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
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