Petition for Writ of Certiorari — Reynolds v. United States

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He Lourt, U.

FILww

JUL 27 1053

[_ Haro. p, WILLEY, Clerk

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1953

7 or AD vee &

No. 206

FRANK F. REYNOLDS,

Petitioner,

vs.

THE UNITED STATES

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF CLAIMS

Frank F. Rernowps,

Petitioner, pro se.

INDEX

Sussect Inpex

Petition for writ of certiorari..................... 1

RI NE se ae ya hugnn ten 1

I ope eo ee ee ee 1-2

RUNES ge ee ae 2

2

EES aE belie Te ae PO Regt

MR el ra i hee cae 2-3

Specification of errors to be urged............ 3-4

Reasons for granting the writ................. 4-5

WI hn Fo eos Chae iy a eee hae oes 5-17

NUR 55d So neal aA ete pop CERT Rh 17

CITATIONS

Cases:

Aircraft & Diesel Equip. Corp., 331 U.S. 752, 767. .. 11

Berry v. United States, 123 Ct. Cls. 530, 546..... .. 4,11

Carroll v. United States, 81 F. Supp. 268, 270... .. 17

Charles Alexander v. Mayor and Commonalty of

Aiba DU MR ee BS OAS Bake

Choteau v. Burnet, 283 U.S. 691, 696............... 7,17

Clairmont v. United States, 225 U.S. 551, 557........ 10

Cope v. Cope, 137 U.S. 682, 688. .......5........... 16

Danovitz v. United States, 281 U.S. 389............ 6

Donnelly v. United States, 228 U.S. 243, 269........ 10

Fairport, P. d E. Railroad Co. v. Meredith, 292 U.S.

UN ee ee ee ae oer 17

Feitler et al. v. United States, 34 F. (2d) 30......... 6

Great Northern Ry. Co. v. United States, 315 U.S.

WN Se ie os eek et he eens 16

Kuehner v. Irving Trust Co., 299 U.S. 445, 449...... 17

Macaulay v. Waterman S. 8S. Corp., 327 U.S. 540, 543. 11

Puerto Rico v. Shell Co. (PR), 302 U.S. 253, 257. .. 6

Tiger v. Western Impr. Co., 221 U.S. 286, 309..... .. 16

United States v. Freeman, 44 U.S. 556, 564...... .. 16

United States v. Le Bris, 121 U.S. 278, 280.......... 4,9

—9422

il INDEX

Statutes:

Page

1938 Act: P.L. 703, 75th Congress, J une 23, 1938; ch.

ee i ee Se ea ke a3

Re: 24%4% per year, Sec. 12 (b), 52 Stat. 949.... 5,14

Re: 75% World War I, See. 12 (k), 52 Stat. 950. . 8

1940 Act: P.L. 612, 76th Congress, June 13, 1940; ch.

I oo ae eh ne No swig ans ws

Re: 75% World War I, See. 3, 54 Stat.380...... 5,14

1940 Act: P.L. 670, 76th Congress, June 28, 1940;

Ne a NS oS ee es ewe va pee cn

Re: Reserves, See. 1 (b), 54 Stat. 670.......... 8

1942 Act: Pay Readjustment Act of 1942. P. L. 607,

77th Congress, June 16, 1942; ch. 413, 56 Stat. 359,

er ie eee 2, 3, 4, 5, 6, 7, 9, 10, 11, 12, 14, 15, 16

1946 Act: P.L. 305, 79th Congress, February 21,

1946; ch. 34, 60 Stat. 26, 27.................. 8, 12, 14, 16

1948 Act: Army and Air Force Vitalization and Re-

tirement Equalization Act of 1948. P.L. 810, 80th

Congress, June 29, 1948; ch. 708, 62 Stat. 1087,

2, 3, 8, 12, 14, 16

1949 Act: Career Compensation Act of 1949. P.L.

351, 81st Congress, October 12, 1949; ch. 681, 63

Bice gate Aes cae 2, 4, 5, 7, 8, 9, 12, 13, 14, 15, 16

1952 Act: Armed Forces Reserve Act of 1952. P.L.

476, 82nd Congress, July 9, 1952; ch. 608, 66 Stat.

a ects nt yikes a 10

Miscellaneous:

Hook Commission Report ........................ 7, 13

paomne Moewort Ne. GBB ................--... 6. 7, 12, 13, 14

Pe NE BO, FOP h 5s 2 oe eo ee se 14

95 Cong. Rec. 7665 (Mr. Van Zandt)............... 12

ee NR So cs Scns we eye see ee es 15

I a IN oi ga eos as i aes vee cn 6

<r

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1953

No. 206

FRANK F. REYNOLDS,

Petitioner,

vs.

THE UNITED STATES

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF CLAIMS

The Petitioner Frank F. Reynolds, prays that a Writ of

Certiorari issue to review the judgment of the United States

Court of Claims, entered in the above-entitled case on May

5, 1953.

Opinion Below

The opinion in the above-entitled case is, as of the date

of this Petition, unpublished in bound volume of Court of

Claims reports. It is contained in the record of the case

certified by the United States Court of Claims (kK. 111-116).

Jurisdiction

The judgment of the United States Court of Claims was

a

2

entered on May 5, 1953 (R. 111). The jurisdiction of this

Honorable Court is invoked under 28 U. S. C. see. 1255(1).

Question Presented

Is a retired Reserve officer of any of the Armed Services

‘¢who served in any capacity as a member of the military or

naval forces of the United States prior to November 12,

1918’’ and who otherwise qualified for non-disability re-

tirement under the applicable general retirement law on the

subject, entitled to retired pay at the rate of ‘‘75 per centum

of his active duty pay at the time of his retirement’’ as

provided in par. 4, Sec. 15 of the Pay Readjustment Act of

1942 and re-enacted by exception from repeal in the Career

Compensation Act of 1949?

Statute Involved

‘«The retired pay of any officer of any of the services

mentioned in the title of this Act [Army, Navy, Marine

Corps, Coast Guard, Coast and Geodetic Survey, and

Public Health Service] who served in any capacity as

a member of the military or naval forces of the United

States prior to Novembe1 i2, 1918, hereafter retired

under any provision of law, shall, unless such officer is

entitled to retired pay of a higher grade, be 75 per

centum of his active duty pay at the time of his retire-

ment.’’ [Bracket inserted.] (P. L. 607, 77th Congress,

June 16, 1942; ch. 413, 56 Stat. 359, 368; 37 U. S. C. A.

sec. 115.)

Statement

Having completed all the general requirements for non-

disability retirement under Public Law 810, 80th Congress

(R. 24-25), the Petitioner was placed on the Naval Reserve

Retired List as of November 1, 1950 (R. 16) and paid re-

tired pay at the rate of $157.03 per month or 32.41% of his

active duty pay ($484.50) at the time of his retirement

(R. 12).

3

The Petitioner received retired pay at the aforesaid rate

from November 1, 1950 until March 6, 1951, on which latter

date he returned to temporary Government employment in

a civilian capacity (R. 12). His retired pay was suspended

during such employment.

The Petitioner’s retired pay was calculated by the 214%

per year of accredited service formula contained in the

aforesaid Public Law 810 (the 1948 Act).

But, in addition to satisfying the general requirements

for retirement as to age and service, the Petitioner was

also a Lieutenant Commander, U. S. Navy, Fleet Reserve,

prior to November 12, 1918 (R. 12), and as such is entitled

to 75% retired pay, not 32.41%, in accordance with the

provisions of par. 4, Sec. 15 of the Pay Readjustment Act

of 1942. (R. 24.)

The Petitioner made claim on the Navy Department for

an adjustment in retired pay from 32.41% to 75% for the

period November 1, 1950 to March 6, 1951 amounting to

$859.79, more or less, and for 75% retired pay when his

temporary Government employment ended and he resumed

his status on the Naval Reserve Retired List for pay pur-

poses. (R. 11-13.) This claim was denied. (R. 17-19.)

Having thus exhausted his administrative remedies, the

Petitioner thereupon addressed a petition to the United

States Court of Claims (R. 1-5) praying that his rights be

adjudicated according to the plain terms of the aforesaid

par. 4, Sec. 15 of the Pay Readjustment Act of 1942.

On May 5, 1953, the United States Court of Claims denied

the Petitioner’s claim and dismissed his motion for sum-

mary judgment ‘R. 116.)

Specification of Errors to Be Urged

The United States Court of Claims erred:

(1) In the ‘‘premise that as originally enacted in 1942,

4

section 115 applied only to Regular Naval officers.’’ (R.

113-114.)

(2) In concluding that the re-enactment of par. 4, Sec.

15 of the Pay Readjustment Act of 1942 by specific excep-

tion from repeal in the Career Compensation Act of 1949

did not show the intent of the Congress that the said para-

graph applied also to Reserve officers. (R. 115-116.)

(3) By not applying the principles of Administrative

Law and decisions of the United States Supreme Court to

the second proposition in the Berry case. (R. 87-98.)

(4) In relying on its own erroneous decision on the

second proposition in the Berry case as controlling, which

proposition presented practically the same question as

does the Petitioner’s case. (R. 116.)

(5) If the subject provision is ambiguous, by not apply-

ing the principles of Statutory Construction and the deci-

sions of the United States Supreme Court to determine its

legal import.

(6) If the subject provision is not ambiguous, by not

applying it according to the plain meaning of its words

and the decisions of the United States Supreme Court.

Reasons for Granting the Writ

(1) There are approximately 7,500 Reserve officers with

World War I service, retired or to be retired, who are af-

fected by the question presented for adjudication.

(2) The correct application of the Federal law involved

is the direct and immediate legal responsibility of all

branches of the Armed Services in the administration of the

Reserve components.

(3) The United States Court of Claims misconstrued a

decision of the United States Supreme Court (United States

v. Le Bris, 121 U. S. 278, 280.)

(4) The United States Court of Claims did not follow the

ee a

5

decisions of the United States Supreme Court on the doc-

trine of in pari materia.

Argument

Preamble: This Argument submits for the Court’s con-

sideration two general propositions bearing on the solu-

tion of the question presented for adjudication:

(a) That, by the doctrines of legislative notice and

in pari materia, par. 4, Sec. 15 of the Pay Readjust-

ment Act of 1942 becomes applicable to Reserve of-

ficers with World War I service when laws under which

they can qualify generally for non-disability retirement

are enacted.

(b) That its re-enactment by exception from repeal

in the Career Compensation Act of 1949 re-affirmed

the Congressional policy that there be no discrimina-

tion in retired pay between Regular and Reserve of-

ficers with World War I service.

1. Premise: The Court of Claims’ ‘‘ premise that as orig-

inally enacted in 1942, section 115 applied only to Regular

Naval officers’? (R. 113-114) takes on the characteristics

of an excluding presumption which is not supported to that

extent by the incomplete legislative record. Par. 4, See. 15

of the Pay Readjustment Act of 1942 had its genesis in

the proposed Hopwood amendment. (R. 30.) The stated

purpose of this amendment was to equalize the retirement

pay received by Regular Navy, Marine Corps and Coast

Guard officers with World War I service who retired under

the 1938 Act (2% per year of service) and Regular Army

officers with World War I service who retired under the

1940 Act (75% regardless of years of service). (R. 29.)

But, when this Hopwood amendment modified to the Maas

amendment (R. 32) came out of conference, it appeared in

its present form as par. 4, Sec. 15, clearly worded and with-

out any specifie limitations as to its exclusive applicability

6

to Regular officers. (R. 33.) No record has been found, and

probably none exists, showing why the conferees enlarged

this provision to include the Army, the Coast and Geodetic

Survey, and the Public Health Service, the other three Serv-

ices mentioned in the title of the 1942 Act. The Regular

Army officers already received 75% retired pay for World

War I service and did not need the same benefit conferred on

them again by the 1942 Act. The other two Services do

not appear to have actively participated in supporting its

enactment. So, no positive deduction as to the Congres-

sional intent in 1942 can be made from the legislative record

of that time. (R. 34-35.) It is more precise to say that when

originally enacted in 1942 the Regular officers were the only

ones to whom the subject provision could be applied be-

cause at iat time there were no general non-disability re-

tirement laws for Reserves. But, it does not necessarily

follow that it could not be applied to qualified Reserve of-

ficers at a later date when non-disability retirement laws

including them were enacted because

‘“‘The fact that in enacting a statute Congress could

not have had a particular field for its application in

mind is not enough to exclude its therefrom, but it is

necessary to go further and say that had the situation

been foreseen Congress would have so varied its com-

prehensive language to exclude it from the operation

of the act.’? (50 Am. Jur. pag 225 citing Puerto Rico

v. Shell Co. (PR) 302 U. 8. 253, 257.)

‘8. Statutes. -:— 23414—General legislative enact-

ments prospective in operation apply to all persons

and subjects within their general purview, including

those which come into existence subsequently.”’

‘‘Legislative enactments in general and comprehensive

terms prospective in operation apply alike to all per-

sons, subjects, and business within their general pur-

view, including those that come into existence sub-

sequent to their passage.’’ [Syllabus. Feitler et al. v.

United States (CAA 3d) 34 F (2d) 30 (affirmed in

Danovitz v. United States, 281 U. S. 389.) ]

>="

7

And, one of the fundamental rules of statutory construc-

tion is ‘‘that where the general language of a statute is

broad enough to include a particular subject matter, an in-

tent to exclude it from the operation of the law must be

definitely expressed.’’ (Choteau v. Burnet, 283 U. S. 691,

696.) (R. 55-56.)

' 2. Extension of Premise: (a) In addition to the uncer-

tainty of its initial premise, the Court erred in extending it

to the conclusion that—

“Since the language of Sec. 115 remained unchanged,

although excepted from repeal in the Career Compen-

sation Act, we cannot find in the statute, as finally en-

acted October 12, 1949, a clear intention on the part of

Congress to have Reserve officers included within the

terms of Sec. 115, supra.’’ (R. 114.)

(b) The Career Compensation Act of 1949 originated

with the Hook Commission Report and passed through three

drafts and redrafts of Bills (H. R. 2553, 4591, and 5007)

before enactment. (R. 35-39.) The Report and the first draft

(H. R. 2553) repealed the entire Pay Readjustment Act of

1942. But in the second and third drafts (H. R. 4591 and

5007) the House Armed Services Committee deliberately

excepted par. 4, Sec. 15 of the 1942 Act from repeal. No

legislative history has been found on the Congressional

intent of excepting the subject provision from repeal in Sec.

531 (b) (34) of the 1949 Act.

(c) The Court of Claims, quoting an extract from House

Report No. 583 and a statement by Mr. Vinson, Chairman of

the House Armed Services Committee (R. 115), erroneously

concludes that—

‘These remarks, however, were directed at the new

benefits given reservists under the disability retire-

ment provisions of the bills. They could have no bear-

ing on other retirement benefits since these bills, as

pointed out above, contemplated no change in the exist-

ing nondisability retirement laws. (R. 116.)

a

8

(d) The Career Compensation Act of 1949 is divided into

five titles. Title II sets forth new rates of pay. Title IV

contains comprehensive provisions relating to disability

retirements. Title V—‘‘Miscellaneous Provisions’’—in-

cludes many sections relating to non-disability retirements:

Le.: Sections 511, 512, 513, 514, 516, 517, 519, 520, 521, 522,

and 531 (b) (34). Hence, it is incorrect to say that the

Career Compensation Act of 1949 ‘‘contemplated no change

in the existing non-disability retirement laws.’’

(e) Since it is beyond dispute that the Congress did

consider certain: aspects of non-disability retirement, al-

though it did not go into the subject in Title V to the same

extent that it revised the disability retirement laws in Title

IV, it is in order to examine the action of the Congress with

respect to non-disability retirement bearing particularly

on the question presented for adjudication.

(f) As early as 1938 the Congress authorized exactly

the same non-disability retirement for Navy lieutenants,

both Regulars and Reserves, with World War I service.

(R. 34.) In 1940 the Congress recognized the inseparability

of Regulars and Reserves in the over-all program of Na-

tional Defense and worded a section of the Criminal Code

accordingly (R. 35). In 1946 it passed Public Law 305

retiring a designated class of Naval and Marine Corps

officers, both Regulars and Reserves, granting them identi-

cally the same non-disability retirement benefits. (R. 27,

60). In 1948 it enacted Public Law 810 under which both

Regulars and Reserves can qualify generally for non-dis-

ability retirement. (R. 24-25, 100-102). In 1949 it passed

the Career Compensation Act, Sec. 402 (i) in Title IV

reading as follows:

‘All members of the reserve components heretofore

or hereafter retired or granted retirement pay because

0 ical disability shall be entitled to the same pay,

rights, benefits, and privileges provided by law or

regulation for retired members of the regular services.”’

-

9

This Sec. 402 (i) shows conclusively the intent of the Con-

gress to eliminate any discrimination between Regulars and

Reserves who are retired for physical disability. It re-

mained, then, to eliminate any discrimination between

Regulars and Reserves who retire on a non-disability status.

This the Congress did, insofar as the 75% retired pay for

World War I service is concerned, by re-enacting par. 4,

See. 15 of the 1942 Act by exception from repeal in See.

531 (b) (34) of the 1949 Act. The attention of this Honor-

able Court is respectfully invited to the fact that in 1949 the

World War I was 31 years past and all Regular officers

with continuous service since World War I had had ample

opportunity to qualify generally for non-disability re-

tirement and receive 75% retired pay either under par. 4,

Sec. 15 of the 1942 Act or by the 244% per year formula

for 30 years’ service. Their rights under par. 4, Sec. 15 of

the 1942 Act were saved by See. 519 and Sec. 520 of the

1949 Act, and the Congress could have repealed the entire

1942 Act without affecting them. But the Congress re-

enacted this paragraph of the 1942 Act by excepting it

from repeal. The Congress can not be charged with passing

legislation to no purpose. This exception from repeal was

certainly intended to benefit somebody, obviously those

officers with World War I service who had not yet in 1949

qualified generally for non-disability retirement. And they

can only be Reserve officers.

(g) In United States v. Le Bris (121 U. 8. 278, 280), it

was held that—

“‘The re-enacted sections are to be given the same

meaning they had in the original statute unless a con-

trary intention is plainly manifested.’’ (R. 116).

This general rule was stated in 1887 and concerned the

definition of ‘‘Indian country’? at that time. But, twenty-

five years later, in 1912, this Court recognized that the

10

original significance of words used in a statute may change

with the years and said:

‘‘But, as has frequently been stated by this court, the

definition may still ‘be referred to in connection with

the provisions of its original context which remains

in force, and may be considered in connection with

the changes which have taken place in our situation,

with a view of determining from time to tume what

must be regarded as Indian country where it is spoken

of in the statutes.’’’ (Clairmont v. United States,

225 U. 8. 551, 557; Donnelly v. United States, 228

U. S. 243, 269.) (Emphasis supplied.)

_ And so it is with par. 4, Sec. 15 of the 1942 Act. The

\definition of ‘‘any officer’? in 1942 could only embrace

Regular officers because at that time there were no general

non-disability retirement laws for Reserves. But in 1946

and 1948 changes took place in the retirement situation by

the enactment of laws providing for the non-disability re-

tirement of Reserves. It is respectfully submitted that

by these changes it is ‘‘plainly manifested’’ that the defi-

nition of the words ‘‘any officer’’, like the definition of

‘‘Indian country’’, was enlarged in scope by the doctrine of

legislative notice to include Reserve officers.

(h) As recently as last year, the Congress passed ‘‘The

Armed Forces Reserve Act of 1952”’ reiterating its attitude

of equality between Regulars and Reserves in the following

sections :

‘*Sec. 101. When used in this Act—

(e) ‘Armed Forces of the United States’ means the

Army, Air Force, Navy, Marine Corps, and Coast

Guard, including 91! components thereof.’’

‘‘Sec. 250. There shall be no discrimination between

and among members of the Regular and reserve com-

ponents in the administration of laws applicable to both

Regulars and Reserves.’’ (R. 27.)

.

3. Berry Case: Berry is a retired officer of the United

States Naval Reserve. The second proposition in the Berry

case (R. 87-98) made claim—

11

‘*(2) For the difference in the retired pay received

by him since his retirement on February 1, 1947, to

date of judgment and that to which entitled if his

retired pay is computed on the basis of 75 percent of

the active duty pay received by him immediately prior

to his retirement.’’

basing said claim on par. 4, Sec. 15 of the Pay Readjustment

Act of 1942. But, Berry did not file a bona-fide claim

initially with the Navy Department (R. 97), much less

exhaust his administrative remedies, as required by the

principles of Administrative Law and the Navy Regula-

tions. (R. 91-94.) This Honorable Court has repeatedly

held that one must exhaust his administrative remedies

before seeking judicial relief. (R. 95-96.) (Macaulay v.

Waterman S. S. Corp., 327 U.S. 540, 543; Aircraft & Diesel

Equipment Corp. v. Hirsh, 331 U. S. 752, 767). It is re-

spectfully submitted that the United States Court of Claims

lacked jurisdiction as to the second proposition in the

Berry case and erred in not dismissing that part of his

petition relating thereto.

4. Citation of Berry Case: Since the United States Court

of Claims lacked jurisdiction as to the second proposition

in the Berry case, its judgment thereon is not binding. The

Court therefore erred in citing its decision in that case as

controlling in the case of the Petitioner on the same point

of law.

5. Ambiguous: (a) If par. 4, Sec. 15 of the Pay Read-

justment Act of 1942 is ambiguous, then that ambiguity

must be resolved by the rules of statutory construction.

(R. 51-64.)

(b) The legal import of the subject paragraph can not

12

be determined by reference to the rest of the 1942 Act. It

was a separate piece of legislation when introduced as a

floor amendment in 1942, having neither connection nor

continuity with any other part of the Act, which was

merely a convenient vehicle of enactment; and it continues

to stand alone as a law complete in itself, complementary

to the general retirement laws. (R. 57, 59-60.)

(c) No legislative record has been found explaining why

the conferees changed the proposed Hopwood-Maas amend-

ment of limited application to the broad all-inclusive word-

ing of the provision as enacted. In 1942 there were no

general laws under which Reserves could retire on non-

disability. But in 1946 the Congress enacted Public Law

305 with the presumption of legislative notice of the 75%

retired pay provision in the 1942 Act. (R. 27-28, 57, 60.)

In 1948 the Congress passed Public Law 810, also with

the presumption of legislative notice of the 75% retired

pay provision in the 1942 Act. And, in 1949 the Congress

enacted the Career Compensation Act taking positive leg-

islative notice of the 75% retired pay provision in the 1942

Act by excepting it from repeal at a time when it could only

apply to Reserve officers. The same House Report No. 583

from which the Court of Claims obtained its extract (R. 115)

also stated—

‘‘Furthermore, it should be remembered that the Con-

gress has within the past 3 years carefully considered

all of the voluntary and involuntary retirement laws,

as indicated by Public Law 305 of the Seventy-ninth

Congress and Public Laws 381 and 810 of the Hightieth

Congress.’’ (R. 38, 56.)

And Mr. Van Zandt said—

‘‘Special benefits as between Regular, National Guard

man, or Reserve no longer exist. From the cover sheet

to the last page this is a nondiscriminatory piece of

legislation. It may fairly be said that with the enact-

13

ment of this bill the Congress will have, for the first

time, provided complete equality of treatment for mem-

bers of all of the components.’’ (R. 38.) (Emphasis

supplied. )

It is particularly significant that Mr. Van Zandt referred

to the entire 1949 Act, ‘‘from the cover sheet to the last

page’’, ‘‘complete equality of treatment’’, not just Title

IV on disability retirements as decided by the Court of

Claims.

(d) This Honorable Court’s attention is respectfully in-

vited to Sec. 512 of the 1949 Act on non-disability retire-

ment which, in pertinent part, reads:

‘*Sec. 512. On and after the effective date of this sec-

tion, any person who heretofore has been granted re-

tired pay or who hereafter is granted retired pay pur-

suant to title III of the Act of June 29, 1948 (ch. 708,

62 Stat. 1087), shall have his retired pay computed as

authorized by the aforesaid title III on the basis of the

pay provided for in this Act;.. .’’

As previously stated, the 1949 Act originated with the

Hook Commission Report and passed through three drafts

and redrafts of Bills: H.R. 2553, 4591, and 5007. This Sec.

512 is not in either the Hook Commission Report or H. R.

2553. It first appears as Sec. 513 in H. R. 4591, and in

this same Bill the exception from repeal of par. 4, Sec.

15 of the 1942 Act also shows up for the first time as Sec.

533 (b) (34). House Report No. 583 of May 16, 1949, to

accompany H. R. 4591 says:

‘‘Sec, 513 extends the pay provisions of this proposed

bill to members and former members of the Reserve

components heretofore or hereafter granted retired

pay pursuant to title III of Public Law 810, Eightieth

Congress. . . .’’ (page 39.) (Emphasis supplied.)

One of ‘‘the pay provisions of this proposed bill’’ is the

14

75% retired pay for World War I service provision con-

tained in the exception from repeal of par. 4, Sec. 15 of

the 1942 Act. [Sec. 533 (b) (34) of the draft of H. R.

4591.] In H. R. 5007 the section numbers are changed and

accord with those in the 1949 Act. House Report No. 779

of June 10, 1949, to accompany H. R. 5007, says:

‘“‘The new pay scales shall apply likewise in the

computation of retired pay of Reserve personnel who

qualify for retirement under the Reserve Retirement

Act (Public Law 810, 80th Cong.).’’ (page 8.)

“*See. 512 specifically provides that the new pay

scales shall apply to those heretofore or hereafter

granted retired pay pursuant to the Reserve-Retire-

ment Act of 1948.’’ (page 24.)

These statements taken from House Reports No. 583

and No. 779 show that the Congress intended by Sec. 512

(1) That Reserves benefit by the pay provisions in

the 1949 Act, and

(2) That Reserves benefit by the pay rates in Title

II of the 1949 Act.

(e) The primary authorization in Public Law 810, or any

other general retirement law for that matter, is the change

from active duty to retired status. Retired pay is the per-

quisite resulting from the authorized retired status and

is computed for each individual according to his qualifica-

tions (age, years of service, etc.). Under the more recent

general retirement laws (i.e.: the 1938, 1940, 1946, 1948,

and 1949 Acts), retired pay is calculated by multiplying

the individual’s base pay by 242% per year of accredited

service. But, in addition to general retirement laws ap-

plicable to everyone who can qualify under them, the Con-

gress has, from time to time, passed special retirement laws

granting additional retired pay to those whose qualifica-

tions are over and above the general qualifications for re-

15

tirement. (R. 65-66.) Par. 4, Sec. 15 of the Pay Readjust-

ment Act of 1942, re-enacted by exception from repeal in

Sec. 531 (b) (34) of the Career Compensation Act of 1949,

is just such a special retirement law. The Comptroller

General cogently remarks:

‘‘The sole purpose of the provision of the fourth

paragraph of section 15 was to change the method of

computation of retired pay of officers who had served

prior to November 12, 1918, from that of 21% per cen-

tum of their active duty pay multiplied by the number

of years of service to that of 75 per centum of their

active duty pay without regard to the number of years

of service.’’ (B-74361; 27 Comp. Gen. 781.) (R. 59-

60.)

The principle applicable to Sec. 512 and Sec. 531 (b)

(34) is condensed in 50 Am. Jur. sec. 363 in the following

words:

‘‘Harmonizing Statutes and Parts of Statutes.—

Consistency in statutes is of prime importance, and,

in the absence of a showing to the contrary, all laws

are presumed to be consistent with each other. Where

it is possible to do so, it is the duty of the courts, in

the construction of statutes, to harmonize and recon-

cile laws, and to adopt that construction of a statutory

provision which harmonizes and reconciles it with

other statutory provisions. A construction of a stat-

ute which creates an inconsistency should be avoided

when a reasonable interpretation can be adopted which

will not do violence to the plain words of the act and

will carry out the intention of Congress. These rules

are particularly applicable to statutes passed at or

about the same time, or at the same session of the leg-

islature, since it is not to be presumed that the same

body of men would pass conflicting and incongruous

acts.’’ (Emphasis supplied. )

It is, therefore, submitted that this Sec. 512, noting

16

particularly the words ‘‘in this Act, coupled with the ex-

ception from repeal of the 75% retired pay for World

War I service in Sec. 531 (b) (34), shows conclusively that

Reserve officers with World War I service, who qualify

generally for retirement under Public Law 810, are en-

titled to have their retired pay calculated at 75% of the base

pay rates stated in Title II of the 1949 Act. (R. 61.)

(f) The pertinent parts of the four Acts, 1942, 1946,

1948, and 1949, on the subject of retired pay for Reserve

officers are to be construed in pari materia in order to

resolve the ambiguity, weld the subject into one harmonious

whole, and determine the legal import of par. 4, Sec. 15

of the Pay Readjustment Act of 1942 and its re-enactment

by exception from repeal by Sec. 531 (b) (34) of the Career

Compensation Act of 1949. As Chief Justice Marshall

said:

‘‘Without deciding this question as depending

merely on the original law, it is to be observed that

acts in pari materia are to be construed together as

forming one act. If in a subsequent clause of the

same act provisions are introduced, which show the

sense in which the legislature employed doubtful

phrases previously used, that sense is to be adopted in

construing those phrases. Consequently, if a sub-

sequent act on the same subject affords complete

demonstration of the legislative sense of its own lan-

guage, the rule which has been stated, requiring that

the subsequent should be incorporated into the fore-

going act, is a direction to courts in expounding the

provisions of the law.’’ (Charles Alexander v. Mayor

and Commonalty of Alexandria, 9 U. S. 1, 7; United

States v. Freeman, 44 U. S. 556, 564; Cope v. Cope, 137

U. S. 682, 688; Tiger v. Western Improvement Co., 221

U. S. 286, 309; Great Northern Ry. Co. v. United States,

315 U. S. 262, 277.) (R. 59-64.)

6. Not Ambiguous: (a) If par. 4, Sec. 15 of the Pay Re-

adjustment Act of 1942 is not ambiguous, and the Court of

17

Claims so held in the Carroll case (R. 51), then the Court

erred in deriving its legal import from the incomplete

legislative history.

(b) ‘*The legislative history of this provision, and

the successive alterations of its wording in both Houses

of Congress and in conference, to which we are re-

ferred, cannot affect its interpretation, since the lan-

guage of the act as adopted is clear.’’ (Kuehner v. Irv-

ing Trust Co., 299 U. S. 445, 449.)

(c) ‘*The title of an act and the history leading up

to its adoption, as aids to statutory construction, are

to be resorted to only for the purpose of resolving

doubts as to the meaning of the words used in the act

in case of ambiguity.’’ (Fairport, Painesville & Eastern

Railroad Co. v. Meredith, 292 U. S. 589, 594.)

(d) ‘‘Where the general language of a statute is

broad enough to include a particular subject matter, an

intent to exclude it from the operation of the law must

be definitely expressed.’’ (Choteau v. Burnet, 283

U. S. 691, 696.) (R. 51-56.)

Conclusion

For the foregoing reasons, the Petitioner prays that this

Honorable Court grant this Petition for a Writ of Cer-

tiorari.

Respectfully submitted,

Frank F. Reynoups, Petitioner,

3561 South Stafford Street,

Arlington, Virginia.

INDEX

k Page *

; Opinion below 1

E Jurisdiction 1

F Question presented 2

Statutes involved 2

‘Statement 2

’ Argument ---- 5

Conclusion 15

4 Appendix 16

: CITATIONS

d CASES:

i Berry v. United States, 107 F. Supp. 849 __...-_-_-_-- 5

‘ Heald v. District of Columbia, 254 U.S. 20 _------___--__ 10

3 Posadas v. National City Bank, 296 U.S. 497 _.___-__---_- 10

Proutt’s Estate v. Commissioner of Internal Revenue, 125

: F. 2d 591 11

F United States v. LeBris, 121 U.S. 278 10

United States v. Madigan, 300 U.S. 500 11

STATUTES:

Act of February 21, 1946, 60 Stat. 26 6

g Sec. 6 (34 U.S.C. 410b) 6

a SOO, 0 RI Ras: MORN a ci lines 7

a Armed Forces Reserve Act of 1952, 66 Stat. 481, 495;

ERE ap EER LER a A eID CODER 6

Army and Air Force Vitalization and Retirement Equali-

zation Act of 1948, 62 Stat. 1081, 1087, as amended, 34

US.C., Supp. V, 440h-440q:

Title III

Sec. 302(a) (34 U.S.C. 440i(a)) 12, 16

4 Sec. 302(b) (34 U.S.C. 440i(b)) __- 12, 17

3 Sec.'302(c) (34 U.S.C. 440i(b)) 18

; Sec. 303 (34 U.S.C. 440j) 12, 18

Sec. 305 (34 U.S.C. 4401) 13

Career Compensation Act of 1949, 63 Stat. 802:

Sec. 512 10

Sec. 531(b) (34) 7,8

Sec. 531 (c) 8

li Index Continued

Page

Pay Readjustment Act of 1942, 56 Stat. 359, 368, as

amended, 37 U.S.C. 115

Sec. 15, para. 4 5, 6, 7, 10, 19

MISCELLANEOUS:

91 Cong. Rec. 12464 ________ 6

92 Cong. Rec. 603 _-_--_---_ 6

93 Cong. Rec. 9579 ___------- 14

94 Cong. Rec. 2433 14

94 Cong. Rec. 2485 14

94 Cong. Rec. 2487 bitin 14

94 Cong. Rec. 2490 _ a 14

94 Cong. Rec. 2499-2502 14

95 Cong. Rec. 6578 an 10

95 Cong. Rec. 13196 _____---- 10

House Rep. 816, on H.R. 2744, 80th Cong., Ist Sess.,p.9-. 14

ee Rep. No. 583 on H.R. 4591, 81st. Cong., 1st Sess.,

Be aa ie ree er cae 8, 9

Sena Rep. No. 1543 on H.R. 2744, 80th Cong., 2nd Sess.

Tg, Speiameemnamntrntiinee ct aan eat RVD rnp C 14

Matin Rep. No. 733 on H.R. 5007, 81st Cong., Ist Sess.

DiS sae een Pia 8

Guthe Supreme Court of the Hnited States

October Term, 1953

No. 206

Frank F. Reynoxps, Petitioner

Vv.

THE UNITED STATES

On Petition for a Writ of Certiorari to the United States

Court of Claims

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The opinion of the Court of Claims (R. 111-116)

is reported at 111 F. Supp. 881.

JURISDICTION

The order of the Court of Claims granting the

Government’s motion for summary judgment was

entered on May 5, 1953 (R. 111,116). The petition

for a writ of certiorari was filed on July 27, 1953.

2

The jurisdiction of this Court is invoked under 28

U.S.C. 1255(1).

QUESTION PRESENTED

Whether an officer of the United States Naval

Reserve who qualifies for retired pay under the

provisions of Title III of the Army and Air Force

Vitalization and Retirement Equalization Act of

1948, as amended, 34 U.S.C., Supp. V, 440h-440q,

is entitled to have his retired pay computed under

the provisions of 37 U.S.C. 115.

STATUTES INVOLVED

The pertinent portions of Title III of the Army

and Air Force Vitalization and Retirement Equal-

ization Act of 1948 and 37 U.S.C. 115 are set forth

in the Appendix, txfra, pp. 16-19.

STATEMENT

Petitioner, an officer of the United States Naval

Reserve who qualified for retired pay under the

provisions of Title III of the Army and Air Force

Vitalization and Retirement Equalization Act of

1948, brought this suit to recover the difference

between the retired pay computed under the pro-

visions of that Act and the greater amount of re-

tired pay to which he contends he is entitled under

37 U.S.C, 115.

On June 18, 1907, petitioner was appointed a

Midshipman in the United States Navy, and on

March 7, 1912, he was commissioned an Ensign

AH MOEA RRS A REPT ot —

=

3

(R. 2). On July 7, 1915, he resigned a commission

in the rank of Lieutenant (j.g.), to which he had

been promoted in the interim (R. 2). On March 27,

1917, petitioner was commissioned a Lieutenant

(j.g.) in the United States Navy, Fleet Reserve ; he

served continuously on active duty from April 25,

1917, to August 29, 1919, during which time he re-

ceived promotions up to the rank of Lieutenant

Commander (R. 2). On August 29, 1919, he was

placed on inactive duty and thereafter he contin-

ued in that status until his enrollment in the Fleet

Reserve expired on April 17, 1921 (R. 2). About

three years later petitioner was commissioned a

Lieutenant Commander in the United States Naval

Reserve for a four year enrollment which expired

on January 3, 1929 (R.2). More than eleven years

later, on August 9, 1940, petitioner was again com-

missioned a Lieutenant Commander in the United

States Naval Reserve, which rank he held until

November 1, 1950, actually serving on active duty

during the period from August 23, 1940, to July 2,

1946 (R. 2-3).

Pursuant to his submission of qualifications for

the benefits of Title ITI of the Army and Air Force

Vitalization and Retirement Equalization Act of

1948 and to his request for transfer to the Naval

Reserve Retired List, petitioner was transferred

to that list and began to receive retired pay at the

rate of $157.03 per month, effective November 1,

1950 (R.3). This retired pay was computed under

4

the point system established by Sections 302 and

303 of Title III of that Act, 34 U.S.C. 440i and

440], and amounted to 32.41 percent of the active

duty base and longevity pay which he would have

been receiving had he been serving on active duty

as a Lieutenant Commander at the time he was

granted such pay (R.3). He continued to receive

such retired pay until March 6, 1951, when he be-

came temporarily employed as a civilian with the

Government. During that period of approxi-

mately five months he received a total of $654.29.

(R. 3-4.)

On March 27, 1952, petitioner filed a claim for

$859.79 with the Secretary of the Navy. This was

the difference between the amount of retired pay

actually received by him during the five month

period and the amount to which he contended he

was entitled under 37 U.S.C. 115, if his retired pay

were computed at 75 percent of the active duty

base pay of a Lieutenant Commander. (R. 4.) Pe-

titioner’s claim was rejected by the Secretary of

the Navy on April 21, 1952 (R. 4), and he then

instituted this suit in the Court of Claims.

There being no issues of fact, both parties filed

motions for summary judgment (R. 9, 69). On

May 5, 1953, the court entered an order denying

petitioner’s motion for summary judgment and

granting the Government’s motion (R. 116). The

court based its decision upon the conclusion that

the provisions of 37 U.S.C. 115, upon which peti-

5

tioner relies, originally applied only to regular of-

ficers of the armed services, and that nothing in

any subsequent legislation had made it applicable

to reserve officers (R. 113-116). Accordingly, the

Court of Claims found it unnecessary to consider

the further question whether Title III of the Army

and Air Force Vitalization and Retirement Equal-

ization Act of 1948 requires that retired pay be

computed only in accordance with the provisions

of that statute and no other (R. 116).

ARGUMENT

Although petitioner, as a reserve officer, became

qualified for retired pay under the provisions of

the Army and Air Force Vitalization and Retire-

ment Equalization Act of 1948, he claims more than

twice the amount of pay allowable under that Act.

The basis of his argument is that, by implication,

the Pay Readjustment Act of 1942, 56 Stat. 359,

was amended so as to apply to reserve officers who

possessed the qualifications established by the 1948

Act. The fourth paragraph of Section 15 of the

1942 Act is now found in 37 U.S.C. 115, Appendix,

infra, p. 19, and makes provision for retired pay

equal to 75 percent of the active duty pay for cer-

tain officers who served in military or naval forces

prior to November 12, 1918. The Court of Claims

has demonstrated beyond cavil (Berry v. United

States, 107 F. Supp. 849), and petitioner concedes

(Pet. 10; see also Pet. 12) that 37 U.S.C. 115 as

originally enacted had no application to reserve

REIT ELLIE

6

officers. Petitioner contends, however, that the

meaning which 37 U.S.C. 115 had in 1942 was

changed by implication through the adoption of

subsequent legislation, such as the Act of ¥ebru-

ary 21, 1946, 60 Stat. 26, the Army and Air Force

Vitalization and Retirement Equalization Act of

1948, 62 Stat. 1081, 1087, and particularly the

Career Compensation Act of 1949, 63 Stat. 802

(Pet, 10, 12-16). *

G? Inasmuch as none of the legislation relied

upon by petitioner specifically provides that 37

U.S.C. 115 shall be applicable to reserve officers,

petitioner is forced to rely upon inferential argu-

ments. But not one of these arguments has merit.

(a) The Act of February 21, 1946 (Pet. 12),

was, as its preamble shows, directed primarily to-

ward providing a means for compulsory retire-

ment of high ranking regular officers in the Navy,

Marine Corps, and Coast Guard. 60 Stat. 26.2 Sec-

tion 6 of the Act, 34 U.S.C. 410b, does make limited

provision for the retirement of reserve officers of

the Navy, Marine Corps, or Coast Guard who have

1 Petitioner also mentions the provisions in Section 250 of

the Armed Forces Reserve Act of 1952, 66 Stat. 481, 495,

that ‘‘There shall be no discrimination between and among

members of the Regular and Reserve components in the ad-

ministration of laws applicable to both Regulars and Re-

serves.’’ The applicability of this section turns upon the very

question here at issue, t.e., whether 37 U.S.C. 115 applies

‘‘to both Regulars and Reserves.’’

?See the statements of Representative Vinson during the

debates on the Act to the effect that it had no general appli-

cation to reserves. 91 Cong. Rec. 12464; 92 Cong. Ree. 603.

7

completed over 20 years of active duty—a quali-

fication which petitioner cannot satisfy. Signifi-

cantly, Section 7, 34 U.S.C. 410e, establishes as the

maximum pay allowable those reserves who can

meet this much more stringent requirement the

same 75 percent of active duty pay which petitioner

claims under the less exacting requirements of

Title III of the Army and Air Force Vitalization

and Retirement Equalization Act of 1948.

(b) While rejecting the specific provisions for

computation of retired pay in Title III of the Act

of 1948 as inadequate, petitioner also argues that

this Act constituted an implied amendment of the

1942 Act (Pet. 10, 12). However, both the speci-

fic provisions of Title ITI and its legislative history

negative any such suggestion. On the contrary,

as demonstrated infra, pp. i/-is, they show that any

person whose qualifications for retired pay are

based solely on Title IIT is entitled only to pay

computed in accordance with the provisions of

that Title.

(ec) It is primarily on the Career Compensa-

tion Act of 1949 that petitioner relies to estab-

lish an amendment by implication of 37 U.S.C.

115 making it applicable to reserve officers.

The only specific reference in the Career Com-

pensation Act to Section 15 of the Pay Readjust-

ment Act of 1942, from which 37 U.S.C. 115 is

derived, is contained in Section 531(b) (34) of that

Act, 63 Stat. 839. Section 531(b) lists the acts and

ae sae eed ane

8

parts of acts which are repealed, the thirty fourth

act in the list of forty one * being:

(34) The Act of June 16, 1942 (56 Stat. 359),

as amended, except section 12 of such Act, as

amended, except that part of paragraph 1 of

section 10 of such Act, as amended, which re-

lates to enlisted personnel in a travel status,

and except paragraph 4 of section 15 of such

Act, as amended.

This, then, is the language from which petitioner

derives an implied amendment of 37 U.S.C. 115 to

make it applicable to reserve officers. In effect, he

contends (Pet. 12, 16) that the exemption from

repeal constituted not only a reenactment, but a re-

enactment with a changed meaning.

However, as the Court of Claims demonstrated

(R. 114-116), neither the legislative history of the

Career Compensation Act of 1949 nor the ordinary

canons of construction will support petitioner’s

contention that a changed meaning was thereby

given 37 U.S.C, 115. The reports of both the House

and the Senate committees on the bills which be-

came the Career Compensation Act of 1949 make it

clear that that Act did not attempt to modify or

revise the existing retirement laws. House Rep.

No. 583 on H.R. 4591, 81st Cong., Ist Sess., p. 4;

Senate Rep. No. 733 on H.R. 5007, 81st Cong., 1st

3 Section 531(¢) lists an additional twenty acts which are

repealed in whole or in part.

9

Sess., p. 2. As indicated by those reports, the

Career Compensation Act of 1949 had its origins

in the recommendations of the Hook Commission,

a committee appointed by the Secretary of Defense

to study the problem of establishing a uniform,

consistent, and cohesive plan governing the career

compensation of persons in the uniformed services.

The recommendations of the Hook Commission

included changes in the field of non-disability re-

tirement, but, as explained in House Report 583,

supra, p. 4:

While the committee has accepted many of

the recommendations of the Hook Commis-

sion, it has not accepted them all, and, in some

instances, fundamental changes were made in

the initial legislative draft. Originally the

proposed act contained revisions of voluntary

and involuntary retirement laws. The com-

mittee was of the opinion that the subject of

voluntary and involuntary retirement was so

complex, so vast, and would have such far-

reaching effects upon the services that an at-

tempt to revise or rewrite these laws should

be held in abeyance until some future date,

when it could be made as a separate study.

Furthermore, it should be remembered that

the Congress has within the past 3 years care-

fully considered all of the voluntary and in-

voluntary retirement laws, as indicated by

Public Law 305 of the Seventy-ninth Congress

10

and Public Laws 381 and 810 of the Eightieth

Congress.

Substantially the same explanation was given in

both the House and the Senate discussions of the

bills by members particularly charged with re-

sponsibility for the legislation.* Accordingly, it

is clear that the exception from repeal of the

fourth paragraph of Section 15 of the Pay Re-

adjustment Act of 1942 was made, not to make

that section applicable to reserves, but in accord-

ance with the determination that no changes in

the existing nondisability retirement systems

would be made by the Career Compensation Act

of 1949.°

Finally, it may be noted that, contrary to peti-

tioner’s contention, the usual canon of construc-

tion is that reenacted sections of a statute are to

be given the same meaning they had in the orig-

inal statute unless a contrary intention is plainly

manifested. United States v. LeBris, 121 U.S.

278, 280; Heald v. District of Columbia, 254 U.S.

20, 23; Posadas v. National City Bank, 296 U.S.

4See the statement of Representative Vinson at 95 Cong.

Ree. 6578, quoted in the opinion of the Court of Claims at

R. 115, and the statement of Senator Chapman at 95 Cong.

Ree. 13196.

5 Section 512 of the Act, on which petitioner places great

reliance (Pet. 13-14), obviously does no more than make the

new pay scales of the Act applicable to persons retired under

Title III of the Army and Air Force Vitalization and Re-

tirement Equalization Act. It in no way purports to change

the method of computing the percentage of active duty pay

to which a person meeting requirements of that Act is entitled.

WES Ce te mee biti RT ee See REE OE TT ne, a ee aE iis till

11

497, 506.° Just as repeals by implication are not

favored, amendment or modification by implica-

tion is not favored and should not be assumed

unless clearly required. United States v. Madigan,

300 U.S. 500, 506; Proutt’s Estate v. Commis-

sioner of Internal Revenue, 125 F. 2d 591, 595

(C.A. 6). In particular would this caution seem

applicable where the effect of the implied amend-

ment would not only more than double the retired

pay of petitioner and the thousands of reserve

officers in comparable circumstances (see Pet.

4)—thus imposing a great financial burden on the

public treasury—but, as we shall show, would also

present an anomalous departure from a carefully

devised statutory system by which both eligibility

for and the amount of retired pay of reserves are

closely integrated in furtherance of the objec-

tive of obtaining active participation of reserves

in training programs.

[2,) Because the Court of Claims correctly found

that 37 U.S.C. 115 did not apply to reserve officers,

it found it unnecessary to determine whether one

whose qualifications for retired pay rested solely

on Title III of the Army and Air Force Vitaliza-

6 Petitioner’s reliance on cases holding that statutes in pari

materia should be construed so as to create a harmonious body

of law is based on the misapprehension that the service of

reserves, much or most of which may have been on inactive

duty, should for all purposes be considered absolutely com-

parable with the service of regular officers, who usually de-

vote many years to active service in the armed forces.

_ —_— SESE LF LILI ELI AIS EHH US II ROVE AN ANESEE AR ARIPH BAN DR RIE

ase ae

12

tion and Retirement Equalization Act of 1948

could receive retired pay computed, not as pro-

vided by that Act, but by the provisions of 37

U.S.C. 115. It seems clear, however, that one

whose only qualifications for retired pay are de-

rived from Title III of that Act may draw only

the retired pay provided for by that Act, and that

the result reached by the Court of Claims may

equally well be sustained on this alternative

ground. Indeed, any other result would be dis-

ruptive of the statutory system established by

Title III and destructive of the objectives of Con-

gress in adopting that system.

Section 302(a) of Title III, 34 U.S.C., Supp. V,

440i(a) (Appendix, infra, pp. 16-17), provides

generally that any person who attains the age of

sixty, having completed an aggregate of twenty or

more years of satisfactory service in the reserve

components of the Army, Air Force, or Navy,

shall be entitled to retired pay. Section 302(b),

34 U.S.C., Supp. V, 440i(b) (Appendix, infra, pp.

17-18), establishes a system, based on points

awarded for days of active duty, attendance at

drills, and membership in reserve components,

for determining what constitutes a year of satis-

factory service after July 1, 1949. Section 303,

34 U.S.C., Supp. V, 440j (Appendix, infra, pp.

18-19), by its own terms appears to be an exclusive

provision for computing the pay which ‘‘Any

person granted retired pay pursuant to the pro-

13

visions of this title shall receive * * *.’” Thus,

an integrated system for determining both eligi-

bility for and the amount of retired pay has been

established by Title III. Certainly, the balance

of this complete and carefully devised system

should not be disturbed by the interjection of pro-

visions from other statutes unless specifically re-

quired. Indeed, Section 305, 34 U.S.C., Supp. V,

4401, expressly provides that Title ITI ‘‘* * * shall

not be applicable to any officer * * * who, prior to

or subsequent to [June 29, 1948,] is entitled to

receive, or is receiving under any other provision

of law, retired pay for military or naval service

* & * Hoe

That Congress intended to set up a retirement

pay system for reserves entirely distinct from

that previously applicable to the regular members

of the armed forces also appears from the legis-

lative history of Title III of the Army and Air

Force Vitalization and Retirement Equalization

Act of 1948. The reports of both the House and

the Senate on the bill which became that Act refer

to the provisions in Title III as establishing ‘‘a

new policy” or ‘‘a new principle” governing the

* That method allows retired pay at the rate of 214 percent

of the active duty pay which the officer would have been re-

ceiving if on active duty in the highest rank held by him

multiplied by a number of years equal to the sum of his ac-

tual active duty service and an allowance of one day for each

point earned by attendance at drills or membership in a

reserve component. For each year of service prior to July 1,

1949, other than active duty service, an allowance of 50 days

is made.

14

retirement of members of reserve components.

H. Rep. No. 816, on H.R. 2744, 80th Cong., Ist

Sess., p. 9; S. Rep. No. 1548, on H.R. 2744, 80th

Cong., 2nd Sess., p. 9. Similar references to the

‘‘new policy’ of providing non-disability retire-

ment benefits for reserves were made during the

Congressional debates on the bill. See e.g., 93 Cong.

Rece., 9579; 94 Cong. Rec. 2433, 2490. The reason

for establishing this new policy was explained as

““* * * to provide an inducement to members of

Reserve components to remain active in the Re-

serves over a long period of time, thereby pro-

viding a better trained and more ready Reserve to

meet the needs of our national-defense structure.”’

Senate Rep. No. 1543, supra, p. 9; see also House

Rep. No. 816, supra, p. 9. And similar explana-

tions that the bill was designed to meet the de-

fense needs of the nation were again given in

Congressional debates. See, e.g., 94 Cong. Ree.

2433, 2485, 2487, 2490. Thus, it appears that Con-

gress was legislating to meet the future defense

needs of the country and not to provide bonuses

or gratuities for past services, except insofar as

necessary to avoid discrimination against those

who had rendered services in the past. Certainly,

there was no intention to discriminate in favor of

those like petitioner, whose claim for special

treatment is based upon service in World War I,

by allowing them more than twice the amount of

retired pay which might be earned through equiv-

alent service after the passage of the Act by a

15

veteran of World War II whose continued par-

ticipation in Reserve affairs constituted the pri-

mary objective of the Act. Indeed, Congress

specifically rejected a series of amendments

designed to give the same benefit to veterans of

the Spanish-American War and World War I as

that given by the bill to World War II officers and

enlisted personnel of retirement in the highest

grade held during the war. 94 Cong. Ree. 2499-

2502. Congress thereby indicated that it did not

consider what might be called a bonus or reward

for past services of a limited group of reserves as

an objective of Title III, nor as supplementary to

any of the objectives which led to the establish-

ment of the first comprehensive non-disability re-

tirement system for reserves.

CONCLUSION

The decision below is clearly correct, and, for

the reasons stated above, it is respectfully sub-

mitted that the petition for a writ of certiorari

should be denied.

Rosert L. Strern,

Acting Solicitor General.

WarrEN E. Burcer,

Assistant Attorney General.

SAMUEL D. Siape,

CorRNELIUS J. PECK,

Attorneys.

SEPTEMBER, 1953

16

APPENDIX

Section 302, Title III, Army and Air Force

Vitalization and Retirement Equalization Act of

1948, as amended, 34 U.S.C., Supp. V, 440i, pro-

vides, in pertinent part:

(a) Any person who, upon attaining or

having attained the age of sixty years, has

performed satisfactory Federal service as de-

fined in this section in the status of a com-

missioned officer, warrant officer, flight officer,

or enlisted person in the Army of the United

States or the Air Force of the United States,

including the respective reserve components

thereof, and also including the federally

recognized National Guard prior to 1933, the

United States Navy including the reserve

components thereof, the United States

Marine Corps, including the reserve com-

ponents thereof, or the United States Coast

Guard, including the reserve components

thereof, and has completed an aggregate of

twenty or more years of such satisfactory

service in any or all of the aforesaid services,

shall, upon application therefor, be granted

retired pay: Provided, That for the purposes

of this section the last eight years of qualify-

ing service for retirement under this title

must have been service as a member of

a reserve component except that any member

of a reserve component of the Air Force of

the United States shall be entitled to in-

17

clude service as a member of a reserve

component of the Army of the United

States performed on or prior to July 26,

1949: Provided further, That for the pur-

poses of this subsection, simultaneous service

as a member of a reserve component and as

a member of the Regular Army, Navy, Air

Force, or Marine Corps, shall not be deemed

to be service in a reserve component: Pro-

vided further, That no person who was a

member of a reserve component on or before

August 15, 1945, shall be eligible for retire-

ment benefits under this title unless he per-

formed active Federal service during any

portion of either of the two periods beginning

April 6, 1917, and ending November 11, 1918,

and beginning September 9, 1940, and ending

December 31, 1946.

(b) Subsequent to the enactment of this

Act [July 1, 1949], a year of satisfactory

Federal service, for the purposes of this

section only, shall consist of any year in

which a person is credited with a minimum

of fifty points, which points shall be credited

on the following basis:

(1) One point for each day of active Fed-

eral. service ;

(2) One point for each drill or period of

equivalent instruction, such drills and periods

of equivalent instruction to be restricted to

those prescribed and authorized by the Sec-

retary of the respective service for the year

18

concerned, and to conform to the require-

ments prescribed by other provisions of law;

(3) Fifteen points for membership in a re-

serve component for each year of Federal

service other than active Federal service.

(c) Each year of service as a member of a

reserve component prior to the enactment of

this Act [June 29, 1948], shall be deemed to

be a year of satisfactory Federal service for

the purposes of this section, subject to the

provisions of subsection (e) of section 306 of

this Act.

Section 303, Title III, Army and Air Force

Vitalization and Retirement Equalization Act of

1948, as amended, 34 U.S.C., Supp. V, 440),

provides:

Any person granted retired pay pursuant

to the provisions of this title shall receive

such pay at an annual rate equal to 214 per

centum of the active duty annual base and

longevity pay which he would receive if serv-

ing, at the time granted such pay, on active

duty in the highest grade, temporary or per-

manent, satisfactorily held by him during his

entire period of service, multiplied by a num-

ber equal to the number of years and any

fraction thereof (on the basis of three hun-

dred and sixty days per year) which shall

consist of the sum of the following:

(i) All periods of active Federal service;

mes ESI al

19

(ii) One day for each point credited pur-

suant to subparagraphs (2) and (3) of sub-

section (b) of section 302 of this Act, but no

more than sixty days shall be credited on this

basis in any one year for the purposes of this

section:

Provided, That no person shall be entitled to

receive such retired pay at an annual rate in

excess of 75 per centum of said active duty

pay: Provided further, That for each year of

Federal service, other than active Federal

service, performed as a member of a reserve

component prior to the date of enactment of

this Act [July 1, 1949] and credited in accord-

ance with subsection (c) of section 302 of this

title, such member shall be credited with fifty

days for each of such years, for the purposes

of this section.

Paragraph 4, Section 15 of the Pay Readjust-

ment Act of 1942, as amended, 37 U.S.C. 115,

provides:

The retired pay of any officer of the [Army,

Navy, Marine Corps, Coast Guard, Coast and

Geodetic Survey, or Public Health Service]

who served in any capacity as a member of

the military or naval forces of the United

States prior to November 12, 1918, hereafter

retired under any provision of law, shall, un-

less such officer is entitled to retired pay of a

higher grade, be 75 per centum of his active

duty pay at the time of his retirement.

YU. S. GOVERNMENT PRINTING OFFICE 1953——268794/P.0.243

INDEX

Sussect INpEx

Ry oe Perr pe 1, 2

Comparative Retirement Qualifications .............. 6, 7

Comptroller General’s decisions .................055 2, 5

NL Gal's ox wa eve COREA Se RN Ribas bdaksssees renee) 7, 8

ETE Eagar mney ts sre eats Wane era 6

Ne eS ie ee Ev enlg wR RGR 2,8

SEN ck eee ea bees eh cD RCC ees ceneeus 1

NN RD is ios Wiha bis 64 ake noe oN aoe RNS 2,8

oe a icy Le sas ad yew AS CAUSA calkne ewes 3

ae raiG pore eta awe waa aac Rube 2, 3

Seventy-five Per Cent Retired Pay .................. 4,5

I COON 66.5 c0H-65 o ss so 0s os cee cee enen 2,8

STATUTES

1938 Act: P.L. 703, 75th Congress, June 23, 1938; ch.

598, 52 gS RRS CSE 2, 3, 5

1940 Act: P.L. 612, 76th Congress, June 13, 1940; ch.

344, 54 ia ios os, Ses ecineie: 5

1942 Act: PL. 607, 77th Congress, June 16, 1942; Pay

Readjustment Act of 1942; ch. 413, 56 Stat.

a ae ar ar eat ey weer ecatn eer reer” 1, 2, 3, 4,

5, 6, 8

1946 Act: P.L. 305, 79th Congress, February 21, 1946;

ch. 34, 60 Stat. Th. gpk Aas Ge germrre® 2, 3, 4,6,7

1948 Act: P.L. 810, 80th Congress, June 29, 1948;

. Army and Air Force Vitalization and Re-

tirement Equalization Act of 1948; ch. 708,

REBAR ORS anne S° 2, 3, 4, 5, 6, 7

1949 Act: P.L. 351, 81st Congress, October 12, 1949;

Career Compensation Act of 1949; ch. 681,

Oe ts NN a cise Lei hice ihasinean 2,3

Hupreme Court of the Anited States

Octoser Term, 1953

No. 206

Frank F. Reynotps, Petitioner

Vs.

Tue Unirep States

REPLY BRIEF

Preamble: ‘‘There is no dispute as to the facts * * *’’

(R. 85, 111). The question presented (R. 21-22, Pet. 2) is

strictly a legal one on the subject of 75% retired pay of

Reserve officers with World War I service and, for its

solution, requires the construction of the statute involved

(R. 24, Pet. 2).

Amendment by Implication

1. The principle counter-Argument advanced by the

Brief in Opposition rests on the erroneous premise that

the Petitioner bases his entitlement to 75% retired pay

under par. 4, Sec. 15 of the Pay Readjustment Act of 1942

on amendment by implication (Br. Op. 5, 6, 7, 8, 11).

Nowhere in the entire record does the Petitioner mention

this inferential rule of statutory construction. The

g pi 5 pipes aioe:

LAP PLEAD VOI TINA a

2

affirmative solution to the question presented (R. 21-22,

Pet. 2) is placed squarely on the applicable, well-

established doctrines of legislative notice and in pari.

materia (R. 59-64, Pet. 16).

2. To present a complete review of the subject, the

Petitioner’s contribution to the record discusses it in

several aspects—i.e.: Legislative History (R. 28-39, Pet.

7-9), Comptroller General’s decisions (R. 39-51),

Statutory Construction (R. 51-64, Pet. 11-17). The con-

clusion is that par. 4, Sec. 15 of the 1942 Act became

applicable to retired Reserve officers with the enactment

of a law (the 1946 Act) under which they could qualify

generally for non-disability retirement (Pet. 5-7), and

that its re-enactment by exception from repeal in the

Career Compensation Act of 1949 (R. 26-27, 58, 98-100, Pet.

5, 7-10), at a time when it could only apply to Reserve

officers with the additional special qualification of World

War I service, re-affirms the policy of the Congress to

eliminate any discrimination between Regulars and Re-

serves (Pet. 9,12). It is respectfully submitted that this

conclusion squares with the doctrines of legislative notice

and in pari materia and with the Decisions of this Court,

and dves not involve amendment by implication.

Pay System

3. The second counter-Argument advanced by the Brief

in Opposition is ‘‘That Congress intended to set up a re-

tirement pay system for reserves entirely distinct from

that previously applicable to the regular members of the

armed forces * * *’’ (Br. Op. 13). This contention was first

used by the Comptroller General in his opinion B-94125

(R. 48-49). Although some may have so regarded it,

actually there is nothing separate and distinct as between

Regulars and Reserves in the 1948 Act (R. 100-102). Acts

on the same basic principle (equal retirement benefits for

both Regular and Reserve officers), but of limited applica-

tion, were enacted in 1938 (R. 34, Pet. 8) and in 1946

gee

3

(R. 27, 60, Pet. 8). The 1948 Act was one more step in

the non-discrimination policy of the Congress and enlarged

the scope of non-disability retirement to include both

officers and enlisted personnel of the Armed Forces

generally. The only new feature of the 1948 Act is the

provision by which Reserves on inactive duty, instead of

‘‘marking time’’ between wars, can earn ‘‘points’’ by par-

ticipation in training exercises and other professional

activities, which are translated into equivalent years of

accredited service.

Pay Formula

4. The Brief in Opposition makes a point that the 21%4%

per year retired pay formula in the 1948 Act is exclusive

(Br. Op. 12, 18). On the contrary, all the recent general

non-disability retirement Acts contain the same phrase-

ology, or words of similar import (Pet. 14). For example:

‘‘Officers * * * shall be placed on the retired list

* * * with retired pay at the rate of 214 per centum

7 :) * ete.’”’ Computable maximum 75%. (1938

Act.

‘“‘The annual pay of a retired member * * * shall

be 3 per centum * * * ete.’’ Computable maximum

75%. (1942 Act.) (Note: This Act specifies varying

percentages from 2% to 4.)

‘‘Officers retired pursuant to the foregoing sections of

this Act shall receive retired pay at the rate of 2%

per centum of his active duty pay * * * ete.’? Com-

putable maximum 75%. (1946 Act.)

‘* Any person granted retired pay * * * shall receive

such pay at an annual rate equal to 2% per centum

* * * ete.”? Computable maximum 75%. (1948 Act.)

‘s# * * shall be entitled to receive retired pay * * *

computed 7 one of the following methods: (a)

0.0 Poe (h) *-*. * ie eet eas 7 Me”

Computable maximum 75%. (1949 Act.)

4

5. It is beyond dispute, therefore, that the 214% per

year formula, with 75% computable maximum, has been

the standard rate of retired pay for at least 15 years and is

not unique or exclusive with the 1948 Act. These formulae

are used to calculate the retired pay of those whose

general qualifications satisfy the requirements of the

several Acts.

Seventy-five Per Cent Retired Pay

6. The Brief in Opposition confuses (a) the computable

maximum 75% retired pay (30 years @ 214%), which is

the limit in all recent general retirement Acts, and (b) the

fixed 75% retired pay for World War I service under par.

4, Sec. 15 of the 1942 Act (Br. Op. 6-7).

7. It assumes that it is more difficult to qualify for re-

tirement under the 1946 Act than under the 1948 Act, and

then says—

‘‘Significantly, See. 7, 34 U.S.C. 410¢e (1946 Act),

establishes as the maximum pay allowable those

reserves who can meet this much more stringent re-

quirement the same 75 percent of active duty pay

which petitioner claims under the less exacting re-

quirements of’? (the 1948 Act). (Br. Op. 7.)

(Parentheses and italics supplied.)

This statement is misleading. Actually under both the

1946 and the 1948 Acts the retired pay for one possessing

only the general qualifications for retirement is computed

by the same formula—21%4% per year with the computable

maximum of 75% for 30 or more years service. The

Petitioner does not claim the 75% computable maximum

to which the Brief in Opposition refers, but the fixed 75%

allowed under the 1942 Act to those who have the special

qualification of World War I service.

8. The Court of Claims in its decision, after concluding

that World War I Reserve officers who retire under the

1948 Act are not entitled to the fixed 75% retired pay

allowed by the 1942 Act, found it

PNA OT MTL AED PM. APPR ARM IR POEM CS pt oN Ye SE oN

4)

‘‘unnecessary to decide whether retirement under the

provisions of Title III of the Army and Air Force

Vitalization and Retirement Act of 1948 requires that

the retired pay received be computed in accord with

that statute and not under any other.’’ (R. 116.)

That is to say, the Court of Claims did not decide whether

the 214% per year formula in the 1948 Act is exclusive

both as to Regulars and Reserves. But, the Brief in

Opposition goes beyond the Court of Claims and makes

this decision by saying

‘‘It seems clear, however, that one whose only quali-

fications for retired pay are derived from Title III of

that Act may draw only the retired pay provided for

by that Act, and that the result reached by the Court of

Claims may equally well be sustained on this alterna-

tive ground.”’ (Br. Op. 12.)

The Brief in Opposition fails to distinguish between (a)

general qualifications for retirement, and (b) special

qualifications for increased retired pay. The above-quoted

statement is correct with respect to one who possesses

only the general qualifications for retirement. Naturally,

his retired pay would be computed by the 214% per year

formula stated in the 1948 Act. By the same token, the

statement is also correct as to a Regular officer who

possesses only the general qualifications for retirement

under the 1938 Act, the 1940 Act, or the 1948 Act. His re-

tired pay would, per force, be computed by the 214% per

year formula in those Acts. But, a retired Regular or

Reserve officer with World War I service has dual quali-

fications: (1) general qualifications to satisfy the primary

requirements for retirement under the Act applicable to

him, and (2) the additional special qualification of World

War I service to satisfy the requirement of the 1942 Act;

the latter, as the Comptroller General indicated (R. 59-60),

being complementary to the general retirement laws.

PLINY ATM IT BAN ef Ys TELE EER) BN en ASHORE TN YO TT ER OUT GR 2 RR IDR CRN

6

Miscellaneous

9. The Brief in Opposition comments on two points

(a) Cost (Br. Op. 11, 14), and

(b) Comparative retirements qualifications (Br. Op. 7),

which are legislative and administrative subjects, not legal.

However, since they are in the record, they must need be

disposed of.

(a) Cost: The Brief in Opposition, by proportional

comparison (Br. Op. 5, 11, 14), attempts to create the im-

pression that the Petitioner’s claim would ‘‘impose a great

financial burden on the public treasury’’ (Br. Op. 11). The

answer to that statement is—first, legal rights are not

measured in dollars and cents; second, the cost is not ex-

cessive and would be of relatively short duration. Because

of the present age of World War I Reserve officers, in a

few years par. 4, Sec. 15 of the 1942 Act will become

obsolete (R. 64-65).

(b) Comparative Retirement Qualifications: (i) The

primary qualifications which one must have to earn non-

disability retirement is a legislative matter for the Con-

gress to decide. The Brief in Opposition missed the point

entirely in its comparison of the ‘‘more stringent (?)

requirement”? of P.L. 305 (the 1946 Act) with those of

P.L. 810 (the 1948 Act) (Br. Op. 6-7). P.L. 305 requires

‘more than twenty years of active service’, P.L. 810 re-

quires ‘‘twenty or more years of such satisfactory service”’

(R. 27-28). Both Regular and Reserve officers can retire

under both Acts, but in spite of the alleged ‘‘more stringent

requirement’’, Reserve officers with World War I service

who retire under P.L. 305 (the 1946 Act) are also denied

the fixed 75% retired pay provided by par. 4, See. 15 of the

1942 Act.

(ii) ‘‘Satisfactory service’, as defined in P.L. 810

(1948 Act), consists of (1) active duty and (2) participa-

7

tion in prescribed training, drills, ete., during inactive duty.

On one extreme, it is possible for a Reserve to qualify for

retirement under P.L. 810 by having served twenty years

on active duty; and, on the other extreme, it is possible

for a Reserve to qualify for retirement under P.L. 810 by

having earned a computable twenty years of satisfactory

service by participating in prescribed training, drills, ete.

Between these two extremes, innumerable combinations of

both active and inactive duty can be used to complete

‘‘twenty or more years of such satisfactory service’’.

(iii) To say that one general retirement law has more

stringent requirements than another, especially when the

reward is the same, is to charge the Congress with passing

discriminatory legislation. As for retired pay, it makes

no difference whether a Reserve officer qualifies generally

under P.L. 305 or P.L. 810, it is figured by the same 214%

per year formula in either case. In the matter of qualifica-

tions, one g2neral retirement law balances as well as can

be expected with another law on the same subject. For

example: P.L. 305 calls for twenty years of active duty

and allows service school time to be counted in the total.

P.L. 810 calls for twenty years of satisfactory service

(active and inactive duty) but does not allow credit for

service school time. Speaking of the demands on one’s

time to participate in inactive duty training, Colonel Maas

said:

**Those who voluntarily take time out of their family

life, who deprive themselves of a part of their

economic and social life to ——s themselves, year

after year, in order not only to be available, but to be

capable of defending this Nation, make an inordinate

sacrifice.’? (R. 107-108.)

Conclusion

10. It is submitted that the Brief in Opposition does not

successfully controvert the Petition on any of the follow-

ing points:

sina a SRG, NT ee RT

8

(a) The importance of the case.

(b) The applicability of par. 4, Sec. 15 of the Pay

Readjustment Act of 1942 to retired Reserve

officers with World War I service.

(c) The lack of jurisdiction in the United States Court

of Claims as to the second proposition in the

Berry case.

(d) The applicable rules of Statutory Construction

(legislative notice and in pari materia).

(e) The applicable decisions of the Supreme Court of

the United States.

Respectfully,

Frank F. Reynoups, Petitioner,

3561 South Stafford Street,

Arlington, Virginia.

CRNA eA Tere Rt UR HMR AR HOPES AN RINE WN ILI AMR RARE os INL: DE

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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