# Petition for a Writ of Certiorari — Cass v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0292%3A03 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for a Writ of Certiorari - **Published:** January 1, 1974 - **Citation:** 417 U.S. 72 ## Text shiinihote Pate AM eT oben RN IRA Ae PRR BARRA RY MD aR A einai, a yabsiclreniany Ae 1 Page I el a ob hd e ne ow ee eheKeee 2 sain i ois + kek Rake nee ne ae 2 EE ONIN 0, a ie ne tee g en doe cne ces 2 Sratutory Provision INVOLVED ............-..-2200- 2 Gabe as babe eke ve whee 4 Reasons ror GRANTING THE WRIT .................¢- 4 The Decision of the Court of Appeals for the Ninth Circuit Directly Conflicts with a Recent Decision of bude vnesesbaanobs 4 ngs ba Ka cubed cocbactucee 7 Appenprx A: Opinion of the United States District Court for the District of Montana—Cass vy. United States .... la 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— OU CO ol. icc ceaebeevee 9a Appenprx D: Pending Federal Court Cases Involving Entitle- ment to Readjustment Pay Under 10 U.S.C. § 687 es aia an dian n desea cane beebsuesseacs 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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0292%3A03. Public record. Not legal advice.