Petition — Frommhagen v. United States

Supreme Court, U. &

FILED

NOV 17 1978

MI@HAEL RODAK, JR., CLERK

Iu the Supreme Court

OF THE

Anited States

OCTOBER TERM, 1978

No. 78-819

LAURENCE H. FROMMHAGEN, Petitioner,

vs.

THE UNITED STATES, Respondent.

PETITION FOR A WRIT OF CERTIORARI

to the United States Court of Claims

LAURENCE H. FROMMHAGEN

Pro Se

Post Office Box 326

Soquel, California 95073

ce vee ne eer

Restatement of Waivefs .................

SUBJECT INDEX

SII EET LO OTS EET OO

TTA ie Nr RPO OE

Ee lies

Reasons For Granting The Writ

I. The creation of the illusion of a prejudice to

respondent requires the intervention and

supervision Of this Court ...............scssceseseeeees

II. The summary judgment granted by the Court

of Claims violated federal appellate law

and black letter federal rules........ Seischaslinhniatnn

Appendix A —Judgment and Opinion of the United

a ae of Claims, entered March

Appendix B —Order of the United States Court of

Claims denying petitioner’s Motion

For Rehearing, For New Trial, and

To Vacate The Judgment, entered

June 23, 1978...

Appendix C —Order of the United States Court of

Claims denying petitioner’s Motion

For Correction of The Judgment And

For Reopening Of The Proceeding,

entered October 26, 1978 .................00.

if

TABLE OF AUTHORITIES CITED

CASES: Page

Brundage v. United States 205 Ct. Cl. 502, 504 F. 2d

1382 (1964) cert. denied 421 U.S. 998 (1975)............ 9

Chappelle v. United States 168 Ct. Cl. 362 (1964)........... 8

Costello v. United States 365 U.S. 282 (1960) ...........0000 8

Echaide v. Confederation of Canada Life Ins. 459 F. 2d

8, SR TS ARERR ae a ona 12

Furton v. City of Menasha, 149 F. 2d 945 (CA 7th,

I iit ceehealeadati Uaslisticicaiantiedianednabdeniavaiiinsabaensinosecchenes 13

Guinn Co. v. Mazza, 296 F. 2d 441 (CA D.C., 1961)...... 12

Knapp v. Kinsey 249 F. 2d 797 (1957) ....cccccsccssceeseesseeeeee 12

Kowal v. United States 188 Ct. Cl. 631 (1969) .........c0000 8

Levy v. United States 118 Ct. Cl. 110 (1948)... eee 8

Lewis v. Atlas Corp. 158 F. 2d 599 (1946) .....cceceeseesseeee 13

Melo-Sonics Corp. v. Cropp 342 F. 2d 725 (1964)........... 12

Mogavero v. McLucas 543 F. 2d 1083 (1976) 00.0... 8

Niswonger v. American Aviation, Inc. 529 F. 2d 526

(1976) affirmed 529 F. 2d 526 (1975)......c.ecessesseeesees 12

Passinger v. South Cent. Bell Tel. Co. 505 F. 2d 612

EI iahchea thins dada ahi decease subscativedanbesnisunsnanpambsanoon’ 12

Poller v. Columbia Broadcasting System, Inc. 368 U.S.

8 fe Fh ere 12

Redhouse v. Quality Ford Co. 511 F. 2d 414 (1975)........ 12

Safeway Stores v. Wilcox 220 F. 2d 661 (1955) .........000 13

Sequoia Union High School v. United States 245 F. 2d

Fg RECIPE CREE Cr OER 21 OE ene 12

United States v. J. B. Williams Co. 498 F. 2d 414

SI PUMTIED sadist ihcdeantieacarctbaicusaslsalitinad utasehvbsakeameasibtindianntnannvaiees 12

RULES

Rule 56(c), Federal Rules of Civil Procedure ................. 2, 11

Rule 101(d), United States Court of Claims.................... 2, 11

a te ee

In the Supreme Cowt

OF THE

United States

LAURENCE H: FROMMHAGEN, Petitioner,

vs.

THE UNITED STATES, Respondent

PETITION FOR A WRIT OF CERTIORARI

to the United States Court of Claims

Petitioner, LAURENCE H. FROMMHAGEN, prays here-

in that a writ of certiorari issue to review the granting of

summary judgment to defendant UNITED STATES, the denial

of petitioner’s motion for summary judgment, and the dismissal

of the petition by the United States Court of Claims, 573 F. 2d

52 (1978)

OPINIONS BELOW

Petitioner seeks a review of the following opinions,

judgments and orders of the United States Court of Claims:

1. The Opinion and Judgment, entered on March 22,

1978, a copy of which is included herein as Appendix A.

2. The Order denying petitioner’s Motion For Rehearing,

For A New Trial And To Vacate The Judgment, entered June

23, 1978, a copy of which is included herein as Appendix B.

3. The Order denying petitioner’s Motion For Correction

Of The Judgment And For Reopening Of The Proceeding,

entered on October 26, 1978, a copy of which is included herein

as Appendix C.

2

JURISDICTION

A sixty-day extension of time until November 20, 1978, in

which to file this Petition, requested by FROMMHAGEN

primarily to allow time for the Court of Claims to respond to his

Motion For Correction Of The Judgment And For Reopening

Of The Proceeding, was granted by the Honorable WILLIAM

J. BRENNAN, JR., Associate Justice Of The United States

Supreme Court on September 6, 1978.

The jurisdiction of this Court is invoked under 28 U.S.C.

1255.

QUESTIONS PRESENTED

1. Did the Court of Claims create an illusion of prejudice

to the defendant in order to raise the bar of laches?

2. Was the granting of summary judgment to the

UNITED STATES consistent with the federal procedural rules

and with federal appellate law?

RULES INVOLVED

Rule 56(c), Federal Rules of Civil Procedure:

Motion and Proceedings Thereon. The motion shall be

served at least 10 days before the time fixed for the hearing.

The adverse party prior to the day of hearing may serve

opposing affidavits. The judgment sought shall be rendered

forthwith if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to any

material fact and that the moving party is entitled to a

judgment as a matter of law. A summary judgment,

interlocutory in character, may be rendered on the issue of

liability alone although there is a genuine issue as to the amount

of damages.

3

Rule 101(d), United States Court Of Claims

Motion and Proceedings Thereon: After a motion for

summary judgment has been filed, and after the expiration

of the time allowed for a response thereto or for a reply to

the response, if any (Rule 52(b)), such motion may

(subject to the provisions of Rules 54(b), 146(b)(2), and

166(b)) be assigned to the calendar. (See Rule

14(b)(2).) The judgment sought shall be rendered if the

pleadings, depositions, and admissions on file, together

with the affidavits, if any, show that there is no genuine

issue as to any material fact and that the moving party is

entitled to a judgment as a matter of law. A summary

judgment may be rendered on the issue of liability alone

although there is a genuine issue as to the amount of

damages.

STATEMENT OF THE CASE

On September 6, 1968, petitioner was discharged

involuntarily from the Ames Research Center of the National

Aeronautics and Space Administration (NASA) for the alleged

reason that NASA had a vital need for a higher performance of

the service performed by petitioner, namely, research in soil

biochemistry.

Extensive administrative appeals to that adverse action

took place in which FROMMHAGEN represented himself for

the reason, as he deposed before the Court of Claims, that he

was unemployed and could not afford the services of an

attorney. Those proceedings ended on April 11, 1971, with a

decision, adverse to petitioner, from the Board of Appeals and

Review of the United States Civil Service Commission.

FROMMHAGEN stated in one of his affidavits before the

Court of Claims that he requested the United States Civil

Service Commissioners in 1971 and 1972 to reopen the

administrative proceedings, but he never had a response from

them. Defendant UNITED STATES did not contest that

statement.

4

On April 1, 1977, petitioner filed with the United States

Court of Claims a petition in which he alleged several

procedural errors in the NASA adverse action and in the

administrative appeals before NASA and the Civil Service

Commission. FROMMHAGEN requested in that petition only

backpay from September 6, 1968, the date of his discharge, to

some date in 1972 or 1973 when judgment would have been

rendered had he been able to file suit in the Court of Claims

during 1971 or 1972. He requested the Court of Claims to fix

the latter date.

On May 31, 1977, defendant UNITED STATES filed a

motion for summary judgment based upon the defenses of

collateral estoppel and laches. In support of the latter defense

respondent asserted (1) the filling of petitioner’s position with

another employee, i.e., the prejudice of a ‘double salary for the

same service’ and (2) prejudice arising from the death of

NASA employees, potential witnesses in any trial. Respondent

also disputed in its motion, but not by introduction of evidence,

FROMMHAGEN'S statement in his petition that he had

delayed filing of suit because of an extended illness.

Thereafter petitioner filed over 200 pages of opposition to

defendant’s motion. Included in that opposition were the

affidavits of his physicians, counselors, attorneys, family,

associates, and of himself showing that FROMMHAGEN was

required to abstain from court challenges to the discharge

action in the period of 1971 through 1977 because of his own

serious illness and that of his wife, his continued unemployment

and his lack of financial resources.

WILLIAM A. ATCHLEY, M.D. asserted in his affidavit

that he had observed that FROMMHAGEN was suffering

serious emotional disorders during the illness of petitioner’s

wife in 1971. In another affidavit N. MICHAEL SCHMIDT,

Ph.D., a psychologist whom petitioner was consulting in the

first half of 1972, came to the same conclusion after interviews

and testing.

5

JACK SHELTON, M.D., chief of the psychiatric unit at

Shasta General Hospital in Redding, California, testified in his

affidavit that petitioner had been found semi-conscious lying on

the edge of a freeway near that city and was admitted to the

psychiatric facility on November 19, 1972, and that petitioner

was released a week later in the care of his wife with the

diagnosis of hysterical neurosis, dissociative type (amnesia)

associated with a history of multiple psychological stressors.

Dr. SHELTON also asserted that he had advised petitioner of

the necessity to avoid the stressors which may have been

responsible for his condition.

In other affidavits, the petitioner and his wife, parents,

attorneys and associates testified that petitioner had refrained

from any further direct legal challenges to the NASA adverse

action due to his troubled mental condition, his doctors’ orders

and his financial distress.

Respondent filed no rebuttal or contravening evidence to

the foregoing testimony, and fell silent on the issue of

FROMMHAGEN'S ability to file suit earlier.

Defendant admitted on August 5, 1977, in answers to

petitioner’s interrogatories that NASA had never replaced

FROMMHAGEN with another employee providing the same

service.

On August 26, 1977, The Court of Claims denied

petitioner’s motion to file a cross-motion for summary

judgment, but reversed itself on October 21, 1977, after

petitioner had submitted his opposition to respondent’s motion

for summary judgment.

FROMMHACEN’S motion for summary judgment, filed

on November 10, 1977, embraced five issues, the majority of

the procedural issues he has posed in his petition to the Court of

Claims.

6

On December 16, 1977, respondent filed opposition to

plaintiffs motion for summary judgment, in which the

Government requested judgment in its favor on that motion in

reliance upon the administrative record and the facts asserted in

petitioner’s motion. Respondent did not raise any triable issues

of fact in that opposition, nor did it request 2 trial.

Thereafter defendant filed with the Court of Claims a copy

of the complete administrative record of over 9,000 pages.

Thereupon petitioner, in written representations to the

Court of Claims on February 1, 1978, as in his oral argument

before that court on January 18, 1978, asserted that the filing of

the complete administrative record obviated the need for a trial,

all of the facts pertinent to the merits of his allegations being

contained in that record.

On March 22, 1978, the Court of Claims issued its Opinion

(Appendix A) in which respondent’s motion for summary

judgment was granted solely on the ground of laches based

upon the likelihood of a prolonged proceeding and an extensive

trial which the Court reasoned, would be inherently unfair to

the UNITED STATES due to loss of memory on the part of

NASA employees and the death of NASA employees involved

in the discharge action.

Respondent had never alleged any loss of memory by

NASA employees nor had it specified how the deceased NASA

employees were involved in the discharge action against

petitioner.

In his Motion For Rehearing, For New Trial, And To

Vacate The Judgment, petitioner again pointed to the fact that

no trial on the issues raised by him was necessary or proper. He

requested therein only a summar” adjudication of his claims,

or, in the alternative, a trial limited solely to the defense of

laches in that triable issues of fact exist with regard to his delay

ew wa” — =

-

in filing the suit and the specific nature of the prejudice incurred

by respondent as a result of that delay. Petitioner also denied

in that motion that he had any intention of prolonging the

proceeding or of vilifying his former superiors. He had stated

in other representations to the Court that his discharge was due

to factors external to NASA as shown in records of the Federal

Bureau of Investigation, but that he would not bring those

matters into the proceeding before the Court of Claims

inasmuch as they belonged in another arena.

Respondent did not oppose the foregoing motion for

rehearing.

In its Order denying the motion for rehearing ( Appendix

B) the Court of Claims acknowledged for the first time

petitioner’s waiver of trial and his request for only a summary

adjudication, but insisted that a trial, prejudicial to respondent,

was necessary to enter a “few depositions” which, the Court

stated, FROMMHAGEN wished to enter into evidence. Leave

to take the one deposition requested by petitioner, which would

have been directed largely to respondent’s defense of laches,

had been denied by the Court of Claims on July 8, 1977.

In the order denying the motion for rehearing the Court of

Claims ignored petitioner’s request for a trial limited to the

issue of laches.

On September 12, 1978, FROMMHAGEN filed a Motion

For Correction Of The Judgment And For Reopening Of The

Proceeding in which he pleaded with the Court of Claims to

recognize that he had waived trial, discovery and introduction

of new evidence and requested only a summary adjudication

based upon the administrative record then on file. Respondent

did not oppose that motion. The Court of Claims summarily

denied that motion on October 26, 1978 (Appendix C).

8

REASONS FCR GRANTING THE WRIT

I. THE CREATION OF THE ILLUSION OF A PREJUDICE TO RESPONDENT

REQUIRES THE INTERVENTION AND SUPERVISION OF THIS COURT

It is well-established that lapse of time alone does not

constitute laches and will not bar relief where it has not worked

injury, prejudice or disadvantage to defendant, Costello v.

United States, 365 U.S. 282 (1960); Mogavero v. McLucas, 543

F. 2d 1083 (1976); Chappelle v. United States, 168 Ct. Cl. 362

(1964); Kowal v. United States, 188 Ct. Cl. 631 (1969); Lewy v.

United States, 118 Ct. Cl. 110 (1948). The latter three cases in

the Court of Claims involved lengthy delay periods and similar

circumstances justifying the delay in filing suit.

The conclusion of the Court of Claims that laches arises

from a prejudice to defendant of a trial and a prolonged

proceeding suffers fatally from the very facts, as shown in the

Court’s Opinion of March 22, 1978 (Appendix A), that there

was before the Court a complete and comprehensive

administrative record' and that both petitioner and respondent

had requested judgment in its favor on the merits of petitioner’s

cross-motion for summary judgment, the adjudication of which

would have terminated the proceeding.

The Government had admitted that it does not suffer, from

petitioner’s delay in filing the suit, the prejudice of a ‘double

salary’ or loss of records. Its initial claim of prejudice from

death of potential witnesses was undermined by its willingness

to have FROMMHAGEN’S cross-motion for summary

judgment adjudicated on the facts in that motion and in the

administrative record. Petitioner’s voluntary limitation of his:

claim excluding the ‘delay period’ defeated respondent’s com-

plaint that it would have to pay salary for that period of time.

No other claim of prejudice was made by the Government.

'The Clerk of the Court of Claims reluctantly agreed to forward

the record in that Court and the administrative record to this Court.

Petitioner wishes to have that record before this Court principally to

demonstrate its completeness and comprehensiveness.

9

The Court of Claims, in the complete absence of a

corresponding pleading or suggestion by the Government,

conjured up the spectre of an extensive trial and prolonged

proceeding inherently prejudicial to respondent in the face of

the willingness by both petitioner and respondent to have the

merits of FROMMHAGEN’s cross-motion summarily

adjudicated on the basis of facts appearing on the face of the

administrative record.

The Court of Claims was in error when it stated in its

Opinion of March 22, 1978 (Appendix A) that the case of

Brundage v. United States, 205 Ct. Cl. 502, 504 F. 2d 1382

(1964), cert. denied 421 U.S. 998 (1975) controls. BRUN-

DAGE and FROMMHAGEN are completely distinguishable.

BRUNDAGE, in the Court of Claims and before this Court,

sought a trial which was required to introduce evidence and to

test credibility in regard to alleged misconduct by a former

superior. On the other hand, FROMMHAGEN in his motion

for summary judgment alleges procedural defects in the dis-

charge and appellate proceedings which are apparent from the

face of the administrative record, and he rejects the need for a

trial.

The UNITED STATES in this action, by reason of

petitioner’s limitation of his claim to exclude the delay period

and petitioner’s sole reliance on the administrative record, not

only is in the same posture as it was in 1971 or 1972, but it has

benefited by the delay period due to petitioner’s waiver in 1978

of a trial which he might have requested had he filed in 1971 or

1972.

It was not until the Order denying petitioner’s motion for

rehearing (Appendix B) that the Court of Claims

acknowledged that FROMMHAGEN had waived trial and

requested only a summary adjudication, but it ruled that a trial,

prejudicial to respondent, is necessary because, that Court

stated, petitioner wishes to enter into evidence a “few depos-

itions”. Absent from that Order were the facts that the

10

depositions had never been taken and that the depositions, if

the Court of Claims had not denied leave to take them, would

have focused upon the threshold issue of laches in respondent’s

motion for summary judgment.

No fewer than eight significant distortions of the facts and

several vindictive statements concerning petitioner in the opin-

ions (Appendix A and B) of the Court of Claims reflect the

considerable animus on the part of that court towards

FROMMHAGEN. The following two examples of distortion

and invective are cited.

The Court of Claims stated in its Opinion of March 22,

1978 (Appendix A), that petitioner does not seek damages in

money, but rather only a “jurisdictional dollar’, vindication

and vilification. It is clear from petitioner’s pleadings, as he

clearly stated in his motion for rehearing, that his only objective

is to retrieve his backpay for the period between September 6,

1968 and some date in 1972 or 1973 in an amount ranging from

$75,000 to $90,000. The latter amount of money is hardly a

‘jurisdictional dollar’.

Still another instance is the assertion of the Court of Claims

In Its Opinion Of March 22, 1978 (Appendix A), that no

attorney would represent petitioner, a ‘finding’ without suppor-

ting evidence. In his motion for rehearing FROMMHAGEN

included the affidavits of two attorneys, one of whom is now a

justice of the California Court of Appeal, in which they testified

that they had been willing to represent FROMMHAGEN in

1971 or 1972 if it had not been for his inability to pay their fees

or the orders of petitioner’s physicians that he abstain from

legal challenges to the discharge action. In rejoinder, the Court

of Claims, in its order denying petitioner’s motion for rehearing

(Appendix B), suggested that the attorneys “might” have

raised their fees “‘as a pallative to outright rejection” and then

went on to state that the issue was of no relevance. Such snide

and callous remarks on irrelevant issues without any eviden-

tiary foundation measure the considerable hostility of the Court

towards petitioner.

11

The Court toyed with petitioner as the cat with the mouse

before the kill. For example, first it denied him leave to file a

motion for summary judgment, then reversed that decision, and

finally denied him an adjudication of that motion. The Court

denied him leave tc take a deposition and then ruled that a trial

is necessary io enter the phantom depositions. Even a cursory

reading of the Court’s opinions detects the Court venting its

spleen on petitioner.

FROMMHAGEN demonstrated in his Motion For

Correction Of The Judgment And For Reopening Of The

Proceeding that he had waived trial and introduction of new

evidence and had requested only a summary adjudication of his

claims. It is not surprising that the Court of Claims, clinging to

the illusion of prejudice it has fashioned in behalf of the

UNITED STATES, was silent as to the reasons for its denial of ;

that motion (Appendix C).

The creation of the illusion of prejudice to respondent, and

the maintainence of that illusion in the face of petitioner’s and

respondent’s waivers of trial, against the backdrop of the

obvious animus of the Court of Claims, constitute an abuse so

foreign to the accepted and acceptable course of federal judicial

proceedings as to invoke the intervention and supervision of

this Course, especially in the absence of any other appellate

authority over the Court of Claims.

Petitioner respectfully suggests that the tinie has arrived

for a prescription by this Court of strict standards, applicable to

all of the federal courts, governing the imposition of the

doctrine of laches. As this case demonstrates, courts can and do

abuse that doctrine by weaving illusions for the purpose of

denying to a party its day in court.

Il. THE SUMMARY JUDGMENT GRANTED BY THE COURT OF CLAIMS

VIOLATED FEDERAL APPELLATE LAW AND BLACK LETTER FEDERAL

RULES.

The court should look at the record in the light most

favorable to the party opposing a motion for summary

12

judgment, and summary judgment shall not be granted when

triable issues of fact exist, Rule 56(c), Federal Rules of Civil

Procedure; Rule 101(d), Rules of the United States Court of

Claims; Poller vs. Columbia Broadcasting System, Inc., 368 U.S.

464, 82 S. Ct. 486 (1962); Redhouse vs. Quality Ford Co., 511

F. 2d 414 (CA 10th, 1975); United States vs. J. B. Williams

Co., 498 F. 2d 414 (CA 2nd, 1974); Passinger vs. South Cent.

Bell Tel. Co., 505 F. 2d 612 (CA Sth, 1974); Knapp vs. Kinsey,

249 F. 2d 797 (CA 6th, 1957); Sequoia Union High School vs.

United States, 245 F. 2d 227 (CA 9th, 1957).

The petition and the affidavits of petitioner, his physicians,

his attorneys, his family and associates contained in his opposi-

tion to the Government’s motion for summary judgment and in

his motion for rehearing allege that FROMMHAGEN was

unwilling and unable to file suit, or to have an attorney do so

for him, in the period of 1971 through 1977 by reason of illness

and financial incapacity. Those sworn allegations produced a

triable issue of fact by contravening respondent’s bare and

unsworn statement that petitioner was able to file in 1971 or

1972.

Nevertheless the Court of Claims granted respondent’s

motion for summary judgment on the ground of laches and

completely ignored petitioner’s request for a trial limited solely

to the triable issues with regard to the reasons for petitioner’s

delay in filing suit and the specific nature of the prejudice to

respondent resulting from that delay.

The uncontroverted allegations in the petition and the

affidavits submitted by plaintiff FROMMHAGEN in opposition

to the Government’s motion for summary judgment should

have been regarded as true for purposes of adjudicating that

motion, Niswonger v. American Aviation, Inc., 411 F. Supp. 763

(1975), affirmed 529 F. 2d 526 (CA 6th, 1976); Echaide v.

Confederation of Canada Life Ins., 459 F. 2d 1377 (CA 5th,

1972); Melo-Sonics Corp. v. Cropp, 228 F. Supp. 393, reversed

on other grounds 342 F. 2d 725 (CA 8th, 1964); Guinn Co. v.

13

Mazza, 296 F. 2d 441 (CA D.C., 1961); Safeway Stores v.

Wilcox, 220 F. 2d 661 (CA 10th, 1955); Lewis v. Atlas Corp.,

158 F. 2d 599 (CA 3rd, 1946); Furton v. City of Menasha, 149

F. 2d 945 (CA 7th, 1945). Indeed the Court of Claims in its

Opinion of March 22, 1978 (Appendix A, pg. 2, lines 34-36 and

pg. 5, lines 11-13) echoed that appellate law. However, that

Court, acting from its animus toward FROMMHAGEN, found

that he was willing and able to file suit earlier in flat con-

tradiction of the uncontested allegations to the contrary in the

petition and in the affidavits submitted in opposition to the

Government’s motion.

In its decision of March 22, 1978 (Appendix A) the Court

of Claims asserted that FROMMHAGEN had dropped only

“hints” that he was unable to file suit in 197] or 1972. Those

“hints” were, in_ reality, clearcut § allegations in

FROMMHAGEN'S petition and in the affidavits filed by him.

The disparity in the approach to, and resolution of a

motion for summary judgment between the Court of Claims

and, on the other hand, federal appellate law and black letter

rules of procedure invokes a review by this Court and an

exercise of its power of supervision in the absence of any other

appellate authority over the Court of Claims.

RESTATEMENT OF WAIVERS

Petitioner once again waives trial, discovery and the

introduction of new evidence and requests only a summary

adjudication, based upon the administrative record, of all of the

issues he posed in his petition to the United States Court of

Claims.

Petitioner respectfully requests the Solicitor General to

hearken to the simple justice in this matter and to join with

petitioner in the request that this matter be remanded to the

Court of Claims for adjudication on the basis of the waiver

stated above.

14

PRAYER

For all of the reasons stated herein, petitioner respectfully

requests that a writ of certiorari issue to review the summary

judgment granted to the United States by the United States

Court of Claims.

Dated: November 14, 1978.

Respectfully submitted:

LAURENCE H. FR AGEN

Pro Se

Appendix A

Gn the Gnited States Court of Glaims

No. 177-77

(Decided March 22, 1978)

LAURENCE H. FROMMHAGEN v. THE UNITED

STATES

Laurence H. Frommhagen, Pro se.

Arlene Fine, with whom was Assistant Attorney General

Barbara Allen Babcock, for defendant.

Before Cowen, Senior Judge, NicHoLs and BENNETT,

Judges.

ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND

PLAINTIFF'S CROSS-MOTION FOR SUMMARY JUDGMENT

/

NicHo.s, Judge, delivered the opinion of the court:

This case is before the court on cross-motions for

summary judgment. Plaintiff appears pro se. It is a civilian

pay case, and the petition was filed April 1, 1977. Plaintiff,

a former employee of the National Aeronautics and Space

Administration (NASA) at Grade-14, sues to recover back

pay from his alleged illegal discharge on September 6,

1968, until September 14, 1974, when he obtained other

employment, or until such other date as the court may

determine after consideration of his reasons for delay in

bringing suit. He does not claim reinstatement.

2

Defendant’s motion, which was the first to be filed, set up

the threshold defenses of laches and collateral estoppel.

The latter, however, is readily disposed of. In Frommhagenv.

Klein, reported in 456 F.2d 1391 (9th Cir. 1972), the plaintiff's

district court suit was intended to test the legality of his

removal from the payroll before his appeal was heard, an

issue not before us. So he says and so defendant now

admits. It was premature for any other purpose as he had

not exhausted his administrative remedies when he filed it.

Remarks in the appellate opinion that seem to pass on

other issues were written gratuituously, he says. We

conclude the case does not establish res judicata or

collateral estoppel here. The laches issue is more complex,

sufficiently so to require a formal, signed opinion, and the

facts are indeed unusual.

Plaintiff's cross-motion for summary judgment was

founded on the merits of the case and defendant in

response has also discussed the merits, claiming itself

entitled to summary judgment on merits grounds also. If

laches is the decisive issue, however, as we believe it is,

merits are not reached and need not be considered.

Plaintiff commenced a probationary employment with

NASA as a GS-14 in 1962, successfully completed proba-

tion a year later, and received full career status in August

1965. His course even then was far from smooth, however,

as he received a memorandum in 1964, had a “corrective

interview” in November 1964, and received a letter in

January 1965, all dealing with alleged weaknesses in his

performance as a research scientist. Over a year before

separation he was denied a within grade salary increase

because of not reaching an acceptable level of competence.

He seems to have had a monumental lack of rapport with

supervisors and fellow employees. His troubles received the

attention of the press. We assume solely for summary

judgment purposes that all this was the fault of others and

none of it the fault of plaintiff. He is alleged to have

demanded production of 101 witnesses, all fellow employ-

ees, at his separation hearing, and to have assumed that all

would be hostile. He filed a libel suit against an agency

lawyer on account of a critical memorandum the latter

a —-. —

3

wrote. The case is reported as Frommhagen v. Glazer, 442

F.2d 338 (9th Cir. 1971), cert. denied, 404 U.S. 1038 (1972),

He prosecuted matters under the agency grievance proce-

dure, including a discrimination complaint. He claimed,

and for summary judgment purposes we assume truthfully,

that personal hostility towards him was the motivating

factor behind his ouster.

Plaintiff is an ingenious and articulate man, but he is

manifestly unhampered by the relevancy concepts of the

professional lawyer. He has generally represented himself

and desires no other counsel; indeed, few professionals

could make life so difficult for those who stand in his way

or wish to do him what he considers wrong. As is usual in

pay cases having a protagonist of this type, the record is of

monumental size. He says he “set out from 1966 to perfect

a record so encompassing and so detailed as to all of the

events and circumstances, that little or no additional

testimony would be required * * *.” Indeed, the slow and

meticulous construction of the record became an obsession

which was a large factor in plaintiffs 1972 illness.

Defendant’s counsel filed what she supposed was the

complete administrative record, about 4,000 pages, but

upon plaintiff's strenuous protest it was ascertained that

there were 5,000 pages more. Since the oral argument,

defendant has asked and received permission to file all this

material too.

Generally speaking, in litigation, magnitude of record

produces further magnitude of record, and consumption of

time, further consumption of time, until eventually we get

those cases that run for twenty years or more, veritable

reproductions in fact of the fictional Jarndyce v. Jarndyce.

While generally it is convenient to measure times for

laches purposes in pay cases from exhaustion of adminis-

trative remedies to commencement of suit, evidently, if the

laches rule is to serve any real purpose, and not be just

another statute of limitations, judge made, we must at least

consider time froin the start of the controversy to the

prospective date of judgment, not as a laches period itself,

but in evaluating the reasonableness or excessiveness of

that period. The deliberate pelicy of the plaintiff, boasted of

4

by him, must be credited with extending the time between

the start of controversy and the exhaustion of administra-

tive remedies. Likewise, if the merits ever reach our trial

division, much as we admire and respect its capabilities, we

doubt if it can bring the case to an end in any reasonable

frame of time.

Turning, however, to the shorter period, from exhaustion

of administrative remedies to commencement of suit,

defendant points out that the former date was April 12,

1971, when the Board of Appeals and Review of the Civil

Service Commission denied plaintiff's appeal, and suit

having been brought April 1, 1977, the difference, 5 years,

11 months, and 19 days, was little short of the six-year

statute of limitations and sufficient to make out a case of

laches with little or no showing of actual prejudice.

Grisham v. United States, 183 Ct. Cl. 657, 392 F.2d 980,

cert. denied, 393 U.S. 843 (1968). This plaintiff, however,

puts forward two considerations that give the case its

unique features and require our careful consideration.

First, plaintiff cuts off his back pay claim at the date of

September 14, 1974, when he regained employment, even

though at a lower rate of pay. This period is probably less

than half that which would be required to date of

judgment, if this case goes to merit adjudication, although,

as he is employed, he may not be being as generous as it

first appears. If this cut-off does not suffice to make good

any injury to defendant from not bringing the suit soon

enough, he will accept any further cut the court may

impose. He correctly cites Chappelle v. United States, 168

Ct. Cl. 362 (1964) that a claim to back pay for a period cut

short by the plaintiff's concession cannot be defeated on

laches on the theory defendant is asked to pay two salaries

for an unreasonably long period. It still remains true that

the doctrine of laches in pay cases was not made by judges

solely and wholly to protect defendant from having to pay

two salaries for one body in place on the job, over an

unreasonably extended period. There are other reasons,

and we will elaborate below what they are. Plaintiff's

position does not detract from the weight of these other

reasons. It does, however, moot the issue whether a

5

replacement for plaintiff was actually in fact hired, which

seems to have been true, if at all, only in the broadest and

most general sense. His specific slot was not refilled.

Second, plaintiff's most strongly urged point is his

mental breakdown. Pursuing as he was a number of

lawsuits after April 12, 1971, his stresses and anxieties

mounted until in October 1972 he disappeared for three

weeks, being found on a freeway several hundred miles

from his home, unable to remember, to verbalize, or to

form mental images. He has no memory of the three week

period. He asserts, and we take it as true for summary

judgment purposes, that he remained disabled up to the

date he resumed employment, September 14, 1974. He

would, of course, be unable to show he was “ready, able,

and willing” to work during any such disability period. A

person cannot receive back pay for a period when he was

psychiatrically disabled. Carter v. United States, 206 Ct. Cl.

61, 509 F.2d 1150 (1975), cert. denied, 423 U.S. 1076 (1976).

So in a sense his claim his disability lasted so long is

disinterested. By it he further reduces his claim to a period

ending October 1972.

Plaintiff throws out hints he may have been disabled

before and after the period we allow. We think they should

be disregarded for summary judgment purposes. A person

who pro se institutes and maintains court proceedings and

administrative appeals represents by implication that he is

capable and competent of conducting his own affairs. If he

wants this court to believe the contrary for a period

selected by him, he should make a specific allegation. This

plaintiff has done, with supporting affidavits, for the period

we allow, but not for any longer period. Therefore, we hold,

for purposes of defendant’s motion, that plaintiff was

disabled psychiatrically from some time in October 1972, to

September 14, 1974, but that he was competent before and

after those dates.

Plaintiff, when his disability ended, seems to have taken

steps under the Freedom of Information Act, 5 U.S.C. § 552,

to force the Civil Service Commission to divulge decisions

in other cases that he might use in attacking the one made

in his own. He was successful in the U. S. District Court,

6

but how this furthered achievement of his ultimate goal

does not appear. His main reason for not suing here from

September 14, 1974, to April 1, 1977, is that he does not

claim for that period, but that alone does not suffice to stop

laches running.

Apart from the two salaries argument, the traditional

main reason for the laches doctrine is prejudice to

defendant from the loss of evidence by death of witnesses,

human forgetfulness, destruction of documents, etc. (De-

fendant points out that three key witnesses are dead.)

Brundage v. United States, 205 Ct. Cl. 502, 504 F.2d 1382

(1974), cert. denied, 421 U.S. 998 (1975). In that case the two

salaries argument was applicable only in the non-specific

way that it is here.

Also in Brundage v. United States, supra, this court

brought forward another reason to apply laches, that will

often arise. Most pay cases, if they involve an adverse

action, will also, often and perhaps even usually, involve

allegations of misconduct against some official who was

instrumental in effecting the adverse action. This is one of

the reasons officials are reluctant to institute such

actions when they should do so. They know it will lead to

mud being thrown at them in a proceeding to which they

are not parties and have no representation by counsel.

Brundage, supra, was a signal illustration of this, for

plaintiff's theory of his case required this court to believe

that a retired officer, years before when on active duty, had

falsified a record to conceal his own errors. Interviewed,

the officer was unable to recall anything about the case.

This court believed that in common fairness, this grave

charge should have been put to the test of trial while

memories were fresh. Because of needless delay in filing

the suit, the petition was dismissed for laches.

Here the difference is that plaintiff seeks to expose not

just one villain, but several. That difference does not

exclude the application of Brundage as authority. To be

specific, e.g., after all these years he wants to depose his

particular bete noire, Mr. Klein, who was the defendant in

the Ninth Circuit suit. And there are many others.

—

7

Thus we think the authorities require the question of

laches to be weighed, notwithstanding the shortening of

the claim period and the relative weakness of the two

salaries argument.

Plaintiff would account for not suing here in the pre-

disability period, roughly a year and a half between

exhaustion of remedies and mental breakdown, by the

assertion that he could not file here until Frommhagen v.

Klein was disposed of in the Ninth Circuit. But he has

already persuaded us that case has no collateral estoppel

effect here, because the sole issue there was whether

defendant could remove him from his job before allowing a

hearing. He cannot have it both ways. We conclude he

could, and should, have filed here as soon as his adminis-

trative remedy was exhausted. Defendant could not have

pleaded 28 U.S.C. § 1500, barring suits on claims on which

plaintiff has a suit pending in another court. Camero v.

United States, 170 Ct. Cl. 490, 345 F.2d 798 (1965) excludes

cases where the suit in the other court is for relief not

available here. We could not have reinstated plaintiff

pending his hearing, the object of the other suit.

Plaintiff also, more weakly, suggesis trouble getting

counsel to defend him. We cannot take this seriously

without supporting detail. Plaintiff is accustomed to

representing himself and does an extremely good job at it,

especially considering his purposes as we believe they are.

He is indifferent to or affirmatively desires magnitude of

record and longevity of proceedings. His object is to expose

and confute the machinations of his enemies. He is

relatively indifferent to money, having already discarded

much of his back pay claim. The last paragraph of his

petition leads us to believe he would, to keep the suit alive,

discard all the rest of it except the necessary jurisdictional

dollar. We find it hard to imagine the attorney who would

work in harness with such a client at the reins, or in

Bernard Shaw’s deathless phrase, play horse to such a

Lady Godiva. Counsel would always be demanding tactics

unacceptable to the client: to shcrten the record, to

expedite the proceeding, to bring it to judgment, to earn his

fee.

8

Thus, in view of the foregoing, our analysis of the laches

issue is as follows: This suit is not really about money,

except the minimum jurisdictional amount. In this respect,

it is not unique; the same thing is generally true in our

stigma-type military discharge cases. The conventional

money argument in laches cases, that defendant is asked to

pay two salaries for one person’s work, is not decisive here,

and weighs to such a small extent as not to influence our

decision. It is absurd to have the laches question turn on

plaintiffs being easy on defendant in his claim for

damages, when money is not really what this suit is about.

The question is whether the plaintiff has unduly and

unfairly delayed the bringing of suit, and therefore the

trial, in face of the inevitable loss of evidence that lapse of

time causes, which is only illustrated here in the demise of

witnesses, the unfairness to the living who are held with

the sword of Damocles, plaintiff's charges against their

ability and integrity, over their heads now over a decade,

not counting the inevitable further time that would elapse

before trial, and in face of the enormous record, which

demanded a prompt trial even more than in the ordinary

case. Plaintiff was not required to bring suit during his

disability, but we do not simply extend the time for suing a

length of time equal to the duration of the disability.

Rather, when plaintiff emerged from his disability, we

think he should have reviewed his intention to sue

forthwith, in light of the obvious fact that the evils incident

to his not suing promptly were still occurring, even if up to

that point they were not his fault. Thus, if the two years

lapse due to disability is excluded from the reckoning, still

it shortens to some extent the time otherwise allowable,

measured against the almost four years net delay in

actually commencing the suit. To put it another way,

whatever reprehensibility attaches to a failure to bring suit

for a continuous four year period, is greater if the period is

discontinuous, partly before and partly after a period of

disability during which, however, the case did not stop

getting stale and the involved officials were continually

kept in apprehension. Plaintiff cannot say his charges

should not be taken seriously: until they are withdrawn or

9

refuted they have to be taken seriously. Despite the

immensity of the administrative record, plaintiff does not

depend wholly upon it. He wants us to use it to pass on

cross-motions raising merits issues, but since the oral

argument he has written that some depositions will still be

necessary.

We conclude that the plaintiff's delays in bringing this

suit exceed by a wide margin the longest delay the doctrine

of laches will permit. The plaintiff, both before and since

the oral argument, has filed a number of motions all of

which may be characterized as relating to the merits issues

rather than the threshold question of laches. Our conclu-

sion moots them, and accordingly, all are denied. Upon

consideration of defendant’s motion for summary judgment

and plaintiff's cross-motion for summary judgment, and the

briefs and arguments of the plaintiff and counsel for

defendas.:, the said cross-motion is denied, defendant’s

motion is granted, and the petition is dismissed.

Appendix B

IN THE UNITED STATES COURT OF CLAIMS

No. 177-77

LAURENCE H. FROMMHAGEN

Civilian Pay: Laches,

v. Tolling of, by disability,

summary judgment, record on.

THE UNITED STATES

Laurence H. Frommhagen, Pro se.

Arlene Fine, with whom was Assistant Attorney General

Barbara Allen Babcock, for defendant.

Before COWEN, Senior Judge, NICHOLS and BEN-

NETT, Judges.

ORDER

Plaintiff, invoking Rule 151, moves to “vacate the

judgment, for a new trial, and to enter a different judgment.”

He suggests rehearing en banc according to Rule 7(d). De-

fendant has filed no response.

The court, for purposes of adjudicating laches as a defense,

accepted plaintiff's contention as we understood it, that he was

disabled from October 1972 to September 14, 1974, but pointed

out that this had consequences with regard to his being “ready,

able, and willing” to perform the job, from which he had been

2

separated, in that period. Now plaintiff rejects that holding. So

far as concerned ability to sue in this court, he says he was

disabled for a much longer period, but for all other purposes,

he was hardly disabled at all, except from November 19, 1972

to January 2, 1973. We are unable, for laches purposes, to

accept this notion of selective disability for one unique and

special purpose. A litigant cannot thus embrace his disability

when it is to his litigation advantage to do so, and reject it

when, in the same litigation, the disability would be dis-

advantageous. If we conclude, as plaintiff would have us do,

that except for two and one-half months plaintuff was not

disabled for purposes other than suing in this court, we must

also conclude that disability drops out of consideration as

tolling the laches period.

Plaintiff shows that some attorneys would have represented

him in this case except for his inability to meet their fee

demands. From our observation of plaintiff representing

himself, we concluded that his attitude towards the judicial

process would impair the willingness of most attorneys to be

retained on his behalf. Some attorneys might well ask for a fee

they knew the client could not or would not pay, as a palliative

to outright rejection. The reasons for inability to obtain counsel

do not matter in view of plaintiffs willingness to represent

himself, and his normal practice of doing so. Time spent

seeking for counsel might excuse some delay in bringing suit,

but far less than the almost six years of delay herein.

Plaintiff seems to believe that on summary judgment,

absent a trial, he could open up the record to introduce

additional evidence: “a few depositions,” including that of

Harold P. Klein. This is wrong, because in pay cases involving

review of Civil Service Commission decisions, the record as it

was before the Commission cannot be supplemented at the

summary judgment stage. Shanteau v. United States, 208 Ct.

Cl. 983 (1975). Im such cases, at times, added evidence is

taken, but at trial. Thus a trial is necessary for the “few

3

depositions” to get in. In the event of a trial, of course

defendant also could offer evidence. It would not be required

to use the testimony at the administrative proceedings. What

influence the gigantic administrative record would have on the

duration of a trial, should there be one, is speculative, but trial

is not the whole of a case. We continue to believe in the

probability of a litigation of extended duration should we not

dispose of the case, as we have done, on summary judgment.

Plainuff cannot ask for “a few depositions” and in the same

breath claim he has made a trial unnecessary.

With respect to the suggestion for rehearing en banc, a

majority of the judges of the court on regular active service not

having voted to rehear the case, the suggestion is denied,

without oral argument.

Accordingly, plaintiff's motion to vacate the judgment, for

a new tral, and to enter a different judgment, is denied.

BY THE COURT

PHILIP NICHOLS, JR.

Judge, Presiding

Appendix C

IN THE UNITED STATES COURT OF CLAIMS

No, 177-77

LAURENCE H. FROMMHAGEN

Vv,

THE UNITED STATES

Before NICHOLS, Judge, Presiding, COWEN, Senior

Judge and BENNETT, Judge.

ORDER

This case comes before the court on plaintiff's motion, filed

September 12, 1978, pursuant to Rule 152(b), for “correction

of the judgment and for reopening of the proceeding”

requesting that the court correct its order entered herein on

June 23, 1978 denying plaintiff's motion for rehearing, to vacate

the judgment and for new trial. Upon consideration thereof,

without oral argument,

IT IS ORDERED that plaintiff's said motion, filed Septem-

ber 12, 1978, be and the same is denied.

BY THE COURT

Philip Nichols, Jr.

Judge, Presiding