author: LARAMORE, Senior Judge.

text:
    Sam CORBINO and Jesse Pursell v. The UNITED STATES.
    No. 394-72.
    United States Court of Claims.
    Dec. 19, 1973.
    J. William Gallup, Omaha, Neb., atty. of record, for plaintiff.

      Steven J. Bercik, Elizabeth, N. J., with whom was Acting Asst. Atty. Gen. Irving Jaffe, for defendant.
    Before LARAMORE, Senior Judge, and DAVIS and NICHOLS, Judges.
   LARAMORE, Senior Judge.

Plaintiffs brought this suit for a portion of the value of derelict goods which they recovered under a contract entered into with the General Services Administration. The case is presently before us on the defendant’s motion to dismiss the petition for failure to state a claim within this court’s jurisdiction.

Plaintiffs believed they knew where to locate valuable derelict goods on government property within the confines of the DeSoto National Wildlife Refuge, in the Missouri River Valley. The goods were on the steamboat “Bertrand” which allegedly sank on April 1, 1865, in Bertrand Bend, presently known as DeSoto Bend, of the Missouri River. The plaintiffs entered into a contract with the Administrator of General Services that permitted them to come upon the government lands, subject to various restrictions and precautions, not relevant to the issue, to search for the sunken boat and its derelict cargo. The contract provided that the gross value of the property recovered by the plaintiffs, exclusive of artifacts, would be apportioned between the government and the plaintiffs, the government receiving 40 percent of the gross value reduced by a $150 payment received and the plaintiffs receiving 60 percent of the gross value increased by $150.

The contract encompassed the provisions of 40 U.S.C. >§ 310 which encourages the Administrator of General Services to contract for the recovery of wrecked, abandoned, or derelict property which ought to come to the United States and provides for paying just and reasonable compensation to any person who shall actually preserve, collect, surrender, or pay over such property to the United States. In addition, the contract dutifully follows the statute in restricting payment to such moneys as shall be realized and received from the collected property. The contract specifically provided that “no costs or claims shall become chargeable to the government as a resut of this contract.”

The plaintiffs recovered a large number of bottles of both whiskey and bitters which the government took into its possession in accordance with the contract. The plaintiffs’ suit is requesting $2,000,000 for what it estimates to be its share of the antique value of the bottles containing the bitters. The pleadings and briefs state without additional explanation that the government refuses to make further payment.

The government contends that the court has no jurisdiction over this matter under 28 U.S.C. § 1491 because the contract and section 310 of Title 40 U. S.C. has restricted payment to nonappro-priated funds, thus preventing a final judgment from being paid from any general appropriation under 28 U.S.C. § 2517. The government contends further that the present situation is comparable to that found in Kyer v. United States, 369 F.2d 714, 177 Ct.Cl. 747 (1966), in which this court held it had no jurisdiction because the court, within the contemplation of Congress, could not obligate public moneys.

The nature of the plaintiffs’ claim determines the jurisdiction of the Court of Claims, not the character of the defendant’s defense. Eastport S.S. Co. v. United States, 130 F.Supp. 333, 131 Ct.Cl. 210 (1955).

Section 1491 of Title 28 U.S.C. provides that:

The Court of Claims shall have jurisdiction to render judgment upon any claim against the United States founded either upon the Constitution, or any Act of Congress, or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort. * * *

The plaintiffs’ petition clearly sets out the elements necessary for this court to assume jurisdiction; namely, a claim against the United States founded both upon an act of Congress and an express contract.

The wording of 40 U.S.C. § 310 and the contract, upon which the government bases its argument, is a bit puzzling. It purports to allow just and reasonable compensation to any person who shall actually collect, surrender or pay over property to the United States. It then prohibits costs or claims incurred in such an endeavor from becoming chargeable to the United States, except for that which shall be paid from the moneys realized and received from the collected property. Literal interpretation of this final proviso can be construed to mean that nothing will be paid if no money is realized and received from the collected property. To facilitate the basic intention of the contract and statute, collection of property which ought to come to the United States, one must reasonably assume that the government will sell the property at a just and reasonable price to produce funds from which payment can be made or that costs or claims are chargeable to the United States up to and including the just and reasonable value, at an equitably stipulated time, of the collected property.

Under the circumstances before us, it appears fair to assume the intent was to limit payment and collection to the just and reasonable value realized from the subject matter in question. The primary congressional concern was that the cost of a judgment would, in some cases, be imposed directly on the taxpaying public, when Congress did not actually appropriate the necessary funds, because the activity lacked sufficient assets from which to reimburse the United States for the judgment.. The key in this case is presence of sufficient assets, the proceeds of which can and will be used to reimburse the plaintiffs, thus preventing the cost of the judgment from falling on the taxpaying public through the direct use of general appropriations. We feel this is what Congress had in mind in limiting recovery under section 310.

The rationale for restricting recovery was clearly expressed when 28 U.S.C. § 1491 was amended to include Military and National Aeronsfutics & Space Administration Exchanges thus closing a major “loophole” in the Tucker Act. See the explanation to S. 980, at page 3478, 1970 U.S. Code Cong. & Admin. News. This congressional interest in limiting the amount of recovery to the value of the property involved is also disclosed in 40 U.S.C. § 484(m), concerning possession of abandoned or unclaimed property on government premises, etc., where payment is also limited to the proceeds realized from disposition of the property in question.

Based on the statutes and literature relating to the subject, Congress surely did not intend to encourage government contracting activity out of what is basically an appropriated fund activity, the General Services Administration, for the retrieval of property which it would keep with the final explanation that no funds are available from which to make remuneration when the retrieved subject matter in question was meant to be the source of proceeds for payment.

In this case we have sufficient assets, over 4,000 “antique” bottles, that are to be sold in contemplation of the contract to pay the plaintiffs their contracted share. Therefore, assuming jurisdiction and granting relief in this case is not inconsistent with the concept that this court does not have general jurisdiction of nonappropriated fund activities. Any potential final judgment in this case will not result in costs to the taxpaying public by an unauthorized draw on general appropriations because it is limited to and will come solely from the just and reasonable value, if any, of the retrieved goods. During the oral argument, it was also clarified that the proceeds from sale of the subject matter would be miscellaneous receipts which would become a part of appropriated funds. This will easily meet the requirements of 28 U.S. C. § 2517.

This ease is distinguishable from Kyer, supra, because in Kyer there was no contract subject matter which the parties intended to serve as the source of funds for settlement and from which the court could draw to satisfy a judgment. It should also be mentioned that the Kyer ease, supra, was decided (12/16/66) prior to legislation through which Congress further clarified the liability of nonappropriated fund activities.

Defendant would interpret Kyer as barring any suit wherein the contract or the legislation authorizing the contract contemplates that the contract will not cause payments to be made out of appropriated funds. This was assuredly not our intention, for we have always entertained under section 1491 suits for breach of contracts to sell government surplus property, wherein, of course, the contract payments were intended to flow into, not out of, the public treasury. Literally, such a contract is not one “which could have been satisfied out of appropriated funds” (Kyer, 369 F.2d at 718, 177 Ct.Cl. at 751) but it was not of the kind we intended to exclude. Judicial language must always be construed in light of the controversy before the court.

Under the circumstances disclosed, we find this court has jurisdiction to grant relief up to and including the yet to-be determined value of the contract subject matter and it can enter a judgment for such amount, once the just and reasonable value has been determined, and the proceeds established, without encroaching upon nonappropriated fund restrictions.

For these reasons the defendant’s motion to dismiss the petition is denied. The ease is remanded to the Trial Judgé for further proceedings in conformity with this opinion.

      . “§ 310. Abandoned property. The Administrator of General Services is authorized to make such contracts and provisions as he may deem for the interest of the Government, for the preservation, sale, or collection of any property, or the proceeds thereof, which may have been wrecked, abandoned, or become derelict, being within the jurisdiction of the United States, and which ought to come to the United States, and in such contracts to allow such compensation to any person giving information thereof, or who shall actually preserve, collect, surrender, or pay over the same, as the Administrator of General Services may deem just and reasonable. No costs or claim shall, however, become chargeable to the United States in so obtaining, preserving, collecting, receiving, or making available property, debts, dues, or interests, which shall not be paid from such moneys as shall be realized and received from the property so collected, under each specific agreement.”

      . In response to a question from the bench, plaintiffs’ attorney stated that the government has offered to settle for the value of the whiskey, but not the bitters.

      . “§ 2517. Payment of judgments.
      “(a) Every final judgment rendered by the Court of Claims against the United States shall be paid out of any general appropriation therefor, on presentation to the General Accounting Office of a certification of the judgment by the clerk and chief judge of the court.
      “(b) Payment of any such judgment and of interest thereon shall be a full discharge to the United States of all claims and demands arising out of the matters involved in the case or controversy.”

      . July 23, 1970, PubX. 91-350, § 1(b), 84 Stat. 449.


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    INTERDENT CORPORATION v. The UNITED STATES.
    No. 55-73.
    United States Court of Claims.
    Dec. 19, 1973.

      Sherman Levy, Washington, D. C., attorney of record, for plaintiff. George R. Douglas, Jr., Washington, D. C., of counsel.
    A. David Spevack, Washington, D. C., with whom was Acting Asst. Atty. Gen. Irving Jaffe, for defendant.
    Before DAVIS, NICHOLS and KUN-ZIG, Judges.
   ON DEFENDANT’S MOTION FOR PARTIAL SUMMARY JUDGMENT

PER CURIAM:

In its original petition plaintiff Inter-dent Corporation charged that the Federal Government, acting through the Defense Department Post Exchanges and like facilities, had been infringing plaintiff's patent (No. 2,733,713, dated February 7, 1956) for an oral irrigator. The infringement alleged was the sale by the post exchanges (and similar non-appropriated fund activities) of an oral ir-rigator “embodying subject matter of certain of the claims of said Letters Patent.” Suit was brought under 28 U. S.C. § 1498 for reasonable and entire compensation.

The defendant moved to dismiss the petition, one ground being that § 1498 does not apply to infringement by nonap-propriated fund activities of the Federal Government. In its brief responding to the motion plaintiff suggested, for the first time, that, in addition to the sales by the post exchanges, an allegedly infringing device was used by the Defense Department for cleaning wounds of injured personnel in Vietnam. At the oral argument plaintiff was given leave to move to amend its petition to add allegations of infringement by components of the government funded through appropriated funds. This motion has been filed and an amended petition lodged with the court. The defendant responds that it “has no opposition to the filing of an amended petition pertaining to the manufacture and use by the government of oral irrigator devices which were procured with appropriated funds and/or used by and for the government in the pursuance of a public purpose of the government or its individual agencies.” Accordingly, the motion for leave to file is granted and the amended petition will be filed.

The defendant requests, however, that we now treat its original motion to dismiss as one for partial summary judgment and dismiss the amended petition insofar as it pertains to sales or use by the post exchanges which rely on non-appropriated funds. It is proper to consider and dispose of this facet of the amended petition at the present time.

We agree with defendant that § 1498(a) does not authorize a suit against the United States for unauthorized use, sale, or manufacture of a patented invention by a non-appropriated fund facility. Before our general jurisdictional provision, 28 U.S.C. § 1491, was amended in 1970 expressly to cover certain transactions of specified non-appropriated fund components, the court repeatedly declared that, despite its all-encompassing language, § 1491 did not give us jurisdiction over claims arising out of contracts with, or appointments to positions in, non-appropriated fund facilities such as the post exchanges. See Kyer v. United States, 369 F.2d 714, 177 Ct.Cl. 747 (1966), cert. denied, 387 U.S. 929, 87 S.Ct. 2050, 18 L.Ed.2d 990 (1967); G. L. Christian & Associates v. United States, 312 F.2d 418, 425, 160 Ct.Cl. 1, 14, cert. denied, 375 U.S. 954, 84 S.Ct. 444, 11 L.Ed.2d 314 (1963). Although those agencies are parts of the Federal Government (see Standard Oil Co. of Cal. v. Johnson, 316 U.S. 481, 485, 62 S.Ct. 1168, 86 L.Ed. 1611 (1942)), and their operations are carried on by federal officers and employees, their contracts and transactions did not (prior to the 1970 modification) bind appropriated funds or create a debt of the United States which could be vindicated in this court. The theory has been that, since our judgments are paid only from appropriated funds, in order to be actionable here the transaction sued upon must be one which, in the contemplation of Congress, can obligate public monies. “If Congress has indicated that public funds shall not be involved, we cannot grant the relief requested.” Kyer v. United States, supra, 369 F.2d at 718, 177 Ct.Cl. at 751-752.

This rationale is equally applicable to § 1498. Awards in patent cases under that section are also paid from appropriated funds, and in every suit under the provision public monies are necessarily at stake. The phrasing of § 1498 is no wider than that of the pre-1970 § 1491, and the Kyer principle governs: “While the terms of this statute [§ 1491, in that instance] are broad, its words must be read in conjunction with and must be regarded as limited by another statute which provides that our judgments are paid only from appropriated funds.” 369 F.2d at 718, 177 Ct.Cl. at 751.

In 1970 Congress altered § 1491 to cover “an express or implied contract with the Army and Air Force Exchange Service, Navy Exchanges, Marine Corps Exchanges, Coast Guard Exchanges and Exchange Councils of the National Aeronautics and Space Administration.” Pub.L. 91-350, Act of July 23, 1970, 84 Stat. 449. No comparable change was made in § 1498, and we would not be justified in carrying over, or reading into, the latter the amendment which Congress made in § 1491. An action under § 1498 is not the litigation of a contract claim but one for “reasonable and entire compensation” for the taking by eminent domain of a compulsory license in the patent. See The Irving Air Chute Co. v. United States, 93 F.Supp. 633, 117 Ct.Cl. 799 (1950); Calhoun v. United States, 453 F.2d 1385, 1391, 197 Ct.Cl. 41, 51 (1972). Before the enactment of the predecessor of § 1498, action by the Government which, if it had been done by a private person, would have infringed the patent was a tort for which the Government had not, at that time, consented to be sued. The Irving Air Chute Co. v. United States, supra, 93 F.Supp. at 635, 117 Ct.Cl. at 802-803. Thus, the theory of § 1498 is unrelated to contract doctrine, and we cannot take the 1970 statute as authorizing us to find a similar implicit modification in § 1498 through the in pari materia principle.

Moreover, Congress did not simply insert all non-appropriated fund activities into § 1491, nor as to those expressly covered did it equate them with the United States for all the purposes of that section. It was selective both with respect to the agencies chosen and as regards the types of claim to be included under § 1491. This legislative exercise of choice also works against a judicial extension of the 1970 provisions to § 1498. Cf. Swiff-Train Co. v. United States, 443 F.2d 1140, 1142-1143 (C.A.5, 1971). If a change in the patent section is warranted, it should be made by the Congress. As the provision now stands, the court has no jurisdiction over a suit for compensation for use or sale of a patented invention by a non-appropriated fund agency.

For these reasons, the defendant’s motion for partial summary judgment is granted and the amended petition is dismissed to the extent it seeks recovery under 28 U.S.C. § 1498 for use or sale by non-appropriated fund facilities. The remainder of the case is remanded to the trial division for further proceedings in due course.

      . It is not, and could not be, disputed that military post exchanges are such non-appropriated fund activities.

      . Section 1498(a) provides in pertinent part:
      “Whenever an invention described in and covered by a patent of the United States is used or manufactured by or for the United States without license of the owner thereof or lawful right to use or manufacture the same, the owner’s remedy shall be by action against the United States in the Court of Claims for the recovery of his reasonable and entire compensation for such use and manufacture.
      “For the purposes of this section, the use or manufacture of an invention described in and covered by a patent of the United States by a contractor, a subcontractor, or any person, firm, or corporation for the Government and with the authorization or consent of the Government, shall be construed as use or manufacture for the United States.”


author: NICHOLS, Judge:

text:
    BALL STATE UNIVERSITY and the American Association of Colleges for Teacher Education v. The UNITED STATES.
    No. 381-72.
    United States Court of Claims.
    Dec. 19, 1973.

      George E. Cranwell, Arlington, Va., atty. of record for plaintiff.
    Lawrence S. Smith, Washington, D. C., with whom was Acting Asst. Atty. Gen. Irving Jaffe, for defendant.
    Before DAVIS, NICHOLS and KUN-ZIG, Judges.
   NICHOLS, Judge:

This is a review of a decision of the Armed Services Board of Contract Appeals (ASBCA), Appeal of Ball State University, ASBCA No. 16344, 72-1 BCA § 9246. We must apply the standards of the Wunderlich Act, 41 U.S.C. §§ 321, 322. The facts are not seriously in issue, the question to be decided being a matter of law, the interpretation of ■ a contract. Since we agree entirely with the Board, it is possible to restrict our discussion to the minimum necessary to explain our decision, leaving those who desire to know more about the case to refer to the published Board decision, and the able briefs before us.

The contract in dispute was awarded by the Department of Health, Education and Welfare, and its purpose was in-service development of teachers for the disadvantaged, as authorized by the National Defense Education Act, 20 U.S.C. § 591. By the terms of that Act, the contract had to be awarded to an institution of higher education but the one here involved, Ball State University, our plaintiff, subcontracted to American Association of Colleges for Teacher Education (AACTE). Both prime and subcontracts called basically for cost reimbursement, without profit, so there was no cushion to absorb unreimbursed costs.

The prime contract clause in dispute, Article 12, reads as follows:

Article 12. Allowable Costs
A. For the performance of this contract, the Government shall pay to the Contractor the costs determined by the Contracting Officer to be allowable in accordance with Federal Procurement Regulations Part 1-15, Contract Cost Principles and Procedures (41 CFR 1-15) as in effect on the date of this contract, and such other costs as may be specifically provided in this contract. Allowable costs shall include, but not necessarily be limited to, the following:
(1) Direct Costs:
(a) Personal services
(b) Employee benefits
(c) Travel
(d) Office supplies
(e) Reproduction
(f) Instructional supplies
(g) Miscellaneous services
(h) Rental of space & equipment
(i) Communications
(2) Indirect, or overhead, costs in the amount of $23,000
(3) Stipend payments to eligible enrollees attending the Institutes
B. The total allowable cost payable under this contract shall be determined on the basis of an audit by representatives of the Commissioner. The Contractor agrees to repay to the United States Office of Education any amount of payment received in excess of the actual cost, and the Government agrees to pay to the Contractor any amount due as determined by such audit.

(Except for the caption of Article 12, all of the above emphasis [italics] were supplied to indicate what was typed into the original contract, the remainder being printed. The Board called the printed part “boilerplate”.)

Afterwards, by amendment, the $23,000 figure for indirect costs was increased to $39,000. The contract cost ceiling was $1,340,738, which amount has been paid to plaintiff, of which $1,226,966.40 was for direct costs, the remainder for indirect costs. The total amount of indirect costs was $197,466.-31, by Government audit. Plaintiff claims an additional $83,724.71' for unreimbursed indirect costs but according to the Board has been overpaid by $74,741.60 since the $1,340,738 payment included $74,741.60 in excess of the allowable $39,000 for indirect costs. Defendant counterclaims for the overpayment. Only the meaning of the contract is in serious dispute. We agree with the Board that the $39,000 figure was a contractual ceiling on reimbursement for indirect costs, that plaintiff cannot recover, and has been overpaid in the amount stated. Of course, it was AACTE that actually incurred the extra costs, but it is not in privity of contract with defendant and its claim if any, against Ball State University is not before us and we do not pass on it.

It is unnecessary to consider how plaintiff could be paid above the $1,340,738 cost ceiling, since Article 12 is decisive against it. Plaintiff, however, invites attention to the words in Article 12A “Allowable costs shall include, but not necessarily be limited to,” and the statement in paragraph B that the total allowable cost shall be determined on the basis of an audit. The difficulty is that plaintiff’s view would make wholly ineffective the specific provision that the indirect costs will be $39,000. Interpretations are not favored that leave portions of contract language useless, inexplicable, inoperative, meaningless or superfluous. Hol-Gar Mfg. Corp. v. United States, 351 F.2d 972, 979, 169 Ct.Cl. 384, 395 (1965). This is especially true when the clause to be nullified was typed in and the competing clauses were boilerplate, as here. Moreover, giving the $39,000 clause its full effect does not correspondingly nullify the other clauses. The quoted language of Article 12A seems to mean that costs of types or kinds allowable under the published cost principles shall be allowable though not specifically set forth in the contract. As to Article 12B, it surely does not denote that the auditors in allowing or disallowing costs are exempted from following the express provisions of the contract.

The Board finds without exception taken that plaintiff’s proposals in pre-contact negotiations provided fixed sums for indirect costs, not such sums as audit might develop. In proposing a time extension and cost increase, plaintiff said “Please note that the budget of each state component shows no indirect costs. Such items will be charged only as direct costs”. The added $16,000 for indirect costs provided by Amendment 2 was however said to be “in accordance with contractor’s proposal * * * ”.

Plaintiff urges the rule of contra proferentem, but it fails to show the contract interpretation it now urges on us was reasonable in light of the whole contract. Bishop Engineering Co. v. United States, 180 Ct.Cl. 411 (1967). There is nothing to show it construed the contract as it now does before signing it. Moreover, Board findings show it was plaintiff in its proposals who put forward the idea of a fixed sum for indirect costs. Contra proferentem, on the existing record, might therefore work against plaintiff more logically than against defendant.

We may note that in case of any contractor with multiple activities, the amounts and allocations of indirect costs are always matters of opinion. It would be natural for parties to agree on a fixed sum to add to direct costs in the hope — here a vain one — of avoiding future controversy. Plaintiff’s theory that the $23,000, as amended, $39,000, for indirect costs was intended to be “provisional” cannot be accepted in view of the lack of record support for it. Plaintiff urges “unjust enrichment” with plausibility insofar as in a no-profit contract the partial disallowance of audited costs lead to the Government getting services at less than cost.. However, plaintiff does not show the kind of overreaching that might lead us to reform such a loss contract. Cf. Chernick v. United States, 372 F.2d 492, 178 Ct. Cl. 498 (1967). Plaintiff says the contracting officer did not assert an overpayment, and it might not have appealed had it known one would be claimed at the Board level. It knew from the audit report it had received an overpayment; after reading the Board decision it has sued here, and defendant's right to counterclaim here is statutory. 28 U.S.C. §§ 1503, 2508.

In view of the foregoing, we hold that the Board decision is not arbitrary or capricious and is not contrary to law. The substantiality of evidence to support its findings is not challenged. Plaintiff’s motion for summary judgment is denied. Defendant’s motion for summary judgment is granted. Plaintiff’s petition is dismissed. On defendant’s counterclaim judgment is entered for defendant in the sum of $74,741.60, as found by the Board.


author: COWEN, Chief Judge.

text:
    Ann S. BENTON v. The UNITED STATES.
    No. 101-72.
    United States Court of Claims.
    Dec. 19, 1973.

      John I. Heise, Silver Spring, Md., attorney of record, for plaintiff.
    Judith A. Yannello, Washington, D. C. , with whom was Acting Asst. Atty. Gen. Irving Jaffe, for defendant.
    Howard C. Westwood and Paul J. Tagliabue, Washington, D. C., filed a brief for the Federal Administrative Law Judges Conference as amicus curiae. Covington & Burling, Washington, D. C., of counsel.
    Before COWEN, Chief Judge, and KASHIWA and BENNETT, Judges.
   ON PLAINTIFF’S MOTION AND DEFENDANT’S CROSS-MOTION FOR SUMMARY JUDGMENT

COWEN, Chief Judge.

Ann S. Benton brings this action as sole heir and personal representative of her late husband, Thaddeus G. Benton. Plaintiff alleges that her husband, while employed as a Federal hearing examiner, was retired for physical disability improperly and without the protective procedures of Section 11 of the Administrative Procedure Act (APA). As a result, she claims she is entitled to recover back salary, lump sum benefits payable upon her husband’s death, and appropriate retirement benefits.

Mrs. Benton’s action presents an issue of first impression: whether Section 11 of the APA, which requires a hearing as prescribed in that Act for the removal of a Federal hearing examiner, applies to the Civil Service Commission’s involuntary removal and retirement of a hearing examiner on a disability annuity under the Civil Service Retirement Act, 41 Stat. 614 (1920), as amended, 5 U.S. C. §§ 8331-8348 (1970). In a close and difficult case in which we have been aided by the able arguments and excellent briefs of the parties, we have concluded that this question should be answered in the affirmative and that the plaintiff is “ntitled to recover.

The case is before us on cross-motions for summary judgment, and there is no dispute in the facts. On October 11, 1961, Thaddeus Benton was appointed as an examiner pursuant to Section 11 of the APA, which is codified in part in 5 U.S.C. § 3105 (1970). He was employed by the Interstate Commerce Commission (ICC), and he held a position in the classified civil service of a hearing examiner, GS-16, at the time of retirement. After Mr. Benton had served as an examiner for seven years, the Director of Personnel for the ICC notified him that the agency was proposing to initiate proceedings to terminate him for physical disability. On October 30, 1968, the ICC filed an application with the Civil Service Commission (CSC), requesting that Mr. Benton be retired for disability. By letter of October 31, 1968, Mr. Benton objected to the procedure.

On January 21, 1969, the CSC issued a notice approving the application for involuntary retirement on the basis of disability and directed Mr. Benton’s separation. Mr. Benton was not accorded any of the procedures of Section 11 of the APA, which provides for a hearing and removal only for good cause established on the record.

On January 22, 1969, the ICC notified Mr. Benton that he would be separated effective January 24, 1969. By letter of January 24, 1969, Mr. Benton requested that the agency furnish him a copy of its decision in connection with his ease, and also all documents submitted by the agency to the CSC.

On January 23, 1969, the ICC advised plaintiff’s husband that the CSC had rescinded the approval of disability retirement pending consideration of further evidence from Mr. Benton. Accordingly, the notice of January 22, 1969, was rescinded.

On February 7, 1969, the CSC Bureau of Retirement, Insurance, and Occupational Health, notified Mr. Benton that the involuntary application for retirement filed by the ICC had been approved. Immediately upon receipt of said notice, Mr. Benton filed with the CSC a motion to vacate and set aside the approval of the disability retirement application on the grounds that the procedure was improper and not effected in accordance with the APA. Specifically, Mr. Benton pointed out that he was accorded no opportunity for hearing within the meaning of the Act and that his separation could only be effected pursuant to section 11 thereof. By notice of February 11, 1969, Mr. Benton advised the Chairman of the ICC of his objection to the procedure being followed to effect his separation and again referred to omissions under the APA.

On February 12, 1969, the Personnel Director of the ICC notified Mr. Benton that his retirement was effective at the close of business on February 12, 1969. By written notice of February 13, 1969, the CSC Bureau of Retirement notified Mr. Benton that the General Counsel of the CSC had ruled that the APA was not applicable to disability retirement claims.

Mr. Benton appealed the action of the Bureau of Retirement to the Appeals Examining Office of the CSC citing omissions in the removal process as required by the APA. Although an informal hearing was held, Mr. Benton was not accorded a hearing which met the procedural requirements of Section 11 of the APA.

The Appeals Examining Office sustained the decision of the Bureau of Retirement upholding Mr. Benton’s separation, and on August 13, 1969, the CSC Board of Appeals and Review issued a decision sustaining the action of the Appeals Examining Office.

Thereafter, Mr. Benton’s attorney requested the Chairman of the CSC, in the exercise of his discretion, to entertain a further appeal and consideration of the case pursuant to the Commissioners’ authority under 5 C.F.R. § 772.308 (1970). The Chairman of the Commission was specifically requested to rule whether Mr. Benton was entitled by law to a hearing under Section 11 of the APA before he was removed from his office. On September 12, 1969, the Federal Trial Examiner’s Conference, through counsel, requested the Chairman of the CSC to grant leave for the conference to file a brief in the case. On January 9, 1970, a brief on behalf of the Federal Trial Examiner’s Conference was submitted to the CSC. On January 15, 1970, the Chairman of the Hearing Examiner's Committee of the American Bar Association advised the Chairman of the CSC that Counsel of the Administrative Law Section of the American Bar Association concluded that “involuntary retirement for disability in the case of hearing examiners should be handled as removal for cause under Section 11 of the Administrative Procedure Act.”

Thaddeus Benton died on January 26, 1970. The CSC advised plaintiff on January 30, 1970, that, although Thaddeus Benton had passed away, the Commissioners of the CSC had voted to reopen the case and to consider the contentions made as to the applicability of Section 11 of the APA. By March 1972, plaintiff had received no further notice from the Commission regarding Mr. Benton’s claim and she filed this suit. Defendant’s answer states that on April 28, 1971, the CSC issued a decision denying Mr. Benton’s claim.

I

Section 11 of the APA reads in pertinent part as follows:

A hearing examiner appointed under section 3105 of this title may be removed by the agency in which he is employed only for good cause established and determined by the Civil Service Commission on the record after opportunity for a hearing. 5 U.S. C.§ 7521 (1970).

The proper starting point for interpreting section 11 is the language of the statute itself. We have held that the ordinary and commonly understood meaning shall be attributed to the terms employed in the statute, unless a contrary meaning is clearly intended. Sea Gull Lubricants, Inc. v. United States, 99 Ct.Cl. 716, 730, 50 F.Supp. 230, 237 (1943), cert. denied, 321 U.S. 774, 64 S. Ct. 616, 88 L.Ed. 1069 (1944) ; Coleman v. United States, 93 Ct.Cl. 127, 131-133, 37 F.Supp. 273, 276 (1941). In the ordinary sense, the word “removed” denotes an involuntary separation of the employee from his position. Giving the word its commonly understood meaning, involuntary retirement for disability would be a removal, as plaintiff contends.

It is undisputed that Mr. Benton was retired because of the determination that his unsatisfactory service required his separation from his position. The Appeals Examining Office of the Civil Service Commission concluded:

In summary, we have a situation in which it is clear that the work performance of this employee [Mr. Benton] has been unsatisfactory for a period of approximately two (2) years.

If Mr. Benton had not completed five years of civilian service at the time of his separation, he could not have been retired for disability under the Civil Service Retirement Act, 5 U.S.C. § 8337 (1970) . In that event, the Commission could not have terminated his employment for unsatisfactory performance except by compliance with Section 11 of the APA, including the procedural requirements contained in 5 U.S.C. §§ 556 and 557 (1970). In either case, the hearing examiner is removed, because the performance of his duties is terminated against his will; either form of action may be grounded on either physical or mental disability, and neither can be said to be of a disciplinary nature.

Therefore, if we ended our inquiry by applying the commonly understood meaning of section 11, we would have to decide that plaintiff is entitled to prevail in this action.

II

A statute cannot be divorced from the circumstances existing at the time it was passed or from the evil which Congress sought to prevent and correct. Akins v. United States, 194 Ct.Cl. 477, 483, 439 F.2d 175, 177 (1971) . Both parties rely on the legislative history of the APA, and we also turn to this source as an aid in interpreting the statutory provisions at issue.

In the late 1920’s and 1930’s there was growing dissatisfaction with the administrative process. Administrative decisions, especially factual findings, were being accorded considerable finality, and there was concern that this power was not sufficiently protected to guarantee fairness and impartiality in the administrative process. See Wong Yang Sung v. McGrath, 339 U.S. 33, 36-38, 70 S.Ct. 445, 94 L.Ed. 616 (1950); Macy, The APA and the Hearing Examiner: Products of a Viable Political Society, 27 Fed.B.J. 351, 353-59 (1967). In 1937, the President’s Committee on Administrative Management recommended that agencies separate adjudicatory functions from the pressures and influences of officers responsible for administering policy. Administrative Management in the Government of the United States, Report of the President’s Committee on Administrative Management 40 (1937). Four years later, the Attorney General’s Committee on Administrative Procedure stressed the need for “competent and well-paid [hearing examiners] exercising functions of responsibility and interest.” Final Report of the Attorney General’s Committee on Administrative Procedure 46 (1941).

It was with these sentiments in mind that Congress began formulating Section 11 of the APA. When Senator Mc-Carran presented the APA for passage he made these statements:

Section 11 relates to examiners Under this section examiners are removable only for good cause determined by the Civil Service Commission, after opportunity for hearing, and upon the record thereof.
* * -x- -X- -X- *•
Therefore, it will be the duty of reviewing courts to prevent avoidance of the requirements of the bill by any manner or form of indirection, and to determine the meaning of the words and phrases used, insofar as they have not been defined in the bill itself. For example, in several provisions of the bill, the expression “good cause” is used. The cause so specified must be interpreted by the context of the provision in which it is found, and the purpose of the entire section and bill. The cause found must be real and demonstrable. If the agency is proceeding upon a statutory hearing and record, the cause will appear there. * * * (Emphasis supplied). Administrative Procedure Act — Legislative History, S.Doe.No.248, 79th Cong., 2d Sess. 324, 326 (1946).

The Senate Report states the purpose of section 11 as follows:

The purpose of this section is to render examiners independent and secure in their tenure and compensation. The section thus takes a different ground than the present situation, in which examiners are mere employees of an agency, and other proposals for a completely separate “examiners’ pool” from which agencies might draw for hearing officers. Recognizing that the entire tradition of the Civil Service Commission is directed toward security of tenure, it seems wise to put that tradition to use in the present case. However, additional powers are conferred upon the Commission. It must afford any examiner an opportunity for a hearing before acceding to an agency request for removal, and even then its action would be subject to judicial review. The hearing and decision would be made under sections 7 and 8 of this bill. (Emphasis supplied.). Administrative Procedure Act — Legislative History S.Doc. No. 248, 79th Cong., 2d Sess. 215 (1946).

The defendant argues that the legislative history of the APA shows that (1) section 11 was enacted to protect the independence of the hearing examiners by giving the Civil Service Commission rather than the employing agencies the exclusive authority to remove the examiners; (2) the Civil Service Retirement Act has, since 1920, authorized the Commission to provide for the involuntary retirement of disabled Government employees, and (3) that the APA could not have been intended to apply to actions taken under the Retirement Act.

■ We cannot concur in such a restrictive reading of the legislative history. We agree that one of the principal problems sought to be corrected by section 11 was the power of an agency to exert pressure on a hearing examiner by threatening his removal or discharge. To eliminate the influence of the agency, Congress provided for removal by an independent agency, the CSC. However, Congress went considerably further by specifying that a hearing examiner could not be removed except by a hearing conducted in accordance with the requirements of Sections 7 and 8 of the Act. In this respect, Congress made it clear that the hearing examiners are not to be treated as “mere employees of an agency.”

We reach our conclusion in recognition of the fact that the APA was a sweeping piece of remedial legislation which was a long time in coming. For that reason, we think it should be given a broad and generous interpretation in light of the objectives sought to be accomplished.

Nothing in the legislative history of the APA indicates that Congress intended to exempt involuntary retirement for disability from the procedures established by section 11. On the contrary, the objectives of section 11 could well be frustrated by allowing an involuntary separation without compliance with the protective procedures that are designed to insure fairness as well as the appearance of fairness. As the Supreme Court stated in Shaughnessy v. Pedreiro, 349 U.S. 48, 51, 75 S.Ct. 591, 594, 99 L.Ed. 868 (1955), “the Procedure Act is to be given a ‘hospitable’ interpretation,” and in the present case, a broad reading of the removal provision is much more in harmony with the intent of the drafters than the restrictive one urged by the defendant.

Ill

Our reading of section 11 is also supported by the regulations of the CSC which define removal for purposes of Section 11 of the APA in such a way as to include involuntary retirement for disability. The CSC regulation reads:

“Removal” means an involuntary change in the status of an administrative law judge, including discharge, demotion, and suspension from the position of administrative law judge and demotion, reassignment, and promotion, to a position other than that of administrative law judge. (Emphasis supplied.) 5 C.F.R. § 930.202(f) (1973).

The regulations provide an exception to the removal provision in only two types of action: discharges of examiners that the CSC finds to have been appointed, or otherwise holding their positions, in violation of law, and discharges based upon national security. 5 C.F.R. § 930.214(c) (1973). The regulations interpreting section 11 do not otherwise define the phrase “involuntary change in status.” Thus, the regulation contemplates that “removal” includes any change of status without the consent or against the will of the affected employee. Clearly, an involuntary retirement falls within this category. Moreover, the changes in status specifically mentioned in the regulation are not limited to disciplinary or non-retirement types of changes. Promotion is listed as one of the changes contemplated by the term “removal"; manifestly, this is not a disciplinary action.

These interpretative regulations have remained essentially the same since the Act was passed in 1946, and thus provide a contemporaneous interpretation of the Act by those called upon to enforce it. Moreover, the fact that these regulations have been in effect for over twenty years, and were in effect when the APA was reenacted and codified in 1966, gives them additional weight in our consideration.

We find, therefore, that the Commission did not follow its own regulations on removal. Instead, it reached, in our view, an erroneous interpretation of the statute based upon a strained application of prior court decisions. While an agency’s interpretation of legislation it is authorized to administer and of its own regulations is ordinarily entitled to great weight, the court bears the ultimate responsibility for determining the legislative intent. See Volkswagenwerk Aktiengesellsehaft v. Federal Maritime Commission, 390 U.S. 261, 272, 88 S.Ct. 929, 19 L.Ed.2d 1090 (1968). Courts are not “obliged to stand aside and rubber-stamp their affirmance of administrative decisions that they deem inconsistent with the statutory mandate or that frustrate the congressional policy underlying a statute.” National Labor Relations Board v. Brown, 380 U.S. 278, 291, 85 S.Ct. 980, 988, 13 L.Ed.2d 839 (1965).

IV

Section 12 of the APA provides, in its current codified form, that a “ [s] ubsequent statute may not be held to supersede or modify [the provisions of the APA, including section 11] except to the extent that it does so expressly.” 5 U.S.C. § 559 (1970).

The Civil Service Retirement Act first became effective in 1920, 41 Stat. (514. In 1956, some ten years after the passage of the APA, the Retirement Act was amended so as to provide for' the first time that the Commission’s findings of total disability in retirement cases are “final and conclusive and are not subject to judicial review.” The 1956 amendment of the Retirement Act contained no express language modifying Section 11 of the APA and, in fact, made no reference whatever to section 11. Under these circumstances, the Commission’s decision that the involuntary retirement of a hearing examiner for disability is excepted from the provisions of Section 11 of the APA is, we think, clearly erroneous and in conflict with Section 12 of the APA.

Our conclusion in this respect is based on the closely analogous decision of the Supreme Court in Shaughnessy v. Pedreiro, supra. In that case, the respondent, an alien, sought judicial review of a deportation order under Section 10 of the APA. The Immigration and Nationality Act of 1952, under which respondent had been ordered deported, provided that deportation orders shall be “final.” The Government contended that this provision, a reenactment of an earlier statute that the Court previously had held to preclude judicial review, barred the respondent’s claimed right of review under section 10. Rejecting the Government’s contention, the Court held that the provision of the 1952 Act making deportation orders “final” did not “expressly” supersede or modify the APA within the meaning of section 12 thereof, and that the administrative decision was subject to judicial review.

Like the respondent in Shaughnessy, hearing examiners have been given certain specific procedural rights by the APA (in all removal actions), including the right to judicial review under Section 10 of that Act. As in Shaughnessy, the Government seeks to apply the procedure permitted by a statute which substantially reduces the procedural protections granted by the APA. Like the Immigration and Nationality Act in Shaughnessy, the statute that the Government relies on here was initially enacted prior to the APA, but reenacted or amended after the APA with a changed content. As in Shaughnessy, the subsequent legislation invoked in the present ease to supersede the APA speaks in general terms without mentioning or referring to the APA. Consequently, we hold that the 1956 amendment to the Retirement Act constituted a “subsequent statute” or “subsequent legislation” within the meaning of section 12 and that it cannot supersede or modify Section 11 of the APA, having failed to do so expressly.

V

The defendant’s principal argument in this case is that the courts have recognized a clear distinction between a removal for cause and a separation based on an involuntary retirement fop disability. This is the ground upon which the decision of the Commission is based. Removal for cause, the argument continues, denotes a disciplinary type of action, whereas involuntary retirement is viewed as a non-disciplinary type of action. This argument is based on two decisions by the United States Court of Appeals for the District of Columbia, Ellmore v. Brucker, 99 U.S.App.D.C. 1, 236 F.2d 734, cert. denied, 352 U.S. 955, 77 S.Ct. 329, 1 L.Ed.2d 244 (1956); Murphy v. Wilson, 99 U.S.App.D.C. 4, 236 F.2d 737, cert. denied, 352 U.S. 954, 77 S.Ct. 326, 1 L.Ed.2d 243 (1956), which held that an involuntary separation for disability under the Retirement Act need not comply with the procedural requirements of the Lloyd-LaFollette Act or the Veterans’ Preference Act.

We have carefully considered these cases and have determined that they are inapposite. The cases deal with the removal provisions of the Veterans’ Preference Act and the Lloyd-LaFollette Act, which were enacted for wholly different purposes than Section 11 of the APA and apply to civilian employees of the Government who do not occupy the special status of hearing examiners. Neither the Veterans’ Preference Act nor the Lloyd-LaFollette Act was designed to safeguard the integrity of the administrative process by assuring hearing examiners a security of tenure which may not be terminated except in compliance with specified procedural safeguards. As we have previously pointed out, the legislative history of the APA demonstrates that Congress intended that hearing examiners could not be separated from their employment except by following a procedure wholly different from that applicable to “mere employees of an agency,” such as those who are subject to removal under the provisions of the Veterans’ Preference Act and the Lloyd-LaFollette Act. We cannot agree with defendant that the term “removal for good cause” has become a term of art in legal parlance and that in every case and in every statute relating to civilian employees of the Government, it means a removal for disciplinary reasons. Therefore, we find no reason for extending the rationale of the decisions in Murphy v. Wilson and Ellmore v. Brueker and their progeny beyond the particular statutes and the circumstances involved in those cases.

In the factual situation before us, we must consider the application of two statutes, the Civil Service Retirement Act and Section 11 of the APA. Both authorize proceedings which, from the agency standpoint, are designed to accomplish the same objective, namely, the removal of the employee because of his physical incapacity to perform the duties of his office. Mr. Benton had sufficient service to entitle him to the benefits of the Retirement Act. However, for the reasons stated in Part IV and elsewhere in this opinion, he could not be separated under that Act except in a proceeding conforming to the requirements of Section 11 of the APA. As this court held in dealing with a somewhat similar situation, the two acts should be construed as being in pari ma-teria and should be read together. Kleinfelter v. United States, 162 Ct.Cl. 88, 318 F.2d 929 (1963). Accordingly, we hold that the Commission had the right to retire Mr. Benton if it decided that he was totally disabled but the proceedings for the determination of such total disability must be conducted in conformity with Sections 7, 8 and 11 of the APA, with the right to judicial review of the Commission’s decision. A final decision that Mr. Benton was totally disabled would constitute good cause, within the meaning of Section 11 of the APA, for separating him from his position and retiring him under the Retirement Act.

VI

We emphasize that our decision does not rest solely on any one of the grounds which is covered by the foregoing discussion. When taken together, however, we find that they tilt the balance in plaintiff’s favor and that she is entitled to recover. Accordingly, plaintiff’s motion for summary judgment is granted, defendant’s motion for summary judgment is denied, and the case is remanded to the Trial Division for determination of the amount of the recovery.

      . Both parties have used the statutory title “Hearing Examiner” in referring to Mr. Benton, but it is noted that the title “Administrative Law Judge” was adopted by the Civil Service Commission in 1972 in lieu of “Hearing Examiner,” 37 Fed.Reg. 16787 (1972).

      . We have also been assisted by the brief amicus curiae filed in behalf of the Federal Administrative Law Judges Conference.

      . Like the present regulations, the Commission’s first regulations interpreting section 11 provided that “involuntary change [s] in the status” of examiners were “removals.” Beyond that, the original regulations were even stronger in terms than the present ones: they provided, that “any involuntary Change” in the status of an examiner was a “removal.” See 5 C.F.R. § 34.2(3) (1947). (Emphasis supplied.) Regulations reiterating that any involuntary change in an examiner’s status constituted a “removal” continued in force without interruption until 1963. See 5 C.F.R. § 34.2(f) (1963). In 1964, the word “any” was changed to “an,” and a “removal” became “an involuntary change in status.” 5 C.F.R. § 930.202(f) (1964).

      . As originally enacted, section 12 provided that “[n]o subsequent legislation shall be held to supersede or modify the provisions of this Act except to the extent that such legislation shall do so expressly.” 60 Stat. 244 (1946).

      . Federal Executive Pay Act of 1956, ch. 804, § 16(c), 70 Stat. 758, currently codified as 5 U.S.C. § 8347(c) (1970).

      . This court has supported the rule laid down in Ellmore v. Brucker and Murphy v. Wilson. See, e. g., Scroggins v. United States, 184 Ct.Cl. 530, 534, 397 F.2d 295, 298, cert. denied, 393 U.S. 952, 89 S.Ct. 376, 21 L.Ed.2d 363 (1968); McGlasson v. United States, 184 Ct.Cl. 542, 549-550, 397 F.2d 303, 307 (1968); Kleinfelter v. United States, 162 Ct.Cl. 88, 93-94, 318 F.2d 929, 932 (1963) (dictum); Gaines v. United States, 158 Ct.Cl. 497, 502, cert. denied, 371 U.S. 936, 83 S.Ct. 309, 9 L.Ed.2d 271 (1962).

      . For example, in Ramspeck v. Federal Trial Examiners Conference, 345 U.S. 128, 143, 73 S.Ct. 570, 97 L.Ed. 872 (1953), the Supreme Court stated that a reduction in force (which is not a disciplinary type of action) would be a removal for good cause within Section 11 of the APA.