dissenting:
Respectfully, I dissent. I agree with much of what the court says, considered apart from the result. I would not overrule Allen v. United States, 215 Ct. Cl. 524, 571 F.2d 14 (1978).
At the outset, I invite attention to the somewhat disingenuous statement of the court as to the nature of plaintiffs ailments that led to his retirement from the military on disability of 60 percent. It says he had "problems with his feet” and was deemed unfit for worldwide service because of intermittent "claudication” which the court correctly translates as "limping.” This would suggest that the military doctors were extremely generous in awarding plaintiff a 60 percent disability and why should he want a civilian annuity besides? In fact, the medical report (Ex. B to Cross-Motion) under the heading "Present illness” reveals that plaintiff had had serious cardiovascular problems. He underwent sympathectomies as long ago as 1955 because of symptoms of thrombo angiitis obliterans evidenced by extreme sensitivity of feet to cold, paresthe-sias of feet, and absent pulses in both feet. To translate, his arteries were closing up and cutting off the blood from his lower legs. The sympathectomy is more than minor surgery if less than a heroic remedy. It involves cutting nerves that contract blood vessels in the legs, so as to allow a more generous flow of blood to that region. Plaintiffs symptoms were much relieved at that time. The examination of October 1968, reported in Exhibit B, indicated that the symptoms were returning and found in the arms as well as the legs. The conclusion was that plaintiff had "mild symptoms of small vessel disease,” alleviated by the sympa-thectomy and by vasodilator drugs, that he had been able to perform well in sedentary positions, but would be unable to perform functions involving moderate to strenuous exer*568cise. The PEB (Ex. D) adds that all his extremities are aggravated by change in temperature, and that the insufficiency is arterial. The defect was considered to preclude worldwide service.
While properly repudiating defendant’s effort to make plaintiff appear as a malingerer exploiting his ailments, the court, no doubt unconsciously, plays the same game. The reader should be assured, contrary to the court’s innuendo, it was not a question of athletes foot or ingrowing toenail.
Turning now to the Allen case, I will start by revealing that we did not have the benefit of the legislative history the defendant now puts before the court, and the court before the world. If we had, the case would not have appeared as easy and obvious as, to the majority, it did. It is a consolation that the able dissent was apparently written in ignorance of it, too. I do not think there was neglect on defendant’s side. I think defendant mistrusted its own ammunition. Aehic as to the reason for mistrustas-afforded in — the-Senate committee statement fee- court quotes, dealing with the situation of one supposed to — be in plaintiffs position, i.e., he cannot meet military-standards of fitness, but is not qualified for a civilian annuity because faeis nut lutally disabled. The-Senate-report-says, if he dues net-meet civil servieo age and length of service require-
* — '* * [Hje would not be retired for physical disability tmder-éhe-Civil Serviee-Act, but would beseparated fruin
I — asked dcfcndnnt’3 able counsel during oral argument-, what severance pay^this referred to. We are of-course •heard- of anyone getting severance-pay under the ”Civil ■Service Act” (which -I-suppese -means the-entire-mass of daws~ relating to the Civil Ser vice) — Counsels astounding astounding response,-because I have been familiar-over many years-wi-fh-persons (including myselfi-withdrawing -moaey-paid-into the Civil Scrviee retirement systemywhen permittedrfcut I havemever heard it-calded-severance^pay; *569though it is-tr-ue it can be done-only on severance. -It is-not exaetly pay:-It-is-t-he-severed employee’s own money. He paid income taxes on it when it wno withhold. W-hat makes it-a cruel-joko in Polos’ case is that hc,-as-a state employee-, paid nothing into the-U% S. Civil Service -Retirement fund,-so of-course could-draw nothing out. His "severance pay” by defendant's semantics»-is-nothingr
-Weror-a- majority of us, learned in Hart v. United States, 218 Ct. Cl. 212, 585 F.2d 1025 (1978) to mistrust congressional — committee reports containing obvious misstatements construed. With all respect to defendant’s counsel, his explanation of the Senate Committee’s (or mure likely~its sta-ffls) use of the words -severance pay — simply will not wash. The Congress certainly would have-wanted to be -assured-i-t-was-not dropping anyone through Lhe iTackrand 4his patently false statement undertook to supply that assurance,- and-is material.
The House, as recounted in [1968] 3 U.S. Code Cong. & Adm. News 3318, adopted the Senate bill-andrpassed it only arweek after the Senater Meanwhile, the-House-Committee on-Armed-Services made its report and that is published; instead of-thc Senate Committ-e&s, according todfae-afeove publicatioNs-irequent practice. This-House-report can be the — Senate (unpublished) report ean-newhere be found, verbatim or in paraphrase. There is neno-of it-no-effort-to show how a partially disabled technician wouM-farer-The court-iabors4rrits-fn. 10 to establish thatthis-unusual fact refleets-no-discredit on the Senate legislative history as demonstrating the meaning of the statute-terbe-eonstrued: Certainly, when one body of Congress adopts-a bih-passed plagiarism, its-committee reports-in the same-l-anguage-as üs-predocossogdn-consideration of the bilk-If-omission to do this Í3 grounds for speculation — in-any-ease, -the- matter -beeemes too — clear to — be called- speculative — when the language of-the prior-committee, not -used by-t-he-subse* quent one, contains-a-glaring-enror. Wo-think-t-he- House committee, and therefore the House, meant to leave it to the Civil'Service Commission and the courts to determine *570hew-a-partially disabled technician-would fare as te civilian annuities. If tho Senate intended to bo understood--as legislating in this matter, it should have stated tlxe effect of the bill, as to~it, in-supportable^terms: I conclude that the weapon of legislative history drops from defendant’s hands, who picked it up and wielded it reluctantly in any case. We must approach the problem, as the panel did in Allen, by construing the cold statutory language without extrinsic aids.
The proposition here is very simple. The court quotes all the pertinent provisions. 5 U.S.C. § 8331(6) defines "disabled” and "disability” as meaning "totally disabled, or total disability, respectively, for useful and efficient service in the grade or class of position last occupied by the employee * * *.” Thus as an abstract proposition, it seems clear that one "totally disabled” under the statute might be only "partially disabled” in ordinary speech. The language reflected the fact that the Civil Service, unlike the military, utterly lacked facilities to rotate people around among different jobs. Accordingly, when it was ascertained that the applicant for annuity was disabled for the job he actually held, whether he might perform usefully in any other was not for consideration. An Air Traffic Controller might be "totally disabled” if he lacked 20/20 vision, if that was a requirement of the specific job occupied, and a fire fighter might be "totally disabled” if he suffered from emphysema, making it unsafe for him to breathe smoke. Yet either man might not be "totally disabled” if holding the other’s job. The reader will realize these are fictitious examples as I have not investigated what the regulations actually prescribe for these two jobs. We tried to get a clear definition of the "grade or class of position” occupied by Polos in the U.S. Civil Service or that he would have occupied when released from military duty, but for his physical problems. Defendant says that if employed today he would be a GS-085-7, a "Security Specialist,” in the "Security Police Division of TAC, MAC, and various nonflying units,” according to the position description (PD). The PD contains no specific physical requirements, and I conclude that is typical. His qualifications as stated include, as the law requires, that he must be "assigned to a *571compatible military position within the unit of employment.” I take it that for most Civil Service jobs, the PD does not prescribe any specific physical standards, and it is understandable why not, for one attempting to prescribe such standards would probably run foul of one or another of the various provisions of laws that outlaw so many different varieties of discrimination. The usual situation therefore is and has to be that the government doctors have to determine in each individual case whether the annuity applicant is disabled to perform the duties of the job as the doctors understands them to be.
In the case of a National Guard technician, the Allen decision construed the job qualification that he had to be a member of a National Guard unit, as a physical qualification that he had to satisfy military fitness standards. I do not see anything contrary to literal statutory language in this, nor is it an absurd result. Defendant and the court wring their hands over the alleged injustice of allowing National Guard technicians to retire for partial disability while other civil servants can retire, if not for longevity, only for total disability. I have already shown that this is a semantic and not a real distinction, resulting from the language of the statute which defines partial disability as total disability. We hear of instances every day of civil servants retiring for alleged total disability and stepping into lucrative other employment the next day. Mr. Polos is in reality totally physically disqualified to be a National Guard technician, just as much as a lame chief of police may be totally physically disqualified to be chief of police. Probably more so, for he is 60 percent disabled by the military system, while the civil service system is tolerant very often to a degree of disablement really less than that. In either case, what other job the man could hold is neither, here nor there. The court has by a disingenuous fact statement blinded itself to the nature of Mr. Polos’ ailments, which any doctor would take seriously, respecting the incumbent of any job, and by an airy structure of semantics it has also blinded itself to the reality, which is that Mr. Polos, by reason of grave cardiovascular problems, can no longer be a National Guard technician, his life’s work during almost his entire adult span, hitherto.
*572As regards the finality language of 5 U.S.C. § 8347 (c), it has never received so much respect in this court before. In Scroggins v. United States, 184 Ct. Cl. 530, 534, 397 F.2d 295, 297, cert. denied, 393 U.S. 952 (1968), we said that despite it a court could set aside a Commission determination where it involved a substantial departure from important procedural rights, a misconstruction of the governing legislation, or some like error going to the heart of the administrative determination. The Commission was, in the Allen case, and is here, committing a misconstruction of the National Guard Technicians Act, depriving Allen and Polos of important substantive rights. It is in my view the legal duty of the Commission to recognize that Mr. Polos’ cardivascular difficulties disqualify him from service on military active duty, and therefore to be a civilian technician when his unit is deactivated, and therefore he can no longer satisfy a physical requirement of his specific job, just as in the supposed case of the Air Traffic Controller who loses his 20/20 vision. He is "totally disabled” by the special semantics of the Civil Service laws.
I can’t help but believe that Polos’ case would have fared better with the court if the issues involved had come before us 20 years earlier than they did. We are drifting into a hostile and technical attitude towards federal employees’ claims that reflects, of course, what we currently read in the newspapers, and would have astonished our predecessors. I would favor hewing to the old line and expecting that, like the South, the mud-targeted civil servant will rise again.
I dissent.