Memorandum in Opposition — Payson v. United States

Ou the Supreme Gourt of the Bnited States

OcToBER TERM, 1965 7

No. 1005

STEPHEN H. PAYSON, PETITIONER

vz

Unttep StTaTEs OF AMERICA

ON PETITION FOR A WRIT ‘OF CERTIORARI TO THE UNITED

STATES COURT OF CLAIMS

MEMORANDUM FOR THE UNITED STATES IN OPPOSITION

On September 24, 1957, a Navy Selection Board

was convened to review the records of certain offi-

cers in the Civil Engineer Corps of the Navy who

were eligible for promotion to the grade of captain.

The Board found that petitioner and two others were

not qualified for continued service in the Navy (they

had not performed satisfactorily in their present

grade and would not satisfactorily perform the duties

of a higher grade). The Chief of Naval Operations

concurred in the report, which was thereafter ap-

proved by the Secretary of the Navy, the Secretary

of Defense, and, finally, the President. Consequently,

petitioner, who had less than twenty years of service,

(1)

210-484 66

2

was honorably discharged from the N avy on July 18,

1958. He then brought suit for a declaratory judg-

ment in the district court alleging that the -Board’s

decision was a nullity because (1) it was arbitrary

and capricious and without basis in his military

record and (2) petitioner had completed twenty years

of commissioned service and was therefore not, sub-

ject to removal by a selection board. On cross-mo-

tions for summary judgment, the district court

entered judgment for the government., The court

of appeals affirmed (Payson v. Franke, 282 F. 2d 851 —

(C.A.D.C.)), holding, inter alia, that petitioner had

not achieved twenty years’ service, and that his sepa-

ration from the service had been properly accom-

plished. While noting that it was not its function

“to reassess the appellant’s performance record,”’

the court of appeals stated that ‘“‘[v]Jarious references

thereir? may well have appeared to az expert body

[the Selection Board] to suggest an adequate basis

for the conclusion which was reached’”’ (282 F..2d

at 854). A petition for a writ of certiorari was

denied on February 20, 1961 (365 US. 815).’

Petitioner then applied to the Board for Correction

of Naval Records to have his record changed to show

- that he had been retained on active duty until comple-

tion of twenty years’ duty and had retired voluntarily

under 10 U.S.C. 6325. His application was denied on

March 27, 1964. On June 30, 1964, he filed suit in the

Court of Claims to recover active duty pay from July 1,

1 Petitioner had filed his petition along with James B.

Robinson, another discharged naval officer.

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~1958, to the date of judgment (less severance pay

which he had received). Petitioner alleged that his

discharge from the Navy was invalid, and thgt the

action of the Board for Correction of Navy Records

was arbitrary and capricious. On the government’s

motion for summary judgment, the Court of Claims

dismissed the action except that portion of the claim

for thexperiod between July 1, 1958, and the date

of petitioner’s.discharge (Pet. App. 7). Petitioner’s

motion for rehearing was denied « on November 12,

1965 (Pet. App. 8).

The Court of Claims properly rejected petitioner’ s

claim for active duty pay for the period subsequent

to his separation from the sérvice. His right to such

relief is wholly dependent on whether he was legally

discharged. That question was decided against him

in the previous district court suit, and petitioner is

barred from relitigating it in the Court of Claims.

See McGinty v. United States, 151 Ct. Cl. 399, 403,

certiorari denied, 368 U.S. 867. Cf. Commissioner v.

Sunnen, 333 U.S. 591, 597-598. The bar was not

lifted simply by reason of the fact that petitioner—

after the action of the Selection Board which was the

subject of judicial review—submitted his case to the

Correction Board for further administrative consid-

eration. Since the Correction Board’s adverse deci-

sion on petitioner’s application added nothing to the

prior adverse final judgment in the district court suit,

it could not serve as a basis for re-trying the merits

of the cause of action “stemming from the . same

events or transactions.’”’ See Friedman v. United

SS ea aa a eee

4

States, 310 F, 2d: 381, 400-401 (C. Cls.), certiorari de-

nied sub nom. Lipp v. United States, 373 U.S. 932.

In these circumstances, there is no sound reason for

failing to apply the normal principles of res judicata

and‘ collateral estoppel. Ibid.

Petitioner points out (Pet. 3) that the Correction

Board acted favorably on the application of former

Commander Robinson who had also been involun-

tarily. separated from the Navy. Petitioner seems to

suggest, but does not argue, that this factor estab-

lishes an independent ground for reviewing the Cor-

rection Board’s decision to determine whether peti-

tioner, whose record was similar to Robinson’s, was

arbitrarily denied relief. The short answer is that

the decision in Robinson’s case does not affect peti-

tioner’s rights. There are always differences in indi-

vidual records which the Correction Board may take

into account in determining if military action, al-

though legally proper, was unjust under particular

circumstances. In petitioner’s case, the Board con-

cluded that petitioner failed to demonstrate an in-

justice warranting corrective action. That was a

matter committed solely to it.’

It is therefore respectfully submitted that the pe-

— tition for certiorari should be denied.

THURGOOD MARSHALL, \

Solicitor General.

Marcu 1966.

The courts have no comparable discretionary equity power

in reviewing military decisions or Correction Board decisions.

Judicial review is limited to the question whether the military

agency followed the pertinent procedural and substantive rules.

See Creary v. Weeks, 259 U.S. 336.

U.S. GOVERNMENT PRINTING OFFICE:1966