Bickford v. United States

• Decision Date: 29 July 1981
• Docket Number: No. 372-79C.,372-79C.
• Citation: 656 F.2d 636
• Parties: Stephen M. BICKFORD v. The UNITED STATES.
• Court: U.S. Claims Court

656 F.2d 636

Stephen M. BICKFORD v. The UNITED STATES.

No. 372-79C.

United States Court of Claims.

July 29, 1981.

COPYRIGHT MATERIAL OMITTED

Joseph C. Barton, San Francisco, Cal., attorney of record, for plaintiff.

Elizabeth Langer, Washington, D. C., with whom was Asst. Atty. Gen., Alice Daniel, Washington, D. C., for defendant.

Before FRIEDMAN, Chief Judge, DAVIS, NICHOLS, KASHIWA, KUNZIG, BENNETT and SMITH, Judges, en banc.

ON THE PARTIES' CROSS-MOTIONS FOR SUMMARY JUDGMENT

KUNZIG, Judge.

In this military pay case the plaintiff, a former captain in the JAG Corps of the Regular Army, challenges the validity of the Excess Leave Program under which he attended law school. Plaintiff argues that the Secretary was without statutory authority to deny him pay and allowances during his three years in law school. The Government has moved for summary judgment dismissing the petition, arguing inter alia, that plaintiff's suit is untimely under the statute of limitations. It further contends that in the event the court reaches the merits in this case, the statutory scheme under which the Excess Leave Program was promulgated expressly prohibited the recovery sought by plaintiff. We agree with the Government on the merits.

I

As part of an effort in the 1960's to attract and retain high-quality legal professionals in the active military service, the Secretary of the Army established the Excess Leave Program.¹ Under that program, a select number of commissioned officers of the Regular Army and distinguished ROTC graduates were permitted to enter excess leave for up to 3½ years for the purpose of obtaining a legal education and admission to the bar. Although the program did not provide for pay and allowances while attending law school, participants received such benefits as retirement, promotion, and longevity credit as well as access to PX, commissary, and health care.² In return, participants were required to sign a statement agreeing to accept appointment in the JAG Corps and serve on active duty for a specified number of years after completing law school. The statement also provided that excess leave status would be terminated if a participant failed to maintain acceptable grades or abandoned the study of law. All participants were allowed to make application to and attend the law school of their choice.³

II

Plaintiff applied for admission into the Excess Leave Program. By a letter dated April 9, 1970, plaintiff was notified of his acceptance, and was also notified that participation in the program was to be without pay and allowances. Thereafter plaintiff signed a statement in which he agreed to abide by all the conditions set forth in his letter of acceptance.

From September 1970 to May 1973, plaintiff attended the College of William and Mary Law School and satisfied all requirements under the Excess Leave Program. In exchange, plaintiff received all the benefits to which he was entitled. Upon graduating in 1973, plaintiff began fulfilling his duty obligation. He was initially assigned, effective August 10, 1973, to Army Headquarters in the Presidio of San Francisco, California. Plaintiff remained in San Francisco for approximately three years until July 13, 1976, when he was transferred to the 8th Infantry Division in Germany.

On November 22, 1976, more than six years after his acceptance into the Excess Leave Program and more than three years after graduating from law school, plaintiff first indicated his objection to the program by filing an administrative request for back pay for the time spent in law school. This request was filed with the 8th Infantry Division finance officer in Germany. On February 23, 1979, the Army Finance and Accounting Center denied plaintiff's application. On August 16, 1979, more than nine years after his claim first accrued, plaintiff filed suit in this court requesting back pay and allowances for the three-year period he spent in law school.⁴ On January 23, 1980, plaintiff was honorably discharged from military service.

III

In Sherengos v. United States, 214 Ct.Cl. 749, 750 (1977), we held without discussion that the Soldiers' and Sailors' Civil Relief Act of 1940⁵ (SSCRA) "mandates the exclusion from all limitations periods of any period of active military service." The government argues that that ruling was erroneous and urges us to overrule it. After full consideration of the issue, we conclude that the SSCRA tolls the running of the statute of limitations during the period of active military duty.⁶ We therefore reaffirm Sherengos.

Under this court's statute of limitations, 28 U.S.C. § 2501 (1976), a claim filed outside of six years from the date on which the action accrues is barred.⁷ Brownfield v. United States, 218 Ct.Cl. 477, 589 F.2d 1035 (1978). It is the Government's position that under the six-year statute of limitations, this court lacks jurisdiction to entertain plaintiff's claim for back pay since plaintiff filed suit in this court more than nine years after his claim first accrued. The Government argues that § 525 of the SSCRA does not toll the limitations period in this case since application of that provision requires a demonstration that military service has handicapped the serviceman's ability to bring suit. Plaintiff counters by arguing that § 525 does not require satisfaction of any such condition precedent and that therefore, the statute of limitations was tolled during the period he served on active duty. We agree with the plaintiff.

Section 525 of the SSCRA states in part:

The period of military service shall not be included in computing any period now or hereafter to be limited by any law, regulation, or order for the bringing of any action or proceeding in any court * * * by or against any person in military service * * * whether such cause of action or the right of privilege to institute such action or proceeding shall have accrued prior to or during the period of such service.... Emphasis Added.

The express terms of the SSCRA make certain that the tolling of the statute of limitations is unconditional. The only critical factor is military service; once that circumstance is shown, the period of limitation is automatically tolled for the duration of service. Ricard v. Birch, 529 F.2d 214 (4th Cir. 1975). We do not accept the Government's argument that the court should ignore the express language of § 525.

There is not ambiguity in the language of § 525 and no justification for the court to depart from the plain meaning of its words. The statute draws no distinction between the many different categories of active duty personnel. When Congress intended to impose conditions on the applicability of other provisions in the SSCRA, as in §§ 510, 517, 521-524, and 530, it did so in clear terms. Section 525, in marked contrast, in no way suggests that a serviceman must demonstrate that his military service has affected his ability to bring suit as a condition precedent to its applicability. The existence of explicit conditions throughout the SSCRA, and the absence of conditional language in § 525, manifest the limited meaning of that section.

The Government argues that the statute does not mean what it says because the legislative history evinces Congress' intent to limit the applicability of § 525 to those servicemen engaged in battle or who are otherwise handicapped from asserting their legal claims. In construing the SSCRA, the Government relies most heavily on various statements taken from congressional debates at the time § 525 was originally enacted as § 205 of P.L. 103, 40 Stat. 440 (1918). The Government focuses its argument on such phrases as "soldiers taken for foreign service," "scattered along our vast coast line," "in the hostile waters," and "outside of the usual routes of communication." 55 Cong.Rec. 7805 (1917).

The Government reads too much into these scattered bits of legislative history. In the first place, these statements must be viewed in the context in which they were made. The period was 1917-1918, a time when our nation was embroiled in world war. Although Congress was indeed preoccupied with thoughts of our soldiers going off to war, Congress was concerned generally with enacting a civil relief bill for all servicemen, the purpose of which was, among others, to grant a sort of moratorium or stay of all legal proceedings that could be entered against a soldier in the courts. Soldiers' and Sailors' Civil Relief Bill: Hearings on S.2859 and H.R.6361. Before the Subcommittee by the Committee or the Judiciary. United States Senate, 65th Cong., 1st & 2d Sess. 5 (1917-1918). The above-quoted language appears to be of a descriptive nature rather than a broad declaration of congressional intent. Congress was merely using these phrases to describe the operation of the statute under then existing war time conditions.

Moreover, more than sixty years have lapsed since Congress first enacted § 525. If there was discontent with the post-war application of § 525, Congress could have either repealed or amended it. Despite a major revision of the SSCRA in 1942, Congress left § 525 untouched and subsequently, has never sought to insert any type of limiting language conditioning its application.

Finally, if we are wrong, and Congress did not intend § 525 to cover all active duty military personnel, Congress is always free to amend and revise the SSCRA. Given this nation's constitutional allocation of law making power to Congress and not to the judiciary, it would be much more appropriate to respect the plain meaning of § 525, and to leave it to Congress to make any changes it thinks necessary. Our holding today allows the court to respect the most fundamental of all canons of statutory construction: that statutes mean what they plainly say. As Chief Justice Marshall stated more than a century and a half ago:

The intention of the legislature is to be collected from the words they employ. Where there is no ambiguity in the words there is

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