Kerry P. Day, Rhett G. Campbell, Richard D. Huff, Peter H.luke, Paul M. Scott, James A. Terhune, on Behalfof Themselves and All Others Similarlysituated, Plaintiffs-appellants, v. United States of America, Defendant-appellee, 611 F.2d 1122 (5th Cir. 1980)

"Join the Navy, and see the world" was once the seductive slogan to enlistment. Service in the other branches of the armed forces may also entail assignment to distant and exotic posts. Whether on duty in the United States or at far-off bases, a commissioned officer is entitled by act of Congress to quarters "appropriate to his grade, rank, or rating and adequate for himself." 37 U.S.C. § 403(b). If these are not provided, he is entitled to be paid a monetary sum, a basic allowance for quarters (BAQ).¹ 

This is a class action on behalf of all unmarried Air Force officers without dependents who were permanently stationed in Thailand and provided quarters there during the six year period from January 27, 1970 through January 26, 1976. None was on field or sea duty; and therefore, none was deprived of BAQ by the statutory exemption for military personnel so assigned, 37 U.S.C. § 403(c). Each was provided with quarters that he occupied, but the class action claims that what was supplied was not adequate and appropriate and, therefore, claims BAQ payments as provided by 37 U.S.C. § 403 for the duration of each member's permanent assignment in Thailand.² 

Both parties were trained for lightning battles. The government sought to bomb the plaintiffs out of court by motion for summary judgment dismissing their case. It contended that each plaintiff was in fact provided some quarters and that anything actually supplied was legally sufficient under an executive order and a military regulation; alternatively, it relied on another regulation that defines all quarters containing 110 square feet of net living area (excluding bathing and toilet facilities) as adequate in Thailand. Equally determined to win quick victory, the plaintiff class countered with a motion for summary judgment on the grounds that all quarters provided were patently inadequate because 98.1% Of the buildings used to house officers in Thailand were classified in some category other than "Usable Class A (Adequate)" in the real property records maintained by the Air Force, Form 1430, and because none of the quarters met the minimum adequacy standards for bachelor quarters generally applicable when quarters are assigned in the United States.

Until September 16, 1975, each class member was provided with quarters embracing at least 110 square feet. The district court held that these were adequate as a matter of law without regard to their actual condition. On September 16, a military regulation suspended all minimum standards of adequacy. Holding that this was dictated as well as justified by military necessity, the district court also dismissed the claims subsequent to that date.

The case comes to us without any factual determinations concerning the adequacy of what was provided. We review only the summary judgment, which held, as a matter of law, that the Air Force's regulatory prescriptions were within the authority delegated by the statute.

Before discussing the two sets of rules that cover the two separate time periods, we consider the government's first-strike argument: "It is stipulated that the plaintiffs were each assigned some kind of quarters and paid no rent." The statutory section providing for BAQ gives the President power to prescribe regulations for its administration. 37 U.S.C. § 403(j). Pursuant to that grant of authority, the President issued Executive Order No. 11,157, a section of which says simply that any quarters occupied rent free at an officer's permanent station "shall be deemed . . . appropriate and adequate."³  Therefore, the government argues, the quarters were ipso facto adequate.

The district court properly grounded this sophistry. The general rule enacted by Congress is that all officers are entitled to BAQ; there is an exception to the legislative mandate when adequate and appropriate quarters are provided. The power to make regulations defining what is adequate and appropriate is not a delegation of authority to wipe out the statute by imposing an Orwellian definition that adopts no standard at all. Regulations must be consistent with the statutory authority that alone gives them validity. Federal Maritime Commission v. Seatrain Lines, Inc., 411 U.S. 726, 746, 93 S. Ct. 1773, 1785, 36 L. Ed. 2d 620, 634 (1973) (quoting Volksvagenwerk Aktiengesellschaft v. Federal Maritime Commission, 390 U.S. 261, 272, 88 S. Ct. 929, 935, 19 L. Ed. 2d 1090, 1097 (1968)); Manhattan General Equipment Co. v. Commissioner, 297 U.S. 129, 56 S. Ct. 397, 80 L. Ed. 528 (1936); United States v. Symonds, 120 U.S. 46, 7 S. Ct. 411, 30 L. Ed. 557 (1887); Real v. Simon, 510 F.2d 557, 564 (5th Cir. 1975). They may lack rhyme, and, unfortunately, sometimes are turgid, but they must be based on some kind of reason.

The government's argument in support of the nonstandard effective on September 16, 1975 is almost as untenable. Pursuant to a series of delegations of power, from the President to the Secretary of the Department of Defense, to the Secretary of the Air Force, to oversea major commands, the Headquarters for Pacific Air Forces (PACAF) waived all minimum standards for housing officers permanently stationed in Thailand on September 16, 1975. This was, the district court found, "Apparently done as a result of the imminent discontinuance of American use of Royal Thai Air Force bases." (Emphasis supplied.) It considered this change a matter of military necessity, hence valid.

Even assuming the validity of the factual premises, we must reach a different conclusion. The Congressional command is to pay BAQ to all those not on field duty unless they are provided with quarters adequate and appropriate. Military necessity justifies assignment of personnel to field duty, but the statute contains no military-necessity exception from the BAQ requirement for those assigned to a permanent station wherever that station may be or under whatever conditions the assignment may occur. The statute did not authorize the Chief Executive to suspend the payment of BAQ if political or military exigencies made it difficult or inexpedient to provide what was adequate and appropriate; nor did it authorize him to accomplish the same result by sprinkling a few regulatory words.

There is, therefore, no real difference between the dogmatic Executive Order No. 11,157 that "everything provided is adequate" and the PACAF order that "after September 16, everything in Thailand is adequate," save that the later order deals with a specific geographic area and a shorter time period. The result decreed in 1975 was as imperious as the universal command that anything the military provides suffices; neither defines what is adequate or appropriate in any fashion or attempts in any way to meet the implicit statutory standard. See United States v. Cartwright, 411 U.S. 546, 93 S. Ct. 1713, 36 L. Ed. 2d 528 (1973); Cf. Townsend v. Swank, 404 U.S. 282, 92 S. Ct. 502, 30 L. Ed. 2d 448 (1971); Bell v. United States, 366 U.S. 393, 81 S. Ct. 1230, 6 L. Ed. 2d 365 (1961).

Let us turn now to the period before September 16, 1975. In Executive Order No. 11,157 § 407 the President redelegated his authority under 37 U.S.C. § 403(j) to the Secretary of Defense and the Secretaries of the various services. Pursuant to this directive the Secretary of Defense promulgated Department of Defense Instruction No. 4165.47 (April 6, 1967; revised May 12, 1972; revised Oct. 23, 1974) defining the minimum standards of adequacy for bachelor officers' housing. This Instruction establishes standards applicable worldwide "unless specific exceptions are made by the Head of the DoD (Department of Defense) Component concerned." Id. P IV(B) (May 12, 1972).⁴ 

The Secretary of the Air Force subsequently issued regulations requiring that officers at the pay level of 0-1 or 0-2 (1st and 2nd Lieutenants, respectively) were to receive 250 square feet consisting of a combined bedroom and living room and private bath. Officers at pay level 0-3 and higher (Captain and above) were to receive 400 square feet consisting of a private bedroom, a private bath, a shared living room and a shared kitchen. Air Force Manual (AFM) 30-7, Change 1 P 2-4 (April 26, 1974); Air Force Regulation (AFR) 30-7, Table 2-1 (May 12, 1975).⁵  These same minimum standards were set by the DoD Instruction 4165.47 of May 12, 1972. They contain no reference to the physical condition of the quarters or the services provided, defining adequacy solely in terms of number of rooms and square footage. Historically, this has been the sole type of standard used by the armed forces. There was a statutory requirement that quarters be furnished at public expense at least as early as 1813; the officers' entitlements were to a certain number of rooms, nothing being said about their condition. Jones v. United States, 60 Ct. Cl. 552, 555 (1925). Ever since then, officers' entitlements have almost always been defined in terms either of number of rooms or square feet of space. See United States v. Phisterer, 94 U.S. 219, 24 L. Ed. 116 (1876) (Act of 1863); Hollister v. United States, 92 Ct. Cl. 137 (1940) (Act of 1922). The unsuitable condition of the rooms furnished generally has not been deemed a sufficient basis for a claim to payment of an allowance for quarters. See id. A regulation taking into account the type of structure, the condition of the premises, or the utilities and conveniences supplied in determining adequacy, such as the regulation considered in Lischak v. United States, 202 Ct. Cl. 598 (1973), is an historical anomaly.

In accordance with a proviso for specific exceptions contained in the DoD Instruction, the Secretary of the Air Force stated, with respect to the minimum standards of adequacy set forth by those regulations: "Oversea major commands may make appropriate reductions in these standards for areas involved in combat or contingency operations or areas directly supporting these operations." AFM 30-7 P 2-2 (Jan. 1, 1970); AFR 30-7 P 2-2 (May 12, 1975). Thailand was such an area throughout the period relevant to this appeal.

Pursuant to this delegation of authority, PACAF as an oversea major command issued a series of supplementary regulations. These PACAF Supplements established as the minimum standard of adequacy 110 square feet, exclusive of bathing and toilet facilities. Thus, while the PACAF definition reduces the space allowance it also prescribes no standards for the physical facilities in which they are located. If there is now such a regulatory embellishment, it comes only because the Air Force prior to 1970 began the practice of maintaining real property records on each building designated for use as officers' quarters. These are maintained on a form, AF Form 1430. The form provides for the designation of each building's condition as "Usable Class A (Adequate)", "Usable Class B (Substandard)," "Forced Use (Substandard)," "Sterile" or "Unusable."⁶ 

The officers here claim, and we accept for purposes of this appeal, that the real property records thus compiled classify 98.1% Of the buildings used as officers' quarters in Thailand as less than "adequate."⁷  The completion of AF Form 1430 is required by an Air Force regulation, AFM 93-1, which requires the Air Force to maintain real property accountability records on all structures within each Air Force installation. These records contain information concerning the physical attributes of the structures including such items as gross dimensions and construction materials as well as various types of accounting data.⁸ 

During the period to which this action relates nothing in any regulation specified that the condition code used on Form 1430 was to determine the adequacy or inadequacy of the buildings described for purposes of BAQ. The words used are the same: both the statute and the real property records refer to adequacy. But their purposes are different; only semantic identity would lead to the conclusion that what is considered adequate physically in describing a building is also to determine whether quarters in the building are adequate and appropriate for purposes of the statute.

Prior to the time period relevant to this suit, AFM 30-7 contained a specific definition of "adequate" and "inadequate" quarters for BAQ purposes. The August 1, 1967 edition of the regulations required officers quarters to be "classified" as "Usable Class A" . . . and (to) . . . meet the minimum standards of adequacy for occupancy established in this manual." It also stated, "These quarters will be carried as Condition Code 1 (Usable Class A) on the real property records." For claims arising when that regulation was in effect, the Court of Claims held in Lischak v. United States, 202 Ct. Cl. 598 (1973), that the condition code on AF Form 1430 defined adequacy for BAQ purposes. The government does not criticize this result.

However, the Air Force subsequently cancelled the regulation that tied "adequacy" for BAQ purposes to the real property records and replaced it; the new regulation no longer refers in any way to AF Form 1430 or the condition code placed on it. See AFM 30-7 (Jan. 1, 1970); AFR 30-7 (May 12, 1975).

The inferential relationships by which the officers seek to establish a continuing tie between BAQ and AF Form 1430 are too gossamer to link them. Appendix A2 to AFM 30-7 and AFR 30-7 merely provides instruction for completing AF Form 515 "Bachelor Housing and Guest House Utilization/Occupancy Report" a form showing the utilization of available bachelor housing. Under those instructions each installation is to identify the number of housing spaces classified as condition code "1", "2" or "3". This appendix provides no reasonable basis to infer that the Secretary of the Air Force intended to make the condition codes of AF Form 1430 definitional for BAQ purposes.

Indeed, AF Form 515 itself makes it clear that the condition code is not intended to show the adequacy of quarters for purposes of claiming entitlement to BAQ. As the instructions for completing that form show, all quarters whose condition code is a "1" or "2" are to be grouped together under the heading of "usable" spaces. This lack of distinction between condition code "2" (substandard) housing and condition code "1" (adequate) housing make it apparent that, whatever significance the condition code may have in terms of engineering considerations or construction planning, it was not intended to serve as the criterion for distinguishing between adequate and inadequate housing for BAQ purposes.

But, the officers claim, even if the real estate records do not define adequacy, the space standards for the continental United States do, and these must be applied uniformly world-wide; the statute, they argue, does not permit geographic distinctions to be drawn in the regulations.

It is true that the grade, rank, or rating of each officer did not change when he was assigned to Thailand. However, the assignment patently changed his place of duty. It is not unreasonable to make a distinction between what is adequate (even in terms of space alone) for quarters in the tropics and what is suitable at the South Pole. It is no more unreasonable to take into account in considering adequacy not only the facts of climate but also the military, economic and social environment in the area where the officer is serving. The PACAF definition of 110 square feet (instead of 250 or 400 square feet) is not attacked because it is unreasonable, but merely because it is different. The discretion of the military to set different adequacy standards for housing for different areas and conditions was upheld in Lischak v. United States, 202 Ct. Cl. 598 (1973), the Court of Claims decision upon which the officers rely in attempting to establish the authority of AF Form 1430. Id. at 607.

Such geographic distinctions are not precluded by the doctrine of statutory construction, Expressio unius est exclusio alterius the expression of one excludes the other. Congress authorized the standards of adequacy to vary according to grade, rank, rating and number of dependents, but this did not imply an exclusion of all other criteria for determining what is adequate for a particular rank of officer.

Because the officers raise no other attack on the square foot standard, the issue of its validity was properly determined on motion for summary judgment. There were no material issues of fact to be resolved. The regulation drew a distinction within the power of the President or his delegates to make. Its validity need not depend upon the President's power as Commander-in-Chief or traditional judicial deference to military management of military affairs, See Gilligan v. Morgan, 413 U.S. 1, 93 S. Ct. 2440, 37 L. Ed. 2d 407 (1973); Orloff v. Willoughby, 345 U.S. 83, 73 S. Ct. 534, 97 L. Ed. 842 (1953). See also Warren, The Bill of Rights and the Military, 37 N.Y.U. L. Rev. 181 (1962).

However, for reasons set forth above, even the utmost deference to military judgment in armed forces affairs does not permit an air force commandant, or even the Chief Executive, to proclaim the arbitrary decision that anything the Air Force provides is by definition adequate.

For these reasons, we reverse as much of the judgment as dismisses the claims of the officers for BAQ after September 16, 1975. We affirm as much of the judgment as dismisses the claims of the officers who received 110 square feet of living space, exclusive of shared bathing and toilet facilities. To our mandate we add one caveat: the record does not permit us to determine and we express no opinion concerning whether any or all of the officers were in fact furnished adequate and appropriate quarters. That issue, like others, remains to be resolved in further proceedings consistent with this opinion.

REVERSED IN PART AND REMANDED.