*1 1167 10(k) assign empowered under § been LARIONOFF, union.42 As the Jr., Nicholas J. appropriate
work to
et al.
recently emphasized,
Court has
Supreme
v.
developed by Congress
procedure was
The UNITED
STATES
America et
jurisdic-
the belief that resolution
“[i]n
al., Appellants.
important
to in-
disputes
tional
was more
LARIONOFF,
Jr.,
imposition of unfair
Nicholas J.
peace
dustrial
than the
et
al., Appellants,
sanctions,”
10(k)
practice
labor
was
§
developed
procedure
as a
that would have
consequences but,
strong practical
being
The UNITED
STATES
America et al.
effect,
only advisory in
could be
legal
74-1211,
Nos.
74-1212.
carried out
without
the re-
expeditiously,
adjudications.
governing
strictions
ITT v.
United
of Appeals,
States Court
134,
Workers,
District of
Local
Int’l Bhd. of Electrical
Columbia Circuit.
447-48,
428, 430-31,
600,
419 U.S.
95 S.Ct.
Argued
3,
March
(1975).
tance a deliberative 8(b)(4)(B), ascribing without secondary
objectives disputes to work preservation per
means of se categorization “union
signatory” “right clauses and reliance
control.” respectfully
I
dissent.
NLRB,
charge
filed,
Int’l
after
Bhd. of Electrical Workers v.
notice that such
has been
1973),
(7th
parties
dispute
866
aff’d on this
Cir.
submit
such
to the
point
grounds,
satisfactory
but rev’d on other
ITT v. Local
Board
evidence
have
Workers,
adjusted,
agreed
Int’l.
upon
Bhd. of Electrical
419 U.S.
or
methods
428, 436,
(1975);
of,
voluntary adjustment
42
558
dispute. Upon
S.Ct.
L.Ed.2d
Sheet Metal
Local Union No. 54
compliance by
parties
dispute
Workers
(Goodyear
Co.),
Tire &
H69 Keeffe, Stephen Washington, Daniel D. C., appellants appel- in No. 74-1212 and *3 lees in No. 74-1211. Koslowe, Dept, Justice, Atty., H.
Neil C., with whom Washington, D. Carla A. Gen., Hills, Atty. City, Asst. New York filed, Silbert, J. the time the brief Earl Kopp, and Robert E. Atty., Atty., U. S. Justice, C., Dept, Washington, D. were brief, appellants for in No. on the 74-1211 appellees in No. 74-1212. Morton Hol- lander, Dept, of Justice and Atty., Michael Katz, Atty., Washington, Asst. U. A. S. D. C., appearances appellants also entered appellees in No. 74-1211 and in No. 74- RIVES,* T: Senior RICHARD Cir Before Circuit, Judge for the Fifth WRIGHT cuit McGOWAN, Judges. Circuit McGOWAN, Judge: Circuit Congress has been continuously con- inception cerned from its problem with the of maintaining an adequately manned mili- tary establishment protection of our national Although interests. one controver- response sial to that problem has been the operation system of a of compulsory mili- service, tary Congress has especially also— in recent years attempted provide — sufficient monetary incentive to attract men and women to careers in the military. approach One that has frequently been cho- sen by Congress is the award of a monetary recently “Regular labeled a Reen- bonus — listment Bonus” —to personnel enlisted who reenlist or extend the of their obli- gated service.1 Since has also provided an additional reenlistment bo- nus —a “Variable Reenlistment Bonus” —to personnel enlisted whose skills are in crit- ically supply.2 short That Variable Reen- (VRB), listment Bonus which is available to personnel enlisted eligible for a Regular * Sitting by designation pursuant Title See text and note at note 16 infra. 294(d). Section Code 2. See text and notes at notes 18-22 infra. iable by regula- Reenlistment (RRB), equal is set Bonus Bonus four Reenlistment times the RRB.3 the amount of an multiple of enlisted member’s at a
tion Regular Reenlistment Bonus.6 who filed this The seven named Under applicable Navy regulations, the District Court are enlisted suit in the program AEF involved year a six service Navy States who in the United personnel obligation, plaintiff Larionoff conse- they are entitled contract claim quently following executed estoppel “Agreement promissory the doctrine of under to Extend Enlistment”: to four equal VRBs times the receive respective of their RRBs. We con- amount I JR., JOHN NICHOLAS LARIONOFF properly the District Court as- SNJEF, clude B 17 77 having USN enlisted jurisdiction pursuant to 28 U.S.C. serted Navy the United on 23 States and, 1346(a)(2),4 reasons set forth JUN years, 69 for FOUR in consideration below, judgment we affirm the of the Dis- allowances, of the pay, and benefits *4 ordering payment to Court of VRBs trict which will to accrue me during the con- plaintiffs.5 named We affirm the Dis- service, my voluntarily agree tinuances of certifying order the suit a trict Court’s my extend enlistment as authorized 23(b)(1)(B) action under Rule Section Title United States Civil Federal Rules of Procedure and Code, regulations and the pursuant issued $14,729. awarding attorneys’ fees of And thereto. I voluntarily agree to extend we case to the finally, remand the District my enlistment for a years of TWO concerning proceedings Court further thereof, expiration from the date of sub- attorneys’ award of fees for the efforts ject provisions to the and obligations of appeal. counsel directed to this my said contract of which enlistment of
this, my voluntary agreement, shall form I. FACTUAL part. BACKGROUND a REASON FOR EXTENSION: “Training (Advanced Electronics Field On June plaintiff Larionoff en- (AEF) Program ltr Pers-B2131- in —BuPers listed the United Navy States for four gn-56 August 1966). of 31 I understand thereafter, Shortly years. he a underwent this agreement extension bind- becomes series of tests and interviews to determine ing upon execution and thereafter appropriate duty assignment. During his not be except cancelled as set forth in Navy course of those interviews with Manual, BUPERS Article C-1407.” personnel, Larionoff decided to participate App. (emphasis at 134 added). (AEF) On that in Advanced Electronic Field same day, plaintiff Larionoff training program, executed completion successful requesting document assignment in place which would him the Communica- program AEF his acknowledging six (CTM) Technician-Maintenance tions serv- year obligation: rating. At he ice the time decided to enter program, that, the AEF Larionoff was fully aware I understand virtue of hav- rating ing CTM classified as a been enlisted in the Navy as a military qualifying skill” guaranteed “critical a Var- I SNJC am assignment analysis For an amount, 3. of the effectiveness of VRB upon 000 in founded either the Con- eliminating manning awards in career short- stitution, any Congress, any or Act of or skills, ages critically Comptroller see needed regulation department, of an executive or General, Military Retention Incentives: Effec- upon any express implied or contract with (B-160096) (1974). tiveness and Administration States, liquidated unliq- United or for damages sounding uidated in cases not 1346(a)(2) provides Section of Title 28 in rele- tort. part: vant opinion reported 5. The District Court at 365 original juris- The district shall courts have F.Supp. (D.D.C.1973). diction, Claims, concurrent Court of of: Any Larionoff, 6. Affidavit App. . . civil of Nicholas J. other action or claim at States, $10,- against exceeding the United group of service schoolsor nated one of as a “critical military either eligible skill” duty specific apprenticeship in a for the VRB award. After realizing [sic] completion of re- upon successful Navy field considered him ineligible for a training. my I to waive cruit desire Variable Bonus, Reenlistment Larionoff enlistment rights guaranteed by my con- had his representatives elected in Congress tract, hereby request my and I rate communicate with the Bureau of Naval grade changed equal pay SNJEF. Personnel concerning his eligibility for the change requested of rate is This VRB.8 These efforts unsuccessful; were Assignment to the advanced purpose of: Bureau asserted that the CTM service provisions program. electronics field rating had been removed from the list of program, category to which eligible service ratings, thus precluding changed (06) will be and the six my rate payment of a VRB plaintiff Larionoff.9 obligation fully have been years service The other six plaintiffs10 named have explained to me. undergone similar process- administrative at 135. App. ing by the Navy. They signed all extension successfully March 1970 Larionoff On agreements11 subsequent April 20, training program the AEF completed (the date the CTMrating was designated as rating to the CTM and the was advanced a “critical military skill”) extending their pay grade. E^f He executed document years enlistments for two for the purpose of attesting on that date to his advancement receiving AEF training; executed docu- pay grade.7 the E-4 ments requesting assignment to AEF train- *5 ing and acknowledging time, year their six Up point Navy to this neither the obli- gations; received their training, plaintiff Larionoff had reason to com- were ad- nor vanced to the CTM rating and transpired. about the events that had the E-4 plain grade prior 1, 1972; factor, however, July that complicating was executed docu- attesting ments expected still to receive a Varia- to their Larionoff advancement to the E^4 pay grade; ble Reenlistment Bonus once he entered entered the peri- extension ods of period of extended service on June their enlistments subsequent into his July I, (the Navy 1973. The cast some doubt on date that the “critical military skill” expectation designation when it announced on for the CTM rating was terminated); July March 1972 that effective and received their Regular rating longer desig- the CTM would no be Reenlistment Bonuses.12 agree upon my being abrogated ineligibility 7. I understand and be based on [Larionoff’s] 161; App. pay grade supra. for VRB.” at advanced to E-4 in accordance see note 8 series, page with BUPERSINST 1430.14 Dietz, [“Agreement Joseph Tomaino, 1A to Extend date 10. Thomas W. R. Enlistment”] Law- White, Boudreau, pur- rence E. Paul E. 09 JUL which was executed for the Johnnie S. Johnson, Clay John pose Program, binding Smith. of AEF will become obligated and will serve to fulfill the service requirements Dietz, for automatic I 11. The affidavits advancement. in the record of Tomai no, White, any and Boudreau understand that future cancellation of indicate that the VRB program explained prior was obligated requirements pur- them service agreements, execution of their extension pose Program of AEF will not serve as rea- explained applica that no one to them that the page son for cancellation of 1A dated 09 JUL subsequently ble VRB award level could except as set forth in BUPERSMAN changed. App. See 20. App. at 130. case, 12. At the time briefs were filed apparently 8. Larionoff also his asked elected plaintiff yet Johnson had not entered the exten- representatives pursue question of re- period consequently sion of his enlistment and agreement. App. eligible scission of the extension See was not at that time to receive his Regular Reenlistment Bonus. plaintiffs, As to the other six named it was stipulated by parties they 9. The Bureau also stated that the extension could receive agreement “legal binding Regular Reenlistment Bonuses without On March the named consideration of the pay, allowances, and action13 in the benefits” which filed this class District Court were to accrue during the service, seeking payment either of the VRB award extended see App.D.C. pages ---, page level in effect when the extension agree- supra, and that “pay” the term in- signed ments were or rescission of their cludes awards of VRB. As an alternative agreements.14 September extension On ground, plaintiffs maintain they are the District Court certified the action entitled to receive VRBs on theory pursuant a class action to Rule promissory estoppel in that they relied to 23(b)(1)(B); granted plaintiffs’ motion for their detriment on oral representations con- summary judgment and ordered payment cerning VRB eligibility made by per- naval VRBs; plaintiffs’ and awarded counsel sonnel attempting to get them to execute $14,729.00 attorneys’ fees of to be obtained agreements. extension We find it unneces- from the recovery. The Government sary to reach the issue of promissory estop- appeals, claiming respect error with to both pel since we find that applicable under mili- grant summary judg- the motion for tary regulations plaintiffs are entitled to ment and the class plain- certification. The part VRBs as of the “consideration” for cross-appeal tiffs to the failure which they executed extension (1) rescission, of the District Court order agreements.15 Since our interpretation of (2) government to order disclosure regulations relevant depends part class, (3) the names of members the legislative history of the statutory pro- compensate plaintiffs’ adequately attor- visions delegating to the Secretary of De- neys. fense the authority prescribe eligibility criteria, we turn first to an analysis of the II. ENTITLEMENT TO THE VARIA- basic statutory provisions establishing the
BLE REENLISTMENT BONUS award. VRB Plaintiffs support offer two theories to A. Statutory Provisions their contention that entitled to *6 They argue receive VRBs. first they 1795, that As early as Congress provided by executed their agreements extension “in statute for payment of a “reenlistment prejudice App. to their claims for VRBs. necessary proper.” App. and at 11. The Dis- 248. granted plaintiffs’ trict Court counsel leave to complaint amend the to avoid complaint dismissal 13. The for initial described the class as subject jurisdiction, lack of persons F.Supp. matter Navy follows: “All in the 365 U.S. who 146, years duty prior and it complaint reenlisted for two was in additional to the amended 1, 1972, July plaintiffs training that program specifically requested in a critical skill either pursuant 308(g) Code, to § Title 37 award of App. U.S. VRBs or rescission. at 211. In multiple prior had a bonus of four to the above the event the District Court awarded rescis- subsequently date and which sion, was eliminated plaintiffs asked that defendants be or- upon App. that date.” at 8. The amended grant dered to each of the an Honora- 20, complaint, August 1973, filed on contained Discharge pursuant ble to 10 U.S.C. 6291. § similar, identical, description but not of the App. at 211. persons Navy class: “All in the U.S. who en- period 1, prior July listed for an additional Supreme emphasized 15. The Court has training program pursu- 1972 in a critical skill dependent “[a] soldier’s entitlement Code, 308(g), ant to Title 37 § that as a upon statutory right.” States, Bell v. United communications technician had a variable bo- 393, 401, 1230, 1235, 6 multiple prior nus of four to the above date and parties L.Ed.2d 365 All to this case subsequently upon which was eliminated recognize applicable pro- that since the statute App. date.” at 208-09. payment vides that of VRB awards is to be according “regulations pre- determined Actually, complaint initial filed on Secretary Defense,” 30, sought only scribed declaratory judg- March 1973 the out- ment, plaintiffs’ setting theory come an order under the “the contract case down for de- prompt hearing pends primarily required interpretation to fashion the relief on our plaintiff,” for each applicable regulations. such other relief “as is
H73 lease times the number of years specified in services of the armed members bonus” See the reenlistment contract. Act of July period follow- a short within who reenlisted 16, 1954, Pub.L.No.506, 2, 68 488.17 service, § Stat. from the separation ing eventually was that bonus for eligibility Department of Defense eventually extend the agreed to who to those extended recognized statutory formula was obligation prior their service length of inefficient since it to vary failed the mone- for which expiration tary incentive for according reenlistment com- The method of serve.16 agreed to had the needs of the armed services person- varied, the bonus has nel particular words, the amount In puting skills. other the follow- settled on if a Congress branch of the by 1954 armed services was ade- pay of the monthly quately except basic manned for a critical short- ing formula: age technicians, re- discharge communications at the time serviceman monetary again Early providing bonus nuses overhauled in statutes 1949. Career 2, 1795, 1949, 681, 207, Compensation Act of Jan. upon include: Act of ch. § 63 reenlistment bounty 811, amended, 5, (reenlistment 16, 9, July 1954, Stat. as 1 Stat. 408 Act of ch. § 3, army); Pub.L.No.506, 488, amended, Act of Mar. 68 members Stat. as Act certain 44, 6, (same); 25, 1961, 1795, July Pub.L.No.87-103, Act of 1 Stat. 430 § ch. 75 Stat. 219. 39, 7, (same); 1796, 30, May provisions 1 Stat. 484 positive ch. § These were enacted into 7, 4, 27, 1814, 308, 3 Stat. 95 § ch. of Jan. Act law in 1962 codified as 37 U.S.C. § see 29, 5, 1838, 162, July 7, (same); 1962, ch. Sept. Pub.L.No.87-649, § Act of Act of 467, 76 Stat. 3, 1861, amended, Aug. 260, ch. Act of as Stat. and were restated without substantive 4, Aug. 9, (same); 42, Act of 1968, 22, 1968, change 12 Stat. 288 § see Act of Oct. Pub.L. amended, 575, 247, 2, 1854, as No.90-623, 6, 10 Stat. 3(1), ch. § §§ 82 Stat. 1314-15. 419, 131, 10, 3, 1875, 18 Stat. 1974, § ch. of Mar. Act In amended the relevant stat- 1894, 179, 3, 1, amended, Aug. § ch. Act of utory as provisions eligibility to limit for the reen- 11, 1908, amended, May 216, Act of as 28 Stat. pos- listment bonus to those servicemen who amended, 110, 163, Act of June as ch. 4, 1920, 35 Stat. designated sess skills as “critical” the Secre- 227, 27, (same); Act 41 Stat. § ch. tary of Defense. Armed Forces Enlisted Per- 1863, 75, 18, 3, 12 Stat. 734 § ch. of Mar. 1974, 2(1), sonnel Bonus Revision Act of § 391, 2, 24, 1912, Aug. (same); ch. § Act of (Supp.IV, 1974). § U.S.C. The 1974 134, 3, 1916, (same); ch. Act of June Stat. 590 grandfather amendments also contained a amended, 4, 188, 34, Act of June as 39 Stat. § preserving options clause of those service- (same); 1920, 227, 31, Act of 41 Stat. 775 § ch. eligible men for a reenlistment bonus on the 77, 9, (additional 3, 1845, 5 Stat. 795 ch. § Mar. pay date before the effective date of the 1974 in the Marine reenlistments for certain amendments. Armed Forces Enlisted Person- 1854, 268, 5, Corps.); Aug. 10 Stat. ch. Act of 1974, nel Bonus Revision Act of 277, Pub.L.No.93- 3, 21, (same); ch. § of Mar. Act 3, 88 Stat. 121. § (additional pay reenlist- for certain Stat. only applies 17. The formula in text to a service- service); Act of Mar. the naval ments in reenlistment; bonus man’s first awards for amended, as 10 Stat. ch. subsequent reenlistments were calculated ac- Ill, 13 Stat. ch. Act of June cording slightly producing formulae different amended, 29 Stat. 476 3, Resolution No. Joint progressively awards. The Vari- smaller bonus *7 amended, (1896), Mar. ch. Act of as Bonus awards at issue in able Reenlistment amended, 1008, 16, 413, Act of as 30 Stat. § Regular case are a function of the Reenlistment 331, 335, 22, 1912, as amend- Aug. 37 Stat. ch. only. for first time reenlistments Bonus awards 2, 44, 12,1921, ed, July 42 Stat. 139 § ch. Act of 21, 1965, Pub.L.No.89-132, August 3, Act of § (same). 547, amended, 22, 1968, as Act 79 Stat. Pub.L.No.90-623, of Oct. 1922, single Congress and more enacted a In 5, 1314-15, 3(1), Stat. 82 §§ authorizing legislation systematic piece reen- of amended, (Supp.IV, 1974). 37 308 § as U.S.C. to enlisted members listment bonuses army, Congress important It is also to note that has 10, ', corps. Act of June nav and marine often established a limitation on the total 629-30, 9-10, 1922, 212, Stat. as ch. §§ paid 413, 10, to an enlisted mem- 16, 1942, amount could be amended, ch. §§ Act of June regular reenlistment amended, ber the form of bonus- 364, 369, Sept. 19, Act of as 56 Stat. See, g., Compensation 730, amended, es. e. Career Act of 1944, 407, 8, 7, as 58 Stat. § ch. 1949, 681, 207(a), 28, 1947, 162, 4, ch. 63 Stat. 811. The § ch. 61 Stat. 192. § June Act of 2, 18, 1941, 364, Variable Reenlistment Bonus does not count Aug. § ch. See also Act statutory 16, 1942, amended, maximum. Act of Au- toward this Act of June ch. as Stat. 21, 1965, Pub.L.No.89-132, amended, gust § Stat. Act of Oct. as 56 Stat. § amended, (Supp.IV, 531(b)(29), § as 37 U.S.C. 63 Stat. 838. ch. 1974). approach to reenlistment bo- coordinated This prohibited by power per would be branch nevertheless retention dollar. A variable offering from communications statute tech- bonus can be particular tailored to fit a stronger nicians incentive in the form aof skill requirements retention and can be larger bonus. Consequently, reenlistment changed as requirements those change legislative proposals President’s since there express implied no or com- Congress concerning increased for serv- mitments about future payments. The present icemen included a recommendation that the reenlistment bonus does not dis- Department of Defense be authorized to criminate among skills and thereby does help award an additional flexible reenlistment solve the selective retention Department provide bonus to enable the problem. strong a reenlistment incentive to those H.R.Rep.No.549, Cong., 89th 1st Sess. 47-48
personnel skills whose were in short (1965)(emphasis added). S.Rep.No.544, See supply.18 Cong., 89th 1st (1965), Sess. U.S.Code Cong. 1965, 2745; & p. Admin.News Department urged Hear- The Defense both the ings on H.R. 5725 and H.R. 8714 Before the House and Armed Senate Services Commit- Comm, House Services, Armed favorably act on this 89th tees to Variable Reen- Cong., Sess., 1st ser. (1965) provision: listment Bonus incentive (Statement of then Secretary McNamara). Additional reenlistments are needed in Both approved committees the following specialties accounting per- for about 40 Variable Reenlistment Bonus provi- award strength of total enlisted cent force sion:19 all order achieve of the services’ man- regulations Under prescribed to be objectives. ning problem is much the Secretary Defense, or the Secre- serious a smaller portion more of our tary Treasury force. In a few of the most critically Coast Guard when it is not operating as specialties, a undermanned comprising Navy, service in the a member who percent about our force strength, designated having a critical military $10,000 losses more occur whenever skill and who is a entitled to [Regular termer opera- first fails reenlist and . bonus . upon his Reenlistment] capability tional suffers because of severe may first paid reenlistment be skills, addi- shortages of careerists. In these tional amount not more than four times reenlistment additional incentives are the amount of that bonus. clearly needed. provide
The most attractive toway In the course of the floor debate over strong reenlistment incentive to first what was to become the Uniformed Serv- part termers in a small force is Pay ices Act of it quite became clear through a variable reenlistment bonus. the Department of Defense had convinced A reenlistment bonus concentrates reten- that the VRB provision was money tion at the cost-justified reenlistment decision it since would save the point, thereby getting the most drawing Government the cost training replace- proposed adding following 18. The President section on paid the total amount provision to 308 of section Title 37 of the Unit- under this section. ed States Code: H.R.Doc.No.170, Cong., 89th 1st Sess. 12 (g) regulations prescribed by Under to be Secretary Defense, Secretary *8 or the 19. language The House committee modified the Treasury respect the Guard, with the Coast proposed provision provide of the VRB for designated who is member as hav- payment yearly installments, in VRB military ing a critical skill and who is entitled easing impact recipient. thus the tax on the computed (a) to a bonus under subsection H.R.Rep.No.549, Cong., 89th 1st Sess. 48 upon paid his first reenlistment be (1965). Except modification, for that the lan- additional amount not more than four times guage approved by the is committees essential- paid the amount of that bonus. An amount ly proposed the same as that the President. against count under subsection does not supra. See note 18 prescribed by (c) the limitation section of this Military Regulations22 B. enlisted mem- term whenever a first ment See, g., Ill e. to reenlist.20 decided ber interpreting regulations In issued (1965)(“[T]he career moti- Cong.Rec. 17206 Department both the of Defense and the among the generated will be vation Department Navy with to the elements, highly specifically core hard program, important emphasize VRB it is throughout people technically trained question narrow The issue. Govern- up in actual services, than make will more position applica- ment takes the that under legisla- the cost of the saved for military regulations eligibility ble for a dollars Mor- Representative Variable Reenlistment Bonus attaches at tion.”) (remarks entry the date of actual into the reenlist- (“It just plain good ton); id. at period. ment or extension Brief at 21. The $4,000 bo- provide planning personnel Government argue appellants does not than reenlistment rather encourage nus to would not have been entitled to a VRB if (re- $10,000 replacement.”) train a pay rating the CTM service had been designated Bennett); id. at Representative marks of military as a critical specialty when Dole); id. (remarks Representative entered periods of extended service.23 Russell). And (remarks of Senator at 20034 argue Nor does the Government appel- Congress viewed the also clear that it is lants are not Regular entitled to the Reen- incentive to an effective provision as VRB listment Bonus that at least until 1974was per- of enlisted brought to the attention be automatically paid upon extension or reen- they are in time when point at the sonnel listment.24 simply Government main- long to continue and how choosing whether tains that appellants only are entitled See, g., e. id. at 17201 military service.21 VRB in they actually effect when entered would bonus (“The reenlistment] [variable service, into the of extended which special- into these additional channel appellant for each amounts to zero. career the incentive toward ties. It offers glance, applicable At first military that it will most just the time service regulations support would seem to effective, decides when an individual position. Department Government’s reenlist.”) (remarks whether or not Defense Directive prescribing policies for Nedzi). Representative specifically award of the VRB deals mind, objectives these With question of reduction and termination as recommended provision enacted the VRB of VRB awards: committees, dele- by the House and Senate aWhen military designated skill is Secretary of Defense the au- gating to the reduction or termination of award an ef- adminis- regulations thority issue fective date for reduction or termination Act of Au- program. of the VRB tration of awards shall be established and an- 21,1965, Pub.L.N0.89-132, 79 Stat. gust nounced days to the field at least 90 amended, Act of Oct. Pub. as advance. All awards on or after that 1314-15, L.No.90-623, 3(1), 82 Stat. effective military designat- date in skills §§ IV, amended, 1974). ed for (Supp. reduction of award level will be at U.S.C. § States, brief, v. United 203 Ct.Cl. 20. See Deschler In its concedes that Government (1974); Comp.Gen. 483-84 “pay” agreement the term in the extension (1968). Thus, includes VRB. Brief at 16. if the Navy had reduced rather than terminated the States, See Parker v. United 198 Ct.Cl. rating, VRB award level the CTM apparently ap- would contend that pellants only were entitled to the lower VRB regulations discussed in this section of 22. The award level. reprinted opinion regulations are recent Appendix We are told filed with the court. supra. 24. See note 12 require- brief that similar in the Government’s versions of the were contained in earlier ments n.13; App. regulations. at 89. Brief at 21 see *9 ing and no service obligation, that date new including level effective any early after the ef- discharge granted will be made on or pursuant awards military designated date in skills 10 U.S.C. fective must have been at- prior termination of awards. tained to the date the authority for approving the was modification noti- 1304.14, (Sept. Directive IV.F. DOD f fied of the prospective termination or course, that Directive is best 1970). Of reduction of award in military whether a ambiguous, in that it is not clear specialty. enlisted mem- is “awarded” when an VRB extend enlist- signs agreement (Emphasis added.) an ber And the regulations is- actually begins or she or when he sued Department ment Navy of the indi- Section IV.- of extension. serve cate an extension of quali- enlistment however, Directive, of the tells us that D.2. form fies as a of “modification of an exist- eligibili- provisions for individual “Specific ing obligation”: service receipt enlisted members for of ty of Member must prior attain eligibility separate De- are contained awards” the effective date of a of reduction award Defense Instruction. partment of be eligible level to for higher award separate regulation Eligibility also addresses level. through That attained question discharge of reduction and termination early for the purpose of imme- reenlistment, awards: diate of or extension of enlist- ment, or other existing modification of an serving military specialty in a Members obligation service including any early dis- designated for reduction or termination granted charge pursuant provisions award under the of subsec- article (d) 3840240 reference (discharge will (a), IV.F. of reference receive within tion of expiration months obligated award level effective on the date of of active service) shall reenlistment or extension of enlist- be prior attained to the date ment, authority except provided paragraph approving the modification above. is notified or the prospective V.B.l.f. termination reduction award in the rat- [service 1304.15, of Defense Instruction Department ing]. This is the date a command re- (Sept. 1970) added). (emphasis fVI.A. ceives Bureau of Naval Personnel di- clause, it not the “except” Were for rective announcing termination or reduc- regulation apparently support would also tion of awards in rating], the [service interpretation the Government’s of the |7.h. program.25 question VRB thus be- 1133.18E, (Mar. BUPER INST whether “paragraph comes V.B.l.f.” leads 1972) (emphasis added). different
to a result. Paragraph V.B.l.f. of the Defense In- relevant portion paragraph V.B.l. paragraph struction and 7.h. of the Navy eligi- enlisted member is provides “[a]n Instruction were apparently designed to ble to receive a Variable Reenlistment Bo- prevent enlisted receiving members from if he . nus higher award level of a VRB scheduled eligibility prior Attains
f.
effec-
for
merely by
reduction
modifying their
obligations
tive date of termination of awards in
learning
service
after
any military specialty designated
planned
reduction
prior
to its effective
Thus,
termination of the award. Member date.
if
Navy
announced on
eligibility prior
must attain
to the March
1972 that a VRB with a multiple
effective date of a
of award
reduction
of four
to be
multiple
reduced to a
level
eligible
higher
to be
rating
two for
CTM
July
effective
award level. Eligibility
extending
attained
an enlisted member
his or
through any
of an exist-
obligation
modification
her service
after March
Actually,
possible
signed.
agreement
it would
to read “ex-
the extension
which
Our
mean,
V.B.l.f., however,
interpretation
paragraph
of enlistment”
at least for the
tension
purposes
quoted paragraph,
unnecessary
clarify
ambiguity.
the date on
makes it
*10
Moreover, the
interpreta-
Government’s
period
of exten-
entering on
clearly
tion would lead to results
at odds
1,1972
nevertheless
would
July
prior
sion
explicit congressional objectives.
VRB award
to the lower
only
entitled
be
example,
ap-
For
under the Government’s
Only
two.
those
multiple of
awith
level
proach
signed
an enlisted member who
an
their service
modifying
personnel
enlisted
agreement
extension
when the VRB award
would
March
obligations prior
multiple
level was at a
of two but entered
higher VRB
eligibility
attained
have
into extended service when the multiple
four.
multiple of
with a
level
award
set
four would receive the higher
regula
these
application
The
Despite
level.
the fact that
award
a bonus
conclude that
leads us to
appellants
tions to
multiple
with a
of two was a sufficient
level in
VRB award
they are entitled
reenlistment
incentive for
that enlisted
respec
signed their
they
date
effect on the
member,
apparently
the Government would
extend enlistment.27
agreements
tive
award him a windfall in the form of a
prior
executed
were
agreements
Those
multiple of four.
bonus with a
Navy
24,1972,
on which the
the date
March
interpretation
The Government’s
would
July
effective
termination
announced
congressional objectives
frustrate
also
rating.
for the CTM
VRB award
complicating the decision whether to reen-
to re
otherwise entitled
are
appellants
If
legislative history
The
indicates that
list.
award, as the Government
a VRB
ceive
Congress
person-
intended to offer enlisted
are,
to be
that award is not
they
concedes
specific
nel a
sum28in addition to the auto-
according to the award level
determined
Regular
matic
Reenlistment Bonus as an
they actually entered
on the date
effect
incentive to reenlist in skill areas in critical-
extension,
periods of
respective
their
into
ly
supply.
short
Under the Government’s
award level in
according to the
rather
but
(with
approach, an enlisted member
a skill
their extension
they executed
when
effect
critical) considering
designated as
extension
agreements.
weigh
service would have to
not the
would undermine
To hold otherwise
level,
award
the VRB
current VRB
V.B.l.f.
paragraphs
language
explicit
award level in effect on the date
which
regulations,
appropriate
and 7.h. of
actually begin serving
he
or she would
en-
extended their
those who
that neither
of extension. The latter VRB award
24, 1972 nor
after March
on or
Navy’s
listments
level would be a function of the
be-
their enlistments
who extended
manpower
those
needs at that time as well as the
eligibility
attain
1972 could
prospect
fore March
extent to which the
uncer-
begin
were to
they
award if
level
higher
already helped
tain VRB award
had
July
on a date after
satisfy
requirements.
extended service
those
Information
rarely
referred to above
factors
paragraphs
concerning
those
would
1972.
readily
personnel
a situation in which
accessible to enlisted
mak-
obviously contemplate
eligibility prior
ing
decision,
attain
a reenlistment or extension
personnel
enlisted
legislative
periods
enter into
and we find no evidence in the
at which
point
background of the 1965 amendments to
extended service.
Actually,
appropriate
obligation
date is the date the
her service
and who is otherwise
Navy directive announc-
qualified
receives the
command
for a VRB award —as the Government
ing
in rele-
or reduction of awards
termination
plaintiffs are —is entitled to the
concedes these
1133.18E,
ratings. BUPER INST
vant service
level
in effect on the date the
VRB award
(Mar.
1972).
7.h.
fl
signed.
extension contract
military regulations prescribe
applicable
“specific”
that it is
28. The sum is
in the sense
satisfied
that must be
a number of conditions
multiple
by military
authorities at some
set
his Vari-
can receive
enlisted member
before an
Regular
Bonus. As noted
Reenlistment
does
Our decision
Reenlistment Bonus.
able
above,
vary among
multiple will
service
conditions established
the other
not eliminate
per-
ratings according need for enlisted
merely
military departments.
hold
We
particular
sonnel with
skills.
his or
who extended
enlisted member
that an
contracts
appellants
the conclusion that
in-
entitled to the
warrant
*11
VRB award level in effect
the
at
time
personnel
they
enlisted
make reenlist-
tended
signed their extension contracts. Our con-
the
of
decisions in
face
such uncer-
ment
clusion in
regard
that
is
by
reinforced
our
tainty.29
obligation to
strongly against
construe most
The
authored these exten-
Government
Government,
the
as against
any other
contracts,
easily
it could
have
and
sions
contract,
drafter of a
ambiguous contract
provision limiting
a
an enlisted
inserted
subject
terms that are
to a reasonable and
eligibility
VRB
the award level
member’s
practical
interpretation
other than that of-
entry
actual
on the date of
into
in effect
by
fered
United States v.
the drafter.
service.
period of extended
Undoubted-
the
Seckinger,
203, 210, 90
S.Ct.
included,
had been
provision
if such a
ly,
L.Ed.2d
(1970);
Corbin,
3 A.
Contracts
would
witnessed
ex-
Navy
the
have
fewer
Since the regulations
at issue
of
But
there is
tensions
enlistment.30
no
recognize
eligibility
can be attained
express
eligibility,
on
limitation
the
prior
entry
actual
period
into the
of
the
by
is therefore bound
actu-
Government
service,
extended
and since the Govern-
applicable
and the
al contract
terms
mili- ment’s interpretation
regulations,
of the
un-
Although
tary regulations.
recognize
we
like that of the plaintiffs,
at
is
odds with
military
complex
regula-
these rather
intent,31
congressional
we construe the con-
ambiguity,
tions are not free from
the fac-
tracts to
appellants
mean that
are entitled
lead us to
tors outlined above
conclude that
to the VRB award level in effect when they
interpretation
of
signed
under a reasonable
the
agreements.32
extension
Indeed, Navy regulations governing
reenlist-
level less than that in effect
the
of
at
time
the
potential
eligi-
signing,
ment interviews for
ble for the VRB
reenlistees
probability
and some
of no VRB award
require coverage
of
personnel
the
at all. And enlisted
who are risk
“[a]dvantages
early
is,
of
reenlistment to obtain
they willing
premi-
averse—that
um avoid
are
a
present
uncertainty
amount of VRB vice
of
might
against
well decide
risk—
future
of VRB.”
value
9.a.(6) (Mar.
the
BUPERINST 1133.-
gamble,
personnel
such a
whereas the same
18E,
23, 1972).
note
See also
willing
H
would be
exchange
to extend their enlistment in
infra.
promise
for a contractual
the
government to offer a sum certain on the date
See,
Dietz,
g.,
e.
Affidavit of Thomas W.
entry
of
into extended service.
(“I
App.
definitely
signed
at 19 would have
not
Extension
Enlistment contract if the
interpretation
31. The Government’s current
personnel
my
procedure
counseling
involved
also
stands
stark contrast to the Defense
presented
possibility
had
VRB
Department’s
recommendation to
could be withdrawn on a moments
no-
[sic]
reenlistment
“[a]
bonus concentrates re-
tice.”).
provision
Such a contract
would in-
money
tention
at
the reenlistment decision
personnel
form enlisted
would be
point.”
U.S.App.D.C.p.-,
See 175
making reenlistment decisions
the face
of
p.
supra.
The two statements can be
uncertainty.
of
conditions
We note that
aas
only
entry
reconciled
if the date of actual
into
program
result the effectiveness of the VRB
period
point,”—
the extension
that
is a “decision
depend
only
expected
would
of the
value
is, point
at which
could decide
entry
VRB award
the time of actual
military
not to
Navy
continue
service. But the
service,
period
into the
of extended
but also on
emphasized,
has
presently
personnel
of
attitudes
enlisted
toward risk.
contends,
agreements
that the extension
Savage,
Utility Analysis
Friedman &
of
binding
entry
and that
date
of actual
is not
Risk,
Involving
Choices
56 J.Pol.Econ. 279
point”
plaintiffs.
a “decision
for these
Posner,
(1948);
Analysis
R.
see
Economic
(1972) (discussing
72-73
Law
attitudes toward risk in the accident
effect,
the relevance of
field).
32. When considered in the context of the
In
entire
scheme,
regulatory
interpretation
VRB
the Government’s
Government’s in-
terpretation
requirements
regulations (or
provision making
eligibility
of VRB
a contract
has
potential
interpretation
producing
explicit) provides
inequities.
the
Under the
that
personnel
serious
enlisted
Department
opportunity
purchase
relevant
Defense Di-
rective,
“lottery
agreements
Military
signing
Depart-
ticket”
the Secretaries of
to ex-
enlistment;
“lottery
Secretary
tend
ments
ticket” offers
and the Assistant
of Defense
probability
equal
some
of a VRB award
are directed to conduct “an annual review of
agreement
manning
award level in
effect
the time the
the retention and career
any military specialty
situation in
signed,
probability
some
of a VRB award
that has attained or is
ly, although it has not been
Variable Reen-
Repeal
raised
by any
C.
Program
parties,
we are
Bonus
confronted with the
listment
question
plaintiff
whether named
Johnson,
repealed
1,1974, Congress
June
Effective
who was
scheduled
enter
his
provisions providing
statutory
extended service after the effective date of
and the Varia-
Bonus
Reenlistment
Regular
amendments,
the 1974
is no longer entitled
substituted
Bonus
Reenlistment
ble
to receive a VRB.34
Re-
new “Selective
authorizing a
provision
(SRB). Armed Forces
Bonus”
enlistment
Since contractual
rights
against
Revision Act of
Bonus
Personnel
Enlisted
*12
government
are property
pro
interests
Pub.L.No.93-277,
2(1), 37 U.S.C.
1974,
§
by
tected
Amendment,
the Fifth
Congres
IV,
1974
1974).33 The
amend-
(Supp.
308
§
power
sional
abrogate
to
existing govern
provide that an enlisted
specifically
ments
ment
narrowly
contracts
is
circumscribed.
on the effective
duty
active
member
Perry
States,
v.
United
330,
294 U.S.
55
“who would have
of the amendments
date
432,
duce
Defense
Lynch
specifically
of the United States.”
obligations
recommended the
al
1974 amend-
States,
supra,
292
at
54 ments to
v. United
U.S.
Congress
opportunity
“an
see id.
added);
save
(emphasis
money
while
844
simultaneously improving
S.Ct.
Clifford,
v.
our management
Compare
Schultz
reenlistment
incen-
aff’d,
(D.Minn.1968),
tives.”
F.Supp.
S.Rep.No.93-659,
Cong.,
93d
2d
denied,
1969), cert.
(8th
(1973);
Sess.
H.R.Rep.No.93-857,
Cir.
93d
(1970);
Cong.,
1181
granting
conceive of how
remedy,
request
equitable
is an
Rescission
money] judgment.”
exer- would be “in aid of
mind that courts
keep in
[a
we must
,
States,
do Blanc v. United
709
generally
jurisdiction
Act
cising Tucker
1957). Compare
C. N. Monroe Man-
(2d
Cir.
equita-
suits
jurisdiction over
have
States,
ufacturing
Co. v. United
Rich
F.Supp.
143
the United States.
against
relief
ble
Kemp
v. United
(E.D.Mich.1956);
Morris,
449
93 S.Ct.
v.
409
ardson
States,
(D.Md.1941).
Lee v. Thor
See
F.Supp.
38
568
(1973); see
647
34 L.Ed.2d
Corp.
also Universal Transistor Products
v.
43 L.Ed.2d
ton,
S.Ct.
420 U.S.
States,
United
F.Supp.
(E.D.N.Y.
jurisdiction
Act authorizes
(1975). The
1963).
unnecessary
We
it
to resolve
money judgments.
find
actions
only over
2-3,
other, however,
way
these doubts one
or the
King,
v.
395 U.S.
United States
see United
(1969);
since on the basis of the record before us we
23 L.Ed.2d
S.Ct.
Jones,
impossible
judicial
33 would find it
to sustain a
States
payment
nevertheless
seems
decree of rescission. The
of VRBs
There
L.Ed. 90
adequate legal
this limita-
is an
reme-
“exception” to
narrow
be a
dy,
in that
and we have been offered no evidence
jurisdiction,
Act
Tucker
tion
indicating
ex-
monetary,
exceptional
there are
cir-
the relief is
“[wjhere
[courts
can call
case that
jurisdiction]
justify
Act
cumstances
Tucker
ercising
grant
equitable
relief.
concepts as rescission
equitable
such
upon
.
.
reach
help
reformation
We
conclude that
the District
therefore
Associ-
Quinault Allottee
right result.”
properly limited the relief in this case
Court
1272, 1274
States,
F.2d
v. United
ation
to the award of VRBs.
(1972);
n. 1
see
197 Ct.Cl.
n.
Co.,
Imprinting
v. Milliken
States
United
III. CLASS ACTION ISSUES
*14
168, 173-74,
50
September
On
in the
L.Ed.
plaintiffs’
granting
same order
motion for
judgment,
the District
cer
summary
as to wheth
Court
have serious doubts
We
Rule
judicial rescis
tified this suit as a class action under
request for
plaintiff’s
er the
23(b)(1)(B)
within
of the Federal Rules of Civil
contracts falls
their extension
sion of
argues
hard to
Procedure.36 The Government
on
exception since it
is
narrow
this
jurisdiction
perhaps persuasive
has not chal-
the same
effect on actions
that the Government
and
36. We note
jurisdictions,
appeal
lenged
merits of the District
the
on this
the
filed in other
ruling
respect
qualify
pursu-
the maintenance
suit would not
as a class action
Court’s
of this
23(b)(1)(B).
23(b)(1)(B).
g.,
action under Rule
suit as a class
ant to Rule
Novelty
B
E. Lamar v. H &
Co.,
(9th
covers cases in
That subdivision
& Loan
489 F.2d
Cir.
by
separate
1973);
prosecution
Corp.,
of
actions
which “the
Richardson v. Hamilton lnt’1.
against
(E.D.Pa.1974).
of the class
individual members
F.R.D. 413
As the Ninth Circuit
or
adjudications
observed,
recently
allowing
create a risk of
the stare decisis
would
with
consequences
supply
class
to individual members of the
of an individual action to
disposi-
practical
practical disposition
impair-
matter be
would as a
the
or substantial
which
tive of the
parties
pair
rights
members not
interests of the other
of the class “would make the
ment of the
invocation of Rule
substantially
adjudications
23(b)(1)(B)unchallengeable”
im-
or
ability
protect
prerequisites
impede
meeting
their
action
or
in cases
of Rule
the class
qualify
23(a).
Novelty
as a class
For a suit to
LaMar v. H & B
& Loan
interests.”
subdivision,
Co., supra,
it is not neces-
this
orders
Johnson v. Georgia High-
allegedly
members that
re-
absent class
Inc.,
way Express,
1122,
417
(5th
F.2d
1125
concepts
process.
of due
It is
quired under
1969) (Rule
Cir.
23(b)(2)) (by implication);
to that
issue that we now turn.
id. at
(Rule
1127 n. 1
23(b)(2)) (Godbold, J„
concurring);
g,
e.
Lynch v. Household Fi-
Requirements
B. Due Process Notice
nance Corp.,
720,
360 F.Supp.
722 n. 3
directly
This case thrusts us
into
(D.Conn.1973)
(three-judge
court)
(Rule
controversy
precise prejudg
over the
23(b)(2)); Woodward v. Rogers, 344 F.Supp.
23(b)(1)
requirements
ment notice
in Rule
974,
(D.D.C.1972),
980 n.10
aff’d without
express language
actions.41 The
class
opinion,
57,
U.S.App.D.C.
159
1185 Recognizing that the Court to have seems the Rule is language of that Noting primarily language relied on the of the Rule “unmistakable”, that indi- Court held grounds, rather than on constitutional practicable notice” is the “best notice vidual number of lower federal courts have con- to class members whose respect those with cluded Eisen strongly imply that and Sosna easily identifiable. and addresses names required that notice is not in actions however, time, em- the Court At the same brought under than subdivisions other “only with that it was concerned phasized 23(b)(3). Allegheny-Lud- United States v. subdivision requirements the notice Inc., Industries, 826, lum 517 F.2d 878-79 inapplicable terms to by is its (c)(2),” which 1975) (5th (Rules 23(b)(1) 23(b)(2)); and Cir. 23(b)(2).43 23(b)(1) or under certified actions Co., Wetzel v. 508 Liberty Mutual Insurance n.14, 94 at 2152. at 177 S.Ct. 417 U.S. (3d 239, Cir.) (Rule 23(b)(2)), F.2d 255-57 Term, Sosna, just provides last decided cert, denied, 1011, 2415, 421 95 44 U.S. S.Ct. that the Court intends some firm indication (1975); v. Weinberger, L.Ed.2d 679 Mattern to approach notice pursue different 150, (Rule (3d 1975) 519 F.2d Cir. 157-58 sections in actions certified under problems 23(b)(2)) (citing Wetzel, supra); Molina v. 23(b)(3). Sosna involved other than Weinberger, (9th 1, No. 74-1611 Cir. Oct. injunctive relief declaratory suit for 1975), slip opinion (Rule at 23(b)(2)); 11-14 challenging constitutionality Iowa’s v. g., System, e. American Finance Inc. residency requirement for di- durational Harlow, (D.Md.1974) 94, 65 F.R.D. 110-11 “it Recognizing that petitions. vorce [was] Indeed, (Rule 23(b)(2)). Circuit the Second of the class contemplated that all members now notice prejudgment has concluded that ruling on the the ultimate will be bound actions, v. required 23(b)(2) is not in Frost 559, merits,” 95 at 419 at S.Ct. U.S. 1975) Weinberger, (2d 515 65 F.2d Cir. itself the condi- satisfied that Court first J.), (Friendly, see Ives v. W. T. Com- Grant 23(a) met. Id. As Rule had been tions of pany, (2d 1975), Cir. 764 23(b)(2) in issue of notice a Rule its Seventh Circuit has that indicated action, the Court stated a footnote opinion Schrader will have be reexam- associated with a Rule problems “the Eisen, Benson, in light Bijeol ined v. action, which considered 23(b)(3) class were (7th 1975). F.2d 968 n.3 Cir. ], are last Term Eisen not this Court [in process Our of the due own resolution 397, n.4, Id. in this case.” at present 23(b)(1) claim a Rule action also must at 556. S.Ct. approximately apparently satisfy package would cost even He re- does him. $21,720. again process turns time and to due considera- Jacquelin, give plausibility v. Carlisle & Eisen tions to his inter- literalist (1974). pretation of the Rule.” Class Action Notice: it?, Sup.Ct.Rev. Who Needs For Advisory to Rule 23 Note 43. The Committee’s Professor Dam’s discussion of the structure it clear Committee Advisory makes opinion in terms of its reliance on the required prejudgment thought process that due wording process of Rule 23 and on due consid- “[Mjandatory 23(b)(3) Rule notice in cases: erations, see id. 109-111. (c)(2) pursuant . . subdivision notice persuasively argued It has been that Muilane proc requirements designed of due is fulfill compel and similar cases do not the conclusion procedure is of which the class action ess to required individual notice is in all Rule 106-107, subject.” citing F.R.D. course See, Note, 23(b)(3) g., Manag- class actions. e. Hanover Bank & Trust Mullane Central v, ing Large Class Action: Eisen & Carlisle Company, 339 94 L.Ed. S.Ct. Jacquelin, (1950) Harv.L.Rev. 433-^41 cases. and similar Supreme But even were the Court to conclude however, uncertain, the Su- It whether process required that due individual notice in process preme Court conclude that due would actions, 23(b)(3) application Rule Mui- prejudgment requires As notice. individual balancing approach lane lead different could noted, reading close Dam has “[a] Professor 23(b)(1) to Rule' results opinion sug- Eisen] Justice Powell’s [in Mr. 23(b)(2) given actions the different interests gests that he not want to base notice did Indeed, subsequent plain holding stake. textual discus- his on the Yet Constitution. very suggests meaning methodology interpreting the sion conclusion. Rule of Sosna *18 practical matter dispose the by the recent decision interests of take into account absent members or substantially impair Board of v. United States court in Childs impede ability protect or their in their Parole, U.S.App.D.C. F.2d 1270 then, best, At provides terests. notice ab case, citing (1974). in that panel sent members with an opportunity to moni decision, upheld Supreme Eisen Court’s the representation tor of their rights. In grant of to members District Court’s relief cases, such we that process think due argument 23(b)(2) despite class an of a Rule procedure if the adopted “fairly satisfied absence of by the that the protection insures of the interests of prejudgment violated notice in case parties absent who are be it.” by bound at 1276. that a process. due Id. We think Lee, Hansberry v. issue process similar resolution the due agree L.Ed. We here; that have should obtain factors with Ninth Circuit’s recent observation and to con- prompted courts commentators “[o]nly purposes when providing in process require no- clude that due does not opportunity class members an signify 23(b)(2) equal- tice in Rule class actions representation by whether named actions under Rule ly applicable to certified or adequate is fair and to intervene 23(b)(1).44 present additional claims or to otherwise respect Unlike with to mem- the situation to, come into the action for example, submit 23(b)(3) class, bers of a Rule the members curiae, as views amici are in being need of 23(b)(1) of a Rule class are to be more likely served, process require does due the di- probably unified in the sense there will rection of some of notice sort to absent part be little on the individual interest 23(b)(1) of a Rule class. Molina members” controlling directing members in Weinberger, slip opinion supra, at separate litigation own question cases, on the 23(b)(2)). can (Rule In such notice Indeed, issue in the class suit. a Rule pursuant 23(d)(2).45 to Rule provided be action, 23(b)(1)(B) adjudications class in our case does present Since view this special individual members would as a requiring prejudg- circumstances representative brought In actions under they to decide if monitor the to intervene want or 23(b)(3)], other [subdivisions than Rule representation rights. of their generally class will be more cohesive—for valve, safety given As a court is discre- many example, in instances member each by 23(d)(2) to tion given Rule direct be notice to practical by will be affected as a matter any protection “for the class action judgment by obtained another member if in- of members of the class or otherwise for Similarly, dividual actions were it instituted. power the fair action”—a conduct of the likely special is less that there will be defens- is inherent in having at least in the court situations relating es or issues a Rule the case of a to individual members of process due overtones. class, 23(b)(1) 23(b)(2) or Rule than in Miller, Wright supra, C. 7A & A. § 1786 23(b)(3) Rule class. This means (footnotes omitted). 143—44 Weinberger, See Molina v. that there is less reason to be concerned (9th No. 74-1611 Cir. Oct. having about each member of the class an 1975),slip opinion at 12-13. Thus, opportunity present. to be in suits (b)(1) (b)(2), under subdivisions court determines that the or once the 23(d)(2) provides: Rule are ade- members In the conduct of actions to which this rule quately represented required Rule applies, may appropriate court make or- 23(a)(4), reasonably it is certain (2) requiring, protection ders: for the representatives protect named will the ab- members of the or class otherwise fair give sent functional members them the action, given conduct of the that notice day equivalent of a in court. such manner as the court direct to some keeping philosophy, In with this any step all of or action, the members of in the 23(b)(1) 23(b)(2) members in Rule and Rule proposed judg- or of the extent of the provided opportunity actions are not ment, opportunity or of the of members to the rule to exclude themselves from ac- signify they representa- whether consider the 23(b)(3) in Rule Be- tion as is true cause actions. adequate, fair tion to intervene and not have do the alternative defenses, present suit, really bringing separate claims or otherwise to notice serves opportunity only allow those members the come into the action. *19 notice, judgment uphold we the District Court’s entered by ment the District Court complied class. in all certifying respects order with Rule
23(c) in that it described the members of plaintiff class. Absent some articula- 23(d) Rule Disclosure Under C. tion of the reasons why plaintiffs thought a argue that the District Plaintiffs disclosure order would be necessary pro- refusing grant their re erred in Court tect the interests of absent members, directing the an order Govern quest for the District certainly Court cannot be said the names and addresses of to disclose ment to have abused its discretion in denying the plaintiff Having of the class. the members requested order. request the context which this considered made, cannot conclude that we IV. ATTORNEYS’ FEES its District Court abused discretion in re Plaintiffs’ counsel asked the Dis 23(d) a Rule
fusing to issue
order.
trict Court to award them attorneys’ fees in
8,May
attorneys
On
1973 the
$175,000,
the amount of
approximately 25%
plaintiffs wrote to the
named
United States
of their estimate of the total class recovery.
Attorney’s
stating
Office
that “it would be The District Court chose not to follow a
helpful
plaintiffs
for the Court and
if the
percentage of recovery approach and in
prepare
Navy were to
a list of the
stead relied on the standards for computing
plaintiffs
locations of the
names and
[sic] attorneys’ fees that it had fashioned in Kis
that we
in a position upon
class so
would be
Miller,
er v.
46. This en banc on court fees issue. Pete v. UMWA Welfare eventually Fund, October reinstated that & U.S.App.D.C. 1, Retirement portion panel opinion dealing with the F.2d 1289-93 ing ON PETITION FOR only REHEARING focuses plaintiff named Johnson and other members of the class who began Upon appel- consideration of defendants serving periods of extended service appellees’ petition rehearing, lants-cross after the effective date of the 1974 statute it is repealing the Variable Reenlistment Bonus *20 ORDERED by the Court that the afore- system.1 Admittedly, the Government does said for petition rehearing is denied. seek a reexamination of the other issues to Judge McGowan, Statement of Circuit insure a consistent among result plain- all joined by Judge Circuit Senior Rives and tiffs, primary emphasis but the in the peti- Judge Wright, why Circuit as to they voted disposition tion is on the of the given case deny rehearing. the 1974 repeal statute, which is The petition Government has filed a for discussed at Part II. C. of panel opinion. the rehearing and suggestion rehearing for en grounds (1) banc on I panel the that: the opinion with prior decisions of “conflict[s] The argues Government first that named this Court and with decisions of the Su- plaintiff Johnson had no right contract to a preme holding Court that public benefits VRB award since “the very nature of the such as the variable reenlistment bonus can statute . . which authorized the subject never rights’ be the of ‘contract and VRB was such as to prevent the VRB from Congress the discretion of may be re- becoming subject ever the of a ‘contractual duced or any terminated at time before entitlement’ ”.2 Petition at 11. The received”; (2) panel opin- the position takes the the unduly ion “has paramount restricted the “gratuity” VRB is a may which be altered powers Congress, disregarded has a clear repudiated any time. problem Our congressional declaration of purpose, and approach with this is that it to address fails has significantly restricted the scope of an case; the narrow issue in the the question is important grant constitutional power” in not whether a VRB can under some circum- ruling Congress was not free to abro- stances be gratuity, considered a gate existing rights contract to the VRB. ripened whether it to a right contract under Because we are of the view that neither the presented circumstances in this record. accurately statement scope reflects the sure, contexts, To be in some reenlistment panel decision, the deny we petition bonus are “gratuities”; awards the panel rehearing. not, does not, and indeed would take the discussing
Before
primary
position
three
con-
having
that once
established a VRB
pressed
tentions
upon
by
us
the Govern-
award system
cannot termi-
ment, we note that
petition
for rehear-
nate
As to
personnel
it.
those enlisted
who
appropriate
why
panel
1. We think it
to note
disconcerting
2. We find somewhat
the Govern-
“decided to rule on the effect of the new Act on
panel opinion
ment’s statement
“does
plaintiff Johnson,
though
acknowledged
even
it
identify
the source” of the contractual en-
(and
the matter had not been raised
had
VRB,
titlement
to a
and that as a result
argued).”
not been briefed or
Petition at 6.
Government has had to assume that
the con-
panel
precisely
reached the issue
because
finding
tractual
entitlement
is based on the
choice;
plain-
it had no other
one of the named
language
agreements promis-
in the extension
tiffs had entered into his
of extension
ing
“pay”
the named
such
as would
repeal
authorizing
after the
of the statute
during
periods
accrue to them
of extended
system,
consequently
panel
VRB
had to
service. Petition at 7. As footnote 23 of the
satisfy itself that the affirmance of the District
notes,
panel opinion expressly
the Government
grant
Court’s
of relief as to Johnson and others
“pay”
conceded in its brief that the term
in the
similarly
situated was not barred
the subse-
agreements
awards,
extension
includes VRB
quent statutory change.
panel purposeful-
reject any
suggestion
and we
new
to the con-
ly
opinion
noted in the
the issue had not
trary
petition
rehearing.
in the
highlight
been raised to
the fact that at no time
appeal
parties
in the course of this
did the
notify
repeal
authorizing
the court of statute.
but who took no
planning
[TJhough
to reenlist
were
when appointed the law has
binding
regard prior
action in that
provided a
compensation
fixed
for his
repeal,
date of the
the VRB is a
effective
services,
there is no contract which for-
right.
“gratuity”
rather
than
contract
legislature
bids the
or other proper au-
v.
United States
point
This
is illustrated
thority
change
the rate of compensa-
Dickerson,
S.Ct.
tion for
salary or services
after
(1940),
congres-
L.Ed. 1356
which concerned
made,
change
though
include
suspending
sional action on June 21 of 1938
part
of the term of the office then
year July
for the fiscal
1938 to June
Butler
Pennsylvania,
unexpired.
statutorily
1939 a
authorized reenlistment
How.
II power establish a VRB scheme not de- second but The raises a pendent Instead, Government change. future it ar- as to unpersuasive argument why equally gues that the contract for a VRB like is the plaintiff Johnson not have a named did military is, normal contract for a —that right award, to a namely, VRB anticipates contract contract which changes. future Legislation, right. tutionality circumstances, 73 Harv. Under these of Retroactive the Court misleading. (1960) slightly permit is is reluctant the L.Rev. donee to obstruct a quotes statement Hochman’s purposes by legis- reassessment of these the any repudiated “may gratuities be altered or lature. by them are until the benefits conferred (footnote time omitted). Id. at 726 We would find it actually But Hochman received.” Id. at 724. difficult conclude that there was no financial “key element” with goes note that the on to acquisition right cost in the of the ato VRB or gratuity ap- respect a a benefit is to whether right by that the to a VRB is not controlled the any cost financial pears “the absence of to be person’s namely, the merits of enlisted claim — upon right acquisition based the the the willingness to extend his of service. argues original Hochman Id. at 725. statute.” press gratuity 6. The Government did not that: argument in its initial brief. The reason for the reliance re- be stressed It should plain- be that as to the other named category right quired the a from to remove began serving prior tiffs who their extensions gratuity detriment . . is a financial repeal, to the effective date of the the termina- merely right, acquisition and not of the alleged “gratuity” by tion of the was achieved accrues, as, right it on the after reliance regulation military by rather than See statute. making example, commit- of a financial States, Carini v. United 741 n. 7 upon rea- in reliance the statute. ment 1975). (4th But if Cir. the Government is of the probably requirement is for this stricter son only Congress view that could terminate the cases sus- encountered in similar to that limitation; “gratuity,” we fail to see how a reexamination taining of statutes the extension by plain- gratuity given of the with a statute issues to the named . . purposes produce controlled public tiffs other than Johnson a which are would con- by the merits of the donee’s claim to the See sistent result. Petition at 15. provide Department Defense that the Govern- simply say that is But interpreta- panel’s recruitment tools it needed disagrees with to fill ment critical contract; argument skill needs in the new of the All-Volunteer tion Force.” by panel, rejected at 14. The analysis Id. Government’s considered does not with the result disagreement legislative history mere indicates that the mili- rehearing. found, warrant tary departments two deficiencies in the then effective bonus scheme: the au- point on only is the that this stress We regular, thorization of a opposed to vari- with the Fourth in conflict we are which able, reenlistment bonus regard without States, 528 v. United In Carini Circuit. speciality; and the failure provide position (1975),that court took F.2d 738 VRB for subsequent reenlistments possi- anticipated issue the contract at first reenlistment. with- change, a result reached statutory ble history or legislative analysis out We have disagreement no with the Moreover, as we in- regulations. applicable Government’s assessment of purposes, these panel opinion, 35 in dicated at footnote but the determinative factor is that they the issue ruling on district courts all four have nothing to do with personnel enlisted approach taken disagree with who already agreed had to extend their Circuit.7 Fourth enlistments before repealed the
prior statute. The purposes
identified
speak
the Government
in prospective terms
Ill
completely
and are
unrelated to men who
by the Govern-
argument raised
The final
already agreed
had
to serve the additional
plaintiff
named
John-
is that even if
ment
result,
years;
two
as a
cannot be used
right
to a VRB
a contractual
son had
justify
change
in the terms of already
award,
exercising
para-
Congress was
binding
agreements.
extension
repealing
the statute
power
mount
States, 292
Lynch v. United
thus under
*23
(1934), was
constitutionally agrees rights.8 Government
contract there was a panel’s view that
with Act, maintains behind the purpose
fiscal legitimate exer- represents
that “the Act to ‘raise Congress’ paramount power
cise for and ‘to make rules support armies’ of the land government regulation ” at 15. This is and naval forces.’ Petition Act was to purpose “the
so because
pleased
purposes
appeal
Lynch
itself was not
7. The Fourth Circuit
of this
stan-
obliged to reach: “While we
the result
it felt
applies.
dard
Petition at 13 & n. 9. Whether
right
hold there is no enforceable contract
Lynch requires
paramount
the exercise of a
payment
the now re-
of the VRBs under
power
something
may
less —whatever
pealed
308(g),
of these
the situation
abrogation
be —it
is clear
of contract
appealing.
.
. Under the circum-
is most
stances,
rights
purpose
reducing expendi-
for the sole
to reconsider
wish
constitutionally
tures is not
sanctioned.
Since
they have
situation and the moral claims
only .justification
in our view that
is the
against