B-146614, NOVEMBER 7, 1961, 41 COMP. GEN. 293

B-146614: Nov 7, 1961

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WERE NOT REDUCED TO THE LOWEST ENLISTED PAY GRADE ARE ENTITLED TO HAVE THEIR DUTIES PERFORMED AT THE HIGHER GRADES REGARDED AS BEING PERFORMED UNDER COLOR OF AUTHORITY OF THE SIMPSON DECISION TO BRING THEM WITHIN THE DE FACTO RULE AND. ESTABLISHES THE COLOR OF AUTHORITY NECESSARY TO INVOKE THE DE FACTO RULE SO THAT MEMBERS WHO WERE NOT AUTOMATICALLY REDUCED IN GRADE INCIDENT TO THEIR COURT-MARTIAL SENTENCES MAY RETAIN THE PAY AND ALLOWANCES OF THE HIGHER GRADE. ALSO PERMITS MEMBERS WHO REFUNDED THE HIGHER GRADE PAY AND ALLOWANCES TO HAVE SUCH AMOUNTS REPAID. THE ASSISTANT SECRETARY OF DEFENSE ( COMPTROLLER) REQUESTED OUR DECISION ON FOUR QUESTIONS CONCERNING ENTITLEMENT TO PAY AND ALLOWANCES PAID TO AIRMEN WHO WERE SUBJECT TO REDUCTION TO THE LOWEST ENLISTED PAY GRADE UNDER A LITERAL APPLICATION OF PARAGRAPH 126E OF THE MANUAL FOR COURTS-MARTIAL.

B-146614, NOVEMBER 7, 1961, 41 COMP. GEN. 293

PAY - COURTS-MARTIAL SENTENCES - ENLISTED PERSONNEL - REDUCTION IN GRADE - EFFECT OF UNITED STATES V. SIMPSON--- MILITARY PERSONNEL - DE FACTO-- PAY - COURTS-MARTIAL SENTENCES - ENLISTED PERSONNEL - REDUCTION IN GRADE - EFFECT OF UNITED STATES V. SIMPSON AIR FORCE ENLISTED MEMBERS WHO ON THE BASIS OF UNITED STATES V. SIMPSON, DECIDED FEBRUARY 20, 1959, 10 USCMA 229, 27 CMR 303, WHICH HELD INVALID THE AUTOMATIC PAY GRADE REDUCTION PROVISIONS OF PARAGRAPH 126E, MANUAL FOR COURTS-MARTIAL, 1951, WERE NOT REDUCED TO THE LOWEST ENLISTED PAY GRADE ARE ENTITLED TO HAVE THEIR DUTIES PERFORMED AT THE HIGHER GRADES REGARDED AS BEING PERFORMED UNDER COLOR OF AUTHORITY OF THE SIMPSON DECISION TO BRING THEM WITHIN THE DE FACTO RULE AND, THEREFORE THE MEMBERS MAY RETAIN THE PAY AND ALLOWANCES OF THE HIGHER GRADES RECEIVED IN GOOD FAITH, BUT THE PERIOD OF DE FACTO ENTITLEMENT SHOULD BE CONSIDERED AS ENDING NOT LATER THAN SEPTEMBER 30, 1949, WHICH ALLOWS A REASONABLE PERIOD FOR DISTRIBUTION OF NOTICE OF THE DECISION OF THE COMPTROLLER GENERAL, B- 139988, AUGUST 19, 1959, WHICH HELD THAT MEMBERS SHOULD BE PAID AT THE REDUCED GRADE PENDING A DECISION BY THE COURT OF CLAIMS IN JOHNSON V. UNITED STATES, CT.1CL. NO. 234-59 ( JULY 15, 1960). RECOGNITION THAT THE HOLDING IN UNITED STATES V. SIMPSON, 10 USCMA 229, 27 CMR 303, CONCERNING THE INVALIDITY OF THE AUTOMATIC PAY GRADE REDUCTION PROVISIONS IN PARAGRAPH 126E OF THE MANUAL FOR COURTS MARTIAL, 1951, ESTABLISHES THE COLOR OF AUTHORITY NECESSARY TO INVOKE THE DE FACTO RULE SO THAT MEMBERS WHO WERE NOT AUTOMATICALLY REDUCED IN GRADE INCIDENT TO THEIR COURT-MARTIAL SENTENCES MAY RETAIN THE PAY AND ALLOWANCES OF THE HIGHER GRADE, ALSO PERMITS MEMBERS WHO REFUNDED THE HIGHER GRADE PAY AND ALLOWANCES TO HAVE SUCH AMOUNTS REPAID, WITHOUT THE NECESSITY OF FILING SPECIFIC CLAIMS, SUBJECT TO THE TIME OF SEPTEMBER 30, 1959, ESTABLISHED FOR APPLICATION OF THE DE FACTO RULE IN THESE CASES. IN VIEW OF THE RECOGNITION GIVEN TO THE AUTOMATIC PAY GRADE REDUCTION PROVISIONS OF PARAGRAPH 126E, MANUAL FOR COURTS-MARTIAL, 1951, PRIOR TO THE ISSUANCE ON FEBRUARY 20, 1959, OF THE SIMPSON DECISION, 10 USCMA 229, 27 CMR 303, WHICH HELD THE PROVISIONS OF PARAGRAPH 126E INVALID, THE EFFECT OF THE SIMPSON DECISION, INCLUDING ITS DE FACTO CONSEQUENCES, MUST BE VIEWED AS PROSPECTIVE ONLY, AND THEREFORE, FAILURE TO APPLY AUTOMATIC REDUCTION IN A CASE OF A COURT MARTIAL SENTENCE APPROVED PRIOR TO THE DATE OF THE SIMPSON DECISION ( FEBRUARY 20, 1959) DOES NOT CREATE A DE FACTO STATUS IN THE HIGHER GRADE TO PERMIT RETENTION BY THE MEMBER OF THE PAY AND ALLOWANCES OF THE HIGHER GRADE NOR MAY ANY AMOUNTS COLLECTED FROM SUCH MEMBERS BE REFUNDED.

TO THE SECRETARY OF DEFENSE, NOVEMBER 7, 1961:

ON AUGUST 3, 1961, THE ASSISTANT SECRETARY OF DEFENSE ( COMPTROLLER) REQUESTED OUR DECISION ON FOUR QUESTIONS CONCERNING ENTITLEMENT TO PAY AND ALLOWANCES PAID TO AIRMEN WHO WERE SUBJECT TO REDUCTION TO THE LOWEST ENLISTED PAY GRADE UNDER A LITERAL APPLICATION OF PARAGRAPH 126E OF THE MANUAL FOR COURTS-MARTIAL, 1951, BUT WERE NOT SO REDUCED BECAUSE OF THE RULING IN THE UNITED STATES COURT OF MILITARY APPEALS CASE OF UNITED STATES V. SIMPSON THAT PARAGRAPH 126E WAS INVALID. THE QUESTIONS FOR DECISION ARE SET FORTH AND DISCUSSED IN COMMITTEE ACTION NO. 293, MILITARY PAY AND ALLOWANCE COMMITTEE, DEPARTMENT OF DEFENSE.

PARAGRAPH 126E OF THE MANUAL FOR COURTS-MARTIAL, 1951, PROVIDES FOR AUTOMATIC REDUCTION TO THE LOWEST PAY GRADE WHEN THE SENTENCE OF THE COURT -MARTIAL INCLUDES EITHER (1) DISHONORABLE OR BAD-CONDUCT DISCHARGE; (2) CONFINEMENT; OR (3) HARD LABOR WITHOUT CONFINEMENT. PRIOR TO FEBRUARY 20, 1959, THE REDUCTION WAS EFFECTED IMMEDIATELY WHEN THE SENTENCE WAS ORDERED EXECUTED OR UPON BEING FINALLY APPROVED OR SUSPENDED. IN DISCUSSING THE MATTER THE COMMITTEE REFERRED TO THE CASE OF UNITED STATES V. SIMPSON, 10 USCMA 229, 27 CMR 303, DECIDED FEBRUARY 20, 1959, WHICH HELD THAT THE AUTOMATIC REDUCTION PROVISIONS OF PARAGRAPH 126E, MANUAL FOR COURTS- MARTIAL, 1951, WERE INVALID. THE MAJORITY HOLDING DECLARED (QUOTING FROM HEADNOTE 3) THAT:

* * * PAR 126E, MCM, 1951, AS AMENDED BY EO 10652, 10 JAN 1956, PROVIDING FOR AUTOMATIC REDUCTION TO THE LOWEST PAY GRADE UPON APPROVAL OF A COURT- MARTIAL SENTENCE INCLUDING EITHER A PUNITIVE DISCHARGE, CONFINEMENT, OR HARD LABOR WITHOUT CONFINEMENT, WAS INTENDED TO BE AN INTEGRAL PART OF THE REVIEW OF A SENTENCE ADJUDGED BY A COURT-MARTIAL. THE PROVISION IS SO INTERWOVEN WITH THE COURTS-MARTIAL PROCESS THAT IT CANNOT BE REGARDED AS ANYTHING BUT JUDICIAL PURPOSE AND EFFECT. AS A JUDICIAL ACT, IT OPERATES IMPROPERLY TO INCREASE THE SEVERITY OF THE SENTENCE OF THE COURT-MARTIAL. THEREFORE, THAT PROVISION IS INVALID. ACCORDINGLY, THE ACTION BY THE CONVENING AUTHORITY REDUCING THE ACCUSED IN GRADE MUST BE SET ASIDE.

THE COMMITTEE STATED IN ITS DISCUSSION THAT BY AFCJA-22, NO. 37256, DATED FEBRUARY 25, 1959, THE STAFF JUDGE ADVOCATES OF ALL AIR FORCE COMMANDS EXERCISING GENERAL COURT-MARTIAL JURISDICTION WERE ADVISED OF THE SIMPSON DECISION AND, SPECIFICALLY, TO WITHHOLD, IN PENDING CASES, ACTION TO REDUCE TO LOWEST OR INTERMEDIATE ENLISTED GRADE AIRMEN WHOSE APPROVED SENTENCES INCLUDED ONE OR MORE OF THE ELEMENTS SET FORTH IN PARAGRAPH 126E, MANUAL FOR COURTS-MARTIAL. THE COMMITTEE FURTHER STATED THAT ON MARCH 13, 1959, AFCJA MESSAGE 41646 ADVISED THAT A QUESTION AS TO THE EFFECT OF THE SIMPSON DECISION ON ENTITLEMENT TO PAY AND ALLOWANCES WAS BEING SUBMITTED TO THE COMPTROLLER GENERAL FOR DECISION. ALSO, ON APRIL 8, 1959, ALL MAJOR COMMAND MESSAGE 640/59 ADVISED OF THE PENDING SUBMISSION TO THE COMPTROLLER GENERAL AND STATED THAT PENDING SUCH REPLY ACCOUNTING AND FINANCE OFFICERS WOULD CONTINUE TO MAKE SUCH PAYMENTS AT THE REDUCED GRADE. ON SEPTEMBER 2, 1959, AN ALL MAJOR COMMAND MESSAGE 1108/59 ADVISED OF THE COMPTROLLER GENERAL'S DECISION OF AUGUST 19, 1959, B-139988, AND THE SAME INFORMATION WAS PUBLISHED IN THE SEPTEMBER 18, 1959, ISSUE OF THE ACCOUNTING AND FINANCE TECHNICAL DIGEST.

THE QUESTIONS CONCERNING PAY AND ALLOWANCES WHICH AROSE ADMINISTRATIVELY FROM THE SIMPSON DECISION WERE SUBMITTED TO OUR OFFICE IN COMMITTEE ACTION NO. 243 OF THE MILITARY PAY AND ALLOWANCE COMMITTEE AND WERE ANSWERED IN OUR DECISION B-139988, DATED AUGUST 19, 1959. IN THAT DECISION, WE SAID THAT WE BELIEVED THE AUTOMATIC REDUCTION PROVISION OF SECTION 126E TO BE ADMINISTRATIVE RATHER THAN JUDICIAL IN CHARACTER. WE CONCLUDED THAT SINCE THE QUESTIONS PRESENTED WERE INVOLVED IN PENDING LITIGATION, THE MEMBERS COMING WITHIN THE SCOPE OF THE QUESTIONS SHOULD BE PAID AT THE RATE APPLICABLE TO THE REDUCED GRADE PENDING DECISION BY THE COURT OF CLAIMS IN THE CASE OF JOHNSON V. UNITED STATES, CT.1CL. NO. 234-59, FILED MAY 28, 1959. IN THAT CASE THE PLAINTIFF, CITING THE SIMPSON CASE AS AUTHORITY, WAS CLAIMING THE PAY AND ALLOWANCES OF THE NONCOMMISSIONED RANK FROM WHICH HE WAS REDUCED BY VIRTUE OF THE AUTOMATIC REDUCTION PROVISION IN PARAGRAPH 126E. ON JULY 15, 1960, THE COURT OF CLAIMS DISMISSED JOHNSON'S PETITION (280 F.2D 856), HOLDING THAT THERE WAS AMPLE ADMINISTRATIVE AUTHORITY FOR HIS REDUCTION AS PROVIDED IN PARAGRAPH 126E OF THE MANUAL. ON APRIL 17, 1961, THE UNITED STATES SUPREME COURT DENIED CERTIORARI IN THE JOHNSON CASE ( DOCKET NO. 665, MISC.).

ON JULY 12, 1960, PUBLIC LAW 86-633, 74 STAT. 468, WAS ENACTED WHICH AMENDED THE UNIFORM CODE OF MILITARY JUSTICE, CHAPTER 47 OF TITLE 10, U.S.C. BY ADDING A NEW SECTION, 10 U.S.C. 858A, TO PROVIDE BY STATUTE FOR REDUCTION TO PAY GRADE E-1 UPON APPROVAL OF A COURT-MARTIAL SENTENCE OF AN ENLISTED MEMBER IN A PAY GRADE ABOVE E-1 THAT INCLUDES (1) A DISHONORABLE OR BAD-CONDUCT DISCHARGE; (2) CONFINEMENT; OR (3) HARD LABOR WITHOUT CONFINEMENT.

THE QUESTIONS PRESENTED FOR DECISION IN COMMITTEE ACTION NO. 293 ARE SEPARATELY QUOTED AND ANSWERED BELOW:

QUESTION 1

1. MAY PAY AND ALLOWANCES PAID TO AIRMEN NOT AUTOMATICALLY REDUCED TO THE LOWEST ENLISTED PAY GRADE ON THE BASIS OF THE RULING IN THE COURT OF MILITARY APPEALS CASE OF UNITED STATES V. SIMPSON BE RETAINED ON THE BASIS OF THEIR DE FACTO SERVICE, IN GOOD FAITH, IN THE HIGHER GRADES?

IT IS STATED IN COMMITTEE ACTION NO. 293 THAT THOSE AIRMEN WHOSE SENTENCES BECAME FINAL ON OR AFTER THE SIMPSON DECISION AND WHICH INCLUDED ONE OR MORE OF THE ELEMENTS SET FORTH IN PARAGRAPH 126E, MANUAL FOR COURTS -MARTIAL, 1951, RETAINED THEIR MILITARY GRADE HELD PRIOR TO TRIAL OR THE INTERMEDIATE GRADE TO WHICH THEY WERE SPECIFICALLY REDUCED. THE MEMBERS WERE SUBSEQUENTLY ASSIGNED TO AND PERFORMED THE DUTIES OF THEIR MILITARY GRADES, AND RECEIVED PAY AND ALLOWANCES BASED ON THOSE HIGHER GRADES. ALSO, THE COMMITTEE ACTION STATES THAT THE AIRMEN INVOLVED PERFORMED THE DUTIES AND ACCEPTED THE PAY AND ALLOWANCES OF THE HIGHER GRADE IN GOOD FAITH AND WITHOUT INTENT TO DEFRAUD; AND THAT, IN THOSE CASES WHEN THE PAYMENTS AT THE RATE FOR THE HIGHER GRADE CONTINUED BEYOND THE DATE OF THE COMPTROLLER GENERAL'S DECISION (B-139988, AUGUST 19, 1959) AND THE SEVERAL DIRECTIVES TO THE FIELD WHICH HELD THAT THE REDUCED RATE ONLY COULD BE PAID, THE PAYMENTS APPEAR TO HAVE BEEN ACCEPTED BY THE INDIVIDUAL AIRMEN IN THE USUAL CASE, WITHOUT KNOWLEDGE THAT THERE WAS IN FACT A QUESTION OF ENTITLEMENT.

IT IS WELL SETTLED THAT A PERSON DISCHARGING THE DUTIES OF AN OFFICE UNDER COLOR OF AUTHORITY IS ENTITLED TO RETAIN THE PAY RECEIVED BY HIM IN GOOD FAITH AS AN OFFICER DE FACTO. UNITED STATES V. ROYER, 268 U.S. 394. BASED ON THE PRINCIPLE IN THAT DECISION OUR OFFICE HAS RECOGNIZED IN CERTAIN INSTANCES THAT MEMBERS OF THE UNIFORMED SERVICES ARE ENTITLED TO RETAIN THE PAY AND ALLOWANCES RECEIVED BY THEM INCIDENT TO A DE FACTO STATUS. SEE 8 COMP. GEN. 73; 31 ID. 335; 33 ID. 475; 34 ID. 266. BELIEVE THAT THE SIMPSON DECISION MAY BE VIEWED AS COLOR OF AUTHORITY FOR RETENTION OF THE HIGHER GRADE AND, BASED ON THE GOOD FAITH SHOWING IN COMMITTEE ACTION NO. 293, WE CONCLUDE THAT (SUBJECT TO THE ANSWER IN QUESTION 2 BELOW) THE MEMBERS INVOLVED IN QUESTION 1 MAY RETAIN PAY AND ALLOWANCES PAID THEM INCIDENT TO THEIR SERVICE IN A HIGHER GRADE. QUESTION 1 IS ANSWERED ACCORDINGLY.

QUESTION 2

2. IF DE FACTO ENTITLEMENT MAY BE CONSIDERED TO HAVE EXISTED HOW LONG CAN SUCH ENTITLEMENT BE CONSIDERED TO HAVE CONTINUED UNDER THE CIRCUMSTANCES SET FORTH BELOW?

IT IS STATED IN COMMITTEE ACTION NO. 293 THAT PAYMENTS AT THE RATES FOR THE HIGHER GRADES WERE CONTINUED IN INDIVIDUAL CASES FOR VARYING PERIODS, I.E., SOME WERE PAID AT THE RATE OF THE LOWEST PAY GRADE IN ACCORDANCE WITH AND UPON RECEIPT OF ALL MAJOR COMMAND MESSAGE 640/59 DATED APRIL 8, 1959, OTHERS UPON RECEIPT OF COMPTROLLER GENERAL DECISION B-139988, DATED AUGUST 19, 1959, AND OTHERS APPARENTLY CONTINUED CONSIDERABLY BEYOND THE DATE OF THE DECISION. OUR DECISION OF AUGUST 19, 1959, EXPRESSLY STATED THAT THE MEMBERS CONCERNED "SHOULD BE PAID AT THE RATE APPLICABLE TO THE REDUCED GRADE PENDING A DECISION BY THE COURT OF CLAIMS" IN THE JOHNSON CASE. ON AND AFTER THE DATE OF THAT DECISION OR, AT THE LATEST, THE END OF A REASONABLE PERIOD AFTER THAT DATE TO ALLOW FOR NOTICE OF THE DECISION TO REACH ALL ORGANIZATIONS AND PERSONS CONCERNED, THERE WAS NO COLOR OF AUTHORITY FOR PAYMENTS AT THE RATE OF THE HIGHER GRADE. WE BELIEVE THAT SUCH REASONABLE PERIOD FOR THE NOTIFICATION AND DISTRIBUTION OF OUR DECISION SHOULD BE CONSIDERED AS ENDING NOT LATER THAN SEPTEMBER 30, 1959. ACCORDINGLY, WE WILL NOT QUESTION OTHERWISE PROPER PAYMENTS OF THE TYPE HERE INVOLVED MADE PRIOR TO OCTOBER 1, 1959. QUESTION 2 IS ANSWERED ACCORDINGLY.

QUESTION 3

3. IF DE FACTO ENTITLEMENT IS CONSIDERED TO HAVE EXISTED MAY AMOUNTS TO WHICH SUCH ENTITLEMENT EXISTED BUT WHICH HAVE BEEN COLLECTED BE REFUNDED? IF SO, MAY REFUND BE MADE WITHOUT SPECIFIC CLAIM THEREFOR BEING FILED?

SUBJECT TO THE TIME LIMITATION FIXED IN THE ANSWER TO QUESTION 2, THE FIRST PART OF QUESTION 3 IS ANSWERED IN THE AFFIRMATIVE. SEE UNITED STATES V. ROYER, 268 U.S. 394; 34 COMP. GEN. 266, 269; 39 ID. 312, 313. AS TO THE SECOND PART, REFUNDS, IF OTHERWISE PROPER, MAY BE MADE WITHOUT SPECIFIC CLAIM BEING FILED. COMPARE THE ANSWER TO QUESTION C IN 40 COMP. GEN. 491, 493.

QUESTION 4

4. WHERE THERE HAS BEEN A FAILURE TO APPLY AUTOMATIC REDUCTION IN A CASE OF A SENTENCE APPROVED BY THE CONVENING AUTHORITY PRIOR TO THE DATE OF THE SIMPSON DECISION MAY THE PAY AND ALLOWANCES PAID BE RETAINED BASED ON ESTABLISHED DE FACTO SERVICE STATUS IN THE HIGHER GRADE? MAY ANY SUCH AMOUNTS PREVIOUSLY PAID, AND SINCE COLLECTED, BE REFUNDED WITH OR WITHOUT SPECIFIC CLAIM THEREFOR?

IT IS STATED IN COMMITTEE ACTION NO. 293 THAT QUESTION 4 IS INCLUDED BECAUSE OF THE STATEMENT IN OUR DECISION OF AUGUST 12, 1960, B-143214, EXPRESSING DOUBT AS TO THE CORRECTNESS OF THE ADMINISTRATIVE DETERMINATION OF THE DE FACTO STATUS OF THE MEMBER IN THAT CASE WHICH DID NOT INVOLVE THE SIMPSON DECISION. IN THE DECISION OF AUGUST 12, 1960, THERE WAS CONSIDERED THE CLAIM OF AN ENLISTED MAN--- FOR THE DIFFERENCE BETWEEN THE PAY OF THE LOWER AND HIGHER GRADE--- WHO WAS NOTIFIED PRIOR TO THE PERIOD COVERED BY THE CLAIM THAT HE SHOULD HAVE BEEN REDUCED TO THE LOWEST ENLISTED GRADE UNDER THE PROVISIONS OF PARAGRAPH 126E OF THE MANUAL IN ACCORDANCE WITH HIS COURT-MARTIAL SENTENCE. ON THE BASIS OF AN ADMINISTRATIVE DETERMINATION OF DE FACTO STATUS, HOWEVER, HE HAD BEEN PERMITTED TO RETAIN THE PAY OF THE HIGHER GRADE FOR THE PERIOD PRIOR TO THE DATE OF SUCH NOTIFICATION. WHILE THAT DECISION SIMPLY EXPRESSED DOUBT AS TO THE CORRECTNESS OF THE ADMINISTRATIVE DETERMINATION THAT THE MEMBER WAS IN A DE FACTO STATUS FOR THE PERIOD PRIOR TO NOTIFICATION WITHOUT REQUIRING A REFUND OF THE HIGHER PAY AND ALLOWANCES RECEIVED DURING THAT PERIOD, IT DOES NOT STAND FOR THE PROPOSITION THAT A DE FACTO STATUS EXISTS FOR PAY PURPOSES FOR THOSE MEMBERS COMING WITHIN THE SCOPE OF PARAGRAPH 126E PRIOR TO THE SIMPSON DECISION.

PRIOR TO THE DATE OF THE SIMPSON DECISION AUTOMATIC REDUCTION UNDER PARAGRAPH 126E WAS RECOGNIZED AND APPLIED BY THE COURT OF MILITARY APPEALS IN ITS DECISIONS. SEE, FOR EXAMPLE, UNITED STATES V. FLOOD, 2 USCMA 114, 6 CMR 114. IN SUCH CIRCUMSTANCES WE BELIEVE THAT THE EFFECT OF THE SIMPSON DECISION, INCLUDING ITS DE FACTO CONSEQUENCES, MUST BE VIEWED AS PROSPECTIVE ONLY. BOTH PARTS OF QUESTION 4 ARE ACCORDINGLY ANSWERED IN THE NEGATIVE.

WE DIRECT YOUR ATTENTION TO OUR DECISION OF TODAY, B-146604, 41 COMP. GEN. 298, TO YOU, DEALING WITH RELATED ISSUES UNDER CERTAIN DEPARTMENT OF ARMY CIRCULARS ISSUED AS A CONSEQUENCE OF THE SIMPSON DECISION.