Perry v. United States
| Decision Date | 14 May 1971 |
| Docket Number | No. 149-70.,149-70. |
| Parties | William O. PERRY, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Laird Campbell, Denver, Colo. (Byron G. Rogers, Jr. and William S. Jackson, of Wormwood, Wolvington, Renner & Dosh, Denver, Colo., were on the brief) for plaintiff-appellant.
J. F. Bishop, Washington, D. C. (William D. Ruckelshaus, Asst. Atty. Gen., James L. Treece, U. S. Atty., Alan S. Rosenthal and Daniel M. Joseph, Attys., Dept. of Justice, Washington, D. C., were on the brief) for defendant-appellee.
Before LEWIS, Chief Judge, and BREITENSTEIN and McWILLIAMS, Circuit Judges.
By complaint filed in the United States District Court for the District of Colorado, plaintiff Perry, a retired reserve Army officer, sought judgment against the United States for the difference between the amount of retirement pay actually paid to him and the amount asserted to have been due him under applicable statutes. Jurisdiction was premised under the Tucker Act, 28 U.S.C. § 1346, with waiver of any judgment exceeding the sum of $10,000. The cause was submitted to the district court upon agreed facts and with cross motions for summary judgment. The trial court granted the government's motion, 308 F. Supp. 245, and this appeal followed.
In presenting its motion in the trial court the United States urged three grounds in support of summary judgment: (a) lack of jurisdiction; (b) the bar of the statute of limitations; and (c) lack of legal merit in the alleged claim. The trial court rejected (a) and (b) and granted summary judgment solely on the merits. The United States makes no appellate claim beyond urging affirmance on the merits.
Colonel Perry retired from the United States Army on October 31, 1955, having served prior to November 12, 1918. The Army calculated his retirement pay pursuant to Title III of the Army and Air Force Vitalization and Retirement Equalization Act of 1948, 62 Stat. 1081, 1087. Using the special formula contained in that statute for computing the retirement pay of reserve officers and personnel (sections 302 and 303 of Title III, 62 Stat. 1081-1087) Perry's retirement pay was computed as 54.98 percent of his active duty pay. He contends that he should have received 75 percent of his active duty pay pursuant to a provision in section 15 of the Pay Readjustment Act of 1942, 37 U.S.C. § 115, 56 Stat. 359, 367-68. The cited section provides in pertinent part:
The retired pay of any officer of any of the services mentioned in the title of this Act Army, Navy, Marine Corps, Coast Guard, Coast and Geodetic Survey, and Public Health Service 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.
Placing great emphasis and almost complete reliance upon the repetitive use of the word "any" in the cited statute, Colonel Perry asserts the Army and the trial court both...
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...1946); Jones v. United States, 127 F.Supp. 31 (E.D.N.C.1954); Perry v. United States, 308 F.Supp. 245, 247 (D.Colo.1970), aff'd, 442 F.2d 353 (10th Cir. 1971); Hill v. United States, 40 F. 441 (D.Mass.1889); Hammond-Knowlton v. United States, 121 F.2d 192 (2d Cir. 1941); Wolak v. United Sta......
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...than $10,000, this Court has jurisdiction over their cases. Perry v. United States, 308 F. Supp. 245 (D.Colo., 1970), aff'd. 442 F. 2d 353 (10th Cir., 1971). Defendants have argued that the class nature of the complaint in this action makes it a suit for a sum in excess of $10,000. This is ......
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