Sylvia H. Thompson v. Clark M. Clifford, as Secretary of Defense

Sylvia THOMPSON,Appellant, H. CLIFFORD,

Clark M. al., Appellees. Defense, et

No. 20737. Appeals Court of District Columbia Circuit.

Argued Oct.

Decided Dec. Burger, Judge, Circuit dissented in

part. Speiser, Mr. Washington, Lawrence D.

,C. with whоm Messrs. Joel E. Hoffman Ross, William Washington, Warfield C.,D. brief, appellant. were Strazzella, Mr. James A. Asst. U. S. Atty., with whom Messrs. David G. Bress, Atty., Q. U. Nebeker, S. and Frank Joseph Fentress, M. Hannon and A. Lee Jr., Attys., Asst. brief, U. S. were on the appellees. Before Fahy, Judge, Senior Circuit Burgee Judg- Circuit Robinson, es. III, SPOTTSWOOD ROBINSON, W. Judge: Circuit appeal challenges This Secretary to bar inter- ment of the Thomp- remains of Robert G. son in a cemetery.1 Thompson during saw action World War II in the Theater, Pacific where his “extraordi- nary Distinguished heroism” won the Appellees Deputy are the Cemetery. tional originally officials, Successors to Defense, parties, named as who are no personnel, longer and certain of its properly in office are before us as Superintendent Arlington appellees. and the Na- 43(c) F.R.A.P. contempt.5 An approval for convicted criminal a battle- was Service Cross Before term of four was im- as an officer. additional posed, field commission effectuated, original consecutively to the to run could commission Thompson malaria and sentence.6 disabled during service contracted tuberculosis linking publicity post mortem to his This condition led New Guinea. hero, Thompson, Thompson, the the discharge and award honorable pariah, A stir. created an immediate disability compensation. wartime plan denounced the member Arlington Cemetery in as for his burial 1965, ap- Thompson’s in death After “misplaced bureaucratic idealism.” On widow, body pellant, cremated his had his Army following, day notified the the Arlington requested burial and appellant re- the matter was under Cemetery. Appellant supplied National the to whether doubt as view. With Army gave required, the all information existing Army purported then arrangements approval, and its official plan, to foreclose consummation convey the decedent’s ashes were made clearly Army promptly it to the amended resting place. It then to their final Simultaneously, the situation.8 cover —eight days the interment date before Army the оld the announced that both appeared press story —that a regulations operated new to de- and the projected announcing and re- project,9 appellant’s and on the feat post-war counting Thompson’s difficul- “any day apologized to her for next law. ties with the may you have had because of distress discharge Subsequent to his conflicting advices.” Army, Thompson under was convicted brought Appellant then suit conspiracy to advocate Act3 of Smith declaratory in- District and government Court relief, overthrow of violent jentenced here, junctive there, and States, and was the United imprisonment controversy pertinent upon the centered yeais. After for three specifica- legislative administrative and Supreme affirmed h s convic- Court Thompson’s At the time of tion,4 absconded, tions.10 he and for this he accompanying § 401. 5. U.S.C. the award 2. The citation read: F.Supp. Thompson, 6. extraordinary heroism in action “For (S.D.N.Y.1953), aff’d, 214 F.2d January Tarakena, Guinea, New near (2d Cir.), U.S. cert. denied 348 Volunteering lead a small See also L.Ed. 663. attempt patrol a foot- in an to establish Thompson, 261 F.2d United shore, opposite Staff Ser- hold on the 1958), (2d cert. denied Cir. Thompson geant swam the swollen and L.Ed.2d 835 daylight rapid Konembi River in broad actually Thompson served a only heavy enemy fire. Armed and under years month. five and one total of pistol granades, he as- with a and hand (remarks Cong.Rec. 7. 112 towing rope shore to the other sisted in Bennett). Representative he remained under cover where crossing of his bank directed the and at note 14. 8. See text infra Sergeant Thompson platoon. then Staff enemy platoon against two ma- led the See infra. emplacements chine-gun which dominated Appellees District Court wiped also filed crossing, out. The them one re- to dismiss the action permitted a motion the ad- success of this action lacking quiring consent company and secured vance of the entire point, That States. bridge-head United for the advanсe of the fol- rule, reas- did not District Court lowing units.” appellant’s However, claim here. serted 3. 18 U.S.C. ex- is that promulgat- statutory powers in States, his 4. Sub ceeded nom. Dennis v. exclusionary regula- applying 95 L.Ed. 1137 tions, gave co-appellees (2d those affirming his 183 F.2d 201 Cir. 1950). ac- official credence their many years pre- vision, Army’s newly-formulated reg and for death ulation, viously, Congress adverted,14 authorized the to which we have discharged soldiers stated those convicted of Smith reg- in national cemeteries. “Under such Act violations would be denied privilege, “[s]eparate ulations as the sentences * * prescribe,” consecutively read the aggre served and which gate in force in remains of disqualifyi statute or more are categories “may ng.”15* within described be buried cemeteries.”11 substantially undisput- With facts “[a]ny categories of these embraced One ed, the District Court entertained cross- * * * former of the Armed member summary judgment motions ** duty Forces who served on active appellees’ Focusing upon ruled in favor. and whose last such service terminated statutory language “the remains honorably.”12 following persons may in be buried however, Secretary Army, The cemeteries,”16 of the national the court felt promulgated regulation, vogue a in that Thompson passed away, prohibit- when ‘may’ significant. “The word is cemetery interment in a national provide section does not the re- * ** eligible person otherwise “[a] following persons mains shall * * * is convicted a crime be entitled to be in buried national * ** crimes, or the result of which is A cemeteries. different situation imprisonment years a to sentence for 5 or presented phrase would be if such more.” In an obvious effort avoid adopted by Congress.” had been Thompson’s a contest as to whether Thus, court, said the the statute four-year three- and sentences constitut- * * * “* ** years “a ed sentence for or upon conferred meaning pro- more” within the of that right permit and the election to tivities; appellant and the relief seeks 14. See text at note 8. would confine them аll within the ambit authority. accordingly “(3) ineligible (i) of lawful re Persons brnial: for ject appellees’ argument person eligible on this score. A in otherwise a Dugan Rank, 609, 621-622, cemetery national was but who convicted (1963) ; military Federal, State, 10 L.Ed.2d 15 in a or U. S. Bowdoin, crimes, Malone v. court of a crime or the result 8 L.Ed.2d 168 of which was the loss of United States citizenship nationality, or a sentence regulations 11. “Under such as the Secre- death, imprisonment a sentence to more, tary Army may, approval with the years or in of- or the case Defense, prescribe, involving activity fense subversive listed following persons may the remains of the (a) any sentence, subdivision, in of this be buried in national cemeteries: will not be buried in a national ceme- “(1) Any member or former member tery. of the Armed Forces who served on ac- “(a) involving The offenses subversive duty (other training) tive than activities referred to are those [above] whose last hon- such service terminated punishment pre- offenses for which is orably.” 24 § U.S.C. * following provi- scribed 12. Id. sions of title United States Code: * * * sections [‘The Smith person 13. “A otherwise for burial Act’]. cemetery in a national who is convicted * * * “(b) Separate sentences serv- Federal, State, in or consecutively aggregate ed and which 5 ” military crimes, court of a crime or ** years disqualifying. or more are result which is the loss Fed.Reg. 32 C.F.R. citizenship nationality, a sen- 553.18(b) (3) (1968). death, imprison- tence of or a sentence to years ment for 5 or more will not be 11, supra (emphasis supplied). 16. See note ” cemetery. buried in a national Fed.Reg. Emphasis supplied. area, question he deems or resolves whether of such anyone Thompson’s by regulation, as to in the choice proper, national with the lies enumerated classes

the various “May” give ordi- as well as with his a vested widow. It does statute. discretion,19 narily neither every connotes in each right member legal21 understanding lay It nor is statute. enumerated classes Rather, the conclu- hence, result inexorable. follows, that the “depends dеtermining on the con- be reached adopt sion statute, it whether text of to be buried be entitled who shall presumed fairly was provided he does legislature anyone confer the intention of not extend impose eligible by discretionary power or to not deemed who is duty.” imperative statute.” further held court largest looming upon exam- The factor Thompson’s consecutive conclusion problem of the instant ination to im- “a constituted sentence sentences objective obviously beneficent prisonment for or more” five duty in For honorable statute at bar. regu- construction” of reasonable “a Forces, Congress has bestow- the Armed death, Thompson's existent at lation classes ed defined veterans application of the amend- that retroactive their the values associated families permissible.18 ed cemetery. By eternal rest a other this number of benefits the District do not share We repay those whose but strives to Nation Judge’s the mere con that confidence safeguards very existence. her service “may” con and “shall” isolates trast traditionally read laws have Courts gressional respecting the Secre intent liberally,23 a view character tary’s in this administrative 651, Secretary 649, 662, court, 67 L.Ed. U.S. 18. The well as the as States, ; (1923) 121 upon opinion Army, Luck v. United of the 1157 U.S.App.D.C. relied 151, 155-156, Attorney expressing 348 F.2d General then ; Faris, Army 763, (1965) Secretary Lansdown v. 767-768 “the view that (8th 1933). 939, applicable justified, 941 Cir. 66 F.2d would be under refusing regulations, statute permit sense, purpose, or 20. “Where the be in- remains to decedent’s may requires it, as used a statute cemetery.” As the in a national terred Attorney must or will be as statute shall; construed law, interpreted the General ordinary may otherwise has its authority, has “the discretionary permissive force.” by prescribe regulation, standards of Dictionary Webster’s New International eligibility ceme- for burial in a national 1942). (2d ed. tery.” judgment Moreover, it was the Attorney “it rea- the sonably that could General cited See the eases note infra was, Thompson that be concluded Siegel Thoman, regula- meaning ex rel. v. of [the 1965] within the 359, 378, 353, L. 15 39 13, supra], 156 S.Ct. U.S. [note tion ‘convicted ** also Ballou v. Ed. 450 See court of a crime or Federal crimes, 10, 556, App.D.C. 7, Kemp, F.2d 92 68 of which was sen- the result Pulp ; Paper (1937) years imprisonment & Mills 559 Whalen for 5 or tence to ’ ” * * * 84, 86, 438, Davis, App.D.C. Attorney F. 53 288 v. Gen- more. aggre- 440 But see Hecht Co. v. eral also advised that the sentence 326-327, Bowles, gation Secretary’s 64 provision 321 S.Ct. U.S. amend- in the (holding (1944) regulation, 15, supra, that L.Ed. 754 88 ed could be “may” Thompson’s and “shall” in the same the use as a invoked ban implies Arlington Cemetery, of purposefully). statute that each sentence “no and found separate was used of” the occasion for discussion provision excluding Act therein Smith Co., & Sur. 370 23. Porter v. Aetna Cas. violators. 159, 162, ‍‌​‌​‌​‌​‌​​‌‌‌‌​‌​​​‌​‌‌​‌​‌‌​​​‌​​‌​​‌​‌‌‌‌‌‌​‌‍8 L.Ed.2d benefits) ; (1962) (disability United & Bank of Mon Farmers’ Merchants’ 610-611, Zazove, roe, Bank, States v. 334 U.S. N. C. v. Federal Reserve broadly probability. unless the boon spreading Then, confronting plain legislature desire manifested congressional indications pur narrowly. posе supporting unable are appellant’s it out dole thesis, very why conspicuous same reason absence to detect of those factors fully development obtain regulations should considerations normally cause here. us to defer to the Secretary’s construction of a statute he find So administers, we conclude likely summons statute context conferred right decedent a imposed upon probability that in a uncondi a nondis Secretary’s tioned exercise of obligation respecting cretionary judgment. Because the discharged lacked veterans. Thompson’s to exclude explore proceed the statute’s remains We now history from interment in a legislative national cemetery,24 and administrative might dispel weight reaching and without evidence of such other issues tender- (1948) L.Ed. 1601 your conclusion “that the ashes of * * * Dry- Fishgold (insurance) ; v. Sullivan late husband not be buried Repair Corp., cemetery” stating in a & dock (1946) L.Ed. “[t]he basis for this determination is set Cotton, tenure) ; (emplоyment opinion v. Walton forth in the the At- 355, 358, (19 How.) torney 15 L.Ed. General.” See note IS. Philippine (pension) ; (1856) Attorney Nat’l viewed, General as the sole U.S.App.D.C. States, action, pro- v. Bank United bases (1962) (in 126, 128, 300 F.2d visions of the 1965 and 1966 Philippine surance) ; withdrawing the burial U.S.App.D.C. Bank, 251- resulting Nat’l 252, those convicted of crimes in a (in (1961) more, F.2d 744-745 sentence of five and to Flanagan Young, surance) ; provisions 97 U.S. these we are confined on this appeal. App.D.C. F.2d 228 preference) ; (employment Boone note, however, there arc two 766, Ry., 223 F.2d D.& v. Fort Worth proscriptions reg other contained in the (employment 1955) (5th ten Cir. 770 ulations which the thus dis Publishing ure) ; Mann v. Crowell-Collier predicates First, carded as for his action. 1956) (6th 699, Co., Cir. 701 239 F.2d the 1966 refuse burial to Ayson, tenure) ; (employment 14 In re Act, those convicted under the Smith as (natural 488, (N.D.Ill.1936) F.Supp. 489 Thompson. 15, supra. See note Shaw, ization). v. Lawrence See also Second, regula both the 1965 and 1966 443, 245, 250, L.Ed. 81 57 300 U.S. deny privilege tions to those con States, (1937) ; 131 v. United Carter 623 victed of crimes “the result of which is (July U.S.App.D.C. —, 1238 F.2d 407 citizenship the loss of United States 1968). 26, nationality.” succеssor, Like its 66 Stat. decision, (1952), 1481(a) and our our review 268 We confine 8 U.S.C. § Sec must, 401(h) Nationality defined the issues as tion as we to Act of ruling 1940, (1940), provides under attack. administrative Stat. for upon nationality grounds upon which an administra- loss of “The conviction for judged “attempting by are those order must be force tive to overthrow States,” gravamen its action the record discloses Chenery Corp., Thompson’s Smith was based.” SEC Act offense was con spiracy L.Ed. to advocate the violent overthrow Burlington government. Truck See also the United States In States, past, Lines, apparently 371 U.S. Inc. v. United took the position 168-169, Congress L.Ed.2d 207 83 S.Ct. itself had made Ass’ns, Trucking (1962) ; citizenship Inc. American veterans who lost eligible their in States, 364 U.S. for burial. See text v. United 1570, infra But, Attorney Texas Gas notes 99-104. 4 L.Ed.2d 1527 since the Co., opinion Corp. v. Shell Oil General’s never mentioned Transmission nationality provision, express L.Ed.2d loss of ly of record to reference disclaimed reliance on the Smith Act they beyond Secretary’s grounds provision, purview containеd are confirming appellant litigation. of this “[A]n letter to administrative judg- By meaning. ed, Court’s concomitant shift the District we reverse interpretation, in- case for further their the 1872 statute remand the ment and all sured the burial of active servicemen proceedings. destitute, act, dying while I though broadening eligibility, made the Cemetery Acts and 1878 The 1872 wholly discretionary. One has given discerning birth difficulty, however, cemeteries were National little Congress granted power to support when in 1862 that eradicate circumstances purchase position. “to be land President cemetery national used as language It clear from the seems die in service who shall soldiers Congress, statute that in extend apparently country,” provision limit- cemetery benefit those veter dying scope those burial of ed in elsewhere, ans hardly could afford burial who campaigns. duty A in Civil War active dissipate intended to the benefit Congress later, however, twice decade enlarged Certainly who could those not. eligibles, first the class expect that had willed 1872: incongruous result, it would have “* * * au soldiers and sailors spoken clearly just much more it 28— ** * discharged honorably who previously recently had done —and —in condition, may shall die in destitute legislation de formulation of other cem- be burial in allowed signed deserving ex-service care * * *”26 eteries men. In when establish and then in 1873: ed a Home for and dis Soldiers’ retired * * “* veterans,29 only able defined discharged eligibility30 explicitly also directed during the who served [servicemen] * * * eli the automatic exclusion of otherwise late buried war gible free convicted been graves receive their shall cost felonies, and conferred administrative and attention as the same care on the basis discretion exclude others graves already of those buried.” us, express con To standards.31 regulatory two trast schemes between argue lan- Appellees that the shift in glaring. “may” represents guage from “shall” Hammel, Helvering upheld grounds See unless the cannot be order 510-511, agenсy 61 303 upon S.Ct. 85 L.Ed. acted exercis which the Ryan, (1941) ; powers v. U.S. its United States 284 were those 76, (1931). 76 L.Ed. S.Ct. v. be sustained.” SEC Chen action can 228, Cf. Jantzen, Inc., 95, ery Corp., supra, v. FTC at 63 S.Ct. 318 U.S. (1967). 236, 998, pass upon Thus, 18 L.Ed.2d we do such not at 462. questions non- as whether made 29. § 49. U.S.C. ineligible burial, or under citizens away Thompson’s citizen took to take 49, 30. 24 U.S.C. §§ compare ship, or 68 Stat. did, whether, of if a forfeiture 31. “The benefits of Soldiers’ Home constitutionally citizenship ac be could any be shall not extended soldier in Afroyim Rusk, complished. v. See regular service, or of volunteer convicted 1660, 18 L.Ed.2d 757 felony disgraceful or or infamous other Mendoza-Martinez, Kennedy crimes of a nature after his admis- civil 554, 9 L.Ed.2d 644 States; of sion into service the United (1963) ; Trop Dulles, 356 U.S. any nor been shall one has a desert- (1958). 590, 2 L.Ed.2d 630 er, mutineer, or habitual drunkard received, of (1862). without such evidence sub- 25. 12 Stat. 596 good conduct, sequent service, refor- sup- (emphasis 26. 17 Stat. 202 character, satisfactory mation of as is plied) . the commissioners.” U.S.C. supplied). (1873) (emphasis 27. 17 Stat. 605 eligible cast further denied vet- facts some otherwise historical Other reading any of of the 1873 ceme erans the because conviction on doubt grant course, pursued tery wide discre The latter crime. statute as initially basis, tionary powers on an ad hoc became the subject Army. the cem The administration of an administrative Secretary’s did become 1947.38 eteries years Not later.32 function until three Secretary requested In con- years there after that was until 70 gressional approval practices of certain authority delegation ad to establish initiated him over the regulations.33 no There is ministrative oversight of the national cemeteries. of administrative exclusion evidence emphasis placed upon the Particular half-century anyone for more than long established custom of enactment,34 following and Con extending privileges to selected gress for ad has never set standards eligible by classes not made státute.39 exclusion.35 We are unable ministrative confirmatory In a recommendation for priv to find that the indefeasible burial area, Secretary action in that of War gave ilege Congress ad in 1872 became implored Congress Patterson to enact ministratively in 1873.36 defeasible “enabling legislation Act The Cemeteries 19b8 of all cemeteries members of the authority, armed Without forces who die in the service long privileges having honorably discharged after had extended been therefrom, together the immediate families of members of with members of also, eligible specified since their It had immediate veterans.37 families as (1920). distinguished maintenance of na 32. Not until 1876 was This addition tional retary turned over Sec between veterans who had served Army. during 19 Stat. United States wartime or had died peacetime service, destitute after on the in- See note 62 Stat. hand, one citizens who fra, accompanying text. previously served the forces of a 34. The the Memorial Division chief of ally, wartime other. Those within Corps Quartermaster was unable the first class simply upon production for burial became excluding whether a determine of honorable dis- prior his search felons existed charge papers, but consent Sec- 1906 and 1926 of the records between retary prerequisite of War was made any pol- produced no written evidence falling burial of those within second icy effect. earliest denial to that legislative history class. Without availa- felony conviction burial on the basis of a enlighten ble to us—and there is none— Thus, he found occurred in 1927. legislation helps we fail to see how be- whether or not there were exclusions appellees’ position. Rather, if it has 21-year between 1906 fore hiatus significance all, it seems to add sub- modern-day and 1927 indicates that appellant’s argument. stance to practice excluding an inde- felons had 37. “The for the burial of wives pendent cem- start granted and widows was in 1890 and for eteries supra, established in note were minor children and unmarried adult rely heavily appellees on the daughters 1908, respectively. in 1904 аnd supra. act of authority granted by This was the then Compare quoted materials the Secretary War, upon of advice of the 27, supra, or cited at notes 26 and Judge Army, Advocate General of the in accompanying infra, and note family relationship.” H.R.Rep. view of text. Cong., No. 80th 2d Sess. (letter Secretary Patterson). from of War similarly legislation 36. We conclude as to 1920, upon appellees in enacted place which General, 38. Office of The Quartermaster updated Congress reliance. then the Cemetery Regulations National 22.d ¶ that who served with the law so citizens (1947). See note infra. armed forces countries allied with the of H.R.Rep.No. 1678, for burial Cong., United States would be 80th 2d Sess. military (1948). in cemeteries. 41 Stat. 2-3 widow, husband, “(c) wife, therein, is desir- provided [T]he such burial widower, child, and, in the minor ed.”40 Secretary the of of the discretion matter, the debate41 With little any Army, unmarried adult child of Congress passed amendments the 1948 (a) persons of enumerated in requested:42 substantially form the same (b), herein of in national cemeteries “[B]urial following classes of Appellees the remains have us believe that would regu- subjected, authorized under such the fu- these modifications Army regulations eligibility ture, as the lations for burial to may Secretary. prescribe:43 by issued contention This fatally complete suffers lack Any mem- “(a) former member or any Congress evidence that knew of of the armed forces

ber of Army’s exclusionary past practices.45 In last service United States whose explanation of the contrast to the full honorably, by death or terminated policy regarding burial of servicemen’s otherwise; families, Congress never told [A]ny “(b) United citizen of the 20-year during period it had turn- who, during war States statutory eligibles. ed down some been, has which grant cannot to the Sec- hold engaged, served hereafter be retary ap- to make any govern- armed forces of proved Congress which allied with ment not aware.46 war, during last whose appellees’ argument accept Nor can honоrably, by terminated service grant rule-making authority otherwise; death or general cemetery regulations ,80th were not Cong., S.Rep.No. Sess. 2d 903 published Register Cong.Serv.1948, p. in the Federal until U.S.Code passage after the revisions. version, houses 41. The both which Senate Fed.Reg. (1951). See 16 11914-18 adopted after amendment pub- excluding felons was not Kean, Representative passed without following year. lished until See 17 objection. 1689-90, Cong.Rec. Fed.Reg. (1952). 4482-83 Sess.1948). Cong., (80th 2d Moreover, reports Houses both bill, aspect explaining 42. In one mirror the lack of understand- Butler, sponsor, stated: ‍‌​‌​‌​‌​‌​​‌‌‌‌​‌​​​‌​‌‌​‌​‌‌​​​‌​​‌​​‌​‌‌‌‌‌‌​‌‍exclusion of felons sometimes Senator played past, in the has been a role interment “In the custom practice. permit of the wife of a serviceman Patterson’s letter— seeking anticipation legislation enabling all in a burial “of body placed members armed that alongside his forces who die sometime having honorably is a custom the discharged or after hers. It service been Department followed therefrоm” and their immedi- that has been time, relatives, (em- long ate phasis for a but has been done with- text at note 40 authority. Depart- legal added) practically out definite —constituted report. S.Rep.No. 903, ment entire Senate Cong., 80th wishes to continue custom prevailed past, (1948). to have has 2d Sess. The House re- Cong. port long-estab- authority doing “It so.” even clearer: is a definite grant lished custom to Rec. 1690 all mem- national cemeteries to grant of 43. This statute contains the first forces bers the armed who die in the having service or after been concerning promulgate regulations * * discharged bill therefrom. This in national cemeteries. statutory authority gives practices fol- years.” many H.R.Rep.No. 44. 62 Stat. 234 lowed for Cong., (1948) (em- 80th 2d Sess. 1 45. It has not been shown either the phasis supplied). Army’s exclusionary practice cem- or the Secretary etery Calamaro, regulations 46. United v. issued its 354 U.S. 351, 1138, Congress 359, were available at the 1 L.Ed.2d 1394 made to 77 changes pending. time The the 1948 were

163 Secretary explication, deputized the to restrict stat- that we do not read into grant If, indeed, eligibility utory the statute at will. Con- discretion over intended, speci- gress detailed all.49 had so the classes of fication in statute Cemetery The 1959 Act

persons to burial served consid- entitled legislation purpose. latest revision of the erably It normal less than its scrutiny 1959, say under occurred in historically and the to that more accurate enlarged rights interment extending was then to service- in more,50 consistently “major once relatives, Congress put with the to end men’s ** purpose eligibil- to improvisation broaden cate in administrative gories eligible of those ity for burial in been inform- to the extent that it had ** * ”51 --national cemeteries There ed it. appears dispute to have been little over Congress think that it clear what additions; hearings there were no recognize previously in did 1948 was to 52 53 and both the Senate and the House Army ineligible groups reports general agreement54 reflected in admitting cemeteries, consent objective. that future, and their therein in the nоthing Secretary power There grant to indicate to make 1959, any 1948, regulations.47 more housekeeping than This con- made aware that the the fact that was bar- clusion is reinforced delegated Congress expressly red convicted from the cemeteries. felons Sec- although discretionary it retary And over only Secretary one—of the reference to within one—but burials Army, preceding statutorily eligible specifications classes.48 In the face (a) (b) (1957) ; Helvering sons enumerated in herein v. New York Trust (1948). Co., 806, *.” 62 Stat. 234 ; (1934) & L.Ed. 1361 Pacific Power Bowles, supra v. 49. See Hecht Co. note Light FPC, U.S.App.D.C. Co. ; 326-327, 321 U.S. at 64 S.Ct. 587 ; Fishgold F.2d Monroe, & N. Farmers’Merchants’ Bank C. Corp., Drydock Repair v. Sullivan & Bank, v. Federal Reserve 663, Cir.), (2d aff’d F.2d (1946). 1105, 90 L.Ed. 1230 Thoman, Siegel ex rel. highly necessary was, course, 47. It 156 U.S. at 15 S.Ct. 378. cemeteries. someone oversee the national Nothing (1959), 50. 73 Stat. 547 U.S.C. than for could be more natural quoted part supra delegate responsibility, note 11. to confer H.R.Rep.No. 1117, Cong., 51. 1st Sess. 86th reg- Army, promulgate Cong. 1 1959, U.S.Code & Admin.News purpose. adminis- ulations for that This p. similarly, See, providing myriad of house- trative task involves keeping S.Rep.No. 382, Cong., 86th 1st Sess. regulations details. (1959). only printed pages, of which cover four entirely by explication of deal—almost S.Rep.No. 382, Cong., 86th 1st Sess. statutory provisions eligibility —with (1959). hand, for- an- interment. On other speci- pages solely H.R.Rep.No. 1117, Cong., devoted 1st other six are 86th Sess. privately procured (1959). monu- fications Quartermaster of the Gen- ments. Office 54. There was some debate on the floor of Cemetery Regulations eral, National presented. the House when the bill was Representative Gross was concerned that expand “[Bjurial greatly this amendment would too following per- classes of remains of who be in- the number could sons is authorized under terred in national sponsor, Representative Aspinall, predicted The bill’s cemeteries. pre- husband, relatively wife, (c) the scribe : widow, there individuals were few child, widower, and, group minor included this new Army, Cong. those burial. discretion of the See 105 per- adult Rec. 18416 unmarried child 164 utory changes еligibility, in was cast ‍‌​‌​‌​‌​‌​​‌‌‌‌​‌​​​‌​‌‌​‌​‌‌​​​‌​​‌​​‌​‌‌‌‌‌‌​‌‍its current in 1959 amounted an af-

of history legislative reject- Arirfy’s policy form,55 barren firmation of the of change. for the felons. reason of Because, however, felony ex Hearings 1968 and 1965 incorporated 1947 in the clusion congressional In the course of published regulations Fed was hearings in of 1962 and version 1952,57 appellees urge Register eral Army’s felony regulation exclusion reinforced 1959 amendments that the appeared in one of House documents. power perpetuate ex Secretary’s that Appellees that this contend they rely on the canon For clusion. this brought specifically attention was that reenact construction of Congress question of was that no change after a course ment without validity, as to its the result raised interpretation is tanta administrative Congress ratified legislative ratification of mount grant interpretation of the statute as a indicated,59 interpretation.58 As we have though otherwise to bar felons be, of that canоn must rationale “[t]he eligible. appellees point at Thus charge those in amend either that inaction, rely upon rather than action existing rulings, familiar with ment are did,63 they previously source as the as them,”60 they incorporate mean to or that legislative approval of administra felony appears no evidence they assault, technique tive under to the attention of rule came exclusion Legislative avail. silence do so without Additionally, Congress. re unless, cannot mean ratification “broaden,” not were meant visions minimum, existence of adminis eligibility requirements narrow, “the brought practice home to trative cemeteries,”61 in national argument65 legislature.64 Appellees’ understanding existing congressional eli 1962 and fails because review gibility conviction unaffected hearings plainly that Con shows Under these circumstances crime.62 gress adequately informed was not concluding that the stat- see no basis 45-46, supra the Affairs,66 ies,”67 focused, pared. fact No. anyone felony ilege.69 fine their small number House Committee on committee wished ber Subcommittee solutions ation” on up in categories For hearings, of available more cemeteries 15—“Data the testimony exclusion made overall That Its and, exceeded testimony chairman, background report asked eligible number was on report, Committee Print problem as grave on problem, might cases, hearings, rule, affecting National Parks excluding to examine by Interior and Insular did the to the entitled National Cemeter- by questioning. or at the witnesses millions sites. was statute. persons created curtailing expected, general held to the opening of hearings,68 the num- was as brought possible by by the only of open- “con- priv- situ- Sub- Cor- pre- the ing tery burial control to the of requirements Representative sharp honorably discharged veteran, eligibility upon request, be sires to be reau Thus, discharge. space bring “Mr. “Mr. ^[*] “Mr. military Legislative attention of determined over that.” contrast especially the 1962 the Hughes: Yes, ^[*] Taylor: Hughes Arlington relates Budget]: buried Arlington for burial service and Taylor asked about ^[*] hearings, Reference of acute 72 Later, by buried [Assistant Congress, Then at National solely factual law. We have Arlington could, problem of National sir.” claim of there: there? to the fact as a vehicle -X- in discuss- Cemetery, honorable situations stands Director veteran, that de- I think Ceme- ^[*] lack Bu- no respondingly, 15 wherein courts have found ratification Committee Print No. by acquiescence.74 barely felony Given the exclusion. relative touched on unhelpfulness reg- felony Only regulation, com- exclusion the then current hearing’s inquiry, appeared prising paragraph, ulation its brief one short large background report, mention pages in a inconsist- the midst testimony,75 any- subject gap ent and the hand —the failure data on the at body supply to note the interment inconsistencies or even and demand of between speak regulation, we cannot facilities.71 say brought its existence was suf- hand, the other Subcommittee On ficiently to the atten- Subcommittee’s prominently presented more was much tion.76 indicating testimony reject Similarly, appellees’ well-nigh we must automatic. As stated, hearings felony representative claim at exclusion brought response question the chairman attention hearings “[eligibility Subcommittee, held in the House Cemetery Policy Hearings 71. Committee Print at 5. 66. National on National Parks Before the Subcomm. Hearings 72. 1962 at 29. Comm, and In- on Interior House Sess., Affairs, Cong., ser. sular 2d 87th Hearings 73. 1962 at 69. cited 1962 Hear- [hereinafter supra 74. See the cases cited note 65. ings]. Comm, Compare refusing 75. cases to find ratifica Insular on Interior 67. House through leg Sess., tion Affairs, Cong., reenactment where the Data on 2d 87th islature (Comm. acted after inconsistent adminis Print No. National Cemeteries 15, interpretation. E.g., Higgins trative 1962) cited as Commit [hereinafter Revenue, Commissioner of Internal Print]. tee 85 L.Ed. 783 Hearings 1-4. Id. 76. See the cases cited depart ly, by appropriation “ratification is partment As of Interior. cooperated accepted whеre favored and not be will ment and knowledge cemeteries,78 specific disputed prior a operation of some clearly.”85 hearings day’s to cannot be demonstrated devoted action part was one Moreover, ratification, an to constitute briefing on pur- appropriation plainly Quartermaster show a must by of the officer pose precise question, this to response bestow Corps.79 to In Congress sup- which,is That claimed.”86 one section—not to referred officer ports financially operation, of the felony section—of Committee exclusion supply imply that national cemeteries does not He offered Print No. 15.80 Committee, no is supports every aspect there copy to the it of their ad- adj was done before this indication that by Army.87 ministration hearing proceeded to ournment.81 subject, Print and Committee II another again mentioned.82 never was No. 15 “right by clearly created While a place a short while adjournment took by regulat away statute cannot taken be the document that even if later,83,so generally, meaning ion,”88 statutory is the Committee when the distributed unlikely that it is in the circumstances interpretation placed in doubt on “[t]he opportu had an would have member by charged those its adminis [it] paragraph identify on nity the brief tration,” or not ratified or ac whether felony exclusion, examine let alone quiesced by legislature, “must be significance. possible ”89 given weight. how Just upon weight will, however, depend much Finally, appellees would have presence of factors of a number congressional of the ratifications us find “give persuade, power if which practice in Secretary’s felon exclusion 90 lacking Many power appropriation to control.” passage since 1947 many as are absent here—so factors the maintenance bills by appro should leave us unconvinced But ratification cemeteries. Secretary’s interpretation. ac- bow to priation, ratification no than less 4, parte Endo, 283, Policies, Programs, n. Hearings 86. Ex on 77. (1944). 208, Department See In- 89 L.Ed. 243 Activities Comm, 474, McElroy, also 360 U.S. In- Greene House terior Before 504, 1400, Affairs, Cong., 505, L.Ed.2d 1377 S.Ct. 89th and Insular terior States, pt. (1965). Sess., 1, 347 F. Maun v. United ser. 1st 1965). 970, (9th 2d Cir. 78. Id. at 367. Airis, su- 87. D.C. Fed. of Ass’ns v. Civic pra 482; 79. Id. 365-415. 391 F.2d at cases cit- at note 86, supra. ed note 80. Id. at 387. O’Malley, 88. Northern Natural Gas Co. v. reproduced in (8th 1960). 81. Id. The document F.2d Cir. See hearings. printed Id. versions of Co., also States v. Morton Salt at 388-405. 338 U.S. 94 L. (1950) ; Ed. 401 Miller v. Commissioner Id. 403. Revenue, of Internal 237 F.2d (5th 1956). Cir. Id. at 415. Rusk, 89. Zemel Airis, su- Ass’ns v. Fed. of Civic D.C. 14 L.Ed.2d 179 pra, F.2d at 481-482 Co., 90. Skidmore v. Swift & cases there cited. 89 L.Ed. Id. at 482. privileges relatives95—than construction Administrative would construction. “Administrative determi potent it otherwise than is less upon matters nations must have basis in not rest law” and it does be where depends heavily peculiarly the administrator’s their force on the valid within hardly ity logical reasoning bridge expertise.91 It. could field of regulation.96 Here, more between suggested is statute and although pow to decide capable asserted than has cemeteries. er to exclude in national otherwise vеterans buried should be ruling parte regu promulgated Moreover, ex since 192797 and has weight 1947,98 “not entitled lations that effect since before us interpretations basis which it relied accorded agencies entrusted with remained at best obscure until this liti administrative - partes making gation responsibility inter of arose. The administrative his tory felony provides administrative And an of exclusion us decisions.”92 its by interpretation a carries statute with but four two clues: statements con greatest it involves a thrust “when Assistant War written 1928, of a statute temporaneous construction and a letter transited to responsi charged Legion 1944, study by men the American and a motion; machinery by setting general Quarter bility counsel of the efficiently and making parts Corps work master in 1950. And of smoothly we find they yet only document, untried are one the letter while felony Army’s Legion, exclusion a The American tempt ‍‌​‌​‌​‌​‌​​‌‌‌‌​‌​​​‌​‌‌​‌​‌‌​​​‌​​‌​​‌​‌‌‌‌‌‌​‌‍evinces definite at new.”93 years statutory after policy interpretation. initiated 65 at established, were Replying inquiry to an Amer- passage after Legion, Army, August 17, ican gave them appellees first claim act which 1944, wrote: eligibility for burial.94 over discretion “[Regarding the burial in a national important, rea Equally cemetery honorably discharged of an policy felony soning subsequently exclusion World War I veteran who behind inven felony like administrative a more committed and died in a State sounds Penitentiary, please extension be advised that tion—witness Nierotko, Security equally significant determining Bd. 91. wheth- Social 637, 358, power 369, actually L.Ed. er 66 S.Ct. conferred.” U.S. Co., ; Bros., 349, 352, & v. Swift FTC v. Bunte Skidmore 139, 580, supra 90, 582, (1941). 65 S.Ct. at note 323 U.S. S.Ct. 85 L.Ed. 881 Trucking Co., 161 ; powers long “The ICC Service fact have been 1951). (3d may 400, Cir. unexercised well F.2d call for close scruti- ny they exist; as to whether but if Repair Drydock Fishgold & 92. v. Sullivan granted, they by being are not lost al- 1105, 275, 290, Corp., 66 S.Ct. 328 U.S. lowed to lie dormant (1946). v. Swift See also Skidmore Co., supra 88, States v. Morton Salt note 139, Co., supra 90, at 323 U.S. note & at 70 S.Ct. at 366. 65 S.Ct. 161. 34, supra. 94. See note Nitrogen Norwegian v. United Co. States, supra 53 S.Ct. See text at 288 U.S. note 39. Power Reactor See also Security Nierotko, 96. Social Board v. su Elec., Union Dev. Co. v. International pra note 327 U.S. at Workers, etc., note 367 U.S. at 643. See also Skidmore v. Swift & 408, 81 Co., supra 323 U.S. at by “Authority actually granted Con- 161 ; Ridge Jewell Coal Co. v. Lo through evaporate gress cannot of course 6167, UMW, cal No. just exercise. But lack of administrative 89 L.Ed. 1534 light practice shed as established conveyed by power gen- extent of on the supra. 97. Note language, so the want of eral pre- supra. who those assertion Note it, sumably be alert to exercise Department an offense resulted policy “committed felony a deny and confine- veterans for the his conviction to such (and penitentiary following forfeiture ment in a reasons: citizenship), that fact would serve his prerequisites for burial The “1. right in nation- forfeit his to burial a cemetery are a cemetery.” apparently too Thus he al citizen of the a must be deceased penitentiary as commitment to saw and must have served necessarily depriving veteran of citi- honorably; сountry his rights zenship robbing him of burial felony person by legal forfeiture, commits a A not exercise “2. having served is not considered as discretion.101 and, country his his study legal penitentiary, loses commitment to a interpret apparently continued thereby depriving citizenship his noncitizens, reject statute citizen, privileges all him of including recognized for a that conviction ceme- in a national deprive generally one felony does furnishing tery of Govern- Nationality citizenship. Act grave.” to mark his ment headstone did, how- 1940102 and its successor103 misreading citizenship response, badly the ever, purport to revoke the This statute, of errors in war- several critical of of desertion makes those convicted treason, time, attempt “honorable dis- to overthrow made an or law. Forces, government. Correspondingly, charge” not from the Armed from the country deny study “hon- subsequent a decision service of one’s this emanated citizenship orably,” prerequisite The for burial. in eases loss of a burial where obviously any similar, the these of are resulted from conviction of words is not meanings very There crimes. need whether are different. decide valid, regulation statutory requirement or a would veterans such be no Thompson, be- Armed Forces of United States would serve exclude of the seeking resulting be in cause for a crime in national conviction burial question citizenship for citizens;99 not the of was basis aside from loss clear read action.104 But a condition could be such whether evolving not, reasoning statute, as a that the in the felons do into citizenship.100 study way supports rule exclud- general rule, in no a their lose felons, keyed ing all rule or a in reflected errors also The same are length of the felon’s sentence. by the As- the earlier statement Secretary or not a of the 1950 He wrote that result Whether War. sistant cemetery regula- study, veteran an otherwise when where quoted Arling- 281(a) in in individual be refused burial § U.S.C. See Cemetery any part or other na- ton National felony cеmetery by reason his tional Kennedy Afroyim Rusk ; v. 100. See conviction, otherwise en- albeit he was Dulles, Mendoza-Martinez; Trop su This recommenda- to such burial. titled pra note 24. Assistant in tion was concurred Only fragment Secretary grounds statement of the 1927 a on the War deposition appears a peculiar in record. In the crime atrocious nature Quarter- official submitted For he will be executed. for which Corps, reason, we are told: master were of this veteran the remains request Arlington was made a 21 June “On Nation- from burial in excluded Arlington bury permission Cemetery.” Na- in for al Cemetery honor- remains of an tional 102. 54 Stat. 1169. awaiting ably discharged execu- veteran rape. having after been convicted tion 1481(a) 8 U.S.C. recommended General Quartermaster 15, supra. Secretary 104. See note of War Assistant Reg- honorably” Federal service terminated be appeared in the first tions excluding cemetery.107 The 1951,105 buried in a national provision in ister question in- have in we addressed whether Then оmitted. felons discharged eligibility for soldier a after ac- as to quiry was made can, awaiting duty exe- tive later conviction individual of an felony, penitentiary. Accord- denied “[u]nder in a state cution on behalf submitted to an affidavit Army Army may prescribe.”108 The appellees, “the language, liberally, preparation read fore- directed negative legisla- pre- answer, adoption tells and the which for immediate statute, being history of have interred tive individual vent such *” seen, strongly cemetery. supports answer109 a national essence, regulation,106 em- changed barred We conclude that not did Army any crime are persons convicted to determine who worthy loss of or are not interment of which was “the result pen- nationality maximum national cemeteries. or alty or fifteen death actively Thompson Robert G. served in- imprisonment.” The record more nearly years, two authorization, nothing if as to the dicates Though discharge. earned his honorable pro- any, relied felоn, he later he remained an became regulation. mulgating this honorably discharged veteran of sum, we discover weaknesses In campaigns. Pacific We hold proffered administrative construc prevent properly could militate event cemetery. tion that would of his remains in crucially, acceptance. against More deciding, In so we do not intimate a course the cited evidence find from we Congress sought thereby to condone the administrators for which of action criminality. only an absence discern justifications, gave fallacious sometimes congressional purpose superimpose to justification at all. at other times no and upon the of the criminal law forfeiture lead in combination circumstances These as an added deterrent that, to the extent to conclusion us the activity. to antisocial the limits Within Army’s exclusionary practice the Constitution, Congress it is for congressional the purports to construe weigh gains consequent to the аnd losses specifications cem for deprivation privileges of civil as weight eteries, no it is entitled to regulating a method for But conduct. litigation. this Congress course, where has willed that spoken in has terms.110 unmistakable Ill here, very think, significantly, And congressional command, By it did not do so. * * * “[a]ny former member active judgment on the Armed Forces served the We reverse of the Dis- * * * duty Court, such whose last trict and and remand the for case fur- 45, supra. 105. Note Ct. 49 L.Ed. 449 Morrill Jones, 45, supra. 106. Note L.Ed. 267 supra 281, quoted part Compare 2282(a) (for- § U.S.C. U.S.C. § annuity pay) ; feiture of note 11. retired quoted (for- § U.S.C. note 31 Home) ; Id. feiture of benefits of Soldiers’ (forfeiture § U.S.C. of veteran’s benefits) ; (u) (for- United Verde 109. And see United States § U.S.C. 215-216, Copper Co., security S. benefits). feiture of social Judge BURGER, (concurring proceedings not inconsistent Circuit ther part dissenting part): opinion. this remanded. Reversed and reasoning join I in the cannot power “the lacked court Judge (concur- FAHY, Circuit Senior Thompson’s from in- remains exclude ring) . * * * terment in a national thoughtful * fully I conсur Congress conferred [because] Judge opinion Robinson learned right upon the decedent a to burial places * * * The Constitution the court. by unconditioned properties the United of these control judgment.” exercise Congress: contrary, specifically Congress, on Congress to dis- shall have right provided conditioned Rules all needful pose to make of and regulations by “such respecting Terri- Regulations * * Army may prescribe belonging Property tory or other ” * * * suggest that I U.S.C. § States; the United substituting majority simply is U.S.Const, IV, 3. art. public policy personal views of Legislative Thus, branch decisions the executive authority government only over branches of Executive has Government —and delegated unnecessarily so of narrow because the national grounds Congress. It Neither same end. to the Executive delegate legisla- language the statute nor its natural majority’s history authority formulate tive warrants the Secretaries ad- conclusion. maintenance for the doing In cemeteries. ministration of I rеach result achieved time de- the same ground majority narrow could remains whose scribed overly made an and un- of Robert The remains there. be buried necessarily interpretation of his broad persons de- Thompson come within the G. regulation governing those sen- own accordingly The Secretaries scribed. year prison The ra- tenced terms. them. to exclude lack points tionale behind such cut-off regulatory grant to the Secretaries traditionally single those offenses out maintenance essential they which are so result serious administration long-term sen- To cumulate sentences. re- to demonstrate would seem brings tences as the here does is not sponsibility Secretaries scope regulation those within the exclude to create classes which one who, although they have individuals been remains of those whose some remains terms, sentenced for substantial have no legisla- designated in the same have been single years. or more I sentence of 5 eligible for burial. tion as very grave have that an exclusion doubts legislative problem ratifica- justified by adding up can be the total Judge fully Robinson. tion is covered bring under the sentences a case support position Secretaries To year provision. five extend the case this branch of I would therefore remand the case to prior theory to cover of ratification directions to recon- unknown, legislative approval and un- light sider his action in of our view of his ratified, ‍‌​‌​‌​‌​‌​​‌‌‌‌​‌​​​‌​‌‌​‌​‌‌​​​‌​​‌​​‌​‌‌‌‌‌‌​‌‍time to time classifications separate application of the par- within made the Secretaries sentences, each which was less has ticular classifications legislation. years. by duly itself than 5 enacted made notes 55-62. 63. Text at Secre 55. “Under approval may, tary with the v. 64. D. C. Federation of Civic Ass’ns Defense, prescribe Airis, U.S.App.D.C. 125, 391 F.2d 478 (1959), 24 U.S.C. 73 Stat. 547 (Feb. 1968). Compare the cases cited 281, quoted part supra note 11. 46, supra. note 38, supra. 56. Note by appellees In the cases cited 46, supra. 57. Nоte by acquies involving ratification others placed up cence, principal reliance Noel, g., 58. E. v. Estate of Commissioner disputed ad on the circumstances 678, 682, 14 L. 85 S.Ct. specifically practices were ministrative Ed.2d brought the attention 46, supra. 59. Note hearings, Reactor Dev. v. In Power Co. etc., Workers, Elec., Drydock Repair Fishgold ternational Union v. & Sullivan 408-409, U.S. supra Corp., 154 F.2d at 790. Cory (1961) Corp. ; v. 6 L.Ed.2d 924 note 51. Text Sauber, U.S. Norwegian practically language Nitro 4 L.Ed.2d 1508 In identical States, reports gen Products Co. and House state the un Senate 294, 313-314, derstanding existing L.Ed. law authorizes systematically “any re or were the burial national cemeteries 796 ported period of time. over member or former armed member McNamara, U.S.App.D.C. whose last services ter Rose services 924, 928-929, cert. denied 375 F.2d minated death or otherwise.” S.Rep.No. 382, Cong., 19 L.Ed.2d 1st Sess. 1 86th (1959) H.R.Rep.No. Cong., ; 86th supplied). (emphasis 1st Sess.

Notes

notes Id. at 2. requires quiescence, Aff evidence and Insular affirmative on Interior Committee Congress actually hearings, lasting of the ad- seven knew These airs.77 policy.84 De recent- ministrative As we said days, activities concerned the

Case Details

Case Name: Sylvia H. Thompson v. Clark M. Clifford, as Secretary of Defense

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Dec 13, 1968

Citation: 408 F.2d 154

Docket Number: 20737

Court Abbreviation: D.C. Cir.