Petition for Writ of Certiorari — United States v. Tanner

waguestion presented _.-.-_.-......-.-.-.---.--<..-

ERE ERE

1. Administrative proceedings prior to respond-

Mr COUR; oS 8 os ee cc

2. Judicial proceedings_-----_........-.---.--

sons for granting the writs_.__..........-..---

Conclusion EPR epSe AES SSMS gy Map eae ES Ps OS,

CITATIONS

Paul v. United States, 125 F. Supp. 240_______-

Tanner v. United States, 125 F. Supp. 240____.-

» Statutes:

Act of June 3, 1916, 39 Stat. 166, 203, 32 U.S. C.

1946 Ed. 75:

WEED ME, BORG. ore cak ccadunacenmseonamenen

Act of July 1, 1947, 61 Stat. 238, 10 U.S. C. 1946

Re SE eS Ao

Act of June 29, 1948, Title IIT, 62 Stat. 1081,

1087, 10 U. S. C. 1036 ef seg__....-----.--.--

Economy Act of 1932, 47 Stat. 406, 5 U.S.C. 59a:

PINE BEM ve acne pede

Naval Reserve Act of 1938, 52 Stat. 1175, 1177,

34 U.S. C. 1946 Kd. 853g:

WINE eon nn ca cutntcackeaseceomnees

353016—55——_1 (D

RSPR

OSOAIADan

—_—

os

OU INS. Sl Sc accdwundacwheasbetn 4,7,8,14

Miscellaneous: Page

I i as mines 10

eB Ren Sc dank an oneccacscecnics 13

NO cc ceniweneeuns 15

House Report 483, 80th Cong., Ist Sess. :

NES ES SRE CRE CS a ee 12

H. R. 1845, 80th Cong., Ist Sess___.....__.__.- 9,11

Subcommittee Hearings on H. R. 1845, 80th Con-

gress, House Committee on Armed Services,

Hearings Vol. II, pp. 2239, 2241-2242, [No.

SE Gl Et dacek cadbekuaasaawiuknne 10

YInthe Supreme Gourt of the Winited States

OcroBerR TERM, 1955

No, —

Untrep States oF AMERICA, PETITIONER

v.

Pavu.L TANNER

Untrep STaTEs OF AMERICA, PETITIONER

Vv.

E.IzaBETH RutTH PavuL, EXECUTRIX OF THE ESTATE

oF EarLE Evarts Pau, DECEASED

PETITION FOR WRITS OF CERTIORARI TO THE UNITED

STATES COURT OF CLAIMS

The Solicitor General, on behalf of the United

States, prays that writs of certiorari issue to

review the judgments of the United States Court

of Claims entered in the above cases on May 3,

1955.

OPINIONS BELOW

The opinion of the Court of Claims in both

cases (R. 97-103) is reported at 125 F’. Supp. 240.

()

2

JURISDICTION

The judgments of the Court of Claims were en-

tered on May 3, 1955 (R. 107-108). The jurisdic-

tion of this Court is invoked under 28 U. 8. C. 1255

(1).

QUESTION PRESENTED

Whether retired Army reserve officers may re-

ceive both retired pay and government civilian

pay which together amount to more than $3,000

a year.

STATUTES INVOLVED

Section 212 (a) of the Economy Act of 1932 (47

Stat. 406) provides in material part as follows

(5 U.S. C. 59a (a)):

After [June 30, 1932], no person hold-

ing a civilian office or position, appointive

or elective, under the United. States Gov-

ernment * * * shall be entitled, during the

period of such incumbency, to retired pay

from the United States for or on account

of services as a commissioned officer in any

of the services mentioned in the Pay Adjust-

ment Act of 1922 [U. S. C., title 37], ata

rate in excess of an amount which. when

combined with the annual rate of compen-

sation from such civilian office or position,

makes the total rate from both sources more

than $3,000; and when the retired pay

amounts to or exceeds the rate of $3,000

per annum such person shall be entitled to

the pay of the civilian office or position or

the retired pay, whichever he may elect.

_—_

3

As used in this section, the term ‘‘retired

pay”’ shall be construed to inelude credits

for all service that lawfully may enter into

the computation thereof.

The Act of July 1, 1947 (61 Stat. 238), pro-

vides as follows (10 U. 8. C. 1946 Ed. 371, 371b) :

All officers and employees of the United

States or of the District of Columbia who

shall be members of the Officers’ Reserve

Corps or the Enlisted Reserve Corps shall

be entitled to leave of absence from their

respective duties, without loss of pay, time,

or efficiency rating, on all days during

which they shall be ordered to active duty

for training, or active duty, or to duty with

troops or at field exercises, or for instruc-

tion for periods not to exceed fifteen days

in any one calendar year: Provided, That

members of the Officers’ Reserve Corps or

the Enlisted Reserve Corps who are in the

employ of the United States Government

or of the District of Columbia and who are

ordered to duty by proper authority shall,

when relieved from duty, be restored to the

positions held by them when ordered to

duty.

No existing law shall be construed to

prevent any member of the Officers’ Re-

serve Corps or the Enlisted Reserve Carps

from accepting employment in any civil

branch of the public service nor from re-

ceiving the pay incident to such employ-

ment in addition to any pay and allowances

2 4

to which he may be entitled under the laws

relating to the Officers’ Reserve Corps or

the Enlisted Reserve Corps, nor as pro-

hibiting him from practicing his civilian

profession or occupation before or in con-

nection with any department of the Federal

Government.

Title EII, Sec. 302 (a), of the Act of June 29, 1948

(62 Stat. 1081, 1087, 10 U. S. C. 1036a), provides:

Any person who, upon attaining or hav-

ing attained the age of sixty years, has per-

formed satisfactory Federal service as

defined in this section in the status of a

commissioned 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 re-

serve components thereof, * * * and has

compieted 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 * # °.

STATEMENT

In these cases, respondents, retired Army re-

serve officers employed by the United States in

civilian capacities before and since their retire-

ment, seek retired Army pay from the date on

which they were placed on the reserve retired

list. While the identical question is presented

in each case, the underlying facts differ; accord-

ingly, they are separately stated.

1. ADMINISTRATIVE PROCEEDINGS PRIOR TO RESPOND-

ENTS’ RETIREMENT

Tanner—On May 26, 1952, Tanner, who had

been commissioned as an Army reserve officer in

1917 (R. 2), applied to the Adjutant General of

the Army to be placed on the retired list with

entitlement to retired pay under the Act of June

29, 1948, supra, p. 4 (R. 2). At the time he

applied for Army retirement, Tanner was em-

ployed by the United States as a Department of

the Army production specialist with a salary of

$5,625 per year and at the time of suit his salary

was $5,720 per year (R. 2). On July 15, 1952,

the Army Finance Office informed Tanner that

he was entitled to retired pay of $159.50 per

month subject, however, to the dual salary restric-

tion of Section 212 of the Economy Act of 1932,

supra, p. 2, which limits combined civilian com-

pensation and retirement pay for commissioned

service to $3,000 per year (R. 3). Tanner was

advised that when the annual rate of civilian com-

pensation paid by the United States is $3,000 or

more and the annual rate of retirement is less

than $3,000, the Economy Act compels waiver of

retirement pay and full payment of the civilian

salary (R. 3). The Army placed Tanner on the

retired list on June 26, 1952 (R. 2), but, observing

the prohibition of the Economy Act, refused him

retirement pay since he was then, and is now,

earning in excess of $3,000 per year (R. 3).

6

Paul—Earle Evarts Paul,’ a commissioned offi-

cer in the Officers Reserve Corps (R. 10), was

placed, upon his application, on the Army of the

United States retired list on June 29, 1948 (R.

10). At the time of his Army retirement, Paul

was employed by the United States in a civilian

capacity in the Veterans Administration, where

he earned $9,600 per year (R. 10). Like Tanner,

Paul was advised by the Army that his retired

pay under the Act of 1948 was subject to the dual

salary restrictions of the Economy Act and that,

since he was earning in excess of $3,000 per year,

he was not entitled to retired pay (R. 11).

2. JUDICIAL PROCEEDINGS

Tanner, on September 24, 1953 (R. 1), and

Paul, on January 29, 1954 (R. 9), brought suit

in the Court of Claims to recover retired pay

allegedly due and owing from their dates of

retirement. They contended that the Act of 1947,

supra, p. 3, exempted retired Army reserve offi-

cers from the dual salary restrictions of the

Economy Act by entitling them to receive as

*‘pay and allowances’’ retired pay on account of

Army service in addition to pay for their civilian

employment. The court below, although noting

that at the time of the enactment of the Act of

1947 there was no retired pay for reserve Army

4 Paul died on January 14, 1953. His widow brought this

action in the covré below as executrix of the estate (R. 10).

=

| 7

officers for age or length of service (R. 102),’ held

that “The text of [the Act of 1947] has a fairly

plain meaning. ‘Pay and allowances’ of a Reserve

officer would naturally include his retired pay

** * (R. 103) and, accordingly, granted re-

spondents’ motion for summary judgment.

REASONS FOR GRANTING THE WRITS

1. The court below in these cases has inter-

preted the language of a statute simply designed

to protect government-employed reservists for the

15-day period of annual training to apply to the

entire period of their retirement from military

service. In doing so, it has found that retired

reserve officers employed by the government are

entitled to double pay even though that right is

admittedly denied to retired regular officers. The

opinion thus throws into utter confusion the rela-

tionship between the retirement provisions for

regular and reserve officers. And although in

these cases Army officers are involved, the court

below reached the same result with respect to the

Air Force, and the reasoning of the opinion is

equally applicable to the Navy, the Marine Corps

and the Coast Guard. In fact, it raises a question

with respect to the retired pay of every retired

- ?It was not until the passage of Title III of the Act of

June 29, 1948 (62 Stat. 1081, 1087, 10 U. S. C. 1036 et seg.),

supra, p. 4, that Army reserve officers were eligible for re-

tired pay on account of age or length of service.

353016—55——2

reserve officer in any of the services who has taken

government employment.

While it has not been possible to secure a com-

plete estimate as to the number of individuals

who may be affected by the decision of the court

below, partial estimates indicate that there are at

present at least 3,000 potential claimants for en-

titlement to retired pay under the decision,

There are already pending in the Court of Claims

16 actions brought.on behalf of 60 Army and Air

Force officers and 7 actions brought on behalf of

128 Navy reservists, representing a potential

liability of at least $800,000 on the part of the

United States. The full liability would probably

amount to several millions.

2. The Act of July 1, 1947 (supra, p. 3), on

the basis of which the court below rested its

curious conclusion, was designed to amend certain

existing laws * so as to give Army reserve enlisted

* Principally :

The Act of May 12, 1917, 40 Stat. 40, 72, 10 U. S. C. 1946

Ed. 371:

“All officers and employees of the United States or of the

District of Columbia who shall be members of the Officers’

Reserve Corps shall be entitled to leave of absence from their

respective duties, without loss of pay, time, or efficiency

rating, on all days during which they shall be ordered to duty

with troops or at field exercises, or for instruction, for periods

not to exceed fifteen days in any one calendar year:

further, That members of the Officers’ Reserve Corps who are

in the employ of the United States Government or of the

District of Columbia and who are ordered to duty by proper

9

men, who were government employees, the same

rights to leave of absence from their civilian

duties as were already enjoyed by Navy reservists

and Army reserve officers.‘ As stated in the

House hearing on H. R. 1845 (which later became

the Act of July 1, 1947) :

The purpose of the proposed bill is to

authorize military leave with pay for

authority shall, when relieved from duty, be restored to the

positions held by them when ordered to duty.”

Section 80 of the Act of June 3, 1916, 39 Stat. 166, 203, 32

U.S. C. 1946 Ed. 75:

“All officers and employees of the United States and of the

District of Columbiwwho shall be members of the National

Guard shall be entitled to leave of absence from their respec-

tive duties, without loss of pay, time, or efficiency rating, on

all days during which they shall be engaged in field or coast-

defense training ordered or authorized under the provisions

of this title.”

Section 9 of the Naval Reserve Act of 1938, 52 Stat. 1175,

1177, 34 U.S. C., 1946 Ed. 853g:

“* * * That all officers and employees of the United States

or of the District of Columbia who are members of the Naval

Reserve shall be entitled to leave of absence from their respec-

tive duties without loss of pay, time, or efficiency rating, on

all days during which they may be employed with or without

pay under the orders or authorization of competent authority,

on training duty for periods not to exceed fifteen days in any

one calendar year.”

*The Act was entitled: “An Act to amend existing laws

relating to military leave of certain employees of the United

States or of the District of Columbia so as to equalize rights

to leave of absence and reemployment for such employees who

are members of the Enlisted or Officers’ Reserve Corps, the

National Guard, or the Naval Reserve, and for other

purposes.”

10

periods not to exceed 15 days annually for

members of the Army Enlisted Reserve

Corps employed by the Federal Govern-

ment or the District of Columbia who are

ordered to training duty in the Enlisted

Reserve Corps. * * *

Employees of the United States or of the

District of Columbia who are members of the

Army Officers’ Reserve Corps are entitled to

the same military leave and reemployment

rights under the Act of May 12, 1917 (40 Stat.

72; 10 U. S. ©. 371) as would be provided

for members of the Enlisted Reserve Corps

by the proposed bill. Members of the

Naval Reserve are entitled to military

leave of 15 days annually under section 9

of the Naval Reserve Act of 1938 (52 Stat.

1177; 34 U.S. C. 853g) * * *.

* * * * *

Members of the Reserve Corps of the

Army who are officers are entitled to 15

days leave with pay each year in order to

train. Officers and enlisted men of the

Naval Reserve are also entitled to that

leave with pay. But enlisted men of the

Army Reserve Corps are not entitled to that

pay.

It was the purpose of H. R. 1845 to bring

the enlisted men o; the Army Reserve Corps

up to the same status as officers of that corps

and up to the same status as enlisted men of

the Naval Reserve.’ [Emphasis supplied.]

* Subcommittee Hearings on H. R. 1845 to amend Section

871, Title 10, United States Code (Military Leave for Fed-

eral Employees), 80th Congress, House Committee On

11

With the enactment of H. R. 1845, the leave status

ef Army enlisted reservists was assimilated to

that of Army commissioned reservists and Navy

reservists, both enlisted and commissioned. All

service reserves were given equal rights to job

restoration on their return from temporary train-

ing duty.

Tn this context of granting equal leave status to

enlisted men and of assuring to all reserve per-

sonnel restoration of their jobs on return from

military duty, Congress further provided in Sec-

tion 1b of the Act of 1947 that all reservists

should be entitled to receive both their civilian

compensation and military pay and allowances.

Reading Sections la and 1b together, it is appar-

ent that Congress intended to permit all reservists

the same right to leave of absence for 15 days of

military duty and to receive for that military

duty pay and allowances in addition to civilian

salary.

The Act’s legislative history affirmatively indi-

cates that the right of reservists to collect pay

and allowances for military duty in addition to

civilian compensation was intended by Congress

to be limited to the right to collect only for 15

days of active duty training. In reporting its

estimate of the cost of H. R. 1845, the House Com-

mittee on Armed Services stated :

Armed Services, Hearings, Vol. II, p. 2239, 2241-2242 [No.

139], May 19, 1947. See also House Report 483, 80th Cong.,

Ist Sess., p. 2; 27 Comp. Gen. 245, 247.

12

The fiscal effects of this bill cannot be

computed accurately since the number of

enlisted reservists employed by the Federal

Government or the District of Columbia

who will partake in voluntary periods of

training cannot be estimated accurately. A

statistical solution, based on percentage of

the male labor force employed by the Gov-

ernment, estimates the annual cost of sal-

aries paid while the enlisted reservists are

on active duty will be $1,546,800. When

the reserve training program has been fully

implemented, continuing from a practical

stand point, the cost of this program would

not even approximate the sum mentioned,

since the Government must spend an equal

sum on persons tn other positions who

would perform the same type of training

and service. Otherwise the entire training

program would fail. Many reservists are

in civil service and the Government desires

that they be made available for the 15-day

training period. If these persons are not

available, it becomes necessary for the Gov-

ernment to obtain persons from some other

source. [House Report No. 483, 80th Cong.,

1st Sess., p.3. (Emphasis supplied.) ]

This statement refers, very logically, to the fiscal

effects of paying enlisted reservists for 15 days of

active duty. As has been noted above, H. R. 1845

was primarily concerned with equalizing the

status of enlisted reservists; Army reserve officers

gained no new benefits from Section 1a of the bill.

13

It is inconceivable, therefore, that in a bill to

equalize the status of enlisted active reserve men,

Congress, granting the privilege to all active re-

servists of receiving both civilian salary and ac-

tive duty pay, would give retired reserve personnel

alone * the unprecedented right annually to collect

12 months of retired pay and 12 months civilian

salary.

Congress itself has not considered the 1947 Act

as exempting reservists from the dual compensa-

tion statute. Im the course of considering the

Reserve Retirement Act in 1948, the question

arose as to the right of reservists to double salary

and it was clear that the Congressional spokes-

man for the measure did not believe that the

provision of the Economy Act had been repealed.

The following debate took place in the House of

Representatives (94 Cong. Ree. 2483) :

Mr. MUHLENBERG. Is there anything in

the bill that prevents duplication of pen-

sions? For instance, a Reserve officer

might be receiving a pension under another

form of Federal security.

Mr. Jounson of California. No; there is

nothing that prevents that.

Mr. MUHLENBERG. In the opinion of the

chairman, would that be a wise provision

to have in the bill?

* Retired regular Army and Navy officers employed by

the United States in civilian capacities may not receive both

retired pay and civilian salary if the combined total exceeds

$3,000. 5U.S.C. 59a.

14

Mr. Jonnson of California. Does the

gentleman mean to prevent duplication?

Mr. MUHLENBERG. Yes.

Mr. JoHNsSoN of California. Frankly, I

do not know what situation the gentleman

has in mind, and I do not want to give him

answer unless I have an idea of what he is

talking about.

Mr. MUHLENBERG. A man in Federal

service might be a civilian employee.

Mr. JoHNsoNn of California. With respect

to the Federal service there is another law

that prohibits for dual payments in certain

cases. If a man gets over $3,000, he cannot

get anything under this bill. That applies

to Army officers, and I think that is a good

rule. At least we cannot change it in this

legislation. [Emphasis added. ]

3. There is an additional reason why the con-

struction of the Act of 1947 adopted by the curt

below is erroneous. Retired reserve officers, at

the time of passage of the Act of 1947, were not

entitled to retired pay and they did not become

so entitled until June 29, 1948. Thus, it seems

plain that when Congress provided in the Act of

1947 that ‘‘No existing law should be construed to

prevent any member of the Officers Reserve Corps

* * * from receiving * * * pay and allowances

to which he may be entitled under the laws relating

to the Officers Reserve Corps’’ [emphasis added],

it could only have been viewing ‘‘pay and allow-

15

ances’? as active duty ‘‘pay and allowances.”’

Congress cannot be presumed to have been deal-

ing in 1947 with a right which it did not create

until 1948, particularly when its 1947 legislation

refers to ‘“‘no eaisting law.’’ Furthermore, as

we have noted supra, pp. 13-14, when Congress, well

aware of the existence of the Act of 1947," enacted

the bill giving reserve officers the right to retired

pay, it was stated on the floor, without hesitation

and in unequivocal terms, that the right was

subject to dual salary restrictions.

In summary, both the structure of the statute

and its legislative history indicate that it was

intended to give all reservists, regardless of serv-

ice or rank, the right to receive, in addition to

civilian salary, military pay for 15 days of active

duty and no more than that. In the area of

military pay and status legislation, Congress has

always acted with the greatest specificity and

exactitude. Had Congress intended to grant the

special privilege which respondents claim, it

would have done so by explicit language and

openly declared its purpose. We submit that

nothing in the history, language, or purpose of

the Act of 1947, gives, either expressly -or by

implication, to respondents or other retired reserve

officers a valuable right not possessed by regular

military personnel.

* See 94 Cong. Rec. at 2484.

16

CONCLUSION

For the foregoing reasons it is respectfully

submitted that this petition for writs of certiorari

should be granted.

Srvuon E. Sose.orr,

Solicitor General.

Warren E. Burcer,

Assistant Attorney General.

SaMUEL D. SLADE,

Sonpra K. Siape,

Attorneys.

JuLY 1955,

APPENDIX

Yn the Wnited States Gourt of Claims

(Decided November 2, 1954)

No. 543-53

PAUL TANNER v. THE UNITED STATES

No, 38-54

CHARLES ©. ADAMS, ET lL. v. THE UNITED

STATES

No. 39-54

ELIZABETH RUTH PAUL, EXECUTRIX OF THE

ESTATE OF EARLE EVARTS PAUL v. THE

UNITED STATES

Mr. Burr Tracy Ansell for the plaintiffs,

Mr. Kendall M. Barnes, with whom was Mr. Assistant

Attorney General Warren E. Burger, for the defendant.

ON DEFENDANT’S AND PLAINTIFFS’ MOTIONS FOR SUMMARY

JUDGMENT

Manpven, Judge, delivered the opinion of the court:

Each of these three cases involves the question whether

an Army Reserve or Air Force Reserve officer on the Retired

List, who is otherwise entitled to receive retired pay, may

receive such pay if he holds civilian employment with the

Government for which he is paid $3,000 or more per year.

Section 212 of the Economy Act of June 30, 1932, 47 Stat.

406, as amended in 1940, 54 Stat. 761, provides in material

part as follows:

(19)

20

(a) After the date of the enactment of this Act,

no person holding a civilian office or position, ap-

pointive or elective, under the United States Govern-

ment * * * shall be entitled, during the period of such

incumbency, to retired pay from the United States for

or on account of services as a commissioned officer in any

of the services mentioned in the Pay Adjustment Act of

1922 [U.S. C., Title 37], at a rate in excess of an amount

which when combined with the annual rate of compensa-

tion from such civilian office or position, makes the total

rate from both sources more than $3,000; and when the

retired pay amounts to or exceeds the rate of $3,000 per

annum such person shall be entitled to the pay of the

civilian office or position or the retired pay, whichever

he pf elect. As used in this section, the term “retired

pay” shall be construed to include credits for all service

that lawfully may enter into the computation thereof.

(b) This section shall not apply to any person whose

retired pay, plus civilian pay, amounts to less than

$3,000: Provided, That this section shall not apply to

regular or emergency commissioned officers retired for

disability incurred in combat with an enemy of the

United States or for disabilities resulting from an ex-

losion of an instrumentality of war [5 U.S. C. 59a] in

ine of duty * * *.

The Act of July 1, 1947, 61 Stat. 238, 10 U. S. C. 371 and

- 871 (b) provides:

871. All officers and employees of the United States

or of the District of Columbia who shall be members of

the Officers’ Reserve Corps or the Enlisted Reserve

Corps shall be entitled to leave of absence from their

respective duties, without loss of pay, time, or efficien

rating, on all days during which they shall be ord

to active duty for training, or active duty, or to duty

with troops or at field exercises, or for instruction, for

periods not to exceed fifteen days in any one calendar

ear: Provided further, That members of the Officers’

rve Corps or the Enlisted Reserve Corps who are in

the ory of the United States Government or of the

District of Columbia and who are ordered to duty by

proper authority shall, when relieved from duty, be

restored to the positions held by them when ordered to

duty.

871 (b). No existing law shall be construed to prevent

any member of the Officers’ Reserve Corps or the En-

listed Reserve Corps from accepting employment in any

civil branch of the public service nor from receiving the

21

incident to such employment in addition to an

and allowances to which he may be entitled ahdee the

laws relating to the Officers’ Reserve Corps or the En-

listed Reserve Corps, nor as prohibiting him from

practicing his civilian profession or occupation before

or in connection with any department of the Federal

Government.

The Officers’ Reserve Corps named in the statute was the

Officers’ Reserve Corps of the Army.

Title III of the Act of June 29, 1948, 62 Stat. 1087, 10

U. S. C. 1036, e¢ seg., authorized retired pay for Reserve

officers of the Army who have reached the age of 60 and have

had 20 or more years of satisfactory service.

The above-quoted provision of the Economy Act of 1932

expressly prohibits what the plaintiffs ask for. Unless that

prohibition was nullified by the above quoted Section 371 (b)

of the 1947 statute, the plaintiffs cannot prevail. The plain-

tiffs say that it was so nullified. They say that the retired

pay which the 1948 statute authorizes for them is “pay and

allowances to which [they] may be entitled under the laws

relating to the Officers’ Reserve Corps,” within the meaning

of the 1947 statute.

There is no problem here of a repeal of the 1932 Act by

implication. The 1947 statute is express that “No existing

law shall be construed to prevent” the receipt of the pay and

allowances therein referred to. Our problem is to determine

whether the expression “pay and allowances” includes tho

‘retired pay authorized by the 1948 Act.

Congress probably did not have retired pay for Reserve

officers specifically in mind when it enacted the 1947 Act,

since no such pay was available for Reserve officers on the

basis of mere length of service until it was provided in the

1948 Act. There was no discussion of the 1947 Act on the

floor of either House of Congress. In the House Committee,

Captain Nunn of the Navy, having been called on for an

explanation of Section 1 (b), quoted above from the 1947

Act, said: ‘

Subsection 1 (b) gives members of both Enlisted and

Officers’ Reserve Corps the same right to reemployment

in any civil branch of the public service, to receive pay

and allowances incident to such employment in addition

22

to and allowances may be entitled to, and to

peecdeen civil re og oe tions bee or in

connection with any department of the Federal Govern-

ment. It gives them those rights that naval reservists

now have under the last provision of Section 4 of the

Navy Reserve Act of 1938 and that the National Guard

men will get under section 2 of the proposed bill.*

Section 4 of the Naval Reserve Act of 1938, 52 Stat. 1176,

contained, with reference to the Naval Reserve, language

similar to that of Section 1 (b) of the 1947 Act. It was, how-

ever, limited in a respect, the significance of which appears

hereinafter.

The parties have urged upon us various rulings of the

Comptroller General of the United States as showing the

background against which the legislation in question should

be projected, to ascertain the Congressional intent, and also

as showing the administrative interpretation of the legisla-

tion, after its enactment.

On January 11, 1946, 25 Comp. Gen. 521, the Assistant

Comptroller Gencral ruled that in view of the express pro-

visions of Section 4 of the Naval Reserve Act of 1938, re-

ferred to above, a retired member of the Naval Reserve could

draw retired pay, computed in part on the basis of service as

a commissioned officer, and at the same time hold a Govern-

ment civilian position paying $3,750 a year. This ruling is

strongly urged upon us by the plaintiffs. |

On October 28, 1946, 26 Comp. Gen. 271, the Comptroller

General ruled that a retired enlisted man of the Regular

Navy, who, under the Act of February 21, 1946, 60 Stat. 26,

was entitled to have his retired pay computed on the basis

of a commissioned officer rank which he had held when he

was recalled to active service from an earlier retirement, was

subject to the provisions of Section 212 of the Economy Act

of 1932. We have said above that there was an important

difference between Section 4 of the Naval Reserve Act of

1938, and Section 1 (b) of the 1947 Act here in question,

which applied to Reserve Officers of the Army. Section 4

of the 1938 Act said that no existing law should be construed

to prevent a member of the Naval Reserve from holding a

2 Hearings before Subcommittee No. 11, Legal, Committee on Armed Services,

on H. R. 1845, 80th Cong., Ist Sess. [No. 139], Transcript, p. 2243.

civilian position with the Government and receiving the pay

of that position in addition to any pay and allowances to

which he might be entitled “under the provisions of this

Act”, i. e., the 1938 Act. The exemption from Section 212

was therefore not applicable to pay and allowances of a

Reserve officer granted by legislation other than the 1938

Act. In the 26 Comp. Gen. 271 case, the retired pay in

question was granted by the Act of February 21, 1946, hence

the exemption was not applicable. The Comptroller General

in his opinion suggested comparison with the earlier ruling

in 25 Comp. Gen. 521. Comparison shows that in that case

the pay and allowances in question were granted under the

1938 Act, and the ruling was that the exemption from

Section 212 applied.

On March 13, 1947, 26 Comp. Gen. 674, the Comptroller

General ruled that the pay of a Naval Reserve officer for

flights made on inactive duty training could be collected, in

addition to the pay of a civilian Government position held

by the Reserve officer. The Comptroller General did not

mention Section 212 and it is obviously not applicable, since

it relates only to retired pay. The Comptroller General’s

unspecified reference to “dual compensation” laws was prob-

ably to 5 U. S. C. 58 and 5 U. S. C. 62, not involved in this

case.

On December 17, 1948, 28 Comp. Gen. 367, the Comptroller

General ruled on the very question which is before us, ¢. ¢.,

whether an Army Reserve officer might receive retired pay

in addition to his civilian Government pay, the latter being

in excess of $3,000. The ruling was that he might not. The

Comptroller General said he had not found any provision of

law exempting such officers from Section 212 of the 1932

Economy Act. He did not mention the 1947 Act, here under

consideration, and it must be that he was not, at the moment,

aware of it, since it was obviously at least arguably

applicable.

On April 19, 1949, 28 Comp. Gen. 588, the Comptroller

General ruled that a Naval Reserve officer receiving retired

pay under Title III of the Act of June 29, 1948, was subject

to Section 212. He pointed out that Section 4 of the 1938

Act granted exemption only for pay and allowances to

24

which an officer was entitled under the provisions of that

Act, é. ¢., the 1938 Act, hence the exemption was not applica-

ble to retired pay granted by the 1948 Act. It may be in-

ferred from the Comptroller General's discussion that if the

retired pay in question had been granted by the 1938 Act,

the ruling would have been the same as that in 25 Comp.

Gen. 521, i. ¢., in favor of the exemption.

Decisions of June 24, 1949, 28 Comp. Gen. 727, and May 29,

1952, 31 Comp. Gen. 619, relate, respectively, to an officer of

the Regular Army and an officer of the Regular Navy. The

legislation involved in our cases applies only to Reserve

officers, hence these rulings are not in point.

The Comptroller General’s ruling in 25 Comp. Gen. 521,

was squarely in favor of the position taken by the plaintiffs

in this case. His ruling in 28 Comp. Gen. 367, was squarely

against the plaintiffs’ position, but he was, apparently, un-

aware of the statute on which the plaintiffs rely. His

language in 28 Comp. Gen. 588, indicated that he still ad-

hered to his position taken in 25 Comp. Gen. 521. We do

not find in the Comptroller General’s opinions a consistent

course of administrative construction which helps us to

interpret the statute.

Nor do we find anything really helpful in the legislative

history of the statute. It will be remembered that at the

time of its enactment in 1947 there was, generally speaking,

no retired pay for Reserve Army officers for age or length of

service. When Title III of the Act of June 29, 1948, supra,

which gave retired pay to Reserve officers of the Army for

length of service was under discussion on the floor of the

House of Representatives, Representative Johnson, Chair-

man of a Subcommittee of the Committee on Armed Services,

in explanation of the bill, stated categorically that the

Economy Act of 1932 would be applicable to retired pay re-

ceived pursuant to the bill. 94 Cong. Rec. pp. 2481-2483.

In the 83d Congress, Public Law 300, approved February

20, 1954, amended Section 212 of the Economy Act of 1932

broadening its exemption relating to officers retired for disa-

bility [68 Stat. 18]. The Government points to language in

Senate Report No. 885, 883d Congress, 2d Session, saying that

“under the present law, retired commissioned officers are pro-

25

hibited from receiving both military retired pay and pay as a

civilian employee of the Government if such combined

amounts exceed $3,000 per annum * * *,” except in case of

retirement for disability. This statement was certainly true

of Regular Army officers, and the Committee may, in mak-

ing it, have been unaware of the problem of the instant liti-

gation with regard to Reserve officers. The statement does

not seem to us to show that the Committee had definite views

as to our problem.

The Government points out that if the plaintiffs’ interpre-

tation of the 1947 Act were correct, Reserve officers would

enjoy an important privilege not available to retired officers

of the Regular Army. The plaintiffs’ answer is that the

-retired pay of Reserve officers, merely for length of service,

is only a small fractional part of the retired pay of officers

of the Regular Army.

- The text of the statute in question has a fairly plain

meaning. “Pay and allowances” of a Reserve officer would

naturally include his retired pay, if Congress provided re-

tired pay for him. There is not enough, of significance, in

the administrative and Congressiopal treatment of the

statute to persuade us to depart from the natural meaning

of the words of the statute.

The defendant’s motion for summary judgment is denied,

and the plaintiffs’ motion is granted. Entry of judgment

will be suspended to await the filing of a report by the

General Accounting Office showing the amounts due the

plaintiffs.

It is so ordered.

_ Laramors, Judge; Wurraker, Judge; Lirrieron, Judge;

and Jones, Chief Judge, concur.

26

In the United States Court of Claims

No. 543-53

Pavut TANNER

v.

THE UNITED STATES

ORDER

On November 2, 1954, the court rendered an

opinion holding that plaintiff was entitled to re-

cover but suspended the entry of judgment pend-

ing the filing of a report by the General Account-

ing Office showing the amount due plaintiff in

accordance with the court’s decision.

On April 19, 1955, said report by the General

Accounting Office was filed in which it is stated

that in accordance with the court’s decision there

is due plaintiff the sum of $4,523.50 for the period

July 1, 1952 to November 2, 1954.

Now, therefore, it is ordered this third day of

May 1955, that judgment be and the same hereby

is entered in favor of plaintiff in the sum of four

thousand five hundred twenty-three dollars and

fifty cents ($4,523.50), representing the amount

due plaintiff for the period July 1, 1952 to

November 2, 1954.

By Txe Covrt,

MarVIN JONES, Chief Judge.

er

27

In the United States Court of Claims

No. 39-54

EvizaBETH RutH Pav, EXEcuUTRIx OF THE EsTaTE

oF EARLE Evarts Pav.

Vv.

THE UNITED STATES

ORDER

On November 2, 1954, the court rendered an

opinion holding that plaintiff was entitled to re-

coves but suspended the entry of judgment pend-

ing the filing of a report by the General Account-

ing Office showing the amount due plaintiff in

accordance with the court’s decision.

On April 19, 1955, said report by the General

Accounting Office was filed in which it is stated

that in accordance with the court’s decision there

is due plaintiff the sum of $3,747.37 for the period

June 29, 1948 to January 14, 1953.

Now, therefore. it is ordered this third day of

May 1955, that judzment be and the same hereby

is entered in favor of plaintiff in the sum of three

thousand seven hundred forty-seven dollars and

thirty-seven cents ($3,747.37), representing the

amount due plaintiff for the period June 29, 1948

to January 14, 1953.

By Tue Covrt,

Marvin JONES, Chief Judge.

U. S. GOVERNMENT PRINTING OFFICE: 1955