# Petition for Writ of Certiorari — United States v. Tanner

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1955
- **Citation:** 350 U.S. 842

## Text

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1. Administrative proceedings prior to respond-
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2. Judicial proceedings_-----_........-.---.--
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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386418_0130%3A1. Public record. Not legal advice.