Petition for Writ of Certiorari — Kearney v. United States

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Supers Court af the United States

Ee Tra, 1058

899

~JOUN MOIKEARNEY, Petitioner,

— »¥

' THE UNITED STATES, Bespoaident oe

“PETITION FOR WRIT. OF CERFIORARI 7 TO THE

UNITED STATES COURT OF CLAIMS

ye B. GaiLesrik, .

Doth and PP Streets, No W.,

Washington 5, D.C.

Aiforiey tor Pefitioner

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. Opinions Below ........ eee TT eT ere 2 rrrre 1

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Questions Presented ... ate reer : er eer eres 2

a Statutes and a Provisions Involved te

Statement of the Case~..:...... Seatedateaied Peesews 3

Reasons for Granting the Writ. ................ io.

CL ererprrerrrrT. or eahes pikcass i os

Appendix Y are eee eT TTT TTT ee ee la

Appendix B ......... pen gansecen Duis slau veces

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CITATIONS

Cases:’

Bridges v. Wi ixon, 326 U S. 135, eT “eee 20.

Brown-v. United States, No. 50362, decided October .

8, 1958 and unreported .............60 0c 0c eens 22

Den ex dem Mirray v. Hoboken Land & Improve.

ment Go., 18 How 272, 280-281 ............ ee eee * 19

Egan v. U 'nited States, 158 F. Serre 2

‘Elchibegoff v. United States, 106 C. Mls. 341, 550 . 20

Federal Trade Commission v. National Lead Cc om-

pany, 352 U.S. 419, 427 2.6 eee e eee eee es 20

Genzales v. U nited States, 348 U.S. 407, 473 ....... 20

Interstate. Commerce Commission v. Lonisr ile &

Nashville RR, 227 Ui S. BROS ... conc ccgecaccess 19

Jay v. Boyd, SA USS. 345, 358 Re) See 18

Joint Anti Fascist Committee v. Metinaeh, 341.

RR AST Ee Ee. 19

Morgan v. United States, ‘304 C i Ee 18

Ohio Bell Telephone Co. v: Public Utilities Commis-

sion, 301 U.S. 292, 300-301 » Tre, ie Cidkennves 0

Peters v: ° Hobby, 349 U.S. 331, 344...... were re 17

Proper v. United States, 139 C. Cls. 541’... 2... ne o, 17,21

ii —_ Index Continued.

Biilcons c ommission v. Pac ‘ifie: Gas i Electric Co., J

30. l's Ss. 38s, 3493 oe ee ee A ee oe a ee a ee te a ae “19

Rer ¥. Justice s v4 Bodmin nT Te K. B. a2, ao Pe 23

38,7305: ASS A RRA 8 6,0 SRW Oe. EO mh ah ONE O26 6 84% 19. Se

V ‘ited States . 4 Abie ne aa So. Ry. Co., 265 U, :

Ce ee cw beW aed enh edaws ba been ie 19

- ‘ ° : _ .

STATUTES: - : its.

——_Seetion For the | Naval - Av iatiog Wiiiaeiaa Act of

140, 54 Stat. 864,° as amended, 34 U. S.C. i

» BAA(EV(A) - 2

Act of dune 17, 1948, ‘e bok : 1 = 3 Stat. — te

> aes 2

Misc ENT. ANEOU ne

( onstitysion of the United States, Fifth Amendment | 2

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IN THE |

Supreme | Court of the Anited. States :

Ocrosrr Term, 1958 ~

% ee Pray ae -

“? No. ee

JOHN “M. KEARNEY, Petitioner,

bile e ; . . Vv. ‘

| THE. UNITED STATES, Respondent . .

a a

PETITION. FOR WRIT. OF CERTIORARI TOTHE

_ UNITED. STATES COURT OF CLAIMS | |

* The petitioner, John M. Kearney, prays that a writ of

certiorari issue to the United States: Court of: Claims,

o's : 4 .

OPINIONS BELOW es

The Opinion of the Court of Claims dated December 4,

1957 is reported in.156 F. Supp. 928. The Order of the

Court overruling plaintiff's motion for xehearing is dated |

February 11, 1959." Both are printed in Appendix B,; infra.

KEx..)’’ aré to the Exhibits filed with the

its 1 to 3, inclusive, are three affidavits at-

tified transcript of Record.

, . : ae ?

_ . |) Refer

_ Record, exee

tached to the ¢

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JURISDICTION

The jurii isdliction of this ¢ ‘ourt is inv voked under 28 U.S. C.

1255 (1). ree , e . .

. avEsriogs | PRESENTED:

1. Whether the Secretary of the Navy, acting pursuant

to statute through his civilian Board for the Correction

‘of Naval Records, adopted procédures which requested and

obtained. three advisory opinions for ‘use by said Board

from Officers of the Naval Medical Corps ag to Petitioner’s

‘ineapacity for active duty for retirement purposes, two

of such. advisory opinions being seeret, and one of them

requested and received 52 days after the Hear ‘fre, does

--so in violation .of the Fifth Amendment to the Constitution?

_ Whether the Seeretary of the Navy, acting pursuant ©

to - statate through his civilian Board for the Correction ~

of Naval Records and Officers of the Navgl Medieval Corps, |

acted arbitrarily and bens tints '» the law

when he detetmined: Petitioner shysically fit for

release fron actixé duty on October 17, 19461

is |

sehen hain AND CONSTITUTIONAL PROVISIONS

_ INVOLVED

The cas¢é involves:

- (1) The Fifth: hinniititens to the Constitution of the

_ United States printed i in. Appendix A, infra, 1a.

’

(2) Section 4 of the Naval Aviation Personnel Act of

1940, 54 Stat. $64, as amended, 24 U.S.C. 855(¢), printed

in Appendix A, infra, 1a.

. (3) Aet of June 17, 1948, ¢. 497, § 1(b), 62 Stat: 477, as

amended, 34 U. S. C. 417, printed | in Appendix A, infra,

la.

(4) Seetion 207 of the Legislative Reorganization Act i

of 1946, as amended by the Aet of October 25, 195}, 65 Stat.

655, 5 U.S.C. 191(a), printed in Appeadix A, infra, 1a.

. °

. 2

a a “e

e : : 4 uy

ah STATEMENT OF THE CASE. a

Suceinetly stated, this case inv olves‘the denial of retire-

‘ mént benefits, under the most exasperating secret adminis-

trative procedures to Pétitioner, a pilot. in the Marine

Corps Reserve, which are due hiiti as a‘result of serious |

injuries: Sustained by him in an airplane erash during

World War II. (Italies supplied)

‘Petitioner enlisted in the U. S. Naval Reserve on Sep-

tember 2, 1942. ‘On the. following February 4, 1943, he

‘was called to. active duty, training as an av lation cacet

and ordered, to report for duty at the U. S. Navy -Pre-

Flight School at. Saint Mary’ s College, California. He

completed his cadet flight training and, on February 18,

1944,, was commissioned a 2nd Lieutenant in the U. 8.

Marine Corps Reserve. ;

On .June 13, 1945, Petitioner sustained serious injuri¢s

as a result of a plane crash while the pilot of a plane on

a training flight with an aviation cadet.. These injuries

were as follows: (1) Fracture of the left parietal region

of the skull. (2) Fracture simple, right mandible (jaw).

(3) Dislocation, carpo-metacarpal joint, right wrist. Peti-.

tioner was flown from the ‘scene of the crash, seriously

injured, to the U. S. Naval Air Station, Memphis, Ter-

nessee where he remained until August 18, 1945 on which

- date he was returned to flight duty at the Naval Air Sta-

’ tion.at Memphis. He immediately failed his flight physical.

He was returned to the Naval Hospital where he remained

until September 27, 1945 ony which date he-was again -

. returned tg the Naval Air Station for duty and was again —

promptly grounded. On December 27, 1945, Petitionér

appeared before a Board of Medical Survey at the. Naval

*. Air Station. It recommended to the Bureau of Medicine

and Surgery, Washington, D. C., that Petitioner be trans-

ferred to the Maxillo-Facial Center, U. S..Naval Hospital,

. Philadelphia, Pennsylvania for treatment. Upon the ap-

. , proval of, this recommendation, Petitioner arrived at the

. : a as . ¢ ” i :

said Hospital on Febrefary 14,-1946. He was promoted to _.-

-a First Lieutenant on February 16, 1946. He .remained

there until May 28, 1946 on which date he was given

medical recuperative leave of 30 days. ‘Upon the expiration

of-this leave, his orders took him to the Naval Air Station,

San Dicgo,: California, where, on-September 10, 1946, he

. was released frém active duty as. physically fit, without

consideration being given to his right to retired pay. On

the following October 17, 1946, he was Honorably .dis-

charged from the Marine: Corps. Reserve.

Petitioner resigned his Reserve Commission in the a

* Marine Corps on November 7, 1948. Soon thereafter, he

‘ * applied for a Reserve Commission in the Air Force, and

upon being commissioned a Captain therein, he was invol-

untarily called to active duty on November °22, 1948. He

served in the Air Force until July 18, 1950, at which time

he was given an Honorable discharge. After the airplane:

* erash on June 13,1945, plaintiff at no time did any solo

flying. While.in the Air Force, he was a. Weather Officer :

and later an Air Intelligence’ Officer.

o>:

After Petitioner was Honorably discharged from the.

Marine Corps-en October 17, 1946, the Veteran's. Adminis- *

tasted: Eéceafter referred te to as the VA, gave him disability

— ratings from 40% to 70%. The latter 70%: rating. being

dated January 18, 1952, but an earlier disability rating.

of 50%_was tnade retroactive to October ‘1, 1948. °(Ex. 32).

On July 8, 1952, Petitioner fled Petition in the Board

for Correction of Naval Records*¥hereinafter referred to

as the BCNR, to correct his record to show that he was.”

retired for physical disability upon -his release from active

duty iri the Marine Corps on October'T7, 1946.. Admittedly,

“the Secretary. of the Navy had the yewer to’ do so ‘‘acting

through boards of civilian officers and employees’’, as pro-

vided in Section 207 (a) of the Legislative Reorganization

“Act of 1946, as amended. ?

sie

rea i

A long time -prior to: Petitioner's hearing hiéfore the

BCNR which’ was opened and: conéluded on December 21,

1953. (Ex. 7), the BCNR, adopted certain procedures, which. .

were in flagrant. violation of Section _207(a), as well as ‘in

defiance of. well- recognized clementaty rules governing all ;

‘adversary proceedings. Two of these procedures were

‘- secret and one of them.even occurred a long time after the

hearing. In these and other respects, the actions. of the -

Secretary | of the Navy were patently arbitrary, capricious,

. and ‘contrary to: law. Petitioner’s substantial rights were.

without the normal’ safeguards. (Italics supplied)

On June 17,1953, the BCNR wrote the President of the

Physical Disability Appeal Board ( Marine Corps); for an—

advisory opinion ‘as te whether or ‘not Petitioner was:

incapacitated for active duty when’ released from active

: _duty in the Marine Corps. It would appear to be.a ground:

‘for considerable astonishment, that this Board was -re-

quired to inform BCNR on July 20, 1953 that since Peti-

tioner was released from. active duty. prior to: the passage

‘of the Career Compensation Act of 1949, **. . . referral

of this case to the Physical Disability Appeal Board Jis - °

not in accordance with the: approved sianohesabe * (ie

. 4, -p. 1, para. 3)

On July: 20,: 1953, ‘BCNR wrote the Piosidont,. Naval -

‘Retiring Hiview ‘Board (Marine Corps), for an advisory

opinion as to Petitioner’s fitness for active duty on October

17, 1946. ‘On’ July 28, 1953, the said Board found that ~

‘Petitioner was fit for duty. at the time of his release from

‘aetive duty. All five members’ of “the Board ‘were com-

migsioned officers, three i in the Marine Corps, non-tnedical

officers; and two i in the U. S. Navy, Medical Corps. (Ex. 5)

Petitioner’s then Counsel objected to the consideration of ..;

this advi isory: opinion by BCNR. The objection was noted.

‘ No attempt was mase to discover w hetherthe BCNR had |

seen this advisory. opinion long prior to or during: the .

hearing. The grounds of the objection ‘were specific in

io ‘the transeript of: the hearing with emphasis (avon the fact

~ another advisory opinion on petitioner’s fitness for active

. -

- shall be-civilians. (Ex. 7, p.J) It

7 6

- Section 207(a) required. that the persOfpel of ttte Board’

also: urged that

the. Board was’ surly and prejudiced, and . this was not

withott cause; (Ex. 7, p, 6) ee re

On October. 15, 1953, BCNR, apparently im‘ need of, still

that the Board consisted of ey nnel whereas

;

duty, made a third ‘request upom a new ‘authority, ‘the . 7

Chief, Bureau of. Medici ine. and Surgery,,. for such an opin-

Bureau, rendet®d gueh an- opinion., In the proceedings

below, on Motion for a Rehearing, Petitionet’s former

Counsel ‘Di te L.,Jernberg, Esq., made an’ caffiday it, dated

December 1, 1958; in which he stated that ‘the hes “i

‘récollection of having previously seen this -said letter’? of.

_ Noverhber 6, 1953. (Ex. 2, p.° °3) Petitioner’s affidavit

dated’ December 2; 1958 stated . ‘that he ‘saw ‘the ‘letter

of November 6, 1953. fox, the first time ‘on November 14,

1958 when present Counsel showed it to kim. (Ex. 1, p. 2)

We, can find no reference to itein' the transcript of ‘the

~ Hearing. As prev iously shown, Petitionver’s former Coun- —

* sel ‘abjected to the: advi isory opiticn, of the Naval Retiring .

3. Review Board, so it is unt inkable that he would not have

objected to the considera ion. of this one if it had been

made available to him either prior to or during the Hear:

ing. This Pugh advisory opinion was the first of two ”

_seeret advisory opinions. It w

erally so highly

prejudgrial, as to provide a suffi cause for the then

*’ Counsel for Petitioner, had ‘he seen it, fo urge that -Peti-

tioner abandon. his application for relief/before the BCNRY.

This view is taken upon the premise that BCNR had seen

“jon. On Novéiaber 6,°1953, H. L. Pugh, Chief. of such °

. 3 either: before or at the Hearing, and human frailities a

being what they are, Petitioner. could entertain no: nope

_ of a fair and inipartial Hearing.’ ne -

- Petitioner's -Hearing before the RNR was convened

and concluded on December 2s 1953. Dy. Marvi in Fuchs, —

°F .

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AB, Oras

7 28

. and stated therein, as follows: (Ex. 8):

Sar

- ec

‘, Internist, ‘Diplomate of the American Board of Internal °

Medicing; listructor of Medicine at the George Washington

University: College. of Medicine, and” Associate Diregter

of the Headache. C linie at the George Ww ashington Uniyer-

sity Hospital, was called as a witness for Petitioner and

testified as did the Petitioner... (Ex. € » 12-22) No

er testimony jas offezed. .The det a the BCNR

* ‘dated April 954 was that ‘no change, correction, or—

modification. of" the Naval Records of John M. Kearney

“4

. is warranted.” er jak oe

‘As ‘the fleniing eine one Commander Harvey FE.

Reitz, Medieal, Carps, me ‘Navy,. entered the Mearing /

“p'Room ‘and took .a, seat next: to Mr. DeWald, Chr., BCNR.

The then Counsel for Petitioner objected to Commander

Reitz, participatyfig in the,Hearing on the grounds that.

he wasa Naval Officer, was disqualified from sitting on °

. the. OR since ander’ the .law it was to. be composed

of civiligns, and that if BUNR required - the assistance of

_ Dr. Reitz that he be called’as a witness. The BCNR went

_ into’ executive ‘session ‘and when it convened announces

that it had asked Dr. Reita to he: excused. (EX. 7, pp. 3-4)

Fifty-two days «after the: ‘Hearing, on February 11,_.1954,

BCNR wrote to Chief, Bureau of: Medicine ands ‘Surgery.

~ ) Dr. Maevin' Fuchs, M.D. appeared as ag wit

‘for subject officer and testified as_ to; , the. technical

» aspects of Petitioner's condition. oe is, therefore

"requested thit there -be.. furnished an #xplanatory

memorandum which will assist the Boarchan ev aluating .

‘ the: medical evidence presented. A :* fog

66(9) Th order that final action“may be expedited in

this case, it is requested. that your reply be furnished

as soon as possible.” (Italics supplied)

It is no mere éoincidence that: ‘Potitioner was refereed to

Drs ‘Fuchs by Dr. games W. Watts, cele! brated brain’ sur-

geon and Proft of Neur ology ” the (feorge Washington

University Medical School, who, like Dr. Fuchs, made the

same diagnosis that, Petitioner was suffering from. post-

traumatic headaches, due to a yerious head injury, which

the VA had discovered was a skull fracture, (Ex. 7, p. 14)

(Ex, 30, p47) and (Kx. 30, p. 18).

On February 24, 1954,. the: Chief, Bureau of Medicine ~ -

and Surgery, r rendered an advisory opinion to the BCNR

upon ‘the testimony of Dr. Fuchs. (Ex. 9) Dale L. Jern--

berg, Esq:, then Counsel for Petitioner made an affidavit

in support of Petitioner’s motion for Rehearing in the

Court bélow. As to this letter of we 24, 1954, he

staged : (Ex. ra p: 2)

‘that on ¢ tpril, 20, 1154, he. went to the Board for

Correction of Nayal Records .to make a copy of the

decision of the Board which he did in shorthand notes

and placed it in plaintiff's file; that he saw for the first

time a letter dated Febr uary 24, 1954, from the Chief,

Bureau of Medicine and Surgery, to the Chairman of

‘ the Board for Correction of Naval Records; thf he

made a copy of said letter in. sherthand notes and

placed it in Pintift's file; ...'’ (Italies supplied)

“Om August 8, 1958, while in a conference with Petitioner;

it was observed .that thé initials HER appeared in. the -

upper Prt coxner of the said advisory opinion of . Feb-

ruary 24, 1954. . It was then considered possible that

these initials: might be the initials of- Commander Harvey

Reitz, who had been’ preyiously disqualified from sitting

. on the BCNR at, the Hearing on December’21, 1953. It

is interesting to note that the transcript of the Hearing .

(Ex. 7, pp. 3, 4) before the BCNR refers to Che person

« Reitz only as Cominandér Harvey Reitz or Dr. Reitz

omitting an¥*middle initial he may have had. On August

12, 1958, the Navy Department advised Counsel ‘that the

full name of Commander Reitz, who, in the meantime, had

heen pfomoted to Captain, was Harvey, Edward Rettre*

Medical Corps. USN. Later, on October 10, 1958; Counsel.

personally examined a, Navy Register dated January ‘1,

/ ‘ a

1958. It listed Captain Harvey Badward Reitz, MC, USN,

as the only medical officer of the rank of Captain with the

initials HER. Further, both Mr, Jernberg and Petitioner

informed Counsel theft they did nog know that the initials

of Captain Reitz were on the letter of February 24, 1954.

_ (Ex..9) Petitioner in.the Court below presented this as”

newly discovered evidence in support of his Motion for

Rehearing, and Respondent beléw took no exeeptions to

any of the facts recited herein. However, this advisory

opinion of February 24, 1954, as above deseribed by Mr.

Jernberg in his affidavit; was, so he states, seen by him,

fon April 30, 1954... for the first-time.’’ The’ decision

of the BCNR is dated April 8, 1954 with the ébvious result

that the first knowledge Mr. Jernberg had of the existence

_ of such an advisory opinion was 22 days after BCNR had

decided Petitioner’s ease. (Ex 2) Unquestionably, this

advisory opinion, like the advisory opinion by H. L. Pugh, °

dated November 6, 1953, was a secret advisory opinion.

’ The Pagh advisory opinion disposes of the skull fracture

sustained by Vetitioner by omitting any reference to it -

and substitutes im lieu thereof the injuries of, ‘‘multiple

contusions, lacerations and abrasions.”’ (Ex. 6, p. 1) “No

claim has been made at any stage of the proceedings that

such injuries are even compensable, much less of such sub-

stance as would entitle Petitioner to retired pay. This

evasive approach to the skull fracture iw beyond all of our

comprehension’ for the reason that the opinion itself shows

by ‘‘Enel (4)** that the ‘* Veterans Administration Medical

- records’, were before Dr. Pugh. * Such ‘medical records

show that the VA took an- X-ray of Petitioner's skull on

July 23, 1947 (Ex. 20) and that such X- ray shows Peti-

. tioner had a skull “fracture. (Ex. 21) This is the only

X-ray taken of Petitioner's skull, and it is not without’

significance to observe that at no time or place has the -

Navy Medical Staff made’ any attempt to explain. why the

Navy failed to X-ray Petitioner's skull, though*warned to

do so by Lieutenant Biggs, who was the first medical officer

Aer . | . 10

to examine Petitioner immediately - following the plane

erash on June 13, 1945. (Kx. 13, p..3) However, Peti-,

tioner did not know that the above X-ray taken. by the _

VA had shown‘ him t6 have a siall fracture until, after

his rélease from the Air Foree in 1950. (Ex. 7, p. 43) .

(ix. By p. | .

The Pugh seer ret advisory ‘opinion states as to tmedien!

examination of Petitioner. dated June 9, 1950 as follows:

-. (Ex. 6, p. 3)

“On June 9, 1950 it appears ‘that the heniliihen he-

came freque at but pertinent at this point is the facet

that he was under an investigation by the U. S. Air

Foree for allegedly falsifying certain records, which

is stress of a sufficient degree to give rise tos so-called

tension headaches.’’

But, unfortunately, the seeret advisory opinion did. not

recite all the material parts of the report of this medical

examination and the highly significant part of the omission,

when considered in light of what ‘was inserted in lieu

thereof, gives rise to a belief such might have been done

by deliberate design: It could not escape injuring, Peti---—

tioner, a disabled veteran. It further assigned one Cause :

of the headaches, that is ‘‘under an investigation by the

U.S: Air Force for-allegedly falsifying certain records,’’

whereas the. full report of the medical examination cited

quite another, namely, ‘“accident (airplane crash) in 1945.’

. Tronically, tie full report of this medical examination of -

June 9, 1950 appeared in Examiner Pons’ brief (Ex. 30,

p. 12) but it could neither be of benefit to Petitioner nor.

serve any useful purpose as to. what the Pugh advisory

opinion had to say about Petitioner, for the simple réason *

Petitioner did not know of. the secret Pugh advisory

opinion, 1 the area of pure conjecture, could either Dr.

Pugh of more. particularly Examiner. Pons have known

' that, due to the aforesaid method that, was. adopted, Peti-

‘tioner was helpless. One: cannot refute something which

La ae La aes 2 ae

is kept a seeret from him: The full medical examination,

of June 9, 1950 stated as follows: - (Ex. 80, p. 12)

‘Headaches for the past s¢veral nios, wetting worse.

In accident in 1945 and pad head ifijury with same

type of headaches. Tleadaches generalized, gets: nau-

_seous with it, and at times vomited, Vision.is blurred

w vhen headaches veeur.’

—

This report veulied that ons to headaches caused by a

head injury sustained in an accident in 1945, Petitioner

suffered with nausea, vomiting and blurred vision. “The

Pugh opinion ignoring alk of these’ consequepees gave none

flowing from the Qéadaches except stress. It. also. over-

looked a little matter of. arty explanation of what caused

the headaches from the time of the airplane crash, on

June 13, 1945, to*the date of the medical report of June

9, 1950,-as well‘as the reason the Air Force waited without

taking any action, then lastly, without taking any action

- gave Petitioner as much gs any officer, with a good record,

‘ean hope to réeeive, an Honorable Discharge. As to the

statement that. the Petitioner ‘‘was under an investigation -

by the U. S. Air Force for .allegédly falsifying certain

records,’’ as we told: the Court below, Petitioner’s per- -

sonnel record had been transferred from the Marine Corps

to the Air Force shortly .prior to the time he entered

the Ai; Turee on November 22, 48. Nothing whatsoever

was done about the inaccuracy of these records. until soon

after February 28, 1950, However, on February 28, 1950,

about 16 months after the personnel records had gone to

the Air Force, Petitioner was ordered to. instruet his

enlisted personnel to stop talking about some pornographic

films which had heen shown the previous night/in the Old

Hospitality Hall in the Christian Heurich Brewery in

Georgetown. Plaintiff refused to do so and soon there-

after the accuracy of these-persenne-reeords owas revived.

Nevertheless, on July 18, 1950, the Air Forge gave Peti-

_tioner an Honorable Discharge. The insertion of this

| material. in a seeret: advisory medical opinion was inde-

Ww?

fensible. Beyond péeradventure, any expeFienced physician

and/or Naval Officer with modest rank should know that

its inclusion in the opinion Was SO. ‘grossly. erroneous" as

to give-seme groumt for one to imply bad faith. Since

Petitioner was not given a physical examination .at any

time by any of these. medical authorities, the Pugh- ad-

visoty opinion went far beyond the Petitioner's medical

records, none of which made any reference to his Marine

Corps personnel records. The BCNR or jts. Exaniiner

Pons owed Petitiéner the duty of deleting it from the

secret advisory opinion. Plainly, the Pugh seeret ad-

visory opinion in its reference to the report of the medical

examination of June 9, 1950, changed its whole meaning

by acts of commissions as well as omission. Obviously,

the changed version Wf this report was highly prejudicial.’

The Reitz advisory, opinion with no showing of qualifi-

cations as an expert in the area of skull fragtures, deals

only with Pétitioner’s skull fracture. He. placer chief

reliance upon an excerpt in a textbook which quotes from

another’ texthook. The texthook quoted recited that the

authors: found that between one-third and one-half of all

persons who injure their heads sufficiently to. warrant

‘hospitalization develop chronie post-traumatic headaches.

They studied 63 such patients, all of whom were known -

to fiave hee ichymatous (brain) hemorrhage

at the time of sinewretive ** Plainly, Petitioner’s case.

is outside the rile Sfthe 63 cases for Dr. Fuchs, who,

unlike Dr. Reitz, had repeatedly examined him, testified®

that*his case did involve a ‘‘bleeding process’’; (Ex. 7,

p. 21) and that such had to do with the small capillaries

(Ex. 7, p. 19), furthv deseribing the mild and extreme

consequences of such bleeding. Both the, Pugh and Reitz

opinions assigned several canses for the headaches other

than a fracture of the skull, and these inelnded everything

from a‘‘tsore throat”. to ‘*secondary gain.’’ The third

paragraph of the Reitz opinion misquotes Dr. Fuchs’

testimony. at the Hearing. (Ex. 7, ps 21) The fourth

paragraph speaks of the unliketihood of a -post-traumatic

syndrome, due to organic brain changes, developing 5 or

6 years aftet an injury. We can find not @whit of vie

dence that any such position has been taken by cither

Dr. Fuchs or Dr, Watts.

The decision of the BONR merely translatedthe fracture

of the skull into the words, ‘tor headac his” , henee neo

disability. The decision stated : (Ex. 10, p. 48 and t)

““(s) That Petitioner did suffer some Menitetion’ of

motion of his wrist and a fractured mandible with

resulting malocclusion.”

‘*(t) That the evidence presented 1A Board does

not establish that the defects describeRin (s) above,

or Petitione re headaches, imeapacitatec him to per-

-form the duties of hiserank.’* (Italies siipplied)

These advisory opinions.and the décision of BUCNR com-

pletely ignore the expert opinions of both Dr. Fuchs and

more particularly Dr. James W Watts. (Ex. 10, p. 2,

- para. 5). (Ex. 30, Pp. 17-18) ° The authors /of beth of

these advisory opinions would have to have much, much

more than ix contained in then to diseredit Dr. Watts.

But the decision of the BCNR (Ex. 10, p. 44) does state

‘that the VA on Mareh: 10, 1952, assigned Petitioner a

combined disability rating of 70%, and included in’ the

injuries mentioned ave following words, *‘encephalapathy,

traumatic, following - depressed fracture, left parietal

bone”? But what the BCNR failed to inelude, and they

knew it, is that the first evaluation of Petitioner's disability

was. 50% which inchyjed the fracture of the mandible and”

the dislocation of the meta-carpal bones of the right wrist

and such disability of 50% was made retroactive to Oe--

tober 1, 1948. This was almosxi two months before the

Air Foree ealled Petitioner to active duty. A mere glance

at his medieal records would then have disclosed the above

two serious injuries, and the fraéture of the skull asx

established by the X-ray taken by the VA. In these eir-

: Ad

cumstances, the Air Force would not have called him to

active duty. Such is also true if Navy Medicil had taken |

an X-ray of his skull at any time while he was in the

Marine Corps. : my if “

The Pugh advisory opinion. surprisingly refers to the |

loss of motion of the right wrist® at ‘only 10% and a

~ “*diminished grip strength,” (Ex. 6, p.2). As to)the j injury

of the fractured right - mandible, a quotation .is, faken from

a medical examfnation dated May 22, 1946, as follows:

‘apparently continuation of muscle exercixes is clear-

ing up the slight residual tendeney for Aleviatién of

the mandible. -The maloceulsion and afsociated dis-

comfort no longer exists.’’ 2

In light of the substance of the following three examina-

tions, it would appear that the examination of May 22, 1946

“*was superficial in the extreme.*’ The decision of the

BCNR states: (Ex. 10, ;. 4s) ‘That Petitioner did syffer

some limitation ‘of’ motion of: hie right wrist and a frac- —

tured mandible with ‘resulting milocelusion.’’ On Feb-

ruary 7; 1951,, Commander Dunn, MC’, USN, fixed - the

loss of all four. forms of motions of the wrist’ as varying

from 28% to 40%, with loss of grip strength and pinch -

“strength at 50% and 90% loss of. ‘claw strength. (Ex. 27)

Earlier, on July 17, 1950, Major Webb, MC, Air Force;

fixed the loss of mofion of the wrist at 410%. (Ex. 25)

~ At the request of the VA, Colonel. Caldwell, MC, USA,

ne pnehtite, ™

. . .

i Fa, ‘i 2 ° e.

“

‘examined Petitioner. on) November 22, 1950. He found

that his ‘‘functional (masticaiory efficiency) disability is

10% without the cid of his occlusal guide plane. With it

he gains But little benefit. His facial asymmentry and

_disfigurementemay be evaluated in approximately the same

manner.’’ (Ex. 26) All of the Naval Medical Staffs were

silent as to any explanation why Petitioner was required

to wear a silvet splint in ‘the mouth for 5 years when.

Colonel Caldwell stated that such an appliance is ‘‘a treat-

ment appliance and is not intended for use over more than

- -

- 15

6 months to 1 year period.’?. Some person should have,

told the Navy Medical Staff that again the VA, canie to

Petitioner’s rescue, as it did, j in the matter of the X-ray °

‘of the skull, and provided him with a prosthesis in his

mouth made of molybdenum. A Captain MacMillan, Medi-

- eal Officer, Air Forcefexamined Petitioner at Bolling Field

‘Hospital on March 19, 1949, and saigl of him: (Ex. 22, p. 2)’

“*Slimly built WO (weather officer y completily coop.

unde rstating his complaiits.”’ \ (Italics: in text) .

Dr. Pugh, De. Reitz and BCNR should have seen this one,

Petitioner’s case below was decided upon Defendant's

motion for Summary Judgment, Plaintiff having. filed only

opposition to it rather than a Cross Motion for Summary

Judgment. ee ee no evidence —

to support it. Petifioner’s Motion for Rehearing. had the

35 Exhibits, which are filed herein, in support of the

‘Motion, the Reitz secret -advisory opinion being ‘newly

» discovered evidence’’, and the other Exhibits supporting

the contention that it was a ‘‘mistake’’ or ‘‘imadvertence’’

under Rule 54(b).to have omitted all this documentary

a, idence.

"The Court of Claims erred in overruling Pétitioner’s

Motion for Rehearing. Such action was in conflict with

the decision of the Court in ra v. United States, 139

C. Cls. 511. .

REASONS FOR GRANTING THE WRIT

This case. presents highly important questions in “the

administ rafion of justice as it affects the denial of rights .

to retirement benefits, chietly®to Reserve officers upon

their release from active duty, as determined before civilian

Boards for correction of errors” or removal of injustices

as have been established in the four Afmed Services

under the provisions of Section 207(a) of the Legislative

Reorganization Act of 1946, as amended.

—

f ,

ee 16 ie Pd

- Petitioner’s right to. correct his record to show that:

he was rétired for physical disability on October 17, 1946,

was before the Secretary of the Navy, acting. through his:

Boat for the Correction of Naval Records, pursuant to,

Section 207(a) -of “the Legislative Reorganization Act. of .

1946, as amendéd. Section 207(a) provides in’, part: .

‘“‘The Secretaries of the Army, Navy, and the Air

Force and the Seeretary of the Fre: isury (with respect

to the Coast Guard), prt gy ely, under proeédures

‘ set up by them, and,ac tg through boards of etvilian

officers, or employecs * are authorized to correct.

any military or naval record where in their judgment

Such action is necessary to correct an error or remove

an injustice ss States! (italies supplied)

W hile Section 207 (a) authorized the Seeretaries of the

Borge an error or remove an injustice, ’* these could

ont we done by the Secretary concerned, ‘‘acting through ,

boa¥ds of civilian officers, or em ployee of their respective

“Departments.” ‘ (Italies.supplied) Clearly, this clear and

concise language ruled ont other types of} personnel and

the use of the descriptive language of “‘eivilian officers

or employees’’ was a mandate to. the military personnel

that they shall exercise no ‘‘jurisdiction’*’ over matters

coming before BCNR. More. significantly, they shall have

no ‘‘authority to deterinine theanerits of each case. ” Both

the ‘‘jurisdiction’’ and the ‘‘authority to déetermine”’ was.

‘‘reserved”” to such Beards. (Italics supplied) Such

_ admonitions, are confirmed in the legislative history of

“section 207(a). The House Report 449, 82nd Congress,

lst Session, p. 3, provides: a"

“The Committee takes the position that the ,

having established Boards tor the Correction of\Mili-

tary Records within each of the service departments,

the jurisdiction of such Boords as well.as the authority «

to deter srmine the merits: of cach particular case shold

ae es ae Ie.

be reserved to such Booerds, to the exclusion. of. the

Comptroller General.’’ (Italies «supplied)

Petitioner contends that the Seeretary of the Navy, acting

through his BCNR, could not validly, under section 207(a),:

refer the only isste in his case, namely, his physical jnea- |

pacity’ for active duty to officers of the Naval Medical

Corps for writter advisory: opinions, Even if the Seere-

tary could obtain such advisory opinions from offieers of

the Naval Medical Corps, then he could not do so in the

-manner in which he did so, ‘that is, obtain two secret

advisory opinions from the ‘Naval Medical: Officers, one

_ of which was furnished BCNR on February 24, 1954 which

was 52 days after the Hearmg before BCNR on December

. 1953. (The decision“‘of the BCNR was ath

954.) As emphasized heretofore, supra, 8, the

pee of this advisory opinion did not come to light

until April 30, 1954, which was the one of Dr. Reitz, who

was the same person who was disqualified from sitting on.

» the BCNR at the Hearing. This feature of the admims-

. -trative proceeding below, when viewed particularly i in the.

licht of the text of these secret advisory opinions may be

appropriately described as ‘‘administrative lawlessness,’

. Peters v. Hobby, 349. U. 'S. 331,. 345.

The jurisdiction of the Court Kelow to hear and deter--

_mine an. officer’s clainy for disability retired pay,. such. as

here presented under Section, 207(a), was invoked ‘i

Proper v. United States, 139 C. Cls. 511.. Defendant below

did not seék certiorari. The question presented in the.

Proper ease, aupra, was in a different.form than ‘presented

herein. Proper's incapacity for active duty had been ‘

approved by the Army, Board for correction of records.

Before, it reached the Secretary e Army for approv al,

Brigadier General EK. C. MeNef® USA (Ret.) Special

Assistant, Office Secretary of the Army, addressed a memo-

4 “randum to the Assistant Secretary. recommending denial

of relief to Proper sinee he did net heeome iticapaeitated

‘ppretee Crrene dons evans aM

» aw

18 . gE ‘ " j :

until after he left the’ service in 1953. The Secretary

adopted the recommendation. However, in the instant case, »

all 3 advisory opinions, two of .them secret, went to

BCNR for their consideration rather ‘than going to the

Secretary after the BCNR decision. (Italics: supplied)

_#The Court below réversed.. However, the Court, in giving

the one and only son for Congress removing the military |

from participafion ih these matters, which brings out in

the open the protection of- fundamental nguee particularly

‘of Reserve officers, stated: 5 -

‘*Since the. errors or injustices which. might require

-. correction were originally made by the military, Con-

gress made it manifest: that the correction of those

errors and injuries was-to be in the: hands of ceiviians.’’

(Italies- supplied) |

These seerét adv isort opinions rendered by military officers

circumvented Section 207(a) and constituted a*technique

for proof of Petitioner’s disability which is ‘procedurally °

indefensible. As this Court said in Jay v. Boyd, 351 U.S.

345, 358, “** * * where there is no compelling reason to

refuse to disclose the basis of a denial of an application

[for the suspension of’ deportation], the statute doés not

contemplate arbitrary seerecy. Here no statutory inter-

pretation of Section 207 (a). could have supported the

In Moxgan v. United -Stafes,- 304 TS. 1; 22, the Secretary:

of Agr ulture accepted and made as hie own the findings .

whick had been prepared by the active prosecutors for the

Government, after an parte diseussion with them and

without according is Meas opportunity to the re-

spondents in the proceedings to know the claims thus pre-

sentéd and to contest them. But this Court considered that

sych procedure “is more than an irregularity ; it is a vital

defeet.’’ Here BCNR accepted the advisory opinions and

adopted the conclusions reached: in each of them‘as its

decisions of April 8, 1954, and’ like the instant case, the .

findings were kept aw ay f rom the respondenty The Court

ww *

19 So es

in speaking of the duties the multiplying agenc’s owe

_ in our complex. society~stated that ‘they must accredit: .

... themselves by acting in accordance with cherished Judicial |

> traditions embodying the basic concepts of fair play.”’ |

It was not enough that the advisory opinions were secret.

Each one of the two- seeret advisory opinions ignored -

Petitioner’s skull’ fracture: and medical reports which

clearly showed him. to be incapacitated’ for active. duty.

There was not a whit of ewdence of ‘‘fair play’? in either

of the two secret advisory opinions. This Court recited

_a party of a fair trial in: which, his rights ean beasserted

or defended. Interstate Commerce Commission v. Louts- —

ville d Nas. ‘le RR, 227 U.S: 88, 93:. First, all the parties :

must be fully apprised of the evidence Submitted or to ” re

be: considered. An opportunity must be given to cross = 43)

examine witnesses, to imspect’ documents, and to offer evi-

dence in explanation or rebuttal. In no other way can.

a party maintain his rights to make its’ defense. All of ° -.

these accepted safeguards were sacking in. the matter of

_these secret advisory opipions, and such were highky prej-

icial to Petitioner. St. Joseph Stock Yard Co. v. United

States,.298 U. S. 38, 73; United Stgtes’ v. Abilene and So: |

‘Ry. Co., 265,U, 8. 274, 298. On the administrative procced- |

ings below the ‘Hearing was neithor a ‘fair’? nor an ‘‘open”’ :.

one, these being ‘‘rudiments of fair play assured to every

litigant by the Federal Constitution as -minimal require- +

ments’. (Italies supplied) ye eo lgrevae v. Pacific *

Gas & Electric Co., 302 U. §. g88, 393; Joint Anti Fascist se

ex dem Murray v. Hoboken. Land and Iniprovement Co,,-

18 How 272, 280-281. Again, a& here, ‘‘information [was],

_ secretly edllected _ never yet disclosed, ” and this

‘other raat gene! the ev Ubdamwail feabmittea? =

ground for refunding previously collected

hem" i : * Pai: é reece 2. .

Fe ee ee - -

‘ s

z ‘ : ¥ e a , v ‘

& g %e ‘

~ é a

ca $ r +S «

a i P ‘ of

i @ ’ Me 4 * §

- a « ‘ ne Ai Pe Da

owe oh \ ‘. “ ‘ )

\s.

Court state: :

bs is not the fair ear eaadntial to

due process. ’” 0-Bell Telephone’ Co. v. Publie Utilities

- Commission, 301 _U. S. 292, 300-301; ‘Gonzales v. U nited"

States, 348 U.S. 407, 413; Bridges v. Wixon, 326 U. S.

135, 154; Federal Trade Commissiori v. National Lea? |

Co., 23 U. 4, WF - a8

When a, small] part of the record of BCNR is examined,

- no doubt ean reasonably exist but that the Reitz .seeret ;

‘advisory. opinion was substituted for the decision of BCNR

on Petitioner's skull fracture or it seriously influenced *

BCNR in the eevision it reached. On February 11, 1954,

BCNR requested Bureau of Mediciné and Stirgery ‘to

furnish an ex planatory memorandum “upon ‘the oral. tes-

timony of Dr: Fuchs.’’ It then admitted that such memo

‘will assist the Board in evaluating the medical evidence

~ presented’’ (supra, p. 7), which the BCNR implies it

_~ “must have in order té reach a decision. This appears *

‘clear when BCNR: urges that fhe memo ‘*be furnished as

soon as possible’’ so that “final action may be. expedited. ™

~ This makes a ‘‘mockery of the law,’’ as the Fh below *

said in Clchibegof v. United States, 106 C. Cls. 541,- 550.

“ae Petitioner’ 8 Medical Record .

It j is submitted that Petitioner’ s medical record and its .

consideration by those who examined him while on aetive

“duty is a vital part of Petitioner’s cause .at all of the

administrative levels. Moreover, those medical . officers

and administrative officials who were ‘ealled upon to ex-

“amine those medical records after his release from active

duty did so ‘na highly arbitrary and capricious manner,

even to the extent of hoth-ignoring. a f racture of the sFull. |

, and’ offering no reason for Naval Medical Staffs’ failure -

“to X- -ray Petitioner’s skull. It presents a typical pattern

abgut which grave caniplaints - were made in the Congress’ _

iri 1951 and later in the Court of Claims: Nothing has —

been slone to remely it, at least from 1951 to 1957- 1958.

-et

| Soon a the outbreak of the Sihesisn War, Mr. Mahon

Ww as the Chairman of the Subcommittee of the Hou Ap-

- propriations Committee in: the Sist, Congress, 2nd Suppl.

*, .Approp. Bill 1951, Department of the Navy, and had: before

the Committee General Cates, then Commandant of the

Marine Corps.., The specific topie which came-up was under |

the heading, ‘*Reserves called with’ Disability Ratings.”’

Mr. Seriviner made the folowing statement, toe General |

et. ‘ates as to all the Reserve Components+ (p. 133) °

= “me. SerivPrer: And the kicking. arouryl thet they

have received has done more to break down any pos-

sible Reserve organization after this, is, over than

anything else under the sun. T should like to have

you come up andl read some of my mail, General.’

Mr. Mahon then took up the-matter of phy: sical examina-

tions given the Reserves. (p. 135)

o ‘General Cates: They are. sot ordered to active duty

; unless they can pass the physical examination. 7 hey

there’ js always.a chance that a man’s condition has

improved since he was classified | as _—- (jis-

abled.’’ - . ‘

‘Mr. Mahow: That is right, ‘of course, .. Phat’ is pos-

sible. But Ishave heard it said that some of these men

* are examined by just walking through a room. It is

* said that there is no real physical examination. Men | —

who havé actually had the -experiencg say that they

Corps should take all proper steps to see that

are not. exanrined.. The CGommandan of the its »

geration at times, but-I have Loard this said so often

‘that I have thought there must be some grain of

truth in it.’’

am Court ‘of Claims in the bhief period from July 12,

957, to October 8, 1958 denout ced the ‘medical examina-

i which had been given to three offieers. In the Proger

case, supra, a very, sad case comparable in anothet medical

must have the required ‘physical ability. Of course, |

actually are. ft realize that we are all prone to.exag-.

29.

area with the ‘Ean Case, ‘infra, the Court with reference

to the medical ‘examinations said they “‘were hardly com-

pléte’’ (522) and they ‘‘were not thorough"’, (Italies by the

Court) (527). . Later, in Brown v. Unjted States, No. 50362,

decided October 8, 1958, the. Court found that a physical

examination given plaintiff, “‘was superficial -in the ex-

’ treme.’’ C. Cls. (p. 8) In'the meantime, the Court

decided the ease of Egan vy. United Statés, No, 50031, de-

cided January 15, 1958, C. Cl , 158 F. Supp: 337.

Counsel here appeared for Mr. Egan. The Court referred

to this case as a ‘‘ease of mistaken ‘identity and almost

incredible negligence’) (378), since the medical records

of, ‘another (Italics by the Court) John J. Egan,’’ (381)

who was insane; had been: confused with ‘the medical

records of plaintiff, John J. Egan, avith the. result that

Plaintiff Egan was confined for 5 nronths in various

hospitals .as ‘an insane person. (380) . After the discovery

of this horrible mistake, Counsel sought Egan’s pay as a

. Captain in the Marine Corps in this same BCNR. It

was denied. The Court of C laims in awarding jadgment

found that BCNR and the Secretary of the Navy ‘had

a acted “arbitrarily and, illegally.’”” (391) However, the ~

Court found in an elaborate opinion by Judge Littleton

_ that the ‘true -facts ‘‘eould and should have beeh easily

ascerfained by the medical and adfninistrative officials, *’

~ and further stated: ‘We conchide that a more unjust and

outrageous record against plaintiff could not have been

Pa mm *? (382) ¢ltalies supplied) In the Hearing before -

the Naval Retiring Review Board (Marjnes), a Member i?

quired of Petitioner as to whether it Was in his record

thet Air Foree would not let him fly aloag as he had

stated. Petitioner stated that, ‘*I do not know,’’ but

added : (tax. 5, p. 10)

“Actually, most examinations were giren, he Corps-

meen,” (talies supplied) = :

In.Rex vy. Justices of Bodmin (1947), 1 K. B. .321, 325, a

witness in a criminal case had been interrogated by the

Court in the absence of the defendant. Lord Chief Justice

Goddar ! said: ,

“Tt may be that hes sent for this officer in the interest

of the accused; it may be that the information which

the officer gave was in the interests of the accused.

That does not matter. Time and again this Court has

said that justice must not only be done but: manifestly

~ be seen to be done. oa

Petitioner oe submits that upon the showing

‘made here, the case is oP such nature as should call for the

exercise of this Court's power of supervisign. ~

> * CONCLUSION = *

For the foregoing reasons, this "petition for a writ of

certiorari should be granted.

Respectfully submitted,,

Rees B. Ps |

Shoreham Building,

15th and H Streets, N. W.,

Washingtor 5, D. C,

, * Attorney for Petitioner

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.