Abad v. United States

Jones, Chief Judge,

dissenting:

In a case with an identical fact situation, this court has already decided that section 208, supra, applies only to members of the Fleet Reserve who had completed more than 16 years of active service when they transferred to the Reserve and not to those who transferred with exactly 16 years’ service. Liberty v. United States, 120 C. Cls. 274.

The majority holds that Congress could not have meant one rate of retirement pay for those who have exactly 16 years of service and another rate for those who have had 16 years and 1 day, for example. However, enlistments, as *410well as reenlistments, in the Navy are not ordinarily for a day but for a period of years.

Practically the same principle was involved in the case of Lambert v. United States, 121 C. Cls. 333. In that case the plaintiff had retired with exactly 30 years of service. He was claiming a 50 percent addition to his retired pay under a statute which granted such addition for over 30 years’ service. The court dismissed the petition stating:

At the time of his retirement plaintiff was not drawing the active_ duty pay of his grade with over 30 years of service.. * * * Had he started on the next period of service he would have been entitled to draw the increased pay of that period and would have been entitled to the 50 percent increase rather than the 45 percent which was allowed.

It seems to me that what the Congress had in mind in enacting the statute involved in the case at bar was to give the increased retirement pay to one who had completed 16 years, of service and had reenlisted for another 4-year period and at some time during the 16- to 20-year period or at the end thereof had transferred to the Fleet Eeserve.

•The majority opinion seeks to excuse its refusal to accept the statute as written by saying that to do so would deny increased retirement pay to one who had exactly 16 years’ prior service and grant it to one who had a longer period of service, however small the additional service. Therefore, it reasons, Congress could not have meant what it plainly said.

Any law that requires a certain period of service as a condition to receiving increased retirement will automatically have the effect of denying that increase to anyone who had service less than the prescribed period — even one day.

The majority opinion intimates that no rational person would draw the line where the literal wording of the statute draws it. It would nullify the provision on the ground that as written it would give the privileges to one who had served 16 years and one minute, and deny it to one who had served exactly 16 years. Well, the same statute denies all such privileges to anyone who had served one minute less than *41116 years, even as the majority interprets it. Why not nullify the whole statute? A court gets into interminable difficulties when it crosses the border of its legitimate sphere.

I freely concede that there are instances when a clause in a statute is susceptible of two interpretations, one of which will lead to absurd and the other to reasonable results, and that in such instances the court properly makes the reasonable interpretation. But no such condition exists here. Evidently what the Congress intended was primarily to give an added inducement to one having 16 years’ service to reenlist for an additional definite period.

It is very clear that the Congress knew exactly what it was doing. It had before it the previous expressions in the other laws that had been enacted. It manifestly made the breaking point at a place beyond the 16 years of service. Section 208 provides increased retirement pay “whenever enlisted men of the Fleet Beserve, transferred thereto af ter more than 16 years of service" (emphasis supplied) perform active duty after July 1,1925.

The men who served on the Naval Affairs Committees of both the House and the Senate were men who were experienced in legislative matters. It is not proper for a court whose members are not so experienced to construe perfectly clear language as meaning something else than what is clearly stated. This court, any court, is sowing dragon’s teeth when it invades the legislative field and undertakes to construe a statute as meaning something else than what it actually states. Th8 majority has taken a legislative provision that is perfectly free from ambiguity, and because, forsooth, it does not think Congress should have enacted that particular clause, has completely read it out of the statute.

The statute is clear and its terms should govern. Missouri Pacific Ry. Co. v. United States, 53 C. Cls. 12, 16; Leonard v. United States, 80 C. Cls. 147, 151; The Third Scottish American Trust Co. v. United States, 93 C. Cls. 160, 167. Changes in policy are matters that are within the discretion of the Congress and are not properly determined by the courts.

Plaintiff’s motion for summary judgment should be denied, the defendant’s motion granted, and the petition dismissed.

*412In accordance with the opinion of the court and on a memorandum report of the commissioner as to the amount due plaintiff, it was ordered June 5,1957, that judgment for the plaintiff be entered for $1,890.91.