Selman v. United States

• Decision Date: 19 June 1974
• Docket Number: 422-72.,No. 421-72,421-72
• Citation: 498 F.2d 1354,204 Ct. Cl. 675
• Parties: Richard J. SELMAN v. The UNITED STATES. George S. H. SHARRATT, Jr. v. The UNITED STATES.
• Court: U.S. Claims Court

204 Ct. Cl. 675, 498 F.2d 1354 (1974)

Richard J. SELMAN v. The UNITED STATES.

George S. H. SHARRATT, Jr. v. The UNITED STATES.

Nos. 421-72, 422-72.

United States Court of Claims.

June 19, 1974.

Penrose Lucas Albright, Arlington, Va., for plaintiff; J. Nelson Happy, Kansas City, Mo., attorney of record for plaintiff; James M. Haviland, Dietrich, Davis, Burrell, Dicus & Rowlands, Kansas City, Mo., of counsel.

Rose E. Adewale-Mendes, Washington, D.C., with whom was Acting Asst. Atty. Gen. Irving Jaffe, Washington, D.C., for defendant.

Before SKELTON, KASHIWA and KUNZIG, Judges.

KUNZIG, Judge.

This is a consolidated military pay suit in which plaintiffs claim they are entitled to rear admiral (lower half) pay for their periods of service as Assistant Judge Advocates General (AJAGs) of the Navy, while occupying only the rank of captain. We hold they are so entitled.

Because of its de minimis factual background, involving no significant dispute, the case reduces to one of virtually abstract statutory construction. By Navy Bureau of Personnel orders, plaintiffs Sharratt and Selman were ordered in 1968 to report for duty as Navy AJAGs. They served in this capacity for roughly 26 and 44 months, respectively.¹ Despite exemplary service by both, neither plaintiff was advanced to the rank of rear admiral, which the role of AJAG normally calls for. This was apparently due to a nonstatutory limit on the number of Naval flag officers, imposed by the Senate Armed Forces Committee (the Stennis Ceiling).

During the relevant periods of service, plaintiffs drew the basic pay and allowances of Navy captains. On June 29, 1972, they filed administrative claims for the relevant periods of service, requesting the difference between such pay and allowances and those to which a rear admiral (lower half) is entitled.² Plaintiffs' requests were based on 37 U. S.C. § 202(l) hereinafter section 202 which reads:

Unless appointed to a higher grade under another provision of law, an officer of the Navy or Marine Corps serving as Assistant Judge Advocate General of the Navy is entitled to the basic pay of a rear admiral (lower half) or brigadier general, as appropriate.

On July 25, 1972, the Navy denied the requests in accordance with opinion B-168691 of the Comptroller General of the United States, dated July 13, 1970. 50 Comp. Gen. 22. The Comptroller had ruled that section 202 had to be read in conjunction with 10 U.S.C. § 5149(b) hereinafter section 5149, which provides in pertinent part:

An officer of the Judge Advocate General\'s Corps who has the qualifications prescribed for the Judge Advocate General in section 5148(b) of this title may be detailed as Assistant Judge Advocate General of the Navy. While so serving he is entitled to the rank and grade of rear admiral (lower half), unless entitled to a higher rank or grade under another provision of law emphasis added.

According to this view, only officers detailed as AJAGs and bearing the qualifications of a rear admiral were eligible for the higher pay. Plaintiffs, defendant argues, were not formally detailed but only "administratively assigned" as AJAGs and, hence, do not qualify for section 202 pay above rank.

Plaintiffs' challenge of this view is before the court on cross-motions for summary judgment. We hold for plaintiffs.³

Defendant offers a basically three-pronged defense to plaintiffs' statutory assertion: (1) that section 202 must be read in conjunction with section 5149, since both provisions were contained in the same public law; (2) that proper discernment of the meaning of section 202 requires consideration of the legislative history; and (3) that acceptance of plaintiffs' construction of section 202 would effectively constitute "judicial promotion" of plaintiffs. We find none of these arguments of merit.

At the outset, we conclude this case can be decided on a simple, fundamental principle of statutory construction: a clear and unambiguous statute speaks for itself. This court has long recognized that, while judicial tribunals may go beyond the language contained in a statute to ascertain its meaning, they must be careful in departing from statutory terms in order to avoid doing violence to them. Crawford v. United States, 376 F.2d 266, 272, 179 Ct.Cl. 128, 138 (1967), cert. denied, 389 U.S. 1041, 88 S.Ct. 781, 19 L.Ed.2d 831 (1968). Thus, the unambiguous wording of a statute shall be given its plain and commonly understood meaning. Benton v. United States, 488 F.2d 1017, 1020, 203 Ct.Cl. ___, ___ (1973); Ricker v. United States, 396 F.2d 454, 456, 184 Ct.Cl. 402, 406 (1968); Prudential Insurance Co. v. United States, 319 F.2d 161, 166, 162 Ct.Cl. 55, 65 (1963).

Section 202 obviously directs that an officer of the Navy, while serving as AJAG, is entitled to the pay of a rear admiral (lower half). Contrary to defendant's contention, nothing could be more clearly stated. Because plaintiffs during the relevant periods were Navy officers who undisputedly "served" as AJAGs, regardless of the means by which they were named to such positions, they are entitled to judgment on their claims for back pay as a matter of law.

In an effort to inject ambiguity into the otherwise clear language of section 202, defendant points to the fact that the section was adopted by Congress as part of a larger legislative package which included the provision establishing the office of AJAG, now codified as section 5149. Act of Dec. 8, 1967, Pub. L. 90-179, 81 Stat. 545, 546.⁴ We reject the suggestion that a tedious search for inconsistency or ambiguity is warranted where the plain meaning of a statute is evident on its face. In any case, the legislative package passed by Congress as Public Law 90-179 reveals no suggestion that the two provisions here under examination are to be read together. The plain fact is that section 5149 of the bill "to establish a Judge Advocate General's Corps in the Navy and for other purposes" relates to organization and grade, while section 202 thereof relates to pay. While the former establishes the position of AJAG and the rank to which a person holding the position is entitled, the latter permits any officer "serving" in the position to receive flag-level pay.

By making the requirement for a formal "detail" as Navy AJAG (contained in section 5149) a condition precedent to eligibility for the pay benefit of section 202, defendant would have us limit the latter section by terms extraneous to it. Indeed, such a construction would work to "delete or ignore the clear language" of section 202 as a separate provision with life of its own, an undertaking which this court traditionally avoids for fear of encroaching on the province of the legislature. Ricker v. United States, supra; Childs v. United States, 118 F. Supp. 364, 365, 127 Ct.Cl. 425, 428 (1954).

Nor is defendant's argument strengthened in this regard by citation of a Naval regulation making formal "detail" to the officer of AJAG a condition precedent to eligibility for section 202 pay above rank. Defense Department Military Pay Manual, § 10214(b) (2). To entertain such an argument would be to allow defendant to hoist itself by its own bootstraps.

It is settled administrative law that,

when faced with a problem of statutory construction, the courts show great deference to the interpretation given the statute by the officers or agency charged with its adminstration.

Udall v. Tallman, 380 U.S. 1, 16, 85 S.Ct. 792, 801, 13 L.Ed.2d 616 (1965). See Cornman v. United States, 409 F.2d 230, 233, 187 Ct.Cl. 486, 492, cert. denied, 396 U.S. 960, 90 S.Ct. 435, 24 L.Ed.2d 424 (1969). The regulation here under examination, however, attempts to qualify the plain meaning of its own source, an unambiguous statute, which it may not subvert. Volkswagenwerk Aktiengesellschaft v. Federal Maritime Commission, 390 U.S. 261, 272, 88 S.Ct. 929, 19 L.Ed.2d 1090 (1968); Fix v. United States, 368 F.2d 609, 614, 177 Ct.Cl. 369, 377 (1966). Nor does defendant cite the court to any express Congressional delegation of authority to the Navy to interpret section 202 by regulation. Thus, an important element of the Udall test is here lacking. Defendant's reliance on the mysterious appearance of the magical term, "detailed," in its own regulation, consequently, appears too strong.

Doubt also exists as to another important element: consistency of the statute's administrative interpretation. See Udall v. Tallman, supra, 380 U.S. at 17, 85 S.Ct. 792, 13 L.Ed.2d 616; Ganse v. United States, 376 F.2d 900, 904, 180 Ct.Cl. 183, 189 (1967). In the face of the Defense Department Military Pay Manual section on which defendant relies, the Judge Advocate General of the Navy himself recommended to the Comptroller General adoption of plaintiffs' construction of section 202. The Judge Advocate General took the position that the bill establishing a Navy JAG Corps provided for permissive assignment of flag rank personnel as AJAGs in section 5149, but made mandatory pay to such personnel at the flag rank level.⁵

Thus,

any officer appointed or detailed to duty as an AJAG under 10 U.S.C. 5149 subsequent to the 8 December 1967 effective date of Public Law 90-179 must receive at least the pay of a rear admiral (lower half) or brigadier general, as appropriate. 37 U.S.C. 202(l).

Letter from Navy Judge Advocate General Joseph B. McDevitt to the Director, Military Pay System, Nov. 5, 1969. See also Memorandum from Acting Navy Judge Advocate General D. D. Chapman to John T. Burns, Associate General Counsel, General Accounting Office, May 27, 1970.

The court has in the past chosen not to follow an administrative interpretation when it conflicts with a more sensible reading of the statute's plain meaning. Tasker v. United States, 178 Ct.Cl. 56, 59 (1967). We must here conclude that defendant's offer of administrative interpretation of section 202 is entitled to little weight.

In a further effort to entice the court to look beyond the clear wording...