Passaro v. United States

5 Cl. Ct. 754, 1984 U.S. Claims LEXIS 1331
United States Court of Claims·Decided August 17, 1984·No. No. 669-81C·Published·Cited by 1 cases

Opinion

OPINION

SETO, Judge.

This military pay case is currently before the court on defendant’s motion for reconsideration of the court’s previous opinion on cross motions for summary judgment. 4 Cl.Ct. 395 (1984) (“Possaro I”). Defendant moves the court to reconsider its ruling that the court properly has jurisdiction of the case. The motion has been fully briefed by the parties, and oral arguments have been heard.

The facts of this case and the background of the relevant legislation are set forth more fully in Possaro I, which in turn relied heavily on the Court of Claims decision in Barber v. United States, 230 Ct.Cl. 287, 676 F.2d 651 (1982). Familiarity with both opinions is presumed, but, briefly, the facts are as follows: Congress passed the Armed Forces Survivor Benefit Plan Act, Pub.L. 92-425, 86 Stat. 706 et seq. (1972) (“the Act”), to remedy certain perceived deficiencies in the prior armed forces survivor annuity plan then in force. The Act created the Survivor Benefits Plan (“SBP” or “the Plan”) (codified at 10 U.S.C. §§ 1447-1455). The SBP makes all service [756]*756personnel, upon retirement, automatic participants in a survivor annuity plan funded by deductions from the individual’s retired pay.

Plaintiff’s husband, Major Passaro, retired before the effective date of the Plan. Pursuant to section 3(b) of the Act (which was not subsequently codified), Major Passaro was entitled to participate in the Plan if he so elected within eighteen months of the effective date of the Act. Major Passaro affirmatively elected, by informing the Army in writing, to not participate in the Plan. Upon Major Passaro’s death, plaintiff applied to the Army for benefits under the SBP. The Army refused payment, and plaintiff filed a complaint in this court.

Defendant contends that this court lacks jurisdiction because plaintiff’s claim is not founded on any provision of the Constitution or an Act of Congress which grants her a right to money damages against the United States. Alternatively, defendant argues that even if this court has jurisdiction, plaintiff has failed to state a claim upon which relief can be granted.

Plaintiff, relying on the provisions of the Act and on the decision in Barber, asserts that this court does have jurisdiction, inasmuch as the Army did violate an applicable Act of Congress by not notifying plaintiff of her husband’s written election (not to participate), and that a remedy can be fashioned to correct the violation.

Both parties agree that there are no disputes as to material facts and that the issues are capable of disposition on summary judgment.

In the motion at bar, defendant contends that this court has improperly exercised its equitable powers by, in effect, retroactively placing Major Passaro within the SBP. Defendant states that, prior to any such action in equity, the court must find a present claim for money damages. What defendant apparently ignores is both this court’s earlier analysis of the Act, Passaro I, 4 Cl.Ct. at 400-401, and the ruling in Barber.

Defendant argues that the language of 10 U.S.C. § 1448(a) (that section of the SBP mandating notification of the spouse in the event the retiree decides not to participate in the Plan), because it is phrased entirely in the present tense, e.g., “becomes,” “elects,” etc., does not apply to one who had already retired when the Act became effective. This argument completely ignores section 3(b) of the Act. This approach is entirely improper because “ ‘ “In expounding a statute, we must not be guided by a single sentence or member of a sentence, but look to the provisions of the whole law, and to its object and policy.” United States v. Heirs of Boisdoree, 8 How. (49 U.S.) 113, 122, 12 L.Ed. 1009 (1849); * * *.' Philbrook v. Glodgett, 421 U.S. 707, 713, 95 S.Ct. 1893, 1898, 44 L.Ed.2d 525 (1975).” Barber, 230 Ct.Cl. at 293. Pursuant to section 3(b) of the Act, Major Passaro was given an opportunity “to participate in the Survivor Benefit Plan established pursuant to clause (3) of the first section of this Act.” The referenced clause of the first section of the Act contained the Plan in codified form. To adopt defendant’s analysis of § 1448(a) would render nugatory any meaning section 3(b) of the Act may have, i.e., no person referred to by section 3(b) would later become entitled to retired pay, and thus, no person referred to by section 3(b) would be eligible to participate in the Act. Furthermore, section 3(b) makes one in Major Passaro’s position eligible under the entire Plan — there is no express limitation as to which sections of the Plan are applicable, rather, the whole Plan is referenced. This court will neither add words not found in the Congressional Act, nor excise a portion of the Act without express reason.

Having thus found that section 3(b) invokes all the provisions of the Plan, it is to those provisions that resort must be had to determine the effect of Major Passaro’s election. Section 1448(a) clearly states: “If a person who is married elects not to participate in the Plan at the maximum level, that person’s spouse shall be notified of the decision.” (Emphasis supplied.) The parties have stipulated that Major Passaro [757]*757did indeed make an election, that that election was to forego participation, and that plaintiff was not notified of that election. Because this court is bound by decisions of the Court of Claims, it is bound to hold, as was held in Barber, that failure to notify the spouse was a violation of § 1448(a). The Barber court held that this violation “can be fairly said to give rise to a claim for money damages.” Barber, 230 Ct.Cl. at 291, 676 F.2d 651.

Having viewed the Act as a whole, rather than considering merely an isolated part thereof, the court finds that defendant’s bases for objection are unpersuasive. This court holds that: (1) jurisdiction is proper, inasmuch as plaintiff bases her claim on an Act of Congress, 28 U.S.C. § 1491(a)(1), viz., the Armed Forces Survivor Benefit Plan Act of 1972; and (2) plaintiff has stated a claim upon which relief can be granted because, by virtue of the Barber decision, the violation of the spousal notification provision in § 1448(a) gives rise to a claim for money damages.

Defendant avers, however, that money damages should not be awarded in this case because of the potentially large number of claims which may be filed. Defendant posits that approximately 800,000 individuals were eligible to join the SBP under section 3 of the Act. It is argued that this court’s decision creates a cause of action for the survivors of those individuals, and the armed forces’ consequent liability would be overwhelming. The argument is unpersuasive, as have been many of such “floodgate” arguments.

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Passaro v. United States, 5 Cl. Ct. 754, 1984 U.S. Claims LEXIS 1331 (cc 1984).

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