Petition for a Writ of Certiorari — Cass v. United States

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The Decision of the Court of Appeals for the Ninth

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Appenprx A:

Opinion of the United States District Court for the

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Appenpix B:

Opinion of the United States Court of Appeals for

the Ninth Circuit—Cass v. United States ...... 4a

Appenpix C:

Opinion of the United States Court of Claims—

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Appenprx D:

Pending Federal Court Cases Involving Entitle-

ment to Readjustment Pay Under 10 U.S.C. § 687

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ii Index Continued

AUTHORITIES CITED

CaSEs : Page

American Auto. Ass’n v. United States, 367 U.S. 687

ORS MCLANE LRG Re RR Os

Schmid v. United States, 436 F.2d 987 (Ct.Cl1.), cert.

sonted, 604 UB. GGL CIBTA) «. ckc cvs tee ess 4, 5, 6, 7

United States v. Consol. Edison Co., 366 U.S. 380 (1961) 6

United States v. Zacks, 375 U.S. 59 ae 6

Waterman S.S. Corp. v. United States, 381 U.S. 252

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IN THE

Supreme Court of the United States

OctToBER TERM, 1973

Donatp C. Cass, Petitioner

v.

UntTep States oF AMERICA, Respondent

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Petitioner, Donald C. Cass, prays that a writ of cer-

tiorari issue to review the opinion and judgment of

the United States Court of Appeals for the Ninth

Circuit entered on August 1, 1973, which reversed a

judgment of the United States District Court of the

District of Montana. The District Court held that

the petitioner was eligible for readjustment pay under

10 USC § 687(a).

2

OPINIONS BELOW

The opinion of the United States District Court for

the District of Montana dated June 20, 1972 has been

published at 344 F.Supp. 550, and is printed herein as

Appendix A. The opinion of the Court of Appeals for |

the Ninth Circuit dated August 1, 1973 has not yet been

published and is printed herein as Appendix B.

JURISDICTION

The judgment of the Court of Appeals for the Ninth

Cireuit was entered on August 1, 1973. The jurisdic-

tion of this Court is invoked under 28 U.S.C. § 1254(1).

QUESTION PRESENTED

Is an individual involuntarily released from active

duty with the Armed Forces entitled to readjustment

pay in accordance with 10 USC §687(a) where such

individual has served more than four years and six

months, but less than five years, of continuous active

duty ?

STATUTORY PROVISION INVOLVED

10 U.S.C. § 687 (a) provides in pertinent part:

‘*Non-Regulars: readjustment payment upon ‘in-

voluntary release from active duty

(a) Except for members covered by subsection

(b), a member of a reserve component or a member

of the Army or the Air Force without component

who is released from active duty involuntarily, or

because he was not accepted for an additional tour

of active duty for which he volunteered after he

had completed a tour of active duty, and who has

completed, immediately before his release, at least

five years of continuous active duty, is entitled to a

readjustment payment computed by multiplying

his years of active service (other than in time of

war or of national emergency declared by Con-

3

gress after June 28, 1962), but not more than

eighteen, by two months’ basic pay of the grade

in which he is serving at the time of his release.

* * * For the purposes of this subsection—

(1) a period of active duty is continuous if it

is not interrupted by a break in service of

more than 30 days;

(2) a part of a year that is six months or

more is counted as a whole year, and a part of

a year that is less than six months is disre-

garded; and

(3) a period for which the member concerned

has received readjustment pay under another

provision of law may not be included.”’

STATEMENT OF FACTS

As a member of the United States Army Reserve,

the petitioner served a tour of active duty with the

United States Army from July 16, 1966 to April 26,

1971 at which time the petitioner was honorably and

involuntarily released from active duty, having com-

pleted four (4) years, nine (9) months and thirteen

(13) days of continuous active duty. At the time of

his involuntary release from active duty petitioner had

attained the rank of Captain and was ston a base

pay of $1,063.80 per month.

On April 20, 1971, petitioner requested as the

Department of the Amny a lump-sum readjustment

payment in the sum of $10,638.00 which was the amount

of readjustment payment due calculated in accordance

with the provisions of 10 U.S.C. § 687 (a) under the

assumption that petitioner was eligible for a readjust-

ment payment. Petitioner’s request was denied.

Petitioner brought suit against the ‘United Statés

in the United States District Court for the District of

4

Montana and for jurisdictional purposes waived all

readjustment pay due in excess of $10,000. The parties

stipulated to the above recited facts and agreed. that

on the basis of these facts the District Court should

determine whether petitioner was entitled to the read-

justment payment prayed for in accordance with 10

U.S.C. § 687(a).

The District Court relied upon the decision of

the Court of Claims in Schmid v. United States, 436

F.2d 987 (Ct.Cl.), (1971), cert. denied, 404 U.S. 951,

in concluding that the rounding provision, 10 U.S.C.

§ 687(a)(2), applies to both eligibility for and the

computation of a readjustment payment. The District

Court therefore entered judgment for petitioner in the

sum of $10,000. The Schmid decision is printed herein

as Appendix C.

The Government appealed the District Court’s deci-

sion to the Court of Appeals for the Ninth Circuit.

The Court of Appeals reversed, rejecting the interpre-

tation of 10 U.S.C. § 687(a) (2) rendered by the Court

of Claims in Schmid and relied upon by the District

Court. The Court of Appeals concluded that the

rounding provision of 10 U.S.C. § 687(a) applies only

to the determination of the amount of readjustment

payment, and not to the eligibility requirement for

readjustment pay.

REASONS FOR GRANTING THE WRIT

The Decision of the Court of Appeals for the Ninth Circuit

Directly Conflicts with a Recent Decision of the Court of

Claims

The aecision of the Court of Appeals for the Ninth

Circuit is in direct conflict with the case of Schmid

v. United States, 436 F.2d 987 (Ct.Cl.), cert. de-

ao

5

nied, 404 U.S. 951 (1971). The Court of Claims held in

Schmid that 10 U.S.C. § 687(a) requires only four

years and six months of continuous active duty in

order for an individual involuntarily released from

active duty to be eligible for a readjustment payment.

The Court of Claims concluded:

We find that the section is clear and unambiguous

on its face and is susceptible, on its face, of only

one interpretation. The relevant part of the last

sentence of section 687(a) provides that ‘‘For the

purposes of this subsection * * * (2) a part of a

year that is six months or more is counted as a

whole year, and a part of a year that is less than

six months is disregarded * * *. Congress imposed,

no express or implied limitation on the applica-

bility of this rounding provision. The clear indi-

cation is that, in determining eligibility for read-

justment pay and in computing the amount thereof,

a period of 6 months or more is counted as a whole

year. 436 F.2d at 989.

Additionally, after a review of the legislative history

of § 687(a), as urged by the Government, the Court of

Claims nevertheless concluded that the intent of Con-

gress was in accord with the plain meaning of 10 U.S.C.

§ 687(a).

In reversing the decision of the District Court for

the District of Montana, the Court of Appeals for

the Ninth Cireuit expressly rejected the rationale

of the Court of Claims in Schmid and held that 10

U.S.C. § 687(a) was clear on its face in requiring five

years of continuous active duty in order to confer eligi-

bility for a readjustment payment. The Ninth Circuit

also held that the legislative history behind 10 U.S.C.

§ 687(a) supports this interpretation. The petitioner

submits that the Ninth Circuit erred in not following

the rationale set forth in Schmid.

6

The Supreme Court has in the past acted to resolve

a conflict between a decision of a circuit court and a

decision of the United States Court of Claims. See

Waterman S.S. Corp. v United States, 381 U.S. 252

(1965) ; United States v. Zacks, 375 U.S. 59 (1963) ;

United States v. Gilmore, 372 U.S. 39 (1963) ; Ameri-

can Auto. Ass’n. v. United States, 367 U.S. 687

(1961); United States v.. Consol. Edison Co., 366

U.S. 380 (1961). <A resolution of the issue involved

in this ease by this Court is particularly desirable since

there are other cases pending involving this identical

issue in the Court of Claims, the Court of Appeals for

the Seventh Circuit and at least two district courts.

A summary of the pending cases is printed at Appen-

dix D. There are hundreds, if not thousands, of

individuals who have been and may be involuntarily

released from active duty with at least four years and

six months, but less than five years, of continuous

active duty, and therefore the issue involved in this

case is of great importance to past and present mem-

bers of the Armed Forces and to the Government.

PORE PR RNS LE TE SEL LILO AE EE LO aa eS

7

CONCLUSION

The requested Writ of Certiorari should be granted

in order to resolve the conflict between the decision of

the Court of Claims in Schmid v. United States and the

decision of the Ninth Circuit Court of Appeals in Cass

v. United States.

Respectfully submitted, -

ARTHUR B. Hanson

ARTHUR A. BIRNEY

JOHN N. FENRICH, JR.

Hanson, O’Brien, Birney,

Stickle & Butler

888 Seventeenth Street, N.W.

Washington, D.C. 20006

Attorneys for Petitioners

Of Counsel:

CHARLES A. SMITH

Smith & Harper

2210 North Roberts

Helena, Montana 59601

ee

APPENDIX

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APPENDIX A

Opinion of the United States District Court for the

District of Montana

Dated June 20, 1972

Donan C. Cass, Plaintiff

v.

Unrtep States or AMERICA,

Defendant.

Civ. No. 2014.

UNITED STATES DISTRICT COURT,

D. MONTANA,

HELENA DIVISION.

suNE 20, 1972.

Proceeding on claim of involuntarily released officer for

readjustment pay. The District Court, Russell E. Smith,

C.J., held that rounding provision in statute providing for

readjustment pay upon involuntary release from active

duty applies to both eligibility for and computation of

readjustment pay; thus, officer who was involuntarily

released from active duty after serving four years, nine

months, and thirteen days of continuous active duty was

entitled to readjustment pay.

Judgment for plaintiff.

Armed Services § 13.1(16)

Rounding provision in statute providing for readjust-

ment pay upon involuntary release from active duty applies

to both eligibility for and computation of readjustment

pay; thus, officer who was involuntarily released from

active duty after serving four years, nine months, and

thirteen days of continuous active duty was entitled to

readjustment pay. 10 U.S.C.A. § 687(a) (2).

2a

Charles A. Smith, Smith & Harper, Helena Mont., for

plaintiff.

Otis L. Packwood, U. S. Atty., Billings, Mont., for

defendant.

Optnion AND ORDER

RUSSELL E. SMITH, Chief Judge.

This case was submitted on an agreed statement of facts

which is adopted as the findings of the court.

Plaintiff, Donald C. Cass, was a member of the United

States Army Reserve and served a tour of active duty with

the Army from July 16, 1966, to April 26, 1971—four years,

nine months, and 13 days of continuous active duty. Cass

was honorably and involuntarily released from active duty

on April 26, 1971, and as Captain was then receiving base

pay of $1,063.80 per month. Upon notification that he was

released, Cass requested a lump-sum readjustment pay-

ment as provided by 10 U.S.C. § 687(a). The request was

refused because Cass had not served a full five years.

Cass seeks the amount of readjustment pay due, $10,-

638.00, but for jurisdictional purposes has waived all in

excess of $10,000.00.

The statute in question reads as follows:

§ 687(a) ... a member of the Army or the Air Force

without component who is released from active duty

involuntarily, . . . and who has completed, immedi-

ately before his release, at least five years of contin-

uous active duty, is entitled to a readjustment pay-

ment computed by multiplying his years of active serv-

ice .. . but not more than eighteen, by two months’

basic pay of the grade in which he is serving at the

time of his release. * * * For the purposes of this

subsection—

3a

(1) a period of active duty is continuous if it is

not interrupted by a break in service of more than

30 days; F

(2) a part of a year that is six months or more

is counted as a whole year, and a part of a year

that is less than six months is disregarded; and

(3) a period for which the member concerned has

received readjustment pay under another provi-

sion of law may not be included. (#mphasis

added.)

On the authority of Schmid v. United States, 436 F.2d

987, 193 Ct.CL 78 (1971), cert. denied, 404 U.S. 951, 92

Sup. Ct. 283, 30 L.Ed. 2d 268 (1971), I conclude that the

rounding provision, 10 U.S.C. § 687(a)(2), applies to both

eligibility for and the computation of the readjustment pay.

It is ordered that plaintiff have judgment against the

defendant in the sum of ten thousand dollars ($10,000.00).

+ mess

4a

APPENDIX B

Opinion of the United States Court of Appeals

for the Ninth Circuit

Dated August 1, 1973

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 72-2633

Donautp C. Cass, Appellee,

v.

Unrrep States or America, Appellant.

Nos. 72-3028, 72-3029, 72-3030

Francis A. Apams, Rosert J. STENEMAN,

Micuagt W. Youncguist, Appellees,

v.

SEcRETARY OF THE Navy, Et AL., Appellants.

[August 1, 1973]

72-2633—Appeal from the United States District Court,

District of Montana, Helena Division

72-3028) Appeal from the United States District Court,

72-3029) Central District of California

72-3030)

Before: Mere and Cuoy, Circuit Judges, and

Cont1,* District Judge

Contt, D.J.:

This case involves the interpretation of 10 U.S.C. 687(a),

which permits servicemen to receive readjustment pay-

ments upon release from the armed forces. Two issues are

* Honorable Samuel Conti, Unit#d States District Judge, North-

ern District of California, sitting fh» designation.

+ rE

sient a Ta ea rd

5a

involved in this appeal: (1) Whether the ‘‘rounding pro-

vision’’ of subparagraph (2) of 10 U.S.C. 687(a) applies

to reduce the eligibility requirement for readjustment pay ;

and (2) whether the preliminary injunction issued by the

District Court in the Adams-Steneman-Youngquist cases

would moot this appeal because they would now qualify

under any interpretation of the statute.

These actions were instituted by reserve officers on active

duty in the Armed Forces. Each had served more than

four and a half years and less than five years. Cass was

honorably and involuntarily discharged from the Army.

Adams, Steneman and Youngquist, captains in the Marine

Corps, were ordered to be involuntarily released from

active duty under honorable circumstances, but obtained a

preliminary injunction which prevented their release until

after they had served more than five years. The prelim-

inary injunction was then dissolved while their cases were

still pending. In all the cases the trial courts found in

favor of the plaintiffs.

With regard to the substantive issue of whether or not

10 U.S.C. 687(a) (2) was properly interpreted by the district

court, it is the opinion of this court that it was not.

The relevant statute provides in pertinent part:

‘|... a member of a reserve component . . . who is

released from active duty involuntarily . . . who has

completed, immediately before release, at least five

years of continuous active duty, is entitled to a read-

justment payment computed by multiplying his years

of active service . .. by two months’ basic pay of the

grade in which he is serving at the time of his release

... For the purposes of this subsection—

(1) a period of active duty is continuous if it is not

interrupted by a break in service of more than 30

days;

6a

(2) a part of a year that is six months or more is

counted as a whole year, and a part of a year that is

less than six months is disregarded .. .”’

The district courts ruled in favor of plaintiffs, following

the rationale of Schmid v. United States, 436 F.2d 987

(Ct.Cls.) cert. denied 404 U.S. 951 (1971). In Schmid the

court of claims decided that the rounding! provision of

687(a)(2) that ‘‘a part of a year that is six months or

more is counted as a whole year’’ applied not only for the

purposes of calculating the amount of the readjustment pay

owed servicemen eligible for payments, but also in deter-

mining whether the five year eligibility requirement was

met. Thus, if appellees’ position is correct, their time in

service (more than four and a half years) was properly

_rounded off to five years in the district courts and they

were thus eligible and entitled to readjustment payments

under 10 U.S.C. 687(a). We disagree and reverse.

The concept of readjustment pay was originally made

into law in 1956. That Act of July 9, 1956, 70 Stat. 517, 50

U.S.C. 1016(a) (1958 ed.) provided in pertinent part:

‘*A member of a reserve component who is involun-

tarily released from active duty after the enactment of

this section and after having completed immediately

prior to such release at least five years of continuous

active duty, except for a break in service of not more

than thirty days... is entitled to a lump-sum readjust-

ment payment computed on the -basis of one-half of

one month’s basic pay in the grade in which he is

serving at the time of release from active duty for

each year of active service ending at the close of the

eighteenth year. For the purpose of computing the

amount of readjustment payment (1) a part of a year

that is six months or more is counted as a whole year

..’’ (Emphasis added)

7a

Thus, that Act clearly provided that the rounding pro-

vision applied only to the determination of the amount of

payment, and not to the eligibility requirement. In 1962,

the statute was codified into its present form.

The present form of the statute does not explicitly limit

the rounding provisions to computation of the amount of

the benefits. However, the clause of the statute which sets

the minimum eligibility at five years, appears to be clear

on its face and not subject to the interpretation given it

by the court in Schmid.

However, even if the statute is arguably ambiguous, the

result is unchanged. The rounding provisions conflict with

the clear statement that five years is required for eligibility,

if the rounding provision applies to eligibilty. The use of

the rounding provision would serve no useful purpose in

determining eligibility. , Eligibility is defined in terms of a

fixed duration under the statute. The rounding provision

could only be applicable in a situation in which a service-

man had served between four and a half and five years.

There is no apparent reason why Congress would choose

such a circuitous method to determine eligibility.

An examination of the legislative history behind the 1956

and 1962 versions of the statute supports the interpreta-

tion argued by appellant. The senate hearings on the 1956

_ bill specifically considered and adopted the language which

limited the rounding provision to the computation of the

amount of the payment. 1956-2 U.S. Code Cong. & Ad.

News, pp. 3068, 3070.

In 1962, Congress codified the readjustment payment

laws. In the process the language that the rounding pro-

vision was limited to the computation of the amount of

readjustment pay was deleted. However, the senate report

on the new law stated that the bill ‘‘is not intended to make

any substantive change in the existing law’’. Senate

Report No. 1876, 87th Cong. 2d Sess., 1962 U.S. Code & Ad.

8a

News, p. 2456. It would be inconsistent with the above

declaration for this court to construe that Congress

intended to broaden the eligibility requirements. There-

fore, we reverse on the substantive issue of interpretation

of 10\U.S.C. 687fa).

With regard to the arguments of Adams, Steneman and

a. the preliminary injunction issued by the

district in their cases served to make them eligible

for readjustment benefits under any interpretation of the

statute, we disagree.

The case of Paul v. Seamens, 468 F.2d 361 (1st Cir. 1972),

held that a preliminary injunction designed to preserve the

status quo, cannot count toward retirement benefits. In

the case at bar, we have decided for appellant, and there-

fore the injunction in the district court was improperly

issued, and cannot be relied upon to support eligibility for

readjustment benefits.

The injunction created no additional rights in appellees

that they did not have under the statute in question. Any

other decision would allow appellants to ‘‘bootstrap’’ them-

selves into eligibility.

Therefore, the decisions of the district court are

reversed.

RE —

9a

APPENDIX C

Opinion of the United States Court of Claims

ArtHus C. Scump, Jz.

v.

THe Unttep States.

No. 493-69

Unrtep States Court or Cuarms.

Jan. 22, 1971.

[4386 F.2d 987]

Proceeding on claim by involuntarily released officer for

readjustment pay. On plaintiff’s motion and defendant’s

cross motion for summary judgment, the Court of Claims,

Collins, J., held that rounding provision in statute pro-

viding for readjustment payment upon involuntary release

from active duty applies equally to eligibility requirement

and to. method of computation, so that officer who was

involuntarily released from active duty after having served

4 years, 6 months and 27 days of continuous active duty

was entitled to readjustment pay.

Judgment for plaintiff.

Nichols, J., dissented and filed opinion.

Armed Services—13.1(16)

Rounding provision in statute providing for readjust-

ment payment upon involuntary release from active duty

applies equally to eligibility requirement and to method of

computation, so that officer who was involuntarily released

from active duty after having served 4 years, 6 months

and 27 days of continuous active duty was entitled to

readjustment pay. 10 U.S.C.A. § 687(a) (2).

Arthur B. Hanson, Washington, D. C., attorney of rec-

ord, for plaintiff.

SSNS ERENT EEN a IE AI CREA EA

= Se >

10a

Arthur A. Birney, Washington, D. C., and John H. Blish,

Providence, R. I., of counsel.

Arthur E. Pay, Washington, D. C., with whom was Asst.

Atty. Gen. William D. Ruckelshaus, for defendant.

Before Cowen, Chief Judge, and LaramMorge, Durreg,

Davis, CoLuins, SKELTON, and NicHo.s, Judges.

On PuarntirFr’s Motion AnD DEeFENDANT’s Cross-Morion

For SuMMARY JUDGMENT

Couns, Judge.

This case comes to us on the parties’ cross-motions ‘for

summary judgment. There is no dispute as to the facts.

On June 27, 1969, Arthur C. Schmid, Jr., plaintiff herein,

was involuntarily released from active duty as a member

of the United States Naval Reserve. On the date of his

release plaintiff had attained the rank of lieutenant and

was receiving a base pay of $753 per month. He had served

4 years, 6 months, and 27 days of continuous active duty,

beginning November 30, 1964. Previously, he had served

on active duty from June 30, 1958, to August 30, 1962, a

period of 4 years, 1 month, and 30 days. The present claim

arises out of the denial by the Department of the Navy of

plaintiff’s request for readjustment pay pursuant to 10

U.S.C. §687(a), as amended (Supp. III, 1965-67), and it

is this statute to which we must now direct our attention.

The statute provides, in relevant part, as follows:

§ 687. Non-Regulars: readjustment payment upon invol-

untary release from active duty.

(a) Except for members covered by subsection (b), a

member of a reserve component or a member of the

Army or the Air Force without component who is

released from active duty involuntarily, or because he

was not accepted for an additional tour of active duty

lla

for which he volunteered after he had completed a

tour of active duty, and who has completed, immedi-

ately before his release, at least five years of contin-

uous active duty, is entitled to a readjustment pay-

ment computed by multiplying his years of active serv-

ice (other than in time of war or of national emergency

declared by Congress after June 28, 1962), but not

more than eighteen, by two months’ basic pay of the

grade in which he is serving at the time of his release.

** * For the purposes of this subsection—

(1) a period of active duty is continuous if it is

not interrupted by a break in service of more than

30'da ys;

(2) @ part of a year that is six months or more is

counted as a whole year, and a part of a year that

ts less than six months is disregarded; and

(3) a period for which the member concerned has

received readjustment pay under another provi-

sion of law may not be included. [Emphasis sup-

plied. ]

It is the Government’s position that the statute is ambig-

uous, but that its legislative history makes it clear that the

rounding provision of subsection (2) was intended to apply

only to the computation of readjustment pay and not to

the 5-year eligibility requirement therefor. That is, the

Government argues that the statute, illuminated by its leg-

islative history, requires continuous active duty service of

5 actual years in order to establish eligibility for readjust-

ment pay. Thus, since plaintiff was on continuous active

duty for less than 5 actual years during his last period of

active duty, he has not established eligibility under the

statute and is not entitled to readjustment pay.

Plaintiff argues that the statute is clear on its face—

the rounding provision applies equally to the eligibility

are SEE EEN IS DS RE GEN EET

12a

requirement and to the method of computation. There is,

therefore, no need to refer to legislative history, which,

according to plaintiff, is supportive of plaintiff’s position

or, at least, ambiguous. Because plaintiff served more than

4 years and 6 months of continuous active duty immedi-

ately before his discharge, he claims that, for purposes of

the eligibility requirement, he has served the required 5

years.

We find that the section is clear and unambiguous on its

face and is susceptible, on its face, of only one interpreta-

tion. The relevant part of the last sentence of section

687(a) provides that ‘‘For the purposes of this subsection

* * * (2) a part of a year that is six months or more is

counted as a whole year, and a part of a year that is less

than six months is disregarded * * *.’? Congress imposed

no express or implied limitation on the applicability of

this rounding provision. The clear indication is that, in

determining eligibility for readjustment pay and in com-

puting the amount thereof, a period of 6 months or more

is counted as a whole year.

But, although we find no ambiguity in the words of the

statute, we are not precluded from examining the legisla-

tive history underlying the enactment in order to determine

whether there is clear and compelling support for the in-

terpretation urged by the defendant. See Lionberger v.

United States, 371 F.2d 831, 834, 178 Ct.Cl. 151, 157, cert.

denied, 389 U.S. 844, 88 S.Ct. 91, 19 L.Ed. 2d 110 (1967).

As the Supreme Court has said, ‘‘[w]hen aid to construc-

tion of the meaning of words, as used in the statute, is

available, there certainly can be no ‘rule of law’ which for-

bids its use, however clear the words may appear on ‘su-

perficial examination.’ ’’ United States v. American Truck-

ing Ass’ns, 310 U.S. 534, 543-544, 60 S.Ct. 1059, 1064, 84

L.Ed. 1345 (1940) (footnotes omitted). After a careful re-

view of the legislative history of section 687(a), we con-

clude that the support which it lends to defendant’s po-

— Ta Fe ne

13a

sition is not so clear and compelling as to require us to

adopt an interpretation of the section inconsistent with the

clear import of its terms.

Section 687(a) was first enacted in 1962' and was in-

tended as a revision of the former readjustment pay stat-

ute, Act of July 9, 1956, ch. 534, § 265, 70 Stat. 517. The

1956 statute, which was repealed by section 687(a), read,

in pertinent part, as follows:

‘““SEC. 265. (a) A member of a reserve component

who is involuntarily released from active duty after the

enactment of this section and after having completed

immediately prior to such release at least five years of

continuous active duty, except for breaks in service of

not more than thirty days, as either an officer, warrant

officer, or enlisted person, is entitled to a lump-sum

readjustment payment computed on the basis of one-

half of one month’s basic pay in the grade in which he

is serving at the’time of release from active duty for

each year of active service ending at the close of the

eighteenth year. For the purposes of computing the

amount of readjustment payment (1) a part of a year

that ts six months or more ts counted as a whole year,

and a part of a year that is less than six months is dis-

regarded, and (2) any prior period for which sever-

ance pay has been received under any other provision of

law shall be excluded. * * *’’ [Emphasis supplied.]

The language of the repealed statute of 1956, which, it

should be pointed out, could easily have been employed in

section 687(a), made it perfectly clear that a part of a year

that was 6 months or more was to be counted as a whole

year only for the purpose of computing readjustment pay.

1 The section was amended in 1966. However, for present pur-

poses, that amendment is irrelevant.

SOS Fie ELIF Oe PA PR LN TTT IS WE Te RE PT RL MMT RAI ? , RAPIST HS

14a

Defendant has stressed that the Senate report accom-

panying H.R. 10433 (part of which became section 687(a),

as passed states:

This bill, as amended, is not intended to make any

substantive change in existing law. Its purpose is to

bring up to date title 10 of the United States Code, by

‘incorporating the provisions of a number of public

laws that were passed while the bill to enact title 10

into law was still pending in the Congress, and to trans-

fer to title 10, provisions now in other parts of the code.

S.REP.NO.1876, 87th Cong., 2d Sess., 1962-2 U.S. CODE

CONG. & AD. NEWS, p. 2456. We think the defendant re-

lies too heavily upon this general statement of purpose,

however, especially when the impact of the statement turns

on a determination of what is a ‘‘substantive change in ex-

isting law.’’ Even if the legislative history of section 687

(a) contained no indicia of an intent contrary to that ex-

pressed in the quoted statement of purpose, we doubt whe-

ther that statement, standing alone, furnishes the clear and

compelling evidence of intent which is required before the

plain meaning of statutory words can be disturbed.”

In any event, we are not faced with having to decide

whether the statement of purpose, standing alone, is suf-

ficient to justify disturbing the plain meaning of the stat-

ute because there is, in the statute’s legislative history, a

strong indication that the intent of Congress was in accord

with the statute’s plain meaning. In enacting section 687

(a), Congress discarded the unambiguous language of the

1956 statute and adopted, instead, language which it had

? Defendant also points to the fact that the revision notes accom-

panying Senate Report No. 1876 state that the words ‘‘ ‘For the

purposes of’ are omitted as surplusage.’’ S.REp. No. 1876, 1962-2

U.S. Cope Cone. & Ap. News, p. 2457. This is no argument at all.

The omitted words would have been surplusage regardless of the

interpretation given section 687 (a).

TL i ADO RRS LAP Sma . Wht ety

lia

ample reason to believe would make the rounding provision

applicable to the eligibility requirement as well as to the

computation formula.

The 1956 statute originated as H.R. 9952. As it was passed.

by the House, the bill read, in pertinent part:

‘“SEC. 260. (a) A member of a reserve component

who is involuntarily released from active duty after

having completed immediately prior to such release

at least 5 years of continuous active duty, except for

breaks in service of not more than 30 days, as either an

officer, warrant officer, or enlisted person, is entitled

to a lump-sum readjpstment payment computed on the

basis of one-half of 1 month’s basic pay in the grade

in which he is serving at the time of release from active

duty for each year of active service ending at the close

of the 18th year. For the purposes of this subsection, a

part of a year that is 6 months or more is counted as

a whole year, and a part of a year that is less than 6

months ts disregarded. * * *’’? [Emphasis supplied.]

H.R. 9952, 84th Cong., 2d Sess. (1956). The Senate, how-

ever, amended the legislation, adopting several recommen-

dations contained in a letter, dated November 17, 1955, from

the Comptroller General to Senator Russell, Chairman of

the Committee on Armed Services, commenting on a similar

bill. That letter stated in pertinent part:

Although the language of subsection (a) of the bill

seems to indicate that a minimum of 5 years’ contin-

uous active duty as an officer or warrant officer is nec-

essary to qualify for a readjustment payment, the last

sentence of that subsection appears to reduce the mini-

mum qualifying service to 4 years and 6 months. Pre-

sumably the provision authorizing the counting of 6

months or more as a whole year was intended to apply

only for the purpose of computing the amount of a

lump-sum payment and not the quantum of qualifying

ake Nad SOP oo ae ERT LEER er: ? Bas

16a

service. If so, the language should be clarified, perhaps

somewhat as follows:

‘‘For the purpose of computing the amount of

the readjustment payment a fractional part of a

year amounting to 6 months [or 183 days] or more

shall be counted as a whole year and a shorter pe-

riod shall be disregarded.’’

1956-2 U.S.CODE CONG. & AD. NEWS, pp. 3068, 3070. The

restoration in section 687(a) of the language of H.R. 9952,

that which the Comptroller viewed as reducing the mini-

mum qualifying service to 4 years and 6 months, is, we

think, a strong indication of congressional intent—far

stronger than that on which the defendant relies. We do not

mean to say that the legislative intent underlying section

687(a) is in accord with the clear meaning of the statutory

words, only that the legislative history of that section does

not so clearly evidence an intent inconsistent with the plain

meaning of the statutory language as to enable us to depart

from that plain meaning.

Defendant also argues that the Department of the Navy,

one of the agencies charged with the administration of sec-

tion 687(a), interprets the statute as providing for round-

ing only for the purpose of computing readjustment pay,

and that this administrative interpretation of the statute

is entitled to great weight.

There are many instances when the prior administrative

interpretation of a statute is entitled to great respect.

* * * [T]he practical construction given to an act of

Congress, fairly susceptible of different constructions,

by those charged with the duty of executing it is enti-

tled to great respect and, if acted upon for a number

of years, will not be disturbed except for cogent rea-

sons. [Footnote omitted. ]

OPO TNE BELEN CD LE be i GE ISG os Hm gp

17a

McLaren v. Fleischer, 256 U.S. 477, 481, 41 S.Ct. 577, 578,

65 L.Ed. 1052 (1921). This is, however, but one of many

principles bearing on the construction of legislation. It is

not the cardinal or dominating rule. In this instance we find

that, all things considered, the Navy’s course of interpre-

tation is less persuasive than the factors which point to the

construction urged by the plaintiff. These other factors, the

statutory words and the critical part of the legislative his-

tory to which reference has already been made, are sufficient

to overcome the administrative construction.

For the foregoing reasons we grant plaintiff’s motion for

summary judgment and deny defendant’s cross-motion for

summary judgment. Judgment is entered for plaintiff in the

amount of $13,554, computed, according to section 687(a), by

multiplying his years of active service (9)* by 2 months’

basic pay ($1,506). No interest is allowable under 28 U.S.C.

_-§ 2516 (1964).

NicHo.s, Judge (dissenting).

I think § 687 is ambiguous by reason of the words ‘‘* * *

who has completed, immediately before his release, at least

five years of continuous active duty * * *.’’ This I read as

saying that anything under five years is not enough. It is

seemingly contradicted by subsection (2) as Judge Collins

quotes it. If two parts of a statute can be read as not con-

tradicting one another, that reading is to be preferred, but

such a reading is difficult here. I agree that the legislative

history looks both ways and the Navy practice is not of long

enough standing to control, nor are we shown what the other

Services have done.

Confronted with an ambiguous statute, with legislative

history and prior administrative practice unhelpful, and

with no prior court decisions cited to us, we must fall back

on our intuition for the intent of Congress. It may be de-

5 This figure is arrived at by totaling and rounding all of plain-

tiff’s active duty service.

RCPS

.

18a

batable how finely tuned my intuition is, but for whatever

it is worth, I just cannot force myself to believe the Congress

intended that anyone having under five years active service

should qualify. It might be said, if the Congress meant four

years and six months when it wrote five years, it would have

been simpler to have written four years and six months.

I do not say it because, in all honesty, I know that the Con-

gress sometimes elects the long way around. That approach

is too simplistic. We may ask ourselves instead what legis-

lative scheme or plan would envision four years and six

months as a qualifying period. How was it selected?

In resolving ambiguity, we must allow ourselves some rec-

ognition of the existence of sheer inadvertence in the legis-

lative process. I think that in 1962 they just simply over-

looked that in adopting a change of language, there might be

some literal-minded persons who would infer a change of

meaning. The struggle between the brash re-codifer who |

wants to ‘‘clean up”’ the language, and is sure he knows how

to do so without changing substance, as against the cautious

one who clings to obsolete and opaque terminology, for fear

of making an inadvertent change, is ancient in the field of

legislative draftsmanship. Notorious examples exist in other

fields, as for example the standard policy of marine insur-

ance. Conceding that, if I am right, the recodification here

was not skillfully done, I think the result gives aid and com-

fort to the anti-re-codification school of thought and tends to

discourage an activity which, in my view, is in the public

interest on the whole.

That the change was inadvertent is strongly supported by

the reports reproduced in 1962-2 U.S.Code Cong. & Ad.

News, at p. 2457. They set forth the statutory sources of

§ 687, purport to show each change of language, and to ex-

plain in each instance the lack of any substantive change.

Yet the reduction of the qualifying period from five years

to four years six months is nowhere mentioned. I believe

that the Congress, had it consciously considered reducing

POLE EON LOREAL I EE BEG EOE tet mnt ae

19a

the qualifying period as alleged, would have held hearings

and received reports and testimony. This would have been

a matter of importance to the GAO, which commented on

the 1956 legislation, as well as to executive agencies, and to

veteran’s organizations. Apparently nothing of the kind oc-

curred.

I take this occasion to reiterate what I wrote, concurring,

in Sarkes Tarzian, Inc. v. United States, 412 F.2d 1203,

1214, 188 Ct.Cl. 766, 787 (1969) :

Defendant forgets that the intent of Congress must

be our lodestar, and that any statutory construction

necessarily imputes an intent to Congress. If Congress

didn’t intend it, the statute doesn’t do it. * * *

There it was defendant that forgot. Here I fear it is the

court.

20a

APPENDIX D

Penpinc FreperaAL Court Cases INVoLVING ENTITLEMENT TO

READJUSTMENT Pay Unper 10 U.S.C. § 687(a).

O’Meara v. United States—Court of Appeals for the Sev-

enth Circuit, Docket No. 73-1802. Class action certified

to the Court of Appeals by the District Court for N.D.

“Til, Doeket No. 72-C-2386.

Bushery v. United States—District Court for W.D. Miss.,

West. Div., Docket No. CA2056-2. Class action.

Siat v. United States—District Court for S.D. Cal., Docket

No. 73-102-E.

Court of Claims cases: Docket No.

Brown v. United States 393-72

Clough v. United States 147-72

Crooks v. United States 143-73

Dalluge v. United States 136-73

Harris v. United States 327-72

Lafaver v. United States 184-72

Lattimore v. United States 366-72

Murphy v. United States 250-72

Parker v. United States 144-73

Reuter v. United States . 241-72

Smythe v. United States 255-72

Wells v. United States 407-72

EPA RE CTO OE let De te. _— 2 weet CEP ote pee

a

>:

PAAR Ue A ihe PAC A WLaP EA as MOTEL Sap PTET ANT OA STALL 2 BEN CET SiOh ST i i

In the Supreme Court of the United States

OcTOBER TERM, 1973

No. 73-604

DONALD C. Cass, PETITIONER

v.

UNITED STATES OF AMERICA

No. 73-5661

FRANCIS A. ADAMS, ET AL., PETITIONERS

A

SECRETARY OF THE NAVY, ET AL.

ON PETITIONS FOR WRITS OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT

MEMORANDUM FOR THE RESPONDENTS

Petitioners in these cases have served more than four

and a half years, but less than five years, of active

military duty. They were denied readjustment pay when

they were involuntarily separated from active service,

on the ground that 10 U.S.C. 687(a) authorizes such

payments only after five years of service. That Section

provides that a member of a reserve component released

after “at least five years of continuous active duty”

is entitled to a readjustment payment of two months’

basic pay for each year of service. It also states that

(1)

2

a partial year over six months is to be counted as a

whole year, while a partial year less than six months

is to be disregarded. They contend that the statute’s

rounding provision applies to the length of service

requirement, so that, having served more than four years

and six months, they must be considered to have served

five years, and to be entitled to readjustment pay.

Petitioner in No. 73-604 was released after continuous

active duty in the Army Reserve for four years, nine

months, and thirteen days; the Army denied his request

for readjustment pay of $10,638 (Pet. in No. 73-604 at

3). He commenced this action in the district court for

the District of Montana; on June 20, 1972, he was

awarded judgment of $10,000 (Pet. App. in No. 73-604

at 3a).!

Petitioners in No. 73-5661 were reserve officers in

the Marine Corps, who were notified that they would

be released from active duty after more than four and

a half years but less than five years of continuous ser-

vice, under orders which specified they were not entitled

to readjustment pay. Prior to their release dates, peti-

tioners brought separate actions in the district court for

the Central District of California seeking to enjoin their

involuntary release and to compel payment to them of

readjustment pay.? Preliminary injunctions issued,

which were dissolved when the petitioners completed

five years of service (Pet. App. in No. 73-5661 at 14-

' To bring the case within the district court's jurisdiction

under 28 U.S.C. 1346(a), petitioner waived his claim to read-

justment pay in excess of $10,000 (Pet. App. in No. 73-604 at

2a).

2 It was stipulated that the readjustment pay, if due, would

be $9,273 for petitioner Adams and for petitioner Steneman, and

$10,065 for petitioner Youngquist.

3

15).3 On September 25, 1972, the district court held

petitioners were entitled to readjustment pay (Pet. App.

in No. 73-5661 at 13-15).

On appeal, the Ninth Circuit reversed both district

courts, holding that petitioners are not entitled to

readjustment pay, since the rounding provision applies

only for the purpose of computing the amount of read-

justment pay, not for determining whether the minimum

five-year period of service necessary for eligibility has

been met (Pet. App. in No. 73-604 at 4a-8a; Pet. App.

in No. 73-5661 at 16-19).4

As the court of appeals recognized (Pet. App. in No.

73-604 at 6a), its decision conflicts with that of the Court

of Claims in Schmid v. United States, 436 F. 2d 987

(Ct. C.), certiorari denied, 404 U.S. 951. In Schmid,

the Court of Claims held that a serviceman having

active service of more than four and one-half, but less

than five years, qualifies for readjustment pay (Pet.

App. in No. 73-604 at 9a). As our petition for certiorari

in Schmid stated (No. 71-361, O.T. 1971, pp. 5-6),

under the four and one-half year eligibility requirement

announced by the Court of Claims, the -government

would be subject to an estimated potential liability of

more than $12,000,000. Moreover, the controversy over

the minimum service requirement for readjustment

pay has led to many cases now pending in numerous

3 Both courts below held that petitioners’ service for more than

five years because of the injunctions did not render them eligible

for readjustment pay. No issue relating to these injunctions or

their effect on petitioners’ rights is raised in the petition.

‘The decision of the court of appeals is also reported at 483

F. 2d 220.

4

lower courts (see Pet. App. in No. 73-604 at 20a).5 For

these reasons, this Court should resolve the conflict

between the Ninth Circuit and the Court of Claims. :

We submit that the decision of the Ninth Circuit

is correct; the minimum service requirement for read-

justment pay is a full five years. Section 687(a) expressly

requires “at least five years of continuous active duty”

for eligibility. The ambiguity that arises from the juxta-

position of this portion of Section 687(a) with the

rounding provision is dispelled by the history of the

readjustment pay provision. As originally enacted in

1956, the statute specified that “at least five years of

continuous active duty” were necessary. 70 Stat. 517.

Under that statute, as under the present one, the amount

of the readjustment pay, as well as entitlement to it,

was based upon the number of years of active duty.

There was no ambiguity created by the original rounding

provision, however, because the 1956 act provided,

“For the purposes of computing the amount of read-

justment payment, (1) a part of a_ year that is six

months or more is counted as a whole year * * *.”

70 Stat. 517 (emphasis added). Indeed, the underscored

phrase was added at the suggestion of the Comptroller

General in order to preclude any possible confusion as

to whether a full five years’ service was required for

eligibility. See S. Rep. No. 2288, 84th Cong., 2d Sess. 11.

‘In addition to the fifteen cases cited by petitioner Cass, at

least seven other pending cases involve this issue. Bell v. Secretary

of the Navy, Civ. No. 72-1944 (C.D. Cal.); Branson vy. United

States, Civ. No. 73-H-1135 (S.D. Tex.): Fimiani v. Secretary of

the Navy, No. 73-2822 (C.A. 9): Hudson v. Secretary of the Navy,

Civ. N!o. 72-2860-FW (C.D. Cal.); Arane v. Secretary of the Navy,

Civ. No. 72-2859-FW (C.D. Cwal.); Owens v. Secretary of the Navy,

Civ. No. 73-420-FW (C.D. Cal.); Reeid v. Secretary of the Navy,

Civ. No. 72-1789-FW (C.D. Cal.).

5

The present language of the rounding provision re-

sulted from a 1962 codification of military statutes.

76 Stat. 506, 507. It is a settled principle of statutory

construction that a change in statutory language re-

sulting simply from a codification does not alter the

meaning of the statute, even where a literal construction

of the new language could result in a substantive change.

See, e.g., United States v. Cook, 384 U.S. 257; Ohio

Bank & Savings Co. v. Tri-County National Bank, 411

F. 2d 801 (C.A. 6). That principle is especially applicable

here, inasmuch as both committee reports accompanying

the 1962 codification specify that the bill was “not

intended to make any substantive change in existing

law.” S. Rep. No. 1876, 87th Cong., 2d Sess. 6; H.

Rep. No. 1401, 87th Cong., 2d Sess. 1.

Moreover, the rounding provision serves a functional

purpose only with respect to computing the amount of

pay. If Congress had intended that four and one-half

years of service were sufficient for eligibility, it could

simply have so specified rather than adopting a cir-

cuitous method for determining eligibility. Finally, under

the uniform administrative construction of the present '

provision, a serviceman is ineligible for readjustment

pay unless he has five full years of service. This

administrative construction is entitled to deference.

Udall v. Tallman, 380 U.S. 1.

For these reasons, we believe that the decision below

is correct. We nevertheless acquiesce in the granting

of these petitions for certiorari, so that the conflict

with the Court of Claims may be resolved.

It is therefore respectfully submitted that the petitions

for writs of certiorari should be granted.

RoserT H. Bork,

Solicitor General.

DECEMBER 1973.