408 F.2d 154 (D.C. Cir. 1968), 20737, Thompson v. Clifford

Docket Nº:20737.
Citation:408 F.2d 154
Party Name:Sylvia H. THOMPSON, Appellant, v. Clark M. CLIFFORD, as Secretary of Defense, et al., Appellees.
Case Date:December 13, 1968
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

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408 F.2d 154 (D.C. Cir. 1968)

Sylvia H. THOMPSON, Appellant,


Clark M. CLIFFORD, as Secretary of Defense, et al., Appellees.

No. 20737.

United States Court of Appeals, District of Columbia Circuit.

December 13, 1968

         Argued Oct. 9, 1967.

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          Mr. Lawrence Speiser, Washington, D.C., with whom Messrs. Joel E. Hoffman and William Warfield Ross, Washington, D.C., were on the brief, for appellant.

         Mr. James A. Strazzella, Asst. U.S. Atty., with whom Messrs. David G. Bress, U.S. Atty., and Frank Q. Nebeker, Joseph M. Hannon and A. Lee Fentress, Jr., Asst. U.S. Attys., were on the brief, for appellees.

         Before FAHY, Senior Circuit Judge, and BURGER and ROBINSON, Circuit Judges.

         SPOTTSWOOD W. ROBINSON, III, Circuit Judge:

         This appeal challenges the authority of the Secretary of the Army by bar interment of the remains of Robert G. Thompson in a national cemetery. 1 Thompson saw action during World War II in the Pacific Theater, where his 'extraordinary heroism' won the Distinguished

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Service Cross 2 and approval for a battlefield commission as an officer. Before the commission could be effectuated, Thompson was disabled by malaria and tuberculosis contracted during service in New Guinea. This condition led to his honorable discharge and an award of wartime disability compensation.

         After Thompson's death in 1965, appellant, his widow, had his body cremated and requested burial in Arlington National Cemetery. Appellant supplied all information required, the Army gave its official approval, and arrangements were made to convey the decedent's ashes to their final resting place. It was then-- eight days before the interment date-- that a story appeared in the press announcing the projected burial and recounting Thompson's post-war difficulties with the law.

         Subsequent to his discharge from the Army, Thompson was convicted under the Smith Act 3 of conspiracy to advocate the violent overthrow of the government of the United States, and was sentenced to imprisonment for three years. After the Supreme Court affirmed his conviction, 4 he absconded, and for this he was convicted of criminal contempt. 5 An additional term of four years was imposed, to run consecutively to the original sentence. 6

         The post mortem publicity linking Thompson, the hero, with Thompson, the pariah, created an immediate stir. A member of Congress denounced the plan for his burial in Arlington Cemetery as 'misplaced bureaucratic idealism.' 7 On the day following, the Army notified appellant that the matter was under review. With doubt as to whether the them existing Army regulation purported to foreclose consummation of the plan, the Army promptly amended it to clearly cover the situation. 8 Simultaneously, the Army announced that both the old and the new regulations operated to defeat appellant's project, 9 and on the next day apologized to her for 'any distress you may have had because of conflicting advices.'

         Appellant then brought suit in the District Court for declaratory and injunctive relief, and there, as here, the controversy centered upon the pertinent legislative and administrative specifications. 10 At the time of Thompson's

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death in 1965 and for many years previously, Congress had authorized the burial of honorably discharged soldiers in national cemeteries. 'Under such regulations as the Secretary of the Army may * * * prescribe, ' read the statute in force in 1965, the remains of persons within described categories 'may be buried in national cemeteries.' 11 One of these categories embraced 'any * * * former member of the Armed Forces who served on active duty * * * and whose last such service terminated honorably.' 12

         The Secretary of the Army, however, had promulgated a regulation, in vogue when Thompson passed away, prohibiting interment in a national cemetery of 'a person otherwise eligible * * * who is convicted * * * of a crime or crimes, the result of which is * * * a sentence to imprisonment for 5 years or more.' 13 In an obvious effort to avoid a contest as to whether Thompson's three-and four-year sentences constituted 'a sentence * * * for 5 years or more' within the meaning of that provision, the Army's newly-formulated regulation, to which we have adverted, 14 stated that those convicted of Smith Act violations would be denied the burial privilege, and that 'separate sentences served consecutively and which aggregate 5 years or more are disqualifying.' 15

         With the facts substantially undisputed, the District Court entertained crossmotions for summary judgment and ruled in appellees' favor. Focusing upon the statutory language 'the remains of the following persons may be buried in national cemeteries, ' 16 the court felt that

         'The work 'may' is significant. The section does not provide that the remains of the following persons shall be entitled to be buried in national cemeteries. A different situation would be presented if such phrase had been adopted by Congress.' 17

         Thus, said the court, the statute

         '* * * conferred upon the Secretary the right and the election to permit the

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burial of such persons as he deems proper, by regulation, of anyone in the various classes enumerated in the statute. It does not give a vested right to every member in each of the classes enumerated in the statute. It follows, hence, that the Secretary may adopt regulations determining as to who shall be entitled to be buried in national cemeteries provided he does not extend that privilege to anyone who is not deemed eligible by the statute.'

         The court further held that the Army's conclusion that Thompson's consecutive sentences constituted 'a sentence to imprisonment for five years or more' was 'a reasonable construction' of the regulation existent at Thompson's death, and that retroactive application of the amended regulation was permissible. 18

          We do not share the District Judge's confidence that the mere contrast of 'may' and 'shall' isolates congressional intent respecting the Secretary's administrative authority in this area, or resolves the question whether the choice as to Thompson's burial in a national cemetery lies with the Army as well as with his widow. 'May' ordinarily connotes discretion, 19 but neither in lay 20 nor legal 21 understanding is the result inexorable. Rather, the conclusion to be reached 'depends on the context of the statute, and on whether it is fairly to be presumed that it was the intention of the legislature to confer a discretionary power or to impose an imperative duty.' 22

         The factor looming largest upon examination of the instant problem is the obviously beneficent objective of the statute at bar. For honorable duty in the Armed Forces, Congress has bestowed upon defined classes of veterans and their families the values associated with eternal rest in a national cemetery. By this and a number of other benefits the Nation but strives to repay those whose service safeguards her very existence. Courts have traditionally read laws of this character liberally, 23 with a view

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to spreading the boon broadly unless the legislature had manifested a desire to dole it out narrowly. We are unable to detect any reason why the very same considerations should not fully obtain here.

          So it is that we find that the context of the statute summons the likely probability that Congress imposed upon the Secretary of the Army a nondiscretionary obligation respecting the burial of honorably discharged veterans. We now proceed to explore the statute's legislative and administrative history for evidence of such weight as might dispel that probability. Then, confronting plain indications of congressional purpose supporting appellant's thesis, and the conspicuous absence of those factors in the development of the regulations as would normally cause us to defer to the Secretary's construction of a statute he administers, we conclude that Congress conferred upon the decedent a right to burial in a national cemetery unconditioned by the Secretary's exercise of judgment. Because the Secretary lacked power to exclude Thompson's remains from interment in a national cemetery, 24 and without reaching other issues tendered,

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we reverse the District Court's judgment and remand the case for further proceedings.


         The 1872 and 1873 Cemetery Acts

         National cemeteries were given birth in 1862 when Congress granted power to the President to purchase land 'to be used as a national cemetery for the soldiers who shall die in the service of the country, ' 25 a provision apparently limited in scope to burial of those dying on active duty in Civil War campaigns. A decade later, however, Congress twice enlarged the class of eligibles, first in 1872:

         '* * * all soldiers and sailors honorably discharged * * * who may die in a destitute condition, shall be allowed burial in the national cemeteries * * *' 26

         and then in 1873:

         '* * * honorably discharged (servicemen) who served during the late war * * * may be buried in any national cemetery * * * free of cost and their graves shall receive the same care and attention as the graves of those already buried.' 27

         Appellees argue that the shift in language from 'shall' to 'may' represents a concomitant shift in meaning. By their interpretation, the 1872 statute insured the burial of all active servicemen dying destitute, while the 1873 act, though broadening eligibility, made the privilege wholly discretionary. One has little difficulty, however, in discerning the circumstances that eradicate support for this position.


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