Petition — DeCrane v. United States

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DEC 2 1982

TS SD HO

OWE TEV AS,

i CLERK

In the Supreme Court of the United States

October Term, 1982

TERRANCE A. DeCRANE,

and

STANLEY N. RADISH,

Petitioners,

VS.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

To the United States Court of Claims

Jerrrey W. LarGENT, Counsel of Record

LARGENT & KLUBERT

11925 Pearl Road, #302

Strongsville, Ohio 44136

(216) 238-1313

Counsel for Petitioners

‘nnn; in; 5

THE GATES LEGAL PUBLISHING CO,, CLEVELAND, OHIO-—TEL, (216) 621-6647

QUESTIONS PRESENTED

(1) Whether the United States Court of Claims erred

in deciding as a matter of law that plaintiffs received the

training described in their contracts?

(2) Whether the Court of Claims erred in deciding

as a matter of law that plaintiffs received everything they

were validly promised under the enlistment agreements

and have not stated a valid claim for breach of contract?

(3) Whether disputes involving breaches of enlist-

ment contracts are subject to general principles of contract

law and allow money damages to be awarded for such

breaches?

TABLE OF CONTENTS

Questions Presented ....................... Pe MON Rs Nk CaN I

NE Me PID vassivicisivesniehalicininglsniabrimipiciaicaamgaaagda IV

III TIT ccssinsndecisibecssinsntnagrid xpesiepniliomdaguaenmiiaieds 1

PURINE esitcccincsintiotimssinmintoien iciaebilaeigacabes 1

BOREIGE TITTIES oh iicccsisctichiensassiviinaiiemetmmsiiaaind 2

PUIG GE FIG anc csisiciccnnistitsijaendcsnieipnictatsaiatessenceniiaiates 2

Reasons for Granting the Writ ..................:cccccccececseeseeeeseeee 3

ORI: scsinciccitiniasciishnctiitnttintstiipiecin pelea auialdataen anim 8

Appendix:

Order of the United States Court of Claims (Sep-

oe Ee __| me remem IES A Resp a esetrA2 Al

Reenlistment Agreement Between U.S. Army and

TORTOINOD Fh, TIUII oicccssirsenenaiinsennnnsaninsiahaiaipdadioeats A6

Enlistment Agreement Between U.S. Army and

ON BT TI ciiissisivicinsctsvsensiorIisensneocatclback All

Army Regulation 611-201 200.000.0000 ccccccceceeeteeneeeeee Al4

Army Regulation 635-200 o00.0.....00....ccccececcecseeeeeeeneeeeeees Al19

Affidavit of Christine Dolfi, R.N. 00... A26

TABLE OF AUTHORITIES

Cases

Federal Crop. Ins. Corp. v. Merrill, 332 U.S. 380, 68

S. Ct. 1, 92 L. Ed. 10 (1947) 7

Jackson v. United States, 573 F.2d 1189 (Ct. Cl. 1978) 7

Novak v. Rumsfeld, 423 F. Supp. 971 (U.S. D.C. N.D.

PRES eae cele BNE Pe ee 7

Peavy v. Warner, 493 F.2d 748 (5th Cir. 1974) ............. 7 |

United States v. Larionoff, 431 U.S. 864 (1977) sce... 8 |

Withum v. O’Connor, 506 F. wench 1374 (U.S. D.C.

I ID NED ca tingrsivtnsinstisiasinidilanistsnicinientaineaties 7

Statutes and Regulations

28 U.S.C. §1255 iedisdieichhaaeantinasd eaicnonisbadasecnatainieidbeess 1

SEE TE EEE: UPI sis seistiednotiacnpnicsnsesnaenenesionntnsnenscnnninteaseednestapiy 2

PETRI TORII GEO cise ccserccnnsnizccensnnieniactentenssactenetins 2, 4,5

Army Regulation 635-200 ....... Rel aioe 2,6

No.

In the Supreme Court of the United States

October Term, 1982

TERRANCE A. DeCRANE,

and

STANLEY N. RADISH,

Petitioners,

VS.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

To the United States Court of Claims

Petitioners, Terrance A. DeCrane and Stanley N.

Radish, respectfully petition for a writ of certiorari to re-

view the judgment of the United States Court of Claims

entered in the above entitled case on September 3, 1982.

OPINION BELOW

. The Opinion as given in the Order of the United States

Court of Claims is printed in Appendix hereto, infra,

pp. Al-A5.

JURISDICTION

The Order of the Court of Claims (Appendix, infra,

p. Al) was entered on September 3, 1982. The juris-

diction of the Court is invoked under 28 U.S.C. §1255: -

REGULATIONS INVOLVED

Army regulations (AR) 611-201 and 635-200. Pertinent

portions of these regulations have been set forth in the

Appendix, pp. Al4 to A15.

STATEMENT OF FACTS

In 1977 plaintiffs, Terrance DeCrane and Stanley N.

Radish enlisted in the United States Army to be trained

and then serve as Clinical Specialists. This training and

service was represented by the Army to be equivalent

to the training and experience of a civilian licensed prac-

tical nurse.

Shortly after they bege serving, plaintiffs discovered

that the training and expe: ace that they were actually

receiving would in no way qualify them to apply for cer-

tification as licensed practical nurses. Plaintiffs attempted

to cure the problem by requesting the Army to train them

as they were entitled to be trained by contract. Defen-

dant refused to provide such training.

Subsequently, plaintiffs sought immediate release

from the Army, which when requested were denied for

substantial periods of time before plaintiffs were dis-

charged.

Plaintiffs filed this action in contract in the Court of

Claims seeking damages for loss of past and future in-

come, the value of training they would have received and

the costs of all litigation resulting from the government’s

breaches.

Jurisdiction was based on the Tucker Act, 28 U.S.C.

§1491.

3

The Court of Claims’ Motion for Summary Judgment

granted defendant’s Motion for Summary Judgment and

dismissed plaintiffs’ Petition (See Appendix p. Al).

REASONS FOR GRANTING THE WRIT

There are material facts in dispute and the Court of

Claims erred in granting defendant’s Motion for Summary

Judgment.

The training promised plaintiffs was a material ele-

ment of their contract and the primary inducement for

plaintiffs to enter into said contract. Determining the

meaning of “MOS 91 C10” training presents a genuine issue

of material fact.

The Army promised plaintiffs training and experience

which would have qualified them to apply for certification

from their State’s Nursing Board as licensed practical

nurses.

A written contract (copy attached hereto, Appendix

p. A6) was entered into between the defendant and plain-

tiff Terrance DeCrane on the 8th day of December, 1977,

providing that said plaintiff would re-enlist in the Army

of the United States for a term of four (4) years and be

trained for and then serve in the Military Occupational

Specialty (MOS 91 C10). It is not disputed that the writ-

ten contract promised and guaranteed plaintiff technical

school training known as MOS 91 C10 (See items la and

lb of Annex A, Appendix p. A9).

A similar enlistment contract with identical promises

and guarantees was entered into by defendant and plaintiff

4

Stanley N. Radish on the 12th day of October, 1977 (Copy

attached hereto Appendix p. All).

Army Regulation 611-201 provides job descriptions for

every existing position in the Army. Regulation 611-201

Chapter 6 contains the description of MOS 91 C10 and is

entitled “Clinical Specialist” (See Appendix p. Al4). It

is not disputed that plaintiffs are privy to this publication

by reason of regulations which incorporate such job de-

scriptions into enlistment contracts.

Page two (2) of the MOS 91 C10 describes the quali-

fications to serve as a 91 C10. Under this regulation, the

enlistee must go through “Mandatory Formal Training” or

“possess current State or Commonwealth of Puerto Rico

license as practical or vocational nurse” (See Appendix

p. Al5). On its face, this Army Regulation equates man-

datory formal training to that of an individual who is

trained and licensed as a practical nurse.

A review of the duties performed by a MOS 91 C10

(as contained in Appendix p. Al4) reflects that the duties

to be performed in this classification are in many instances

duties that could only be performed by a licensed prac-

tical nurse (See affidavit of nurse attached hereto as

Appendix p. A26).

Furthermore, page two (2) of MOS 91 C contains the

classification of “nurse licensed, practical” as a “related

civilian occupation” to that of MOS 91 C10. The word

“related” in common usage is defined as “associated” or

closely connected (See WessTer’s Dictionary). Yet, the

training received by plaintiffs proved to be wholly inade-

quate in helping them to qualify for certification from their

State Nursing Boards as licensed practical nurses.

Army recruiters were acting in the scope of their

authority while explaining to plaintiffs the meaning of the

MOS 91 C10 job description.

_ In addition to supplying plaintiffs with a written

publication of Army Regulation 611-201 outlining the train-

ing and experience allegedly given to a 91 C10, the Army

provided plaintiffs with personnel to explain the meaning

of that “career opportunity”. Enlisted Army personnel

in the Military Occupational Specialty, OOE, otherwise

known as recruiters, have duties which include counseling

prospective enlistees, discussing training opportunities and

explaining military/civilian educational opportunities (See

Appendix p. Al6). It cannot be seriously argued that

recruiters were acting beyond the scope of their duties

and without the authority provided to them by Army

Tkegulation 611-201 when recruiters explained the meaning

of MOS 91 C10 to plaintiffs. It is well settled law that

the United States is bound by the representations of agents

acting within the scope of their duties and authority.

The regulations pertaining to. alternatives available

to plaintiffs in the event the government could not fulfill

its commitment were misleading and unconstitutional. To

uphold such regulations would perpetrate considerable in-

justice.

The Army contends that part II, item 4 of Annex A

attached to plaintiff DeCrane’s contract (See Appendix p.

A9) and Section III 1f of Annex B attached to plaintiff

Radish’s contract (See Appendix p. Al2) constitutes ex-

clusive remedies for the Army’s failure to fulfill its com-

mitments. The Army also argues that plaintiffs received

their remedy when they were discharged from service.

The clauses in plaintiff’s contracts read as follows:

“In the event my enlistment cannot be fulfilled, the al-

ternatives available to m2 will be as provided in Chap-

ter 5, Army Regulation 635-200, as of the date of my

claim of unfulfilled enlistment commitment .. .”

The regulations in Chapter 5, 635-200 applicable to

plaintiff DeCrane’s enlistment are those dated November

21, 1977 (See Appendix p. Al9). Those applicable to

plaintiff Radish are dated June 1, 1978 (See Appendix

p. A23).

Stated simply, the above mentioned contract clause and

Army Regulation 635-200 provided contract clause and

Army Regulation 635-200 provided plaintiffs with the al-

ternatives of staying in the Army or obtaining discharges as

of the dates of their claims of unfulfilled enlistment com-

mitments.

The Army does not dispute that plaintiff DeCrane

made his claim for unfulfilled commitment on July 12,

1978 choosing the alternative of discharge. Plaintiff's re-

quest was denied on September 26, 1978. The Army did

not honor plaintiff DeCrane’s contractual right to discharge

until January 23, 1979; this was more than six (6) months

after the date of his claim. Similarly, plaintiff Radish was

not awarded his remedy of discharge until nearly eight

months after the uate of his claim. In both cases, the Army

initially denied plaintiffs’ requests, but then realized its

mistakes and released plaintiffs from service. Surely

plaintiffs had rights to releases from the Army as of the

dates of the Army’s initial decisions. Thus, the Army

breached its commitment to provide plaintiffs with speedy

discharges.

Assuming arguendo that there was a legitimate public

policy favoring national security which precluded plain-

tiffs from obtaining the remedies to which they had con-

tractual rights, then there should be some remedy afforded

plaintiffs to avoid considerable injustice. Plaintiffs De-

Crane and Radish were twenty-one and twenty-five-years

old respectively when they entered into the contracts

which are the subject of this litigation. As a result of these

7

contracts, plaintiffs DeCrane and Radish expended over

thirteen and sixteen months of their lives, respectively,

serving the Army. In exchange for their time in service,

plaintiffs gained training which was of little or no value in

preparing them to apply for certification as licensed prac-

tical nurses. The remedy clause in plaintiffs’ contractr

was not enforced and did not make them whole. Neither

plaintiffs nor reasonable individuals would enter into a

contract knowing that their remedies would be so narrow

and be so slow in coming. The remedy provided plaintiffs

was unconscionable and inappropriate under the circum-

stances. Nevertheless, such questions of reasonableness

and unconscionability are questions to be determined by the

trier of fact and not properly decided in summary judg-

ment proceedings.

Ill.

Current case law supports the plaintiffs’ arguments.

In this era of a volunteer military establishment, mili-

tary enlistment contracts are subject to modern principles

of contract law. Withum v. O’Connor, 506 F. Supp. 1374

(U.S. D.C. Puerto Rico 1981); Novak v. Rumsfeld, 423 F.

Supp. 971 (U.S. D.C, N.D. Cal. 1976); Peavy v. Warner,

493 F.2d 748 (5th Cir. 1974).

Above all other contracting parties, the government

must be held to its promises. Novak v. Rumsfeld, supra.

There have been cases where courts have considered

claims for money damages arising from alleged breaches of

enlistment agreements, although in each case the court has

found no breach. Jackson v. United States, 573 F.2d 1189

(Ct. Cl. 1978).

The United States is bound by agents acting within

their authority and as provided by regulations. See gen-

erally, Federal Crop Ins. Corp. v. Merrill, 332 U.S. 380, 68

S. Ct. 1, 92 L. Ed. 10 (1947).

8

In United States v. Larionoff, 431 U.S. 864, 877 (1977),

this Court recognized that regulations promulgated by the

military may be ambiguous and mislead enlistees. In foot-

note 19, the Court stated as follows:

“To the extent that such beliefs had been fostered up-

holding the regulations would perpetrate a considerable

injustice.”

Current law indicates that plaintiffs have stated causes

of action upon which relief may be granted.

In summary, the government breached its obligations

to train plaintiffs as described in their contracts. Provi-

sions in the contract obligated the government to provide

plaintiffs with alternatives to remedy the breaches. The

government breached its obligations to adequately provide

these alternatives. Thus, the government’s breach of its

training obligation has not been cured.

It is proper to have the above facts decided by the

trier of fact. Plaintiffs have stated breach of contract

causes of action upon which relief in the form of money

damages may be granted.

CONCLUSION

For the foregoing reasons, this petition for a writ of

certiorari should be granted.

Respectfully submitted,

JEFFREY W. LARGENT, Counsel of Record

LARGENT & KLUBERT

11925 Pearl Road, #302

Strongsville, Ohio 44136

(216) 238-1313

Counsel for Petitioners