# Petition for Writ of Certiorari — Corrington v. Webb > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385603_0824%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1967 - **Citation:** 389 U.S. 930 ## Text LIBRA) . | Bt a1 PREME COURT. a: ¢ AUG 21 1967, SS A Sts JOHN F. DAVIS, CLE - Supreme Court of the United States enter : October Term, 1967 No. wee JAMES W: CorRincton, . Petitioner, US. James E. Wess, individually and-as Joint Aduninistrator _of the National Aeronautics and Space Administra- _ tion of the United States; Joun W. Macey, in- . dividually and as Chairman of the United States Civil Service Commission; L. J. ANDOLESK and. ROBERT HAMPTON, individually and as members of the United States Civil Service Commission, ; Resporidents, | Petition for Writ of Certiorari to the United States Court of Appeals, for the Ninth Circuit. LIonEL RICHMAN, _ Lewis GARRETT, -Herpert M. ANSELL, . 1336 Wilshire Boulevard, . Los Angeles, Calif. 90017, Attorneys for Petitioner. , Parker & Son, ince Low Printers, Lop Anges Phone MA. 69171. of] . . . . ° . e . 6 “~~ ’ Sunnie INDEX 7 . Page : Opinions Below pilose | anceamaaioncnie - - Grounds on Which the Jurisdiction of This Court * ‘Is Invoked Wteowte i ie Questions Presented for Review assensessensssiveneeens O , | Statement of the Case - a ee rg) The Trial Court’s Findings of Fact a Wethe, 7 im. ba fe Statement of the Evidence eee se Argument ; The Finding That Appellant Was Guilty of Lachés ; _ .Is Contrary to Both the Evidence and the Law.: 8 Conclusion — re eae Neer eatolaicos - e ° ‘TABLE OF AUTHORITIES CITED United States Constitution, Sixth Amendment Cases Page --. Arant v. Lane, 249 U-S. 367 ..... seuss 10 Chappelle v. Sharpe, 301 F. 2d 506 10 Duncan v. Summerfield, 251,F. 2d 896 .........9, 11, 12, Evans v. Leedon, 265 F. 2d 125 ecesssiesressee 12 - Jones v. Summerfield, 265 F. 2d 124 . 2 11, Morse v. United States, 59 Ct. Cl. 139 11 _ Nicholas v. United States, 257 U.S. 7 .. 10 __ Norris v. United States, 257 U.S. 77 10 Powell v. Zuckért, 366 F; 2d 634 12° Tucker v. Summerfield, 251 F. 2d'898 aise ae United States v. Wickersham, 201 U.S. 399 ....... : Statutes United States Code, Title.5, Sec. 863 3 United States Code, Title 5, Sec. 1009 3 United States ‘Code, Title 28, Sec. 1254(1) United States. Code, Title 28,.Sec. 1331 3 ‘United: States Code, Title 28, Sec. 1332 ....! 3 ' United States Code, Title 28, ‘Sec. 1361 ' 4 United States Code, Title 28; Sec. 2201 3 United States Code, Title 28, Sec. 2202 ...... 3 United States Constitution; Fifth Amendment ......_ 3 3 acne Supreme Court ty the United States James W. CorrincrTon, : CMs Petitioner, - e Uf ee ee lane E. Wess, individually and as J oint Administrator of the National Aeronautics and Space Administra- tion of the United’States;Joun W.. ‘Macey, in- - dividually and as Chairman of the United States Civil . Service Commission; L.. J. ANDOLESK and Ropert Hampton, individually and as members of the United States Civil Service Commission, : | Respondents, _ Petition for Writ of Certiorari to the Unitea na Ee ee : ee ee Petitioner, Seines W. Codbamin: etevectfily,. prays for a, Writ of Certiorari to the United. States Court of . Appeals, for the Ninth Circuit, in order to review its judgment affirming a Judgment of Dismissal entered by the United States District Court, Southern Dis- trict of California, Central, Division, which said Judg- ment of. Dismissal barred your Petitioner’s application. for. judicial, relief seeking reinstatement to his employ- Ment with the Natiorial Aeronautics and. Space Ad- ministration, upon the ground that your Petitioner had been guilty of laches in filing euch action | — ‘The opinion of the United States Court of Appeals, for the Ninth Circuit, is reported at 375 F. 2d 298. _ Grounds on Which the Jurisdiction of This — | coms Is Invoked. 3 ee . The date of the judgment of the United States Court of. Appeals and the time of its omy is April, 5, 1967. On or about June 27, 1967, “your Petitioner filed with © your Honorable Court his application for an order ex- — tending time to file petition for writ of certiorari. On aes July 12, 1967 Hon. William O: Douglas, Associate’ Jus- _ tice of the Supreme Court of the United States, made and entered his Order extending the time for filing a a petition for writ of certiorari in this cause, to and including Anguat 19, 1967. 2% | wieiks | Jaca .. The scitendey provisions believed to cones jurisdic- tion on this Court to review the judgment in question | "by writ of certiorari is 28 U.S.C. 1254(1) which pro- vides that. your Honorable Court may review Gecisions ‘ ake Comets at Anges! by rit of seston : ‘The action in ‘the United States District Court ee. brought by. Petitioner. for a declaratory judgment “and | other ‘equitable relief to restore him to employment with = 7 the National Aeronautics and Space ‘Administration OGL ig OO Nn YD T OF COLELLO POODLE a 9 OE A agg ree - 2202; of Title 28, United States Code; Section 1009 ‘of Title 5 of the United States Code; and upon the: ‘Fifth © Y | ,of the United State ‘ia jarisdiction ‘i in that Court was | evoked pursuant to Sections 1331,’ 1332, 2201 and land Sixth. Amendments to the Constitution of. the. United States. Petitioner further’ invoked the Veterans Preference Act of 1944, as amended, Section 863 of: : Title 5 of the United States Code. coe os oe . ‘ Questions Presented for Review. " imag: (y | Did the. Trial Court err in holding that -the Peti tioner was guilty of laches as a matter of Idw in delay- ha ' ing the filing of his action to review the administrative rah rises ae . II. May a ‘finding of laches be made in the absence of | any evidentiary showing . prejudice to the ¢ Respondent? | ee oc Stee OF THE CASE. ies " The Trial Court’s Findings of Fact. ‘The trial court found, in substance, that Petitioner . had been engaged as an experimental jet aircraft me- - chanic by the National Aeronautics ‘and Space Ad- ministration of the United States. On March 12, 1962, he was removed from this position by direction of . the personnel officer, National Aeronautics and Space Administration, ‘Edwards Air Force Base, Cali- fornia. He was notified by letter dated October 1, 1962, from the Board of Appeals and Review of the | Civil Service Commission that his removal from his employment had been upheld. F ollowing this letter, no _ further administrative remedies were available to the Petitioner. ‘ After his removal became final, Peti- tioner | sought the advise of an attorney. His action | -in ‘the trial court below was not filed until August 13, | 1965, more than 34 months after the Plaintiff's re- moval became final. The Court drew as its indies of Law that it had - jurisdiction to review the administrative proceedings pursuant to 28 U.S.C. Section 1361 and that by not filing his complaint for review of the administrative proceeding for a period of 34 months after notification of the final decision of the Board of Appeals and Re- view, Petitioner was estopped as a matter of law by his laches from claiming the relief sought. ’ . —i— Statement of the Evidence. | Petitioner’s reference to this trangcript are to the transcripts “prepared by the United States District Court which Petitioner is advised will in turn be trans- mitted to your Honorable Court by the Clerk of. the _ United States Court of Appeals for the Ninth Circuit. _ Petitioner, a veteran of World War I, was employed . . by the National Aeronautics and Space Administration as a jet aircraft mechanic,.W B 10, at Edwards Air- force Base in California, until his removal on March 12, * 1962 [Tr. p. 3]. | e On February 8, 1962, N.A.S.A. instituted removal Proceedings against Petitioner, charging’ him with de- ficiency in performance of duties, actions causing or ‘tending to cause damage to federal Property, actions — endangering the safety of others and negligence {Tr. pp. 10-12]. - Prec” sd | | Petitioner duly denied the charges iti- some detail [Tr. pp..13-17]. However, he was advised on March - g 1962, that a final decision had been made to remove a him [Tr. pp. 18-19]. | This determination was promptly appealed to the Di- | Fector, Twelfth: U.S. Civil Service Region, San Fran- cisco, on March 17, 1962, and a hearing requested [Tr.. p. 20]. Pita. fi | Upon receiving notice of hearing, Petitioner desig- nated a fellow employee as his hearing representative. etal He also furnished iain with a list of his oro- posed witnesses. However, on April 20, 1962, Re- spondents advised Petitioner that he would be limited - to five witnesses only [Tr. p. 22]. On April 22, 1962, Petitioner designated 5 witnesses | whom he desired. However, feeling that these wit- nesses did, not sufficiently rebut all of the named’ _. charges against him, on May 1, 1962, he submitted an additional designation of witnesses [Tr. pp. 23-24]. On May 8, 1962, Respondents reiterated the “five — witness” limitation and refused to permit the four ad- ditional witnesses requested to be. present [Tr. p. 25). Further, in order to rebut the allegations charged in Incident No. 1, Petitioner : ‘requested that the aircraft . log book be produced. bern request was likewise re- fused [Tr. p. ‘5, lines. 16-20]. | | On May 15, 1962, a hearing was held before the . Civil Service Commission. On May 25, 1962, the Com- missioner’s:San Francisco regional office made its order sustaining Petitioner’s discharge [Tr. pp. 26-36). This - decision was appealed to the Commission’ s Board of Ap- peals and -Review in Washington, D.C. on May 31, 1962, which affirmed the San Francisco regional office on October 1, 1962 [Tr. pp. 44-45]. | Petitioner promptly consulted an attorney, William Wright, a general practitioner, in Lancaster, California. Wright agreed to look: into the matter, although he had never hada similar type of problem in the past [Tr. p. 180]. After some period of time, Attorney Wright in- formed Petitioner that he felt it advisable that the mat- ter be handled by a law firm in the District of Columbia / x oe specializing in this type of-litigation. He stated that, - with Petitioner’s permission, he would write to -Con- gressman Everett Burkhalter, who was the member of Congress representing the Lancaster area and ‘ask his assistance in locating a law firm handling this type _ of matter in Washington, D.C. 3 Sa: On or about October 1, 1963, he wrote to “Cap” Hardy, Congressman Burkhalter’s administrative as- sistant in. Washington. He transmitted Petitioner’s file to him and asked him to locate an attorney qualified to. handle the. case. Petitioner. was-informed later that the matter had been. turned over to the firm of Shipley, Ackerman & Pickett, Washington, D.C. Thereafter, at his request, Attorney Wright wrote a series of letters over a period of several years inquiring as to the status of the case, Petitioner assumed that some action had been commenced in the District of Columbia to set aside the decision of the Civil Service Commission. His "problem then became complicated even more because At- torney Wright was appointed to the Municipal Court and it became difficult for Petitioner to communicate with him. _ After Judge Wright took the bench he sug- gested Petitioner communicate with his former law partner. He did this and the law. partner also wrote a letter seeking ‘the status of Petitioner’s case. Fi- _ nally, in June of 1965, Petitioner telephoned the Wash- ington law firm and for the first time discovered that no action had been taken. .He requested that his file be returned and it was returned to him -around June 15, 1965. On July 1, 1965 he consulted Lionel Rich- man who then filed the instant action. a en ARGUMENT. The Finding That Appellant Was Guilty of Laches Is Contrary to Both the Evidence and the Law. Petitioner’ Ss. affidavit filed in opposition to the mo- - . tion for summary judgment appears at pages 180 and 181 of the Transcript of Record. This — was uncontradicted. : The affidavit indicates that Petitioner did all of — those things which a reasonable- and-prudent Tayman NK would do to protect his rights under law. He pro- ceeded as diligently as a layman could be’ expected to proceed. In his proceedings before the Civil Service Canale sion he was represented by a fellow employee, one whom, we may assume, was unaware .of the necessary _ legal action to be taken to review a decision of the. Civil Service Commission. Immediately upon receiving the decision of the Com- mission, he consulted an attorney in Lancaster, Cali- fornia. That Attorney agreed to represent Petitioner in obtaining a vindication of his rights. It is true, and the affidavit has been scrupulous in setting forth the conversation which the Petitioner had with the at- torney, that what the attorney said was that he would “look into the matter to determine what my legal rights were insofar as appealing. the decision of the Civil Service Commission.” That attorney had never had a similar type of problem i in the past. The local attorney, behaving.as a reasonable and pru- dent general practitioner would be expected to behave, decided to obtain the services of a specialist in the field. ‘He sought assistance in locating a law firm in a im: " the District of Columbia specializing in actions of this - type. | lo, He was furnished the name of such a law firm and transmitted the file to them. ‘Then, the local practitioner | ’ became a Judge in the Municipal Court, and the. prob- lem of communication from Petitioner to his local at-. torney to his Washington, D.C. attorney became com- ‘ pounded. It-was not until June of 1965 that he first _ discovered that no action had been filed and immediately . upon receiving that advice, he consulted other counsel — who filed the instant action one month later. . ro In selecting the United States District Court as his _ forum, rather than the Court of Claims, Petitioner con- sciously waived any claim to back wages in excess of the jurisdiction of the United States District Court, since he recognized the extent of the delay which had occurred and desired to do equity, as he sought equity. In considering the equities: here: presented, the lan- . guage of the United States Court of Appeals, reversing _@ judgment of the trial court barring relief on the - ground of laches, is peculiarly appropriate. An action had been brought by a postal’ employee 32 months after his discharge had become final. The trial court, applying a per se standard, held the action _ barred by the doctrine. of. laches. The Court’ of Ap- peals reverséd saying: “In suit for reinstatement in government employ- ment, as in equitable actions generally, laches has two elements, (1) -unreasonable delay in prosecut- ing a claim and (2) resulting prejudice. Gurley v, Wilson, 99 U.S.A.P.P.D.C. 336, 239 F 2d 975. In the present case the second element is not clearly present, and the first element is absent.” Duncan v. Summerfield, 251 F. 2d 896, 897. le ee ‘There is no showing of prejudice i in he poner and certainly. the, evidence would. negative . “unreasonable” at in prosecuting the claim. yas : ; : " The cases which were cited by the Respondents i inthe | : . - Court below all have within them these two elements. Nicholas v. United States, 257 U.S. 7 involved an action brought three years after’ removal from office, _ but’ with no objection to the removal having been made prior to suit. & Norris v. United States, 257 US. 77 involved an "action brought eleven months after removal from of- fice, the Court stating: “ . but no fact is found ex- | plaining his failure to assert his right to the office, or its emoluments, for the period. of eleven months and a little over.” (page 80.) In addition, the Court ‘noted that the office had been abolished i in the interim. Arant v. Lane, 249 U.S. 367, 371-372 involved a. discharge without the bringing of formal charges and a delay of twenty months ptior to the filing of the ac-_ tion. The Court stated that the delay, when unex: plained, results in application of the doctrine of taches.. United States v. Wickersham, 201 U.S. 390 also in- volved a wrongful discharge without the bringing of charges. Two months later the employee demanded his salary but did not bring suit for four and a half paare without explaining his delay. Chappelle v. Sharpe, 301 F. 2d 506, 507 Sacred a ‘delay of 3444. months before the bringing of the ac- : ~~ - tion) ‘The Court noted, “the defendant officials moved to dismiss, filing in support an affidavit reciting facts which upon their face,’ pose Me problem of. laches.” In, this case, no problem of laches has been } oemed by : the record. “Morse v. ‘United States, 59 Ct. Cl. 139, involved the ; delay of over. thirteen months before ‘the filing of a ' petition with the only reason for the delay being Ap- pellant had “experienced much. uneasiness over the possiblity of his reinstatement in the service and’ his immediate removal therefrom in accordance with the Civil Service law. ” In the absencé of any explanation : of the. delay, the petition was dismissed. ° It is of some Significance to examine the case of Duncan -v. S: ummerfield insofar as its subsequent his- tory is concerned, to determine whether its statement of law is still valid. In Duncan v. Summerfield, Chief pare Edgerton with Judge Bazelon joined in the majority opinion. Judge Miller dissented, without opinion. “ In Tucker v. Summerfield, 251 F. 2d 898, decided by the same circuit, Judge Edgerton and Bazelon again af- firmed their: position taken in Duncan v. Summerfield, with Judge Bastian dissenting, without opinion. _In 1959, the same Circuit decided Jones v, Summer- field, 265 F. 2d 124, wherein a panel of that- court consisting of Judges Edgerton, Washington and Bastion _ affirmed a indamnent of Aierniees) on the gound of faa | —i2— laches, but restating the doctrine of Duncan 9. Summer- field and hhokding that the appellant did not meet its ~ standards, In Evans v. i Leben, 265 F, 2d 125, a panel consist- | ing of Judges Prettyman, Washington and Danaher — likewise affirmed.a judgment of dismissal on the ground . Of laches but again restating Duncan v. Summerfield | | 68 eet Bes “seeeteape la Solin senate standards. 7 | Finally, the same Circuit ‘decided Powell v. Zuck- ert, 366 F. 2d 634, with Judges Danaher, ‘Wright and ' Leventhal unanimously: joining in restating Duncan v. Summerfield and weighing the showing before them _ against the standards of. Duncan v. Summerfield. _ ‘The instant case represents a substantial departure from all the cases cited above. There is not a scintilla of evidence offered on behalf of the Respond- ents that they had suffered any prejudice whatsoever. Inthe absence of such a showing of prejudice iit cannot be a finding of laches. \ .” ‘Conclusion. Considering the work classification of Petitioner, it is obvious that there could be no showing of prejudice to Respondents except insofar as the question of back pay is concerned. Petitioner has from the outset stipu- _ lated to an equitable remittitur of any portion of the back wages found to be attributable to delay. Peti- tioner’s delay not only\is not unreasonable but represent- » —13— ed the best efforts’ by .a layman to seek relief e : expeditiously as.a layman can obtain it. The per curiam decision of the Court of. Aeon con- sidering that Respondents offered no evidence to show - laches, represents a radical departure from established Jaw and requires review by your Honorable Court. _ For these reasons, therefore, it is respectfully sub-: | mitted that a substantial question of federal law. exists requiring ‘settlement by your Honorable Court . and ~- that a Petition for Writ of Certiorari should be granted. . Respectfully submitted, | Lioner Ricuman,: Lewis GARR“TT, Hersert M. AnsELL, ~- By Lioner RICHMAN, Hersert M. AnsELt, Attorneys for Petitioner. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385603_0824%3A1. Public record. Not legal advice.