Gordon v. United States, 106-55.

• Decision Date: 03 April 1956
• Docket Number: No. 106-55.,106-55.
• Citation: 134 Ct. Cl. 840,140 F. Supp. 263
• Parties: Andrew L. GORDON v. The UNITED STATES.
• Court: U.S. Claims Court

140 F. Supp. 263

134 Ct. Cl. 840

Andrew L. GORDON v. The UNITED STATES.

No. 106-55.

United States Court of Claims.

April 3, 1956.

Melville E. Locker, Washington, D. C., for plaintiff. Friedman, Locker & Schlezinger, Washington, D. C., were on the briefs.

LeRoy Southmayd, Jr., Washington, D. C., with whom was Warren E. Burger, Asst. Atty. Gen., for defendant.

Before JONES, Chief Judge, and LITTLETON, WHITAKER, MADDEN and LARAMORE, Judges.

LARAMORE, Judge.

This is an action by a major, U. S. Marine Corps, retired, who was transferred to the retired list of officers on July 1, 1939, with longevity credit for continuous service since 1917. He subsequently was recalled and served on active duty from January 19, 1942, to May 12, 1943, when he resumed inactive status on the retired list. Plaintiff is now seeking to recover the difference in retired pay received by him from May 13, 1943, to date of judgment, and that to which he believes he is entitled in accordance with the provisions of the fourth paragraph of section 15 of the Pay Read-justment Act of 1942, 56 Stat. 359, 367-368, 37 U.S.C.A. § 115, in the amount of 75 percent of the active-duty pay he was receiving at the time of his release from active duty on May 12, 1943, with longevity credit for the time spent in retirement in an inactive status from July 1, 1939, through January 18, 1942.

The facts as alleged in plaintiff's petition, which are necessary to a determination of this case and admitted by the defendant, are as follows:

Plaintiff served as a member of the U. S. Marine Corps from May 18, 1917, to June 30, 1939. On July 1, 1939, plaintiff transferred to the retired list of officers, not for disability, and was immediately advanced from the rank of captain to that of major. Plaintiff then had to his credit a total of 22 years 1 month and 12 days service for retired pay purposes.

On January 19, 1942, plaintiff was recalled and assigned to active duty as a major in the U. S. Marine Corps and served on active duty in this status until May 12, 1943, when he was released from active duty, again not for disability. Since May 13, 1943, plaintiff has been paid retired pay on the basis of 23 years 5 months and 6 days of active service.

Plaintiff, under date of October 10, 1944, made claim on the Marine Corps for increased retirement pay wherein he contended that in the computation of his retirement pay he should be credited with the time spent in retirement in an inactive status from July 1, 1939, through January 18, 1942, i. e., for an additional 2 years 6 months and 19 days not now being credited, or a total longevity for retired pay purposes of 25 years 11 months and 25 days. This was forwarded to the Comptroller General of the United States and denied on April 8, 1946. Plaintiff requested reconsideration by the Comptroller General and further claimed the difference between 75 per centum of his last active-duty pay and the amount of retired pay which he has been receiving since May 12, 1943. Both of these claims were denied by the Comptroller General on September 20, 1954.

Plaintiff and defendant each have filed their respective motions for summary judgment, and it is in this posture the case comes before the court.

In its motion defendant has raised the question of the 6-year statute of limitations, 28 U.S.C. § 2501, which provides in pertinent part as follows:

"Every claim of which the Court of Claims has jurisdiction shall be barred unless the petition thereon is filed, or the claim is referred by the Senate or House of Representatives, or by the head of an executive department within six years after such claim first accrues."

Defendant says plaintiff's claim accrued on May 13, 1943, the day he was released from active duty, which would be more than six years prior to filing a petition in this court. Plaintiff says the 6-year limitation statute can only have the effect of barring that portion of the claim which accrued prior to March 16, 1949. Thus the question of whether or not plaintiff has a continuing claim is squarely before the court.

Congress has seen fit to give officers of the armed services retirement pay for the reason that it is something they earned while in the service of their country, but Congress has said that their right to it is to be determined by retiring boards with the approval of the Secretary. To take this away or deny it, if the entitlement to it can be ascertained, would be manifestly unfair and morally and legally wrong. If the retiring board acts arbitrarily or otherwise unlawfully, an officer may bring an action in this court to set aside that action. However, to safeguard the rights of all parties, Congress enacted the 6-year limitation statute and thereby said if you want to bring such an action in the U. S. Court of Claims, it must be done in six years from the accrual of your cause of action. Under this circumstance, the reason for the act must be determined, and the only possible reason would be to present the claim while witnesses were still available, and their memories fresh. In other words, it was designed to aid the courts in their decisions; that the courts would not be forced to decide stale cases where the facts were not clear by reason of the passage of time.¹ With this in mind, the justness of the statute is apparent. However, when the claim is dependent only upon the law as written independent of any action by a board or agency, an action may be brought for any payments becoming due thereon within six years before the petition is filed. If a person has a claim which accrues at the end of a pay period, and the claim is not dependent upon facts, certainly the Government and the taxpayers are benefited if claimant, by his failure to file earlier, is forced to forego recovery for the portion of his claim which accrued more than six years from the filing of his petition.

In this case, any claim plaintiff might have is dependent upon his military record and the law, independent of the action of any board or agency. If he has a claim it accrues on each pay period, and, in the event of failure to be paid, a new claim would accrue at each successive pay period. Therefore, plaintiff would not be barred from claiming for the period of six years prior to the filing of his petition, which was March 16, 1955. See MacFarlane v. United States, Ct.Cl., 140 F.Supp. 420.

Inasmuch as we have found that plaintiff has a continuing claim and can assert a claim for retired pay for the six years prior to the filing of the petition herein, there remains but one issue to be determined by the court; i. e., whether the plaintiff is entitled to the benefits of the fourth paragraph of section 15 of the Pay Readjustment Act of 1942, supra. Specifically the question to be answered under this issue is whether the plaintiff was "hereafter retired" within the meaning of the statute.

Plaintiff contends that he was "hereafter retired" within the meaning of the fourth paragraph of section 15 of the Pay Readjustment Act of 1942, supra, which reads as follows:

"The retired pay of any officer of any of the services mentioned in the title of this Act who served in any capacity as a member of the military or naval forces of the United States prior to November 12, 1918, hereafter retired under any provision of law, shall, unless such officer is entitled to retired pay of a higher grade, be 75 per centum of his active duty pay at the time of his retirement."

Upon the basis of plaintiff's service record showing that he entered service in 1917, was placed on inactive status in 1939, recalled to active duty in 1942, and served until 1943 when he again returned to inactive status, there can be no question that plaintiff was "hereafter retired" within the meaning of the fourth paragraph of section 15, supra. This court so decided in the cases of Danielson v. United States, 102 F.Supp. 575, 121 Ct. Cl. 533 and Carroll v. United States, 81 F.Supp. 268, 117 Ct.Cl. 53.

Defendant says the cases above referred to are distinguished upon the grounds that (1) plaintiffs in those cases were recalled to active duty and retired for the second time on account of disability pursuant to the Act of July 24, 1941, 55 Stat. 603, 34 U.S.C.A. § 350 et seq., and the Act of June 29, 1943, 57 Stat. 249, 10 U.S.C.A. § 985 et seq.; (2) but for the fact that Carroll and Danielson were retired for disability, the decisions in those cases would have violated the first paragraph of section 15 of the Pay Readjustment Act of 1942, supra, and section 203(a) of the Act of June 29, 1948, 62 Stat. 1081, 1085, 10 U.S.C.A. § 1002; and (3) that Congress did not intend to "pyramid the retirement pay benefits" of the Pay Readjustment Act of 1942, supra, onto the benefits granted in sections 12(k) and 15(b) of the Act of June 23, 1938, 52 Stat. 944, 950-952.

Defendant's first argument was fully disposed of by this court in the Carroll and Danielson cases, supra. The fact that in each of those cases the plaintiffs were retired for physical disability was mere happenstance. The important point is that in each of those cases the court held that the term "hereafter retired" meant not only officers retired for the first time subsequent to 1942, but also officers previously retired who were recalled to active duty and,...