Woods v. United States

158 F. Supp. 141, 141 Ct. Cl. 203, 1958 U.S. Ct. Cl. LEXIS 69

• Court: United States Court of Claims
• Decided: January 15, 1958
• Docket: No. 44-54
• Status: Published

Opinions

LittletON, Judge,

delivered the opinion of the court:

Plaintiff in this case is claiming increased retired pay under section 3 of the Act of January 12,1923,42 Stat. 1130, 1131 which provides in part as follows:

* * * That hereafter when a commissioned officer of the Coast Guard who has had forty years’ service shall retire, he shall be placed on the retired list with the rank and retired pay of one grade above that actually held by him at the time of retirement; * * *

Plaintiff was retired on March 1, 1939, as a chief warrant officer of the Coast Guard with over 37 years of active service. On January 1,1942, plaintiff was recalled to active duty as a chief warrant officer and on September 23, 1943, he was given a temporary promotion to lieutenant under the Temporary Promotions Act of July 24, 1941, 55 Stat. 603. On August 1,1946, plaintiff was released from active duty and, pursuant to section 10 (a) and (b) of the 1946 amendment to the 1941 Act (60 Stat. 26,28), was advanced on the retired list to the grade of lieutenant, the “highest grade and rank in which, as determined by the Secretary of the Navy,” he had “served satisfactorily under a temporary appointment.” Plaintiff was given the retired rank and pay provided for in the 1941 Act as amended, but -was not given the rank and pay of lieutenant commander to which he claims he was entitled under the 1923 Act because of his more than 40 years of active service.

The Act of January 12,1923, on which plaintiff relies had not been repealed in 1946, and nothing in that act indicates that the “commissioned officers” referred to therein must have served as commissioned officers for the entire 40 years. Neither does the language of the 1923 Act indicate that a break in active service, during which break the officer is on the retired list, will deprive him of the benefits when he actually does complete 40 years of service.

We are of the opinion that the benefits of the 1923 statute were expressly reserved in the .1946 amendment to the 1941 Temporary Promotions Act under the provisions of subpara-graph (e) of section 10 as amended:

_(e) The highest rank in which an officer served on or prior to June30,1946 * * * is the highest rank in which the officer may be retired and upon which his retired pay may be based pursuant to this section, v/nless wilder prom-sions of law other than those contained within this section he is entitled to a higher rank on the retired list or to a higher retired pay, * >* * [Italics supplied.]

Section 3 of the 1923 Act was a “provision [s] of law other than those contained within” section 10 of the 1941 Act as amended, under which plaintiff was entitled to the higher rank on the retired list, i. e., that of lieutenant commander, by virtue of his having completed more than 40 years of active duty in the Coast Guard.

Section 10 (e) of the 1941 Act, as amended, was not referred to by either party to this lawsuit, but it appears to be applicable and to permit us to read the unrepealed¹1923 law with the 1941 law.

Defendant’s motion for summary judgment is denied and plaintiff’s motion for summary judgment is granted. Plaintiff is entitled to recover and judgment is entered to that effect with the amount of recovery to be determined pursuant to Hule 38 (c).

It is so ordered.

Faht, Circuit Judge, sitting by designation; MaddeN, Judge; and JoNes, Chief Judge, concur.

1 When the Act of January 12, 1923, was repealed by section 20 of the Act of August 4, 1949, 63 Stat. 561, 563, It was provided that any rights or liabilities then existing under the provisions of that act should not be affected by the repeal.