Frederick C. Zangardi v. Walter N. Tobriner, President, Board of D. C. Commissioners , 348 F.2d 370 ( 1965 )

348 F.2d 370

121 U.S.App.D.C. 141

Frederick C. ZANGARDI, Appellant,
v.
Walter N. TOBRINER, President, et al., Board of D. C.
Commissioners, Appellees.

No. 19138.

United States Court of Appeals District of Columbia Circuit.

Argued May 27, 1965.
Decided June 22, 1965.

Mr. Norman H. Heller, Washington, D.C., for appellant.

Mr. Richard W. Barton, Asst. Corp. Counsel for the District of Columbia, with whom Messrs. Chester H. Gray, Corp. Counsel, Milton D. Korman, Principal Asst. Corp. Counsel, and Hubert B. Pair, Asst. Corp. Counsel, were on the brief, for appellees.

Before PRETTYMAN, Senior Circuit Judge, and FAHY and BURGER, Circuit judges.

PER CURIAM:

1

Appellant, a member of the Metropolitan Police Department, was retired under Section 4-526 (D.C.Code, 1961) for disability found not to have been contracted in the performance of duty. On appeal from the District Court's grant of summary judgment in favor of appellees, Board of Commissioners, he urges that he should have been retired at the higher annuity specified by Section 4-527 (D.C.Code, 1961) since the disease which caused his disability was concededly aggravated by the performance of duty. In 1962 subsequent to appellant's retirement, and therefore not applicable to his case, a new subsection was added to the statute by Congress. It does provide for annuity at the higher rate when disability is attributable to aggravation, due to the performance of duty, of a disease not contracted in the performance of duty. D.C.CODE 4-527(2) (Supp. IV, 1965).

2

On the basis of the language of the 1961 D.C.Code 4-527, as for many years it was administratively interpreted contrarily to appellant's position, followed by explicit Congressional acquiescence in such interpretation when in 1962 Congress amended Section 4-527 so as clearly to authorize the higher annuity for such aggravation as here occurred, we conclude that the retirement pay of appellant was properly computed under Section 4-526 rather than under Section 4-527 as it read prior to the 1962 amendment.

3

Affirmed.