Reply Brief — Camp v. Rumsfeld

Bupreme Court, U.S

& EILED#é_ |

No._ 75-888

FEB 10 1975

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In The Supreme Court of The United States

OCTOBER TERM, 1975

JAMES H. CAMP, et al.,

Petitioners,

v.

DONALD H. RUMSFELD, et al.,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

NINTH CIRCUIT ey ee

REPLY TO RESPONDENTS’

MEMORANDUM IN OPPOSITION

LAW OFFICES OF FREDERICK HETTER

2214 Fifth Avenue

San Diego, California 92101

Telephone: (714) 239-8185

Attorneys for Petitioners

Interim Printing & Mailing Company, 3191 Adams Avenue, San Diego, California 92116 — 283-7282

SRST eT NONE REE. I, Sp ERE. ow a

TABLE OF CONTENTS

REASONS WHY EXTENSION OF TIME

PRE scneeeccoveseeceves

GENO couduncccccecseseccedéstecci

TABLE OF AUTHORITIES CITED

CASES

Aero Mayflower Transit, Inc. v. United States,

409 U.S. 905-907 (1972) ...........

Durham v. United States, 401 U.S. 481 (1971) ..

Georgia Lumber Co. v. Compania,

BaP OD. BOO CTPUED ccccwececwceces

Heflin v. United States, 358 U.S.

DEORE <i6c5cdedenanadtenees

R.F.C. v. Prudence Group, 311 U.S. 579

EE i a48 + hGeede 6 od EKeReeeeewes

Schacht v. United States, 398 U.S. 58 (1970) ...

Scofield v. N.L.R.B., 394 U.S. 423 (1968) .....

Taglianetti v. United States, 394 U.S.

SS rer rrr eee

Teague v. Regional Comm’r of Customs,

394 U.S. 977 (1968) ...............

Toledo Scale Co. v. Computing Scale Co.,

ee SEE: SiesG es ce hs sacs-aeans

Page

TABLE OF AUTHORITIES CITED (Contined)

STATUTES

28 U.S.C. §§2101(b) and (c) ............0-.

RULES OF COURT

Rules of the Supreme Court of the United States

PEE .0'w5 CHG OS 084d ke ede eon

PEE -c5 0644006 Sh cenbepeneds

Page

2,3

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IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1975

JAMES H. CAMP, et al.,

Petitioners,

v.

DONALD H. RUMSFELD, et al.,

Respondents.

REPLY TO RESPONDENTS’

MEMORANDUM IN OPPOSITION

Petitioners move that the time within which they may

file a Petition for Writ of Certiorari to review the judgment of

the Court of Appeals for the Ninth Circuit, entere¢? on the 17th

day of September, 1975, in the cause pending therein entitled

CAMP v. RUMSFELD, be extended from the 16th day of

December, 1975, to and including the 16th day of February,

1976.

REASONS WHY EXTENSION OF TIME IS JUSTIFIED

The Memorandum For The Respondents In Opposition

to the Petition For Certiorari base their opposition on the fact

that the petition was filed two days late and therefore deprives

the Supreme Court of jurisdiction over this case. Petitioners

acknowledge the 90 day time limit as laid down in 28 U.S.C.

§2101(c), but urge that the petition would have been timely

filed but for circumstances beyond their control.

The Petition For A Writ of Certiorari, along with the

required number of copies, was delivered to Bor-Air Freight

Co. Inc., who guaranteed delivery to the Supreme Court in

Washington, D.C. by December 15, 1975, “for sure.” However,

Bor-Air did not deliver the petition to Washington, D.C. as

promised, but rather to Dulles Airport in Virginia. Therefore

due to the accidental and unexpected delivery error by Bor-Air,

the petition did not reach the Court until December 18, 1975,

two days beyond the allowable period for timely filing of the

petition. (See Appendix A)

Although respondents cite To/edo Scale Co. v. Computing

Scale Co., 261 U.S. 399, 417-418, for the proposition that an

untimely filing deprives the Court of jurisdiction, there have

-_

s-,

been several indications by the Court that time limitations for

filing are procedural in nature rather than jurisdictional. See

Taglianetti v. United States, 394 U.S. 316 n.1 (1969); Heflin

v. United States, 358 U.S. 415 n.7 (1959). The Court has

stated on occasion that there is no difference between the time

limitation found in Court Rule 22(2) and that established by

statute in 28 U.S.C. §2101(b) and (c). Schacht v. United States,

398 U.S. 58, 65 (1970) (Harlan, J., concurring). Recognizing

that the function of such time limitations is not jurisdictional,

the Supreme Court has consistently held that an untimely peti-

tion should not be denied arbitrarily, especially when the

circumstances causing the late filing are beyond the petitioner's

control. See Scofield v. N.L.R.B., 394 U.S. 423, 427 (1968);

Teague v. Regional Comm’r of Customs., 394 U.S. 977, 981-982

(1968) (Black, }., dissenting), Aero Mayflower Transit, Inc. v.

United States, 409 U.S. 905-907 (1972) (Douglas, J., dissenting);

Durham v. United States, 401 U.S. 481 (1971); Schacht v.

United States, 398 U.S. 58, 63-65 (1970).

As Justice Black noted in Teague v. Regional Comm’r of

Customs: “| for one cannot think of any purpose Congress might

have had that could possibly be served by holding that a litigant

-4-

can be defeated solely because of a delay that was entirely beyond

his control.” 398 U.S. at 983. In an analogous situation involving

the timeliness of an appeal to the Court of Appeals, the Supreme

Court noted that the time limit could not be arbitrarily enforced:

“If that were true, the existence of the right to appeal would be

subject to contingencies which no degree of diligence by an

appellant could control. Ambiguities in statutory language should

not be resolved so as to imperil! a substantial right which has

been granted.”’ R.F.C. v. Prudence Group, 311 U.S. 579 (1941).

See also, Georgia Lumber Co. v. Compania, 323 U.S. 334 (1945).

While the late filing of petitions is certainly frowned

upon, see Rule 22(4), the cases cited above show that when the

circumstances causing the late filing are beyond petitioner’s

control, the time requirements have been waived by the Court.

Here, as has been shown, the reason for the delay in filing of the

petition lies in the completely unexpected and accidental error

in delivery by Bor-Air Freight Co. Therefore, it is respectfully

" #

| urged that the Court grant petitioners’ request for an extension

of time within which to file their Petition For A Writ Of

Certiorari.

Respectfully submitted,

LAW OFFICES OF FREDERICK HETTER

By: FREDERICK HETTER

Attorneys for Petitioners

APPENDIX

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