Petition for Writ of Certiorari — Akerson v. United States

o. ee oi: || Office-Supreme Court, U.S.

Cae! : rae : FILED

“1 Meh SEP 1956

pAvis, GLERK

“INTHE _

Supreme Court of the United States

OCTOBER Term, 1966

wo.5 4]

Martin AKERSON, ET AL., Petitioners,

We |

Unitep States or AMERICA

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF CLAIMS

<?

lenacemapial EvcENE Gressmax—

1730 K Street, N. W. |

Washington, D. C. 20006

Damon M. Gunn

1815 H Street. N. W.

o Washington, D. C. 20006

Counsel for Petitioners

September 9, 1966 _

Press or Byron S. ApAMs Parintinc; Inc., WASHINGTON, D. C.

°

3 INDEX

: : | ‘Page

7 Opinion below Lave cegeensecceseceoes aie pre ”

en nade Peauarns agli ol ae “2 ;

ex Questions presented: iat obec teenies eee are 2

Statutes eS a Ea 2 EAR ae 2

Statement of-the case ........ a ery outa Sera

‘Reasons for granting ES. coc ocixie esos Shee 1.

1. The statutory issue here’ involved i is of extraor-

dinary significance. ..............ceceeereeeee 10

2. Important problems, of statutory construction.

and application are raised by the decision below °14

A. The critical langtiage of the 1958 Act .:.... 14°

B. The impact of the unrepealed statutes ..... 20

-- C. The agree REE i's cwecrtaess ee ae

Conclusion wera Cogs svete sigan as cedeseicnscvecs 26.

_ Appendix (Opinion 6 of Court of Claims) ..... ; “ “«.

CITATIONS .

Caszs: i aa . -

‘stair et Py v. United States, Ct. Cl. No. 163- 64. 9, 12a

Collett, Ex CO Be es OF adc ato win £6548 ed EOe ‘21

District, of Columbia v. ‘Thompson Co., 346 U.S. 100.. 20

_ Flora v. United States, 357 U.S. 63°. 4........... Si 119, 20

Patterson v. Lamb, 329. U:S. 539 ......... Ssabeeek ae

_ Steiner v. Mitchell, ” 350 2 Seer ana i

United States v. Borden Sg Ge A BOD cieccecicss 20

United States v. Heth, 3 Cranch 399 PP ene ere 26

United States v. Tyler, 105 U.S..244 ....... PTE PS 7

United States v. Zazove, 334 U.S. 602 .............. 10

’ eee

ii.

SraruTes: Et 907 ale Page -

Act of August 3, 1861, 12 Stat. 089 aapoeteceeee See

Act of May 20, 1958, 72 Stat.122: | Orage sk es

Section 3(a) sekedstundnededheccscuadquts 2,615".

| | PERE ECL L ETC CLT TE 38, 6, 16, 17

| ry reer rr 337, 17, 18, 19

Act of October 2, 1963, 77 Stat. 210 ANS a 0 0 s-eDy Oe 12, 20, 21

10 U.S.C. §§ 133]-1337, NL Spree rrr 17

‘10 U.S.C. (1958 ed.) §140T 0.2.0.5... cee eee eee ink ae

10 U.S.C. (1958 ed-) § 3991 ........... Por err err 24, 22

. 10 U.S.C-{1958 ed.) § 6149 ........ cmikeedgsadiage ae

' MOU B.C. (1966 od.) FECL . Po. ccc ccc ecgeeees oss 422

14 U.S.C. $$ 231, 304,423 52... ccc cece cece Gudasa « “4

SOM CUE occ sec ecenpcscdonas sakagents a

37 U.S.C. (1958 ay! POE tng olscsneveteagdubeatens 6, 23

42 US.C. .§213(a) OD 0665400 spgecbprdecpateuenens 4

MiscELLANEOvs: £ i

104 Cong. Ree, 4711 (March 25, 1958) ate cadeces once, oe

H. Rep. No. 1538, 85th Cong., 2d Sess. ............. SS

S. Rep. No. 387, 88th Cong., Ist Sess. .............. Il

S. Rep. No. 1472, 85th Cong., 2d Sess. .......12, 22, 23, 24 .

- US. Army Register, Vol. 1, United States Army

a and Retired List (Jan. Ny SOO) occcesecuce 18

® Vile?

Index Continued

Hearings. before Subcommittee No. 2 of the House

Committee on Armed Services on H.R. 9979,

Method of Computing Basie Pay (March 7, 1958)...

IN THE.

| Supreme Court of the Buited States :

OcToBER: TERM, 1966

_ No.

Marti AKERSON, ET AL., Petitioners,

aan ve |

‘UNITED STATES OF AMERICA ~*

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED anaes COURT OF —. .

The 1,853 petitioners represented’ herein respect-

fully pray that a writ of certiorari‘issue to review the ©

action of the United States Court ofClaims of May

13, 1966, granting the motion of the United States to

dismiss the petitions filed in that court by these — |

: tioners. A

OPINION BELOW

- . The opinion of the Court of Claims is not yet: re-

ported. It is printed in. aK Appendix. hereto, p. la,

fra.

2.

“JURISDICTION iS

‘The Court of Claims’ on May 13, 1966, entered its |

opinion and judgment dismissing the actions filed in

that court. On timely application, Mr. Justice White

on J tilly 30, 1966, signed an order: extending the time

in which.-to file this. petition for writ of certiorari to,

and including September 12, 1966. The jurisdiction of .

intl

2? this Court. is invokéd. under 28 U.S.C. 8 1255(1)..

QUESTIONS PRESENTED _

“1. Whether the several provisions of the United

: States Code, entitling retired personnel. of the United

States uniformed services to receive retired pay com- — .

‘+ puted as a’ percentage of the pay they would be entitled . |

_to if on active duty in their retired grades, were ’

modified or-repealed by the Act of May 20,-1958,.72. ~

‘Stat. 122, or remained in full force'and effect until _

expressly repealed by the, Act of October 2, 1968, 77

Stat. 210.. |

- +@ Whether an older lind from a winifoaimed serv-.

ice prior ‘to June 1; 1958, can be considered .as other

than ‘‘retired’’ on that date so as to be excluded from:

the right, recognized by ‘Section 4(b) of the Act of

May 20, 1958, 72:Stat. 122, to the computation of ré-

tired pay on the basis of the higher sony: duty pay

scale established by that Act.

aes STATUTES INVOLVED

- Act of May 20, 1958, 72 Stat. 128, Section 3 (3 U. s. C: .

— -§ 232 note) and Section 4°(10 U.S.C. § 1401 note) pro-

. vide in-pertinent part: - a ,

SEC. 3.: (a) Notwithstanding ; any ‘other provi- S

‘ sion of Iaw, except sections 4 and 7 of this Act

and subsection (b) of this section, the changes in

3

_ Yates of basic pay made by this Act do not increase _

_ fhe amount of retired pay, retirement pay,.retainer

pay, or equivalent pay to which. any person is . __

entitled. on the day .before the effective date of .

- ‘this Act. cet | oe Fi tae

* * °* 7 * a See ae * ee

SEC. 4. (a) Exeept for members covered by

. section 7 of this Act and.persons with two or less

“years of service for basic pay purposes wh» were |

retired for physical disability or placed on the

' temporary disability ‘retired list, members and

former members of the uniformed services whe

are entitled to retired pay, retirement pay, re-

tainer .pay, or equivalent pay, on the day before

the effective date of this Act, shall be entitled to

an increase of 6 per centum of that pay to.which .

they were entitled on that date. © nee |

. (b) Notwithstanding any other provision of law,

- a member of a uniformed service retired under

any provision of law, or transferred to the Fleet .—

Reserye or Fleet. Marine Corps Reserve, on the

effective date of this Act shall have his retired pay .

or retainer pay: computed on the basis of the rates ©

_ of basic pay set forth in the Career Compensation

Act of 1949, as amended by this Act, or on the rates

_ of basic pay set forth in the Career-Compensation

Act of 1949 on the day before the effective date of. _

this Act, plus 6 per centum of that pay, whichever

is greater. ° pe e ;

_ Act of August 10; 1956, 70A Stat. 385, 10 U.S.C.

(1958 ed.) § 6149, identified in the Unitéd States Code —

~ as having been repealed by the Act.of October 2, 1963;

77 Stat. 214, the repeal being effective October 1, 1963:

“Except for officers whose retired pay is com- |

puted under the Pay Readjustment Act of 1942 (56

‘Stat. 359), the retired pay of each retired

[oe

s

ae

| steed of the Bary or: the Marine Corps shall be

computed on. the basis of rates of pay provided by

law, at the time of his retirement, for officers on the

active list. If after. the retirement of any such

officer the rates of pay for officers on the active list

are changed, the retired pay to which the officer

is entitled shall be’ recomnputed on the basis of the

‘new rates.”’

- [Similar statutes respecting the computation of re-

tired pay for retired officers of the Army, Air Force,

’ Coast Guard, Public Health Service, and Coast and

Geodetic: Survey appeared respectively in 10 U.S.C. .

(1958 ed.) §3991; 10 °U.S.C. (1958 ed.) § 8991; le

_, U.S.C. §§ 231, 304, 423; 42 U.S.C. § 213(a) (4): 33

U.S.C. § 857(a). All of these have been repealed by

_ the Act of October 2, 1963, 77 Stat. 214.]

| STATEMENT OF THE CASE

The 1,853 petitioners herein are retired officers of

the various military and uniformed- services of the

United States.’ Of that number, 1,206: had honorably

served and completed their active careers in the United

- States Army, 272 in the United States Navy, 240 inthe —

United States Marine Corps, 18 in the United States .

“Coast Guard, 12 in the United States Public Health

Service, 160 in the United States Air Force, and 4 in

the United States Coast and Geodetic Survey.

All of these petitioners, grouped accordifig to the

| respective services from which they had retired, filed.

~

1 Some of these retired officers died after their claims arose.

They are represented herein by their widows, rat as adminis-

_ trators or other legal representatives.

\

o —* 4

Be :

petitions in the Court of Claims,’ The petitions sought

recovery of additional retired pay for the period be-

tween June,1, 1958, and October 1, 1963, the precise

amounts being subject to computation by the Comp-

‘troller General. The relevant facts revealed by these.

petitions may be summarized and restated as follows:

on e :

(1) All of the petitioners had retired: from their _

respective servicés prior to June 1, 1958, and retained

the status of retired. officers on that date.

Q"

(2) Prior to June 1, 1958; each petitioner received

retired’ pay computed as a percentage of the pay he

would have received if on active duty in his retired’

'. grade, as provided by long-standing statutes. © This

meant, without exception, that each such retired officer

benefited from any pay increase in basic pay given to

an officer of like rank serving on active duty. Retired: -

_ pay thus increased autemati¢ally and proportionate

as basic active pay scales were increased. This meth

. of computing retired pay, which had been in effect for

_ nearly a century, had been set forth by Congress in a

series of enactments applicable to the career retirees

of the respective uniformed services. And petitioners

claimed /that these enactments had not been repealed

or suspended but remained in effect throughout the

1958-1948 period in question, thereby forming the basis

for the claims here asserted. ‘See 10 U.S.C. (1958 ed.)

2 Seven petitions, raising the identical statutory issues, were

filed in the Court of Claims on beMfilf of the seven groups of retired

officers: No. 155-64, by the retired Army officers; No. 156-64, by

the retired Navy officers; No. 157-64, by the retired Marine Corps

officers; No. 158-64, by the retired Coast Guard officers} No. 159-64, ©

by the retired Publie Health Service officers; No. 160-64, by the ,

retired Air Force officers; No. 161-64, by the retired Coast and —

Geodetic Survey officers. e seven cases were consolidated for

determination and decision in the Court of Claims. See p. 1a, infra.

rat

nd

6

~ §3991 (Army); 10 U.S.C. (1958 ed.) § 6149 (Navy

~ and Marine Corps); 10 U.S.C. (1958 ed.). § 8991- (Air

Force) ; 14 U:8.C. §§ 231, 304, 423 (Coast Guard); 42

U.S.C. § 213(a) (4) (Public Health) ; 33 U. 5. C. § 857

(a) (Coast and Geodetic Survey). —

(3) On June 1, 1958, the Act of May 20, 1958, 72

Stat. 128, became ‘effective. That Act provided, inter

alia, new ‘and higher scales of basic pay for officers on

active duty in the various uniformed services, théreby

increasing the scales as last set forth in the Career

Compensation Act of. 1949, as amended, 37: U.S.C.

§ 232, et seq.. This increase would have meant, by ap- —

plication of the formulae established in the prior en-

actmeuts of Congress, automatic increases in the

amounts payable to the petitioners as retired pay.

- But Section 3(a) of this 1958 Act, one of the critical

_ sections here‘in issue, provided: . +.

“Notwithstanding any other provision ‘of law,

except sections 4 and 7 of this Act and subsection

(b) of this section, the changes in rates of basic

pay made by this Act do not increase the amount

. of retired pay, retirement pay, retainer pay, or

- equivalent pay to which any person is entitled on

the day before the effective date of this Act.’’

Section 4, which is the relevant reference in. Section

3(a), in turn contained. two subsections: |

(a) Subsection.(a) stated that, with certain excep- .

tions not here applicable, ‘‘members and former mem-.

bers. of the uniformed services who are. entitled to re-

tired pay, retirement pay, retainer pay, or equivalent

pay, on the day before the effective date of.this Act,

shall be entitled to an increase of 6 per centum of that

pay to which they were entitled on that date.’ [Em-

phasis added.] : ,

: . v

. a ;

(b) Subsection (b) stated that ‘‘[n]otwithstanding

any other provision of law, a member of a wniformed

service retired under any provision of law .... on the

effective date of this Act shall have his retired ‘pay or -

retainer pay computed on the basis of the rates of

basic pay set forth in the Career: Compensation Act of

1949, as amended.by this Act,.or on the rates of basic

pay set forth in the Cateer Compensation Act of 1949

on the day before the effective date of this Act, plus 6

per centum of that pay, whichever is greater.”’ -_

phasis added.] ,

(4) Beginning on June 1, 1958, and continuing until

October 1, 1963, the various departments ‘administering

the retired pay programs computed the retired pay of.

each petitioner in accordance with Section 4(a) rather

than Section 4(b) of the 1958 Act—z.e., by using the

basic pay rates set forth in the Career. ‘Compensation

Act of 1949 and in effect the day before the effective

date of the 1958 Act, plus 6% of that pay. . This action

thus disregarded the fact that petitioners remained .

retired members of the uniformed services'on and after

_ June 1, 1958. .

(5) Potitionezs claimed, on the other hand, that

_ they were within the intendment of Section 4(b) of the

1958 Act, thereby entitling them to retired pay com-

' puted on the basis of the new and higher rate of basic

pay established by the 1958 Act. The: continuation of

this formula, they asserted, was consistent with the fact

that the statutes establishing that. formula were not

repealed until 1963.

(6) Petitioners’ claims - relative to the higher rate

- of retired pay were denied by the General Accounting

Office, the Government’s position being that the 1958”

Act, in-the quoted provisions, must be deemed to have

repealed the long-standing enactments respecting the

a

8

formula for computing retired pay. The petitioners

accordingly instituted these proceedings in the Court

of Claims. al

Thus the dispute before the Court of Claims eentered

upon the impact of the 1958 Act upon the pre-existing

retired pay formula applicable to petitioners. The

Governmeut conceded that if the statutes setting out

the formula, which automatically increased retired pay

as the basic active pay scale increased, were still effec- —

tive as to petitioners following the adoption of the 1958

Act, petitioners’ claims here would be valid. But the

Government’s contention was that Section 3(a) of the

1958 Act operated to freeze the active pay scale in »

effect the day. prior to June 1, 1958, the effective date

of the 1958 statute, so that petitioners were deprived

f

' of having their retired pay computed on the basis of

the new and higher basic active duty pay scale set

forth in the 1958 Act. ° |

. Petitioners’ claims cover the period between June 1,

1958, and October 1, 1963. On the latter date, the Uni-

formed Services Pay Act of 1963, 77 Stat. 210, became

effective. That Act expressly repealed the ‘various ‘pre-

1958 statutes which established the retired pay formula

underlying petitioners’ clainis, statutes which the Gov-

ernment claimed had already been repealed in effect by

the 1958 Act. Under the new statute, changes in re-

tired pay. for uniformed officers are no longer based

upon the current basic active duty pay seale but rather

upon the cost-of-living index prepared el the Depart-

ment of Labor.

Since there were no factual,issues involved, the Court

of Claims disposed of the claims on the: basis of the

. statutory se ral advanced by the Government in

9

its motion to dismiss. In granting that motion, how-.

ever, the court conceded that. ‘‘ Either interpretation

[of. the 1958 Act] is possible; neither is completely

'.satisfying.’”? See Appendix, p. 4a, fra. And the

court further stated that if the legislative intent was.

what the Government said it was ‘‘we would prefer to

have a provision unencumbered by ambiguity.’’ Ibid. —

The Court of Claims not only granted the Gover

ment’s motion to dismiss but denied petitioners’ motion

_ for summary judgment. Appendix, p. 12a, infra. The

court stated (p. lla, infra) that petitioners’ ‘‘best

argument” was that ‘‘until the enactment of the 1963

legislation the scheme under which they received re-

tired-pay-based-on-active-duty-pay before June 1, 1958.

remained in Title 10 of the United States Code.’’ The

‘court conceded that the 1958 legislation ‘‘made certain

~ amendments to these sections in Title 10, indicating

that Congress was aware of the apparent continuance ~

of. the prior scheme . . . but nowhere was there-an

express repeal of the Title 10 provisions. We do not ©

know why Congress waited until 1963 to remove from

the Code these Title 10 provisions.” Ibid.

Finally, with respect to petitioners’ claim that their

equitable rights had been breached, the Court of Claims

merged its denial of the contention with its rejection

of a claim in contract that had been advanced in a eom-

panion case decided the same day, Andrews, et al. v.

United States, Ct. Cl. No. 163-64. That opinion is.

reprinted in the Appendix hereto, p. 12a, infra, for

the convenience of this Court.

10—

REASONS FOR GRANTING. THE WRIT

1. The Statutory Issue Here Involved ‘Is of Extraordinary

Significance, Being Intimately Related to:

(a). The incentive for career-long ‘military service, one

of the essential elements of our national defense; and

(b) The respect due the long-established we and prac-

tice of Congress. :

Seldom doeg, a problem of statutory eonstruction

reach this Court so overladen with considerations of

‘national significance, in terms both of our country’s

defense eapabilities and a century-old. Congressional

policy designed to implement those capabilities. Those

considerations—amply justify the exercise of this

_.\ Court’s certiorari powers to resolve what is a most per-

‘plexing statutory enigma, one which the Court of

Claims found possible of diametrically opposite con-

clusions from -reading the statute. And neither read-

¥

ing was found to be ‘completely satisfying.”’

In terms of the sheer numbers of men and the large

amounts of money involved in these élaims, the ques-

tion posed has a universality warranting the attention -

of this Court. See United States v. Zazove, 334 U.S.

602, 613-614, fn. 17; Patterson v. Lamb, 329 U.S. 539,

541. 3 The 1, 853 petitioners herein are but a small

fraction of those affected directly and indirectly by

the holding of the Court of Claims, More than 17,000

8In the Zazove case, certiorari was granted to review an im-

portant question of statutory construction involving the veterans

national life insurance program, where the potential =" of |

the Government ‘‘might well amount to billions of dollars.’’

Certiorari was granted in the Patterson case to review certain

War Department regulations and practices ‘‘which have affected, —

and will hereafter affect, the status and claims of thousands of

draftees of the First World War.’’

11 >

individuals who retired from life-long careers in the

various uniformed services have claims paralleling ,

those of the petitioners; and a rough estimate of the

total dollar value of these claims would be no less than

$25,000,000.. But the general principles here at stake

_may fairly be said 46 affect, particularly in terms of °

incentive : and morale, the literally millions of active

and retired members of the uniformed services of the

United States.“ If the decision below does in fact

constitute a misconstruction of the will of Congress

respecting the computation of retirement pay then a.

grave disservice has been done to the reliance and

-confidence of all those who have devoted their careers

to the national defense effort, as well as to the integrity —

_ of Congress.

But the importante of the statutory problem involvés |

far more than large numbers of men or large numbers

of dollars.. One.of the major purposes of providing

retired pay for those who devote their lives to the uni- -

formed services is to provide a reliable-financial incen-

tive to attract and maintain precisely that kind of ‘de-.

votion. From time to time there has been a critical

officer retention problem confronting the military and

uniformed services resulting from ‘‘an inadequate

number of junior officers seeking careér status beyond

the period of their obligated service.’’ S. Rep. No.

- 387, p. 3, 88th Cong.,’ Ist Sess.° And that retention —

problem is directly related to the national security, it

' being obvious that our defense capabilities are en-

‘Department of Defense figures show that at the end of fiscal

year 1958,.when the instant claims arose, there were a total of

215,026 personnel retired from the Army, Navy, Marine Corps and

’ Air Force. Of that number, 41,618 were listed as retired regular

_ officers and 64,716 were listed as-retired non-regular officers.

& .

12.

hanced by career-long retention of highly trained per-

sonnel. As was said in 1958 by the Joint Chiefs of

Staff, quoted in 8. ap. No. 1472, pp. 1-2, 85th Cong.,

2d Sess.,

“The Joint Chiefs of Staff believe that there is

a vital need to increase.the overall attractiveness

of the professional military eareer in relation to

its civilian counterparts in private industry. “It

_ is believed that a program of long-range incentives

‘ designed to this end is a matter of highest priority

in order to obtain the requisite high profess sional

- level in our military force.”

Acting upon such advice Congress has resolved to

establish a liberal retirement program to serve as a

_part of the necessary inducement for career-long serv-

‘ ice. Indeed, it did so as long ago as the Act of August —

3, 1861, 12 Stat. 289, wherein Congress first provided __

a retirement ‘pay system for the career officer directly

related to the current active pay scale of the military

services. That system remained as an integral part of

the United States Code until 1963, when a cost-of-liv- ©

ing-index ftandard was substituted as the primary

means of computing changes in retired pay. Uni-

fornied Services Pay Act of 1963, 77 Stat. 210.

Thus to raise questions concerning the very existence |

of the long-standing retired pay program for the five

years preceding the 1963 enactment is to raise ques- |

tions touching on very basic and very practical aspects

of national security. If Congress did in fact retain

the current basie active pay scale as the determinant

of retired pay between 1958 and 1963, the duty to re-

spect that legislative will is.especially high, -Courts

- are of course obligated in all situations ‘‘to give effect

“ to the intent of Congress.”’ Flora v.: United States,

13

357 U. S. 63, 65. But when that legislative will deals

with critical factors of national defense, the obligation —

can brook no slightest compromise ; every possible step

must be taken to insure that such intent is. accurately

discerned and effectuated.

By the same ‘token, when Congress has legislated

on such matters in @ way that leaves confusion and

-. doubt, as-is apparent in this situation, the problems of ©

- statutory construction become peculiarly subject to

@ Judicial resolution. That confusion and that doubt

unfortunately survive the efforts of the Court of

Claims to make a satisfactory resolution. . And since

' the monetary claims here involved can be pursued in

no tribunal other than the Court of Claims, there will

he no opportunity for other judges or other lower

courts to attempt to resolve the. statutory. mysteries;

and hence there is no possibility of conflicting decisions

arising out. of these. statutory problems. Only - the ;

efforts of this Court at this time can supply the defini-

tive analysis that. = legislative Words here involved

so desperately need. | -

If the decision below be wrong—and ‘te Court of

Claims was frankly uncertain from its reading of the |

‘statutory language—then the wrong has most serious

consequences.. A desire of Congress respecting the |

maintenance of the national security will have been

frustrated. And the thousands of retired personnel of |

the uniformed services, partly induced to give their

‘careers to those services by the retired pay promises :

offered by Congress, will. have been ‘denied what is__

fairly due them. The impact of that frustration and —

that denial upon the morale and incentive of the count-

less, active officers and upon the retention rate of the

J ea Gp

: various services, while. difficult of measurement, will.”

indeed be and already has been serious. . ;

Since the Court: of Claims opinion does not supply

_ the convincing assurance that the Congressional will .

has been properly, read or applied and since the, basic

considerations at-stake are so related to the mainte-

nance of the national security, review by this Court —

, becomes essential. | ; 7 ; \

. 2. Important Problems of Statutory Construction and

Apptiation Are Raised by the Decision Below .

Viewed as a chapter in the never-ending prozess of

. interpreting and applying Congressional enactments,

. the de cision: below does indeed raise important ques-

_ tions /as to the techniques appropriate for discovering

the true legislative intent. The Act of May 20, 1958, .

is a significant part of the great complex of laws deal- °

ing with the retirenient. rights of. careermen in the

uniformed services. Yet it has been framed in lan-

guage that the court below found capable of diamet-

rically opposite= constructions, thereby’ requiring the

most careful use of judicial techniqués for unraveling

the confusion. Because.the techniques used by the

Court of Claims are so dubious and produce a result.

so at war with Congressional intent, it becomes neces-

sary for this Court to. reexamine both the mode and

the result of. the aaa aaa made by the ‘court

below. ae a

AL The Gritical Language of the 1958 Act.

At the heart of the problem in/ this ease are the pro-

visions of Sections 3 and 4 of the 1958 statute. ‘That _

problem and ‘the differing ‘constructions that may be:

mane of those sections can be seen —— the following:

Zz cee

i Section 2a)

Section 3(a) | ‘reads? SN otwithstanding any other

provision of law, except sections 4 and 7 of this Act

. the changes in rates of basic pay made by this Act

i not increase the amount of retired pay, retirement

pay, retainer pay, or equivalent pay to which any per-

_ ‘son is entitled on the day before the effective date of © is

this Act.’?“ The effective date being June 1, 1958, the .

day before would be May 31, 1958. Hearse

The Government’ 8 version of this statutory language, :

which was adopted by the Court of Claims, is-that (1) -

the opening phrase ‘‘Notwithstanding any other. pro- ©

vision of law”’ operates to exclude and in effect repeal

_ the,operation of the pre-1958 statutes relating to the

computation of retired pay, (2) the ‘‘except’’ clause

as:to Section 4 must be given effect as indicated below,

and (3) since petitioners were entitled to receive re- .

tired pay on the day before the effective date of. this’ -

Act, the last portion of the section means that they

were not to receive any increase by virtue of the-higher ©

“active: pay scales established by theéf958 Act—thereby

further indicating that the pre-1958 statutes, with

their provision for automatic increases-in retired pay

proportionate to i increase in the: active pay seales, were. -

no longer effective.

‘The petitioners’ version of Séction 3(a) is that. (1) i

‘the opéning ‘‘Notwithstanding”’ clause is necessarily

modified by the ‘‘except’’ clause so that, if the: pre-

1958 formula for retired pay was ‘still effective ‘under

»-the excepted Section 4(b), there had been no repeal or

modification of that formula as to petitioners, and (2)

the. prohibition against increasing retired pay based |

on higher active pay scales does not apply to those who

- are within the —— of the er Section 4(b).:

‘ae ‘

Section 4(a)

Section 4(a) reads: “. . members and former mem-

bers of the uniformed services who are entitled to re-

tired pay ... on the day before the effective date of

this Act, shall be entitled to an increase of 6 per centum

of that pay to which they were entitled on that date.’’?

The Government’s version is that (1) petitjoners,

ie having retired prior to June 1, 1958, were among those

‘entitled to. retired pay ... on the day before the

‘effective dafe of the 1958 Act. Thus petitioners’, ver-

entitled to a cost-of-living increase of 6%, in the pay |

to which they were entitled on that May 31 date, and

no more, and (3) when read with Section 3(a), this

section-means that petitioners are not entitled to: re-

ceive any additional increase under Section 4(b) by |

virtue of the higher active duty, seale established by

this Act.>. Thus the Government® version of Section

| 4(a) emphasizes the May 31, 1958, date in terms of

- one’s eligibility for retired pay on that date.

. The petitioners’ version is that (1) Section 4(a)

“merely provides. that ‘‘members and former members

of the fn ormed services’”shall, as Congress intended,

- all receivd a 6% cost-of-living increase in pay, and (2)

this 6% increase, for.purposes of computation, shall

be based upon the pay received the day before the

effective date of the 1958 Act. Thus petitioners’ ver-

sion emphasizes the 6% ,, cost-of-living inerease, the

May 31 date having im irtanee only in terms of mak- .

ing certain which basic pay was to be used 1 in — a

the 6%.

- There is nothing in-the iii ‘of Section, 4(a),:

-petitioriers maintain, to suggest that all per'sons within -

its terms are necessarily excluded from the provisions

.

P 4 e ' ; ad

of Section 4(b). Indeed, since Section 4(b), refers in

~~ | aa

part to the right of retired members of the uniformed

services to choose the 6% increase authorized by See-

_tion 4(a) there must be a degree of mutuality of cover-

age between the two subsections: If there is any ex-

clusivity as to Section 4(a) it is in relation to those

non-regular officers and personnel who cannot qualify

as ‘‘a member of a uniform service ‘retired’ for putr-

poses of Section 4(b).”. To repeat, the critical element

of Section ¥(a) is its creation of a Base on which to

compute the 6% inerease—which may or may not be

utilized by those retired regular ‘officers mentioned in

Section 4(b). |

ee | Section 4(b) © |

Section 4(b) reads: ‘‘Notwithstanding any other

provision of law, a member of a uniformed service

retired under any provision of law . . . on the effec-

* An officer cannot qualify as ‘‘a member of a uniform service

retired’’ if he was commissioned as a non-regular officer and if,

in retirement, he is not subject to military law, the dual compen-

sation and conflict-of-interest laws, and other military disabilities.

See United States v. Tyler, 105 U.S. 244, 246. The non-regular

offieer’s eligibility rey pay is controlled by the provisions

of Chapter 67, 10 U.S.C. §§ 1331-1337, entitled ‘‘ Retired Pay for

Non-Regular Service.’’ His non-active duty may be counted as

' service for purposes of computing his retired pay. ,

On the other hand, ‘‘a member of a uniform service retired’’

is one who was commissioned in the regular service, had career

status, and upon retirement reniains a ‘‘member’’ of that service,

subject to all military laws and other disabilities. ~ .

Thus the words ‘“‘member of a uniform service retized’’ in Sec- -

tion 4(b) are not. synénymous with the words ‘‘who are entitled

to retired pay’’ in Section 4(a). A person may be ‘‘entitled to

retired pay’’ under 10 U.S.C. § 1331 without being a ‘‘member of

- a uniform service retired,’’ and such a person’s retired pay had

never been subject to adjustment to reflect later changes in basic

active pay ‘scales.

18

tive date of this Act shall have his retired pay or re-

tainer pay computed on the basis of the rates of basic

pay set forth in the Career Compensation Act of 1949,

as amended by this Act, or on the rates of basic pay

- get forth in the Career Compensation Act of 1949 on

the day before the effective date of this Act, plus -6

per centum of that pay, whichever i is greater.”’

The Government’s version is that (1) the ‘‘ Notwith-

- standing’’ phrase is another indication that the pro-

- visions of the pre-1958 statutes respecting retired pay

. are.no longer applicable, (2) the phrase ‘‘mermber of

a uniformed service retired under: any provision of

‘law... on the effective date of this Act’’ means only

those who were on active duty through May 31, -1958,

and who actually became retired on June 1, 1958,

thereby excluding those like petitioners who became

retired before that date, arid (3) the choice between the

two methods of computing retired pay simply does not

apply to those who became retired before June.1, 1958.

The petitioners’ version is-that (1) the ‘‘Notwith- | |

standing’’ clause has significance here only because it

permits the choice of the 6% cost-of-living basic in-

crease, which would otherwise be prohibited by the

_ ‘pre-1958 statutes still in effect, (2) the phrase ‘‘mem-

ber of a uniformed service retired:-under any provision .

of law ... on the effective date-of this Act’’ refers to

those members, like petitioners, having a status of re-_

tired officers on that date rather than to those who

actually became retired on that date,° and (3) those

* This interpretation avoids the absurd result of the Govern-

* ment’s interpretation whereby only those who actually retired on

June 1, 1958, would be affected by Section 4(b). Actually only

8 Army officers retired as of that date. U.S. Army Register, Vol.

‘1, United States Army Active and Retired List (Jan. 1, 1963).

2

. 19

with retired status within the ‘purview of this section -

' are only those who were regular officers in the active

service and who remain members of the service after °

retirement, and (4)-the choice made available by the

last part of Section 4(b) expressly recognizes the avail-

ability of the pre-1958 formula—i.e., computing retired

pay. ‘‘on the basis of the rates of basie pay set forth

in the Career, Compensation Act of 1949, as amended

by this Act.’’ Petitioners’. version thus emphasizes

not the date of retirement but one’s status as a retired

officer on June 1, 1958. He is given an option to re-

.ceive retired pay increases in accordance with the pre-

1958 formula or the 6% increase computed on the rate

of pay in effect on May 31. °

These, in capsule form, are the competing -interpre-

tations of the relevant statutory language. . Petitioners

suggest that their interpretation is more in accord

with a common-sense reading of the language and

gives recognition to all provisions of law outstanding

as of June 1, 1958, as well as the repealing provisions

of 1963. And that interpretation is in accord with the

basic rule of statutory construction that ‘‘our first

reference is of course to the literal meaning of words

employed,”’ Flora v. United States, 357 U.S. 63, 65.

When sucha reference is made, much of the seeming

ambiguity disappears, leaving little need to consult

other evidences of legislative intent. ©

The numbers actually retiring from the othereservices as of that

date would be even smaller. Certainly Congress did not’ write

Section 4(b) for the benefit of this handful of individvals. Indeed,

the Court of Claims stated that if Congress did intend to limit

Section 4(b) to those who retire on June 1, 1958, ‘“‘we would

prefer to have a provision unencumbered by ambiguity.’’ See

p. 4a, infra.

*

20.

The contrary interpretations of the Government and

_ of the Court of Claims raise serious questions as to

techniques for reading and collating a series of en-

~ actments and giving effect to express language of re-

peal. In the circumstances of this case, this Court

-should resolve the differences of opinion as to the mean-

ing of such. important Congressional enactments. .-

—=&B. The Impact of the Unrepealed Statutes

The Court of Claims acknowledged. (p. lla, infra)

that the pre-1958 statutes, expressly authorizing the

computation of retired pay on the basis of the current

basic active duty pay scale, were not removed from the

_ United States Code until 1963. And the court further

_ conceded (p. 1a,.infra) that the 1958 Act made certain

amendments to those earlier statutes, ‘‘indicating that

Congress was aware of the apparent: continuance of —

the. prior scheme. Ray

A substantial question is thereby raised as to

whether,. given ambiguity in the language of the-1958

Act, the clear and unrepealed provisions of the earlier |

statutes should be construed as an integral part of the

_ 1958 statute—thereby helping to remove the seeming .

ambiguity in that statute. As was said in District of

Columbia v. Thompson Co., 346 U.S. 100, 114, ‘‘The

repeal of laws is as much a legislative function as their

enactment.’’ And if Congress did not repeal the pre-

1958 statutes until 1963, it would seem improper for the

judiciary to consider those statutes repealed in 1958

by virtue of ambiguous legislative language.

The general rule here at stake is that expressed in

- United States v. Borden Co., 308 U.S. 188, 198: “It is _

a cardinal principle of construction that repeals by

21

implication are not favored. When there are two acts

upon the same subject, the rule is to give effect to both

if possible.”’ In this case it would appear quite possi-

ble; if not mandatory, to give effect both to the pre-

. 1958 statutes and to the Act of May 20, 1958, without

doing violence to any of those enactments. Indeed, to

read the pre-1958 retired pay formula_as an integral:

part of the alternative permitted in Section 4(b) of the

1958 Act is to remove at once much of the problem

that plagued the Court of Claims, making clear and

consistent: what to that court seemed confused and in-

consistent.

The failure of the Court of Claims to give effect to

the pre-1958 statutes and to incorporate them as an -

integral part of the 1958 law, particularly Section

4(b) thereof, raises serious questions as to the tech-

niques of properly construing a series of legislative

enactments. Those questions deserve consideration by

this Court. _

. C. The Congressional Intent

Concededly, the legislative history of a ‘statute be- -

‘ comes of importance where its language is not free

of ambiguity: Steiner v. Mitchell, 350 US. 2479264.

But ‘‘there is no need to refer to the legislative history

where the statutory language is clear.”? Ez parte

Collett, 337 U.S. 55, 61. And thus, if petitioners’ ‘Ae

analysis of the 1958 statute be accepted as correct, the

logic of the language and of the statutory ‘pattern

makes unnecessary resort fo legislative reports and

‘debates. To that extent, an important question is

raised by the decision below as to the propriety of

referring to legislative history jn the context of the

statute in issue. .

22

In any event, however, a serious problem is raised

by the handling of the legislative history by the Court

of Claims. A fair reading of that history, petitioners -

suggest, completely confirms their analysis of the -

statute and their contention that the pre-1958 statutes

were not only incorporated in but reaffirmed by the .

..... 1958 statute. -If petitioners be right, the Court of

“Claims has most grievously erred not only as to a mat-

ter of statutory construction but as to a matter of |

implementation of a legislative policy directly con-

_ cerned with the national defense.

As to the critical question whether Congress intended

to continue or repeal the pre-1958 statutes when it

adopted the Act of May 20, 1958, the legislative history

‘conclusively shows’ that Congress was. both aware of

those prior statutes and affirmatively desired to keep ©

them in effect. In House Report No. 1538, pp. 71-75,

85th Cong., 2d Sess., accompanying H.R. 11470 (Which

- evolved into the 1958 statute in question),’ the House

Committee on Armed Services _ Specifically set out in

parallel columns “‘thé provisions of existing laws

which would be amended by the various provisions of

the bill.” And included among the “existing laws”’

so amended were 10 U.S.C. (1958 ed.) §3991 and —

§ 8991—pre-existing statutes which set. forth ‘the re-

. tired pay formula here in issue. Very minor amend-

ments were made to those provisions, indicating that, —

as the Court of Claims was forced to concede-(p. 11a,

™The identical recognition of the continuing existence of the

Title 10 provisions, with the amendments thereto noted in parallel

columns, appears in S. Rep. No. 1472, pp. 64-65, 72-73, 85th Cong.,

2d Sess., submitted by the Senate Committee on Armed Services.

38

anfra), ‘‘Congress was aware of ‘ie eiersxeaal continu-

ance of the prior scheme.’’ ®

Thus there is most convincing evidence that Cun

gress intended to maintain the retired pay formula

_ established prior to 1958 and to incorporate it where

appropriate in the 1958 legislation. That incorpora-

tion, of course, is to be seen in the provision of Sec-

tion 4(b) permitting retired officers to compute retired

pay ‘fon the basis of the rates of basic pay set forth

in the Career Gompensation Act of 1949, as amended...

by this Act’’—the very formula established by the

pre-1958 statutes.

With reference to the Specific: provisions of the 1958,

_ Act here involved, the Senate Armed Services Com-

mittee Report (S. Rep. No. 1472, 85th Cong., 2d Sess.)

made a summary analysis of Sections 3(a), 4(a) and:

4(b)—quoted by the Court of Claims in its opinion,

pp. 7a-8a, infra. That analysis plainly shows:

(1) The purpose of. Section 3(a) was to continue

. the retired pay rates in effect prior to June 1, 1958,

with certain exceptions ‘‘which increase or otherwise

affect the rates of those currently retired.’’ Thus there ©

‘was explicit recognition that retired officers within the

‘scope of Section 4(b) would receive increased retired

pay, with no intimation that any prior laws were be- .

ing, repealed or suspended. Such a statement hardly

® The Court of Claims also noted (p. lla, infra) that ‘references

to the new 1958 statute appeared in the notes following 37 U.S.C.

§ 232 (1958 ed.) and 10 U.S.C. § 1401 (1958 ed.), ‘‘but nowhere

was there an express repeal of the Title 10 -provisions.’’.

The Court of Claims, however, admitted it did not know why .

Congress waited until 1963 to repeal the Title 10 provisions. The

answer would seem to be that Congress did not: intend to —

-them prior to 1963.

24

»

supports. a conclusion that Congress intended by Sec-

‘tion 3(a) to wipe out century-old statutes.

(2) Section 4(a), consistent with petitioners’ anal-

ysis, was said to provide ‘‘a 6 percent increase in

retired pay to persons retired before the effective date

of this act.’’ This accords with the common under-

standing that this subsection grants in general terms

the right to the general 6% cost-of-living increase.

(3) Section 4(b) yas said: to ‘‘affect only members

who become entitled to retired: pay under any provi-

sion of law. .. on the effective date of this act by pro-

- viding that tfeir retired-pay or retainer pay be com-

puted under the new rates of the bill or the old rates

plus 6 percent, whichever is greater. ”? This statement

is fully consistent with the petitioners’ analysis of the

_ _ seétion. A member ‘“‘entitled”’ to retired pay on June

1, 1958, plainly could have retired in fact prior to that

date; and Congress was here indicating its. desire to

_ permit him to use the pre-1958 formula based upon

the new active duty pay scale. The Committee’s state-

ment as to the need for Section 4(b) only confirms the .

continuing vitality of the pre-1958 retired pay formula,

a statement which said that Section 4(b) was — |

mae ee necessary because the existing language of.

: several of the retirement statutes [ie., the pre-

1958 statutes in question] would otherwise require

persons retired on the effective date of the act

ie., on June 1, 1958] to have their rates computed

under the old rates without the benefit of the 6

percent increase provider by subsection (a).

In other words, the continued vitality of the pre-1958

statutes was such that an express exception. thereto

was neeessary in order to permit retirees to choose me

t

‘

7

7

Cs

25

alternative computation based on the old rates plus. ;

the 6% increase. eater ree.

Petitioners suggest that there is thus nothing in the

legislative. history inconsistent with the ifiterpretation

that they believe is mandated by the statutory lan-

guage. On the contrary, every indicia of Congressional

intent seems to confirm that: interpretation. As was.

explained during the course of the hearings before the

House Committee on Armed Services,* the silence in .

the 1958 Act respecting express repeal of the pre-1958

statutes meant that ‘‘the new rates will apply”’’ in.

computing retired pay for retired officers. and that

‘‘retired people then... get increased retirement based ~

on the new pay scales.’’ Chairman Rivers of that Com-

mittee later told the House (104 Cong. Ree. 4711, March

25, 1958) that such ‘‘increased- retirement benefits |

which are inherent. in any pay increase”’ would help

to create powerful career incentives and ‘‘will go a

long way in helping to create the necessary body of

eareer personnel our armed forces and our country so

badly needs.”’ *

_ The failure of es Court of Claims to respect this: “

legislative intent most certainly ealls: for the exercise’

of ee oe |

°

® Hearings before Subcommittee No.2 of the House Committee .-

on Armed Services on H.R. 9979, Method of Computing Basic Pay

(March 7, 1958), p. 5591. The quoted remarks arose from a .

colloquy with Department of Defense. experts in explanation to

the Subcommittee of the provisions of the bill oat later became the

. Act of May 20, 1958. ;

a>*s

oh

5 a

CONCLUSION

For nearly one hundred years and during the time i

that these petitioners rendered active duty service the,

right to receive retired pay computed on the basis of

the current: active duty pay was provided by clear

Congressional mandate. As was said many. years ago

by Mr. Justice Johnson in United States v, H eth, 3

Cranch, 399, 408 :

. where an individual hes performed certain

services, under the influence of a prospect of a .

certain emolument, that confidence which it is the

interest of every government to cherish in the

minds of her citizens; a confidence which experi-

_ ence leaves ho room to distrust in our own; would

‘‘Jead to a conclusion that it could not have been the

' intention of the legislature to defeat a reasonable

expectation of. her officer, suggested by her own

laws.. - Unless; therefore, the words are too im-

perious to admit of a different construction, it will

be gratifying to the court to be able to vindicate |

‘the justice of the government, by restricting the

* words of the law to a future operation.’ ie

: Those sentiments, ‘ieninetl by the petitioners, appro- _

priately underlie the reasons expressed hereiri as to

why certiorari should be granted to review the judg-

ment below.

Respectfully submitted, ”

EUGENE GRESSMAN

1730 K Street, N. W.

Washington, D. C. 20006

_ Damon M. Gunn

- 1815 H Street oa. W.

- Washington, D. C. 20006

are a ' Counsel for Petitioners

September 9, 1966 ;

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. la

IN THE UNITED STATES COURT OF CLAIMS

(Decided May 13, 1966)

No, 155-64

Martin AKERSON, ET AL.

THE Usnins STaTes

No. 156-64

Wri W. Acnrew, JR, ETAL *

v.

THe Unirep States

“No. 157-64

Warne H. uae ET AL.

THE ‘Uno SraTes

No. 158~64

Rosert.L. Apoy, B\aL,

v.

Tue Unirep Srates

No, 159-64

Gospow A. A. Apporr, eT AL, |

Vv.

Tue Unirep STatTes

No. 160-64

Onvi, A’ ANDERSON, eT AL.

.s v.

Tue Unirep Srates

No. 161-64

Lege Oris CoLBert, eT AL.

ee

i, Tue Unrrep Srates

a" +

2a

Lawrence C. Moore, attorney of record, for plaintiffs.

Laurence H. Axman and Damon M. Gunn, of counsel..

Arthur E. Fay, with whom was Assistant Attorney Gen-

eral John W. eindiits for ‘defendant. Edgar H. Twine,

of counsel. ©

Before Cowen, Chief Judge, Lananwone, Durfez, Davis

and Couiins, Judges. °

ON DEFENDANT’S MOTION TO DISMISS PETITIONS AND PLAINTIFFS’

MOTION FOR SUMMARY aetna nani

' LaraMore, Judge, delivered the opinion of the court:

‘These consolidated actions are brought by some 1, 800

plaintiffs to recover additional retired ‘pay for the period —

June 1, 1958 to October 1, 1963. Each plaintiff is a retired

officer, or legal representative of a deceased officer, of one

of the Armed Forces, the Public Health Service or the

- Coast and Geodetic Survey. Prior to June 1, 1958, each -

officer represented here was receiving retired pay com-

puted as a percentage of the ‘‘monthly basic pay’’ of his

‘retired grade. See, e.g., 10 U.S.C. §3991 (Army), § 6325

(Navy), § 8991 (Air Force) (1958 Ed.). As a general rule,

the retired grade was equivalent to the active duty grade

held on the date of retirement, so each officer benefited .,

from any pay incrase given to an officer of like rank serv-

ing on active duty. See 10.U.S.C. § 3961 (1958. Ed.)

(Army); Career Compensation Act of 1949, § 201, ch. 681,

63 Stat. 802, 805-807, as amended, 37 U.S.C. § 232(a) (Supp.

IV, 1952 Ed.) (all services). In 1958, legislation was

enacted which amended the Career Compensation Act of

- 1949. Act of May 20, 1958, 72 Stat. 122. Included in the

_ new legislation were certain provisions relating to retire-

ment pay which defendant interpreted as meaning that

officers ‘retired before the effective date of the Act were

entitled only to their pre-effective date retirement pay plus

3a

six percent. Sections 3-4, 6-7. Plaintiffs received d retire-

ment pay computed in thismanner until October1 1, 1963,

when they became entitled to'retirement pay based on the

active duty pay rates that became effective on June 1, 1958.

Uniformed Services Pay Act of 1963, § 5, 77 Stat. 210, 212- .

215. Plaintiffs concede that the 1963 legislation -was pros-

pective only; they base their claims on tlie 1958 legislation,

_ alleging that it preserved the retirement-pay-based- on-

active-duty-pay statute.

In support of its motion to dismiss, defendant argues.

'. that section 3(a) of the 1958 Act expressly prohibits the

increased retired pay claimed by plaintiffs. Part of this

argument is that section 4(b) does not except plaintiffs

from 3(a)’s broad scope. Plaintiffs, of course, argue the

contrary and have filed with their-motion for summary

judgment a long and confusing brief setting forth their

answer to defendant’s argument and making other argu-

ments as well. We view the dispute over sections 3(a) and.

' 4(b) as the primary issue. »

The disputed sub-sections provide as follows:

Sec. 3. (a), Notwithstanding any other provision of |

law, except sections 4 and 7 of this Act and subsection

(b) of this section, the changes in rates of basic pay:

thade by this Act do not i increase the amount of retired

pay, retirement pay, retainer pay, or equivalent pay to

which any person is entitled on the day before the effec-

tive.date of this Act. .

6 Sec. 4. (b) Notwithstanding any other provisionvof

: law, a.member of a uniformed service retired under

any provision of law, or transferred to the Fleet Re-

serve or Fleet Marine Corps Reserve, on the effective -

_ date of this Act shall have his retired pay or retainer

‘ pay computed on the basis of the rates of basic pay

set forth in the Career Compensation Act of 1949, as

amended by this Act, or on the rates of basic pay set -

4a

forth in the Career Compensation Act of 1949 on the.

day before the effective date of this Act, plus 6 per

centum of that pay, whichever is greater. —

Defendant’s argument is quite simply that unless plain-

tiffs are excepted by section 4(b), their retirement pay must

continue to: be based on the ‘‘basic pay’’ ratés in effect

&*before the effective date of this Act.’?* -And the argu-

ment goes that section 4(b) cannot apply because plaintiffs

were not ‘‘retired under any provision of law, or trans-

ferred to the Fleet Reserve or Fleet Marine Corps Reserve,

on the effective date of this Act * * *.’’ Plaintiffs argue

that they were ‘‘retired * * * on the effective date of this

Act.’ They point out that defendant’s construction would

- limit section 4(b) to persons who actually retire on or

become retired on the effective date of the Act which-they

say would be an absurd result. Either interpretation is

possible; neither is completely satisfying. Thus, if de-

fendant is correct, section 4(b) applies only to those per-

sons who retire on June 1,.1958. If this is the legislative -

intent, we would prefer to have a provision unencumbered

by ambiguity. If plaintiffs are correct, we would seem to

be reading part of section 4(a) out of the statute. See

footnote 1, supra. Only the legislative history can help

_ us to carry out the purpose of the disputed provisions, and

in this case the legislative history is very helpful indeed:

In recommending to the Senate that the 1958.military pay

act be passed, the Committee on Armed Services reported

1There is no question that the exception contained in section

4(a) applies to plaintiffs if section 4(b) does not. Section 4(a)

entitles all meinbers*of the uniformed services who were receiving

retired pay ‘on the day before the effective date of this Act

* * * to an increase of 6 per centum of that pay to which they were

entitled on that date.’’ Plaintiffs received a six percent increase

in retired. pay under this:section from June 1, 1958 to October 1,

1963, and claim the difference between this and, what they would

have received under section 4(b).

Sa 8

-

that legislation was needed ‘‘to establish a career force for

the military services.’? The Committee prefaced the report

with the following quote from the Joint Chiefs of* Staff:

The Joint Chiefs of Staff believe there is a vital need

to increase the overall attractiveness of the profes-

sional military career in relation to its civilian counter-

parts in private industry. It is believed that a pro-

gram of long-range incentives designed to this end is

a matter of the highest priority in order to obtain the

requisite high professional level in our military force.

[S. Rep. No. 1472, 85th Cong., 2d Se&s. (1958) ; 2 U.S.

Code Cong. & Ad. News 2465 (1958).]

The report continued with a statistical survey which

_ showed the low incidence of re-enlistment and the negative

effect on military operations of the resulting shortage of

experienced personnel. Under a heading entitled ——

tive of the Bill’*was the following statement:

The basic objective of this legislation is to provide a

military pay system designed to attract and retain

qualified personnel for active career service. [2 U.S.

Code Cong. & Ad. News 2467 (1958).]

In short, the Committee envisaged this as a bill to encour-

age able officers and enlisted men to stay in the uniformed

services and to attract young men to become career officers

cand enlisted men. ,

. Consistent with this purpose, the bill increased the basic

pay which had previously been set by the Career Compen-

sation Act of 1949, as amended, supra. The minimum in-

_ erease was six percent. This reflected the ‘‘cost-of-living ©

increase since the enactment of the previous military pay

legislation in 1955.’ 2 U.S. Code Cong. & Ad. News 2473

(1958). The maximum increases were given to the higher

ranking officers and enlisted men, ‘‘the aim * * * [being]

to provide an incentive for young officers and enlisted men

-

-

—

6a

to aspire to higher grades.’’ 2 U.S. Code Cong. & Ad. News|

2474 (1958). Immediately succeeding the discussion of the

basic pay increases came the following explanation of

the bill’ s effect on persons already retired : :

‘The bill’ as passed by the House provided ‘i in effect

that members fetired before the effective date of the

act would receive a flat 6-percent increase except for

those on the retired list in the grade of lieutenant gen-

eral, or equivalent, or general, and equivalent.

. The Senate committee amended the House provision

by deleting the language permitting those on the re- —

tired list in 3- and 4star rank to, recomputé their.

retired pay under the new rates of the bill. If recom-

putation. were permitted for these 2 ranks, it would

result in an increase of 54 percent for those in the rank

* of general, or equivalent, and 39 percent for those: in

the rank of lieutenant: general, or equivalent, as com-

pared to a flat’ 6 percent for all others retired. The

committee was of the opinion that it would not be.

equitablé to permit two ‘pay grades to recompute, with

the resulting increases, as contrasted to the other ranks

who are extended only a flat 6-percent i increase.

The Senate coramittes also added language which

would (1) require at least 1 year of continuous active

duty after recall from a retired -status in order to

recompute under the new rates of the bill; (2) require

2 years of continuous active duty in order to recompute

under. the rates of the bill for those who. were recalled

from @ rétired status in a higher.rank received as a

result of honorary promotions in the Navy and Marine

Corps;-and (3) clarified the bill so as ta make certain

that those persons retiring on the effective date of the

bill would retire under the new rates. ‘[Emphasis

added:] [2 U.S. Code Cong. & Ad. News 2474-2475

(1958).] : |

3

7a

2”

This nenered statement was particularized in the sectional

analysis of the bill. Following is the Committee’s discus-

sion of the provisions in dispute:

Section 3.—Provisions RELATING To THOSE —_—

Berore Errective DATE OF THE Act

Subsection ( a)—Continuation of present rates of

‘retired pay for those currently retired

_ The purpose of subsection 3(a) is to continue the ©

rates of retired pay in effect before the effective date

of the act for persons retired or granted retired pay .

before that date. This subsection contains exceptions

to other parts of the bill which increase or otherwise

affect the rates of those currently retired.

* * . hed i *

_ SEcTIoN 4

Subscities ( 3} Ske percent for those sireutly retired .

- Section 4 provides a 6 percent increase in retired

pay to persons retired before the effective date of this

act. . Certain exceptions are made in the case of per-

sons covered by section 7. of this act’ and persons with

2 or less years of service for basic pay purposes who

‘are retired before the enactment of this act for physi-

cal disability. This bill does not provide any increase

for any persons with less. than 2 years of cumulative

service. Persons retired before the effective date of

this act with that amount of service have been given a

6 percent increase under section 5 of the Career Incen-

» tive Act of 1955.

Subsection (b)—Persons retired on effective date of bill

This, subsection would affect only members who be-

come entitled to retired pay under any provision. of

law, or to rétainer pay, on the effective date of this act

by providing that their retired or retainer pay: would

be computed under the new rates of the bill or the old

8a

. ratés plus 6 percent, whichever is greater. This provi-

sion is necessary because the existing language of sev-

eral of the retirement statutes would otherwise require

persons retired on the effective date of the act to have

their rates computed under the old rates without the

’ benefit of the 6 percent increase provided by subsection

. (a). [2 U.S. Code Cong. & Ad. News 2485-2486

(1958).]

Finally, in the Conference Report, the conferees discussed

the Senate amendments to the House passed bill and noted

that ‘‘[bJoth the Mouse bill and. the Senate amendment

provided a 6-percent increase in retired pay for all individ-

uals now on the retired list.’’ Conf. Rep. No. 1701, 85th

Cong., 2d Sess., p. 14 (1958); 2 U.S. Code Cong. & Ad.

News 2493 (1958). Viewed in toto, the legislative history

makes inescapable the conclusion that Congress -intended

to give officers retired before the effective date the six

percent cost-of-living increase, and no more. See Fagan

v. Unitd States, 149 Ct. Cl. 716, 732, 277 F'. 2d 469, 478-479

(1960). And this is completely consistent with the an-

nounced purpose of the legislation. Congress wanted to

upgrade the quality of career cadres. This purpose would

not have been served by allowing persons already retired

to benefit from the basic pay increase. Congress also

wanted everyone to get a cost-of-living increase. This pur- —.

pose was served by section 4(a) as to persons already re-

tired. It is true, of course, that retirement is an important

part of the overall incentive package for officers of the uni-

formed services, and that the 1958 bill would not provide

as great an incentive without an increase in retirement pay

commensurate with the’ basic pay increase. Congress evi-

dently perceived this, because in subséttions (b) and (c)

of section 4 it extended to persons retiring on or after the

effective date the benefits of the 1958 basic pay rates. .

The post-enactment history rounds out the picture. In

1963, the Uniformed Services Pay Act was enacted to pro-

3

~ 9a.

vide additional incentives to career servicemen. 77 Stat.

210. Another purpose was ‘‘to establish a more equitable |

basis for the adjustment of retired pay for service members -

after retirement.’’ S. Rep. No. 387, 88th Cong., Ist Sess.

(1963); U.S. Code Cong. & Ad: News 912 ( 1963). The

House bill provided that persons who had retired prior to .

June 1, 1958 should be able to prospectively recompute .

retired pay under the 1958 pay scales arid added to that a

five percent cost-of-living increase. The Senate Committee -

on Armed Services recommended an amendment that

limited the retired pay increase to the higher of the recom-

puted figure or the five percent. U.S. Code Cong. & Ad.

News 914 (1963). The House receded, so the-Senate amend-*

ment became the law. Section 5, 77 Stat. 210, 212-215. In

- proposing the amendment, the Committee reviewed the |

philosophy of using cost-of-living i increases as the standard

for retired pay increases, and noted that henceforth—after

giving persons such as: plaintiffs the ‘‘one-shot’’ oppor-

tunity to recompute on the 1958 active duty basic pay scales

—retired pay increases would be geared solely to cost-of-

living increases. Following is the Committee’s commentary

on the amendment:

The 1958 Pay Act sdoptea the cost-of-living philos-

ophy for retired pay increases in order to avoid extreme

increases for Some retired persons and little or no in-

creases for others retired: It was the intent of this act

that the element of cost of living should be the domin-

ant consideration in authorizing retired pay increases.

In order to reflect.the increases in ‘the cost of living

which ave applicable to all persons on the retired list,

the percentage increase should be the same. The 1958

act granted a flat 6-percent increase to all retired

persons except a 16- and 26-percent increase for those

in three- and four-star rank, respectively. The higher

percentage for these two grades was to permit the

active duty supplement to be used for retired pay

purposes.

- 10a

Prior to 1958 the various pay acts permitted re-

computation for those on the retired list in accordance

with the newly enacted pay scales. Had this custom’

been continued in 1958, the higher ranking officers in

the grades of lieutenant colonel and up would have

received substantially larger increases than the 6-per-

cent cost of living authorized. In ‘order to provide a

transition for those retired in the higher grades from

the recomputation to the cost-of-living system, the com-

mittee does authorize recomputation under the 1958

scales. At the same time, these increases, ranging up

to 45 percerit over present retired pay and 74 percent |

over pre-1958 retired pay, appear ample as a transition

provision. sels: | .

e .

There is the argument that recomputation plus 5 per-

cent for this group would permit all persons (except’

those receiving pay under the old laws) to receive the

same retired pay prior to the 1963 rates. :

ee should be observed, however, that there will be dif-

ferent rates of retired pay for persons of the same

rank and service as a result of each new pay act.

Implicit in the cost of.living philosophy is the premise

that a person’s retired pay will be based on the active

duty rate whenever he retired, to be increased there-

after in accordance with increases in the cost of living.

In thesfuture since persons will be retiring under dif-

ferent pay scales they will not receive initial retired .

pay of equal amounts. The action of the committee,

therefore, is consistent with the cost-of-living philos-

ophy in authorizing the minimum cost-of-living in-

crease. In addition, it permits amounts above the

cost-of-living incréaseas transition rates for the higher

_ranking officers who would have benefited more under

recomputatien in 1958. This provision also recognizes . -

- that, as in other retired systems, there will be a dif-

ference in retired pay rates with each pay act. [US.

Code Cong. & Ad. News 932-933 (1963).]

ae

Plaintiffs would have us disregard the legislative history —

or look to other history which includes statements in Con-

gress. We do not agree that the words of the 1958 statute

are so clear as to warrant disregarding the history. _ Fur-

_ thermore, we think that the 1958 committee reports are the

most reliable guide to Congressional intent in-this case? __

They are quite complete and make clear, at least to us, what

‘Congress was trying to accomplish. :

_ Plaintiffs’ best argument is that until the caactiiaas of,

the 1963 legislation the scheme under which they received

retired-pay-based-on-active-duty-pay before June 1, 1958

remained in Title 10 of the United States Code. The 1958

‘legisldtion made certain amendments to these sections in

~ Title 10, indicating that Congress was aware of the appar-

ent continuance of. the prior scheme. See, e.g., Act of May

~ 20, 1958, §§ 6, 11, 72 Stat. 122, 129-132 (1958). Reference

‘to the new legislation was made 3 in notes following 37 U.S.C.

§ 232 (1958 Ed.) and 10 U.S.C. § 1401 (1958 Ed.), but no-

- where was there an express repeal of the Title 10. provi-

sions. We do not know why Congress waited until 1963 to

remove from the Code these Title 10 provisions. We thi

however, that the 1958 legislation leaves no doubt that

sections 3 and 4 governed plaintiffs’ retirement pay. Both

sections 3(a) and 4(b) start with the clause: ‘‘Notwith-

standing any other provision of law * * *,’’ and that means,

notwithstanding the provisions in, Title 10.

Plaintiffs have also argued that their csnkeaiit rights tin

have been breached. % In the related case of Andrews, et a.

2 We have aad the 1963 Committee. Report only to show has

_ Congress in 1963 thought.was the intent of Congress i in 1958.

3 Plaintiffs. do not expressly argue, as do. the plaintiffs in

Andrews, that this alleged ‘‘denial of earned rights’’ contravenes — “

, their Fifth Amendment rights. Their argument seems to be that

where there is ambiguity, a statute should not be read in a manner

that ‘‘confiscates — rights. ‘a . 2°

= : 12a

v. United States, Ct. Cl. No. 163-64, a also eines today,

-we hold that similarly situated plaintiffs have no vested or

contractual right which entitles them to recovery.

Plaintiffs received a-six percent increa8e in 1958, and a

.. * + substantial increase in 1963. The statute gives them no

. more. Plaintiffs’ motion for summary judgment is denied. °

‘Defendant’s motion to dismiss i is granted, and plaintiffs’

- petitions are dismissed. )

LIN THE UNITED stATES COURT OF CLAIMS

_ - No. 163-64

(Decided May 13, 1966) -

Bp . _Cuantes L. ANpREws, JR., ET AL.

a . @ 3 Vv.

» ‘Tur Usrrep ‘Srates

o* . *

- Robert F. Klepinger, attorney of record, for plaintiff.

ri Arthir E\ Fay; with whom was Assistant Attorney Gen-

| “eral John W. Douglas, for defendant. Edgar H. Twine,

of ‘counsel. oN mers

Before RAR Chief Judge, ae Dunreeg, Davis

ang NEN Judges.

OS DEFENDANT ’s MOTION TO DISMISS PETITION AND PLAINTIFFS’

MOTION SUMMARY JUDGMENT:

Lansions;"Judges, delivered ‘the iad of the court:

_* The facts in this case are identical to those presented in

Akerson, et al. v. United States, Nos. 155-64 to 161-64, this _

day. decided. ' Plaintiffs are officers of the uniformed serv-

Ba |

ices who retired prior to June 1, 1958. For the period from

June 1, 1958 to October 1, 1963, they received retired pay

based on the active duty pay scales in effect on May 31, ‘

1958, plus a six percent cost-of-living increase. They claim

for this period additional retired ‘pay to be based on the

.. active duty™‘‘basic pay’’ provided in the’ Act of May 20;

1958, 72 Stat. 122. Plaintiff’s claim is not predicated on

statutory interpretation as is the Akerson petition. Plain-

tiffs appear to concede that they received all to whieh they _.

were entitled under the A¢t. They base their claim or a

challenge to the constitutionality of those provisions of the .

1958 Act and the Uniformed Services Pay Act of 1963,.77

Stat. 210, which prevent them from computing their retire=,

‘ ment pay-on the bagis of the 1958 Act’s basic pay scales.

Defendant has ‘filed a motion to dismiss the petition and

plaintiffs have filed a cross-motion for summary judgment,

_ The essence of plaintiffs’ argument is.that the United

States offered to each officer who performed satisfactory

.and honorable service for the required number.of years

‘‘retired pay at the rate of 75% of active duty pay of his

‘rank thereafter provided by Congress.’’ Since each plain-

tiff accepted that ‘‘offer’’ and gave the United States the

‘bargained-for performance, each plaintiff is entitled to the

promised consideration. Under the plaintiffs’ theory, both

the 1958-and the 1963 Acts breach the contract and, there-

fore, are unconstitutional under the Fifth Amendment.

The difficulty with this position, as defendant points out,

is that there is strong authority for the counter-proposition

that officers have no vested or conttactual right to any par-

_ ticular amount of retired pay. The general rule has long

been that ‘‘[a] soldier’s entitlement to pay is dependent

upon statutory right * * * [and not upon] common-law

rules governing private contracts * * *.’’° Bell v. United

States,-366 U.S. 393, 401 (1961). Cf., Leonard v. United

States, 279 U.S. 40 (1929) ; United States v. McDonald, 128

’ U.S. 471. (1888); Byrd v. United States, 108 Ct. Cl. 285

14a

(1945) ; Amchanitzky v. United States, 81 Ct. Cl. 409, cert.

denied, 296 U.S. 598 (1935); Fulmer v. United States, 32

Ct. Cl. 112 (1897); Magaw v. United States, 16 Ct. Cl. 3

(1880); Lowry v. McCarl, 79 F. 2d 144 (D.C. Cir. 1935) ;

Heidt v. United States, 56 F. 2d 559 (5th Cir. 1932). And

since the pay of officers in the uniformed services is within

the exclusive control of Congress, it was free to limit the

benefits of the 1958 active duty\pay increase to members

on the active duty list.

This is not a harsh result. Plaintiffs do not claim that

they were singled out for special unfavorable treatment.

They admit that they received a substantial pay increase of

six pereent. In the conclusion to-their brief, they concede

that “‘Congtess. acted entirely within its constitutional

power’’ in passing the ‘1963 legislation which ended ‘‘[t]he

century. old tradition concept of retirement pay,’’ but they

~ argue that the new system is constitutional only as it affects

newly commissigned officers who are now on notice. -We

fail to see how plaintiffs were hurt by either the 1958 or

' the 1963 legislation. They would have to concede that they

- would have no claim whatsoever under any of their theories

had Congress not raised the active duty basic pay in 1958.

So they have had to hitch their wagon to the star of those

on active duty. No doubt retirees from.all industries and

professions wish they could benefit from the high pay

_seales of the recent boom years, but it is difficult to see how

there could be any ‘‘right’’ absent an express contract.

Congress evidently felt that-it had to raise the basic pay t?

attract and retain competent officers and enlisted men.

Of course, the reasons for raising retired pay were dif-

ferent, and it seems¢that the cost- of-living i increase was a

perfectly fair solution.

In summary, the petition fails to state a claim upon

which relief can be granted. Defendant’s motion to dis-

miss is granted. Plaintiffs’ motion for summary judgment °

is denied. The petition is dismissed.