Petition for Writ of Certiorari — Leonard v. United States

GUEHEME COURT. Us Se - | OMtice Supreme Court, 6.5,

: -f | FILED.

Mee ee 1 oe

a 1962

No. 880. rae

— —— — PF Bavis CLERK

“b SE eee Petia nay

In the Supreme Court of

the United States

October Term, ——

_ First Lanesenane Grorce Epw ARD LEONARD,

Army of oe States, U.S.-A. F., ‘retired, Plaintiff—_-

Vs.

Ture Unsrrep States, Defendant.

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SECOND PETITION FOR WRIT OF CERTIORARI TO ©

THE UNITED STATES COURT OF CLAIMS.

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Grorgce Epwarn LEONARD,

Plaintiff, =,

921 Walnut Street,

Kansas City 6, a

_ SLAUGHTER & BREWSTER,

‘Huw C. Moors, \

Ricnarp T. BREwsTER, »

_ Counsel for Plaintiff,

500 Union Carbide Building.

Kansas City 5, Missouri.

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Eseernarp P. Devercn,

‘ Of Counsel,

- ‘New Orleans, Louisiana.

SMITH GRIEWES LAW PRINTORS KANSAS ClTY ‘wo

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INDEX. - — zs

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Orde t sented. Judeme nt ‘Sought fo He “Rev iewed : !

‘2 Opinion Below fee se . ea

shurisdiction eS ol soe feeaiccadeeycabotce Ligeti ee

Statement of Debt of U. "RMR En ge ae chet \ 2.

— Questions Presented for ic ene a . 4

Statute: Involved : : ; :

an? Staten ent SS Ea ae jell Sones , .

: Jurisdiction: of the C ourt of C laims: ea See |

.. | _, -Reasons for Allowing the Writ... "Ss

Argument TREN UA tot ahd ne OLR EE AO

Conclusion i eee Reh SRP RET Siete aes

Ps | ges Cases Cited. _ Oak

Leonard v0. By. 496" eg Cl. 186, 145 F. Supp. 75S,

ed. =e U.S S.976.. RI Ae |

Machibroda v. U. S:, Ed. 2d a7 SSE OREN.

Saundpys’ ‘v. Shaw, - > 61 = Ed. 1163. meee |

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TS. vy, Qhio Power Co, 353 U.S. 98, FL. Kd. 2d 683.10

W alker Vv. lhgame-iarede 3 2. S275, Sh aD Bid. 830 7 "

| Seatutes Cited. ~

* 2U:S. ral See. 1255, Rp ge ce

“Ss V.S. A. See. 1491, 62 Stat. 94000. : mee

* y Ss _ Sec, 9a. Pete ee : i

| ears ee TSTT A Stat. 979 i:

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In he Sup preme Court of |

the United States’

October — 1961.

2s

‘SECOND PETITION FOR/WRIT OF CERTIORARI TO

_ THE UNITED Ws COURT OF CLAIMS.

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May iyfllease the Court:

“A. The new order of the United States Court of Claims

- dated January 12; 1962} overruling motion to reopen and

fot relief from judgment, entered without opinion.

y ~ B. The old judgment of the United States Court of Claims,

dated November 7, 1956, rehearing denied January 16, 1957,

entered on an-opinion reported in 136 Ct. Cl. 186, 145 F.

Supp. 758, C.°D. 353°. S. 976, expressly overruled in

Weatentge 0. -U. Sijujeocvocneceoe ts: Ce snct.2.05.022 , 288 F. 2d 472,

decided Mareh 1, 1961.

Judgment Sought to Be Reviewed 3 ee :

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Kansas, Cc ity, Missouri, prays that a writ of certiorari issue.

First i.ieutenant: Geinin: edward: Leonard, Retire me

fo review the order of the United States C ourt of Clainis

. overruling plaintiff's ypotion to reopen and motion for relief

from judgment and to révitw the judgment conceded by the

Court of Claims in its opinion in Watman, overruling

Iseonard, to have- leon. rendered without kaving héfore ‘it

the necessary legal and factual materials. This judgment te

was sought to be reviqwed in the first petition for certiorari,

No. 908, October term, 1956. ‘, ,

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endows gory ee .

The order overruling plaintiff's motion ‘to reopen al

motion for relief from judgment was w ithout opinion. ,

The judgment was entered on an opinion reported i in 136

Ct. CL 686, 145 F. Supp. 798,-e.d. 353 U.S. 976, expressly

overruled in, the companion case, Watman vy. United States.

Ct. C1 me} Of 2d 472. Res yore

» The date of the order denying plaintiff's motion to, reopen

and for relref from judgment of the Court of Claims ‘and

time of entry.was January 12, 1962>..- -.:-

| ee jurisdiction of ‘this Court to’. review by w ‘tit .of'-

- ¢ertiorari is confetred by 28 U.S.C. das I 255, 62 Stat.

928.

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HEADQUARTERS

AIR FORCE, ACCOU NTING AND FINANCE C ENTER

UNITED. STATES AIR FORCE

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| ce aor Staicment of Debt of U. Ss.

DENVER, COLORADO

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Retired Pay—L EON ARD, ‘George. E. Jr:

AO 91 4948 -

921 Walnut Street’

Kansas ‘City, Missouri

. Your Jetter of: 18 Aaa: 1961,

Ist 14 George’ KE. Leonard Jr., USAF (Ret.)

si pay withheld. during periods of Federal Employ-

ment ‘from 30. June 1950 through 31 December 1954, has

_ referred to us for reply.

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. The fokowing retired pay. was issued to you:

"Period | Monthly Rate ”

13 Jan 52--30 Apr 52 $150.00

1 May 52: 1 Sep 52 $156.00 “A

‘18 Jun 53—31 Dee 54 $156.00

Total retired pay issiied

The. amounts” of retired pay withheld during porto of

Federal Employ ment are as follows:

Period

.A.CLARK

Siecuar of Allotme nts”

and Retired Pay

gi THE'COMM ANDER

Monthly Rate Amount V Withheld

‘

Amount Paid

$ 540.00.

$ 629.20.

$2875.60

$3044. 80.

4 Jul 50—12 Jan 52 , _. $150.00 - $2760.00

2 Sep 52—17 Jun 53 $156.00 $1487.20

9 = - Total ammount withheld

$4247.20.

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requesting amounts of.

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7 Questions Presented for Review. ‘1 .

_. 1’ Did the Court of ‘Claims err. in refusing to reopen its ~~

“summary judgment, when it became manifest, in a com- Pe

_panion case, that it had been rendered for the wrong:

party. particularly in view of.the fact the unjust judgment @ ©

had been procured. by erroneous representations of the

United States that there were no disputable material facts?

2. Is the summary judgment of the Court of Claims void

ioe: want of dug process and reviewable by the Court of

‘Claiiirs on motion? where plaintiff was denied the oppor-

+ tunity consistetitly requested, to prove his case, after the |

court, in a companion case, in’ effect acknowledges the

- validity of plaintiff's claim? a ;

8. Must an unconscionable summary ‘judgment of the”

~ Court of Claims bar the United States from paying Jts

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adyitted debt fo plaintiff? = 2. © | | y

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Statute Involved. ert 2

The Act of June 25, 1948, ¢. 646, 62 Stat. 946, 8 U.

C. A., Bee. 1491, Claims against. the UniteKStates, gener -

ally pros: goer id e .

“The Court of Claims shall have jurisdiction to -

render judgment upon any ela against the V nited:

‘States: -

(1) Founded upon the’ Constitution; oe .. -

(2) Founded. upon any Act of Congress; or

(3) Founded*upon any regulation of an exect-

tive department; or ;

yo” * (44 Founded upon any express on talhind con.

tract with the United States; or’.

(5) For liquidated or upliquidated dainfges in

cases not sounding in tort.”

pe ceae bee STATEMENT. fie by alge

On May 25, 1955 _ plaintiff instituted suit in the Court

of Claims to recover retired military disability pay which.

had been Awarded him but withheld during periods he was

_ employed by the United: States in various civilian capaci. :

ties. 2 — 2 “

- On February 15, 1956, defendant filed motion Sie sum.

‘Tnary jadgmedt. stating that the question presented was

‘Whether ong who is not now and has never been a member

~ of any Officers’ Reserve Component but who is entitled to

military disability pay may receive both disability pay and

-government civilian salary in excess, of. Lage amount pro.

vided by the Kceonomy Act of 1932 (61S. CA 4. 59a).”.

On August 31, 1956, plaintiff filed Bo tad to motion

for sunynary judgment, asserting that the motion should

_ be'denied as it ‘tassumes without adequate supporting ex

- hibifs the most substantial factual issue in the case, acipily

that plaintiff ix not now and has never been a mem er of

any, Réserve Component of the Army or Air Foree of the _

United States. Plaintiff in his printed and ore) argument

urged upon the Court of Claitis the existence of ‘genuine

issues: of utaterial facts” and ,that “this case ——-

ruled on motion for summary _ judgment. Ag ;

«On November 7, 1956, the Court of Claims ‘entered suni-

nary judgment dismissing. plaintiff's petition.

Plaintiff, in his mptien- for rehearing, argued Abiat the

‘court, in yolding’ the essential faéis indisputable, over

jooked the fact*that the re¢ord be fore it Wax dn, ex’ parte

‘yecord and that the plaintiff did earne stly and in goed

faith dixpuge the finding that plaintiff ‘was a civilian.

Plaintiff's petition for rehearing was denied Javnary 16,

1957.° : é

Certiorari was dented Mav 27. MYT. by the: Supreme:

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On Mareli 1, 1961, ‘the C ourt’ of Claims entered summary

- judgment allowing plaintit’ Watman retired disability pay

withheld while he, wes employed by the United States even

though his status was the same as ‘plaintiff Leonard. ‘To:

reach this result, the court expressly ov erruled the Leonard -

case with this explanation of its change of position. In

justification of our overruling ef our previous decisions it”

ix only fair. to ourselves’ to say that we have never, before

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Ea 2: OPT ey case, had before us all of the legal! and

retin rater necessary fo the Solutions ol these diffi.

« ult” probletis.”’. ze '

On July 3, 1961, ‘the C omptroller General refused to pay’

plaintiff Leonard because of the judgment of the Court df

(‘Jaims in Leonard:

On July 6, 1961, the nana’ General paid — Pa

| Howard J. Hess, retired, with the same status.as Leonard,

'vbtired disability pay withheld while he was employed «by ”

the United States. rs

2On July 12, 161, the C ourt of C Taims’ set aside j its jude.

“auent: entered January 20, 1960, denying Paliner, with the

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sine status gis-Leonard, retired disability pay.

(n. ‘Septembe r 20,1961, plaintiff. Leonard filed his motion

to reopen and mation for rélief from the: sarmary judy

vent denving hint retired disability pay upon five vrounds :

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This Court, having in Watman v. United States, Ct. CO}

"No. 189-59, decided March. 1, “1961, expressly averruled

Leonard vy. &. S. in the’ interést of justice should vacate

its void judgure nt based on the overruled opinion. Thus the”

liability of the government te pl: tintiff has beet judieh lls

recoumized, -

Opinion upon which judgment entered expressly overruled. |

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Judgment enssved-sithious due process of law.

The judgment herein was Summary, without triai of tite

issuable-facts, and was void and should be vacated because

fs deprived: plaintiff of his ‘day in court to prove his claim

in violation of the Fitth Amendment to the C ‘onstitution of

the United -States providing that -no person ‘shall be de-

Pp ived of prope rty without due process of law.”

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Judgement founded on a ‘tilee i issue.

Plaintiff isa veined ‘member of the Officer's ekews

Corps of the United States Air Force and as such is entitled

‘to retired disability pay which is being wrongfully with.

‘held because of the judgment het rein’ partly based upon the

id aca laldas that plaintiff‘is a civilian. This miscone ep-

ion of plaintiff's status seems to have resulted from states

iNents of counsel for-the United States, in a motion for.

sunimary. judginent god-at the oral-argument. As recent

evidence of plaintiff's status, we set out Paragraph 4 of

Air Pree nere, dated April 28,1960...

IV.

* Judgment cnt 3 in United States gotding. funds belonging

to plaintiff as trustee de son tort.

"The United States has accepted the decfsion in Watman

and is paying dual compensation claims (suspended after:

Leonard) and is withholding payment of Leonard's claim

on the basissthat the judgment in Leonard v. USS. has net

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heen vacated. \

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Judgment is contrary ‘to equity and good conscience.

The judgment herein. is inequitable and unjust as it is

based on both factual and legal inistakes recognized to

_, have been made, as set out in Watman v. U.S., filed Marel -

: 1961.

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= Ce Rah sieliee sire Courr-of-Ctaims-withour-opinton—

overruled plaintiff’ 5 motion for relief from judgment.

Jurisdiction of du Court of Claims.

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The basis for Federal jurisdiction in the Court of Claims’

is ‘that petitioner’s claim is for disability retired military

pay: granted under the Act of April 3, 1939, 53 Stat. 557.

The Court of Claims is given jurisdiction to determine ,

claims against the United States: arising under Acts of’ ”

Congress. 28 U.S. C. A., See. 1491; 62°Stat. 940. Sage

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- =i . Reasons for Allowing the Writ.

ee Great importance of establishing guide tor lower

_ courts as to the ‘measure of control they should Exercise

over the entry and reopening of summary judgments, based.

on affidavits and statements of ‘counsel, rather’ than” on

static trials based on evidence.

. Great tmportance of establishing. standard of due

_ proe ess as" applied | to swinmary judgments: and determina -

- of factual issues. :

| . Great importance of establishing judicial criteria for

ies relaxation of the rule of finality. of judgthents of lower

courts when the’ interests ot justiee make unfair its appli

cation. :

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. The judgment of the Court of.Clains, until set aside;

Bi in the United States continuing to hold funds be-

arg to petitioner as trustee de, SON. tort.

. The judgment herein is inequitable and unjust as it is

aus on both factual and legal misiakes recognized to have

‘heen imade, as set out in Watman y. U. S., filed March 1,

1961.

WwW

_ ARGUMENT.

- The Court of Claims erred in ‘refusing to reopen its summary

: judgment denying petitioner’ s claim on re of efroneous

facts. :

It seems evident that petitioner was dntitled to recover’

upon his claim against the United States for retired mili.

~~tary disability pay withheld from | him on the erroneous

theory that he was subject to the provisions of the Econ-

omy Aet, Watman v, U.S. Supra. It seems evident that.

the United States would pay: the claim were-it not for the:

erroneous sufinmary judgment, entered by the Court of

Claims without having and without arvarig petitioner

‘to produce the material faéts Watman v. U.S. Supra.

Apparently, the Court of Ghims siiallblasa its rules or

its jurisdiction’ against reopening. the sumunary judgment

hecause of lapse.of time. :

We believe .this Court should grant certiorari to the

Court of Claims to decide the important question of the

control the Court of Claims should exercise over this

summary judgment rendered for the wrong party and

induced by erroneous statements of fact as to petitioner x.

status, made by the United States in its motion for \sum-

mary judgment.

The Court of Clainis, we believe, should exercise the

same control of its judgments as does this C ourt.

: United States vy. Ohio Power C 0. W957, 353 U.S. Os,

L.. Ed. 2d 683, 685 ;

“We have .consistentivy ruled that) the. interest. in

finality of litigation must, vield when the interests of

justice would make unfair the strict applic ‘ation of our

_ rules. This poliey finds expression’ in.the manner in.

which we have exercised our power over our own

judgments, both in civil and criminal cases.” (Citing

eases: ) : ‘i ; ‘

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This Court in many eases and ima Variety of situations

has consistently ruled that litiz rants be granted the oppor:

tunity of hearing and trial to develop the facts, as a_

fundamental ingredient of due process. See: |

Mac hibroda v. United’ States, 1962, 7 1. Ed. 2d 473, 478.

holding that the sentencing court erred in making findings

on controverted issues of fact without a hearing.

Walker v. Johnston, 1940, 319 U. S$. 205, So L. Ede.

30, 830~hilding ina habeds carpus case that ples wings,

affidavits, and de nials only serve to make the issues whic hi

must be.resolved by ev idence taken in- the usual hae

Saunders v. Shaw, 1916, 244 CLS 317, Ol Le ed. 1163,

‘injunction case). holding thie piney of the Supreme © ourt

of Louisiana, rendered without a trial upon the issue of

fact in the trial court, violated due process,

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_The Court of Claims . in denying petitioner's motion to re-

open’ and to grant relief from its summary judgment, denies

petitioner collection of a now conceded obligation from the

United States and leaves both petitioner and the United States

_ helpless to right a « clear injustice.

in v nited States seihie: aiveal ae of 2s

Us A., See, 2519, 62 Stat. 979, providing: *A final

"lias of the Court of Chains: against any plaintiff shall

‘forever bar any further claim, suit or demand against the

Inited States aris ing out of the matters involved in the’

case or econtrove Tey - Ttcontinues to, bold money be longing

to petitioner, us it trustes he saH fort.

(Every personought to find a.certain remedy in thie laws

or all injuries and wrongs Which he mgy receive in hi-

person, properrs- Ar repfitatton, See. 1. Art. AT. Constite

tion Of Pinos, ISTO ‘ . ‘

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We believe the Supreme ¢ ourt shoult-grant-certiorari

and determine whether the Court of Claims ean and should

relieve the parties from such an unconscionable, unfair, and

unjust fesult as the Court of Claims itself recognized,

when it repudiated the Leonard case in Watman vy. United

States, but has failed té correct the injustice and make an

order for payment. -

Respectfully submitted,

~«

Georce Epwar> Lrosakp,

Plaintiff,

; 921 Walnut Street,

, . Kansas City 6, Missouri.

Scavouter & Brewster,

Huw CC. Moore,

Ricuarp T. Brewster,

Counsel for Plaintiff,

—$——$ 0 Union Carbide Building,

Kansas City 5, Missouri.

Epernarp P. Devtcu.

Df Counsel, =

New Orleans, Louisiana.