Petition for a Writ of Certiorari — Sheaffer v. Commissioner

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MAY 32° !552 | |

JOHN F. DAVIS, CLERK |

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_ IN THE

— Supreme Court of the United States

| | Ocroner Term, 1962 re yn

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- Garner? -R. Davis, Petitioner

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‘Tue Texnessee Vatiky Actuority, Respondent

PETITION FOR A WRIT OF CERTIORARI TO THE _

UNITED STATES COURT OF APPEALS |

: FOR THE FIFTH CIRCUIT

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Jouwn P. Wirtsu.

Counsel For Petitioner

: 1420 New York Avenue, N. W.

. az Washington 5, D.C.

Press or Byron S. ADAMS. WasHINGTON, D C

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Appenslix A—Opinion and Judgment Below... -. porame: | “iar

~ CITATIONS

CASES: + : > a

Arant v. Lane, 249-'U.S. 367 220.0000. Sn ns .

Baxter v. U.S., 122 €..Cls. 632 ......... Ee Sesh

Evans ¥.Seedom, 260 F.2d 125... yee os we

RAM V0.8, 48 ©. 0 Mo 1

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° Winsberg v. ULS., 120 CeCls_ Sp a

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“IN THE

Supreme Court uf the United States

a OCTOBER Term, 1962

Me ot

Garnett R. Pavis, Petitioner

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- THe TEN NESSEF VaLtey AUTHORITY, Respondent

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PETITION FOR A WRIT OF CER ORARI TO THE

| UNITED STATES COURT OF APPEALS

‘.. FOR THE FIFTH CIRCUIT

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“Petitionds, prays that a writ ‘of certiorari issue to review

the judgment’ ‘of the. United’ St: ites Court of Appeals for

the Fifth Circuit, entered in the above-entitled case on

March | 1, 1963.

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CITATION ‘TO OPINION BELOW wear

The opinion oh the Enited States Court of Appeals for

the Fifth ( ‘irgttit (R. 69) is sdagesitel in Apfic ndix A hereto,

infra p. da. x w is

4 JURISDICTION

The Auiavient of the United States Court of. Appeals

for Ke F ifth Circuit Was entered on March 1, 1965 (R. 69).

The jurisdiction 6f this Court is invoked under 28 U.S.C.

. Section 1254 (1), i |

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QUESTION PRESENTED) -C :

| Whether the granting of a Motion for Summary Judg-

ment* based on a defense of laches is not a denial of: due

process of law when the record reflects a material fact to

be in controversy .and when the veracity of the moving

party has been questioned in an affidavit filed in opposition

to said motion for summary judgment,

*. STATUTE INVOLVED :

The statutory provision involved in Section 14 of the

Veteran’s Preference Act of 1944, as ainended, -5 U.S.C.

Sol et seq.

- STATEMENT

This is'a ease of alleged inefficiency ‘in job performance

relative to work performed by petitiofier as far back as

1952. Prior to the filing of the letter of charges proposing -

the dismissal of the petitfoner, which letter was dated

_ May 10, 1956, he had been employed by the respondent

in a‘satisfactory-manner. The letter of charges covered

‘matters dating back some.four gears to the vear 1952,

“which matters had not been presented “to petitioner prior

to 1956 as being: the basis 0 y allegation of. inefficiency

‘on his .part. Petitioner properly appealed his préposed

dismnissal within the Agency and a Grievance Hearing was

held thereon:on June 8, 1956, which sesulted in a decision

adverse to him. He ‘then appealed his proposed dismissal

to the United States Civil Service Commission which re- |

fused to decide the merits of the proposed discharge due

to the respondent not having followed correet procedure in

effecting the dismissal of the petitioner.

Following the determination. of the Civil Service Com-

mission that the proposed dismixsal was procedurally

defective, the respondent corrected its procedural error and

changed the proposed removal date to February 6,.1957,

said change being contained in a letter dated February

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4, 1957. Petitione er subsequently’ pursued: all avenues of

adininistrative appeal available. to him without’ any satis-

faction being obtained, the last such appeal being a deter-

mination made by respondent on June 12, 1958, which was a

denial to appellant of pay for untsed leave ang a state, ”

“ment that the same had been forfeited: Following this’

. last recourse to the respondent, the petitioner caused:a suit

to be filed in the United States Court of Claims on June’:

12, 1959, which suit. was dismissed on the ‘¢rounds’ that

said Court had* no jurisdiction over the matter said dis-

-missal occurring cr June 17, 1960. On May 10, 1961, -suit |

was filed in the United States District Court for the

Northern. District. of Alabama, which suit. was dismissed

hy the granting of: a motion for stnmary judgment based

on a defense of laches and failure to join an indispensable -

party. Petitioner subsequently appealed. this decision, to

the United States Court of Appeals for the Fifth Cirenit

which affirmed ‘the judgment of the low er Court on, March

1, 1963.

REASONS FOR GRANTING THE WRIT

Denial of an opportunity to present a factual defense to

the defense of laches as propounded by. the’ respondent

herein is a denial of due process of law. The arbitrary

action of the Trial Court -bélow in granting motion for

stuinmary judgment to respondent is contrary to the hasic

principle of law that a motion for summary judgment will

lie only if there is no material issue of fact in controversy.

In the instant matter the petitioner’ in his affidavit in

support of his opposition to the motion for summary judg-

ment set forth material isshes of fact which were’ in con-

troversy and attacked the truthfulness of officials em-

7 ployed by the respondent. Wherein the veracity of parties |

to a suit is-questioned it is submitted that only a trial of -

such issues before thé Court can resolve the ‘question of

truthfulness. Hérein officials of Respondent hid behind -

the cloak of affidavits which could not be. cross-examine de

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and which were nothing more than mere seraps of paper

to which they had affixed their signatures. and to which

they had discreetly -sworn truth. Disereetly sworn to,

-truth behind the cloak of parchment because they dare not

\ expose themselves to an*open trial of -their cofttentions.

Such perfidy is not a- component of Justice nor a principle

_ of Jaw to which . the Constitution of: the United States.

me _subseribes. Such perfidy is aliew to the demoeratic —

- processes of this Government-and is the tool of the opposi-

tion to justice and ‘fair play. ;

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The Trial Court herein in granting the respondpnt 's.

motion for sunmary judginent on the defense of” ‘laches

-. locked tha door ‘of justice-to the Petitioner and denied te”

him his day in Court. To have had the issnes aired before

‘the Court would not have denied to respondent the righit to

the defense of laches*were, it valid id legitimate but to

have «uch a defense summarily set aside the rights of |

petitioner to-be heard is a denial of due -process and con-

trary to the Constitutional protection ggaranteed ta, peti- -.

tioner. In short, the, Triat-Court herfin h¥s na the

petitioner of his right to be heard in Courtem seek

legal redress for a fraud perpe ‘trated upon him in causing

his dismissal from gainful employment as a Federal

Employee. - les ees

Petitioner herein has exhaastivelt made all efforts to

have this matter tried before the Courts av quickly and

with as much dispatch at, his comniand. The record sub- |

mitted herewith. contains a complete accounting of the

exhaustive efferts of Petitioner to have a full and fair

adjudicationof his complaints but he has not been able to

have such an-adjudication adininistratively ner judicially

and’ now seeks the redress ‘afforded him ‘by this Court in

_ seeking a petition for-a-writ of certiorati, To permit a

“trial of the issues herein ‘will open a sordid record of un- |

nutigated lies’ which the .respondent® has lent itself to in pe

order to effect the dismissal of the petitioner. | It is “net

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the type of record’ to be aired publictand in an open Court

and the respondent has succeeded ‘ta, date in keepitig this

record suppressed to-the detriment! of the petitioner and .

to the denial of his rights as guarar eed by. the Due

Process Clause of the Constitution.

The veracity of agents of Respondent is at issue her rein

and is questioned with great strength. by Petitioner as the: -

record reflects. To continae to permit the Respondent and *

its agents to deny a full and fair opportunity to be heard

in-open Gourt can only be a de nial of justiee and a denial to

petitioner of his inalienable neht to his ‘day in. Court.

The cases of Erans v. Lee dom, 265 F.2d 125 and Arant

VesLane, 249 7S. 367. support the position of” petitioner

herein. Therein the doctrine of laches as a defense was

set forth incall .of ‘its, prope rties and reflected that. sneh

a defense is valid where ‘there is a showing that the party

against whom the defense is pleaded did nothing to asstrt -

his claim. In the -Erans case, supra, the Court held that, |

a qnere showing of a contemplation to: start a legal action

is sufficient to thwart theffective use of a defense of laches.

‘Again‘the ¢ attention: of a ourt is respe etfully directed

to the cases of Barfer v.U. 122... Cis: 632. Winshe ia ~

(7. §., 120. C € ‘Is. 511 ry one ee ee te 8! Hs C. Cis. 91.

and Simon v. U.S. »118 C. Cls. 182, which support the posi-

tion of petitioner herein and are sufficient legal. doctrines

‘to defeat the defense of lac hes made by respondent.

The defense of laches is an- equi ‘table remedy he ‘rein with

“not a legal one and has for its foundation principles: « of .

; justice e and fair play. It- was not ordained for the parpose

of covering up the fransgressions of the guilty but was

‘ordained to prevent miscarriages’ of ‘justive, The only

purpose. served by the: defense of laches herein is a-denial’

of justice to the petitioner. The sins of the respondent °

cemented ina foundation of deceit’ and perfidy have heer

permitted to ride the crest of the wave of fraud and blinded *

the eyes of: justice with a tidal wave of injustice. To per-

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mic such action to ‘eontinue any Wurther in this matter is

to le nd the Courts of this land to side of fraud’ and deceit.

Before a just and proper determination of the validity

of respondent’s mh ean be established a trial of the i issues

must be held and “if aféer all facts are hefore the Court

\the defense of laehes prevayls| then petitioner, will’. have

lost his cause in a way that is the basis of - ovr judicial -

svstem and will have hat h%s day in Court.“ As the issues

herein now stand no judicial re: ‘olution of the matters in

_ dispute has’ taker, place. An arbitrary fiat of a lower Court:

has permitted the. falsities of the respondent to take pre-

ee dence over truth. “Such is not justice: such is not equity :

~uch is not the American system of democracy at work.

‘Laches being an equitable remedy then the seeker of

eynity must. do’equity and the “Clean Hands Doctrine’

must be applied and when so applied herein the question

presented is whether the-hands of respondent can ever be

cleaned for the lies*and deceit used to deprove the peti-_

tioner of his position of employment with the respondent.

Such-action is not.democracy at work nor is it within the

treme work of fair play for this Country-stands and which’

‘this Court is compel! led to uphold: . A summary dismissal *.

of petit oer’ s canse of agtion herein without giving him

his day, i Court is denial of his rights of appeal.

ead by the ¥ "tel ans’ Preference, Act and a denial

of due process of kaw as set forth jn the Constitution of

the United States.

. CONCLUSION

For the, foregoing reasons, this petition for a writ of

“ee rtiorari should be granted.

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Respectfully submitted, °

° Jous P. Wirsn.

a Counsel for Petitioner

May 31, 1963 oe | | oe

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