Lemly v. United States, 47665.

• Decision Date: 05 January 1948
• Docket Number: No. 47665.,47665.
• Citation: 75 F. Supp. 248,109 Ct. Cl. 760
• Parties: LEMLY v. UNITED STATES.
• Court: U.S. Claims Court

75 F. Supp. 248

109 Ct. Cl. 760

LEMLY v. UNITED STATES.

No. 47665.

Court of Claims.

January 5, 1948.

M. C. Masterson, of Washington, D. C. (Ansell & Ansell and Burr Tracy Ansell, all of Washington, D. C., on the brief), for plaintiff.

John R. Franklin, of Washington, D. C., and Peyton Ford, Asst. Atty. Gen., for defendant.

Before JONES, Chief Justice, and LITTLETON, WHITAKER, MADDEN, and HOWELL, Judges.

HOWELL, Judge.

Plaintiff is a Naval Reserve Officer on inactive duty and on the honorary retired list of the United States Naval Reserve. He is drawing no retirement pay and the Navy Department has denied his eligibility thereto although he alleges he incurred a disability while on active service which, though known to the Navy at the time he was released from active duty, was not revealed to him. Plaintiff claims therefore the retired pay and allowances accorded by statute to an officer in the Regular Navy of corresponding grade and rank, to which he says he is entitled under the provisions of Sec. 4 of the Naval Aviation Personnel Act of 1940, 34 U.S.C.A. § 855c — 1.

The Government has demurred to the petition. The facts stated in the petition are as follows:

The plaintiff had seen service in the Navy in 1903-1908 and 1917-1919, and was on June 9, 1942, ordered to active duty as a captain, Supply Corps, United States Naval Reserve, in which capacity he served to 1944. Having attained the age of 64 years on May 12, 1944, he was placed on the honorary retired list, United States Naval Reserve, with the rank of captain on September 1, 1944, and subsequently on October 17, 1944, he was ordered to inactive duty.

Plaintiff further alleges that during active service he suffered permanent disability in the line of duty by reason of Paget's disease contacted by him at such time; that this disease was noted by medical authorities of the Navy on October 13, 1944, in the course of a physical examination for release from active duty, but said authorities did not then advise him of its discovery.

He further alleges that subsequent to his release the disease became worse, and that he is permanently and totally disabled from engaging in any occupation.

In its demurrer, the Government has raised three questions which will be disposed of in the order in which they were presented. It is first claimed that this court is without jurisdiction because the plaintiff's claim is one for a pension which is barred by the Judicial Code.

This is a claim founded upon a law of Congress, the Naval Aviation Personnel Act of 1940.¹

The statute mentions "pensions, compensation, retirement pay and hospital benefits." In that connection it is well to note that each of the above have a well established generally understood Congressional usage. An examination of the Acts of Congress through the years reveals that when the word "pension" was used it meant "pension" and when "retirement pay" was used it meant "retirement pay." It is evident that the Congress recognizes that each word has its own individual meaning and by such usage distinguishes between "pension," "retirement pay," "compensation," "hospital benefits," etc.

Webster's New International Dictionary, Second Edition, defines the word "pension" thus:

"To grant or pay a pension to; to dismiss or retire from service with a pension — frequently followed by `off.'"

In other words, when a pension is paid someone, he is considered all through, his services are over, and he is pensioned "off." Furthermore, a pension is paid after the service has been performed without any regard to the actual performance of service as a gratuitous recognition of a moral or honorary obligation of the government. When a person is pensioned "off" by the government, that government no longer has any control over his services. He is actually all through serving the government and yet he receives his pension as long as he lives.

Retirement pay, on the other hand, is a continuation of active pay on a reduced basis. Even though an officer is retired from active duty and is receiving retirement pay, he is still subject to call to active duty as long as his physical condition will permit. He is still an officer in the service of his country even though on the retired list.

In the Naval Aviation Personnel Act of 1940, the Congress has exercised its constitutional authority to impose on the government a legally binding obligation to pay Reserve Officers the same retirement pay as Regular Officers who suffer death or disability in the line of duty. As such it is within the well-established jurisdiction of this court. United States v. Realty Co., 163 U.S. 427, 6 S.Ct. 1120, 41 L.Ed. 215; Pope v. United States, 323 U.S. 1, 65 S.Ct. 16, 89 L.Ed. 3; Singles v. United States, 61 Ct.Cl. 433; Campbell v. United States, 80 Ct.Cl. 836.

This court has considered claims for retirement pay over a long period of time. Cook v. United States, 101 Ct.Cl. 782; Blackett v. United States, 81 Ct.Cl. 884; Rudd v. United States, 71 Ct.Cl. 432; Hoffman v. United States, 66 Ct.Cl. 452; Gay v. United States, 57 Ct.Cl. 424; affirmed 264 U.S. 353, 44 S.Ct. 388, 68 L.Ed. 728.

As further ground for demurrer, it is urged that this court is without jurisdiction because plaintiff's eligibility for retirement pay was a matter for exclusive determination within the Navy Department involving the discretion of the Secretary and the President and that the refusal of the Navy Department in 1946 to retire plaintiff for physical disability was proper.

Ordinarily, Naval Reserve Officers do not draw retired pay whereas Regular Naval Officers are entitled to such pay whether retired by reason of age or physical disability. We think this is important to bear in mind when considering the various statutes under which Regular Naval Officers are retired.

Rev.Stats. § 1455, 34 U.S.C.A. § 412 provides:

"No officer of the Navy shall be retired from active service, or wholly retired from the service, without a full and fair hearing before such Navy retiring board, if he shall demand it, except in cases where he may be retired by the President at his own request, or on account of age or length of service, or because of his ineligibility for promotion on account of age."

At the outset it can be conceded that this plaintiff was retired from active service without a full and fair hearing from such Naval retiring board.

R. S. § 1448,² provides that a retiring board may be ordered to consider an officer's incapacity for duty in the discretion of the President and only after the President's approval in the matter is the officer to be retired. R. S. § 1452,³ R.S. § 1453.⁴

It is true that these sections require an incapacity at the time of release from active service. The government says the plaintiff does not allege such incapacity upon his release from active duty.

The plaintiff does allege that his affliction with Paget's disease had been incurred in line of duty while he was on active duty as an officer of the United States Naval Reserve. He further alleges that despite the official notation in his medical record of the presence of Paget's disease in plaintiff on October 13, 1944, he was released from active naval duty on October 17, 1944, without being advised of its discovery by the medical examiners on October 13, 1944.

We think these allegations are sufficient especially if the medical authorities and the Secretary of the Navy failed to disclose to plaintiff his true physical condition. This information was the very thing needed by plaintiff to set in motion the procedures required by R.S. §§ 1448, 1455, 1452 and 1453.

The authority of the Secretary of the Navy to place plaintiff on the honorary retired list upon reaching the age of sixty-four years as well as his authority to order members from such list to active duty and release them from active duty in time of war or peace is not questioned.⁵

As we have pointed out, Reserve Officers do not draw retirement pay except in case of disability incurred while serving on active duty. Quite naturally, unless the question of disability is involved, the Secretary's action woud not require or need a review. But when the Secretary orders a Reserve Officer from active to inactive duty who is known to be suffering a service-connected disability without ordering him before a retiring board, we think the Secretary has failed to perform a duty imposed upon him by the Act of Congress for the benefit of the Naval Reserve.

The case of Denby v. Berry, 1923, 263 U.S. 29, 44 S.Ct. 74, 68 L.Ed. 148, is cited by the government for the general proposition that the Courts will not interfere when in the Secretary's discretion he orders a Reserve Officer to inactive duty without ordering him before a retiring board. In that case plaintiff endeavored to mandamus the Secretary of the Navy, without having invoked an appeal to the President to review the Secretary's order refusing to send him before a retiring board. Accordingly, the Supreme Court noted 263 U. S. at page 38, 44 S.Ct. at page 77, 68 L.Ed. 148, that:

"It would be a curious inconsistency in the procedure if the Secretary were compelled by law to order a retiring board to consider an officer's case which the President is given discretion to grant or...