Petition — O'Callaghan v. United States

SEP 21 1978

No. @8-4 8 4

LE MiGH Am RODAK, JR., CLERK

In the

Supreme Court of the United States

Ovctoser TERM, 1978

|

JOSEPH M. 0’CALLAGHAN

vs.

THE UNITED STATES

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF CLAIMS

JOSEPH M. O’CALLAGHAN,

pro se

127 North Dearborn Street

Suite 919

Chicago, Illinois 60602

(812) 3382-1600

UNITED STATES LAW PRINTING CO., CHICAGO, ILLINOIS 60618 (312) 525-6581

INDEX

PAGE

Opinions and Orders Below ..0..0....-......ceecescecseeeeseeseeeees 1

I I I it seentncnecdiniordmionncieinieacesuton 2

gE EEE Se 2

Constitution, Statutes and Regulations ...................... 2

Ee ES ee a 4

Jurisdiction of Court of Claims 22.2.0... eeeeeeeee es 5

ID... ecntitnisiniaatistectons ; ce

A. Reasons for Granting Writ 2.222... 6

B. Error to Apply Laches Where No Showing of

FEE ,- 48

C. Error to Uphold Physical Evaluation Board De-

termination Where Not Supported by the Record... 9

Conclusion RE ine a ee 10

Appendix A—Opinion of the Court of Claims ........ App. 1

Appendix B—Order denying plaintiff’s motion for

rehearing and for rehearing en banc. ....... App. 6

Appendix C—Order denying plaintiff’s motion to

ER ESET HEL Soa ee App. 7

li

AUTHORITIES CITED

Cases

Abraham v, Ordway, 158 U.S. 416 (1895) .....0.

Northern Pacific Railway Company v.

Se TD | seciatnecznatinciasiedl, ee tattennine

Other Authorities

Fifth Amendment to U. S. Constitution

Rule 37(b), Rules of Court of Claims

Boyd, 228 U.S.

Peer ee eee eee eee ee ee

OREO ee

In the

Supreme Court of the United States

Octosrer Term, 1978

No.

JOSEPH M. O’'CALLAGHAN

vs.

THE UNITED STATES

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF CLAIMS

Joseph M, O’Callaghan, your petitioner, prays that a

writ of certiorari issue to review the judgment of the United

States Court of Claims in this case.

OPINIONS AND ORDERS BELOW

The opinion of the Court of Claims, App. A., infra, is re-

ported at ........ CE, / GE Lei. , No. 137-76, decided April 27,

1978, The order denying plaintiff’s motion for rehearing

and for rehearing en bane App. B., infra, was issued June

, oan OR Ge iced No, 137-76, order of June 23,

1978,

2

JURISDICTION OF THE COURT

The judgment of the Court of Claims was entered on

April 27, 1978. Plaintiff’s motion for rehearing was denied

on June 23, 1978. :

The Jurisdiction of this Court is invoked under 28 USC

1255 (1).

QUESTIONS PRESENTED

1. Did the Court err in applying the doctrine of laches

to bar a veterans military disability retirement pay claim

brought within the applicable statute of limitations where

there was no evidence of any prejudice to the government

caused by the delay?

2. Did the Court err in refusing to set aside an Army

Physical Evaluation Board determination that plaintiff had

certain physical defects existing prior to his entry on active

service despite the Court’s finding that such determination

was not supported by the record before it?

CONSTITUTION, STATUTES AND REGULATIONS

Amendment V. United States Constitution

No person shall be held to answer for a capital, or other-

wise infamous crime, unless on a presentment or indict-

ment of a Grand Jury, except in cases arising in the land

or naval forces, or in the Militia, when in actual service in

time of War or public danger; nor shall any person be

subject for the same offence to be twice put in jeopardy of

life or limb; nor shall be compelled in any criminal case

to be a witness against himself, nor be deprived of life,

liberty, or property, without due process of law; nor shall

private property be taken for public use, without just com-

pensation,

3

28 USC 2501 — STATUTE OF LIMITATIONS

Every claim of which the Court of Claims has jurisdic-

tion shall be barred unless the petition thereon is filed with-

in six years after such claim first accrues.

Army Regulation, AR635-40, paragraph 1-8.1—

Physical Evaluation of Retention, Retirement, or

Separation; Presumptions

a. In the absence of a preponderance of evidence to the

contrary and as provided in b below, and paragraph 1-8.2,

the following presumptions will apply to physical disability

evaluation:

(1) A member is presumed to have been in sound physical

and mental condition upon entering active service

except to the extent as to physical disabilities noted

and recorded at the time of entrance. Any disease

or injury discovered after a member enters active

service is presumed to be in line of duty while en-

titled to receive basic pay and not due to the mem-

bers intentional misconduct or willful neglect.

b. The foregoing presumptions may be overcome only by

a preponderance of evidence as distinguished from personal

opinion, speculation, or conjecture. When there is reason-

able doubt concerning a member’s condition, an attempt

should be made to resolve the doubt on the basis of further

clinical investigation and observation, and such other evi-

dence as may be adduced. In the absence of such proof

by a preponderance of evidence, reasonable doubt will be

resolved in favor of the member. However, in the case of

members with more than 3 years of service, any increase in

the severity of a pre-existing disease or injury will be con-

sidered as evidence of service aggravation, provided that

such increase in severity was not due to the member’s in-

tentional misconduct or willful neglect.

4

STATEMENT OF FACTS

Plaintiff served on active duty in the United States Army

as a commissioned officer from September 1967 to April

1970. On February 17, 1970, plaintiff appeared before a

Physical Evaluation Board which found him to be 40%

disabled due to rheumatoid spondylitis, that the disability

was incurred or aggravated while he was entitled to basic

pay, in the line of duty or national emergency, that plain-

tiff was unfit for military service but that 20% of his dis-

ability existed prior to the time plaintiff- entered active

service.

These findings were approved by the Secretary of Army

and plaintiff was discharged from the Army on April 2,

1970 with severance pay. Had the Physical Evaluation

Board found plaintiff’s disability existing prior to service

to be 10% or less, plaintiff would have been entitled to dis-

ability retirement under 10 USC Section 1201.

Plaintiff immediately commenced a long series of cor-

respondence with Department of Army in an effort to ob-

tain his records of military service. These efforts were

ultimately unsuccessful. In March of 1973 plaintiff applied

to the Board for Correction of Military Records seeking

to have the finding of disability existing prior to service

removed and to be placed on disability retirement status.

This application was denied in October, 1973. In March

of 1976, 5 years, 11 months 27 days after plaintiff’s claim

accrued, he filed his petition in the United States Court of

Claims. Plaintiff claimed that he was entitled to an in-

crease in disability rating because of disability related to

his rheumatoid spondylitis and his heart and further

claimed that nothing in the record supported a finding by

the Physical Evaluation Board of any degree of disability

existing prior to plaintiff’s entry on active duty. On cross

motions for summary judgment, the Court of Claims held

b)

that it could not decide the issues before it without a trial

and that plaintiff’s claim was barred from proceeding to

trial because of tlie doctrine of laches,

JURISDICTION OF COURT OF CLAIMS

The jurisdiction of the Court of Claims was founded

upon 28 USC 1491 and 10 USC 1201.

ARGUMENT

REASONS FOR GRANTING WRIT

In this case, for the first time, the Court of Claims has

adopted the position that the mere passage of time, unsup-

ported by proof of any sort of prejudice, is sufficient to

bar a claim brought within the applicable statute of limita-

tions. This decision denies to plaintiff, and to others simi-

larly situated, their right to due process under Article V

of the United States Constitution. Since there is potentially

a large number of military retirement pay ciaimants and

since this rationale foreshortens the Congressionally estab-

lished 6 year claim period without legal justification this

decision warrants review by this Court.

ERROR TO APPLY LACHES WHERE

NO SHOWING OF PREJUDICE

The doctrine of laches is an equitable one whereby a

court can refuse to permit a party to proceed with its claim

where that party has unduly delayed proceeding and the

other party has been prejudiced by the delay. Essentially

the court must balance the injury of not allowing a party

to proceed with his claim against the injury to the other

party occasioned by the delay.

As early as 1895, this Court, through Mr. Justice Harlan

held:

But it is now well settled that independently of any

limitation preseribed for the guidance of courts of

law, equity may, in the exercise of its own inherent

powers, refuse relief where it is sought after undue

FE em

7

and unexplained delay, and when injustice would be

done, in the particular case, by granting the relief

asked. Abraham v. Ordway, 158 U.S. 416, 420 (1895).

There is no question in the instant case but that plaintiff

waited virtually to the end of the statutory six year claim

period before proceeding with his claim. The mere passage

of time, however, is not sufficient to bring laches into opera-

tion. This Court has held:

But the doctrine of estoppel by laches is not one which

can be measured out in days and months, as though it

were a statute of limitations. For what might be in-

excusable delay in one case would not be inconsistent

with diligence in another, and unless the non-action

of the complainant operated to damage the defendant,

or to induce it to change its position, there is no neces-

sary estoppel arising from the mere lapse of time.

Northern Pacific Railway Company v. Boyd, 228 U.S.

482, 562 (1913).

Thus it can be seen that the operative element of laches

is prejudice resulting from the passage of time to the party

seeking to assert laches. Under Rule 37 (b) of the Rules

of the Court of Claims, laches is an affirmative defense

which must be pleaded and proved by the party asserting

it. In the case at bar, defendant had raised the issue in

its Amended Answer wherein it merely alleged that

‘*Plaintiff is barred from pursuing his claim by the equita-

ble doctrine of laches.’’ Plaintiff moved to strike this de-

fense as insufficient and the trial judge, in denying plain-

tiff’s motion, ruled ‘‘that the defense of laches depends

on a number of elements which are to be balanced equitably.

This may most properly be determined after a trial on

the merits.’’ Order of October 26, 1976. App. C. There-

after, defendant moved for summary judgment on the rec-

ord with no further supporting pleading of fact or any affi-

davits te support its assertion that the claim was in any

way barred by laches or to sustain its burden of proof of

prejudice resulting from the delay. As previously noted,

8

the Court of Claims granted defendant’s motion on this

wholly unsupported record. In its opinion, the Court in-

ferred that the witnesses’ memories may have dimmed and

may not be able to be refreshed, that some witnesses may

no longer be available and that it would be hard to recon-

struct claimant’s medical condition of six or more years

previously.

This determination by the Court of Claims that prejudice

had resulted to defendant because of the inferred unavail-

ability of witnesses was erroneous not only’ because it was

completely unsupported by the record but also because,

even if it had been supported, the unavailability of wit-

nesses is not legal prejudice which justifies invoking laches.

In determining that delay worked to defendant’s preju-

dice, the Court of Claims apparently overlooked plaintiff’s

burden of proof in the matter. Except as noted below, the

burden of proof in the case was upon plaintiff. If the case

had gone to trial and the witnesses had either been un-

available or had no recollection of the matter, plaintiff

would have been unable to prove his case. The problem of

witness unavailability and recollection is a problem that

is equally present and equally taxing to both sides of the

case since no man, plaintiff nor defendant, is immune from

the effects of the passage of time. Accordingly, both par-

ties would be equally disadvantaged by the passage of

time. Under such circumstances, there can be no prejudice

to defendant since the relative positions of the parties

would have remained equal in terms of witness availability

and acuity. The disadvantage, if anything, would rest more

heavily on plaintiff since he carried the burden of proof

in the case. Thus the Court of Claims’ error in finding a

basis, either in fact or in law, to support a laches affirma-

tive defense. Since this error infringed upon plaintiff’s

right to due process under the Fifth Amendment of the

Constitution, the judgment of the Court below must be

reversed.

9

C.

ERROR TO UPHOLD PHYSICAL EVALUATION

BOARD DETERMINATION WHERE NOT SUPPORTED

BY THE RECORD

In his claim below, plaintiff asserted that the Army

Physical Evaluation Board was without legal or factual

justification in determining that plaintiff had a 20% dis-

ability that existed prior to service. This determination

was crucial to this case since, without it, plaintiff would be

rated at 40% disabled and entitled to a lifetime pension

of 40% of pay. With the determination, however, plaintiff

was rated at a net 20% disability and entitled only to nomi-

nal severance pay.

In making this determination, the Physical Evaluation

Board was governed by Army Regulation AR635-40, para-

graph 1-8.1 which provided that a service member was

presumed to be in sound physical condition at entry on

active duty, that the presumption of sound physical condi-

tion upon entry to active service ‘‘may be overcome only

by a preponderance of evidence as distinguished from per-

sonal opinion, speculation, or conjecture,’’ and further

that ‘‘in the absence of such proof by a preponderance of

evidence, reasonable doubt will be resolved in favor of the

member.’’

It was plaintiff’s position in the Court of Claims that

the record totally failed to support defendant’s burden of

proving by a preponderance of evidence that plaintiff was

20% disabled at the time he entered on active duty and

further failed to overcome the mandatory presumption of

sound physical condition. With respect to this and other is-

sues raised by plaintiff, the Court of Claims held, at page 2

of its opinion, ‘‘In our view, none of these issues can prop-

erly be decided on the present administrative record.’’ In

10

essence, this determination by the Court constituted a find-

ing that the record did not support defendant’s burden of

proof that plaintiff was disabled prior to his entry on

active duty. Since the record did not support the defen-

dant and demonstrate that it had carried its burden of

proof, the Court of Claims was required to reverse the

determination as not being sustained by the evidence. The

failure of the Court of Claims to do so deprived plaintiff

of due process under the Fifth Amendment and requires

a reversal of the order of the Court of Clajms.

CONCLUSION

For the foregoing reasons, it is respectfully submitted

that the petition for a writ of certiorari should be granted.

Respectfully submitted,

JosePH M. O’CaLLAGHAN,

pro se

127 North Dearborn Street

Suite 919

Chicago, Dlinois 60602

(312) 332-1600

a aa i cla i

APPENDIX A

IN THE UNITED STATES COURT OF CLAIMS

No. 137-76

; DECIDED: APRIL 27, 1978

JOSEPH M. O’CALLAGHAN ) Military pay; military

disability retirement

pay; laches

)

v. )

)

THE UNITED STATES i

Joseph M. O’Callaghan, pro se.

LeRoy Southmayd, Jr., with whom was Assistant Attor-

ney General Barbara Allen Babcock, for defendant.

Before DAVIS, Judge, Presiding, COWEN, Senior

Judge, and KUNZIG, Judge.

ORDER

This is a suit by a former Army Captain for military

disability retirement pay; it comes before us on both par-

ties’ motions for summary judgment. Oral argument has

been had.

Plaintiff was commissioned a reserve second lieutenant

in June 1964; shortly thereafter he obtained a delay in

his call to active duty in order to attend law school. He

was finally called to active duty in September 1967; prior

thereto he had a physical examination, in April 1967, and

was found qualified for active duty. In the Fall of 1968

and again in 1969 he appeared before Medical Evaluation

App. 2

Boards each of which found some physical defects. In

February 1970 a Physical Evaluation Board found him

permanently unfit for service but with a substantial per-

centage attributable to defects existing prior to his entry

into active service. He was honorably discharged in April

1970 with entitlement to severance pay but without entitle-

ment to disability retirement pay (because his disability

was rated at less than 30%). The Physical Review Council

concurred in the action of the Physical Evaluation Board,

as later did the Army Physical Disability Agency.

Plaintiff’s application (in March 1973) to the Correction

Board was rejected without a hearing in October 1973. He

filed suit here on March 30, 1976.

There is one legal issue which can be decided without

any consideration of factual matters. Plaintiff urges that

the only lawful date for evaluation of health factors exist-

ing prior to service (EPTS) was June 1964 (when he was

commissioned) and that the -three-year period while he

was studying law was ‘‘inactive duty for training’’; de-

fendant, on the other hand, contends that that period was

at most plain-and-simple inactive duty, and that the cut-off

date for any EPTS factor was 1967 when he entered into

active duty. We agree with defendant that the correct

reading of the statute and regulations is that plaintiff’s

three-year span (during which he did nothing militarily

except answer military letters which happened to be sent

to him) was ‘‘inactive duty,’’ not ‘‘inactive duty for train-

ing.’’ This seems to us the only reasonable interpretation

of the controlling legislation and regulations, as applied

to plaintiff’s cireumstances. See 37 U.S.C. § 206; AR 601-

25, 135-90, 140-10, 310-25, 601-25.' Accordingly, we hold

1 Plaintiff's motion to strike the affidavit of James F. Monahan

is denied.

App. 3

that plaintiff’s entrance into active duty in 1967 is the ap-

propriate point for determining any EPTS factor.’

Plaintiff next urges that (a) the Physical Mvaluation

Board aid Correction Board erred in failing to rate his

heart condition (he claims a 30% rating for that problem) ;

(b) both boards erred in the percentage of disability (40%)

assigned to his rheumatoid spondylitis (he claims a rating

of 60%); and (¢) assuming (contrary to his position) that

cntry on active duty is the appropriate point at which to

determine an EPTS factor, both boards nevertheless erred

in law and on the facts in deciding that there was a 20%

EPTS for rheumatoid spondylitis (leaving a net rating

of 20% for that defect) (plaintiff claims no deduction at

all for an EPTS factor).

We have reviewed the administrative record, which is

before us, and the parties’ arguments (written and oral)

on the points outlined in the preceding paragraph. Our

conclusion is that we cannot decide any of those issues

without a further inquiry into the facts; the legal issues

embodied in those points are all entwined with factual

questions which call for resolution by trial. In our view,

none of those issues can properly be decided on the present

administrative record without more.

The difficulty with now according plaintiff a trial is the

defense of laches;* plaintiff began this suit almost six

years (5 years, 11 months, 27 days) after his claim accrued

2 As implied infra, this holding could conceivably make a signifi-

cant difference because plaintiff’s physical .ondition may well not

have been fully the same when he entered on active duty in 1967

as it was in 1964.

3 At the oral argument, plaintiff waived a trial but we would be

reluctant to hold him to that waiver if we thought that laches was

not applicable.

App. 4

at the time he was discharged on April 2, 1970, without

entitlement to disability retirement pay.‘ Laches has been

held applicable in proper instances to disability retirement

cases like this. Devine v, United States, 208 Ct. Cl. 998

(1975); Eurell vy. United States, 215 Ct. Cl. ........ (Dee. 14,

1977) ; McGahey v. United States, Ct. Cl. No. 311-75 (order

of Feb. 28, 1977); Pratt v. United States, Ct. Cl. No. 66-77

(order of Nov. 25, 1977). That defense is especially ap-

plicable to such cases where a trial must be had and a long

period had elapsed since the events occurred. Witnesses’

memories as to the claimant’s case will undoubtedly have

dimmed and may not be able to be refreshed by the con-

temporaneous written records; some witnesses may no

longer be available; for all medical witnesses it will be

hard, if possible at all, to reconstruct the claimant’s medi-

cal condition of six or more years ago. See the decisions

cited immediately supra. In that type of case the longer

the delay the more certain the prejudice to defendant.

Brundage v. United States, 205 Ct. Cl. 502, 505-06, 509-10,

510-11, 504 F.2d 1382, 1384, 1386-87, 1387 (1974), cert. de-

nied, 421 U.S. 988 (1975). Plaintiff is a lawyer and we

see no justification for the long delay (even for the delay

since the Correction Board denied his application). He

says that the Army failed to make certain records avail-

able to him but so far as we can tell he was not prevented

from filing suit by the non-receipt of those particular docu-

ments. We reject expressly—as we have previously done

by implicit holding—plaintiff’s argument that we have no

authority to apply laches to cases brought (no matter how

barely) within the statute of limitations.

“ec

4 Plaintiff’s claim does not fall within the “continuing claim”

principle since he was never determined by any board or authority

to be entitled to disability retirement pay, nor, as we have said, is

it clear on the present record that he was so entitled as a matter

of law.

App. 5

The result is that plaintiff cannot prevail or be -per-

mitted to go further. On the existing administrative ree-

ord he is not entitled to recover, and he cannot have a

trial to prove his claim because laches applies to forestall

a trial.

It Is Therefore Ordered And Concluded that plaintiff’s

raotion for summary judgment is denied and the defen-

dant’s motion for summary judgment is. granted on the

grounds stated supra. The petition is dismissed.

By The Court

/s/ Gscar H. Davis

Osear H. Davis

Judge, Presiding

App. 6

APPENDIX B

IN THE UNITED STATES COURT OF CLAIMS

No. 187-76

JOSEPH M. O’CALLAGHAN

v.

THE UNITED STATES

Before DAVIS, Judge, Presiding, COWEN, Senior

Judge, and KUNZIG, Judge.

ORDER

This case comes before the court on plaintiff’s motion,

filed May 15, 1978, for rehearing en banc pursuant to Rules

7(d) and 151(b), with reference to the order entered here-

in on April 27, 1978, dismissing the petition. Upon con-

sideration thereof, together with the response in opposition

thereto, without oral argument, by the six active Judges

of the court as to the suggestion for rehearing en banc

under Rule 7(d), which suggestion is denied, and further

having been so considered by the panel listed above as to

the motion for rehearing under Rule 151(b),

It Is Ordered that plaintiff’s said motion for rehearing,

filed May 15, 1978, be and the same is denied.

By The Court

/s/ Oscar H. Davis

Osear H. Davis

Judge, Presiding

Entered: June 23, 1978

App. 7

APPENDIX C

IN THE UNITED STATES COURT OF CLAIMS

TRIAL DIVISION

No. 137-76

(Filed October 26, 1976)

JOSEPH M. O’CALLAGHAN vy. THE UNITED STATES

ORDER DENYING PLAINTIFF’S MOTION

TO STRIKE

1. Plaintiff’s motion to strike defendant’s first affirma-

tive defense for insufficiency is denied. Such a motion is

only allowed when the defense is frivolous or plainly in-

sufficient. It is not designed to allow decision on the merits

nor to provide a vehicle for decision of questions of fact.

Dunwalke Farm, Inc. v. United States, 130 Ct. Cl. 31, 125

F. Supp. 255 (1954). Both the petition and the motion

papers indicate that the defense of laches is not frivolous

nor plainly insufficient in this case. Plaintiff also correctly

notes in its motion that the defense of laches depends on

a number of elements which are to be balanced equitably.

This may most properly be determined after a trial on

the merits.

The motion to strike is also not properly a vehicle for

discovery of the underlying facts upon which defendant

relies. To ascertain these plaintiff should more properly

rely on the discovery devices and pretrial procedures avail-

able in this court.

2. The motion to strike defendant’s second affirmative

defense for insufficiency is likewise denied, as such defense

App. 8

is not plainly insufficient to the judgment requested on

page 7 of the petition.

3. The motion to strike the third affirmative defense

is also denied. The defense that plaintiff has failed to

exhaust his administrative remedies raises both factual

and legal issues. The factual issues cannot be resolved by

denials in plaintiff’s motion papers and the legal issue

must at the least await determination of the facts.

Wherefore, plaintiff’s motion to strike defendant’s first,

second and third affirmative defenses is denied.

/s/ Philip R. Miller

Philip R. Miller

Trial Judge