The United States

UNREPORTED ORDER denying Motion for Judgment on the Pleadings and denying [122] Motion for Leave to File. On or before 11/19/2021, the parties are directed to CONFER and FILE a joint status report informing the court of what legal determinations remain to be made, and whether the court is presently in the position to make those determinations. Once the court has reviewed the parties submission, it will give the parties an opportunity to propose a schedule to govern this case going forward. Signed by Judge Patricia E. Campbell-Smith. (TQ) Service on parties made.

REPORTED OPINION The Clerk is directed to enter judgment. Defendant shall make any filings pursuant to Rule 54(d) within 30 days of the date of final judgment. Signed by Judge Thomas C. Wheeler. (ez) Service on parties made.

<p>The JReporteri statement of the case:</p> <p>The material allegations of the petition will be found in the opinion of the court.</p> <p>Congress had discovered that there was a lurking equity somewhere in the date of any officer’s appointment, and with most commendable perseverance had sought to find, and to provide for it, but thus far had failed.</p> <p>The next attempt was, we submit, more successful. Ten years later the act approved February 2d, 1897, was passed (29 Stat. L., 593). It was identical in intent with the former legislation but it used the disjunctive conjunction “or” between the words “ appointment” and “ commission.” It says * * * ‘c shall be held and considered to have been mustered into the service of the United States in the grade named in his appointment or commission * * * .” For the first time t íe two things, which are in themselves entirely different, were severed and disassociated .by the word “or.” There can be no commission without an appointment, but there may be an appointment which is not succeeded bjr a commission. The latter is merely the evidence of the former. Appointing and commissioning are distinct acts. (Marbury v. Madison, 1 Cranch, 137; Oollins v. TJ. 8., 15 C. Cls. R., 31; Kilbvrn v. TJ. 8., Id., 17; Young v. TJ. 8., 19 C. Cls. R., 153; Bennett v. TJ. 8., Id., 385). Until the passage of the act of 1897 commissions and appointments had been treated as and given the effect of being one and inseparable by the use of the word “and.”</p> <p>It is true that the disjunctive and conjunctive conjunctions are frequently used interchangeably and are sometimes synonymous, but they must not be so considered when they •can be given their ordinary and usual meaning. If no other reason could be shown for making this change, the condition of the New York and Kentucky regiments is sufficient, but every consideration of justice and equity leads to the conclusion that an officer’s pay should commence from the date he actually entered upon d