# Petition for Writ of Certiorari — Abt v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA0438614_1132%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1959 - **Citation:** 361 U.S. 871 ## 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’ : \ ea 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 3 » * - . 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 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 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 “ od An the GY id . su PREME * :0U RT. OF THE. UNITED STATES | “p 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: - a f o . 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 2 ~“ 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 4 4 wm "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 © thereatter unley scenef terminated.” neve | 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 * 8 4 v- ~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 . ‘ . . . . . - ° 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 a 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: ae 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 Ss 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 © at the Officers’ Reserve Corps.” Ss 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 * \— o 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 ; : . 12 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 i 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 e 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 : * e Dd 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, . , e es e “_ . 4 \ 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 Pe _ 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 appomtment ‘as captain in the Army of the © 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 - * , ar - . 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. ~. . GH.Q., Army War 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. rs “ * . 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)" ¢ en 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... . _ ed i C 20a. PROCLAMATION OF ‘LIMITED NATIONAL | EMERGENCY OF SEPTEMBER 1939: 54 STAT. 264% é 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. Cc --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA0438614_1132%3A2. Public record. Not legal advice.