatter 28 -Octoree:

by the Fmergeney: Powers Ceritunuaticn Mea osunna

152) and hw now been extended aneil | \pril usa”

as rmplemented by FNecutive Order Not 10397 ¢

spt. , aS ER ee. a

— The above opimion ot Ihe Judge Advocate General ot

the Army. dated October 24. 1952. is on all tours with

Your petitioners Gise. ay petitioner was tempor, arity is

inoted wa the Army of the United States to-the grade «

. Captain. on October 8. 1O4S. specifically under the pro

visions of Section 127a, National Detense Act. as amended

Lhe right of the President to make appointments such

~ a petitioner received, was also recognized by Congress in

: Section T ic) (1), of the Emergency. Powers Continuation

\—

Act, 66 Star 333, FOU SC 5. 352, where Congress gave author-

ity tothe President 6 coftinue up to and including April

1. 1953. all appoimtiments made in the Army of the United

“Sates meluding those upporntments made under the pro-

tons of Section Ira, Natronal De jense Ad, ay amended.

(MP USC-ATS). : Magee: Ware

This Congréssion. tL authority was acted on by Pranbillene

I ruman, in Executive Order No. 103897, dated September

1952. when he extended to \pril 1. 195%: all appoint-

nents of ofheers that were made: puerstrarit to Sectionw 1274

of the National De tense Vou as amended. (1) USC F3)\; -

and a-hurther-extensionr to: Jul 11493. was prov ided toy

in Executive Order Noo t01L Match 31. 0532 by Presi-

dent, Fisenhower as: to Ua®e ina een at but’ ap-

pointed under Sectiot 127.0 of the, National save shan

The conclusisn 1 ached by the ‘Court of ‘Claims,

that the President was only anuthorized under (altars

of t the ® ational Detense “Net to appoint Regular Army

‘ofheers-to tempotars higher grades. in time Ot war, is.

Fatt - = a ay . A 5 .

also contrary to the widerstanding of Congress. as is ev

ZA as \ -

deme from a report of the Judic lary Committee of the

Senate.. when Congress codatied the laws relating ‘to the

Armed Forces ‘Pn that report It Wats said: that new 10

USC S41 (by replacing Sec F274 pt the Natfonal Detense

Yet, (10. USC 513) made i a aces

eX press the authority Lic siaedaas inagehre dd. ho Appount

persous other thark Comidisstoned otheers: ote the Regu

ley Arm. (Seritte Repert Jas] Nyih Cong 2nd

“Sess. Calendar No 2021 po 22h4° Me

Furthermore. the Lcgishative History of Sectron | Ww

of the Fimergency Powers Continuation Xc t. 66 Stat 333,

}) USC 352: Vol. Page 1240 of the U. 8S. Code Con-

gressional and ARR News. 82nd Cong, 2nd Sess,

1952 also confirms the tact that appointments other than

Tt was there stated: a ; : .

temporary appointments ol Regular Army othcers under

Section 127a of the National Delense \cr could be made

Sue

~Apporitinents ts ices’ and wiatbrant ofhfecrs-of the”

Arimy of the United States and-ot the finited States

Air Force. “including a’ppommtinents as othcers and

Wytbant otheers in the Organized Reserve Corps. the

\n Force, Reserve. the National.Guard of the lL nited

States. and the An National Guard of the United -

States. are limited by these provisions to a maximiuin

~ > dunation of the wb or emergency during which are

» were appointed’ plas 6 monthy: ian dppomt

went for fe meporary rank mtade on tome offwear) shall

. continue gentil sexs months ater vty terminations

“EO USC 513) Italics ours:

Since itis a well established principle in law that official

acts or duties of public ofhcers will be presumed to have

been properly performed (Rose vo Stewart, 227 US 5 30.

33-8. Ct 345, 57 ‘. Ed. 626) and that evervthing done

by an offeer in connection with his official act® in’ the

line of his duty was legally done. (U.S. \ Eltan, 222° Fed

pee. Perovich v. Perry, 167 Fed. 789. 93-CCOA 209). the

prosunipdion of regularity if not rebutted. ois conctusive -

4 nde these pring iples: petitionc: 's appointment ‘under the.

yf ‘tonal, Detense “Vet must) be presumed to have’ beer

lewalld made. an J ‘the burden of showinry that the official

vet was regular rests on hinn who. asserts it was unlawtul

tw mregular (Anon. Connty «NOY. ete: Bank VAR US

Oo 138) Cr 267. 35 1. Ed. O53, ;

dhe burden of disproving the legaliuy et ‘petitioner ‘ap,

pointment under the National Defense Act! was not met

bs the government. tor in the decision of the Court of

Clatis there is no. exphinution why appomtments unde

Sec. [27a of the National Detense Act, made by the Pres:-

dent. in time of war, were recognized, confirmed, exterited.

and treated as valid and legally effective over a period of

many years. af such “appominents could not be made

legally. —

In View ot the. ‘appomunent ol petitioner in time ot war

under the specie authority of Sec. 127a of the National

Detense Acts. the subsequent formal confirmation ot his

“appointment in 1947. by the President; the, legislative -his-

tory ol the Act: the interpret auions placed upon it by

the highest legal. ofhcers of the Army and Arr Force; the

\ct_ of Congress authorizing the Présidtnt to extend. ap-

pointmicnts ‘under Section [E.a ‘ot. the National Detense

\ct to April 1. 1958 and to‘July 1, 1953: and the Executive

Chidery of two: Presidents providing fer such extensions,

there appears to be no jouidation whatsoever for the con-

‘clusion of the Court of Claims that the President had no

power in time of war. to appoint officers, other than

regular Army officers to temporary higher grades, undet -

the National Defense Act. but that he was required to

appoint them pursuant to the Joint Resolutien of Congress

It is submitted that the Prestdenthad-he right and the

power to make temporary promotion appdintinents under

cu@r the Joint Resolution or the National Deterise Act.

Since petitioners appointment was stated in his official

orders to be under the National “Detense Net it cannot be.

wud to hive been made under she: Joint Resolution of

Congress

Bide oe ae

2. The policy directive of the Secuetiicy 4 of War dated

Novembér 7, 1941, that all persons cogimissioned as off

cers during the “present emergency” be appointed under

the Joint Resolution of Congress; was not’ mandatory: on

. the’ Headquarters, North African Theater of Operations,

that if and when war was declared. the statutory power

of the President to make war time’ appointments under °

United States Army, .in 1943, where petitioner was. ap-

/pointed under Section 127a National Defense Act.

The conclusion of the Court of Claims that the policy

directiye of the Secretary of War required all appointments

in the Army. of the United States be made under the Joint

Resolution is not correct. SEE eS .

The Secretary. of War's direc tive of November ‘7,

1941, was explicity Jimited to the period of “the

present emergency”. It had no language. indicating .

that such emergency policy was to; continue, .if and

when the United States became involved in war. Nor.

was there any reference in the policy. directive indicating

the National Defense Act could not .be-exércised.

the National Defense \ct could not be exercised. In addi-

tion, the directive was’ by order-of the Secretary of War

and. not® by: Direction of the. President. “Therefore any

later action of the President, as occurred -when, pétitionér

was appointed, superseded the directive insofar as the

two conflicted. ma

Furthermore. the. Secretary ol. W ar’s’ directite was not

CHC ulated Yo or mandatory on overseas theaters, as Theater

Commande}s operated”. under directives from ‘the Joint

Chiefs df Staff and «the Commander in Chief. Conse-

quently the policy directive of the Secretary of “War..

in’ November T44l. was “not applicable to* General

Fisenhower as ‘Commander of. the North African Thea-

ter of Operations in 1943 where petitioner was. ap-

pointed (in time of war). The Theater Commander

or Be : Pee 5 th” ead ne ae

had & right it imake the appointment in question under

Section 127a. of the National Detense Act, as he was

"directed to do so by the President, regardless: of the policy

- directive-above mentioned: he

The. policy directive of the Secret tary of War in any

event could not deprive’ the President of his freedom of

choice, in war time, of using cither of two-available statutes,

the National Defense Act, or the Joint Resolution in

o making @ppointinents. As‘ was said in United: States v.

Daherty, 5 USCMA 287: ol ae | :

F 2

“While a decliration ot policy by a service ay ltt.

fluence the’ nianer in which an officey exercises hus.

discretion, 1k canne’ place him in a mental straighe

jac ket which denies to him any freedonr of choi¢e.”

U ilies the foregoing réasoning, the President: was not

deprived af his statutory power to appoint petitioner under

the sNational: Detense Act. even if, it codld be maintained

that the emergency policy direc ive: of the Secretary of

War, applied to am n-Overseas: Theater Commander, an time

of es *

3. Petitioner was. in a military status between July” 1.

1948 and February ‘24, 1951.

In. petitioner 's case. his sppointment under Section 127a

ot the National Detense Act, “aS, amended, ¢10°USC % 513),

could not be terminated betore the end:ol the Emergency °

“aind six months thereafter, except by direction of the Presi-

‘dent, unless of course, Congress sooner repealéd® Section

— 127a. of the National Defense Act. As neither of these

contingengies occurred. petitioner was in a military status.

‘trom July’1, 1948 to February 24, 1951, and entitled to °

longevity pay credits and entitled to an adjustment of his

“active duty pay as demanded in the Court of Claims.

oa o : *< _* ean <

. lo ait

‘The rights of pay. longevity credits, and credits toward

retirement privileges vested in petitioner, flowjng from the

National ‘Defense Act appointment are vested property.

Sie, Bee ‘on unrepealed 7 statutes (Whiting

Admrxev. 7. S., 35 Ct. Cl. S01): Under the fitth amend.

ment to the. cormstitution, petitidner may not be depriv

ol such rights without me process of law.

The’ decision of the Court of Claims not only affects

petitioner, in these very substantial rights, but also-affects -

many officers now, drawihe retired pay under Title Hl

; Public Law 810. as NOW codified in 10 USC 1331, in cases

where such officer's were appointed under Section 127a of

the National Defense Act. and were credited for service

after July | 1948, the date the Joint Reselution was re-

pealed. man¥ of «whom will be removed from the retired |

list as a-result of such decision

“The decision of the Court of Claims ia petitioner's case,

deprives him not only of the trivial refund ef pay he

claims, but also deprives him of a military status covering

the period from July L148 througl: February. 23, 1951,

zal with the result that petitioner can not attain, 20 years of |

satisfactory: Federak service, but qin only. attain a total of

19 years, 0 ynonths, and IX davs. ‘of safisfactory Federal

service by the time petitioner Jeaches’ the age of 60 years

on February 21. 1964. Tor -retirement’ under ‘Title TH,

Public Law 80, 80th Congress, 3d Session’ as amended

(1O/USC 1331). thus depriving petitioner of retirement.

This.is a most, untenable situation, where. relying on

the ‘unrepealed, provisions of the National Defense Act:

the formal orders of the President -of "the United, States,

and the authorized officers of the military establishment,

petitioner, atter having Accepted and acted upon an official

“appointment, for many sears. iS toldsthat his formal order

3 ‘ol appointnent was “something diflerent than indicated”

by the plain langu, eM tly appointment: and that various

oe & . <

estatutory rights pertaining to such appointment may not

eC .

be ere thereunder. . 2 .

CONCLU SION - 7 } ae"

For the. reasons stated. we seanictielin submit , ‘that

‘this court in “an discretion should Mant this

petition fore ceruWar s@ that the “question of law,

* . . . + * ‘ ° : 4 .

as to the legality .of petitioners, temporary | appoint.

ment as Captain on & October: 1943. in tame ol war.

” by the President: under the National Detense Act. “may be.

authoritatively and fisially determined.

<— -Row.anp W. FIXEL

rs < . I ttorney. for Petitioner.

a 2163. Penobscot Building »

= Detroit 26, Michigan

IN. - ee cs :

— : , r

hat ae x

APPENDIX

GENERAL ACCOUNTING OFFICE, DECISION

DENYING PETITIONER'S CLAIM

e es

SETTLEMENT CER TIFICATI

A ntted’ States ee.

¢ General Accounting Office

Washington 25. ie tee o

iy Apr. 18. 1957,

7 + (Date)

In correapondence so SS .

please reter to

(Division: | Claims —

ef=Claim Noo Z-PS19905 —,

| Broy ] ~ Abt. Major. LO SO S380 |

Headquarters Tenth An Force

Othe of Stafi Judge, Advocate

Selfridge An Force Base. Machigan

ae i

ben! .

Your, claim tor) 8156.00. representing ditference aim

longevity par between LO and [2 vears: service tor period

January 1. 1956 to October 31. 1956. ax major United

States Air Force. ty disallowed for the reasans stated below

- Statement of service of March 1. 1956, sued by “the

Assistant: Air Adjutant General. shows that tor the period

July 1. 1048 to February 25. 105 T vpu were without mill

tary Status. since Volar Nrms of the United States wartime

ad > e < : .

appomntinient ot Octaber SS. lOES. ty the grade: ot Captain,

terminated angeCeased to existon July fo 1&dS Toas youn

c s

contention that Inasmuch as that appointment was made

-under the provisions of section 127a, National Defense

Act, as antended, 0 U.S.C. 513, your military stat was.

not. terminated effective: July 1, 1948. but ‘continued

through Febr: uary 23, 1951.

7 In 35 Comp. Gen. LOL it was “held that persons iinose

military siatus depended solely on appointments as officers

ot the Army of the United States. without component.

made under the act of September 22) 1941, would not.

continue to be officers after July 1. 948. Also, it- is

understood thai most of the appointments in the -Army of

the United States, which were issued after the commence: |

ment of World’ War II, did not mention the statutory

- authority’ under which they were issued.

Your appointment of October 8, 1943, was issued under

the provisions of section 127a of the, National Defense Act,

as amended: however. there -is a reasonable doubt that

section 127a, as amended, contained authority for the -

appointment of officers in the Army of the United States

without component. Accordingly; there is no_ basis for

the allowance of your clajm.

_Respectf ully,. .

. — GOMPTROLLER GENERAL

: of the UNITED STATES —

(®. KR. O: MCLAUGHLIN

COMPTROLLER GENERAL'S DECISION

- DENYING PETITIONER'S CLAIM

COMPTROLLER GENERAL

OF THE UNTIED STATES

fe. Ww ashington ‘ 25

B-131997 fj . August 16, 1957

Major LeRoy I Abt. USAR

~ Headquarters ‘Penth Air Farce.

Selfridge Air Force Base. Michigan

Dear Major Abt:

Further) reference is. made to your letter of, May 13,

4957. requesting review ot- settlement dated April 18, 1957,

which viinithignt your claim tor additional . _pay tor the

period January | to October 81, 1956, based on the differ-

ence in longevity pay of 10 - 12 years of service.

Your claim appears Lo be, based on your yiew that your —

status as aivofficer in the Army of the United St: ites without

Component initiated by your appointment as a-first liguten-

ant, Army, of the United States, pursuant to letter orders-of

- June 9. 1942, Seagate under the act of September 22."

1941.55 Stat, 728). and temporary promouon, to-the rank

of captain, nas of tht United States. on October. 8. 1943

stated to have been effected under:section 127a -of the .

National Defense Act. as amended, 10 U.S.€. 513) did net

tcMninate on June 30, 1948, but continued through Febrt.

ary 23, 1951. Tt as reported that you accepted an appoint-

ment as- re cose Air Force Reserve. on February. 24, 1951},

In our decision of October 7- “O55. 35 Comp. Gen. 191

we indicated ‘thar the quesuon of whether paragraph 7 7 ofl

-ection 127a of the National Detense Act, as amended, con-

tained authority for the appointment of civilians as officers

‘

in the Army of the United States withdtie component was

sufhciently doubtful to warrant a negative conclusion by

us.:pending arf ultimate’ decision by the courts. and that

Appointments “in the Army of the -United States without

component made under authority of the act of September -

22. 19E1. terminated on June 30, 1948. .For the reasons i

stated In thar-decision werare still of the same view and,

_' the absence of an authoritative court decision requiring

at different view. it ts concluded that you had no status in

the Army of the United States trom July 1. 1948. to Fepru-

ary 23. 1951. .

Oi tiaies your references to sections 3441 and : 3444 —

of the new Litle 10, 1S. Code, it appears that such provi- |

sions of law can have nod bearing On your claim, since they

were codifted from Tithe Voot the Officer’ Personnel Act

of 1947. OL Stat..833. You received no temporary appoint:

ment or promouion under those statutory provisions and

your temporary promotion to the grade ol captain was not

continued under section 515:¢y of that act, since you held - \

no permanent grade... 10 U.S.C. 3445 was collified from

-paragraph 7 of section 1274 of the National Defense Act,

as amended. and par agraphs ay and | b) prov ide “as follows: -

) In addition. to appotmments satiikieed. under

section SEE of this trile in time ofavar or of national

CINET ECON dedared by the President, a regular offiecs

orea reserve warrant offcer may be uaa

temporary grade that is higher than his regular on

reserve grade. without Vacating that grade.

biln addition to {ppomtmenty authorized tnder *,

subsection «ay of this section. and sections SEI2. S#aS.

and 3404 of this title. in time of war a person: who

holds no commuisstoned grade in the, Regular Army

mnav be appointed im any temporary. commissioned

grade.” Bay >

Tn enacting the new Title 10, U.S. Code, it was the legis-

. lative, intent to restate the law without substantive change:

Section 49a of the act of August -10, 1956, 70A Stat. 640.

While the above-quoted provisions of law contain different

phraseology than was used in paragraph 7 of section l27a

of the National Defense Act, as amended, the principal

change referred to on ‘page 217, House Report No. 970. to

accompany H. R.-7049, later, enacted into law as the act

of August 10:° 1956, was-to make ° ‘express the authority.

heretofore implied, to appoint persons other than commis-

sioned officers of the Regular Army.” Suc h implied author-

ity apparently refers to the “other persons” mentioned in

paragraph 7 of section J27a of the National Defense Act.

Ihey were regarded ‘in our decision of October 7, 1955,

es members of the Officers’ Reserve Corps of the National

Gsuard: the language used. im 10 U.S.C. 3445%b) referring.

to a& “person who holds no commission in the Regular

Army” does not furnishea sufficient basis for a conclusion

that. in originally enacting paragraph 7. the Congfess in-

tended to authorize appointments of civilians in the Army .

-of the United States without component. Compare 10

U.S:C. 3444 (a). which authorizes the temporary appoint:

ment of “any qualified person, including a akon who is

not a Regular or a Reserve.” “ .

It appearing that- your status as an officer’ in the Army

of the United States without component necessarily was

-based on‘ authority contained in the act of September 22,

1O41, it is concluded that such-status terminated on June

1 POIR, Accordingly. the settlement of April 18. 1957. is

sustained

Very truly yours. :

FR. ANK H. WEITZEL

“tore Assisting Comptroiler General ©

-of the United States

6a .

‘DECISION OF THE UNITED STATES COURT OF

CLAIMS DENYING PETITIONER'S CLAIM’ *

, (Decided paar cites 2, Besctoial ch

Se ee

o— CAPT ION OMET rED)

MARIS. Circuit, ‘Judge (Ret), sinsien by designation.

delivered the opinion ot the court: | |

‘The plainuff, a major in the U nited States Air Force:

Reserve on active duty. seeks to recover additional longevity

pay based on an additional service period of two years, seven

months and twenty-three glays to which he claims to be’

entitled but which the Government has refused to credit

to him. Phe period in question ran from July 1, 1948, to

February 23. 1951 during which time the plaintiff asserts,

and the Government denies, that he was in Commission as a

captain in the Army of the United States. The plaintiff

does not contend that: he was on active duty during that.

: period. , ipa,

It appears ‘ton the pleadings that the plainuft accepted -

appointment asa Ist Licutenant in the Army of the United’

States on June Fr 4O42-and ente rest on active duty on June

24, 1942. On October & 1943.2he was promoted to capiain

in the Army.of the United States, effective on that date, tor

the duration of the emergeacy and.six months thereafter.

He continued. on active duty untul relieved) thereffom on, <s

December 3, 1944" On October 19, 1950) the plaintiff was

appointed. a Capli rn in-the United Sgates Air Force Reserve.

which appoinunent he accepted on February 24.1951. He

was’ on active duty: for training trom May 15, 1951.

» August 12. 1951., On October 23, 1951, he was pro.

“moted to major. He was ordered to active duty asa major ”

on April 7. 1952. and is sull serving on active duty in

_ that grade. ;

©..

bos . 48

Ihe basic licts not bemy in dispute . both the plaintiff |

2 and, the “Government have dnoved tor sunpmary judgment.

I ‘he case turns ypon the answer to the question whether

neaeenanennae “the plaintiff's SOMBUSSIONL As al captain in.the Army of the

~ United State cofunued in “lect. “alter Puty"r: “PR and

until February 24. LOST, when he- accepted appointment

asa Captain in the United Shatter Ain Force Reserve. “The

answer to this question | hy turn depends on. whether the

plaintatt’s appomtne nt on October &. 1943: during war-

Une as ac aptari inthe Army of the United Siates was made

under the authority of the Jot Resolution ol oe

29 1941. 55 Stat. 728. as the. Government contends,

whether it was made under the serenth paragraph of section

127a of the National Detense Vet dt Stat. 785, "as amended

by section: 20 of the: Act ot June 15, 1933. 48 Stat. 161, as

the plaintith, urges. For the Jott Resolution of September .

IF 1041, was repealed ctlective July 1. 1948. by section

Ya of the Joint Resolution of July 25. 1947, 61°Stat. 451,

and the Government contends that the Commissions. issued

under the authority granted by the Joint Resolution otf

A September 22) 1OEL necessarily, terminated upon. its Te:

i untess saved by: other legislation of whric h there was,

One applicable tO the plamtiths case.

It appears that ihe plarntitls promouon . 0 Captain in

~ the Army of the United States was stated. in the letter of

October. 8. 1048S. which he received trom the Headquarters.

North African Phgatre of Oper AuLOns, United States Army,

to have been made “under the provisions of Section b27a.

National. Defense Act. as amerided.” | Fhis is the basis of

- his claim to have been appointed under she seventh

_ paragraph of section 1274 of the National Detense Act. as

: amended? “Phe Government, however, contends that the

seventh: paragraph of seciion P27a, as amended. did not

uself authorize any appointments except the appointment

¢ Ba a

in tine of warot Regula Army ofheers to higher temporan

grades. g Phe Government urges. therefore, that in’ spite

of the speeihe reference to section L274 contained in’ the

phaineatt's appointment” letter of October 8, 432 the

epporntinent must ine tact have been made under “the |

authority given by the. Joint Resolution of September 22.

MOH}. which did conter apon the President specie power.

during thy emergency, to make temporary appointments

as officers in the Army of the United States trom among

any qualified persons. ;

Lhe prosisrons of the seventh paragraph of section 127.4

oot the Nauonal Detense Vet. as amended. and of the Joint

Resolidien ob September 22. 19EL. are set out in a foot:

note. After careful study of them we. are satished that”

the Government's contention Is correct. |

OV the sescuth: parigeaph ot ection P2%a at the National Defense -

Vet as caitudeed by section 20066 the’ Vet ot fume 15. 1933. was as

fellows : .

‘ : : os @ ,

Ine tithe of waa ay officer of the Regnlar Armes mia be tappourted

te highest ty oe a wleowithout scat bens Permanent apm ootme it

Pre tere ob koe ams thee: oer the Regular Army. apfponited ote ihe:

foade and alleather porSans appomted. cas. offigers shall be

F prouited! and coraresstomect afy the. Amma of the United States Sitcie?

epponatitie tts tte atneteders doe Tow that of brat ater wersercdl- shad bee rea acte “

by the Presidopt alone and) general officers by and wath the advice

tide @octese at ot thee wa tectde Prove d. Phat ne apypoutitinne ut othe: ther:

tk Thaprent

that cf aotacmber of the Regelor Arm aniade ‘ine tame cof saan shell

Soontieteouet dt st omonths after ts termination and an officer” appomted

ten Csetee af Woauaa shill be att bt th L wore aaal EEN Wares Swe OFF L sal

servic Within sin aigaithes after ats termination at he takes appl yh

thereto ; ‘5. St t lol-l62 .

Thee fount Resolution of Septeniber 22. 19D. was as follows.

“Phat dig the present erfergencs. temporada appeititiscat

otheers an the Arma oof the United States may be mide. under sack

teilothoes os the President aatal oresquibe. from amon enialihed per

cons wheat appointing such persotes as officers an ant pateutlar com

"poeta a) tthe Arma cfethe Ututed States \" persous So apypeanted as

ofheers shall be coammnsstoned am the “Asaw et the United States ond

var bee cared feclowito the actete malitary service of the TLoated States te

serve therean for such pertods of time as the® President mas prescribe

a . ha . ; : “

Lurming 1 the language of the seventh paragraph of

section ‘127.4. as.amended. u wall be observed that the first

sentence did’ confer .uthowisy to make appoimtinents an

time of war But this authority is confined to the appoint

ment to higher temporary grides of othcer ofthe Reguiar

Vimy. -On the other hand. ahe Joint Resolution of Sep: —

Nemes “22. TET. conicned authority during the existing

. . ~/ . . .

cMergency to apport ams, qualited/ person as an officer in

P \ R : ‘ f. - ie -

the Army of the United. States aft provided tor his pay.

allowances. rights. privileges and benefits. The plaintuif

rches on, the sean and tho scotences of the seventh |

pantgraph oot scction L274. wineh read as follows: -

Py tank et or og Vooties oacthe khesuia \rinv ap

pointed (to hagho otorapenars aide. ang all othe:

persotis appountged. a8 Ofsecos stall be appointed and

Commiissiened ate Nemes ot the Caio States) Such

appointments in grade. below that of brigudicr gerreral

i fiat an appecintieent. lite Diea that 6f a member

ofthe Reguior Nanay piadeoay time of wars spall con

Lierese: abmtid sis treatl toro dis tormetmocti gh. and) an

efhieas sppeinitod tte tiptie eh tcen Neel fee cortitled to

be relieved: trom: agate te eral sctsace wathia as

months alter its cctmiation. he makes apphction

- theretor. ; ‘ aes

r ELE AL shall he

Sota and with the

Snoh Appoustresdts Ne & hes helaw theatt <

mode bs -the Bie. fort Dis eel rT tal

adsac® and consent ot the Soucte Pronieded. The \ appomtment ingde

vanicder. the proxiscges of th. Her | : teri of ;

President and oat ot sce ou @T St Mle ntifee duce 2 the prescut

errergenes and sin amentis the redte: Prgeaded tather. That any person

App Moriite eas ae office ny ti Ares oof fee to fds ites tite 1 Pie

provssions of this tap shi tion elie sarteccgnay Sed allow 14

ber ertithed te the soe | it or ihees at deer cits as cacibors of

the @Mhicers Resirvc Céiges Ghoti cate ele P denuth of actae

service. And prowided oath Uhat vothaeg contaned an this Sut shall

be Comsteted to pr tit the oy Frgetaretat ab ali 7 Pies var? rae Mee

‘ponents af the Vey of thy tCmted States dt accord once wath) existance

laws.” 95 Stat) T2S-7 24 > .

, e

es e

“_ .

a 10a

‘We think, however, that the provisions just quotéd were

nor intended -to provide new or additional authority for

the appointment of, officers but were designed merely t

insure that all officers ‘who might be appointed under any.

“statutory authority in warttme (except those permanently

‘\ appointed in the Regular Army) should*be commissioned

-unthe Army of the United States to serve until six months

ahter the. termination. of the war.’ Aluley v. Lov ett, 4 Cir...

1952. 193 F. 2d 712, cert. den. 342 U.S. 919. The reference |

in the second sentence to “any officer-of the, Regular: Army

appointed to higlier temporary grade” obviously refers to

such ofheers appointed under the authority expressly con-

lerred by the first sentence of the paragraph. ‘By the same

token the reference in the ‘second sentence to “all other

persons appointed, as officers” must refer to persons. ap-

pointed under ‘some other statutory authority. _For the

sentence itself gives no authority to appoint sich persons

but meércfy requires that if they are appointed it shall be

in. the Army of the U nited States. «mets

At the time of the enactment of the acveith paragraph ,

of section [27a of the National Defense Act in its amended

form by the Act ot June 15. 1935, 48 Stat. 161, sections 37

“and 38 of the National Detense Act ‘authorized. the, ap-

pointment ot persons as officers in the Officers’. Reserve

Corps and. the National Guard’ of the United States,

respectively ‘These were thus evidently the categories of

“other persons appointed as officers” to. which the’ second

scrignice of the seventh paragraph of section 127a referred.

lo these were added atter the emergency which was de-

clared prior to the outbreak. ofthe war an 1941 ail those

persons appointed as officers in the Army» of the United

States generally. without component under ‘the authority

conterred by the Joint Resolution ot. an 194].

It appears that a directove issued by the Adpuedk Conczile.

ont ordet of the mpey of aie ar on. November oe 1941.

¢ \

- ‘ \

Tha

_ required all persons commissioned as officers during the:

emergency, to be appointed in the Army of the United

States under ‘that Joint Resolutio with: exceptions not

here material. It follows that the plaintiff's wartime ap

_ pointment_as a captain in the - Army of the United States”

must *be held to have been in: fact made under the Joint.

Resolution.-and not under section 127a at the’ National

Detense 2, ac stated in his” letter of appoint-

ment.

The (questicst- yemiains whethey: the repeal of hws Joint

Resolution of September 22, 1941, by section 2a’ of the

Joint Resolution of July 25, 17, which repeal took effect

on July 1, L948, operated to “terminate on that date the

plaintitl’s

Unite

Joint, Resolution did have that -effect.- For the repeal: of

a law creating an office abolishes the office. ewts v. United |

States, 1917, 244° U.S. 134242 Am. Jur. Public Officers § 35;

7 C. J.S. Officers $10. It is only if its existence is saved

some other leg ral provision that the office continues in

“existence after the repeal of the Act which created or

authorized it. Here the Joint Resolution of July 25. 1947,

which repealed the Joint, Resolution of September 22

POLL, did contain, in a proviso to‘that repeal. a clause

saving for a longer period the commissions of ‘certain officers”

who had completed — COUTSES ot medical instruction at

States. We think it is clear that the repeal of the

Government expense. The inclusion of this saving clause -

in the repealer is, however, ‘a clear -indication of the Con:

yressional understanding and intent that other appoint-

nents wade under the Joint Resolution were not to-survive -

its a safe on July b. 1948. In reaching this conclusion we:

‘in accord with a well ‘reasoned decision of the Comp:

pe General, 35 Comp. Gen. 191 0.

The Government suggests, in the ‘alternative, that the’

plaintiff's appointment as captain actually terminated on

- *

January 257 TUES. di vie et the provisions of section 2 ol

v=. " : -

¢ Joipt Resolution of December 1S. TOL 55 Stat. 800,

which, it sqyse extended his appomtment. tor the period

of the existence of the war and the period of six months

Tmmediately following its termanaten., and in the light

“the ctlect thereon ot sectyon Sot the Jomt Resolution

of July 25. 1997. 61 stat 1b 192. which declared that ity

clleative dite, Palys 29. (17. should be deemed: to be the

date of the termination. of the wi n forthe ae ge ol

section 2. AL. the Joint Rysolution of December 13, 1941

the ¢ Gove Thiment concedes, however, that the slain has

been eredited with service Between licnaney 25. 1948, and

Jung 30. TUES. vind does not contend *that this credit: was

crroncously wiven Wo. therclore need not pass upon this

ilvern. ive Contention. ¢ , ae

We conclude that the plaintitl’s appointment asa acaptain

methe Army of the United States terminated on July 1.

POPS) and. that he ty. therefore, not entitled, to the benefit

al the pericd JulySh. Pts. to February 23, 1951, in com-

puting his longevity tor purposes of determining his pay

The mation of the pleintitt-ter summary judgment will |

according \ “be denied and the motion of the GoveTnment

bor SUED jirlumient imoats fast wath be eranted. Plain-

ath . ope trion will be clistiissed

Ane

LSRAMORE. Jude M \DDEN. Tudee WHIEAKER.

Judes. and TONES. Chie Judge. concur

Itvrs so ordered *. ;

boa

. a

DIRECTIVE OF SECRETARY OF WAR OF NOV. 7,

1941 AS TO POLICIES RELATING TO APPOINT.

- VENTS IN FHE ARMY OF THE UNETED

STATES DURING THE EMERGENCY

wv \R DEPART MEN!

Phe Adjutant General's Office’

Washington

November 7. W941.

In Replys

Refer to AGBZ101 er :

ORT RBA

SUBJECT: Policies relaung to appointments in the |

Army of the Enited States under the provisions of Pubhi

law 252. 77th Congress

“

LO: ~The Commanding Generals of all Armics, Corps

\reas wail Departments, amd Chiets of Arms. and: Services.

ind Chiets of other sections of the War } Department Over

he ac.

I Effective at once. except as specitied: below. all per-

sons commissioned as officers during the present ciergencs

“wall be appointed inthe Army of ne { nited States under

the provisions of Public 1. AW No 202. 77th ¢ SOMQT pS, Ap

‘soved September 22. 14k:

a. Qualified fpaiticdll cherie lor appeantment m

ile Regular Army

b: > Members of the: uw) aduating classes of the Semior *

Division-of the Reserve Officers” Praining Corps who

quality tmnder current: War Department regulations.

amd DISET TONS ton appointment in the Officers’ Re -

scrve Corps - , . |

_& Qualified graduates of Junior. Units... Reserve

Officers, Training Corps. established at essentially

anilitary schools, who are twenty-one yrs Gf agé at ,

* time of graduation and qualified graduates of such

Units holding Cortafie ates for appo tment as Reserve

ofheers, who pre sent such Ranke ‘SIX months:

atter the tame they reach the age of twenty-one years.

d. Members: ol the graduating classes of Aviation

Cadets who, upon eraduation, are recommended for

Ap jpoinuye’t as Reserve officers: 3

: qt :

5 Ae apphicauiony lon appointment in-the Officers’ Re-’

“serve Corps, now being processed. ¢ or that mav be received’

an, the future, that are not in-contormity with the above,

si will be considered as applications lor appointment in the”

Army of the United nder the provisions of Public

Law No. 252; 771th Congress, ‘approved September 22..

TOF. tines | f a

Bs orden of the Secretary of War:

E. SQADAMS

Ee “Major General, :

; The Adjutant General,

| . ig ;

Copies turmished:

. Othee of Secretary of Wai

‘ Ofticc ol Under Sceretary of War.

Oifice Of Assistant Secretary: of War. .

Othco of Assistant Secretary of War for Air. ~

sscoretary, General Staff.”

Excaative for Reserve: Affairs. ; “

. ACS G-L. aC a ,

V.CS8. G-2. aga as: 3 ;

A.C.S. G30 - ee

\C§.G4. Sa Oe Nei tae,

War Plans Disieioia.

Commandant, Arniy Industrial College.

Chief of the Armored Forces. |

C.G., Air’ Force ‘Combat Command.

Chief, National Guard Bureau: .

The Commandant. Coimmand and General Staff

School... — oe,

Chief of the Army Air Forces.

G5 All Air Forces.

Director. Bureau ot Public it asions W D)

The Adjutant General's School.

Director, Selective Service System.

Commandants. all Officer Candidate Schools.

“

SEC. l(c) OF EMERGENCY POWERS-CONTINUA.-

TION ACT OF 1952

Secuofy l(c) of the Emergency Powers Continuation Act

of 1952, (66 Stat. 333: 10 USC'352). reads as follows:

“(e)) The President is-authorized to continue in’effect

until and including April 1, 1953, all ap pointinents

as officers and as Warrant officers of the Army “and of

the Air. Force which under the tollowing provisions -

of law would terminate after Apfil 27, 1952, and be-

tore April 1, 1952:

1) Sections 30 and 38 ol-the Aco of June 3. L916

(Ch. 134, $9 Stat. 188, 190), as amended, “10 U S.C.

358, 327U S.C. 19). and Section 127a of that Act as.

added by the Act ol June 4, 1920 (Ch. 997, 41 Stat

785). as amended (10 U.S.C. 513)"

= ee ie eer ~ 16a.

ee RESOLUTION OF CO OXGRESS OF

oe SEPTEMBER 22, 1941

Phe Joint Resolution of September 22. 1941, was as fol-

low ~ a

That during the present CIMCTRENCY. temporary apo

pointinents as officers in the Army of the United States

may be made. ‘under such regulations ‘as the, Pa esident

may prescribe, from among qualified persons without

appomiting such persons as officers m- ant parca

component of the Army of the nited Sidtes. All per

SONS SO appointed as officers shall be commissioned in

the Army af the United States-and may be ordered

into the active mailiniry serviee of the United: States

to serve therein for such periods ol-tume as the Presi-

‘ert may prescribe. Such appotiuuents i grades be:

low that ol brigadier general, shall be made by the.

Presidént’ alone, and general officers by and with the

advice and consent-ot the Senate: Provided. Phat ais

appotatment made under the provisions of this gh

mav be vacated -ai ais time by the President and.

hot sooner vacated. shall continue during the he

emergency gad six months thereatter: Provided) tut

ther, Phat any person appomnied ay an officer in the

\rigy of the United States under the provisicns of this

; ae shall receive the same pay and allowances and be

entitled to the same rights, privileges, and benetits as

members of the Offtccrs Reserve Corps of the same’

grade and length of active service: And provided tur

‘ther, Phaa nothing Conti ned inthis act shall be con

~ strucd to prohibit. che Appointinent OF officers in the

various Components of the Army of the United States

oT in accordance with OXISUINY laws. 55 Stat. 728-724

tS. FOSS.

SECTION 127a OF THE NATIONAL DEFENSE ACT

AS AMENDED BY SEC. 20 OF THE ACT OF .

| JUNE 15, 1933 -

Lhe seventh peat ot secon 127a, of the National

Delense Act, as amended by section 20 of the Act of June

was as follows: .

“En time oF war ayy officce of the Reguliur Arny may

be appointed to Higher temporary or ade without vacat-

Ing his permanent appomnianent, In time of war any

officer of the: Regular Army Sppointed to higher tem-

porary grade. and all other persons appomted, as ofh-

vers, shall be «ppointed and commissioned in the Arnis

ofthe United States. Such appointments mn grades

‘below that ol brigadna general shall be made by thc

President alone, and general officers: by and with ihe

advice and consent of the Senate: Provided. “Vhat an

appointment, other than that of a member of the Regu-

~ lar Army made in time of wor. shall contimuc tuitil

six months atter its term ation, and an officer ap

pointed im -time of war shall be entitled te be relieved

from active Federal service within six months alter its

termination i he makes Ap] plication the le lor. IN Stat.

lot 162. ; . :

| ee ra

PRESIDENT’ S EXECUTIVE ORDER 10397 OF SEPT,

25, 1952 EXTENDING APPOINTMENTS

UNDER NATIONAL DEFENSE ACT

By virtue of the authority vested in the by section | (c) of

the Emergency Powers Continuation Aet (66 Stat. 333), I

hereby. continue in effect until and including April 1, 1953.

all appointments as officers and as warrant officers of the_

Army-and of the Air Force which undér the following pro-

visions of law would terminate after April 27, 1952, and

before April 1, ‘1953: Sea ena

(1). Sections 37 and 38 of the act of. June 3. 1916 (ch.

134. 39 Stat. 189. 190). as amended (10 U of. 358, Sf

USC. 19) and section 127a of that act as. added by the

act of June 4, 1920 ich. 227. 41 Stat. 785), as amended (19

U:S.C, 518). ee

(2) Section 515 (e).of the act of August 7, 1957 (ch. 512.

‘61 Stat. 907; 10 U.S.C. 506d (e).

(3) Section 8 of the act of August 21, 1941 (ch. 384, 55

Staf. 652), as.amended (10 U.S.C. 59 1a).

HARRY S. TRUMAN

THE WHILE HOUSE. :

Se ptember 25, 1952

. 4 ‘ 144

PRESIDENT’S. EXECUTIVE ORDER 10441) OF-

| MARCH 31, 1953 EXTENDING APPOINTMENTS

» UNDER NATIONAU DEFENSE ACT, AS TO —

PERSONS MISSING Ee or ae eee,

Conunuing in Effect-Certaii Appoinunents as Ofhcers

uid) Warrant Otley of the Army and the Air Force

By virtue of the authority vested Jin me by section 1 4c)

of the Emergency Powers Continuation Act.” approved

July 3. 1952 (66 Stat. 380). as amended, 1 hereby continue

cunetfeet unui and including July 1. 1953. all appointmenis

> officers and ay waprant officers of the Army-and of the

\nn Force. of persons on active duty on /March 81, 1953,

who are deterniiied. as provided ino the Missing Persons

Vet (56 Stat’ 143). as amended, .to, have been in a status —

of imissing. missing im action.. interned, captured, be

leaguered, or besieged at any time after June 25. 1950. -

and before July 1. 1953. which under the folowing pro

visions at law would terminate alter April 2751952. and

before July 1, -1958 | .

| Sections 37 and 28 of the act of June oO. TOT och

ao, a ee TS, A as sinendce kL eo ee

US.) 190 and section 1274 of that act asadded by the act

of June 4. 1920 seh 227. 41 Stat 785). as amended C10”

US Si. ° | |

2 Section 515 ce) of the act ot. August 7. 1947 «ch

SIZ. OP Star 997, 10 USC. 506die)) - AN

or Section 3 ol the Net of August 21. 199) seh $84.

Sy Stat 652.0 ascumended LOU S.C. 5974)

ea: DWIGH 1 4) FISENHOWER

IHF WHIEDR HOUSE Ce

Mannh 31.9953... .

20a.

PROCLAMATION OF ‘LIMITED NATIONAL |

EMERGENCY OF SEPTEMBER 1939: 54 STAT. 264%

In pertinent part reads

Now. Dhoretore f brankiin 1) ivoosevedt. Pres

addent ofthe Unired Siates of America, do procham tha!

a national Cmergencsy cCNasts fm connection with any.

to the exteni DCCRSSATA for the propel Observance:

safeguarding. and entoremg ol the neutrality Joh thy

United States and the strengthening of out nations

detense within the limits ot

peacetime acthoris

“tLonis

Specie directions “and atghoriations wall a

“GIVE treme tine to tame for

CAPES EN Gul tires: tune

Purposes 2

PROCLAMATION OF UNDLIMEPED NA TIONAL:

EMERGENCY OF \VEAY 2, M911, 55 SPAT. 1647

In pertinent part reads. Pe %

“Now. LPheretore. 1 brogklin TD Roosevelt. Pres:

dent of the Urted States of America, do proclaim

that an unlimited. national cmergenes confronts

comptro which requares that ats mali ayy. naval,

and civilian detorses be part on the basis of edie

to repel anv and all acts or threats of

| ageression

reciedl toward ans part o!

the Western Hemiasphers

PROCLAMATION TERMINATING THE NATION.

AL EMERC ENCIES, DATED APRIL 28, 1952.

“66 ST. AT C 31.

In pertinent part reads °,

“Now therefore. TP larry So Pruman. President o!

tne United Siates of Armenia. do proclaim that the

rational emergencies declared to exisi by The procla

nations of September, X. 1938) and May 27. 194)

terminated this day upon the entry into force of thu

Preaty of Peace with Japan

Dated April 2s 1952 Hb ia $1.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.