Petition for Writ of Certiorari — Watstein v. United States, 110 S. Ct. 725 (1990) (No. 89-716)

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' yosePH F. SPANIOL, JR.

CLERK

NO. —_——

-

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1989

PAUL G. WATSTEIN

Petitioner,

vs.

UNITED STATES OF AMERICA

~ Respondents.

PETITION FOR WRIT OF CERTIORARI

To the United States Court of Appeal :

for the Federal Circuit

Attorney for petitioner:

PAUL H. GREISEN

GREISEN LAW CORPORATION

2230 L Street

Sacramento, CA 95816

(916) 447-2073

QUESTION PRESENTED

Whether the granting of defendant's

motion for summary judgment may be based on

the fact that plaintiff is unable to

summarily prove each element of his case

prior to trial?

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TABLE OF CONTENTS

\

QUESTION PRESENTED

TABLE OF CONTENTS

TABLE OF AUTHORITIES

PETITION FOR WRIT OF CERTIORARI

OPINIONS BELOW

JURISDICTION

STATUTES INVOLVED

STATEMENT OF CASE

REASON FOR GRANTING WRIT

CONCLUSION

EXHIBIT LISTING

PROOF OF SERVICE

» ii «

ee ah

TABLE OF AUTHORITIES

Short v. Louisville & N.R. Co.

, Ed Tenn.) 213 F Supp 549

Prince v. Pittston Co.

(1974) 63 FRD 28, 22

Sanders v. United States

F 801

Doft v. Brunswick (1966)

372 Fad BOL

Massaro v. Venitron Corp (1983

559 F Supp 1068

Pennsylvania v. Curtiss Natl. Bank

TiST0} 47 Fid 395

United States v. Bosur

(1976) 530 Fod 1105

United States v. General Motors

(1974) 65 FRD 115, 119

Klein v. Lionel Corp

(1955) I8 FRD 184

Bloomgaden v. Coyer

CLOTS} 479 F2a sbi

Ozark Milling Co. v. Allied

Mills inc. eUYED

480 F2d 1014, 1015

« {ii -

Pages

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No.

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1989

PAUL G. WATSTEIN

| Petitioners,

vs.

UNITED STATES OF AMERICA

Respondents.

PETITION FOR WRIT OF CERTIORARI

To the United States Court of Appeal for

the Federal Circuit, To the Honorable Chief

Justice of the United States and To the

Honorable Associate Justices ot the Supreme

Court of the United States:

Paul G. Watstein, the Petitioner

herein, prays that a Writ of Certiorari be

issued to review the judgment of the

United States Court of Appeal for the

on

Federal Circuit entered in the

above-entitled action on May 3l, 1989.

OPINIONS BELOW

The opinion of the United States

Court of Appeals for the Federal Circuit

entered May 31, 1989 is contained in

Appendix A hereto.

The opinion of the United States

Claims Court filed September 21, 1988 is

contained in Appendix B hereto.

The opinion of the United States

Court of Appeals for the Federal Circuit

entered December 18, 1987 is contained in

Appendix C, hereto.

The opinion of the United States

Claims Court filed May 29, 1987 is

contained in Appendix D, hereto.

JURISDICTION

The opinion of the United States

Court of Appeals for the Federal Circuit was

entered on May 31, 1989.

The jurisdiction of the United States

Supreme Court is involved under 28 United

States Code §1254(1).

STATUTES INVOLVED =

Air Force regulation 36-39 attached as

Appendix E.

STATEMENT OF THE CASE

On October 27, 1986, plaintiff filed a

petition in the United States Claims Court

seeking back military pay and a correction

of military records. (JA 5)

All references to JA are to the Joint

Appendix filed with plaintiff's reply brief

in the U.S. Court of Appeals for the Federal

Circuit. Watstein Ve U.S. 89-1100.

Appellant has requested certification of the

record below (for transmission to this

Honorable Court.

Upon motion for summary judgment by

the defendant and opposition and

cross-motion for summary judgment by

plaintiff, the Claims Court granted

defendant's motion and dismissed

plaintiff's complaint. (JA p.4) The basis

of plaintiff's Claim was that upon

completion of Officer's Training School

(OTS) on February 14, 1980, plaintiff was

commissioned as a 2nd lieutenant pursuant

to executive order AH-0874 and sworn in as

the same. All necessary paperwork was

completed including an AF133 form.

Plaintiff was issued travel orders

reflecting his commission as a 2nd

Lieutenant. (JA p.5)

On March 21, 1980, plaintiff was

informed during in-processing at Mather

AFB, Sacramento, California, that he had

f

J

been administratively disenrolled from OTS

on March ll, 1980, as a result of the

faculty board's recommendation. (JA p. 7)

The alleged disenrollment of plaintiff

occurred after plaintiff had already

graduated from OTS and had been sworn in as

a 2nd lieutenant. In fact, the

recommendation for disenrollment was not

even made until five days after graduation

and commissioning. (JA p.39 §1, p.53 §3)

No action has ever been taken by the

U.S. Air Force or any entity to reduce

plaintiff's grade from 2nd lieutenant. (JA

p-7 §VIII) However, plaintiff has been

deprived of the military pay and allowances

commensurate with his true rank. (JA p.8

§xXVI) Plaintiff has sought to have his

military records corrected

administratively, but the correction board

(AFBCMR) rejected his claim. (JA p.43)

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— The defendant's motion for summary

judgment was based on the grounds ot laches

and also on the merits. Plaintiff then

submitted an opposition to defendant's

motion and a cross-motion for summary

judgment. j

The U.S. Claims Court granted

defendant's motion for summary judgment on

May 29, 1987 based upon the merits while

denying plaintiff's cross-motion, on the

ground that plaintiff failed

to substantiate any claim on the merits.

The Claims Court denied defendant's motion

with respect to laches, finding no

monetary prejudice. (JA p.4)

Plaintiff appealed to the United

States Court of Appeals for the Federal

Circuit on July 17, 1987. (Plaintiff's

Notice of Appeal Watstein v. U.S. 87-1472)

The Appeals Court vacated the decision of

5 tn eee OS i ae

the Claims Court and remanded the case for

reconsideration of the defense of laches,

specifically non-monetary actual

prejudice. The merits of the case was not

considered by court. (Decision of the

Court of Appeals, Watstein v. U.S.

87-1472, 12/18/87.) (Appendix C)

Further briefing was filed on the

issue of laches. Defendant submitted a

declaration of Capt. Steven J. Pecinovsky

alleging the inability to locate certain

documents.

The Claims Court reaffirmed its

Gecision September 21, 1968, on the merits

and found for defendant on the issue of

laches based upon an asserted inability of

defendant to locate a log book that would

have evidenced the execution of Plaintiffs

AF 133 Form and the inability to locate an

amendment to special order AF 0874.

(September 1, 1988, Order of the Claims

Court) (Appendix B)

Plaintiff again appealed to_ the

United States Court of Appeals for the

Federal Circuit.

On May 31, 1989 the Appeals Court

affirmed the decision of the Claims Court

on the merits finding that plaintiff had

failed to prove that the AF 133 Form was

executed or that plaintiff took’ the

required oath. (Appendix A)

Although specifically remanded

previously for reconsideration of the issue

of laches, the issue was not addressed by

the Appeals Court, apparently not reached

in view of the finding on the merits.

REASON FOR GRANTING WRIT

The failure of plaintiff to prove his

case summarily does not relieve defendant

of its burden to prove absence of material

fact and entitlement to judgment as a

matter of law.

The United States Court of

Appeals for the Federal Circuit affirmed

the decision of the Claims Court based upon

plaintiff's lack of evidence proving that

an AF 133 Form was executed and that

plaintiff took the required oath.

Plaintiff does not have to prove

the execution of an AF 133 Form and taking

of the oath in order to defeat defendant's

motion for summary judgment.

Plaintiff may have to prove the

above in order to prevail on his own motion

for summary judgment but he does not have

to prove the above to defeat defendant's

motion for summary judgment. Plaintiff

need only raise a triable issue of material

fact in order to defeat defendant's motion.

On motion for summary judgment

the court cannot try issues of fact, but

must only determine whether there are

issues of fact to be tried. Summary

judgment is not a substitute for trial.

Only when it is quite clear what the truth

is and that no genuine issue remains is

summary judgment proper. Short v.

Louisville & N.R. Co. (1962, Ed Tenn.) 213,

F Supp 549, 550

Summary judgment should not_ be

granted unless the entire record shows

movants right to judgment with such clarity

as to leave no room for controversy and

establishes affirmatively that the adverse

party cannot prevail under any

circumstances. Prince v. Pittston Co.

(1974) 63 FRD 28, 32.

The standard of proof which plaintiff

must meet as set forth in Sanders v. United

States, (1979) 595 F2d 804, 811

“ 10 «

provides:

"That the Correction Board's decision was

illegal because it was arbitrary or

capricious, or in bad faith, or unsupported

by substantial evidence, or contrary to

law, regulation or mandatory published

procedure of a substantive nature by which

plaintiff has been seriously prejudiced and

money is due.”

In this case, plaintiff is prepared

to meet this burden, however, he is unable

to prove his case summarily.

Plaintiff contends that the

correction board's decision was illegal

because it is contrary to any law or

regulation. Plaintiff bases this claim on

the fact that there was no evidence that he

was not commissioned as an officer in the

same manner as the other students with whom

he attended OTS. He attended the

graduation ceremony, special order AH 0874

ordered his commissioning, he was sworn in

as a 2nd Lieutenant and was issued all

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paperwork, identification and travel orders

after being sworn in as a 2nd Lieutenant.

Defendant has failed to offer any

evidence that plaintiff was treated any

different from the other members of his OTS

class until after graduation and

commisioning. It is not until five days

after plaintiff and all other members of

his class graduated and were commissioned

that plaintiff was recommended for

disenrollment.

Since plaintiff was processed and

commissioned in the exact manner as all

other members of his class on February 14,

1980, the subsequent acts of a faculty

board recommending plaintiff for

disenrollment operating retroactively is a

nullity.

Plaintiff knows oof no- provision

for the retroactive disenrollment of a

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commissioned officer by a faculty board,

nor has defendant offered evidence of the

existence of such a provision.

The Appellate Court's decision is

based upon a factual determination that

plaintiff adamently disputes i.e., whether

an AF 133 Form was ever executed and

whether plaintiff took the required oath.

As noted, plaintiff has

maintained from the outset that he was

processed in the same manner as all other

members of his class including attendance

of all commissioning ceremonies and

completion of all necessary paperwork which

necessarily includes an AF 133 Form.

The Appellate Court indicates

that there was no evidence that an AF 133

Form was executed or that he took the

required oath.

Defendant has never even

es 13 -

—_

contended that the above did not occur.

Defendant has merely alleged an -inability

to locate documents evidencing such acts.

Plaintiff has merely been’ unable

to prove summarily that it did in fact

occur because no AF 133 form is currently

contained in plaintiff's file. |

On motion for summary judgment

the moving party has the burden of proof.

The moving party must show that no genuine

issue of material fact exists and that he

is entitled to judgment as a matter of law

even though the opponent to summary

judgment would have the burden of proving

facts alleged at trial. Doff v. Brunswick

(1966) 372 F2d 801, 807. Massaro v.

Vernitron Corp. (1983) 559 F Supp 1068,

1073.

The opposing party should be

given the benefit of every reasonable

- 14 <-

inference that can be made from evidence in

his favor. Pennsylvania v. Curtiss Nat.

Bank (1970) 427 F2d 395, 400.

In considering a motion for

Summary judgment the courts must not try

issues of fact, its function is limited to

deciding whether there are any issues to be

tried and must resolve all ambiguities and

draw all inferences in favor of the party

opposing summary judgment. United States

v. Bosurg (1976) 530 F2d 1105, 1110.

To defeat a motion for summary

judgment the opposing party does not have

to prove that factual inferences drawn by

the moving party are incorrect but merely

that contrary inferences might be

permissible United States v. General Motors

(1974) 65 FRD 115, 119.

The trial of issues of fact on

motion for summary judgment is improper.

- 15 «

Such facts may be proven at trial. Klein

v. Lionel Corp. (1955) 18 FRD 184, 185.

The party moving for summary

judgment bears the burden of demonstrating

the absence of genuine issues of fact and

that he is entitled to judgment as a matter

of law even if the opposing party comes

forth with nothing. Summary judgment must

be denied if the moving party fails to

establish nonexistence of material issue

and entitlement to judgment as a matter of

law. Bloomgarden v. Coyer (1973) 479 F2d

201, 206 Ozark Milling Co. v. Allied Mills

Inc. (1973) 480 F2d 1014, 1015

Although unable to prove his

commission summarily, there is clearly

sufficent information contained in the

record to put the matter at issue.

There was more than one reference

in the record that did indicate a Form 133

as

sot

was executed. In the reponse to

plaintiff's Inspector General Action

Request, (App. 37 §2a), the Deputy

Inspector General stated:

". ». Orders appointing OTS graduates as

second lieutenants, identification cards

and travel orders are prepared in advance

at OTS to expedite the movement of

graduates after course completion. The AF

Form 133, which you stated was destroyed

during your out-processing would have been

void if not completed by the person

administring the oath. Since you do not

remember who signed the AF Form 133, we

have no way to find out if it was in fact

accomplished with the intent to

commission you. . ."

In addition, the report of Jon R.

McMurty of the Inspector General's Office

(App 39 §3) also makes reference to

the fact that " - - AF Form 133 was

probably completed in advance." Plaintiff

is prepared to prove the destruction of his

AF 133 Form at trial as well as all

elements entitling him to judgment.

CONCLUSION

Plaintiff is prepared to meet his

- 17 «

burden of- demonstrating error. Plaintiff

has apparently been unable to prove his

case summarily. The inability of plaintiff

to prove his case summarily does not

establish defendant's case. Defendant has

not proved and plaintiff has not conceeded

that an AF 133 Form was not ever executed

or that plaintiff did not take a required

oath.

Whether an AF 133 Form was ever

executed and whether plaintiff took all

required oaths is clearly a question of

fact which plaintiff should be afforded an

Opportunity to prove at trial. Plaintiff

has raised a clear triable issue of fact

and should not be denied a trial merely

because he was unable to prevail in his own

motion for summary judgment.

DATED: $11 §§ Respectfully submitted,

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Exhibit A

THE COURT

Exhibit B

Exhibit C

Exhibit D

EXHIBITS

OPINION ANNOUNCING JUDGMENT OF

JUDGMENT

JUDGMENT

ORDER

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MAILED TO

JOHN S. GROAT

DEPARTMENT OF JUSTICE

550 llth Street, N.W.

Washington, D.C.

UNITED STATES COURT OF CLAIMS

717 Madison Place,

Washington, D.C.

DECLARATION OF SERVICE ‘

BY MAIL

Jam a citizen of the United States anda

resident of Sacramento County, Ce!ifor-

nia. | am over the age cf zignteen years

and nota party to the within above entitled

action. My business address is 2220 L

Street, Sacramento, California 95816.

On this date | served the forercing docu

ment, by dlacing a true cary ‘hereof

enciosed in a sc2!ed envelspe with cost.

age thereon fully srovc'd, in the United

States post office inc! Sox ct Sacre

mento, California, aécressed in the mane

ner set forth immecietely above this

deciaraticn.

| deciare under penalty of ferjzry that

the foregoing is true ond.

Datedat > Ses ie xX~ -\\

_—- Sacramept6, Californiqona | SS

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UNITED STATES COURT of APPEALS

for the FEDERAL CIRCUIT

OPINION ANNOUNCING

JUDGMENT OF THE COURT

OPINION FILED AND JUDGMENT ENTERED:

May 31, 1989

The attached opinion announcing the

judgment of the court in your case was

filed today. The judgment was also

entered pursuant to Rule 36. The mandate

will be issued in due course.

Costs may be recoverable under Rule

39 or as the court may have directed in

the opinion. A party entitled to costs

is provided with a bill-of-costs form and

an instruction sheet with this notice.

The parties are encouraged to

stipulate to the costs. A bill of costs

will be presumed correct in the absence

of a timely filed objection.

Costs when taxed are payable to the

})

“EXHIBIT coun

"

party awarded its costs. If costs are

awarded to the government, they should be _

paid to the Treasurer of the United

States. Payment should be made to

counsel for the party awarded costs or,

if the party is not’ represented by

counsel, to the party pro se. Costs

should be paid promptly.

If the court also imposed monetary

sanctions, they are payable to the

opposing party unless the court's opinion

provides otherwise. Sanctions should be

paid in the same way as costs.

Exhibits and visual aids shall be

promptly retrieved by the party that

lodged them with this court.

FRANCIS X. GINDHART

Clerk

WATSTEIN V US, 89-1100

(CLM - 680-86C)

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Note: This opinion has not been prepared

for publication in a printec volume

because it does not add significantly to

the body of law and is not of widespread

legal interest. It is a public record.

It is not citable as precedent. The

decision will appear in tables published

periodically.

United States Court of Appeals for the

Federal Circuit

89-1100

PAUL G. WATSTEIN,

Plaintiff-Appellant,

Vv. |

THE UNITED STATES,

Defendant-Appellee.

DECIDED: May 31, 1989

Before MAYER, Circuit Judge, SKELTON,

Senior Circuit Judge, and MICHEL, Circuit

Judge.

oO i Ts a

DECISION

The judgment of the United States

Claims Court, No. 680-86C (Sept. 21,

1988), denying Paul G. Watstein's claim

for back pay, is affirmed.

OPINION

A prerequisite for commissioning is

that the individual take the oath of

office and execute AF Form 133 in accord

with Air Force Regulation 36-39 (May 12,

1978). It is not enough that Watstein

participated in a mass commissioning

ceremony and that his AF Form 133 was

prepared. See Goutos v. United States,

552 F.2d 922, 925 (Ct. Cl. 1976) ("an

appointment is not made until the last

act required by the person or body vested

with the appointment power is

performed"). There was no evidence

before the Air Force Board for the

correction of Military Records or the

Claims Court that the AF Form 133 was

ever executed or that he took th

required oath. Accordingly, the

government's summary judgment motion was

appropriately granted.

In the United States Claims Court

No. 680-86 C

PAUL G. WATSTEIN

Vv. JUDGMENT

FILED SEP 21 1988

THE UNITED STATES

Pursuant to the order of September

21, 1988, directing dismissal of the

complaint,

IT IS ORDERED AND ADJUDGED this

date, pursuant to rule 58, that the

complaint is dismissed. No costs.

Frank T. Peartree

Clerk of Court

September 21, 1988 By: Linda A. Eddins

Deputy Clerk

NOTE: As to appeal, 60 days from this

date, see RUSCC 72. Effective May l,

1987, RUSCC 77(k)(2) is amended to read:

"Filing Notice of appeal.....$105.00 -

_—

oo

' EXHIBIT oi,

(includes $5.00 fee for notice of appeal

and $100.00 Court of Appeals filing

fee)".

In the United States Claims Court

PAUL G. WATSTEIN,

Plaintiff,

Vv. No. 680-86C

THE UNITED STATES, (Filed Sept. 21, 1988)

Defendant.

/

ORDER

This case is before the court on

remand "to recanvass the laches defense

in the light of the correct rules."

Watstein v. United States, No. 87-1472,

slip op. at 3 (Fed. Cir. Dec. 18, 1987)

(unpubl.). |

FACTS

Defendant moved for summary judgment

on two grounds: the affirmative defense

of laches and the merits. the trial

court ruled for defendant on the merits.

The laches defense insofar as it rested

on a presumption of prejudice was not

ruled on. However, the court did rule

that defendant's showing of actual

prejudice in the form of monetary

prejudice was insufficient. Wa in v.

United States, No. 680-86C, slip op. at 3

(Cl. Ct. May 29, 1987) (unpubl.). The

appeals court did not pass on the merits.

In its order remanding the case, the

Federal Circuit stated:

Though the government also expressly

raised (in its motion for summary

judgment) "such problems as difficulty in

eineine potential witnesses and

documents, difficulty in reviving faded

memories, or paying for services not

performed" (App. App. 16), the court did

not advert to those problems. This was

error.

Watstein, No. 87-1472, slip op. at 2-3

(citing Pepper _v. United States, 794 F.

2d 1571, 1574-75 (Fed. Cir. 1986)).

The briefing before the trial court

on the laches defense, including the

parties' statements of fact, consists of

i3 pates, which, according to defense

counsel, were reproduced in the materials

before the appellate court. In its

moving brief, as the Federal Circuit

pointed out, defendant asked that

prejudice be presumed. Defendant also

argues that it had suffered actual

prejudice in the form of monetary

prejudice. In its opposing brief,

plaintiff countered by arguing that

manifestations of presumed prejudice,

such as fading memories, were

inapplicable in this case and argued

against the assertion of monetary

prejudice. In its reply brief, defendant

argued for the first time that it had

also suffered actual nonmonetary

prejudice in the form of its inabiilty to

locate “highly relevant documents" and

offered the Declaration of Captain Steven

J. Pecinovsky, Mar. 27, 1987, defendant's

of counsel throughout the proceedings,

attesting to the absence of records that

would have indicated whether plaintiff

had been commissioned as a_e second

lieutenant.

Thus, after defendant's reply brief

was on file, the case was ready for

decision on defendant's affirmative

defense dealing with monetary prejudice

and on the merits, but it was not ready

on the defense of non-monetary prejudice,

because the court could not pass on the

averments of capt. Pecinovksy's

declaration without affording plaintiff

an opportunity to file a sur-reply. The

rules of this court do not call for sur-

replies. RUSCC 83.2. Consistent with

RUSCC l(a) (2) ("These rules shall be

construed to secure the just, speedy, and

inexpensive determination of every

action. e e o*) and RUSCC 77.1(a)

—- a ede

("Each judge shall manage assigned cases

so as to provide for the prompt dispatch

of business ... ."), the court ruled on

the issue of monetary prejudice _* / and

on the merits, both of which had been

briefed fully. The court did not rule on

the laches defense dealing with non-

monetary prejudice, which would have

required further briefing.

There is no rule of court or case

law that requires a trial court to allow

a response to evidence offered for the

firt time on relpy unless 1) the evidence

constitutes a new argument that was

unavailable previously or 2) the court

intends to rely on the new evidence in

making its ruling. See CIA Petrolera

Caribe, Inc. v. Arco Caribbean, Inc., 754

F. 2d 404, 410 (1st Cir. 1985) (improper

for the trial court ot rely on unrebutted

"new material” advanced in the reply

brief); accord Seglin v. Esall, 769 F. 2d

1274, 1277 n.1 (7th cir. 1985) ("(I]f we

were to consider such new material, the

opposing party would have to be

1/ The record was complete on the

issue of monetary prejudice because both

parties had addressed each other's

arguments and evidentiary showings.

However, the court ruled that defendant's

showing was insufficient under the RUSCC

56(c) requirement for establishing

entitlement to summary judgment since

defendant made factual assertions

unsupported by evidence. See Watstein,

No. 680-87C, slip op. at 3.

given an opportunity to file a

supplemental brief in response. The

possibilities for continued briefing

become endless. . ° “a3 Autovox,

S.p-A. v. Lenco Italiana, S.p.A., 208

U.S.P.Q. 412, 415 (N.D. Ill. 1980)

(trial court refuses to address new

material on reply that supported issue

raised in party's earlier memorandum).

Neither of these factors obtained in this

case. During ‘. status conference after

the remand issued, the parties were

requested to explain how the record was

presented on appeal such that the

appellate court apparently was not aware

that defendant's declaration was offered

on reply. Defense counsel stated that

the Government had asked for an

affirmance based on laches and apologized

if this approach had contributed in any

way to not making the status clear to the

appellate court.

Also after the remand issued, the

Federal circuit recanted the presumption

of prejudice in Cornetta v. United

States, 851 F.2d 1372 (Fed. Cir. 1988)

(en banc). In view of this new wrinkle,

the parties were asked to suggest a

course of proceedings. It was agreed

that plaintiff would respond to Capt.

Pecinovsky's declaration, and everything

else defendant had argued on laches, and

that defendant would file a further

responsive brief. The supplemental

briefing has been received. It is found

that Getendent has demonstrated by the

March 27, 1987 Pecinovsky declaration

actual non-monetary prejudice in the form

of the inability to locate a log book,

which would have documented the

preparation of a completed form SF 133

reflecting that plaintiff had been

commissioned, or an amendment to Special

Order AH-0874 removing plaintiff's name

from the list of individuals to be

commissioned as a _ second lieutenant.

Moreover, plaintiff has failed to counter

this showing as required by RUSCC 56(f).

CONCLUSION

Based on the foregoing, defendant's

motion for summary judgment is granted

based both on the affirmative defense of

laches and on the merits, for the reasons

set forth in Watstein, No. 680-86C, slip

Oop. at 3-4, and the order entered on June

28, 1987, and plaintiff's cross-motion is

denied. The Clerk of the Court shall

dismiss the complaint.

IT IS SO ORDERED.

No costs.

Christine Cook Nettesheim

Judge

United States Court of Appeals for the

Federal Circuit

87-1472

PAUL G. WATSTEIN,

Plaintiff~Appellant,

Vv.

THE UNITED STATES,

Defendant-Appellee.

Judgment

ON APPEAL from the U.S. Claims Court

in CASE NO(S). 680-86 C

This CAUSE having been heard and

considered, it is ORDERED and ADJUDGED:

VACATED and

VACATED and REMANDED.

ENTERED BY ORDER OF THE COURT

DATED DEC 18 1987

Francis X. Gindhart,

Clerk

ISSUED AS A MANDATE: JAN 13 1988

/

EXHIBIT =

Note: This opinion has not been prepared

for publication in a printed volume

because it does not add significantly to

the body of law and is not of widespread

legal interest. It is a public record.

It is not citable as precedent. The

decision will appear in tables published

periodically.

United States Court of Appeals for the

Federal Circuit

87-1472

PAUL G. WATSTEIN,

Plaintiff-Appellant,

Vv.

THE UNITED STATES,

Defendant~Appellee.

DECIDED: December 18, 1987

Before DAVIS, Circuit Judge, BENNETT,

Senior Circuit Judge, and MAYER, Circuit

DAVIS, Circuit Judge.

DECISION

The decision of the United States

Claims Court, granting appellee's motion

for summary judgment, is vacated and the

case is remanded to that court to

reconsider the defense of laches.

OPINION

Claiming that he was commissioned as

a second lieutenant after attending

officer's training school (OTS) but was

thereafter unlawfully decommissioned,

appellant applied for relief to the Air

Force Board for the Correction of

Military Records (AFBCMR). Relief was

denied. Appellant then sought review of

that administrative decision in the

Claims Court. On cross-motions for

summary jdugment, the court rejected the

Government's defense of laches but held

that the AFBCMR had not erred.

In our view, whatever the holding

should be on the merits, the Claims court

misapplied the inintial defense of

laches. Watstein knew by March 21, 1980

that he had been disenrolled as an OTS

student and that the Air Force did not

consider him commissioned. He was then

honorably discharged from the Air Force

on June 3, 1981. He filed his suit in

the Claims Court on October 27, 1986.

This was about five-and-one-half years

after he was discharged and about six-

and-one-half years after he became aware

of the facts on which he founds his

current clain. Though he pursued

administrative remedies during a lesser

part of this period, the Claims Court

properly found that the time of delay was

too long in the period during which he

was not seeking an administrative remedy.

Gentry v. United States, No. 175-79C (Ct.

Cl. Oct. 17, 1980); Brundage v. United

States, 504 F.2d 1382, 1386 (Ct. Cl.

1974), cert. denied. 421 U.S. 998

(1975).

However, the court found no

prejudice to the Government because the

latter's showing of monetary prejudice

was thought to be insufficient. Though

the Government also expressly raised (in

its motion for summary judgment) "such

problems as difficulty in finding

potential witnesses and documents,

difficulty in reviving fading memories,

or paying for services not performed"

(App. App. 16), the court did not advert

to those problems. This was error. We

held in Pepper v. United States, 794 F.2d

1571, 1574-75 (Fed. Cir. 1986):

The longer the delay by a plaintiff

in filing suit, the less need there is to

search for specific prejudice and the

greater the shift to plaintiff of

cenonstrating lack of prejudice. Deering

v. United States, 223 Ct. fails to meet

this burden in a meaningful way, it may

manifest from undue delay. Wilmot v.

United States, Milona_& Sons, 726 F.2d

734, 742 (Fed. cir. 1984), that a delay

exceeding 6 years is presumptively

injurious and therefore prejudicial. °

- «+ «+ . the prejudice to be presumed

from undue delay may include such

problems as difficulty in finding

witnesses and in some situations, the

paying of two salaries for one position

or the paying for services not performed.

Adkins _v. United States, 228 Ct. Cl. at

912-13.

This is a case in which the problems

of the difficulty in reviving fading

memories and retrieving documents are

particularly important. The existence

and history of the AF Form 133 applicable

to appellant are still unknown, and the

over-six-year period since the events of

the alleged illegal decommissioning have

apparently left no persons with relevant

memories of those events. See Adkins v.

United States, 228 Ct. Cl. 909, 912

(1981). Moreover, the long period before

suit was begun necessarily invokes the

prejudice of paying for services not

actually performed.

Accordingly, we remand this case to

the Claims Court to recanvass the laches

defense in the light of the correct

rules.

UNITED STATES COURT OF APPEALS FOR THE

FEDERAL CIRCUIT

717 MADISON PLACE, N.W.

WASHINGTON, D.C. 20439

FRANCIS X. GINDHART

CLERK DEC 18, 1987

TELEPHONE: 633-6550

AREA CODE 202

NOTICE TO COUNSEL

The Court today announced its

decision in the attached appeal or

appeals.

A copy of the Court's opinion or

opinions is enclosed, and - judgment

thereon has been entered today as

required by Rule 36, Federal Rules of

Appellate Procedure.

Costs may be recovered (by

Petitioner or Respondent) as provided by

Rule 39, Federal Rules of Appellate

Procedure.

If sanctions have been imposed,

please make check payable to the U.S.

Treasury and forward same to the opposing

attorney of record.

Very truly yours,

Francis X. Gindhart, Clerk

By_Spencer C. Greene

Deputy Clerk

UNITED STATES COURT OF APPEALS FOR THE

FEDERAL CIRCUIT

717 MADISON PLACE, N.W.

WASHINGTON, D.C. 20430

FRANCIS X. GINDHART April 13, 1987

Clerk TELEPHONE: 633-4550

AREA CODE 202

NOTICE

Limitati *ost

The court has directed that the

costs taxed under FRAP 39 will be limited

to the costs of preparing typewritten

briefs (even though the brief has been

printed) and of copying briefs and

appendices.

The following rates will be the

maximum allowable costs for the balance

of calendar year 1987:

$ 6.00 per page for the table of

designated materials, the originals of

briefs, and the table of contents for the

appendix (printed, typewritten or word-

processed).

$ 0.08 per page for copying and

collating.

$ 2.00 per copy for covers and

binding.

Costs may be billed for 16 copies of

briefs and appendices, plus 2 copies for

each additional party, plus any

additional copies required or allowed

Cre re confidential briefs or

appendi::es). The cost of service copies

of the table or physical compilation of

the designated materials may also be

billed.

Francis X. Gindhart

Clerk

In the United States Claims Court

PAUL G. WATSTEIN,

Plaintiff,

Vv. No. 680-86C

THE UNITED STATES, (Filed May 29, 1987)

Defendant.

/

ORDER

This military backpay case comes

before the court on cross-motions for

summary judgment.

FACTS

Plaintiff Paul G. Watstein

("plaintiff") re-enlisted in the United

States Air Force on February 1, 1978, and

served until his honorable dishcarge on

June 3, 1981. Plaintiff had previously

served on active duty from August 2,

1972, until November 24, 1976. Plaintiff

claims he is entitled to backpay in the

amount of $10,898.78 for active duty and

be

\

EXHIBIT

$26,063.85 for amounts which have accrued

since his retirement. Plaintiff's

contention is that he was commissioned a

second lieutenant, but has only been

compensated at the staff sergeant (E-5)

rate.

Plaintiff attended officer's

training school ("OTS"), where on

February > 1980, he failed

satisfactorily to complete a running

test. On February i4, 1980, he attended

the graduation ceremony for OTS.

However, because of the running incident

demonstrating what was viewed as

unprofessional conduct, he was

recommended for disenrollment by the

Faculty Board on February 28, 1980. The

OTS commander approved the

recommendation.

On January 24, 1980, plaintiff was

transferred to Mather AFB, Sacramento,

California. Upon his arrival on March

21, 1980, he was informed that he had

been administratively disenrolled.

Nonetheless, plaintiff continued to wear

the rank of second lieutenant until April

4, 1980, when he was advised that he was

not a commissioned officer and was

directed to surrender an identification

card indicating his second lieutenant

rank. On April 4, 1980, plaintiff filed

a complaint with the Inspector General

requesting a correction in his record

reflecting his rank as a_—- second

lieutenant. The request was denied on

April 17, 1980. Plaintiff was honorably

discharged on June 3, 1981.

Plaintiff ttook no further action

until January 16, 1983, and April 3,

1983, at which time he applied to the Air

Force Board for the Correction of

Military Records (the "“AFBCMR") for

correction of his records to reflect his

rank as asecond lieutenant. This

request was denied on August 30, 1983.

Plaintiff filed his complaint in this.

court on October 27, 1986.

DISCUSSION

Responding to defendant's

interposing the bar of laches, plaintiff

contends that the equitable doctrine is

not proper in this case, because he

consistently has pursued this matter from

his initial notification up until the

present. This case came to court six

years and seven months after plaintiff's

notification of administrative

disenrollemnt and five years and four

months after his honorable dishcarge from

the Air Force. It is recognized that

during this period plaintiff did pursue

administrative remedies; however, there

are significant intervals of time in

which he took no action.

If the court considers the time from

the denial of his request by the

Inspector Genreal until plaintiff applied

to the AFBCMR, over two and one-half

years passed. Even if the date of

discharge were considered as a starting

point, there would still be a period

wherein no action was taken of almost two

years. If the court were to find that

plaintiff was pursuing administrative

remedies until August 30, 1983, when his

request for correction was denied by the

AFBCMR, the over three-year period of

delay in coming to court was too long

because delay is cumulative. See Gentry

v. United States, 225 Ct. Cl. 654, 650

F.2d 290 (1980) (pursuit of permissive

remedy unacceptable when total delay was

three years two months). Put another

way, plaintiff sought administrative

relief for eight months out of a five-

year four-month period since his

discharge. This delay is too long.

Brundage _v. United States, 205 Ct. Cl.

502, 509, 504 F. 2d s1382, 1386 (1974),

cert. denied, 421 U.S. 998 (1975).

Plaintiff may cure the delay by "a

showing of special or extenuating reasons

for its cause," Park v. United States, 10

C1. Ct. 790, 792 (1986) (citing cases).

However, there is nothing to indicate

such circumstances existed. In these

circumstances plaintiff unreasonably

delayed in filing suit.

b. Prejudice to defendant

Defendant argues that the length of

delay in pursuing this action warrants a

presumption that it has been prejudiced.

In determining prejudice, the period of

consideration is the total period

plaintiff delays in filing from the time

he was put on notice of a possible clain,

e.g., when plaintiff was informed on

March 21, 1980, of his disenrollemnt for

OTS. See Talley v. United States, 6 Cl.

ct. 807 (1984). Although a significant

period of time has elapsed, it merely

stifts to plaintiff a greater burden in

showing lack of prejudice. Park, 10 Cl.

Ct. at 792; Brundage v. United States,

205 ct. Cl. at 509, 504 F.2d at 1386.

However, shifting the burden to plaintiff

does not relieve defendant from making a

minimal showing of actual prejudice.

Park, 10 C1. Ct. at 792. |

Defendant's assertion that actual

prejudice has been demonstrated because

of the monetary damages requested is not

dispositive. According to plaintiff, the

Government would suffer a judgment not

exceeding $10,898.78 for plaintiff's

services while on active duty. Cf. id.

at 793 ($19,000 held not to be

significant monetary prejudice. However,

plaintiff fails to substantiate the

amount of alleged prejudice as required

by RUSCC 56(f), and defendant contests

plaintiff's unsubstantiated assertion.

On this record the court can find neither

some snetne of prejudice by defendant,

nor its rebuttal by plaintiff.

2. Merits

The basis for plaintiff's claim on

the merits is that since he was duly

commissioned officer at the time he was

notified of his disenrollment from OTS,

the decision of the Faculty Board was a

nullity. The AFBCMR found that

plaintiff's attendance at a commissioning

ceremony did no result in his being

commissioned. Defendant argues that the

decision of the AFBCMR was based upon

the Faculty Board's decision and its own

interpretation of the applicable statutes

and regulations.

As was stated in Sanders v. United

States, 219 Ct. Cl. 285, 298, 594 F.2d

804, 811 (1979):

Once a plaintiff has sought relief

from the Correction Board, such plaintiff

is bound by that board's determination

unless he can meet the difficult standard

of proof that the Correction Board's

decision was illegal because it was

arbitrary, or capricious, or in bad

faith, or unsupported by substantial

evidence, or contrary to law, regulation,

or mandatory published procedure of a

substantive nature by which plaintiff has

been seriously prejudiced, and money is

due.

(Citations omitted.)

Plaintiff has failed to making a

showing that the AFBCMR acted in

violation of law or Air Force

regulations. Indeed, Air Force Reg. 36-

39, para. 5 (May 12, 1978), establishes

that a comission must be evidence on AF

Form 133. It is undisputed that

plaintiff's military records do not

contain an. AF Form 133. The court has

examined the record extracts and finds no

indication that the form was ever

executed or that it had been included in

plaintiff's records at any time.

The decision of the AFBCMR was not

claimed to be arbitrary and capricious,

but plaintiff contends that it was a

nullity because he was already

commissioned. Plaintiff offers no proof

to support this contention, nor does

plaintiff show that attendance at and

participation in a commissioning ceremony

suffices to make him a _ commissioned

officer. The record of proceedings

before the AFBCMR reveals that its

decision was based on a finding that

plaintiff was never commissioned. The

AFBCMR's interpretation of the regulation

is “entitled to judicial deference,"

Wronke v. Marsh, 787 F.2d 1569, 1576

(Fed. cCir.). cert. denied, 107 S. Ct.

7188 (1986); Udall_v. Tallman, 380 U. S.

Sl, 16 (1965), especially when plaintiff

makes no factual or legal showing to

support his position.

CONCLUSION

The AFBCMR's decision has not been

shown to be in error. Although

plaintiff's claim is not barred by the

equitable doctrine of laches, he has

failed to substantiate any claim on the

merits under the exacting standard

governing review of correction board

decisions. Based on the foregoing,

IT IS ORDERED, as follows:

Defendant's motion for summary

judgment is granted. Plaintiff's cross-

motion is denied, and the Clerk of the

Court shall dismiss the complaint.

No costs.

Christine Cook Nettesheim

Judge

—

DEPARTMENT OF THF AIR Forcrs

Headquarters US Air Force

Washington DC 20330

AF REGULATION 36-39

12 MAY 1978

Officer Personnel

AF FORM 133, OATH OF OFFICE (MILITARY

PERSONNEL)

This regulation requires persons

appointed as officers in the Air Force to

complete AF Form 133, Oath of Office

(Military Personnel). It also explains

how the oath is administered,

authenticated, and filed.

This publication is affected by the

Privacy Act of 1974. Each form that is

subject to the provisions of AFR 12-35,

paragraph 30 and required by this

publication contains a Privacy Act

Statement, either incorporated in the

body of the document or in a separate

statement accompanying each such

~~

EXHIBIT —_

documents.

Proposed supplements that affect any

military personnel function performed at

MAJCOM level or below are processed as

prescribed in AFR 5-13.

1. Legal Requirements. Persons elected

or appointed to an office of honor or

trust under the Government of the United

States are required to take and subscribe

to the oath prescribed by 5 U.S.C 3331

before entering upon the duties of such

office. (Officers are not required to

take the oath on promotion (see 10 U.S.C

8312, 8394, and 8451).)

2. Who Takes the Oath. Persons being

appointed or commissioned in the Regular

Air force, the United States Air Force

(Temporary), or Reserve of the Air Force,

execute AF Form 133 at the time the

appointment or commission is accepted.

(Complete form in original only,

preferably by typewriter, and return it

nese

to the headquarters tendering the

appointment or commission. See paragraph

5 for filing inetmetene.)

3. Administers the Oath. Person being

appointed or commissioned in the Air

Force may take the oath before a:

a. Civil official authorized by law

to administer oaths;

b. Commissioned officer of any

component of any Armed Force of the

United States (includes Reserve

components), whether on active duty or

not. (This includes commissioned warrant

officers of the Navy, Marine Corps, and

Coast Guard.) ;

CG. Warrant officer serving as

adjutant, assistant adjutant, or personel

adjutant of a command; or

dad. Warrant officer of the Air force

serving as director, deputy, chief of

administration, administration officer or

similar title.

NOTE: Warrant officers of the Air Force

must state their duty position and add

the following statement to the signature

element: "Authorized to administer oaths

and act as a notary under 10 U.S.C. 936

and AFR 110-6."

4. Authenticating the Oath. If a civil

official administers the oath, AF Form

133 must bear the official seal. If

there is no seal, the signature and

authority to administer oaths must be

verified and authenticated under seal by

the clerk of a court of record or other

appropriate official.

NOTE: If a notary administers the oath,

the expiration date of his or her

commission must be included (if required

by the State concerned) and the AF Form

133 must bear the notarial seal or

indicia.

5. Filing the Oath. AF Form 133 is sent

to the custodian of the officer's Master

Personnel Record Group for filing

according to AFR 35-44, table Al.

Location of the various Master Personnel

Groups is shown in AFR 35-44, table 1-3.

Supersedes AFR 36-39, 6 April 1973.

(For summary of revised, deleted, or

added material, see signature page.)

No of Printed Pages 2

OPR: HQ AFMPC/DPMMR(by delegation)

(W.S. Hoefelmeyer)

Approved by: Col. James A. Blair

Editor: S. J. Sattler

DISTRIBUTION: F

HQ REFERENCE 1

MAILED TO:

JOHN S. GROAT

DEPARTMENT OF JUSTICE

550 11th Street, N.W.

Washington, D.C. 20530

UNITED STATES COURT OF CLAIMS

717 Madison Place, N.W.

Washington, D.C. 20005