Petition for Writ of Certiorari — Smith v. United States

May 13, 1964

| Qifice-Supreme Couit, U.S.

LIBRARY FILED.

SUPP rae B MAY 13 1964

JOHN F. DAVIS, oxen

INTHE

Supreme Court of the Anited States ;

OctopeR TERM, 196

S0

‘

T. FRANK SmitH, Petitioner

v.

THE Unitep States, Respondent

PETITION FOR A WRIT OF CERTIORARI TO THE .

_. UNITED STATES COURT OF CLAIMS

JOHN P. WITSIL >

Counsel for Petitioner: —

Press or Byron S. ApaMs, WasHincton, D. C.

SS

INDEX

Page

Citations to Opinion Below bisanenesenseeeds a

Jurisdiction PEP TRC COCE LTE CCLT TT CP ET TEC Eee 2

Questions Presented ...............0.0000% ees

WEE Seay ine exacene niga cectvai nuuee 2

Reasons For Granting the Writ ....:......:.... 4

Conclusion ........ ne ee ficasvaeuunees aus an

Appendix ..............4. Pidebaees bane Riek ers la

TABLE OF CASES |

Arrant v. ee ee en 5.

Banter v. US., 193 ©. Cie. GOR... w.05 ce cnceccs oe

_ Chisholm : U. S., decided February 3, 1960, 149 C.

‘- MCS ata done Ghee een cae ed ab ae ces pie

Evans vy. Sadi 265 Fr. 2d 125 .........- eee 5

‘Henry v. U.S., 153 Fed. Supp. 290 ...... kh.

Kaufman v. US., 118 C..Cls. 91. .............5.,. 6

_ Ritter v. Strauss, 261 F. 2d 767°...............-. 6

Simon. v. U.S8., 118 -C. Cls. 182 ........ POPPER 5/ 6

Winsberg v. U.S., 120 C. Cls. 511 ......... chan’ «6.

No.

4

T. Frank Sirs, Petitioner

baal

Vv.

2

THE Unrrep Srares, Respondent -

_ PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF CLAIMS

5 a

‘Petitioner prays that a writ of certiorari issue to

review the judgment of the Umited States Court of

Claims. entered in the above-entitled case on February

14, 1964. | :

- CITATION TO OPINION BELOW

The order of the United States Court of Claims

(R. 26) is printed in Appendix A hereto, infra p. 1a.

2

JURISDICTION

The judgment of the United States Court of Claims

‘was entered on February 14, 1964, (R. 26). The

jurisdiction of this Court is invoked under 28 U. 8. c..

Section 1255 (1). «

QUESTION PRESENTED sis

Whether an Agency of the Federal Government may -

arbitrarily refuse to grant a civil service employee his

rights as decreed under stqtute and Court decision and

when such a refusal results in a delay in the institution

-of a suit thereon successfully plead the defense of

laches when such a defense causes a denial of due

process of law and an arbitrary revocation of a@ prop-

erty right.

STATEMEN 2

Petitioner was employed as 2 Cotton Classer, GS-12,

in the Agricultural Marketing Service of the Depart-

ment of Agriculture, when on November 16, 1956, he

received a notice which stated that the Agency planned

‘to separate, demote or reassign him on the basis of his

having received an unsatisfactory performance rating.

Petitioner appealed his unsatisfactory performance.

rating in the time allotted. Under date of March 21, ©

1957, petitioner was ‘informed that his unsatisfactory

performance rating had been sustained and that he

would be separated from the rolls after the expiration

of thirty days from the date of his receipt of the letter.

Petitioner was subsequently dismissed under date of —

April 24, 1957, and immediately -applied for retire-

ment which was made effective as of.the day following

_the date of hig dismissal. Said letteXadvised petitioner

of his appeal rights in that he could appeal the un-

3

” satisfactory performance rating as well as his proposed .

separation to the United States Civil Berviee Com-

mission.

By letter dated April 8, 1957, petitioner cmnened his.

rating and his dismissal to the United States Civil

Service Commission: The Statutory Board of Review

of the Civil Service Commission, Eighth Region, sus-

tained the issuance of the unsatisfactory performance

rating under date of June 18, 1957. Under date of

August 9, 1957, the Eighth Region affirmed the dis-

missat of petitioner. Petitioner asserted to the Civil

Service Commission that he was entitled to a review

of his dismissal on the merits -pursuant to his rights

-under Section 14, of the Veterans’ Preference Act but

the Commission’ refused_ to-so review the matter and -

restricted its review solely to procedural matters.

Petitioner again appealed the matter to the Commis-

sion which sustained its prior. ruling by decision dated

October 18, 1957. Petitioner again ‘asserted his right ©

to be heard on the merits of his dismissal before the

Commission and called the attention of the Commis-

sion to a degision of the United States Court of Claims

in the case.of Chisholm v. U.S., decided:on February

3, 1960, 149 C. Cls. 8, which sustained the position. of

petitioner that he was entitled to a review on the

merits of his dismissal. The Civil Service Commission

by decisions dated January 5, 1961, and March 13,

1962, refused to review petitioner’s dismissal in the

light of the Chisholm case.. Petitioner filed suit in. the

United States Court of Claims on November 5, 1962,

which Court by Order. dated February 14, 1964, dis-

missed petitioner’s suit (R. 26). Said order was based

upon the determination of the Court that petitioner’s

claim was barred by the doctrine of laches. —

Oo.

4

REASONS FOR GRANTING THE WRIT

Petitioner consistently maintained through the en-:

tire avenue of administrative appeal available to him

that he was entitled to be heard on the merits of his

dismissal pursuant to his rights under ‘the Veterans’

Preference Act of 1944. The United States Civil

‘Service Commission arbitraxily refused to consider -

anything execpt the procedural aspects of the matter

maintaining that petitioner was not entitled to a review

on the merits siuce his performance ‘rating had been

determined to be unsatisfactory and an appeal thereof

had been considered under the Performance Rating

Act procedures. ‘I'his was the policy of the Civil Serv-

ice Commission prior to a final decision in the Chisholm

ease, supra, when the United States Court of Claims

- determined that a veteran dismissed on the basis of an

unsatisfactory performance rating was entitled to an

- appeal on the merits under the Performance Rating

Act as well as an appeal on the merits under the

Veterans’ Preference Act of 1944, as amended: This

ease was pending beforé the’ Courts at the time peti-

tioner’s dismissal occurred and was decided subsequent

to his dismissal, to wit, on February 3, 1960.

. The Civil Service Commission was under an obliga-

tion to hold the. appeal of petitioner in abeyance until

a Court ruling on its policy was made or in the absence

of so doing was obligated to reopen the appeal of peti-

~ tioner when the ruling in the Chisholm case was handed

down. Petitioner with great perseverance pursued

this issue before the Civil Service Commission but to

no avail. Now, when he has filed a suit before the

Courts the doctrine of laches has been applied to dis-

miss his cause of action through no fault of the peti-

tioner. The doctrine of laches becomes a harsh one

&

Pe |

=)

when | a right of legal redress is arbitrarily remoted

from ‘an individual when he has not been responsible

* for ‘the delay. involved. Petitioner’s case falls ‘well-

within the doctrine enunciated by this Court in Arrarit

v. Lane, 249 U.S. 367, wherein it was determined that —

such a deferise was valid only where: the facts reflect

that the party against whom the defense is pleaded did

nothing to assert his claim. Herein the petitioner was

retired as of the date of his dismissal so that money

_ damages have been held to a minimum. Petitioner con-

sisternttly pleaded with the Gvil Service Commission to

apply the law 1s it read both prior to the decision in

the Chisholm case and again after the decision therein

but the Civil Service Commission refused to so act.

Petitione: ‘is now being penalized for the administra-

tive stubborness of an appellate body.

This Gourt’s attention is respectfully directed to the

cases of Bazter v. U.S., 122 C.|Cls. 632, decided in 1952

wherein the plaintiff therein continued to assert his

- rights as best as he knew how. Identically herein we

have a-situation wherein the petitioner has continually

‘pleaded that his rights have been violated but the

Civil Service Commission has turned a deaf ear and ©

eaused a delay for which the petitioner has heen penal-'

ized by having his case dismissed under the doctrine of

laches. Such administrative negiigence cannot be per-

mitted to arbitrarily deny a party his day in Court.

Such action promotes a denial of due process of law:

.and a violation of statutory rights vested in the peti-

tioner.

Again the case of Sonie v. Leedom, 265 F. 2d 125,

supports the position ef petitioner herein. Therein

the doctrine of laches as a defense wis set forth in all

oe

*

Omg

6

of its properties and reflected that such a defense is

valid where there is a showing that the party against

- whom the defense is pleaded did nothing to assert his

rights and that a mere showing of a contemplation to .

_ start a legal action is sufficient to thwart the effective

use of a defense of laches. The cases of Winsberg v. -

U.S., 120 C. Cls. 511; Kaufman v. U.S., 118 C. Cis. 91;

and Simon v. U.S., 113 C. Cls..182 all support the

position of the petitioner herein. As stated in Ritter

v. Strauss, 261 F. 2d 767, when a government employee

has been discharged in violation of his legal rights, he

should not be held to have forfeited these rights by

. lack of diligence unless there are strong equities which

override these rights and the circumstances of the delay _

must be examined. Here the delay in filing suit was

caused by an administrative body which refused to

apply the law and this delay has caused petitioner to

pursue his remedy here before this Court since laches

has caused the dismissal of his case in the United States °

Court of Claims. \

Again the case of Henry v. U.S., 153 Fed. Supp. 290,

supports the petitioner against the invocation of the

defense of laches. Therein the rule was set forth that

a mere delay in asserting rights is not sufficient to

establish a defense of.laches. . There must be a showing

that an injury has occurred by reason of the delay and .

irreparable damage been done. Herein, the petitioner

has minimized the monetary damage to the Agency

involved because he retired effective the same ‘date as

his dismissal. The payment of an annuity over this

‘period of time has decreased any damage to the :

Agency’s budget; petitioner now has sought only to

elear his name and obtain any additional benefits for

his annual annuity which could be increased by a

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e

7. | 7

successful verdict herein. To allow the Agency, the

Civil Service Commission and: the Courts to dismiss

petitioner’s, claim by permitting the application of the

doctrine of laches is a denial of due process of law and

has deprived the petitioner of a property right on the

basig,of an administrative fiat not found in the law.

The defense of laches is an. equitable remedy and has

- had its foundation and life nurtured by the underlying

principle of justice. It is a basic maxim of Equity

that he who seeks equity must so do with clean hands.

The hands of Respondent are not clean when an instru-

ment thereof has arbitrarily refused to apply the law

to an administrative appeal and then when legal re-

dress is sought thereon to plead an equitable defense.

Such a defense is not available when the hands of

Respondent are not clean. Such a defense is not avail-

able when there is a denial of due process of law. Such

a defense is not available when an jAinvocation thereof

would thwart the intent of Congress.

CONCLUSION ’

For the foregoing reasons, this petition for a writ of

certiorari should be granted. —

Respectfully submitted,

Joun P. Wrrst.

Counsel for Petitioner

May 13, 1964