# Petition for Writ of Certiorari — Starr v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385601_1327%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1963 - **Citation:** 375 U.S. 952 ## Text —) — eet oe ee 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 | . ‘ Mig . . Vv. =) . ; | Unirep Stares oF AMERICA, Respondent Se PETITION FOR WRIT OF CERTIORARI TO THE - UNITED STATES. hig: OF CLAIMS ita \ iv : 8 a : ‘ "Pap W. SHIELDS ee on 718 Queen- Street Y. Alexandria, Virginia © Attorney for Petitioner aie Purss or Brson S. Avans, Wasuyrcron, D. C. \ : —" : | ren eenereerens a ——— } 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. t . hs 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 — ‘ : . by F os om : wif Untrep. STaTEs oF Awenica, Respondent e a ; Pa PETITION FOR wir ¢ OF CERTIORARI TO THE. \. s UNITED STATES COURT OF CLAIMS \ te */ 4 ey AO ‘ _ 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 . | 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 %, --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385601_1327%3A2. Public record. Not legal advice.