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.
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.
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:
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.
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.
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.
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,
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.
Thus,
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 of section 202, defendant invokes the doctrine of United States v. American Trucking Association, 310 U.S. 534, 60 S.Ct. 1059, 84 L.Ed. 1345 (1940), for the proposition that "no rule of law forbids the use of legislative history as an aid to statutory construction, even if the words of the statute appear clear on a superficial examination." See, Lionberger v. United States, 371 F.2d 831, 178 Ct.Cl. 151, cert. denied, 389 U.S. 844, 88 S.Ct. 91, 19 L.Ed.2d 110 (1967); Fox v. United States, 283 F.2d 951, 151 Ct.Cl. 611, (1960). Defendant, however, paraphrases too liberally the statutory construction
310 U.S. at 543, 60 S.Ct. at 1063. In compliance with this directive, this court has utilized legislative history as an aid in construing an otherwise unambiguous statute only when such history offers "clear and compelling support" for an interpretation different from that of the ordinary meaning of the law's words. Benton v. United States, supra at 488 F.2d at 1020, 203 Ct.Cl. at ___. Thus, Fox v. United States, supra, on which defendant relies, involved a statute in which an unreasonable result would have been reached had its literal terms been applied.
Under this formula, we find no reason to look beyond the plain words of section 202. The result they dictate, pay above rank for plaintiffs, is neither absurd nor unreasonable. It is true that a Government employee is normally entitled only to the salary of the grade to which he is appointed and serves. Urbina v. United States, 428 F.2d 1280, 1285, 192 Ct.Cl. 875, 882 (1970); Price v. United States, 80 F.Supp. 542, 543, 112 Ct.Cl. 198, 200 (1948); Brech v. Immigration & Naturalization Service, 362 F.Supp. 914, 917 (S.D.N.Y.1973). Congress retains the prerogative, however, to accord, through specific statutory authorization for specialized service, entitlement to pay above that otherwise called for by rank. Such entitlement has been enforced by this court more than once before. Belsky v. United States, 290 F.2d 593, 154 Ct.Cl. 206 (1961) (minimum pay for drafted doctor); Stillman v. United States, 116 F.Supp. 622, 126 Ct.Cl. 750 (1953) (minimum pay for officer in combat command). Other examples of such statutory grace may also be cited. See e. g., 37 U.S.C. § 207(a), (c) (1970) (entitling leaders of Navy and Army bands to at least basic pay of lieutenant or captain, as appropriate, without regard to actual rank).
Moreover, even were we to accede to defendant's urgings to consider the relevant statutory history, we would find that it hurts rather than helps defendant's cause. The underlying purpose of Public Law 90-179 was to establish incentives deemed necessary by Congress for the creation of a corps of qualified uniformed lawyers to satisfy the rapidly expanding needs of the Navy for quality legal services. 2 U.S.Code Cong. & Admin.News 1967, pp. 2113, 2115 (1967). The ability of professional staff officers to (1) move into the higher ranks of the Navy and (2) achieve higher pay were two of the prime incentives which could be legislatively provided toward this goal.
Because of the Stennis Ceiling, however, movement into higher Navy ranks was restricted. The incentive of higher salary still remained, of course, and it is for this purpose that section 202 was adopted as a separate pay provision containing no reference to rank. In offering the amendment, ultimately adopted, to section 5149 making formal detailing as AJAG permissive rather than mandatory, Senator Ervin, who guided Public Law 90-179 through the Senate, commented:
113 Cong.Rec. 32764 (1967).
Defendant has carefully sidestepped the ceiling issue in its analysis of congressional intent underlying the statutes here in question. Yet, understanding of the ceiling problem explains the existence of section 202 in the Navy JAG bill of 1970. What other purpose could it serve than as an economic incentive to those legal officers assigned to duty as AJAGs without benefit of the flag-level rank which normally comes with that position? If an officer were, in fact, a rear admiral, he would be entitled as a matter of course to receive flag pay. 37 U.S.C. §§ 201(a), 203(a) (1970). We therefore conclude that the relevant legislative history supports the unambiguous meaning of section 202 on its face and bolsters the cause of plaintiffs, not defendant.
Finally, defendant contends the granting of rear admiral's pay to plaintiffs would be tantamount to "judicial promotion" of military officers, an undertaking the court has repeatedly rejected. See, e. g., Brenner v. United States, 202 Ct.Cl. 678, 685-686 (1973). Yet, there can patently be no "judicial promotion" when (1) the officers in question have not been advanced to a higher grade, and (2) a specific act of Congress entitles them to higher pay. In construing the clear language of such a statute, no arrogation of executive or legislative power by the court can be discerned.
In summary, having determined that the language of section 202 speaks for itself and that the appropriate legislative history only fortifies this result, we hold plaintiffs entitled to rear admiral (lower half) pay for their periods of service as Navy AJAGs.
Accordingly, plaintiffs' motion for summary judgment is granted and defendant's cross-motion for summary judgment is denied. Plaintiffs are entitled to recover back pay and allowances on their consolidated claim and judgment is entered to that effect with the amount of recovery to be determined pursuant to Rule 131(c).
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