Switkes v. United States

Nichols, Judge,

dissenting:

The court’s opinion is able and in some respects persuasive, but analysis discloses some flaws. The case is difficult. Switkes is not going to win any popularity contests, especially among those who were over draft age all these last ten years, hut his claim is entitled to objective consideration. Nor is it as 'brazen as, e.y., that asserted in Borys v. United States, 201 Ct. Cl. 597 (1973). The chutzpah championship we awarded in Weir v. United States, 200 Ct. Cl. 501 , 474 F. 2d 617 (1973), is not in danger of passing to a new holder.

Switkes may have been led to assert, and then give up, and then assert again, his claim to be a conscientious objector, by changes in the legal climate respecting the criteria for conscientious objection. See prevailing, concurring and dissenting opinions in Welsh v. United States, 398 U.S. 333 (1970).

At any rate, we have it on the authority of the United States District Court for the District of Columbia that not only was he a genuine conscientious objector as of 1971, but the contrary conclusion of the Selective Service Board was “without basis in fact,” as of 1967. The reader also needs to know that the two previous dismissals of plaintiff’s petitions, in California and New York, were on jurisdictional grounds. Those courts never got to the merits. We are legally forced to conclude, by collateral estoppel, and I do conclude, that Switkes’ erratic behavior over the years involved was the resultant of an erroneous Board decision working against a genuine conscientious objection to participation in all wars, such as the will of Congress has traditionally respected. A conscientious objection to service in a non-combat capacity, to using the physician’s skill to heal the victims of war, may be hard for some to understand, but let us not judge as to that.

The true issue before us is Switkes’ status during the period involved, whether on active military duty, authorized leave, or AWOL. The key to this issue is the correct interpretation of Switkes’ orders. The court revives the blunder, originally Commissioner White’s, that plaintiff was ordered to go to Travis Air Force Base in California to serve there somehow *176 or other, or just toe there maybe. The actual orders are in the record and never mention that base. It came into the case via another subordinate directive, telling plaintiff how he was to get to Vietnam. Travis was of no interest except as a way terminal; it is where the MATS planes depart for the Orient. The orders might just as well have told him to go 'to Seattle Airport and proceed to the Orient via commercial airline, and no doubt would have except that 'Government air transport was cheaper. In that event, this court would have had Switkes sit around Seattle Airport from July 20, 1970 to April 7,1971. The court is trying to hoist plaintiff with his or his counsel’s ambiguous stipulation, that he was ordered to Travis “for shipment” to Vietnam, but we axe not bomid 'by a stipulation when it is contrary to documents of uncontested authenticity, also in the record. Hegeman-Harris & Co. v. United States, 194 Ct. Cl. 574 , 440 F. 2d 1009 (1971). In life, Switkes’ alternatives were to go to Vietnam per his orders, or stay Where he was, and I proceed to explore them.

Defendant did not say plantiff had to go to Vietnam while the restraining orders were in effect or be AWOL. Not only has it not said so in this litigation, but it did not say so during the alleged AW'OL period when it had a chance to do so. The real significance of the Surgeon General’s letter the court quotes, is not as an official change or waiver of plaintiff’s orders but as an interpretation of them, the only contemporaneous one the plaintiff was ever able to obtain. It seems reasonable and in -accordance with our decisions that plaintiff should look to the Surgeon General, the man under whom he was to work, for such interpretation, and what he received should have weight with the court, though not binding. Thus in Gresham v. United States, 200 Ct. Cl. 97 , 470 F. 2d 542 (1972), we attached weight to a contemporaneous interpretation of a Government specification by two inspectors who concededly had no authority to change or waive it. In that case we rejected the notion that the specifications were ambiguous, but held that Gresham could reasonably believe, from the inspectors, and from prolonged apparent Government acquiescence in his own position, that somehow they were suspended. So here. The orders said nothing about what *177 ¡Switkes was to do in case of a restraining order. He asked for an interpretation. He got one, finally. The court calls it evasive, and perhaps it was. It tells Switkes, without ambiguity, that “you will comply with your original orders when the restraining order is dissolved.” (Emphasis supplied). It doesn’t tell him he has already been AWOL for months and had better surrender to the first MP he sees. I suggest the real difference between Gresham’s case and Switkes’ is that Gresham was not the object of this court’s disapproval.

The court seizes upon the four days that elapsed between •the expiration of Switkes’ leave and the issuance of the first restraining order, and says he was admittedly AWOL for those four days, and it taints all the days that followed. This is something the court thought up. Defendant never said it. It is understandable the court was not satisfied with the reasons that defendant actually adduced, to defeat the claim, but possibly defendant was embarrassed to use an argument so obviously in conflict with the Surgeon General’s letter. The court should be, too.

The judges, in course of discussing this difficult case, also raised a question concerning 37 U.S.C. § 502 (b) and 10 U.S.C. § 701 . Under the first, no pay accrues during a period of authorized leave after the statutory leave allowance is used up. By the second, leave accrues at 2y2 days per month up to 60 days. It appears Switkes had used up much of his leave accrued up to then, before the period here in dispute began. The pecuniary consequences of holding, in the instant case, that Switkes was on authorized leave during the periods in dispute would not differ much from those that will follow from holding he was AWOL. It appears to me that the Army, if it lacked the intestinal fortitude to ship Switkes to Vietnam, notwithstanding the restraining orders, and had no use for his services in the Continental United States, should have authorized him to take leave. It appears that we might regard that as done which ought to have been done (of. discussion in Anderson v. United States, 201 Ct. Cl. 660 (1973)), for it is inequitable that Switkes should be better off financially than one, otherwise similarly situated, who obtained au- *178 tbority to go on leave. Nevertheless, defendant (doubtless hoping for a useful precedent), rejected this compromise solution, and so sub silentio, does the court. I can only suppose that, for some reason unknown to me, this resolution is incorrect. If then, the choice for me is between full pay status for Switkes, and classifying him as a deserter, I have no difficulty.

Switkes, of course, rendered no useful service. However, the court does not deny that military pay results from the soldier’s status, not his actual service. Bell v. United States, 366 U.S. 393 (1961); Bates v. United States, 197 Ct. Cl. 35 , 453 F. 2d 1382 (1972); Dickenson v. United States, 163 Ct. Cl. 512 (1963). Since there is no cleavage between me and the majority, as to this, I need not belabor it further. The reader should know that the most obvious reason for denying this claim is not, legally, a valid one.

I entirely agree that an Army made up in whole or in part of persons behaving as Switkes did, would not survive its first battle. However, I deny that has any relevance to the present lawsuit. Switkes has already crossed his enemy’s goal line and won his game. So far as Switkes could wreck the Army, he has already done it. In this court, he is only trying for the extra point after his touchdown, and if he earns it, we should award it to him. Despite the court’s apparent belief, there is only money still involved, not national security.

It has always been accepted that a genuine conscientious objector will not be of much value if forced to serve, and it does not help to denounce him. Cases such as this are bound to occur if the three branches of Government fail to establish, maintain and apply, consistent and uniform standards of what is required for a valid claim of conscientious objection. Also, it would help if the Services, confronted as they must be with the likes of Switkes, could avoid being paralyzed by him, as by a cobra’s stare, and could at least find a way to answer his questions about his orders with clarity and firmness, not evasion, and with promptness instead of delay. Then they might be as successful against domestic Switkeses as they are against foreign enemies.

*179 I hope I will not give offense if I call this case an example of result — oriented jurisprudence, not meaning to impugn tíre good faith of the majority, or the effort it has expended on the case, obviously great, or its professional capacity. I mean it has allowed its feeling for the equities of the situation, feelings partly valid, partly mistaken, to influence unconsciously its resolution of a purely legal problem, the interpretation of Switkes’ orders, and lead it to a conclusion that it would regard as untenable under other circumstances. This we all do at times, I myself as often as anybody, I am sure. But I try not to.

I would award plaintiff pay for the period July 21, 1970, to April 9, 1971, with allowances and subject to whatever reduction for advances may be appropriate, on the basis of his having been on active duty, not on leave or AWOL, during that period.

ON PLAINTIFF’S PETITION POR REHEARING OR, ALTERNATIVELY, POR A NEW TRIAL

On September 28, 1973, the court issued the following order:

“On June 20,1973, the court held that plaintiff was absent without leave and not entitled to recover back pay for the period July 21,1970 to April 7,1971. This case comes before the court on plaintiff’s petition for rehearing or, alternatively, for a new trial. The court has determined that the facts on which plaintiff grounds his petition are not timely presented because plaintiff had sufficient notice prior to announcement of the court’s decision that such evidence was material. General Elec. Co. v. United States, 189 Ct. Cl. 116 , 416 F. 2d 1320 (1969).

“it is therefore ordered that plantiff’s petition for rehearing be denied and it is further ordered that plaintiff’s petition for a new trial be denied.”