# Petition for Writ of Certiorari — Friedman v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385603_0199%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1967 - **Citation:** 386 U.S. 913 ## Text 2 INDEX : | Page ' Opinions Below “......... | : ool - J urisdiction oe % sie Questions Presented i , Constitutional Provision, Statutes me Regulation | Involved ........ seen oe 3 NINN sii catgcae nner Reasons for Granting Writ“... | are 6-12 — “Conclusion : ie Seicunesen 12: ; ‘hie A—Opinions Below z : well Appendix B—Constitutional | Piveieida: Statutes sas Regulation Involved. ..... m 3-6 oe AUTHORITIES | Cases: fo ‘ Anderson y. Martin, 375 U.S. 399 (1964) sesesiaishicie a Cafeteria Workers v. McElroy, 367 US. 886 (1961) 7 . McKinney v. Missouri-Kansas-T exas R. Co., 357 if U.S. 265 (1958) 9 Service v. Dulles, 354 U.S. 363 (1957) _ 3g 10, 11 Watson v. United States, 355 US: 14 (1957), Same case below 137 C. Cls. 557 (1956). 2, 10, 11 A. rs ne ie ee Page . United States Constitution: ae eee Fifth Amendment secenen APP: BY 2, 6-7 - | _ Statutes: oa. nis a vay f- Veterans’ Preference Act of 1944, as amended, % Sections 2 and 14, 58 Stat. 387; 5 U.S.C. Sections 851 and 863 (1964) * | Lop nanrcimeea App, 8, 4)'2, 5, 8-9 Tucker Act (Claims) 28 U:S.C. See. 1491 (1964) . PN BE now (App. 4) 2, 10-11 "Federal Aviation Act of 1958, as amended, Sec- - tions 302(f), 303(d), and 313(a), 12: Stat. \ 731; 49 U.S.C. Sections 1343(d), 1344 (ad)? “and 1354(a) (1964) ...... (App. 4-5), 11. « , gu i oe Paragraph 201, Chapter 2, FAA ome Place- ment Handbook (PT P 3330.9) dated No- _vember 3, 1964 .. awww (App. 5-6), 2, 10-11 tu e . . « Mein hd wn nt a . At ste SS on ad etn a ammnana ma S . oe oes fate oes IN THE Supreme Court of the Cnited States October Term, 1966 . , No. | ‘ 4 eae . ee et Resins K. Friedman, Petitioner. 2 | | ve. 3 = UNITED STATES OF AMERICA —— 9 PETITION FOR A WRIT OF CERTIORARI " "a TO THE _ UNITED STATES COURT OF CLAIMS Your petitioner, Eugene K. eiidiges prays that a Writ of Certiorari issue to review the judgment of the United States Court of Claims i in the above-entitled basen dated May 2, 1966, _ October 14, —— bale OPINIONS BELOW ' --.. The opinions of the court below decided May 2, 1966 and October 14, 1966. (Appendix A. infra, 1-2) -have not yet been — . JURISDICTION a .. The jurisdiction of —_ Court is invoked under 28 US.C. dee 1255(1). : a. - QUESTIONS PRESENTED 1. The Government and the Court below have ran the position that a temporary employee assumes the : yisk of arbitrary, capricious: and bad faith discharge. Does this view -violate the Due Frocsgs eens. of the Fifth Amendment? 2. Is it a ehidetion of the Veena! Pechimenen’ Act - _ of 1944, 58 §tat. 387, to. deliberately and avowedly - refuse to convert a veteran to career status solely be- cause this would give him an “unfair.” advantage ¢ over non-veterans 7 : 3. Does ah omission to tek: in viidties of an exec- utive personnel regulation of the Federal Aviation Agency, create a right of action in the employee, and. __ is the contra opinion below in conflict with 28 U.S.C. - » See. 1491 and this Court’s rulings in Service v. Dulles, '” 354 U.S. 363 (1957), and Watson v. United: bc ter 355 US. 14 _— ? ° ¢ : y : : ¥ , CONSTITUTIONAL PROVISION, STATUTES, am | REGULATION INV OLVED The pertinent constitutional provision, statutes, and, regulation involved in this case are set forth in AD ante B. » infra, 8 3-6. ; 7 | . STATEMENT : | 1. On October 2, 1958, plaintift was rata by the RCA Service Company as a civil engineer and as- | signed to work in. this capacity for the Federal Avia- tion Agency under a service a8 between RCA and FAA, Plaintiff was outstandingly proficient at sur- .veying and leasing sites for air navigation facilities, ~ _ and was s00n.made a subordinate supervisor in these activities. In 1963, the FAA decided to provide all ofits . own engineers, and plaintiff was given notice by RCA that as of c.o.b October 4,. .1963, his services would 1 no longer he needed. On October 3, "1963, ie Chief of BAA’s om Estate & Utilities Section contacted plaintiff and ad- vised him that, in view of his familiarity with FAA ‘Teasing procedures, the FAA wanted to hire him. es * Tt was agreed between the parties that plaintiff would accept employment with the FAA on'a tempor- _. ary basis, and that if. he performed his responsibilities - _suecessfully, he would be given career employment, provided his name was available on a. Civil Service “register. And it was further agreed that the FAA . "would do everything possible to bring about. this result. ¥ is "This agreement and plaintiff ’s successful job perform- % ance were later confirmed in a To Whom It M ay Con- ; cern letter ‘written by said Section Chief. (PL Ex. H;.. R. 24, 52-53) m 4, On October 7, 1963, the FAA gave . plaintifi a. - temporary appoinment, not to exceed one ) yeas, asa Realty § Specialist, GS-11. | By On J. anuary 5, 1964, plaintift was told that he — was performing his duties well, and was given a TAP- ER appointment (temporary appointment pending es- ' tablisment of a register.) This was a more advan- _ tageous type of temporary appointment meant to re- ward plaintiff for his efficient work until such time as ~ he could qualify for career appointment. 6. In April of 1964, plaintiff was offered reem- ployment by the RCA Service Company at a raise in _ pay, but refused because he had been told that ‘his con- version to career employment was assured as soon as _~ he could at on an appropriate Civil Service register. 7. Also in April-ef 1964, plaintiff scored above 1200 on the Princeton Graduate Record Examination, | which permanently qualified him for the Federal Serv- — _. jee Entrance Examination register. In May of 1964, - plaintiff passed the FSEE directly, which placed his name on the FSEE register. Thereafter, plaintiff no- tified his superiors and the FAA personnel department. of. his success in these examinations, either of which . é OO 7 : . qualified him for conversion to. career status in ac: _ - eordance with the original agreement: between the parties. 8: After plaintiff had made many aol for con- version, this action was finally started in May of 1965. © Plaintiff’s Branch Chief ordered his conversion,. and plaintiff’s name was certified to the FAA by the Civil Service Commission. At this point, plaintiff’s Division Chief countermandeéd his Branch Chief’s order and re- “fused to convert plaintiff stating - “instead that he in- tended to discharge him. 9. When plaintiff met with his Sivision Chief: on J une 18, 1965, to ask for recorgideration he was told: ‘You are a veteran and if, you ' were to be given permanent status as a GS-11, you would be able to bump a non-veteran with 20 years’ service, such as Anne Hopkins. I don’t think that would be fair.’’ (Pl. Ex. 0; R. 24, 60-61) - - 10. A month later, on July 19, 1965, plaintiff re. ceived a letter from his. Division Chief terminating ~ his employment c.o. b. August 31, 1965. The official _ personnel records give ‘‘lack: of: funds’’ as the reason for plaintiff’ 8 discharge. ‘LL. On October: 15, 1965, plaintiff filed an action in the United States Court of Claims for loss of salary alleging arbitrary and capricious discharge in viola- - tion of: (1) the Veterans’ Preference Act of 1944, (2) ® ar ee an employment coritr ‘act, and (3) personnel regqla-. tions . calling for conversion under plaintiff’s circum- stances. (R. 1-3) - j 12.. On May 2, 1966, the Court of Claims granted -defendant’s motion for summary judgment conclud- ing that there was no statutory or regulatory basis under which plaintiff could recover. (R. ee . 18. On July 29, 1966, plaintiff filed a petition for reconsideration and motion for summary judgment. © (R. 24-61) which was denied without explanation on October 14, 1966. (R. 70-71) REASONS. FOR GRANTING WRIT . Petitioner advances three main arguments for the -- .granting of this writ, and requests three corresponding holdings in the belief that each requested holding is necessary to the preservation of a class right. But if. _ he had to choose one holding only, petitioner would choose to have the Court say that any arbitrary inter- ference by the government with a person’s right to em- ployment is a violation of the Due Process Clause of | the Fifth Amendment. : . a oe The right to one’s job is a property right within the meaning of the Fifth Amendmeni; the government cannot, therefore, abridge this right without due | process of law. . J: The importance of affirming this concept lies “K the fact that, almost every employed person is vulner- able to government regulations which affect his capa- city to be employed. “Without such a concept many em- ployees, such as those who are temporary, probation- ary, or need government approval to beemployable, will | be without a remedy for even the most malicious and’. arbitrary rulings of government officials. Plaintiff’s ease is a good example — since le was not in a class specifically protected by statute or regulation, : the Court of Claims denied him recourse for a dismissal that was unquestionably arbitrary and malicious. Such aa result i is repugnant to the basic principles of our so- ~ ciety. nae . In Cafeteria Workers v. McElroy, 367 U.S. 886 (1961), this Court looked with favor on the concept of employment as a property right protected by the Due Process Clause of the Fifth Amendment. That case fell:short of a due process ruling for lack of evidence ‘that the Government’s action was arbitrary or discrim- inatory. In the instant « case there is no such disability. mi It is a violation of the Veterans’ Preference Act of 1944, 58 Stat. 387, to deliberately circumvent its purpose by refusing to convert a veteran to career status. lt would seem self-evident that there can ~ no greater violation of the Veterans’. Preference Act than to refuse to employ a man because he is a veteran. Yet the Court of Claims, by taking a narrow technical view of who is entitled to protection under the Act, has de- cided that such behavior creates no cause of action in a temporary employee. It is true, of course, that Sec- tion 14 of the Act [5 U.S.C. Sec. 863 -(1964)] applies oe _ procedural safeguards against discharge only to one who is a ‘‘permanent or indefinite preference eligible,” but the Act also states that: “In certification for appointment, in appointment, um, in reinstatement, in reemployment, and in reten*. tion in vivilian positions in 911 establishments, agencies, bureaus, administrations, projects and departments of the Government, permanent or temporary, and in either (a) the classified civil service; (b) the unclassified civil service; (¢) any temporary or emergency establishment * *.* pref- erence shall be given to * * * *(4) those ex-service- . men * ** who have served on active duty in any branch of the armed forces of the United States, during any war * * * and have been separated therefrom under honorable conditions.”’ Sec. 2, 58 Stat. 387 (1944); 5 U.S.C. Sec. 851 (1964). a In view of this quotation, it must be conceded that to discriminate against a veteran, temporary or per- manent in Government employment, violates not only the letter of the law, but its whole spirit and intent as well. A decision holding otherwise is manifestly erron- eous. As Mr. Justice Frankfurter said, ‘“He [a veter- an] is not to be disadvantaged by serving his country.’” Also, as Mr. Justice Clark said concerning the cireum- vention of statutes, ’’And that which cannot'be done by express statutory prohibition cannot be done by indi- rection.’” a The ruling on this point will affect 1 many y veterans, because it is only human nature for non-veterans to _ resent and resist the application of the Veterans’ Pref- . - erence Act. And if this discriminatory practice cannot berrefuted, then a large and ever increasing number of | veterans will never realize the preference a grateful people sought to give them. -~ 1McKinney uv. Missouri-Kansas-T exas R. Co., 357 US. at 270. 2 Anderson v. Martin, 375 U.S. at 404. ‘ —10— 1 ‘When an act is required by ‘executive regulation, an ' emission to act by the employing agency creates a right of action in the employee, and the opposite holding by the Court below is in conflict wth 28 U.S.C. Sec. 1491 and the Supreme Court's rulings in - Service v. Dulles, 354 U.S. 363: (1957), and Watson v. United States, 355 U.S. 14 (1957). sy “In ruling that there is no regulatory basis for a — ris recovery by the plaintiff, the Court of Claims seems ~ to have ignored 28 U.S.C.’ See. 1491, which provides that the Court of Claims shall have jurisdiction to vender judgment on any claim against the. United States founded on any regulation of an executive de- partment. Plaintiff has such a claim, and a corr espond- ing right to relief, as evidenced by the rnewang. FAA personnel regulation. 3 “RETENTION OF EMPLOYEES SERVIN G UNDER.TEMPORARY APPOIN TMENT. The work performance of temporary employees,: in- -. eluding those with handicaps, shall be carefully re- viewed to determine their fitness for continued . employment. When appropriate, every effort shall be made to convert a temporary to a permanent appointment if a suitable vacancy exists, provid- ing the employee.can be reached on an appropriate _ civil service register prior to the expiration of the temporary appointment.”’ uae A 201, Chapter Pint a ae | i 2, “FAA Internal Decaae Handbook. (PT 1 P 3330.9), dated November 3 (P1. Ex. D; R. 24, rae wigeien aber 3, 1964. | : Since plaintitt was in all respects within that class -of employees to be converted, the Court of Claims’ rul- ing is equivalent to holding that an omission to act,. even in the face of a regulatory duty to do so, creates ' no right of action in the employee. Plaintiff believes _ that this is not only in direct conflict with 28 U.S.C. Sec. 1491, but also with the Supreme Court’s rulings in Service v. Dulles, 354 U.S. 363 (1957), and Watson. - United States, 355 U.S. 14 (1957 ). : In the Service case, this Court ruled that once having chosen a. certain ‘set of regulations, petitioner’ S super- visors must abide by them. In the Watson case, this Court held that’ failure to supply plaintiff with a ‘‘statement of reasons, ”” as re- _ quired by.regulation, made her — procedurally defective. If the present holding of the Court of. Claima is allowed to stand, then the rulings in the Service and Watson cases will be narrowed to exclude those employ- ees who are injured by, the wrongful inaction of their employing agency. ‘This would not only be unjust, but would present very real problems in drawing the line between inactions and defective actions. This is ap- eee SThis re ai orized tained tion Act of 1958, as This regulation 8021) 308Ca) and nd 313 (a) 72 Stat. oe 49 USC. Secs. 1343(4), 1344(d), and i354(a) (1964). fe . th ailitie. parent from the circumstance that most defective per- sonnel actions: are defective because one or more re-. quired steps were omitted. The importance of turning back. this attack on tha’ rights of Government employees is very great indeed, because if the ar gument supporting the attack is adopt- ed, almost ever y regulatory infraction could be con- sidered an omission to act. Consequently, this ruling of /the Court of Claims could topple the whole structure of executive regulations. Such a possibility =“ for cor- | rective action. Oo - | *. _ CONCLUSION | The premises considered, it is respectfully request- ed that this Petition for a Writ of Certiorari be granted. *» EUGENE K. FRIEDMAN, pro se _ 241 South Oakhurst Drive Beverly. Hills, California APPENDIX A IN THE UNITED STATES COURT OF CLAIMS . No. 361-65 - _ EUGENE K: FRIEDMAN | rele sade: | et yr Ns nee THE UNITED STATES i “Before COWEN, Chief Judge, LARAMORE, DURFEE, DAVIS and COLLINS, Judges. This case comes before the court on defendant’s motion for summary judgment. ‘Upon consideration thezeof, together with the opposition thereto, and with- . out oral argument, on the authority of Bennett v. Udall, 301 F. 2d 532 (D. ©. Cir. 1962), it is concluded that there is no statutory or regulatory basis for plain- tiff’s claim, and _ IT IS ORDERED that defendant’ s motion. for . . summary judgment be and the same is granted and : rain ’s petition is dismissed. BY THE COURT | +. Se or ‘WILSON COWEN, * Chief Judge ered | ~2— IN THE UNITED STATES COURT or CLAIMS * * * * * | ) a = -o Lewes -) THE ee © &© & & ) UNITED..... 361- 65 EUGEN EK K. FRIEDMAN -) STATES Before COWEN, Chief Judge, LARAMORE, ‘DURFEE, DAVIS and COLLINS, Judges, * * *. ° | ORDER - These cases come before the court on motions for ‘rehearing, new trial, reconsideration, to strike opinion - and dismiss proceedings, to vacate judgment and for entry of different judgment, for ameridment of judg- ment, for remand to the commissioner for further testi- - . mony and findings:and for summary judgment, under Rules 68 and 69 of the Rules of this court a: on con- sideration thereof, — IT Is ORDERED this 14 day of October, ‘1966, that said motions be and the same are denied as follows: * & se * * & . & & & : 361-65 . Eugene K. Friedman. Plaintiff’s petition for ‘reconsideration and motion for sugimary judg- — ment. a { |. BY THE COURT | | /8/ iS WILSON COWEN - . Chief Judge — APPENDIX B CONSTITUTIONAL PROVISION, STATUTES ire AND REGULATION 1. Consiatinal Provision The United States erree Fifth Amendment, provides in perfinent part:. ‘‘No person shall be * * * deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use without just compensation.’’ 2. Shimetes The Veterans’ Preference Act of June 21, 194, as amended, See. 2, 58-Stat. 387 ; 5 USC. See. 851 (1964), provides in pertinent part: ‘*In certification for appointment, in appointment, in reinstatement, in re-employment, and in reten-— tion in civilian positions in all establishments, agencies, bureaus, and administrations, projects: and departments ofthe Government, permanent or temporary, and in either (a): the classified civil: service; (b) the unclassified civil service; (c) any ’ temporary-or emer gency establishment * * pref- | erence shall be given to * * * (4) those ex-service- men * * *. who have served on active duty in any — branch of the armed .forces of the United States, during any war * * * and have been separated : therefrom under honorable conditions. ~ Section 14 of said Veterans’ Preference Act, 5 U.S.C: Sec. 863 (1964), provides in pertinent part: - “No permanent or indefinite preference eligible, who has completed a probationary. or trial period employed in the ‘civil service; or in any establish- . ment, agency; bureau, adininistration, project, or department, hereinbefore referred to shall be dis- charged, suspended for more than thirty days, fur- loughed without pay, reduced in rank or compen- . sation, or debarred from future appointment, ex- cept for such cause as will promote the efficiency — of. the service * * *.” The Tucker Act (Claims) 28 U. S.C. tun. 1491, pro- | vides i in pertinent part: “The Court of Claims shall have juxgdiction to render judgment upon any claim against the _ United States founded either upon the Constitu- tion, or any Act of Congress, or any regulation of an executive department, * * *.”’ The Poder Aviation ‘Act, of Atiouait 23, 1958, .as amended, Sec. 302 (f),. 72 Stat. 731; 49 U.S.C. See. 1343(d), provides in pertinent part: ° ‘Phe Administrator is authorized, ies to the civil-service and classification law s, to select, em- ploy, appoint, and fix the compensation of such of- _ : ficers, employees, attorneys, and agents as shall be necessary to carry out the provisions of this Act, and to define their authority and duties, * & al 9? a : Section 303 (a) of said Sedivel Aviation Act, 49 U. S. C. —. See, 1344 (d) (1964), provides in pertinent part: “The Administrator may, ‘subject to such regula- tions, supervision, and review as he may prescribe, from time to time make such provision as he shall deem appropriate authorizing the performance by any officer, em ge or administrative unit under - his jurisdictio of any function under this Act, * % #9 : Section 313(a) of said Federal Aviation Act, 49 U. S. ©. Sec. 1354(a) (1964), provides : ‘*The Administrator is enpowered to tin such acts; to conduct such investigation, to issue and amend such orders, and to make and amend such general or special rules, regulations, and proced- ures, pursuant to and consistent with the provisions of this Act, as he shall deem necessary to carry out the provisions of, and to exercise and perform his _ powers and duties under, this Act.’’ 3. Regulation ‘ . Paragraph 201, Chapter 2 of the FAA Internal Place- ment Handbook, (PT 3330. 2) dated November 3, 1964, provides : “RETENTION OF E M PLOYEES SERVI N G UNDER TEMPORARY APPOINTMENT. The work performance of temporary employees, in-: cluding those. with handicaps, shall be carefully reviewed to determine their fitness for continued —6— snilonninn When appr opriate,. every effort shall be made to convert a temporary to a permanent appointment if a suitable vacancy exists, provid- ing the employee can be reached on an appropriate civil service register — to the expir ation of the . temporary appointment.’ G * / f --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385603_0199%3A1. Public record. Not legal advice.