Petition for Writ of Certiorari — Starr v. United States

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i be Peete: Nee % Ottice Supreme Gat, Ss. |

IX THE

Supreme Court of the United States

OcTOBER TERM, 1963,

No: 629

Wma Inwix Dexiy, ET AL. (Rodiney Browne

Starr, Plaintiff Ho. 4 4.), Petitioner |

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| Unirep Stares oF AMERICA, Respondent

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PETITION FOR WRIT OF CERTIORARI TO THE

- UNITED STATES. hig: OF CLAIMS

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: ‘ "Pap W. SHIELDS

ee on 718 Queen- Street

Y. Alexandria, Virginia ©

Attorney for Petitioner

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Purss or Brson S. Avans, Wasuyrcron, D. C.

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INDEX 2 |

.. ? . : Page

Opinion nn ROR TEIN AB pete a suse i (Betaerplad Ye an 1 |

's : eee

Jurisdiction: bates sec aes oes Oe Score Cree 2 -

Question Presented eee eS ers < : a Cree Pan .- |

? ie Statutes Involved ....:..2.¢........ iy ae EEE er 3

‘ “e <% 4 hs. '

ney RETR TERRE CT TE ey er Ri wa Ao

Reasons For Granting The. W rit PRE TE Me OS, ese no

SI TP. 5 ig alan MR ass oe eae he .

F Appendix A ..,..... ; &, icskecieweawe ae Pd a, Aes lacta

; 3 CITATIONS

Cases: | a : | Dt ae .

- Carroll vy. United States’ 7 (*.. ie ed ee |,

° Danielson vi wited States, VVC, Cle Re ge 6

Galvan Vv. Presse347 U.S, 422, : 242 _ ORR ie S

Shierfey v. United States, Wal. © ‘Is, 30%, cert, den.

: a UM ON. ooo eee _ Sah sotto BEE

. 9° United States v. Crmariss “af Industrial Crypts / cis

a hens, 3 eR > Pe ria ee es ee

® United Ree Vv. Dnekerson, 310 US, 344, 569 «6: Se

Srai ‘i " TES ; j

“7%

. ‘ Act of May 7 (, 1952. e 171, 47 Stat. ] w), eee tS 6 2 enttRs 4, 6!

Act of. February 21,: 1946, 8 8(a),; 6.95 (i) plies 3. alts

BO ghintie duu csWenseuned saeie eee 1. ed, G

Pay Re: siiaatins of Act of 1942, Paragraph %,. $:3a,-;-

: ay e828 et. Se we... 24, 5 4- a

iy ___ Temporary Promoetiqns—Aet-of- Faty TOT, e. 3 S10."

Sgr rar eres Oe Stat. 605, GOD. CLT Se eee eT ee eee A

28 U.S.¢. $41 21) owen Meret Seews ee - ,

MiscriLaxrousy si ;

| O91 Cong. Ree, 10919, 10920 2.0.2.0... eee See oe

; Hearings Before Senate Committee on) Naval oe .

te S. 1405, 79th Cong. Ist Sess.; pp. 2-4, 28 02000. 6-8

S. Rept. No. TOT, 7th Cong. Ist Sess Re es Geer eee.

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INTHE’ ;

Supreme Court nf the er States:

Oc TOBER TERM, 1963"

va re . [ oa ; | ff $ :

Wiuiam Irwin Denxy, ev AL. (Rodney Browne

Starr, Plaintiff No. 4.) etitioner —

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Untrep. STaTEs oF Awenica, Respondent

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Pa

PETITION FOR wir ¢ OF CERTIORARI TO THE.

\. s UNITED STATES COURT OF CLAIMS

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‘

_ Rodney ‘Browne Starr, Plaintiff in the Court below,

“through his counsel, prays that a writ of certiorari

issue’ to review: the. judgment of the United States

Court of — enter ed in the abov e case on July 12,

. 7963.

OPINION BELOW

The opinion of the Court of Claims (R. 62- 66) is not

vet reported. _

?

a

JURISDICTION

ed he judgment of ‘the Court of ¢ ‘laimis was entered

on July 12,. 1963 (R. 62). The jurisdiction: of this

*( ‘ourteis is ipvokedt under 28 U.S.C.’ seuss e-

QUESTION PRESENTED :

Whether a former enlisted man sr the Regular

United States Navy, who. served ‘as a commissioned

> offiger in World War I, prior to November 32, 1918,

and: subsequently 1 retired as a chief petty offic er, aha

was advanced ‘on thie retired list to his war-time. com- -

Inissiondd rank, pursuant to the Act: of May 7, 1! 2, ¢,

171, 47 Stat. 150, is a commissioned officer on the re-

tired list, and entitled upon his release from active

duty after recall to active duty during World War IT,

with service as a temporary commissioned officer, to

-have his retired pay computed under the’ provisions

of Paragraph 4 of § 15 of the R av Rez adjustment Act of’

1942, ©. 415, 56 Stat, 399, 368.

tis : STATUTES INVOLVED |

The Act of May 7 a “932<¢. a7, 47 Stat: 150, provides

- als follows: : ioe

Be it enacted by the Senate and House of R epre-

sentatives of the United pune of America in

Congress assembled, That all warrant officers and

enlisted men who iabiong in the Army, Navy,

Marine Corps, or Coast Guard of the. United. |

States during the World War or the Spanish-

- American War, and whose service daring such

war was creditable, and. who have been -or, here-

after may be retired according te law, shal) on the

: date of approval of this.Act or upon retirement -in

a the case of those now ‘on. the. active lists of ‘the

services named herein, be advanced in rank on the

retired Jist to the highest commissioned, warrant,

os

oe

or enlisted grade_held hy ‘them during. such war:

Provided, That nothing itt this Act shall entitle

any of the personnel described herein, while on

‘ aetive duty, ‘to any other rank than that in which

they were serving at the time-of retirement: Aad

provided further, That no inerease in active-or

retired -pay or ‘allowances shajl result from the

‘passage: of this Act. —_ eis

" Section 8(2) of the Act of F ebruary 21, 1946, ¢..34,

60 Stat. 26, 28, amending § 10 of the. Temporary Pro-

motions Act of July 24, 1941, ¢. 310, 55 ‘Stat. 603, 605,

provides in material part as follows:

“Sac. 10. (2)° Personnel appeinted . or advanced

under the authority of this Aet may be’ continued

in their tempor: iy, status during such period as__

the President may détermine, but not longér than .

six.months after-the termination of war or na-~

‘tional emergency or, in the case of reserve and

retired personnel, wot longer than ‘the period here-

_in specified. or the date of release from active duty

whichever is the earlier and in no casé longer than

“six monils after the termination of war or na=

tional emergency. Upon the termination of their

temporary status. such personnel on the active list

of the Regular Navy and Marine C orps shall as-

sume their permane nt stitus and those of the re-

tired list ‘and. of: the respective Reserve Compon-

i ineliding the Fleet Reserve and Fleet Marine

Corps Reserve, shall have, when returned to an

inactive status, the. highest: grade and rank in

which, as determined by the Secretar v of the Navy,

they served satisfactorily under a temporary ap-

cage unless. entitled ‘to ‘the same or higher

‘rade and rank pursuant to section 8 of “this Act,

toe! i now or hereafter amended.

(b) ( 1) Personnel of the retired list returned to.

an inactive status. with higher rank pursuant to

subsection, (a) shall } Eyoee rétired pay computed

at the ‘rate onidlicibelt by. law ond ‘dieltcable in

each: individual case bit based - upon eased ae el y

rank.

‘(e) Personnel of the classes: deseribed ‘above who:

have been’ retired ‘Gr released from active duty:

prior to February 21, 1946, shall be entitled to the

benefits of this.sec tion from the date.of retirement

or release from activ e duty, as the case may be..

(d) Personnel accorded higher rank pursuant to’

this section shall, if subsequently. assigned a‘ctive

duty, be ‘recalled to active duty in the grades,

ranks or ratings, with which they were retired or -°

returned..to an inactive status unless under other |

provisions .of law they’ are entitled to- higher |

grades, ranks, or ratings. ‘( Emphasis added. )

‘ie 4, § 15- of the Pay Readjustment Act of

1942, tO 413, 56 Stat. 359 , 368, provides as follows:

The retired pay of any officer of any of the serv-

ices mentioned in the title of the Act who-served in |

any.capacity as a member of the military or naval

forces of the United States prior to November 12;. °

1918, hereafter .retired under any provision. of

law, shall, unless such officer is‘ entitled to.retired

“pay of a higher grade, be 75 per centum of his:

active duty pay.at the time of his ‘retirement.

STATEMENT

The petitioner, a former enlisted man of the United.

States Navy, served as ‘an. enlisted man and a commis-

sioned offiver during World War I and prior to Novem-

ber? 12, 1918; he subsequently was—transferred, to the

Fleet Reserve ; and after his retirement as a chief petty

_ officer, he was, on February 19, 1934, advanced on. the

retired list, to the rank of Lieutenant, junior grade, as .

* provided by the Act of May 7, 1932, su pra; on July 14,

1941, he was recalled to active duty as a chief petty

o ‘e eye . -, 7:

officer nimetihe in that rate, until June 22, 1942, when

he reeeived a temporary appointment. as Lieutenant,

junior grade, as ‘authorized by the Temporary Promo- ;

tions Act of 1941, supra;. ‘he thereafter received succes- p —

sive temporary promotions, attaining the rank of Lien

_tenant Conimander; on August 30, 1946, he was rv’

leased fromm active duty and. returned to an inactive

_ status on the retired list. After his release from ac tive

‘duty -he was advanced pn the retired list to the rank of

‘Lieutenant Commander, and has received retired pay. ,

based upon the rank: of a Lieutenant Commander

eredited with his years of active service. In his action -

in the Court below ‘he sought to recover the difference

in the retired) pay received by him, and’ retired pay

based/ upon 75 per cent of the pay he was in receipt of

at the timgeof His release from aé soul duty, as provided |

by Pa agiph 4 of § 1 ) of = av Rei idjustment Act

" of 1942, supra. -

The Court —e held that the plaintift iia not en-

| “titled to have. his pay compu el under the provisions

os “of Para graph ; 4 6f § 15 of the Pay. Readjustment Act

of 1942, supra, because. he was not ‘‘re-retiréd’’ as an .

e “officer, but instead had rever ted to an enlisted. status

on ‘the retired list, and then b 4 ween advanced to’ commis:

sioned officer rank, , Se aa :

«

REASONS FOR GRANTING WRIT

1. The Court. below has so far departed from the

accepted and well-defined principles of statutory con- ,

. $truetion as to necessitate the. exercise of this Court's —

jurisdiction to obviate-a patent injustice to the peti-

tioner and others similarly situated, +

©

- The Court below’ has repeatedly held that. commis-

sioned officers retired from-military service prier to |

6

* World War II who were recalléd to active duty during

that war, Were, upon release from active duty ‘‘re-

retired’’, ard entitled. to retired pay as provided by

Paragraph 4:of-§ 15 of the Pay Readjustment Act of

1942, supra. Carroll United States, 117 C. Cls. 53;

— Daniélson. ¥. ‘hited States, 121 C. Cls. 533; Sherfey v,

United States, 141 C. Cls. 307; cert. den. 357 U.S. 926.

It, ‘however, held that petitioner, upon his release from

. active duty had not been returned to the retired .list

yi the commissioned rank Which Congress had pro-

_* wided- he held under the provisions of the Act of May

7, 1932, supra, but instead had “rAerted to a non-

.. existent status of enlisted man on the retired list, and

had suksequently been advanced on the retired ‘list to

his highest cominissioned rank: -The construction the

Court below gave the Act of May 7, 1932, stépra, effec-

tively ‘destroyed the status. which the Cengress* had

“Specifically provided that the petitioner should have

onthe Fetired list. | .

2. Even.if it be assumed arquenda that-the Court

_ belowcorrectly held that the plaintiff retained a perma-

nent status as an enlisted man on the retired list, despite -

the provisions of the Act of May 7. 1932: supra, the

construction it placed o1f the Act of February 21, 1946,

supra, not only fails to give effect to the plain language

of the statute, but also disregards completely: its legis-?

lative history, which clearly shows that the Congress |

did not intend to discriminate between enlisted men

_ advance to temporary commissioned rank, and efficers --

advanced ‘to higher temporary commissioned rank.

During the hearings before the Senate Committee on

Naval A ffairs on S. 1405, 79th ¢ ‘ong., Ist Sess., which

ultimately was enacted as the Act of February 21,

* 1946, the Chief4f Naval Personnel, Admiral Denfield,

. ¢ ¢

-tnade the following statement, at p. 23,1 regarding the

changes incorporated in former Section 10 of the 194 1

Act by the ame ndatory Act; .

“[p.23] Admiral Denfield. * * * the bill anthor-

izes enlisted-men who served in ‘commissioned

grades during the war to h: ive their highest rank

or rating held during the war upon their transfer

to the Fleet Reserve or on release to inactive duty

if already in the Flect Reserve: this saine highest

rank or ‘ating is provided for Reserve officers on .

release to inactive dutyand té retired officers and :

men on their return.to inactive status, and to ffi-

cers and men of the Regular Navy when subse-

- quently retired. Retired Pay is hased on the high-

. est rank or rating held.’ (Emph: isis supplied. )

Admiral Herbert G. Hopwood appeared ‘before the”

Seriate Naval Affairs C omumittee on November 6, 1! 94,

and, at pp..2-4, said: ; .

7 el Sa Adnival Hopu | At the tirst hearings

hefore this committee it-appeared to be the sense

of the committee that we consider #he overall preb-

leth of retirement of persounel ine lnding the re-

Airement of enlisted: men who served’ in higher.

commissioned grades during the war.

“The Chairman. Yes.

“Admiral Hopwood. And thereupon we re-

wrote the bill to include in like tnainer through-

out, retirement’ provisions which authorized en-

listed personiel whev-they retire to retire with the

Rhigest rank held duging the war and with retired

pry based on that A

“The Chairman. The.sanie as officers?

“Admiral Hopue ood. Yes; sir. 2

“The Chairman. The same ‘as regular officers: ?

“Admiral Hopwood. This would be a new fea-

ture; yes, sir... (Emphasis added.5 |

* * * *

v

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| 8

““tp.4] The Chairman. Now our objective is to,

. as near as possible, treat enlisted men to the same

‘as officers? +

~~ “Admiral Hopwood. Yes, sir. °

“The Chairman. . How is that accomplished in-

these provisions? » .

“Admiral Hopwood. We thitik that is accom-

' plished undér the provisions of the committee re-

print No. 2 that we have here.

“The Chairman. “What section ?

“Admiral Hopwood. Section 8 of the bill, sir.’

See also in this connec tion, the diseussion® of the

amended Section 16° appearing in, Senate Report No. _

701, 79th Cong., Ist Sess., page 7, and debate in the

Senate, 91 Cong. Ree. 10919, 10920.. |

It, of course, is elementary that an act t should ” be

construed in a manner to effect the intent of the legis-

lature as disclosed by the legislative background of the

Act. Cf. United: States, v. Dickerson, 310.U.S. O44,

062; Galvan v. Press, 347 U.S. 522, 526-528: and‘ -

United States v. Congress of Industrial Organizations,

335.U.S. 106, where, at pp. 112, 113, this Court said:

“The purpose of Congress is a dominant factor in

» determining meaning. There is no better key toa. .

difficult problem of statutory construction than the

law from which the challenged. statute emerged.

. Remedial laws are to be interpreted in the light of

previous experience and prior enactments: Nor,

where doubt exists, should we disregard informed

congressional discussion.” Chore

3. The decision of the- Court ‘aoe affects the status

and retired pay of more than 100 former: retired en-.

listed men. of the Regular United States Navy who

served their country as ‘officers during World War I,

who were advanced on the retired list to commissioned -

Ne 9

status under the provisions of the Act of May 7, _

supra, and who were subsequently recalled to active

duty and received temporary appointments to commis-

sioned rank in the Regular Navy, and, upon release -

from active duty, were returned to the retired list or -

should have been returned to the retired list’ of the

Regular Navy with the highest rank in which they

had satisfactorily served as determined by the Secre-

tary of the Navy. As the Court below has sole juris-

diction of this type of action, petition to this Court for

grant of writ of certiorari is the only method by which

review of the deci ‘sion. of the Court below can be

obtained. |

CONCLUSION

For the foregoing reasors it is respectfully sub-

mitted that this petition for. grant of certiorari should ,

be granted.

* Frep W. SHIetps

ot _ 418 Queen Street = -

: eg

Alexandria, Virginia

Attorney for Petitioner

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