
    376 F. 2d 900
    LEONARD J. GANSE v. THE UNITED STATES
    [No. 240-62.
    Decided May 12, 1967]
    
      
      Paid M. Oraig, Jr., attorney of record, for plaintiff.
    
      LeBoy Southmayd, Jr., with whom was Assistcmt Attorney General Barefoot Sanders, for defendant.
    
      Before Cowen, Chief Judge, Laramore, Dtjreee, Davis, Collins, Skelton and. Nichols, Judges.
    
   Per Cdriam :

This case was referred to Trial Commissioner William E. Day with directions to make findings of fact and recommendation for conclusions of law. The commissioner has done so in a report and opinion filed on April 13, 1966. Exceptions to the commissioner’s opinion, findings and recommendation for conclusion of law were filed by plaintiff and the case was submitted to the court on the briefs of the parties and oral argument of counsel. Since the court is in agreement with the opinion, findings and recommendation of the commissioner, with modifications, it hereby adopts the same, as modified, as the basis for its judgment in this case, as hereinafter set forth. Plaintiff is, therefore, not entitled to recover and the petition is dismissed.

Commissioner Day’s opinion, as modified by the court, is as follows:

In this case, there are two issues presented for consideration by the pleadings and the evidence submitted by the parties in support thereof :

Is a civilian employee of the Army entitled to pay at a rate higher than the rate of the position to which he was appointed?
May periods of membership in a reserve status (not on active duty) in the Army of the United States be credited in computing a retirement annuity under the Civil Service Betirement Act ?

For reasons which will follow, both questions are answered in the negative.

The plaintiff, a lawyer, having held legal positions of a high order both in the military and in civilian capacities, on June 29,1954, was appointed to a civilian position at grade 15 with the Army, as General Counsel at Headquarters, European Command, France. He had been interviewed by Army personnel in Washington, D.C. prior to such appointment and was appropriately given travel authority and transportation from the United States to his place of employment in Europe. The position to which the plaintiff was finally appointed had originally been placed in grade 16, one of the so-called “super grades.” The recruiting process of the plaintiff, however, extended over quite a period of time and on June 14, 1954, prior to the time of the plaintiff’s final interview, before the appointment, the allocation of grade 16 for the position of General Counsel, European Command, had been withdrawn by the office of the Secretary of the Army. It is undoubtedly true that during employment interviews the plaintiff had been told that the position of General Counsel was placed at the “super grade” level of 16. It is also quite clear that before he was appointed, he was told that it was not then possible to appoint him at that level, but that he could be appointed (as he was appointed) at the grade 15 level. The appointment was made. The plaintiff departed the United States and reported for duty. He served at Headquarters, European Command, from early in July 1954, until May 24,1960, when he was separated from this position by a reduction in force. During all of this time, plaintiff was employed at the grade 15 level, although he had received in-grade promotions to the top of that grade.

Plaintiff claims he is entitled to pay at the rate of a grade 16 position during the entire period of his tenure in his position, because of the representations made to him by individuals in the Civilian Personnel Division of the Army, who had interviewed him prior to his appointment (to the effect that the position which he was about to accept and to which he was about to be appointed, would in time be elevated to grade 16). The nature of the representations, not being material to a determination of the legal issue here, will not be elaborated, except to say that they involved matters of a political nature. In support of his position on this issue, the plaintiff cites a number of contract cases, all of which are inapposite. It is a well-settled principle of law that Federal Government employees are entitled only to the salaries of positions to which they are appointed, regardless of the duties they actually perform. Price v. United States, 112 Ct. Cl. 198, 200, 80 F. Supp. 542, 543 (1948) and cases cited. The plaintiff was appointed to, served in and was paid for services of a position in grade 15. Where the plaintiff has received the salary of the office to which he was appointed, he has received all to which he is entitled under the law. Price, supra.

At the time the plaintiff was separated by the reduction in force on May 24,1960, he would have been entitled to an immediate annuity, if he had had 20 years of creditable service under the civil service retirement laws. He was then over 50 years of age. See 5 U.S.C. § 2256 (d) which provides:

$ $ $ $ ‡
Any employee who completes twenty-five years of service or who attains the age of fifty years and completes twenty years of service shall upon involuntary separation from the service * * * be paid a reduced annuity computed as provided * * *.

At the time of his separation from the service, the plaintiff had 18 years, 8 months and 29 days of creditable service, including his active duty military service. From February 1, 1919 until June 23, 1923, the plaintiff was a member of the organized Eeserve forces in the rant of second lieutenant. He performed no active military service during this time. If the plaintiff can show that this period of something over four years is creditable for the purpose of computing his entitlement to an immediate annuity under the civil service laws, it may readily be observed that his creditable service would exceed the required twenty years. He applied for an immediate annuity and this was denied by the Bureau of Ee-tirement and Insurance of the Civil Service Commission, which held that only his active duty military service could be counted (along with his civilian service) as creditable service, and that the period during which he was a member of the organized Eeserve forces could not be so counted, since it did not involve any active military service. The plaintiff was, however, advised that upon reaching age 62, he would be eligible to receive an annuity. He has, upon attaining that age, availed himself of that benefit.

The plaintiff appealed this denial to the Board of Appeals and Eeview, which affirmed the decision disallowing the plaintiff’s application for immediate retirement.

The only issue before the court on this aspect of the plaintiff’s ease is, therefore, whether the period of membership of a person in the organized Eeserve (a part of the Army of the United States) without active duty, is creditable toward civil service retirement.

The applicable statute is the Civil Service Retirement Act Amendments of 1956, P.L. 854, 70 Stat. 743, (5 U.S.C. § 2251) . Section 1 (r) of that statute provides:

*****
The term “military service” shall mean honorable active service in the Army * * *. [Italics supplied.] *****

Section 3(b) of the statute provides:

* ‡ 3: ‡ $
An employee * * * shall be allowed credit for periods of military service prior to the date of the separation upon which title to an annuity is based * * *.
$ $ $ $ *

The clear language of the statute, therefore, excludes as creditable the period of the plaintiff’s membership in the organized Reserve corps, when no active military service was performed.

Although what has been said is dispositive of all issues in this case, a further reason exists which would be a bar to the claim; absent the 1956 amendments. Citing no case in support of liis position, plaintiff stoutly maintains that he should prevail in Ms claim for immediate annuity since (as he says) from 1920 until the Act was amended in 1956, all honorable military service was properly creditable for civil service retirement purposes. The plaintiff’s reference to the earlier statute is correct, but it does not help the plaintiff because (although he was a member of the Reserve forces) he did not serve with such forces and, therefore, even under the earlier enactments, he did not have honorable military service during the period February 1,1919, through June 23,1923.

The defendant, likewise, can point to no decided case (and my research discloses none) where the precise point in issue has been adjudicated. The fact is, that from 1920 until the 1956 amendments to the statute, the civil service retirement laws have been interpreted administratively to include only active military service as honorable military service.

The administrative interpretation is reasonable because it has construed the word “service” to mean the performance of a duty. Webster’s New International Dictionary defines “service” in the connotation used here, as follows:

* * * * *
13.a. Military or naval duty; also, its performance, esp. in war; as service in the field; active service.
*****

It is a well-established rule of statutory construction that courts will pay great deference to an administrative construction contemporaneously adopted and consistently maintained by the agency charged with the administration of the statute. Odall v. Tallman, 380 U.S. 1, 4, 16-18 (1965).

Since the Civil Service Commission has consistently read the Civil Service Eetirement Act in the manner here contended for by the defendant, prior to 1956, and that construction is reasonable, it should be followed. Schellfeffer v. United States, 170 Ct. Cl. 178, 187, 343 F. 2d 936, 942 (1965). As stated earlier in this opinion, it is the 1956 Act which applies here, however, and by its terms, the period during which the plaintiff was a member of the organized Eeserve forces is clearly not creditable.

For all the above reasons, the plaintiff is not entitled to recover and his petition should be dismissed.

Findings op Fact

1. On February 24, 1953, the Department of the Army recommended to the Civil Service Commission that the position of General Counsel, European Command, be placed in grade GS-16. On March 5,1953, the Civil Service Commission certified the position in grade GS-985-16-87.

2. On January 21, 1954, the Assistant Secretary of the Army withdrew the authorization for the vacant GS-16 position of General Counsel, European Command, on the basis of a recommendation made by the Executive Salary Committee.

3. The U.S. Commander in Chief, European Command, under date of February 1, 1954, informed the Department of the Army that an unspecified individual had been selected for the position of General Counsel, and requested that the grade of GS-16 be reestablished for the position.

4. On February 11, 1954, the Assistant Secretary of the Army informed the U.S. Commander in Chief, European Command, that the GS-16 space could be retained by his Command “at this time.”

5. On May 21,1954, after an oral examination of plaintiff, the Civilian Legal Personnel Committee, office of the Secretary of the Army, authorized plaintiff’s appointment to the position of General Counsel, Headquarters, European Command, at the GS-16 grade, with “Limited approval at this grade.”

6. On May 27,1954, the U.S. Commander in Chief, European Command, informed the Department of the Army that “employment offer to Ganse has not been made by this Hq.”

7. On June 14,1954, the office of the Secretary of the Army (OCP) sent the following message to the U.S. Commander in Chief, European Command:

* # * * sft
Due to urgent requirements elsewhere within the Dept it has been necessary to reallocate the GS-16 space formerly authorized urcmd for position of General Counsel. This action not based upon any doubt as to necessity for the GS-16 job or as to Mr. L. J. Ganse’s qualifications. Bather a higher priority of need for the GS-16 space exists in the Dept.
Mr. Ganse will accept General Counsel job urcmd at GS-15 level. Eqst info as to whether or not urcmd desires that we proceed to process his apt at that grade.
# ❖

8. On June 16,1954, the U.S. Commander in Chief, European Command, advised the Department of the Army , as follows:

* * * * *
In view of willingness of Mr. Ganse to accept General Counsel position this headquarters at GS 15 level CMM request his appointment be processed accordingly PD however CMM it is further requested that position be reestablished at GS 16 level when space is available.
$ * ‡ $

9.Effective June 29,1954, the plaintiff was employed in an excepted appointment as General Counsel, Job ETJ-8, GS-985-15, $11,300 per annum, for duty at Headquarters, European Command, France.

10. By memorandum dated June 12, 1958, addressed to Colonel Wells, Secretary, Joint Staff, plaintiff called attention to the fact that the position of General Counsel should be rated as a GS-16 and that the matter was called to his attention for consideration and submission to the Command.

11. Effective May 24,1960, the plaintiff was separated by a reduction in force from his position of General Counsel, GS-985-15, $13,970 per annum, at Headquarters, United States European Command.

12. By letter dated August 13, 1960, plaintiff applied to the Civil Service Commission for discontinued service retirement annuity under section 6(d) of the Civil Service Retirement Act of 1956, 5 U.S.C. 2256.

13. By letter of October 5, 1960, plaintiff was denied annuity. The Bureau of Retirement and Insurance of the Civil Service Commission advised plaintiff that under the Civil Service Retirement Act, to be eligible for an immediate annuity based on an involuntary separation, an employee must have either 20 years of creditable service and be at least age 50, or must have 25 years of creditable service; that since plaintiff had only 18 years, 8 months, and 29 days of creditable civilian and military service, he did not meet the service requirement for title to an immediate annuity, and that the Civil Service Commission had no alternative but to disallow plaintiff’s application for annuity.

14. By letter dated November 17, 1960, plaintiff advised the Bureau of Retirement and Insurance that he disagreed with the basis and legality of its determination and ruling in his case. Plaintiff was claiming therein military service from February 1, 1919 to June 28, 1923, and from June 14, 1946 to June 30,1948, when he held a Reserve commission but performed no active duty on the basis that the Civil Service Retirement Act prior to October 1, 1956, 5 U.S.C.A. § 691, did not specifically define creditable military service as “active” service and that the Civil Service Retirement Act of 1956, 5 U.S.C.A. § 2251, should not be applied retroactively to deny him the benefit of this service.

15. The Bureau of Retirement and Insurance, under date of December 8, 1960, affirmed its denial of retirement credit for the period of plaintiff’s inactive military service.

16. Plaintiff entered an appeal to the Board of Appeals and Review of the Civil Service Commission, by letters dated December 15 and December 29, 1960, denying the legality and validity of the decisions on the matter made by the Bureau of Retirement and Insurance.

17. By letter dated March 14, 1961, the Board of Appeals and Review, affirmed the decision of the Bureau of Retirement and Insurance. This letter stated, in part, as follows:

* ifc ifc
* * * You contend that the retroactive application of the restrictive definition of “honorable active service in the Army, Navy, Air Force, Marine Corps and. Coast Guard” in the Retirement Act, as amended (Public Law 854, 84th Congress, approved July 31, 1956). to. your World War I and World War II military service is unconstitutional as it deprives you of property rights without due process of law.
The basis for your contention appears to be the erroneous belief that military service, whether active or inactive, was creditable under the Retirement Act prior to the 1956 amendment. Although your retirement rights must be determined under the Retirement Act in effect at the date of your separation from the service, namely the 1956 amendments, and before discussing your arguments that these amendments are unconstitutional, we wish to point out that in administering the Retirement Act since its original enactment on May 22, 1920, it has been consistently held that the term “honorable service” in the Retirement Act required the performance of active military duty in order to be creditable under the Retirement Act. * * *
«J* *1» íH ^

18. On June 3, 1961, plaintiff filed a new application for retirement which was allowed, beginning July 12, 1961 at a rate of $341 per month based on a total of 18 years, 8 months, and 25 days creditable Federal service under 5 U.S.C.A. § 2258 (a). That section provides for a deferred annuity after 5 years of civilian service and upon attainment of age 62.

19. Plaintiff on several occasions requested that the Secretary of the Army consider the classification problem of the position of General Counsel, Headquarters, United States European Command.

(a) On November 12, 1960, plaintiff requested of the Secretary of the Army that the position of General Counsel, Headquarters, United States European Command, “be upgraded and increased from GS-15 to GS-16 rating and grade, with step increases as provided by law, retroactively to June 29,1954; and that the deficiencies in salary paid to me be adjusted in accordance therewith until 24 May 1960.”

(b) On April 12,1961, the Director of Civilian Personnel, Office of the Secretary of the Army, replied to plaintiff’s letter of November 12,1960. The plaintiff was informed that while it was true that the position of General Counsel, Headquarters, European Command, was established at grade GS-16 prior to his recruitment, it had never been filled at that grade, and that the GS-16 space was withdrawn from the European Command and assigned to another organization within the Army prior to his assignment to the position of General Counsel. The plaintiff was further informed that, as the position (No. EU-4S) of General Counsel was not authorized a GS-16 space at the time of his appointment, nor at any time thereafter, he could not be appointed at a grade GS-16 regardless of the opinion of his Command as to the merits of his position from a classification point of view, and regardless of his qualification to fill a GS-16 position, and that there was no basis for restoring him retroactively to a grade which he never held and which was not authorized during his tenure of the position.

(c) On May 15,1961, plaintiff requested the Deputy Chief of Staff for Personnel to review the decision of the Director of Civilian Personnel in his letter to him of April 12,1961.

(d) On June 23,1961, the Deputy Chief of Staff for Personnel informed the plaintiff that the letter written to him on April 12, 1961, by the Director of Civilian Personnel, was written under authority delegated to the Director by the Secretary of the Army and that it constituted a final decision for the Department in his case.

20. Plaintiff did not appeal the classification question to the United States Civil Service Commission.

Ultimate Conclusions

21. Plaintiff’s position was not authorized a GS-16 space at the time of his appointment, nor at any time thereafter while plaintiff served in his position. There is no basis for awarding plaintiff the salary for a position he never held. Plaintiff was properly paid the salary of a grade GS-15 and has therefore received all to which he is entitled under the law.

22. Plaintiff is not entitled to be credited with periods of inactive military service in the organized Reserve forces in computing his civil service retirement annuity.

Conclusion of Law

Upon the foregoing findings of fact and opinion, which are adopted by the court and made a part of the judgment herein, the court concludes as a matter of law that plaintiff is not entitled to recover and the petition is dismissed. 
      
      The opinion, findings of fact and recommended conclusion of law are submitted under the order of reference and Rule 57(a).
     
      
       P.L. 804, July 81,1956, 70 Stat. 750.
     
      
       Although the plaintiff claims he had a vested right in retirement benefits before the enactment of the 1956 amendments, he had no such vested right until the event or events occurred upon which the annuity would be payable. Lawrenson v. United States, 139 Ct. Cl. 370, 372, 153 F. Supp. 790 (1957), and cases cited; Nordstrom v. United States, 169 Ct. Cl. 632, 639, 342 F. 2d 55, 60 (1965).
     