# Switkes v. United States

> United States Court of Claims · June 20, 1973 · 480 F.2d 844

URL: https://www.frixlaw.com/law-library/cases/8594758

## Case

- **Full name:** DANIEL A. SWITKES v. United States
- **Court:** United States Court of Claims
- **Decided:** June 20, 1973
- **Citations:** 480 F.2d 844; 202 Ct. Cl. 162; 1973 U.S. Ct. Cl. LEXIS 68
- **Precedential status:** Published
- **Opinion:** Dissent by Nichols
- **Judges:** Bennett, Cowen, Davis, Kashiwa, Ktjnzig, Nichols, Skelton
- **Cited by:** 4 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8594758

## Opinion text

The dissent of Nichols, Judge, follows:
Nichols, Judge,
dissenting:
This case is peculiar in that the defendant, purportedly to resist plaintiff’s motion for reconsideration, has filed a *180 paper that utterly demolishes the basis of the decision in its favor.
The June 20,1973, decision of this case employs as keystone of its arch the proposition that plaintiff was AWOL from July 20,1970 to April 7,1971, though court restraining orders prohibited his being “shipped” to Vietnam where his orders required him to serve. It held he could and should have reported to Travis Air Force Base, California, as his orders allegedly directed him to first do. I pointed out in dissent, to no avail, that Travis was not even mentioned in the formal orders and was a mere terminal, just as if he had been directed to go to Seattle Airport and proceed to the orient by commercial air.
Now comes plaintiff and in support of his motion alleges that on October 29,1970, he did report to Travis. Defendant shows in response, by affidavit, that it was then the position of the Army that an officer on orders to Vietnam “could not be taken into custody at Travis Air Force Base, which Air Force Base was merely a point of debarkation and not an Army installation.” The Army had taken the position in litigation that the Eastern District of California, where Travis is, had no jurisdiction over Switkes, because he could not be “taken into military custody” there. The Air Force officials at Travis were now told that “Travis Air Force Base was not a station to which he [Switkes] could be assigned nor could the Army assume custody over him there.” In effect they told Switkes either to go to Vietnam as ordered, or to get lost.
I agree with the court in deploring the failure of counsel to furnish this information sooner. It would not have told me anything of relevance I did not already know, but would have been of inestimable help to me in persuading my colleagues of my position. I venture to speculate, had it been before us, Switkes might have won. Moreover, it is the new evidence from the Government side that would have been decisive. Switkes’s own self-serving affidavit might have been taken as not proving anything, and so far as he says he was told to “await orders” I do not myself believe in its truth.
*181 In General Electric Co. v. United States, 189 Ct. Cl. 116 , 416 F. 2d 1320 (1969), a majority held that defendant, after losing a contract case, came forward on its motion for reconsideration too late with, certain Department of Defense directives. I dissented, not solely because I had dissented from the decision for which reconsideration was sought, but also because I considered the directives stated matters of law, which it was always our duty to know. I did not think it was ever too late to correct a manifest error of law, which, uncorrected, would unsettle the law for everyone, parties and non-parties alike. The case is entirely different, and General Electric is m> precedent.
The major premise of General Electric is that a losing party cannot petition for rehearing to correct an error of fact or law it has itself caused, either by misfeasance or by non-feasance. Here, however, plaintiff cannot, I think, be blamed for the error. The questioning from the bench might have alerted both pai'ties that the court was baying down a false scent. As the event has now shown, it was defendant that had in its possession the evidence that would have returned the inquiry to its true course. Defendant has now virtually stipulated that we decided on mistaken beliefs of fact. I think such a stipulation should have effect as an admission, whenever made. Defendant in General Electric did not admit it had no case; it tried to show its case was even stronger than originally represented. That I think makes all the difference. The litigant who wishes to concede all or part of his adversary’s case, should be able to do so at any stage.
As a national court, we confront, probably oftener than other courts, the lawyer who is out of touch with facts in his client’s possession. He may be on either side. No doubt the strict limitation of reconsiderations is a necessary prophylactic policy, so far as we are concerned, even though we are punishing the client for the attorney’s ignorance. I do not think, even so, it is right to punish plaintiff for defendant’s neglect in supplying relevant information. Defendant’s lawyers are honorable men, and they would not wish to prevail by reason of the ignorance of the court and their own failure to set it right.
*182 I would allow the motion, vacate the previous judgment, and enter judgment for the plaintiff.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8594758. Public record. Not legal advice.