CASS v. UNITED STATES

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Argument of Arthur B. Hanson

Chief Justice Warren E. Burger: We will hear arguments next in Cass against the United States, 73-604, Adams against the Secretary of Navy, 73-5661.

Mr. Hanson.

Mr. Arthur B. Hanson: Mr. Chief Justice, distinguished Associate Justices, may it please the Court.

At the outset, I would like to call the Court’s attention to the fact that we did not receive the reply brief in this matter until this past Friday.

We would ask the Court’s indulgence in permitting us to file a typewritten brief in reply, if we may certainly not later at the end of this week.

Chief Justice Warren E. Burger: That plea will be granted Mr. Hanson, you may take even a little more time if you need it.

Mr. Arthur B. Hanson: Thank you sir.

This applies of course to my Brother Dougherty who is arguing the other cases.

Chief Justice Warren E. Burger: Yes of course.

Mr. Arthur B. Hanson: And Your Honors, we would like to call your attention to two items.

One appearing at page 20 and another, 21 of the Solicitor General’s brief.

The footnote on page 20 refers to the time, that the Government filed its petition for writ of certiorari in Schmid against the United States.

And it discusses the fact that this might increase the Government’s potential liability by more than $12 million if that case were not reversed.

I had the pleasure of arguing Schmid in the Court of Claims and I protested vehemently at that time that this remark was placed in the Schmid petition to this court that it was outside the record.

This was never raised in the court below, and the Court of Claims, it’s never been raised in the Ninth Circuit nor in the District Courts that have considered this matter and I think it is inappropriate as it be brought before the court, I would ask that it be disregarded.

Truthfully, they can find out what it would cost but they never have and they never tried to put it into the record.

I don’t think it should be here today.

Secondly, on page 21, I would almost say the Freudian slip but I will term it inadvertence.

In the middle of the page, when they quote under paragraph number two, they say, “for the purpose of this subsection” when they are trying to discuss our approach to interpreting the statute.

I would urge the court to note that this was done in Schmid and it was done in the Ninth Circuit and here it is again.

We have repeatedly called the government’s attention that the statute reads “for the purposes of this subsection” and that is highly important and we’re sorry that it slipped back in.

Now, if I may I’ll address my remarks to the case in chief.

We are here primarily on a matter involving purely a question of statutory construction, the statute involved is 10 U.S.C. 687 (a).

An impertinent part, that statute involves reserve officers of all the services who have served more than their -- one might say indentured service in a sense whether they were in the draft call or whether they were called up for some other purpose, they have served more than four years.

And then have extended onward their service at the request of the Government and then were discharged involuntarily before they reached a fifth year of service when the war in Vietnam was winding down and they were released just prior to the fifth year, in many instances within a few days of having completed five years of service.

Now, we have cited this statute for purposes of this discussion before the court.

If you see page two of our brief, we have set it forth and I think that since we’re dealing with the exact language, I would like to recite it to you in a sense.

We say, “Non-Regulars: readjustment payment upon involuntary release from active duty.

“Except for members covered by subsection (b), a member of the reserve -- of a reserve component or a member of the Army or the Air Force without component who is released from active duty involuntarily, or because he was not accepted for an additional tour of active duty for which he volunteered after he’d completed a tour of active duty, and who has completed immediately before his release, at least five years of continuous active duty, is entitled to a readjustment payment computed by multiplying his years of active service other than in time of war or of national emergency declared by Congress after June 28, 1962, but not more than eighteen, by two months' basic pay of the grade in which he is serving at the time of his release.

For the purposes of this subsection, (1) a period of active duty is continuous, if it is not interrupted by a break in service of more than 30 days; and (2) a part of a year that is six months or more is counted as a whole year, and a part of a year that is less than six months is disregarded.

Now with that statute in front of you, with nothing else before you, I think the court would reach the same conclusion that the Court of Claims did.

And we urge that the court read carefully the decision Schmid.

As you may recall Your Honors, you rejected the petitioners’ certiorari in Schmid by applying the two votes.

Now, what has happened is that a number of officers in Schmid’s case, he had a requirement for some $13,000.00 or $14,000.00, so he had to go to the Court of Claims on the jurisdiction.

Certain of the other people involved have gone to the Federal District Court as a matter of convenience because they had $10,000.00 or less dollars involved that jurisdictionally, they could use the District Court.

And that’s why we are here today.

Cass was one of those who had $10,000.00, some odd dollars and he waved the above $10,000.00 to come here in the District Court.

Unknown Speaker: Mr. Hanson, is this applicable to Commissioned Officers only or is it to all reservist who come within --?

Mr. Arthur B. Hanson: In this particular part of the statute --

Unknown Speaker: All these people are officers, I know.

Mr. Arthur B. Hanson: Your Honor, these are all officers but it would be my view that it’s applicable to all members of the reserve who are in there on a voluntary extension of their four-year enlistment period.

And what happened in this case was that many of these people officers and men served more than the five years during the Vietnam unpleasantness which was not declared a state of emergency or a war and that’s why the terms of the statute but those have already been taken care of by recomputation.

It happens that this applies only to those who had extended their service expecting to go on for as long as the government needed them and then when the government saw that situation lining down, they quickly got a number of them out before they completed the fifth year.

It might interest you to know that Schmid in that case had served four years plus in a previous enlistment as an enlisted man and then came back in the Navy as an officer and served four years, six months and some odd days.

So that when actually we went in for his case, we were dealing with a recomputation based on his total years of service which gave him something in excess of $13,000.00 as opposed to the smaller amounts here although he is of a similar rank.

Justice William H. Rehnquist: Mr. Hanson?

Mr. Arthur B. Hanson: Yes.

Justice William H. Rehnquist: What if there had been an interruption in the service in the middle of a five-year period?

If they have five months, would you make the same argument?

Mr. Arthur B. Hanson: No, because the statute very clearly states that a period of active duty is continuous if it is not interrupted by a break in service of more than 30 days.

But I’m glad you raised that because that again emphasizes the defining portions of the statute.

The statute’s main body is defined in two areas.

“For the purposes of this subsection; (1) a period of active duty is continuous, if it is not interrupted by a break in service of more than 30 days.

If it had been interrupted by a break in service of more than 30 days such as the five months you raised, then he would not qualify for this statute.

Justice William H. Rehnquist: Why couldn’t you argue under your theory that the part of the year, that’s six months or more should be counted as a full year?

Mr. Arthur B. Hanson: Because another section of the statute covers it.

The other section says, “A part of a year that’s six months or more is counted as a whole year, and a part of a year that is less than six months is disregarded for -- this is for purposes of eligibility in that sense whereas if he doesn’t have unbroken active duty, if it's only broken for 30 days, he still qualifies under Section 2.

But if he has a break of more than 30 days, he is disqualified and he is eliminated from it under Section 1.

And what I’m suggesting to Your Honor is that you will find that you must read the statute as a whole and it is not at all unusual to qualify a statute by the language in the following part of it.

Now, I will call your attention to 6330, Title 10, U.S.C 6330, which is quoted on page 11 of our brief.

And that again is interesting because it is applicable to exactly the same sort of recomputation and eligibility.

That applies to members of the Marine Corp and Marine Corp Reserve, they're going to be transferred to the Fleet Marine Corp Reserve.

It says, “For the purposes of subsections (b) and (c), a part of a year that is six months or more is counted as a whole year and a part of a year that’s less than six months is disregarded.”

Unknown Speaker: But if this section -- if this statute read the way 6330 does, you wouldn’t have a problem would you?

Mr. Arthur B. Hanson: It does read that way Your Honor.

That’s what we are saying, it reads exactly that way.

Unknown Speaker: Well it seems to me the statutes are different.

Mr. Arthur B. Hanson: They are different in one sense.

But 6330 applies to someone who has served 19 years and six months so they are released at the end of 19 years and six months and this is a usual thing in the services to do and they are given credit for that remainder, they're given 19 years, six months and a day and they are then credited with 20 years of service.

Chief Justice Warren E. Burger: It’s a term at least.

Mr. Arthur B. Hanson: That’s right.

Chief Justice Warren E. Burger: Not in there is it?

Mr. Arthur B. Hanson: Sir?

Chief Justice Warren E. Burger: The term at least modifying five years is not in the 6330, is it?

Mr. Arthur B. Hanson: Well, no Your Honor it is not but it says, “An enlisted member of the Regular Navy or the Naval Reserve who’s completed 20 or more years of active service in the armed forces may, at his request, be transferred to the Fleet Reserve.”

Then they say for the purposes of this, they left them out in 19-and-a-half years and one day.

Chief Justice Warren E. Burger: Well, as Mr. Justice Blackmun said, if you had that kind of a provision in 687, you would have a different --

Mr. Arthur B. Hanson: Well, possibly Your Honor.

But I would suggest that when they said at least five years of continuous active duty and then they come down and tell me that for purposes of this subsection that a part of a year that’s six months or more is counted as a whole year, then he has completed at least five years of active duty.

Chief Justice Warren E. Burger: Well isn’t it reasonable that Congress intended to give a greater boon if you want to call it that to a man who had served five or less months or four years almost than someone who had just served four years and had been extended?

Mr. Arthur B. Hanson: No Your Honor because those people are what we call the 20-year group and they have been in for 20 years and are entitled to retire both to promotion flow and other items whereas these people are called-in in a time of emergency such as the Vietnam war.

Most of these people were draftees who came in for an initial tour of four years and then they extended at the requirement of the Government and then asked to continue on and then were involuntarily retired when it seemed to be in the Government’s budgetary interest to reduce them.

Chief Justice Warren E. Burger: But my question is, is it not reasonable to assume that Congress was prepared -- had a different attitude toward so called 20-year people than 4-year people who might serve a little bit over?

Mr. Arthur B. Hanson: Well, I would have some question to that Mr. Chief Justice.

There is a reserve officer for some 33 years and still one.

I think the Congress is very concerned with the very people we’re concerned with here.

And I would point out one other thing that in the court’s attempt in the Ninth Circuit to reach that conclusion, they may mention of the fact that the Senate Report involves, suggested that perhaps there was not subsidy change in that statute when it was recodified.

I’d call two things to the Court’s attention, first, 6330 was passed in 1958.

That was subsequent to the initial passage of 687 (a), which was passed in 1956.

When they recodified these matters in 1962, some water had gone under the bridge and we believe that the Congress intended to do exactly what it did.

They don’t mention the House Report.

This bill had to go through both Houses.

It didn’t just go through the Senate.

And the fact that the Senate said, “Well we don’t think this is any substantive change,” is really immaterial to the consideration of this matter because when it was passed by both Houses, a change did appear.

And the change is the one that finds 687 (a) exactly as the Court of Claims found it.

And I would urge this court to pay particular attention to the language in the Court of Claims decision where they went behind the statute and stated very clearly on page three of their opinion that although we find the sections clear and unambiguous on its face and its susceptible on its face of only one interpretation.

They then go on to say although we find no ambiguity in the words of the statute, we’re not precluded from examining the legislative history underlying the enactment in order to determine whether it is clear and compelling support for the interpretation.

They then went on to say that after a careful --

Unknown Speaker: (Inaudible)

Mr. Arthur B. Hanson: So that after a careful review of the legislative history of Section 687 (a), then we can conclude that support which it lends to defendants position, namely the government, is not so clear and compelling as to require us to adopt an interpretation of the section inconsistent with a clear import of its terms.

And I would like to add one other thing if I may --

Justice Byron R. White: Well, now what?

Mr. Arthur B. Hanson: Excuse me.

Go ahead.

Justice Byron R. White: Under paragraph two, it says that a part of a year that’s less than six months is disregarded.

Mr. Arthur B. Hanson: Yes sir.

Justice Byron R. White: So that would have no conceivable application to eligibility, would it?

Mr. Arthur B. Hanson: Well, it would to this extent Mr. Justice White.

If the (Voice Overlap) --

Justice Byron R. White: Well, I don’t see how it could.

Mr. Arthur B. Hanson: If the man had served four years, five months and 27 days in a leap year February, well, he certainly would have served less than six months then he would not be eligible.

But if he had served four years, six months and one day, he would be eligible.

Justice Byron R. White: Well, I know but you -- I can see how -- you might arguably say the first part of Section 2 applies that to eligibility as well as computation but the last part of it I would think would apply -- could apply only to computation.

And so arguably, the whole Section 2 is a computation section.

Mr. Arthur B. Hanson: Well again, I can only state that the Court of Claims did review this with great care and they addressed that argument thoroughly.

I would urge Your Honors to address it carefully and I think one of the items that persuade it and I was about to call your attention to this is the fact that this is a remedial statute.

And as such, it’s our view that it must be most carefully construed in favor of the petitioners in this case.

Justice Harry A. Blackmun: Mr. Hanson, on your view, why wouldn’t Congress had merely provided for four and a half years instead of five as the basic eligibility period and forget about subsection (2)?

Mr. Arthur B. Hanson: I’m not being fictitious when I say this Mr. Justice Blackmun.

The Congress does many things that I wonder about.

But it’s my view that there are many statutes which they describe in terms of this nature.

They set out what a statute is and then they put a caboose on it so to speak in which they say, “For purposes of this section, we mean the following.”

And that’s what we say they’ve done here and this isn’t unusual.

My time is up, for that, I thank you.

Chief Justice Warren E. Burger: Mr. Dougherty.

Argument of William A. Dougherty

Mr. William A. Dougherty: Mr. Chief Justice, may it please the Court.

Might I point out in the beginning that our case is slightly different than that of Cass because we deal with three Marine Captain Aviators and the statute, we cite 6330 of Title 10, deals specifically with the Navy and the Marine Corps and specifically with Regulars and Reserves of the Navy in Marine Corps.

As with Cass, we take the position of course that the statute is clear on its face.

First, it sets forth a standard and the standard is, “At least five years of continuous active duty.”

And then with the preface, “For the purposes, I emphasize, of this subsection,” it goes on to define specifically what the phrase continuous active duty means as was explained to Mr. Justice Rehnquist and then it specifically defines the word year.

Now, what the Ninth Circuit did, I submit is it overlooked the plain meaning of the words in Section 2 defining the word year.

And it took the first part of the statute, subsection (1) and then ignored (2).

The statute, 10 U.S.C. 6330 uses exactly the same phraseology, the same words as does 687 (a) and specifically as I pointed out refers to Navy and Marine personnel both regular and reserve.

I would also --

Justice John Paul Stevens: You're not suggesting that 6330 covers your client because 6330 among other things applies only to enlisted personnel and also only to those who have completed 20 or more years?

So what is your point that your case is different?

Mr. William A. Dougherty: My point is that 6330 allows a six months rounding figure both as to regulars and to reserves and I think that’s significant.

And since we are dealing all our clients in this case are reservists, I think it’s significant and I was just about if I may call the court’s attention to a statute that no one has cited in the briefs, the Justice or the amicus curiae or anybody.

And it is 10 U.S.C. 277.

And its states that the laws applying to both regulars and reserves shall be administered without discrimination, (1) among regulars; (2) among reserves; and (3) between regulars and reserves.

And I’m submitting that there's a different treatment of reserves in 6330 than there is in 67 (a) and that contravenes the statute that I have just cited.

Chief Justice Warren E. Burger: Does that help your case any Mr. Dougherty that the statute Justice Stewart just cited to you contains an expressed provision for rounding out when there's less than the full period and the statute contains no such rounding out provision?

Mr. William A. Dougherty: Mr. Chief Justice, it’s our position that the “rounding” provisions of both statutes are exactly the same.

The only difference is the term at least five years as you asked earlier and in reference to 20 years.

Chief Justice Warren E. Burger: Well at least is -- those are two pretty important words in that statute, are they not?

Mr. William A. Dougherty: But if you take the subsection (2) as defining the word year, it says, “A period of six months or more” and it says, “For purposes of this subsection,” that means the whole subsection.

It just doesn’t mean part of it.

And that’s the thing the Ninth Circuit missed, I submit.

Unknown Speaker: Before 1962 to 1962, you wouldn’t have much of a case would you?

Mr. William A. Dougherty: Before 1962?

Unknown Speaker: Well before the statute was codified in to its present form?

Mr. William A. Dougherty: If you take the, it was 1016 of Title 50, that was a different statute, yes, I agree.

Unknown Speaker: But --

Mr. William A. Dougherty: That uses -- that specifically used the term for computation.

Unknown Speaker: But didn’t the reports indicate when they codified it that they didn’t intend any substantive change?

Mr. William A. Dougherty: Well only -- it depends where you look sir.

The Senate says, Mr. Hanson pointed out, the Senate put it -- set it at one time but --

Unknown Speaker: But that’s the usual rule on codifications anyway, isn’t it?

Mr. William A. Dougherty: Well, Mr. Lubenity (ph), as we pointed on our brief, Mr. Lubenity's (ph) original bill in 1956 contained three things.

It amended, it changed and it codified.

There were three separate bills, not just one.

That’s on page nine -- eight of our brief if you please.

They were incorporated as Titles 1, 2 and 3 to the bill, (1) To amend Title 10; (2) To codify recent military laws; and (3) To improve the Corp.

So at best, the legislative history of this statute is ambiguous.

Thank you.

My time is up.

Chief Justice Warren E. Burger: Thank you Mr. Dougherty.

Mr. Patton.

Argument of William L. Patton

Mr. William L. Patton: Mr. Chief Justice, may it please the Court.

The government’s view is that this case presents an instance where a mistake was made in the codification of the statute.

Petitioners contend that the Act is clear on its face and that because it is clear, this court cannot look to either the antecedent statute or the legislative history of the 1962 codification in construing the Act.

And alternatively, they argue that the legislative history supports their claim that in 1962, Congress intended to change the eligibility requirement. Our position is that the statute is not clear and that any doubt as to its meaning is dispelled by a consideration of the antecedent statute and the legislative history.

And even if the statute redeemed clear on the first examination, there surely is no rule which forbids resort to aids and construction.

And indeed, resort to such aids is particularly -- excuse me, particularly appropriate in the case of codified statute.

Now, when we begin with subsection (a) of the Adjustment Act, we find that it deals with two subjects.

First, Congress expressly fixed the eligibility requirement at five years of continuous act of service.

It then provided that the amount of pay would be computed by multiplying years of service by two months basic pay.

Because calculation of amount of pay rests on years of service, it was then necessary to account for fractional service.

And we submit that the “rounding” provision, that part of a year which is six months or more shall be counted as a year and less than six months disregarded applies to calculation and only to calculation.

We have a hypothetical in our brief, which illustrates our position clearly.

If a serviceman had served four years and eight months, he would not in our view be eligible for adjustment pay.

If however, he had served 13 years and four months, he would be eligible and the amount of the pay would be computed by multiplying 13 by two months of basic pay, the four months being disregarded under the “rounding” provision.

If he had served 13 years and eight months, it would be calculated by multiplying two months basic pay by 14 years, the eighth months being counted as a year under the “rounding” provision.

It would be possible to read the “rounding” provision to apply to its eligibility by focusing on the plural purposes.

But to do so involves a number of problems.

One as Mr. Justice White has pointed out that part of the “rounding” provision, which calls for disregarding less than six months, has no application.

Secondly --

Justice Potter Stewart: Well, wouldn’t that be equally true under 6330?

Mr. William L. Patton: It would be under 6330.

That’s right Mr. Justice Stewart and with respect to 6330, our position is that that statute is more clear than the Adjustment Pay Act.

Justice Potter Stewart: Well, it’s your --

Mr. William L. Patton: And --

Justice Potter Stewart: -- submission but I’m just asking now about this little argument you’ve made --

Mr. William L. Patton: I agree that --

Justice Potter Stewart: That the less than six months would have no meaning if the petitioner’s construction were accepted.

But the less than six months has no meaning from the point of eligibility under 6330 even though you concede that the petitioners -- that that means commissioning that --

Unknown Speaker: It has a meaning for a computation.

Mr. William L. Patton: It has meaning for computation, 6330.

Justice Potter Stewart: Or so, does that for computation.

Mr. William L. Patton: For computation, that’s right.

Justice Potter Stewart: So the arguments -- your argument would be equally applicable to 6330.

Mr. William L. Patton: That’s correct and Frankly, I find 6330 on the first examination is somewhat curious.

Justice Harry A. Blackmun: But at least 6330 refers specifically to subsections (b) and (c).

Mr. William L. Patton: That’s correct Mr. Justice Blackmun and I think --

Justice Potter Stewart: Well, but in this case, we only have one subsection.

And that’s --

Mr. William L. Patton: That’s right.

Justice Potter Stewart: And this statute for the purposes of this subsection, what are you going to -- you can’t say (b) and (c) here because there is no (b) and (c), there's only one.

Mr. William L. Patton: That’s correct and I don’t suggest that this statute is a model of clarity and I do say that if 6330 were involved --

Justice Potter Stewart: That’s where you differ from your Brothers on the other side, they say it is very clear.

Mr. William L. Patton: That’s right Mr. Justice Stewart that’s where we disagree.

And the question is whether the court can resort to aids and construction in determining what Congress intended with this provision.

Now, an additional factor is that in the Adjustment Pay Act, Congress specifically required five years of continuous service for eligibility.

A “rounding” provision would not be necessary for eligibility.

I agree it would not be necessary in 6330 either.

And since a “rounding” provision really serves only one function as a matter of necessity, we submit that the words immediately preceding it in the Adjustment Pay Act for the purposes of this section are ambiguous.

And any doubt as to what Congress intended is dispelled by a consideration of the original Act and the legislative history of the 1962 codification.

The adjustment pay was established in 1956 and at that time there was no ambiguity in the statute.

That Act required five years continuous service and then with respect to the “rounding” provision, it expressly stated that the “rounding” provision was to be applied in computing the amounts of adjustment pay.

The eligibility requirement and the restriction of the “rounding” provision to computation remained unchanged until 1962.

In 1962, Congress recodified recent military pay legislation.

And in the course of codification, the words preceding the “rounding” provision were changed from, “For the purposes of computing the amount of adjustment pay” to “for the purposes of this subsection.”

That this change was inadvertent, is demonstrated by consideration of the legislative history.

The Senate Report states that no substantive change was intended.

While the Senate and House Reports purport to list all changes made in the codified legislation, the change in the “rounding” provision is not referred to.

There are no debates, no hearings, indeed, no reference to changing the eligibility requirement.

Justice William J. Brennan: Well, let me see Mr. Patton, this is an argument I gather that based on that absence of legislative history that we ought read the changes if it weren’t made.

Mr. William L. Patton: That’s correct Mr. Justice Brennan.

I think it’s a little more than just the absence of legislative history because there isn’t affirmative statement in the Senate Report that no substantive changes were intended.

Unknown Speaker: How about the House report?

Mr. William L. Patton: The House report does not contain that statement.

Basically, the House Report simply lists the changes made.

Unknown Speaker: Including this one?

Mr. William L. Patton: It doesn’t list this one.

The reports are somewhat confused.

The reports lists these changes the omission of the words “for the purposes of its surplusage” but in fact that phrase was not omitted.

Now, another point is that substantive changes in military legislation are ordinarily made under the supervision of the Armed Forces committees of the Senate House.

But the codification was carried out by the judiciary committee so it would’ve been most unusual for them to make substantive changes.

Justice William H. Rehnquist: Mr. Patton, what if this 687 (a) as you showed at the top of page three of your brief where it says at least five years of continuous active duty.

Supposing that said at least three years of continuous active duty, and if that -- it had gone through committee in that language passed on the floor, that language, we wouldn’t listen to you now I take it, say that what Congress really meant was the five years and that they simply made a mistake in putting in the word three.

Mr. William L. Patton: Well, it would be a much more difficult case if that’s what happened.

Appellee, that’s not presented here.

I take the reason would be much more difficult is because there’s a certain specificity about numbers.

That would make it difficult to argue that no change was intended.

I think it unlikely that that would have escaped unnoticed.

Now, I think when you consider --

Chief Justice Warren E. Burger: Especially when the report contained the statement that there's no substantive change, someone might ask if the difference between three and five wasn’t substantive, one would assume that someone in Congress would think about.

Mr. William L. Patton: I would certainly hope so.

I think when you consider the original Act in the legislative history, there really is no dispute that Congress did not intend to change the eligibility requirement.

As I understand the petitioner’s argument from their briefs, their argument essentially is that this court can’t look at the original statute or the legislative history.

But that the government must be bound by what they consider to be the plain meaning of the language.

Now, in support of the plain meaning doctrine, the petitioners rely largely on older precedents of this court, many of them, 19th Century decisions.

If the plain meaning was ever applied in the pristine form contended for by the petitioners, it can no longer be deemed controlling.

I suggest that upon analysis, most cases, which invoke the plain meaning doctrine, do not in fact apply it.

In any event as this court has said in American Trucking -- United States versus American Trucking which is cited at page 22 of our brief, when aid to construction of the meaning of words, as used in the statute is available, there certainly can be no rule of law which forbids its use, however clear the words may appear on superficial examination.

Now the resort to aids and construction is particularly appropriate when codified statutes are in dispute.

And at the bottom of page 22 of our brief, we’ve cited a number of decisions of this court which indicate the changes in the language and codification do not ordinarily result in changes of meaning even where a literal reading might result in a substantive change.

Justice Thurgood Marshall: The statutes were past by both of the departments as they now exist.

Mr. William L. Patton: That’s correct.

Justice Thurgood Marshall: Well, let me ask you another question as to the -- the Government asked Congress to clarify --

Mr. William L. Patton: It’s my understanding --

Justice Thurgood Marshall: Has the Government told Congress that they made a mistake, has the Congress told them that they misstated what they meant.

Has Congress asked the statute to be amended, has Congress done any of those -- I mean, has the Government done any of those things or do you want us to regard it?

Mr. William L. Patton: It’s my understanding Mr. Justice Marshall that we have not though -- it’s our position that the court can construe the statute in accordance with what we think the Congress's purpose clearly was and then it’s not necessary to go back --

Justice Thurgood Marshall: But where is it clearly?

Mr. William L. Patton: Well, that rests on our position.

That is the codified statute.

And that this Court can look to the amnestied Act in the legislative history in construing its terms.

Justice Thurgood Marshall: I want to clearly --

Mr. William L. Patton: Oh!

I think if you look at the original Act, which had the restriction in it, the “rounding” provision applied only to computation.

And the Senate Report in the codification which states that no substantive change was intended that I think it follows that no substantive change was intended and that --

Justice Thurgood Marshall: Because this is not in the House.

Mr. William L. Patton: Well, the House Report is silent on this matter.

There were no hearings.

Justice Thurgood Marshall: So all you’ve got is one sentence and one report, which makes it clear?

Mr. William L. Patton: Well, there's a complete absence of any suggestion that Congress has --

Justice Thurgood Marshall: (Voice Overlap) make it clear.

Mr. William L. Patton: Well, if changing --

Justice Thurgood Marshall: You’ve taken on the burden in showing that this is clear?

And I don’t think you just needed --

Mr. William L. Patton: Well, perhaps I have misled the court.

I don’t suggest that the statute is clear.

I think the statute is unclear.

But I think when you look at the --

Justice Thurgood Marshall: But you said that clearly Congress intended something other than what it said.

Mr. William L. Patton: Cause I don’t think --

Justice Thurgood Marshall: Is that an accurate statement?

Mr. William L. Patton: I don’t think Congress intended to change the eligibility requirement.

Justice Thurgood Marshall: Do you say that Congress didn’t say what it said?

Mr. William L. Patton: Well, no, I don’t say that.

I mean the statute was passed.

I say that the omission of the words for the purposes of computing the amount of pay was inadvertent.

Justice Thurgood Marshall: What do you mean by inadvertent?

Mr. William L. Patton: I think it was unintentional.

There's no suggestion anywhere that the Congress intended to reduce the eligibility requirement.

Justice Thurgood Marshall: Well, then you say it’s clearly, it was inadvertent?

Mr. William L. Patton: Well, I think its clear that it was inadvertent.

And I hope the court will agree with me after looking at the legislative history.

Justice Thurgood Marshall: Completely agree with you (Inaudible)?

Mr. William L. Patton: Well, the Court of Claims found the statute clear in its face and requiring four-and-a-half years and the Court of Appeals to the Ninth Circuit found it clear and requiring five years.

Justice Thurgood Marshall: So you’re now telling me that the Ninth Circuit is clearly correct and the Court of Claims is clearly incorrect.

Mr. William L. Patton: No, I’m saying --

Justice Thurgood Marshall: Oh!

I thought, just the middle.

Mr. William L. Patton: The statute is ambiguous and I believe this court may construe it in accordance with the purposes of -- that Congress as found in the legislative history.

For example, in City of Greenwood against Peacock, which involved the application of the Federal Civil Rights, removal statute, to prosecutions against private citizens, this court found that the original removal statute in the Civil Rights Act of 1866 had provided for removal of prosecutions against officers or other persons.

In 1948 when Congress codified what is now Title 28 of the Code, that phrase was omitted.

And relying on the legislative history, reports which stated that no substantive change was intended, this court read the statute as though that phrase had not been omitted.

Justice Thurgood Marshall: I think it had a little more than one sentence in one report?

Mr. William L. Patton: Well, it may have been in both the Senate and House reports but I don’t --

Justice Thurgood Marshall: You only have one sentence.

Mr. William L. Patton: Well, we only have one sentence of that -- affirmative sentence but we have no indication that there was any consideration given to changing the eligibility requirements.

Justice Thurgood Marshall: That was the bill as it was written.

Mr. William L. Patton: Well, that doesn’t suggest -- it doesn't aindicate considerations.

Justice Thurgood Marshall: Well does that indicate that Congress doesn’t read the bill before they pass it?

Mr. William L. Patton: I have no doubt Mr. Justice Marshall that that occurs in some cases in terms of technical language of the bill.

Now, I’d just like to add finally that the construction which the government urges is supported by an established administrative construction.

The regulations of the Department of Defense and the pay manuals of the services if uniformly construed the “rounding” provision as applicable only to computation.

And finally, page 11 of our brief, we’ve listed a number of statutes which include the “rounding” provision and we submit that our construction is consistent with the pattern of similar legislation.

Five years of continuous active service is required for eligibility.

None of the petitioners in this case has served five years and therefore, we submit that the decision of the Court of Appeals for the Ninth Circuit should be affirmed.

Chief Justice Warren E. Burger: Thank you Mr. Patton.

Mr. Dougherty, do you have anything further?

Rebuttal of William A. Dougherty

Mr. William A. Dougherty: May it please the Court Mr. Chief Justice, I’ll be brief.

We submit that the best refutation for the last argument that all the services administratively construe this the same way is specious because it’s the Department of Defense order and it's axiomatic that if the Department of Defense construes the statute one way, the all four branches will routinely take the order of the Department of Defense.

And secondly, we submit that the government has construed the statute or should construe this statute in the same way it is construing 6330 as it has done routinely in 6330 for the last 16 years.

Also --

Justice Potter Stewart: Well you have a different situation here Mr. Dougherty.

Mr. William A. Dougherty: Yes sir.

Justice Potter Stewart: Up until 1962, it was very clear that this statute meant precisely what the government now says.

It means up to 1962, you wouldn’t have had any case at all, would you?

Mr. William A. Dougherty: 1956 to 1962, agree.

Justice Potter Stewart: There's none and because the statute was crystal clear that --

Mr. William A. Dougherty: It applied only to --

Justice Potter Stewart: Then they applied only to those who had served actually five years or more.

Mr. William A. Dougherty: Yes.

Justice Potter Stewart: And then what happened was there was recodified and there's a statement in one of the committee reports, that of the Senate that no change was intended.

So it’s quite a different situation from the language of 1330 which has remained unchanged from its enactment, hasn’t it?

Mr. William A. Dougherty: Yes sir.

But if I might invite the court’s attention to the fact that all these other statutes that the Government has cited with the exception of 6330 and the Coastguard statute, 42-212 have nothing to do with eligibility, its all for computation.

And then these are the only two statutes that have anything to do with eligibility.

And I would --

Justice Potter Stewart: Well, but nevertheless between 1956 and 1962, it would’ve been quite clear that the statutes have a different meaning.

Mr. William A. Dougherty: Yes, I agree with that sir.

But certainly, the tenor and the mood of Congress has certainly changed from 1956 to 1962, the war situation had changed --

Unknown Speaker: (Inaudible) they didn’t have any change in the -- and another report that purported to this, the changes didn’t list this one although I would assume this would be quite a substantial change if they were changing --.

Particularly since the deed list one, it wasn’t made.[Laughter]

Mr. William A. Dougherty: But the best test of the statute is the statute itself and as Mr. Justice Black used to say when he talked about the First Amendment, if you take this out to the man on the street and put it in front of him, he is going to say yes.

The man should get paid.

Six months means what it says.[Laughter]

But five years Your Honor is not -- five years is not modified by -- for the purposes of this subsection.

Unknown Speaker: Well, I know but you're still applying this six months requirement for purposes of computation.

Mr. William A. Dougherty: But if --

Unknown Speaker: Well, you’re not ignoring it.

Mr. William A. Dougherty: No but if modifying phrase for the purposes of this subsection must mean what it says that if a man apart of a year that is six months or more is considered as a whole year.

Chief Justice Warren E. Burger: Mr. Dougherty, before you sit down, let me express the court's appreciation for your accepting the appointment to appear in this case for Mr. Adams and his friends and for your help to them and your assistance to the court.

Mr. William A. Dougherty: They are all worthy Marines and then the light of the doer.

Thank you Your Honor.

Chief Justice Warren E. Burger: Thank you.

Case is submitted.