Petition for Writ of Certiorari — Henderson v. United States

FEB 10 1967

SUPREME COURT. tiie OO 0 ‘

JOHN F. DAYS

H

ayes

in The Supreme Court of The Unie Sales

“OCTOBER TERM, 1966

‘RICHARD S. HENDERSON, _

3 Ae «4,

- \.# Petitioner,

_VSs.

clei UNITED STATES OF AMERICA,

Responde oe

PETITION FOR A WRIT OF CERTIORARI 3

TO THE UNITED ) STATES COURT OF CLAIMS

». RICHARD S. HENDERSON

206 Lawyers Professional Bldg.

1140 Union Street.

San Diego, California 92101

Pro se

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SUBJECT INDEX |

CHATIOME: 5.5... Rearend

JURISDICTION. ..... pee e9 Wee

QUESTIONS.PRESENTED ...... heey

CONSTITUTIONAL PROVISIONS AND

REGULATIONS INVOLVED ...........

STATEMENT OF THE FACTS.......,.

REASONS FOR GRANTING THE WRIT... _

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TABLE OF AUTHORITIES CITED

Page

‘ CASES *

Amos Treat & Co. Vv. ‘Securities iia Ex- ! a

change Commission,- 306 F.2d 260... a aed ms

Clackum *. United States, 296 F. 2d 226. . : : aes 7

Estes v. ‘Texas, 981 U.S. 532 te ee

‘gees v. McElroy, 360 U.S. 474. rae aes"

: Murchison, In Re, 349 a Raa taernetd mies 9

Parker v. “Gladden, No. 81, October term,

| EOOGs sos 6 ere ee ee ee ee eee 9

dial v. eaeignh, 242 ACA 875, : |

51 Cal. Rptr. 873 (1966). ....,...- 8

Powell v. Alabama, 287 U.S, 45... ... ~ are

_Turner v. Louisiana, 379 U.S. 466. . in es aa

Vitarelli v. Seaton, 359 U.S, 535........ 7, 8

r | Witlner ‘v. Committee on Character and

‘Zenith International Film Corp. v. City

Fitness, 373 U.S. 96 ...... eee | 7

of Chicago, 291 F.2d 785......... 8"

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Nira thai iin OO accplcalticttias pe imate

TABLE OF AUTHORITIES CITED (Continued)

“POUBC. 810. bo ee isk

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CONSTITUTIONS

as of the United States

Fifth Amendment . Pete ee eee

- Sixth Amendment..... Pe rae

REGULATIONS

Air Force Regulation 11-1 Hier» 5

Air Force Regulation 53-15 . pierce

Page

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SUPREME COURT OF THE UNITED STATES |

‘OCTOBER TERM 1966 |

“No. __ a. y J]

RICHARD s. HENDERSON,

a Petitioner,

bs Vs.

UNITED STATES OF AMERICA,

ae Respondeit,

PETITION FOR A WRIT OF CERTIORARI

a THE UNITED STATES COURT OF CLAIMS

Petitioner prays that.a Writ of Certiorari issue to.

review the judgment of the United States Court of Claims

entered.on May 13, 1966 in which a motion to vacate

judgment and enter a different judgment was denied on .

October 14, 1966 in the case of Richard S. Henderson, c

plaintiff, v. The United States of America, defendant, |

cause number ‘171-61. soiree

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CITATIONS

_ The opinion of the Court of Claims has not yet been

reported. It will be reported in the Federal Reporter.

That decision, because of its length, has not been print-

éd-in an appendix to this petition. .However, a certified ~ -

copy thereof is filed with the clerk of the Supreme Court.

JURISDICTION .

The. jurisdiction of the Supreme Court is invoked |

_ pursuant to 28 U.S.C. § 1255.

QUESTIONS. PRESENTED

1. Do the protections of the Bill of Rights which

relate to due process”of law, confrontation of witnesses,

the right to counsel, the right to cross-examine and the .

right to a duly constituted. tribunal apply in military ad-

ministrative proceedings? .

2. Does the presence of a non-voting recorder,

during the executive or closed séssion deliberations of

a military administrative board, violate the requirement -

of a full and fair hearing, or the rights of cross-examina-

tion or confrontation, when that ‘same recorder had act- ©

ed as a prosecutor against petitioner before that board?

- 3. Does the lack of a quorum, as defined in the |

appropriate military regulations, deprive a military

_ administrative tribunal of jurisdiction and therefore

render the proceedings void?

?

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CONSTITUTIONAL PROVISIONS AND

REGULATIONS INVOLVED

The constitutional provisions involved are Amend-

‘ments Five and Six. The administrative regulations in-

volved are primarily Air Force Regulation 53-15 dated: ~

May 15,.1956 and Air Force Regulation 11-1., The |

pertinent parts of those regulations ena in “the opin-

-ion of the Court of (xine

STATEMENT OF THE FACTS

Petitioner, an officer in the Air National Guard,

was called to activé duty for training for a period’of one

year or more for the purpose of ONORTEOENE jet pilot

training in grade. *

He sania to Graham Air-Base, Florida, on

March 20, 1955.

Petitioner failed to obtain a satisfactory rating on

a progress check ride and was therefore notified to ap-

pear before a faculty board whose purpose was to deter-

mine whether or not petitioner should be eliminated

from flying training because of flying deficiency.

Petitioner appeared before a faculty board at

Graham Air Base, Florida. That board recommended

that petitioner be eliminated from pilot training but

‘that he be considered for further air crew ‘training.

Petitioner, after various administrative require-

ments were satisfied, i.e., resigning his commission

in the District of Columbia Air National Guard and ob-

taining a commission in the Virginia Air National Guard

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PIA NEWER IER 5 Uf tee

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again entered upon active duty for training for 4 period

of one year or more in September, 1955 for the purpose

of obtaining the aeronautical rating of aircrait observer

at Ellington Air Foree Base, Texas.

; ‘ During the course of his aircraft observer training,

‘petitioner was found to be deficient in certain academics

and was required to repeat the subject matter concerned.

He was therefore "washed back" to a subsequent class.

When the class to which petitioner was "washed

back" repeated certain air work that petitioner had satis-

factorily completed in his previous class, after re-test-

ing, petitioner was now found to be unsatisfactory in the

same work; but he was satisfactory in academics. |

Petitioner was. then ordered to appear before a

. faculty board to determine whether or not he should be

eliminated from observer training necense of flying de-

ficiency.

That faculty board, which shall be called henceforth

_the Ellington Board, was found as a-fact by the Trial.

- Commissioner in the Court of Claims to have been com-

posed of less than one-half of those appointed to that

board. Therefore, by the terms of the appropriate regu-

aeons, AFR 11-1, it lacked a quorum.

The recorder, a non-voting member of the board

who was junior in rank to petitioner, caused various docu-

ments to be introduced into evidence against the petition-

er and acted, in general, in the nature ofa i ceca

aocdcines St

That recorder, as found as a fact by the Trial

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‘Commissioner, remained with the voting members of the

board .during its executive session while the board de-

liberated petitioner's fate. Petitioner was excluded

from the executive session.

The evidence presented against petitioner at the

Ellington Board was. constituted solely of various writ-

‘ ten reports, which were hearsay, and the oral testimony

of one Captain Konieczka.

Captain Konieczka testified in effect, that o had .

never flown with petitioner; that the petitioner had too

many absenteeisms; that in flying, the stress is for ac-

curacy and that'petitioner's accuracy was acceptable;

but in getting accuracy petitioner did not follow the proper

procedures; and further that petitioner had euificient

ability to do the necessary work.

-The Ellington Board recommended that petitioner

be eliminated from observer training.

The review procedure required by the appropriate

’ Air Force regulation was.never complied with prior to

final action and petitioner was "washed out" from ob-, .

server training; and, as a matter of course, relieved

from active duty. ta training.

Petitioner then petitioned the Air Force Board for

the Correction of Military Records to correct his record

with regard to both the Graham and Ellington oe

Boards. :

Petitioner complained, among other things, that

the failure of either board to have 4 quorum, the pres-

_ ence of the non-voting recorder during executive session,

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the failure to allow confrontation and cross-exam ination

of witnesses, the failure to provide effective appellate

review prior to final action; and, the basing of the board's

decision solely upon hearsay: evidence offended not only

the various regulations concerned, but due process of

law as understood by the United States Constitution.

The Air Force Board for the Correction of Mili-

tary Records summarily rejected each of petitioner' Ss

contentions. It ruled that the faculty boards concerned

were conducted in:

"Substantial compliance with the applicable

regulations and there were no errors of

procedure so prejudicial as to justify void-

me aia proceedings. ”

Petitioner then brought suit in the Court of Claims.

All of petitioner's-contentions were rejected in that .

court except that it was conceded that the Graham Board

did not meet the quorum requirements of the applicable

regulation.

Because of the lack of a quorum, the Graham pro-

_ ceedings were found to be invalid because the board was

_. without jurisdiction; and, its proceedings were therefore

void ab initio. Petitioner therefore was granted rélief

' in the Court of Claims as to the- Graham proceedings.

However, the decision in the Court of Claims side-

stepped the effect of its Finding of Fact that the soaps

The same regulation applied to both boards --»

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AFR 11-1. Logically if lack of a quorum invalidated the

Graham Board, lack of a quorum invalidates the Ellington

Board: —

SMPTE mee

The Ellington Board's proceedings were upheld on.

the grounds that petitioner's claims of error, even if

true, were of.such a technical nature that the errors

should be disregarded since prttionsr failed to show

_ substantial prejudice.

:

SENG ME AENE

TRL LITE LOE TY PIE ME IMIS

REASONS FOR haces spitiniaaiies THE WRIT

1. As yet, there is no duchies of this Court that

clearly states that the fundamental rights of confronta- . —*.

_ tion, cross-examination, a duly constituted tribunal t

and all other procedural guarantees of the Constitution

apply to military administrative tribunals. te a

cog oR

—“fhis court has held that these fundamental consti-

tutional rights are the essentials of due process, see

Powell v. Alabama, 287 U.S. 45, and that such rights

apply to courts martial, see Clackum v. United States,

296-F. 2d 226.

In Greene v. McElroy, 360 U.S. 474; Vitarelliv. |

“Seaton, 359 U.S. 535; and Willner v. Committee on |

Character and Fitness, 373 U.S. 96, this Court applied ~~

Fifth Amendment concepts of due process and Sixth -

Amendment concepts as to cross-examination and con-

frontation of witnesses to civilian administrative pro-

ceedings. ;

2. This court should grant certiorari in this mat-- |

_ ter to show that the ruling in Vitarelli v. Seaton, 359

U.S. 535, applies as fully to military administrative a

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proceedings as it does to. civilian administrative pro-

ceedings.. In Vitarelli, this court held that "scrupulous"

observance of procedural safeguards rather than "sub-

stantial'' compliance with procedural safeguards is re-

quired in civilian administrative procepdings. .

3. The Court of eee: held that petitioner's

rights were not violated, since the malian Board wads:

- "Conducted in substantial. compliance with

-applicable regulations, | ‘directives and statu-

tory law... any defects... related to pro- .\

“cedural matters and were of such a techni- |

cal nature that they may be disregarded. a

ae

Zenith a cemstlonal Film Corp. v. City of Seieeee.

291 F..2d 785 at 788 held:

4

er

"The eens of justice is largely procedural. 7

The District Court of Appeal of the State of Cali-

fornia has recently held in People v. Rodriquez, 242 .

_ACA 875,. 51 Cal. Rptr. 873.(1966) in effect, that mem-

bers of the Armed Forces are not second class citizens

whose constitutional rights may be trampled on. Should

the Supreme Court of the United States think less of

those rights?

4. The Court of Claims approved, by implication,

the practice of allowing non-voting members of adininis- .

trative boards to be present during closed session de-

liberations. It also appears to hold that the mere pres-

ence of this non-voting recorder during executive ses-

sion could not be held to be improper absent an affirma- |

tive: showing of prejudice, in spite of the fact that he

_-- "session makes this case like Turner v. Louisiana, 379

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ye ¥: Sere) . * Piva e mu uy casdciat apie “eer inj te faseaini ind a Delete ere if

eins .

- introduced evidence into the record against petitioner. _

,. It is not an ironclad rule that specific prejudice

must always be shown where constitutionally protected

* rights could.be violated. Estes v. Texas, 381 U.S. 532.

‘Ina way, to allow a person who has furnished evi-

dence against the respondent before that board to accom-

pany an inistrative tribunal into executive or closed. .

U.S. 466 and Parker v. Gladden, No. 81, October term,

1966, which denounced as violative of the right to con-

‘frontation and cross-examination the placing with the _

jury. as a bailiff one who had testified against the defend-

ant or allowing the bailiff to communicate with the jury.

- How can a prosecutor be with the jury during its delibera-.

tion without offending these same constitutional rights?

| In Amos Treat & Co. v. Securities and Exchange

Commission, 306 F.2d 260, the Court of Appeals for the ~—

District of Columbia Circuit applied the standards pro- - |

mulgated in In Re Murchison, 349 U.S. 460-464, a .

criminal case, to a fundamentally administrative action. -

Holding:

PLE LE FIP SN

"Fair trials are too important apart of our -

free society to let prosecuting judges be ~

trial judges of the charges they prefer...

An administrative hearing. . . must be at-

tended, not only with every element of fair-

ness but with the very appearance of com-

plete fairness. Only thus can the tribunal

conducting a quasi-adjudicatory proceeding

meet the basic requirement of due process."

Mere age RTE

—-10-

5. The opinion of the Commissioner; adopted by

the Court of Claims, makes the gratuitous‘comment that

petitioner's claim is without merit, in that petitioner does

not claim that he met the academic and professional

standards for retention in observer training. That is.

‘not correct _and is contrary to the evidence.

The only witness before the board who was sub-

jected to cross-examination testified that petitioner's

" accuracy was acceptable; and that petitioner had the

ability to do the necessary work.

However, this appeal is based upon the law, and .

not upon the facts.

6. . This Court should grant certiorari not merely

because this pétitioner's procedural rights were denied

to his detriment; but. becayse petitioner's case is illus-

trative of perhaps thousands of men in the Armed Forces |

who have been and will be summoned before administra-

tive proceedings. - | co, ae

aida 1947, this nation has been at war, sometimes

- hot.and sometimes cold, with a dynamic but undemocratic |

communist ideology, which has exposed its jurisprudence

to the world in the Gary Powers case., Because of this

tense world situation, unprecedented numbers of Ameri-

‘cans have become involved with the Armed Forces --

either as draftees or volunteers. - Thus for the first time

in American history, our young men have been and will

be subject to military law under quasi-peacetime condi -

tions. Petitioner's case is but one example.

Had petitioner been court martialed, the procedures

would have been well- defined and subjected to scrupulous

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appellate review. Why should the mere fact that peti-

tioner's rights were disregarded by an administrative

tribunal, rather than by a courts martial, render his

consti{utions: protections any less effective.

: .

The inevitable conclusion is that constitutionally

guaranteed procedural rights should exist in agim inistra-

tive-as well as judicial settings of military proceedings.

In summary, the problem involved is not academic or

episodic. It is real, important, and timely for. thousands

of Americans.

: —,

CONCLUSION

| From the foregoing statemenit of the case and rea-

- sons presented, this petition for certiorari should be

granted. ,

Dated:. February 9, 1967

Respectfully submiitted,

/s/ RICHARD Ss. HENDERSON

Pro se.