Petition for Writ of Certiorari — Bostic v. Ohio

Supreme Court brief1963

Ask Donna

What actually matters in this document.

Text

IN THE e

Supreme Court of the United States

—

Geasins Term, 1962, .

1012

FRANK E. LIPP and BETTY FRIEDMAN, Executrix ,

of the Estate of Josepn Friepman, Deceased,

.Petitioners,

See .

THE UNITED STATES. | ;

}

Petition for a Writ of Certiorari to the United States

* Court of Claims

April 11, 1968. .*

Guy Emery ®

Attorney for Petitioner’ P

One Farragut Square South

* Washington 6, D. C.

‘

Emery AND Woop

Of Counsel :

¢ Washington, D. C.: @

ante

THE REPORTER Company, INc., Walton, N. Y —UN 5-4131—1963

~ mo, :

~ > Index. .

c 5 . Page

UI Bice ree et roche ins, Deeb deaat os aac 92

i ee ;

NPA TIO on ncs ccs caso oonsnctene ene snease sSicatedatmae caer’ 2

Jurisdictional Statement. ' <p aya 2

Question Presented 90000000. He cans ae Ae ph ed 2

Statutes Involved 0... ee ceare era er 3

“Statement of the Case 000... wes re a sh

: se. —_s ;

Reasons for Granting the Writ 0. 0.00 0 7. »

Argument... 5 TE ee aRe 2 ates Bp 1

Conclusion Ie ns Ste er cee: ee eee ae

INDEX TO APPENDIX.

* - 5 &,

Appendix A—Opinion, Frank EF. Lipp v. The-United

States; 301 F. 2d 684 .....0.0.. eee Al

: o *

Appendix B—Opinion, Betty Friedman. Exreeutria of

tie Estite of Joseph Friedman, De-

ceased, vr. The United States, 310 Fl.

2 381 phe 2 AOI

o “3 ¢ i

Appendix C—Statates Involved 2000... aisiakaess A 4

Appengix D—-Roster of Plaintiffs Whose Action- are )

Sn-pended in the Court Below - AW

5 : e &

9 F 2

: \

“s $

: i

‘ a

é C

Bai i

+ v

AUTHORITIES,

ie : Page

CASES — z a to .

Allin v. United States, 147 ©. Cls. 459 0 .....6, 7, 20

*. Barker v. United States, 135 C. Clsc42 eee 16

Caddington 1. United States, 147 C. 0, O68 e. 6

Capps v. United States, 183 C, Cls. 811... Me 165

Carlin v. United States, 121. NN nse caeneicnncs 1

° z a °

Dismuke v. United States, 297. J 167, 172... 5, 10,15, 17

- Duff v. United States, 183 C. Cls. WL. 16

oa Fichs v. United States, 145 C. Cls. 522000000... 6, 14, 19

Frederick v. United States, C. Cls. No. 111-56, de-

2. @ided July 15, 1960 oo. ree Oks 6,2

- Frigdman v. United States, 14) C. Cis. 239, 258 D6

. _ 7, 10,-18, 16, 18, 20, 22

Friedman v. United States, 310 F. 2d 381 2. =)

Furlong v. United States, 188 C. Cls. 843 .... 6, 4, 16, 1%,

ae : 1S, 20

%S ‘ 3 . 5

Girault v. United States, 133 C. Cls. 185 0. OD

Gordon v. United States, 129 C. Cls. 270 ~ 6,15, 17

- . j 9 wie i

», Harper v. United States, C. Cls. No. 206-59, de-

cided November 7, 1962 - ; lawn soe

so ‘Hellner u. United States, C, Cls. No. 15-60 0s leas S

3 ?

ues

bate

Po . >

es ihe.

: iil.

nae Pree

@ . DB -

Kirtley wv. United States? C. Cis. No. 98-55 0006

ye oN Sisie

Knight ve. United States, C. Cis.c No. 64-60, le- .

cided January 18, 19617 ..02..\ oe... 6, 8, 21

Levadi v. United ee, aay, ' Cls. No. 260-60) ty ee Se

q: .

Lipp v. United States s, 301 F.-2d. 684 22... ER AAR . 222

* MacFarlane v. United States, 134 C. Cls. 755. 16

~ Marshall vw. The Baltimore and Ohio. failroad ('o..,

16 How. 314, RR St Ree aaa csaantipbechgtqinnsseZtnten’ ‘S.

Odell v. ae te 134 Cte Gee: ih

Patterson v. United “ates, 141 0°. C's. 435 ._6,7,16, 18

Proper e. United States, IO CecCts. 511 : 6, 7. 16-18

Robinson v. United States, C. Cls. No. 433-59 2 s

Rosnick v. United States, 132 €. Cis. 1 SO Tah a3 A, i)

_ San WNlan v. United States, 139 C, Cle 485. 6,16, 17, 1S

Soukaras uv. United States, 135 C. Cl. 88. Sea an 16

Suter vv. United States, 1W39.C. Cls. 466 00. 6, 16-18, 20

Uhlen +. United States, 128 C. Cls. GOS 6, 14, 16, 17, 18

Wales rt ited States, 132 C. CY, THD : bi, 1

Walters vr. United States. C. Cls. aoe ee S

cindy r. United States, 148 ©. Cls, 445 re

Woodard v. United States, CCls, No. 190-60 .

; ‘. .

STATUTES “

Administrative Proce@ure Act. 60 Stat. 245, 0

fe RE Renee encuemcaeen area,

Rules 23(5), Revised Rules of Supreme Court of

the United Stafes, 28 U. S. C. followin

69680... eek PC ete bese 2

Legislative Reorganization Act of 1946, 60 Stat.’

ee et ed Oe as 9,11, 19

28 U; S.C. §1DB5 (1) onan ecceeccseccideeeneeeeees fen Sep SENT aie

28 U. S. C. §2501 ............ eR Vee

Act of October 25, 1951, 65 Stat. 699. 10 Us , : |

SE Cae eee irtew 3, 10, 12, 5 19, 20

' OTHER % Re

27 Comp. Gen. 709 (1948) ee at ome i 42

Washington Post, April 17, 1962, p. A16- EE

“World Almanac, 1963 0... Jeet events oe 9 10

H. R. 1181, House of Representatives, Committee

~ con Armed Services, May 15, 1951 [No. 21] ib |

Sf UNARMED PCS Ae os i Gree, A

‘ A vi”

Senate Report No? 788, p. 1, S2nd Congress,

Session ..%....... Reet faltee Bee ret aT aee ee ae

Bovep of tig STRODE NG se No. 449, S2nd

Congress, Ist Session™: Tan ene me er ae

? ° “a €

® -

2 e s

- & . :

° . & °

. = :

a : s =>

i a Ix THE

aa oan Conrt of the Hnited States

ctober Term. 1962 _ .®

' -.

Frank FE. Lipp, and Berry | Executrix of the

Estate of Jdseph Friedman, Deceased,

Petrone wie

cs) iP

74% 4

4rsz ; = . ‘ < 2 : c

THE Usiten States.

- -

‘ PETITION FOR A WRIT. OF CERTIORARI TO

THE UNITED STATES COURT OF CLAIMS

7»

oy f.,

° ——

To THE Honorablek, THE CHier Justice angornk Associatt

Justices OF THE SUPREME Court oF THE Unirvep States:

? ‘ > °

Your petitioners, Frank E’ Lipp and Betty Friedman,

pray that a writ of certiorari issue to review the jude

ements of the Pnited States Court of Claims, Washington,

/ * .

D.-€.. in the. above-entitled aetions.

: ~

. | o

.% a

s .

‘ 3

» c

e e

— , = « ° e

* ?

b 8

> Opinions Below

The opinions ef the Court below (Appendices A and B,

infra, A1, A51) are reported, respectively, Lipp v. United

_ States, at 30] F. 2d 684 (1962), and Friedman v. United

States, at 310 F. 2d 381 (1962).

Jurisdiction —,.

The opinion of the court below dismissing the petition

in Lipp v. United States, supra, was entered April ‘4, 1962

(A1); the order of thd burt overruling plaintiff's mo-

tion for rehearing was entered on November 7, 1962

(A 50); and the order of the court: overruling . plaintiff's

motion for reconsideration ‘was entered on, January 11,

1963 (A950). In. Friedman rv. United States, supra,

the opinion of the court ee ae the petition

was entered on November 7, 1962 (A951), and the order of

the court overruling nlaintift’ motion for — Was

entered. on January 11, 1963 (Appendix B, infra, A 92).

Under tie practice of the United States’ Court of tain,

there is no formal judgment ade litional to an opinion dis-

missing a petition. The jurisdiction of this Court to re-

view: decisions of the Court of Claims is invoked under

28. U. S.C. §1255(1). The review of these CASES OD CRY

-tiorari to the United States Court’of Claims is sought in

° a single petition pursuant to Rule’ 23(5), Revised Rules

. of the Supreme Court ‘of the Tnited States, 28 UL So.

following 42680.

Question Presented

Whether an action in the United States Court of Claims

begun well within the six years following an allegedly

arbitrary, caprigious and unlawful denial of a claim timely”

made to % ite for the Correetion of Military Records,

a&.

3° ‘ -

, . + =” . ee

ts *e

S 3 ee,

established in a service department Miystaiit to at uA

of Congress, WU. S.C. $1552 0495), and over which

claim the said Correction Board has ckercised jnvisdi

tion, is barred by limitations, 28 FL S.C. 2501 (AS),

simply Because more than six years bate elapsed between

the initial occurrence of the events with which the elais

is concerned and the’ commencement of the onit in th

Court. of Claims.

. * -

Statutes Involved

& \ ™

The statutes imvolved, 5 UL S.-€. 1009, To ES.

s1oo2 and 28 U.S.C. $2501, are set forth in Appendix ©,

jufra (N 94). or .

‘Statement of the Case

a > Ph

doth. petitioner Lipp and Josept Mriedman, decoasecd

husband of petitioner Betty) Ayiedman, were non Reena:

medical officers of the Army 2ghe United) State. who

served on extended: active duty with thee \rmy dare:

World War Hl. Both were in good health® when they

entered upon ‘such duty. Both incurred disabiing physi

al defects while serving, and incident to their extend

active service, Both were relieved from active: duty. ne!

for physical disability. and neither of them: has received

any retirement: pay oy benefits as proyided by law fey

service members who be®ome incapagitated for aetive diity

in line-of duty, and incident to theif active duty,

Joseph Friedman, prior to his relief from: active duty.

met a number of medical boards and retiring boards, all

of which found him untit: for weber al se vig and ore of

which recommended , his retirement. The jst votirine

board, however, found him “not permanently incapacitated

for active duty at’ l that! time” and rocommended his Ve

4 ld

s °

: re Be De sie -

examination and revaluation after six months (451). For

reasons which eannot now he established, this was not done

(A 52). 2 ; ;

In Lipp’s case, the petitioner suffered from multiple

sclerosis, an incurable disease of the nervous system which

is characterizes] by periods of exacerbation and remission,

He exhibited symptoms while.on active’ duty whieh, in

retrospec*, Were attributable to muitiple sclerosis but at

the time were not correctly diagnosed, His tronble wa-

not definitely identified until some two years after his

relief from duty (A 15,25). When his: infirmit® Was dis-

covered, he requested, but wasyrefused, permission to aj,

pear before an Army Retiri fx* Boards to determine his

entitlement fo retired pay (A 18. ak ;

Applications were nile on behalf f both men, Lipp

by himself and Joseph, Pigedman ly his widow and exee v

trix, “Betty Priedman, io the Army Board for Correction

of Military Records asking for correction of” their re

spective records to. reflect: their retirement for’ physical

disability and consequent entitlement to retirement pay

and benefits. The Board denied both applications. Fach

petitioner thereupon filed suit in the United States"Cour:

of Claims claiming the retirement? pay whigh they had

heen denied, alleging that such denial, on the part of the

Atorrection Board, was arbitrary, capricious and nnlaytnal.

Kaich suit was filed @ithin Six vears after the aitteei serhi

trary and capricions action on the part of the: Correction

Board, pursuant to the statute limiting actions in the

Court of ¢ ‘laims to those filed within six vears after the

claim has acerued, 28 U.S.C. 62501. The court below

hoPever, held that hoth were time-barred, petitioner Fried-

tnan’s having acerued in 1946 or 1947 (A. S8), and petitioner

Lipp’s upon the refusal of the Department of the paged

to grantshim an appearance hefore a Retiring Board i

1950 (XN 5). Both petitions in the comt helow were thére.

a7 ra

ie eee |

‘

_fore dismissed orm the ground that the aleged arbitrary,

capricious and unlawful actions on the part of the Any

Board for Correction of Military Records did iiet give

rise to a cause Of action cognizable by the Court of Claims

and that any cause’ of action petitioners §night have was

barred by limitations (A 5753). . s

‘ -

Reasons for Granting the Writ

: 7

1. The decisions of the court. helow. holding the peti

tioners’ claims to be barred by limitations, are not’ only

in direct conflict with a doctrine long established by. this

Court, but with a multitude of 4t< own holdings. A gen.

eration ago,:this Court clearly stated The prineiple- that,

in the absence of compelling language to the contrary in

the statute which creates a right, the court may and will

review thet acts of the officer adniinistering the statute,

when such aets are arbitrary, caprie ‘ions, or not according

to the evidence. Dismuke v. Uiitted States, 297 tC. S. 167.

172 (1936), and cases cited therein, Im the instant ease,

there is no danguage in the statute denying judicial re-

view, and yesting final discretion in the Secretaries of the

service departments (A 95)’ Moreover, there is clear

and compelling legislative history to si®pport. the peti

tioners’ contention that Congress intended the decisiont

of the Correctiow Boards to be subject to review by the

courts. Friedman v. United States, 141 Cts. 2a9, 238 ”

(1958), and pages T2-19, infra.

* Phe court below, in its Opinion in petitioner Briednian’s

case rotyd that “briefs in pending Casess and motions

for rehearing’ or reconsideration .trongly suggest “that

there are large ‘ineertainties and ‘inconsistencies in oir

past decisions.” Betty Friedman. Evrecutric, vo United

States, supra (A 53). Petitioners ean only? ‘comment

' Such qdanguage, though once suggested to the Congress, was in

tentionally Stricken from the bill. &2d Congress, Ist Session, House,

of Representatives Report No. 449. Pp. 12-13, infra.

. ‘ - Go

Sere °

'. that, in the decade since pay cases arising in the De-

partmental Boards for Cori ection of Migtary and’ Naval

Records-have been reaching the-Court of Claims in vol-

ume, it has* been squarely hekl by that court in ay least

nine cases that an allegation of arbitrary, capricious and

unlawful action on the part of the Correetion Boards gives

rise to a fresh cause of action. Awigh?t +. United States.

zt Cls. No. 64-60 (decided January Is) 1961): Weiner vr.

United States, 148 C. Cis. 445 (1960); Allin ov. United

States, 147 C. Cis, 409 (1959); Bicks vr. United States.

149 ©. Cis. 622 (19959): Friedman v. United States. 141

C. Cls. 239 (1958): ’Paftersen ¢-. Donted States. 141 C.

(ls. 435 (1998): Proper oo. Cinted States, 139 €. Cls. af}

(Idos); Suter v. United States, 139 ©. Cls. 466° (1957),

cert. den. 355 U.S. 926: Furlong & United States.. 128

C. Cls, 848 (1957). |

The doetrime has been cleariy enunciated in dieta jn at

least as many more opinions ‘of the court below : Fred-

erick v. United States, C. Cls, N@® 111-56" (decided July

In, 1960): Caddinaton +. Vntted States. 147 €. Cls. 629

(W999); San Millan v,-United States, 139 C. Cs. 48

(1957): Girault vr. United States, 1383 CC. Cls. 135 (1956):

Odell v. United<States, 1B4 C. Cs. 6354 (1956): Wales +.

United States, 122 C. Cl. 765 (1955): Rosnick +. United

States, 132 C. Cls. 1 (1955); Gordon v. United States. 129

C. Cls. 270 (1954); Uhley vr. United States, 28 @. Cls. GOS

(1954). °> +

In Eicks rv. United States, supra. at p. 926, Mr. Justice

Reed (Ret.), sitting by designatior@ in holding that the

action was not baryed by limitations, sdid, “This suit seeks

recovery of salary for periods more than ‘six years prior

to its institution” but the right: to recover is not. set up

as a salary debt but arises, it is claimed. from the arbi-

trary and capricious action of the Secretary of the Navy

in refusing correction of plaintiff's record.” In Knight

v. United States, C. Cls. No. 64-60, January 18, 1961,

Madden, J... speaking Yor the unanimous court, denied:

: * 7 Ss le”

the government's motion to digmiss the petition as bgrtred

° » ° ° _ e ° Ps

by limitations, by reference to the court's earlier décision

in a similar case in these terms:

t Tn Furlong e, luited States, iss Crt. Cl. S45, S45,

the court cited seven cases and then said;

The principle of these @ases is first, jJurisdic-

fet is canferred by Congress, not’ on this court,

hutoon retiring boards and the Pecretaries of the

three armed services, to decide ‘an officer's right

to retirement for physical disability, and his con

Jsequent right) to retires pay; second, it follows

therefrom that we cannot acquire jurisdiction of

such ‘a claim un@il after the Board and the Sec

retary have acta. or failed or refused to act. and

not then unless the board and the Secretary acted

arbitrarily or capriciously or contrary to law:

- third, sinee our jurisdiction could not B® invoked

2] until after the retiring board and the Secretary

had acted, the statute of limitations on a suit: in

this court did not ‘begin to run until they had

‘ aed, tourth, on a finding of arbitrary or other.

wise unlawful action by the retiring board and

Secretary, it is our duty to act in the place of the

wiring hoard and? on a finding of disability. at

the time f discharge, tothold an officer is entitled

-to retired pay from: the date of his discharge.

Since the deeRion of Furlong, the case of Proper

vt. Uneted States. 139 Ct: Cl. 51: Friedman rv.

United States, 141 Ct. Ci. 289: Patterson. Unitey

States, 141.0%. Cl. doo >and Allin v. Casited Stake 5

No. 004.95, decided November 4, 1959, havet heen

decided by this court. They all are in aceord with

What was said in Perlova, supra.”

Cleariy, petitioners submit, the decisions of the court

below of which certiorari is sought herein are in conflict

with the whole bodysof law heretofore established. not

only by the decisions of this, court, but by those of the

-court below. In fhese premises, petitioners respectfully

submit that this court should resolve the conflict.

: sd *s

. a

_—

e ‘ . ’

. The decis ions forswhich packs usutd is Hitste. inal if ree

. jist aria. to thie plaintiffs - thea of (aims whi

have filed their petitions and, in pomne instances, assumed

the expensive burden of teial in relianceauh the series ‘of 4

contrary holdings, by that court. As this eaurt said ovey

a century ago, there are no cases where an adhe rence to

the - maxim’ of stare a ix so absolutery es: on al to the

peace of .s0c iety is \Lhose . whic A afte vet retroae tive! thie

jurisdiction of conits ag a The RBaltime San

at Ohio Railrs oad ('v., 16 rOW, 4c 320 ( BSary, Petitions

~ submit that to deny he varihg of thetr efises to these |

gants below on the grounds of a suddenly raised bar of

limitations. which did not éxist before and ‘is unjustified At

new, is equally tireenscionable,————___. Yet

At least 25 plaintiff's who are, iv respect of limitations? —

: ‘situated -simgglarly to _ titioners herelu-here het wetlons

in the cour . “To go aground on the new barrier

reef erectéd by the Pa ‘isions below ino these petitioners’ x

eases.” Six of them have already borne the costs of trial ‘

a Court. Watters tint

States, C. Cls. No. 315-59; Robmson r. Lnited States: 4

Cls. No. 435-59; "Heller ve United States, C. Cls. No.

15-60; Levadi v. United States, \. Cis, No. 260-60. Wood-

‘8ard v. United Sigtés, C. Cls. No. 190-60; Knight v. United

States, C..Cls. No. 64,60.

Petitioners submit thaf this Ts an intolerable injury to

be inflicted .on litigants whose only lapse hes be®n that

they relied on the law as the cou®t below had heretofore

clearly and gmphatically stated it to be.

2 See Appendix D, infra. The office of the Clerk of®the Court

has informally indicated that ali of the cases listed in Appendix |) -

are-presently suspended, until 30 days “after final action on the instant

petition. Many other, such cages, petitioners are advised and believe,

ie he i formally or formally, before various Commissioners

te) e

than 16,000,000 of our citizens served in our last major

War, between 1941 and 1946. Prior to 1946. corrections

in military and naval records could Ve made only wher

authorized by a jprivate bill enacted by Congress.) tu

order to obviate ‘the consice ration of a substantial number

of such bills subsequent to World War Hl, Section 207 of.

the Legislative Reorganization Act of 1946 (60 Stat. Siz,

S37) provided for the correction of military and naval!

records by board= of civilian officers or emiplovees of thie

respective service departments. By 1951, stich boards

yore) ~

guet<Tor a correction

Was a total of 2.806.062 amen

a total of appr@&imdtely 1p.Q00

of record” dn 1962

active: duty i thie: a forces” It may

Ph Ou Fi

correction boards will continue to aie in the same pro-

porsion and for the same Causes as in the mast. Of the

15,000 application~ for correction of records fed Bet wee ui

194@-and 1951, the-ouly period for which stafispesgare

ay atabic, between 100 and T400, or less thay 1M ope

were granted relief It is not sure ‘sted that witch sta-

tistics huve any evidentiary value with a to ‘the

fairness with’which the board= dealt with the unsuccessful

applicart-. It is. however, submitted that a. rejection

rate of over 90 per cent creates a <uffies ent space for the

intrusion of human error to warrant ju dicial review in

instances wherein arbitrary, capricion; or unlawful abuse

Ne a ee

World Almanac, Ped, PR a sded.

‘ &2d Concress, Ist Session, Senate Report No: 7Rs, y 1.

fbad.

* 82d Congress, Ist Session, House of Representatives Report No. —

449, p. 2.

Worlu Almanac, 1963, pp. 725,.726. ©

*s Full @Gémmittee Hearing on H.R. 1181, House of Representatives, ;

Committee on Armed Services, May 15, 1951 | No. 21), p. 446.

; | é

The issue is one of major public importance. More.

: for wegen

established in th Ariny, Navy and Air Poree had reeset rat

fairly be asSrnied that the necessit “for resort te the”

{sey 10

e °*

of iene ree on the ane” ot the boards is alleged. Jarsiius

. United States, supa. The | legislative history of the

1951 amendment to, the Legislative Reorganization Act

vn (10 U. S. C. §1 1559 A 95) show clearly, as will be dem-

onstrated heremafter, that the Congress intended that the

right to judicial, review should be available to, a@yplieant-

to the boards. In justice to the millfons 61 men_and

___ women, -past present ‘and future, Who serve the country

in military status, the atomalotis and highly confused

state into which the decisions of the court below have

thrown the law ought to be resolved. Betty Friedman,

Evecutriz, v. United States. supra (A958).

° 4. Petitioners submit that fhe Congress, in enacting the

Administrative Procedure Act, 60 Stat, 237, 245.5 U2

§1009 (A 94) insured their right “to a judicial. review

of ‘Arbitrary, capricious or unlawful action by the Board

» for the Correction of Military Records. Notwithstanding.

although petitioner Friedman pleaded her right to revites

of her case under the said Aci to the eonrt below 1 Plat

tiffs Reply to Defendant's Sugqagestion of Bar by th:

* Statute of Limitations. p. 11)° the court either took ne

cognizance of the issue, or decided it sah silentio. The

. question of the applicability of the Act to decisions ot

Correction Boards is an gnportant issue in need of the

guideposts which a decision of this Court would erect.

3. The issue herein is also of substantial - public im

ortance in that the Boards for Correction of Military

Gnd Naval Records are the administrative tribunals of

la# resort for the more than a million men and women

on active duty with the armed services, plus the multi-

tude of others in the reserve components who ean be

similarly affected:’’ A careful search does not disclose

a prior instance in whieh this court has established the

* See pp. 15-21, infra. *

World Almanac, 1963, p. 734

guide lines for what shall constitute due process cof law

avith respect to the right of judicial review of the cases

of such¢persons who allege that they have been dealt with

arbitrarily, capriciousiv or dnlawfully. by the Boards, on

the Seeretaries of the several service Department. acting

through the Boards. —

a—~----

A rgument

; v

( ALL military organizations ave two responsible interna!

functions, discipline and administration. Discipline, when

necessary, is entorced by the punitive statutes. Most

servicemen and women, like the great majority of the pop

ulation, have little contact or concern with them. But

administration, with particular respeet to their pay and g

allowances, is a constant, daily factor in their lives from

the moment they don the ounimform -

In th conduct of affairs of Suen cCMmignitude -and-con:

plexity. there are bound to be errors made and injustices

done, ne matter how well meaning the administrators.

Traditionally, under our governmental syvStem, réetifiea

tion of such mistakes has been accomplislied by acts. of

Congress for the private relief of the injured persons. At

Congres became—<thstantial'—he consequence thére Was

included in the Legislative Reorganization Act of 1946 a

“provision for the establishment of the Boards for the

Correction of Military Records in the several service de

partments.'e% The statute, in substance, authorized the

Seeretaries, acting through board~ of civilian officers, te

correct a military or naval record whenever sueh action

Was daemed” nec4ssary te eorrect an Bry oy remove

Injustice,’

82d Congress, Ist Session, Senate Keport No. 78s, p. 1

. . -

* Section 20>. Act of Aurust J. 1946, 60 Stat sv, Os7

lhid

é a

’

; | ; e

a ‘ .

. %

The effort on Congress’ part was well-intentioned but

did not prove very. fruitful. Shortly after the Board-

were established the Comptroller General rendered at

épiniow to the effect that “neither Section 207 nor othe?

legislation vests in the hedds of the specified, department-

or in this Office-any authority to * °°

funds to pay any-ciaim for money, based on corre tian

made in the military or naval records of an. individual

nunc appropriated

under the authority of that section.” Congress thereupon

proceeded; in 1951, to amend the Act to provide the needed

autbority."” During the hearings on the proposeds amend.

“ ment, it was brought clear!y and unmistakably to the at-

tention of the subcommittee of the House of, Representa-

_ tives that certain agencies of the government, the Genera!

Accounting Office as well as the service departments.

would have preferred that the act, as amended, should

specifically preclude review of Correction Board dec:

sions by the .courts. The committee’ rejection of the

suggestion was emphatic. dhe following is atypical

passage :"

“Mr. Deyle: I never like to see the right of the

court to review any board abrogated. whatever the

board is.

Mr. Baier [representing the Department of De-

fense|: I think that provision is to prevent a lot of

these little cases from going to court and wasting

the court’s time where the Department has the rec-

ord and they try to dssemble the data. °

Mr. Clemente: Unfortunately the word was ‘wast-

ing a court’s time.” | don’t think it ix properly put

because the courts are there for that specific reason.

Mr. Baier: I will take that back. It will save

«27 Comp, Gen. 709 (SEF. >

i Act of October 25, 1951, 65 Stat. 655, 10 U.S.C. $1552.

‘© Hearings Before a Subcommittee of the House Committee on

Armed Services on H.R. 1181, 82d Cong., ist Session, pp. 376, 392.

8? : yd

Ibid, p. 392. ‘

a——

Pay % : : 13 ; >. 2

Mr. Doyle: IT may observe from a quarter of ¢

century, of a law practice before the court that fread.

is pretty diffe te-prove atid seten-you say, except

when procured: by means of fraud, you are” prac-

ticaliy eliminating an applicant making a meritori-

otis ‘showing’ before a Federal court. If there is

going to fe any wording, I certainly favor the in-

clusion of ‘mistake’ on a broader ground, so that at

all times the applicants have the right, if they have

the money, to go fore a court and protect their

rights. ; °

And the fact that vou have reconsidered case-

where there has been supplementary, evidence in

itself shows that there might well) be many cases

. which might well go before the courts.”

If its ee the full Coyunfitter ou Armed Services

merely stated :

“On page 3, lines 11 and 12, the committee has

deleted the words ‘including a review by the courts

te of the U nitedg States ~ since it is of Phe opinion that

the courts of the United States.should not be pre-

cluded from review?tg such cases under appropriate

circumstances.” ;

It would scarcely seem necessary to belabor this point

to such an extent since the court below, in jt comprehen-

sive and thoroughly well-reasoned nei in Friedman

e. United States, 14mC. Cle. 289, 259 41958), seemed to

have setfled the question, if atv existed, as to the intent”

et Congres~ in these Terms: ;

e "We conclude that Congres- had no intention, in

enacting the correction board legislation, of with-

holding from this court jurisdiction to render a

mogey judgment for pay of which a claimant. is

deprived by reason of the arbitrary or illegal action

of a correction board *°* *"

~»

Notwithstanding, the court, below, in ap appendix at-

iached to it< opinion in the case-of pefitioner Friedman,

° 7

1s noe Congress, Ist, Session. House of Representatives, Report

No. 449, ip

° .

eo l4 — ¢

now purports to question even its own prior conclusion |

in this respect. In the premises, petitioners herein can |

only quote Mr. Justice Reed (Reg.), sitting by designa-

tion, as he spoke for the court below in Eieks ov. United

States, supra: |

‘+, “It would overturh much of our thinking on jus-

tice to say that those words were mtended to bar

courts from awarding pay to military personne!

- when they had been deprived of their compensation

by failure to correct their service record through

arbitrary and capricious action.”

Petitioners respectfully submit that the contrary view

appears to them more like a somersault than an overturn.'*

In any event,-once the 1951 amendment to the Corree-

tion Board statute became law, case began in due course-

to ‘arrive before the court below for review. The first

appears to have been Uhley v. United States, 128 C. Cls.

608 (1954). The plaintiff had been discharged from the

Air Force on December 24, 1945, without retirement. pay.

On May 16; 1952, soon after the effective date of- the

amendment, but more than six vears after }*s discharge,

he applied to the Air Force -Board f£& Correction of

Military Records for‘a correction of his record to reflect

his rettrement for physical disability. His application

was dénied on January 2, 1953, and he filed his petition

in the court below in February, 1953, alleging that tlfe

‘ denial by the Board was arbitrary afd capricious. The

government moved to dismiss on the ge@und that the

suit was barred. by limitaftons— The court, in overruling

the motion, said: ° | ; CLS

“Although the alleged error in plaintiff's mititary

record was committed,-if at all, at the time of

plaintiff’s separation from the service in 1945, the

wrong of which plaintiff here complains and for

which he seeks judicial redress, is not the alleged

198, pb ANE sie sein flip-flop. See Washington Post, April 17,

. ‘ ©

error, per sey but the sliced arbitrary and capri-

cious deprivation of the right, conferred’ by the

Act of October 25, 1951, to the action ‘necessary to

correct an error or remove Injustice,’ Under these

_ circumstances we are of the opinion that the suit

iS net barred by the statute of lanitation.”

Qm the same day, the court dec ided Gordon v. United

States, 129-C. Cls. 270, 277 (1954), by dismissing plain-

tiff’s petition. The court saidc however, thatthe plaintiff

had b¥ application thereto invoked the jurisdiction of

the Correction Board and in the absence of arbitrary or

capricious action bu LE Board he was bound by its terms.

The followi iyi Year, the court wrote th Rosnick v. United

States, 32 CO Cls. 1.5 (1955), while didilestay | the peti-

tion, “that in-eertain eases in which a manifest: injustice

has been done the action of the Army Board for Cor-

rection of Military “Records might’ serve as a basis for

the court to correct) sueh oan justice.” Thr following

‘month, May. 1955, jn Wales + UMited Stites. He @. C ls,

THO, TTA, the court said: . +8

”

“Therefore, in the dbsenee of: a clear showing

that the Board acted. arbitrarily or capriciously

and therefore unlawfully, we will not disturb its

findings. Gordon v. United States, 129°C, Cls, 270.

However! the: doors of this Court care, always Ope

fo vrant relief to a party aggrieved by the ‘action

of an “executive or coger ents officer which is

; arbitrary or capricious. Carlin +. United States,

121. ge Cis. G48. The Supreme Court) has” lon

recognized the right 6¥ the court) to review such

“action, Dismuke vr. United States, 297 U..8, 167,"

As late as November. 1955, the court below * still ad-

hered to*the doctrine of Dismuke vo United States, supra.

In dismissing the petition in Girault’ +. United States,

133 C. Els, 135, 1449 the caurt said “resort to the court

cart only be had if the Secretary's action is arbitrary or

-unlawful. AS soon as it appears the Secretary is aeting

in such a mannerethe officer can appeal to the court for

oo °

redress, *

“

. Dee i, 16 °

In four cases decidéd in late 1955 and early 1956, the

court, in dismissing the petitions, did so on the ground

that resort to the ‘Correction Board -was permissive and

did not toll the statute of limitations In none of the

fonr was the question of a new cause of action arising

from “arbitrary and capricious action by the Board dis-

cussed. Duff v. United States, 133 C. Cls. 161 (1955) ;

*MacFarlane. v, United States; 184 Cy. Cls. 755 (1956);

Barker v. United States, 135 C. Cls. 42. (1956), cert. den.

ne U.S. 935 (1956), reh: den, 352 UZS. 976 (1957) ; Soukaras

. United States, 135 .C. Cls: 88 (1956). Capps v. United

; pote tea 133 C.Cls. 811 (1956), is something of an anomaly

since action by the’ Correction Board. was not involved.

In principle, jlowev er, the court’s rationale is in harmeny

with the present petitioners’ contention. In Capps, the

vourt held -for the, plaintiff ‘that his cause of action

accrued in 1951 upon the erroneous action of the Dis-

charge Review Board, and not at the time of his discharge

from service in 1944 as the, government argued. The

court cited Uhlew, supra.

. Beginning again in late 1956, the court. adverted to its

Uhley position that arbitrary and capricious action by.

the Correction Board gave rise to a new cause of action.

Furlotg v. United States, 138 C.-Cls. 848 (June. 1958, °

overruling the decision of ‘December 5, 1956) stood for

the principle enunciated in’ Unley, that a petition’ way

timely if filed within six vears of the time of arbitrary

- or capricious action by the Seeretary 6r a board. By |

1957, the court’s doctrine in this field apparently was

firmly established. The government contended that the

actions in San Millan v. United States, 139 C. CIS. 485

(1957); Suter v. United States, 1389 C. Cls. 466 (1957), cert.

) “den. 355 U. S . 926; Proper v. United States, 139 C. Cls. 511

(1957); Friedman v. United States, 141 C. Cls. 239 (1958), -

and Patterson v. United States, 141 C. -Cls. 4385 (1958), all

were barred by the statute of. limitations.” Each plaintiff

+ a tee

20 See also Ruford S. Kirtley wv. United States, Cc. Cls. No.

‘93-55 (defendant's motion to dismiss on the ‘ground of limitations

overruled by order July 12, 1957).° Fone eS

ae.

P hid filed a petition in the court alleging arbitrary and

‘apricious action by the Correction Board within six years

>from service not for physical disability. 7AIF were suits for

ealisability retirement, pay. The court’ pronouncements

on the matter of? limitations were these:

Suter (holding):

ae. & ©

Our decision is that the plaintiff, when he

Was released from, the Army in 1946, had a total

and permanent service-connected disability, Lf the

Physical Evaluatio® Board in 1951, or the Board

for the Correction of Military. Records in 1954 thad

so decided, and the decision had been * officially

approved, the plaintiff would have received his

retired pay from the date of his release in 1946.

Since his eanse of tion is based upon the failure

of the first of those tribunals to decide his case

at all, or upon the failure of the second to degide

the case upon the evidence, we must decide the

ease as we think thee should have decided it, and

With like effect.” :

San Millan (dicta):

oF a

it has long been held that. this court: has

- jurisdiction to render judgment for the pay which

was denied the claimant by the arbitrary or eapri-

cious actions of the adininistrative agency of the

Government. Dismuke v. Uuited States, 297 U.S.

Gordon «. United “States, 129 Cr Cis. 270; Suter

vr. Conited States, decided this day, ante, p. 466."

Proper tholding) :

eee * 8 As we said in our recent decision in the

(ls. 843, this court acquired jurisdiction of a,elaim

for disability retired pay

= --* *.* Sifter the * * * Secretary * * * acted,

7 *“* *

capri: ously or contrary to law;

Friedman (holding) : 2

see ay! Nes é.

- ak =

. ;

‘Accordingly, we hold that plaintiff” s clain® based

on the-alleged arlitrary action of the Secretary

of the Army is not barred by the statute of’

jimitations.” _

. ‘ mt

“In a number of recent decisions by this court

it has been held that a cause of action for disability

retired pay accrues, when the Secretary or a Cor-

rection Board arbitrarily, caprieously and con-

trary to law denies such application. Furlong v.

Unified States, 138 C. Cls. 843;,.San Millan v. United

States, 139 C. Cls. 485; Proper v, United States,

139 C. Cls. o11. This event in plaintiff's case took’

place in 1954.- We are of the opinion that whether

plaintiff's cause of action accrued in 1952) when

the Air Foreée’ erroneously failed to retire him

according to the findings and geo oer age of

the Physical Evaluation Board, in 1954 when

the (Correction Board denied Sie ‘abn ition, his

claim is not barred Wy the statute of limitations. Fi

Patterson (holding) :

“With respect to the defendant's eontentior “that

the plaintiff's claim is barred by the six-year Stat-

ute of limitations, this court has held that where

a plaintiff has received no determination of his

eligibility for disability . retirement pay by .any

board until the correction board has acted, ‘his

cause of action accrues not at the time of his‘separa-

tion from the service, but at the time of the al-

, leged wrongful action “of the correction. board, ay)-

: proved. by .the Secretary, in wrongfully - refusing

tor correct the records and grant the plaintiff dis-

v ability retirement with pay. Uhlew v. United

States, 128 C. Cls. 608: Furlong v. Uniteds States,

138 C. Cls. 843: Proper v. Uhited States, TRY C.

_ 511; Friedman v. United States, supra; Suter

United States, supra, Accordingly, we conclude

that the claim stated herein is not barred by the

statute of limitations.”

nF tia

“419

Finally, in Kicks ¢. United States, 140 C. Cls. a22 (1959),

through Mr. Justice ‘Reed, sitting by designation, the

court stated the doctrine filly and, it Was thourht, once

and for all. Gludge ‘Laramore dissented for other rea-

ons.) The court <aid 3’ : * : =

“Phe Goverument’ pleads this court's six-vear’

statute of limitation as a bar to an® recovery tor

the period between plamtitls retirement and: Sep-

tember SO, 149. Tt has not briefed its position.

This suit was filed December 2, 1955. "The notice

of the Board that it had been determined that ne

change, corrgytion or imedification would be made

on plaintil’. duis 1, 14, application reached

plaimtitl October IS. 1955. “This suit seeks recovery

of salary for periods more than six years” prior

to its institutdon, but the right to recover is- not

setoupoas aosalacy debt tutoarises, it is elaimed,

from the arbitrary and e&pricious action of, the

Secretary of the Navy in’ refusing’ correction of

plaintiff. record. Under the earliest provision

for the correction of military recerds, 60 -Stat.

S37, 7207, there was no express limitation as to

when the Board procesding shpuld be begun. | In

the 1951 amendment, a meyiber of the armed forces

had three vears after discovery of the Srror OF

injustice, or ten vears after the enactment of the

aniendment, whichever be laters to bling prtcced-

ines before the Hoard. 65 Stat. 655. This was -

the get in effect when plaintiff tiled his request

for correction before the Joaurd. OAL present cthe

limiting time is three vears after diseavery of the

iniustice ar October 2a. Ter. ‘whichever is @ater.

The Board. simee O54 Stat. 655. may eXerse 2 failure

to file in time in the ingerest of justice. We think

this present canse of aetion arose. oplthe refusal

of the Bowel after the “Seeretary’s disapproval,

to corre? nlaintiit’s record. It was therefore. in

time. . .

It is within 1 jurisdiction ofs this court to,

correct the artion of the Board if it: results from

the Secretary's arbitrary disapproval of the Board’s

decision and recommendation. Tf the contentions

of pianitiff are correct, le is entitled to back pa%

e from the United States of over $5,00G This action

‘seeks the recovery of that amount and the right

to recover depends Ou Whetuer tbe refusal togfor

rect the record Was arbitrary. bk ricdiman vz 6 ed

States, Ui, supru, at Lov, and cuses cited, par-

ticularly Puriony vu. Lntied States, 1O8 C. Cis, 845.

In the Friedman’ case this court pomted out the

legislative lustury that governed our interpretation

of the congressional purpose io allow this court

to enter Judgment tor pay withheld by an arbitrary

failure to correct a military record, but net to com-

pel ‘alteration or correction of an ofticial military

record.’ Page 258. When Congress said that rui-

ings of Correction Bodrds shguid ‘be final and con-

clusive on all officers of th® Government except

wher procitr L by means of fraud’ (65 Stat. 6009),

it would overturn much of our thinking on juste

to say that those words were intended. tbar court’

froni- awarding pay to military .personyel when they

had been deprived of their coéinpensation by failure

to correct their service record through arbitrary

~. and capricious action. The correction boards were

created to remedy wrongs, not‘to confound them.”

The principle had become so we!l established that in

Allin v. United States, 147 C2 Cls. 459 (1959), the unani-

mous court, in giving plaintitt judgment in 1959 for dis-

ability retirement pay back to 1946 based on arbitrary

aud capricious action by a Correction Board in 1954,

did not even mention tie statute of limitations in its

opinion. In Weimer v. United States, 148 Cl Cis: 445

(1960), Judge Laramor® in writing again for the unani-

mous court,” gave judginent in 1960 for disability retired.

pay back to the date of plaintiff's release from duty in

_ 31 Judge Laramore made this comment, however (fn. 3, p. 10 of the

slip opinion) :

“'The writer of this opinion dissented in the Suter case

for the reason that plaintiff's claim accrued when he was

. Separated ftom the Army and hence was barred, by the 6-year

atute of limitations. Since the majority. of the court-is of the

vpinion that the 6-year limitation statute has no applicability

in a situation/such as presgnted here, no useful purpose would ~

be served by pursuing this course.

o .

> »

1946, based Apon an allegation of” arbitrary and) capri-

cious action by a Correction Board i 1956, ten years

decided July 15, tines the Court adhered to the estag-

lished doctrine, although recovery was limited. to pay

due for the peryod of six years prior to the filing of the

petition, Judges Whitaker and Larfimore Flissented

Judge Whitaker, hawever, stated’ that “In all of these

cases, the question for our determination is whether or

not the actfux of the Seeretars is arbitrary or capricions

or not suppotted by” substantial evidenee.” ;

Finally t) urt below came to Auight ve. United States,

. Cls. NoS 64-60, which has been discussed to some ex-

tent above.’ In this case, the unanimous court would

appear to have stated its position in the clearest, most

ainequivocal and definitive terms at its command: 4 _

“The Governnignt’s motion is based entirely upon

the statute of limitations. It raises no other issue.

The contention is that the piaingiffs cause of action.

if he has one, accrued at The time of his release

from active duty in TAT: that “that ocenurred more =

than six vears before@he filed his petition in this

court, erge, the elaim is barred by limitation.

This comtention assumes that Congress, in enact-

ing in W446 and aamending in 1951 the statute

authorizing the establiszhment of boards for the

correction of military reeords, intended to create

no leval rights but merely to lodve an arbitrary

nneontrolled power in the Secretaries to correct

records or refnse to correct records iis they hisipy-

pened to feel like doing. th

The assumption is net sound. That kind of raw

nower tmeontroll@l by law conld only be conferred

he the most express and emohatie language. We

have repeatedt: held that the Seeretaries and their

honres for the correction of records must base

their: decisio@® unon substantial evidence, and are

not privileged. to make arbitrary and capricious

deeisjans.”

-—-——_— + <

° See p. 7, supra. .

‘ 2 : .

Notwithstanding,’ the court below has iow abandoned

that position for no apparent reason.» demonstrated

above, the attempt by the court in petitioner Friedman's

case to rationalize ite @hift does not accord with either

the facts or the law. Nn Lipp. supra, the court's holding

is that resort to the Correction Boards 1s merely per-

missive and such resort does pot tol! the limiting statute,

something which was neve in issue. The opinion in

Friedman, supra, is squavely to the coutrary, holding,

apparently, that resort to some board will activate the’

statute, whether a Correction Board or a Retiring Board.

To perplex the situation beyond tepair, the court below,

on the same day, allowed recovery in Harper v. United

although 15 years had elapsed between the beginning of

the period for which he was granted: retirement pay

and the institution of his suit, aye only intervening board

having been the Correction Board which had denied_his

application a year before the filing of his -petition.**

Petitioners submit thai, amidst such confusion, all that

can he fairly said i is that the real issue upen which this

petition turns is simpix whether or not the members of

the Armed Forces have the right, upon an arbitrary and

capricious action by a Correction Bogrd, to the judicial

review of such an action that Congress iitended to pr.

vide, and which is in accord with the doctrine long estab-

lished, by this court and followed, hitherto, by a multitudg

of cases in the same court to which certiorari is sought.

Petitioners submit that they, in company with the mil-

lions of other men and women in uniform, have the right

to such review by gue process of law. Military forces

depend upon morale Sy as much as upon equipment and

“training. Nothing can Be more destructive of that morale,

and more foreign to our concept of justice, than the

cee of this fundamental right.

23 See, alsu, the 2pparent holding in Friedman, supra, that resort

to the Correction Board is mandator) in some instances. A 68. ;

’

. ; e -

Conclusion .

or the forecoin’ reasons, this petition for certiorari

to the United States Court of Claims should be granted.

Respectfully submitted,

(ivy Emery

° eas is

lttorney for Petitioners

One Farragut Sqfiare South .

Washington ee | et be

f, VERY AND Woop : ig

fit (Counsel =

. é

® o

- 2 2 : 7 Pp

2 &

Fe °

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.