Petition for Writ of Certiorari — Walker v. United States

ie LIBRARY ~ | 7. FILED”

SUPREME COURT.U.5 - ——i«-.- GT 19 1967

JOHN F, DAMS, OLERK | |

aod | IN THE 7 ~

_ Rupee Court of the Mniten States

October Term 1967 —

vo mde

’ GEORGE A. WALKER,

7?

. Petitioner,

Vv. :

e

THE UNITED STATES OF AMERICA,

Respondent.

PETITION FORAWRITOFCERTIORARI

——~TO THE UNITED STATES COURTOF CLAIMS ~——-

Lawrence J. Simmons |

... 934 Shoreham Building,

806 15th Street, N:W.,-_—_-__—_—_——

Washington, D. C. 20005

- NA 8-3996 —

Counsel for Petitioner

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INDEX.

THE OPINION BELOW. 2. . 2... .- “y

‘JURISDICTION. ...... ~~ ee oes

QUESTION PRESENTED >... .% ~~~.

‘CONSTITUTIONAL PROVISIONS, STATUTES,

RULES OF COURT AND REGULATIONS

i ds he ees |

STATEMENT OF THE S CASE. + . ee

REASONS FOR GRANTING THE WRIT .

L Dismigal of Petitioner from His Federal

Employment Was Void Being in Violation t

| of the Veterans Preference: Act, 5 U.S.C.

863, in Two Respects: _

(a) There Was No Adequate Proof of the 8.

_ Charges and of Intent to Commit a — _

-Frayd and Name of Co-Conspirator

Was not Provided, and

(b) His Appeal to the Civil Service Com-

mission Was Timely when Taken

_ within a Reasonable Time after

Recovering from a Mental seiicane oe

_Il. A Federal Employee heli a Notice

of Proposed Removal from Employment

*. Has a First Amendment Right to Include

His Petition for Redress of Grievances and

10: -

2

°:

a Failure by the Government to Meaning-

' fully Process It Is a subtle Interference —~_ :

- with a Constitutional Right Voiding that — .

: Employee’ 8 Removal from Employment. -

CONCLUSION. |

Opinion of United States Court of Claims, -

3” filed April 14, 1967

- Order of United States Court of Claims

_ Denying Motion for Reconsideration, |

Entered July 20,1967. ...... oa

| _ CITATIONS

: :

; Bates v. Ci ry of Little Rock,

361 U.S. 516, 80S. Ct.412.°. 2...

Carter v. United States, —~ .

- 102 U.S. App. D.C. 227, 252 F.2d 608. ..

oy: Gernand v. United States,

174 Ct. Cl. 936 ee Oe era ee ee

' Gmo. Niehaus & Co., et al., v. United States,

373 F.2d 944... eater ee es

New York Times v. Sullivan, _

376 U.S. 254, 84S.Ct. 710: .. 2...

. Page

21

A-1 |

21

15

16

18

&,

19

Rogers v. United States, cee oe sere

340 U.S. 367, 71 S.Ct, 438 . 2... 16

‘Swaaley v. United States, :

Court. of Claims, No. 405-65,

decided May 12, 1967... . 2. 9,11,18,19

Turner v. Keuele , | cs Se .

118 U.S. App. D.C: 104, ae erat Makes

332 F.2d 304. 6 2 ee ee +, 119,20

Urbina v. . United States,’

Court:of Claims, No. 113-63, 2 | :

decided May 12, aicute Lb sce eck eae 6, ee

Constitutional Provisions

arid Statutes Involved -

o

Amendment I to the Constitution of the. ae 2 Mal

o- Uelted States os ewe ene eC 8

Amendment V to the Constitution of the .

United States = - 6 ee ee ee on ae

“Gees 14 of the Veterans Preference. Act

of 1944, 58 Stat. 387, as amended 4 a istars

ee arn ee eae a 3.

PR ww:

> >

dv)

a

Regulations *

Civil Service Commission Regulations, el

5 CFR ‘752.203 (a) and (bX(1) 2... se

S-CFR 752.203 (3)). 60. 2 fe ee

5 CFR "752.203 (4). Ce deo hee wwe

- Federal Personnel Manual, Appendix Om

to Section 5, Procedures Under. |

pe SO ere ee eee ae ae ee

Rules of the United States

Court of Claims, <9

‘19(b) i rae ee ek ea 8 8 ES

64(d) oe oe ee Pie, Eman

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7

INTHE | -

| oes Supreme Court of the Hniteh States

S

* October Term 1967

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No.

- GEORGE ‘A. WALKER,

‘¢ ee

: Petitioner, —

Vv. sa f ri

THE UNITED:STATES OF AMERICA,

er Respondent. |

PETITION FOR A WRIT OF CERTIORAR!

“TO THE UNITED STATES COURT OF CLAIMS —

_

_-

___ Petitioner prays that a Writ of Certiorari issue to review .

the erroneous decision and judgment of the United States.o-

_ Court of Claims entered July 20, 1967. | ‘ oo

o .

THE OPINION: BELOW

The Opinion of the. Court of Claims dated April 14, 1967,

is not reported, but is-printed in the Appendix hereto, infra,

" page A-l.

JURISDICTION

_ The judgment of the Court of Claims is duvet. July 20,

1967, was entered July 20, 1967, denying Petitioner’s Motion

for Reconsideration, and is printed i in the Appendix aaeed

infra, page A-3. : :

‘The jurisdiction of this C ourt is invoked under 28 U. S.C.

sla

QUESTIONS PRESENTED |

1(a). Whether Petitioner’s dismissal from federal employ-

. ment violatea the Veterans Preference Act there being no proof

of intent to fraudulently apply for and receive a rental allow-

ance since he had previously transferred in good faith title te

a home into an irrevocable trust naming his daughter bene-

ficiary and his wife trustee to whom he paid monthly rent.

. =

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(b). Whether. Petitioner’s appeal to the Civil Service

Commission was timely within the provisions of the Veterans

Preference Act, though not filed,within 10 days after notice of

adverse action as regulations of the Commission required, but

was filed within a reasonable time after recovering from a.

proved mental psychosis. | ae

;

2. Was Petitioner’s removal from th®Federal civil service ©.

' void being in violation of his right to Petition for Redress of

-Grievances since he-included such a petition in his answer to —

*. charges and in his appeals to the Civil Service Commission and

_ the Petition was subtly interferred. with, there being no mean-

ingful processing of it to higher effective authorities and there |

was no known action taken upon‘it.

“

*é

CONSTITUTIONAL PROVISIONS, STATUTES,

RULES OF COURT AND REGULATIONS

INVOLVED

Amendment Ito the Constitution of the United States:

se “Congress shall make no law respecting an establish-

-ment of religion, or prohibiting the free exercise there-

° of; or abridging the freedom of speech, or of the press;

or the right of the people peaceably to assemble, and to |

p petitfon the Government for a redress of grievances”.

- Amendment ¥ to the Cénstitution of the United States:

“No. person shall * * * be deprived of life, liberty, or

‘ property without ‘due process of-law;**”.>

Section 14 of the Veterans Preference Act of 1944, 58

Stat. 287 as amended 5 U.S.C. 863: ,

-”No permanent or indefinite preference eligible, ****

shall be discharged, *** except for such cause as will

promote the efficiency of the service ‘and for reasons

_ given in writing *** such preference eligible shall be

allowed a reasonable time for answering the same per- |

sonally and in writing, *** and shall have the right to

appeal to the Civil Servicé Commission from.an adverse

decision of the administrative officer so acting, such _

«appeal to be made in writing within a reasonable length

_ of time after the date of receipt of ngfice of such ad-

verse decision:**”.

Civil Service Commission Regulations: — Y &

5 CFR 752. 203:

(a). Right of Appeal. An employee is entitled to.

_ appeal to the [Civil Service] Commission from an_ad-

_ verse action covered py this subpart en's

“(b). Time Limit. (1) *** an employee may submit

an appeal at 7 time after receipt of the notice of

0

adverse decision but not later than 10 days after the ad- ”

verse action has been effected.”

a *€2). %#%H??

“(3(i). An appeal may not be processed concurrently

by the Commission under this part and by an agency

under the agency appeals system established under Part:

771 of this Chapter”.

=. =

**(4). The Commission may extend the time limits in

this paragraph when the appellant shows that he was not

otherwise aware of it, or that he was prevented by cir-

cumstanees beyond his control from yee within

the time limit”.

Federal Personnel Manual, Appendix C to Section 5,

- Procedures under Part 22, Sec. A.2: “The notice must

' state any and all reasons supporting the proposed actidn, —

specifically and in detail (names, times, places, etc. ).

The reasons must be given specifically enough, and in

sufficient detail, that the employee may understand

clearly the alleged grounds for the proposed action,

know the particular offenses or deficiencies charged .

- against him, and thus be in a position to > submit his de-.

; fense. BREE? ; .

Rules of the United States Court of Claims:

“19(b). Affirmative atdanent In inion’ to a preced-

ing pleading, a party shall set forth affirmatively accord

_and satisfaction; duress, estoppel, failure of considera-

tion, fraud, illegality, laches, license, payment, release,

res judicata, statute of limitations; waiver, and any other

matter constituting an avoidance or affirmative defense”.

“64(d). M@tion and Proceedings Thereon: After a mo-

tion for summary judgment has been filed *** and has

been served *** and after expiration of the time allowed

*** for filing a response there to, such motion *** shall

wt

be olnida to the calendar. The judgment sought shall .

be rendered if the pleadings, depositions, and admissions

on file, together with affidavits, Pe any, show that there

is no genuine issue as to any material fact and that the

— party is entitled toa a judgment as a matter of

law”. |

STATEMENT OF THE CASE

Petitioner, a veterans preference eligible, was working in

_1961 as a civilian employee for the Air Force as an Administra-

. tive Assistant, GS—9, at the 6313th Air Base —— Kadena, Air

Force Base, Okinawa. (R13).

By letter of August 31, 1961 he was notified of the pro-

posal to remove him from his civil service position. This letter

charged him with conspiring to defraud the United States by

conniving practice to purposely circumvent government regula-

tions for personal financial gain. (R 23-25). It did not name

his co-conspirator nor state that the name was unknown. The

fraud charged was that he applied for and received excessive

quarters allowance in that he was reimbursed for rent he never

paid, that in fact he owned his home though titled in the. maiden -

name of his Japanese wife. (R 23, 24). Petitioner answered in

writing denying the fraud, stated he paid $80. 00 a month rent

to Noyo Yamakawa, the maiden name of his Japanese wife, be-

cause on June 1, 1960, he had created a written trust and con-

veyed the house into the trust, naming his wife Trustee with his

daughter the beneficiary. (R 23, 24, 26). He also advised in

effect that under Japanese law in Okinawa it was customary to

place title in the maiden name of the wife. (R 23). In this an-

_ swer to the charges he asked for an investigation stating his re-”

moval was occasioned by an upheavel within the Command

_ Qnd the result of-an earlier attempt to remove him “which had

no substance and never materialized”. (R 26, 27). On October

6

cy

o \

16, 1961 he was notified in writing a decision had been made . -

_ to remove him effective upon his arrival at his residence in

the United States (R. 28) that being December 21, 1961.

(R 51). He was advised of his appeal rights, either to the

higher echelon of the Air Force under the Grievance and Ap-

peal Procedures or to the Civil Service Commission (R 28),

but that he could not pursue both (R 3r). Regulations of the :

' Civil Service Commission, 5 CFR 752.203 (b)(3)(i) preclides

_ an appeal to the Commission if the employee files an agency

grievance appeal. Petitioner filed neither appeal then. He |

_ filed appeals to the Civil’Service Commission in 1964.

Between the date of arrival at his United ‘States residence,

December 21, 1961, and June 14, 1962, he remained there

ill. (R-40). Because of a suicide attempt he was hospitalized

on June .14, 1962, as a mental patient in the Westborough

-State Hospital, Westborough, Massachusetts. (R65). Mas-

sachusetts’ law does not permit hospitals to provide copies of

_ medical records without supoena (R64) but it did ‘provide a

short diagnostic summary (R 65, 66), which states Petitioner

has an “Involutional Psychotic Reaction, Depréssive Reaction, + *

_ manifested by depression, retardation, | feelings « of despair and

hopelessness in the involutional age”. He remained there until

transferred to the Veterans Administration Hospital, Bedford,

Massachusetts on January aS, 1963, where he remained-until .

discharged February 5, 1964. (R67). His diagnosis at this

Veterans’ hospital was “Involutional Psychotic Depressive

Reaction in partial remission” at discharge. AR 68).«

The Veterans Administration continded on Defmber 12,-

1963, that he was totally disabled and waived the premiums

_ for his National Service Life Insurance and finding also such

' total disability continued from November 14, 1961. (R 72).

The Civilian Personnel Officer in. Okinawa stated (but not

under oath) that he had talked with Lt. Col. Wm. Hannum, .

id

" USAMSG, on October 31, 1961,-who had concluded Petitioner

¢ .was capable of a mature evaluation of the facts and had the

capacity to comprehend the importance of ‘the action“taken.

(R 89).

On March 22, 1964, about a aii and a half after

discharge from the Veterans Hospital, Bedford, Massachusetts,

Petitioner appealed in writing to the San Francisco Region,

Civil Service Commission (R38, 39, 40) stating the medical

reasons why he had not appealed earlier but also p ating these

grievances (R 39):

“The change was totally unjust and was inspired by

a political wrangle between the Commander of the

Unit to which I was assigned and his deputy. Because

_ofqny loyalty to the Commander the Deputy avowed

on more than one oceasion that he was going to get

me after-he had succeeded in getting the Commander.

Being of a lesser rank he could not make a frontal_.- —

attack but did through a whispering and underhandéd

attack. Once-the Commander was removed. he worked

‘to get me removed and when the question of transfer

of my house to my. wife as trustee for the benefit of

my daughter was made and this was later questioned

- he had the base to construe this as something sinister:

When I realized that I was being ganged upon through —

a whispering and fictional group, I became alarmed,

highly nervous and since the charges were so slow in —

coming it sapped my morale completely so that when

the charges were made I was a nervous wreck and

unable to present a timely and proper defense.”

° This appeal was denied as untimely on April 2, 1964 (R 41- :

}).. That office also stated Dr. Hannum’s medical opinion . ,

refuted Petitioner’s claim of illness since he was competent _

according to the doctor. (R 42). That office was cognizant

of the Veterans Administration conclusion Petitioner was __

‘totally disabled from November 14, 1961 (R 43) but chose

to disregard this expert evidence for the hearsay medical con-

clusion as reported by a layman, the Civilian Personnel °

Officer. 7 | a: “4

“On April 22; 1964, Petitioner filed an appeal with the

- Board of Appeals and Review, Upited States Civil Service

Commission, Washington, D.C. (R44-49) in which he reiterated

his past illnesses and stated these grievances (R 44-49):

“In the organization to ‘which J was assigned-was a_

woman employee who. became _my subordinate and

who had tried to get the job to which I was assigned

but. failed for lack of qualifications. This woman at

the outset and throughout my tenure of the job

conspiréd with the military superiors to discredit me .

in order to get my job. The writer is 1/20th colored.

and this fact was suspected and used by this woman

to spread rumors and hate among assigned personnel.

This’continued with each succeeding officer so that at

various times it was proposed to abolish my job, reduce

my grade and other harassing tactics used. When a

new Commander was assigned the same process was

used over and. over. Then in 1960 a new deputy to

the Commander was assigned and it soon became ap-

_ parent that they did not see eye:to eye. I was loyal.

to the Commander as required by my -job and this

Major was from Little Rock, Arkansas, so this woman

quickly sought to appeal to his aversion to a person of

» ¢olor. Because of his dissention (sic) with. the Com-

“ . mander the organization suffered and-in 1960 an IG

annual inspection of the organization was. severely cii-

tical. The deputy tried to place‘the blame for the .

. poor showing of the organization on me since because

of rank he could not blame the-Commander, a Lt.

Colonel. Finally, through political and fraternal asso-

_ ciation he succeeded in having the Commander relieved

of his post and avowcd to get me.’

This appeal was denied May 4, — as untimely (R 51). On

_ May 11, 1964 (R 52) and June 22, 1964 (R 54):reconside ration

4

was requested but denied. (R 54). Plaintiff filed his com-

-plaint in the Court of Claims July 1, 1965, nn jurisdic-

tion pursuant to 28 U.S.C. 1491.

There’ was no hearing below upon oa merits but Respon- ‘_

dent’s Motion for Summary Judgment was ‘granted April 14,

1967. (R 96, 97). The lower court concluded Petitioner was

- caught in this dilemna: If the court upheld the holding of

the Civil Service Commission that Petitioner’s illnéss was not

an acceptable excuse then the untimely appeals (sic)! consti-

tuted a failure to exhaust administrative remedies, but if the

court excuséd the tardiness of-the appeals and accepted the

existence of the illness as debiljgating then he"could not |

recover because of his failure to be ready, willing and able to

work for the period involved. (R 97). ‘This affirmative de-

_ fense of “ready, willing and able”, was not affirmatively

pleaded as Rule 19 of the lower court requires. On May 10,

1967, Petitioner filed a Motion for Reconsideration stating

this contention and also filed a Supplemént on June 2, 1967,

calling attention to two subsequent opinions of that court

which were, he believed, inconsistent with the holdings in his

case. Swaaley v. United States, No. 405-65, decided May 12,

1967, and Urbina v. United States, No. 113- -63, decided May

12, 1967. Both are unreported. Swaaley involved the vacating

of a removal from federal employment because the employee’s

letter constituted a Petition for Redress of Grievances and .

could not be the subject of a removal proceeding. Urbina

involved a situation very similar to Petitioner’s case since it,

— | But the Agency said he eodkld : not appeal ones the Coma Pro-

cedure if he went to the Civil Service Commission and.Civil Service

regulations preclude him from appealing to it if he followed the Agency

grievance appeals. Both violate the Veterans Preference Act which give

_ the eligible an absolute right to appeal to the rgrenci See —

ment I infra.

+ 10°

too, was concerned with alleged fraud in claiming rental allow-

ances for a house titled inthe name of Urbina’s brother-in-law.

" Petitiorier’s Motion for Reconsideration was a July 20,

1967 (R. 115, 116).

REASONS FOR GRANTING THE WRIT

| The Court of Claims failed to decide the timeliness of

_ Petitioner’s administrative appeals in the light of the Veterans -

Preferencé Act. allowing a preference eligible to appeal to the

Civil Service Commission within a reasonable time. Under —

_ the circumstatces of this case Petitioner did appeal within ~

a reasonable time after recovering from a mental psychosis.

His removal violated the Veterans Preference Act. He was ©

. charg&d with intent to defraud but there was no proof of thi

this since he obtained rental allowances properly Shaving pre-

viously conveyed title:to his home in good faith to his wife,

as trustee for his daughter. He actually paid rent tothe =~

' trustee. These issues were decided by the court below 7

upon a motion for summary judgment and since issues of

fact existed summary judgment was precluded. Important .

questions of federal law, the Veterans Preference Act, exist

and apply to a large number of veterans employed in the

civil service of the United States. It is believed that, this

question of ‘federal law ~* not been but should be settled —

by this Court. ;

"The court below failéd to consider Petitioner's letters to

his Agency and to the Civil Service Commission Regiorial

Office and to its Board of Appeals and Review as Petitions

for Redress of Grievances encompassed by Amendment I to

° the Constitution of the United States. The Court of Claims

has held that a federal.employee may file such a petition and

that it cannot be hindered or delayed nor used as a basis for

removal unless the statements made in it are made with

€

ll

knowledge of their falsity or with reckless disregard, of their

falsity. Swaaley v. United States, No. 405-65, decided May

12, 1967. This is in direct conflict. with the holding of the

majority of the United. States‘Court of Appeals for the

Distifet of Columbia Circuit.in Turner v. Kennedy, 118 U.S.

App. D.C. 104, 332 F.2d 304 (1964). The facts are found in

‘Judge Féty’s dissenting opinion in which he held that the

' employee’s letter to Congress was protected hy the First

Amendment and by 5 U.S.C. Section 652(d) which provides

that federal employees may petition Congress and that the

__ petition shall not be denied or interfered with. Turner was

removed hetause his statements were said to be false, unjusti-

fied and reprehensible. Both Swaaley and Turner involved:

dismissals based on.the statements contained in the petitions

8 being false or slanderous. Petitioner’s grievance was not used,

so far as is known, as a reason for dismissal but there was a

~- subtle stifling of it since there was a failure to forward it to |

higher headquarters for action, failure to notify him of what

action was taken on it and whether it was found to baseless

or not. This constitutes a delay, interference.or hindrance to -

his Constitutional rights. This is an important question of

Constitutional law which i is in conflict between two United ~

States Courts and which has not as but ome be, settled .

by thie Court.

12

DISMISSAL OF PETITIONER FROM HIS FEDERAL EM-

PLOYMENT WAS VOID BEING IN VIOLATION OF THE.

_ VETERANS PREFERENCE ACT, § U.S.C. 863, IN TWO *,

RESPECTS: a a :

(a). There Was No Adequate Proof of the Charges

and of Intent to Commit a Fraud and Name

of Co-Conspirator Was not Provided, and

(b) His Appeal te the Civil Service Commission

Was Timely when Taken within a Reason- -

able Time after Recovering from a Mental

ncaa

ah

~

* — Section 14 of the Veterans Preference Act of 1944, 58 2

Stat. 387, as amended 5 U.S.C. 863, endows preference "

__ eligibles. with a bundle of rights, powers, privileges and-im-

_ munities. Among these are the right to be advised in x:

_ writing, prior to removal of the reasons therefore and the °

right to appeal to the Civil Service Commission within a

reasonable time. That Section of the Act reads in parts:.

‘‘No permanent or indefinite preference eligible,

#*** shall-be discharged, *** except for such cause

as will promote the efficiency of the service and

for reasons given in writipg; &** such preference. eli-

gible *** shall have the right to appeal to the Civil

Service Commission from an adverse decision of the

administrative officer so-acting, *** within a reason-

able length of time after the date of a of

‘notice of such adverse decision: ****.”

The Civil Service Commission requires the eat not

later than 10 days ‘after the adverse action, 5 CFR 752. 203 *

‘ -(b)(1) but the 10 days perida may be extended if ‘the indivi-

dual .was not aware of the decision or was prevented by cir-

cumstances beyond his control from appealing within the

time limit, 5 CFR 752.203(4). -

~~, -

© + 7

.

Petitioner’s removal was effective December 21, 1961; the _ 2

date of his return from Okinawa to his residence-in the &

United States. “(R 28, 51). The history and diagnosis of his

mental illness have not been controverted for the period. .

involved here. From December 21, 1961 to June 14, 1962,

_ he remained at home ill. (R 40). Because of an attempt at

suicide he-was confined as a mental patient on. June 14, 1962,

_in the Westborough. State. Hospital, Westborough, Massachu- °

ot

setts (R 65). That hospital is not permitted to release medical? —

records except upoh subpoena (R 64),. but it did te- -

lease Petitioner’s diagnosis and brief history. Its diagnosis was :

Petitioner was suffering from “Involutional, Psych¢ti¢ Reaction,

Depressive Reaction, manifested by depression, retardation, —

feelings of despairand hopelessness in the involutional age”

7 ~— and that this illness dated “back to about 9 months '

o” (R 65). On January 15, 1963, he was removed tor the

3 Vetere “Administration Hospital, Bedford, Massachusetts,

which on January 15, 1963 stated (R 69):

“This 59- year-old ihulatto NSC male hss : a history.

_ of moderate depression dating back to childhood

.. when his family life was broken due to the death of

his parents followed by a struggle for an education in

- which he ultimately succeeded. His present illness,

however, began in Japan when he married a native

girl while a civilian employee of the Af Force.”

And this diagnosis was provided (R 68): \::

“Involutional Psychotic Depressive Reaction in

partial remission.’ ‘

Thus, both. hospitals sae in substantial agreement that ©

‘ Petitioner was psychotic during the critical periods involved.

Theré is some hearsay upon hearsay statement, not under

oath, that the Personnel Officer in Okinawa checked’ with

Lt. Col. Wm. Hannum, USAMSG, on October 31, 1961, who .

4 ee he

é /

- related that he concluded Petitioner was capable of maturely

evaluating facts and had tne capacity to comprehend the .

importance of the actions taken. (R 89). There is nothing to

show the ‘doctor’s qualifications or whether he is a psychia- —

. trist, whether if ever he examined Petitioner and if so for how

long, and no facts are revelaed showing how the doctor

arrived at his diagnostic, conclusions. An opportunity to cross-

examine the doctor was not provided nor does it do s00 that

Petitioner knew of this medical opinion. .

The Veterans Hospital discharged Petitioner February 5,

1964 (R 67). On March 22, 1964, he appealed’ -his removal

_to the San Francisco Region, Civil Service Commission, setting’

forth his mental depression: (R/ 39, 40). That Office réplied

April 2, 1964, denying the-appeal as untimely (R 41) stating.

_- as to the illness that it relied. on Dr. Hannum’s conclusion in * —

_ Okinawa that Petitioner was competent. (R 42). That Re-

gional’ Office, however, knew of the conclusion of the Veterans

Administration that Petitioner, was totally disabled: since -

November 21, 1961 (R: 43), but chose to ignore this Govern- | ~

mental Agency’s medical diagnosis. Petitioner on April 8,

1964 appealed to the Board of Appeals and Review of the

Civil Service Commission which denied the appeal May 4, 1964

as untimely but further stated about the disability (R 51):

“The Board of Appeals and Review has given care-

ful consideration to the entire record in your case, in-

" cluding the fact that you have been awarded total

disability by the Veterans Administration. However,

the very fact that you, of someone in your behalf, =»

‘initiated the action with the Veterans Administration

*.Jeads the Board to the-assumption that a timely appeal

could also have been am to the Civil Service

- Commission.”

[But the Veterans iduiinistration itself, through its contact

representative at the Veterans Hospital, Bedford, Massachusetts,

<

¢

150

“instituted thé necessary action to waive the National Service.

Life Insurance premiums ‘because Petitioner was totally dis-

abled. (R 52). The Air Force ought to have been as tender

and hospitable and so should the Civil Service Commission

and its Regional Office. Petitioner in his letter to the Board _

of Appeals and Reyiew, May IT; 1964, advised that he had

initiated an appeal January 10, 1963 while a patient at .West-

borough State Hospital. This letter is not in the record but

is presumably in the Respondent’s files.

'. Since it is not factually’or medically properly questioned -

that Petitioner was suffering from, a psychosis there ought to

be an inquiry whether that mental condition blocked his abil-

ity to protect himself in.a personnel discharge but at the same

time did not preclude his working. This traumatic split and -

the mental illness and its effects are proper subjects for medical

experts. Mental health or illness has various re8ults and varies

from time to time in the same individual and under differing

circumstances. The terms “Psychosis”, “Involutional Depres-

sive Reaction” are merely slogans, or terms, and without ex-

pert medical opinion are meaningless. They must be related

to the person and to the time and circumstances. As was said

in Carter'v. United States, 102 U.S. App. D.C. 227, 236, 252

F.2d 608, 617 (1956): | |

“‘Mental ‘disease’ means mental illness. Mental ill-

nesses are of many sorts and have many characteris-

tics. They, like physical illnesses, are the subject mat-

ter of medical science. They differ widely in 6rigin, -

in characteristics, and in their effects on-a person’s

_ mental processes, his abilities, and his behavior. To

_ make a reasonable inference ‘concerning the relation- .

ship between the disease and a-certain act, the. trier

of the facts must be informed with some particularity.

This must-be done by testimony. Unexplained

medical labels — schizoplirenia, paranoia, psychosis, —

neurosis, psychopathy — are not enough. Descriptions

16

and explanation of the origin, development and mani-

festation of the: alleged disease are the chief functions

of the expert witness.” - (Emphasis added.) |

~

There is a genuine issue of material fact as to the neestil

illness and its traumatic effect which has not yet. been decided.

The Court of Claims’ Rule 64(d) precludes summary judgment .

if such issué exists and its own decision in Gernand v. United

States, 174 Ct.Cl. 936, 939 (1966) reaffirms it. .

| The Veterans Preterénce Act, as amplified by Civil Service

Regulations, was violated in another fashion. That Act re- |

quires the reasors for a discharge be stated in writing and

Federal Personnel Manual, Appendix C to Section.5, Proce-

dures under Part 22, Sec. A.2, requires these additional

safeguards:

“The notice must state any and all reasons support-:

ing the proposed action, specifically and in detail

(names, times, places, etc.). The reasons must be

given specifically enough, and insufficient detail, that

the employee may understand clearly the alleged

grounds for the proposed action, know the particular —

offenses or deficiencies charged against him,.and thus

_ be in a position to > submit his defense.****.” .

' Petitioner was charged with conspiracy which required

two actors. It is true that in criminal law the name of

the co-conspirator need not be given. Rogers. v.

United States, 71 S.Ct. 438, 443, 340 U.S. 367, 375. The .

Federal Personnel Manual, as noted ‘above, does require that

the name be given and the removal procedure was void for

that reason alone.

| After Petitioner’s case the lower court decided Urbina v.

_ United States, No. 113-63, May 12, 1967, as yet unreported.

Petitioner’s Motion for Reconsideration invited the court’s

wa

17

attention to this case (R 108). which voided Urbina’s rémoval.

Urbina was accused of making a <p claim: fof a rental allow-

“ance for a house which he allegedly owned in Okinawa. When

this allegation was disproved, the Government changed its

reasons for the removal contending he made a false claim

representing that he owned the house. The lower court held

this change of positions unfair. It went. further, however,

holding intent to cheat was required and that Urbina had

given plausible explanations of why title documents were made

out as they were. The house was titled in the name of

Urbina’s brother-in-law. Urbina had agreed to buy the house

and that is why he stated he owned it. Petitioner here plau- .

sibly and factually explained the title status of the house in-

volved. Title was in the maiden name of his Japanese wife

but in trust for their daughter. (R 47). He actually paid

rents to the trustee (R.47). Petitioner was accurate when he

reported he ‘did not own the house, having irrevocably con-

veyed title to another. He also could not have had intent to

commit a fraud. The Government inferred that title being in

the maiden name of the wife (R 23, 24) somehow showed

- fraud. Petitioner explainiéd this (R 26) saying “I must refer

-. you to Japanese law as the same applies to Okinawa as to

identity of persons” (R ‘26). |

The lower court dismissed Petitioner’s complaint saying

that he was in this dilemria: If the court upheld the Civil

Service Commission’s holding that the illness was not an ac-

ceptable’ excuse then the untimely appeals constituted a failure

to exhaust administrative remedies but if the court excused the

tardiness of the appeals and accepted the existence of the

debilitating illness then Petitioner could not recover because

he was “not ready, willing: and able to work” (R. 97). But

‘part of this dilemna was invoked by the court sua sponte.

‘It added the unpleaded defense of “not ready, willing and

able” and this contrary to its Rule 19 requiring that —

18

, affirmative defenses be pleaded. The lower court previously _

struck an unpleaded affirmative defense in Gmo. Niehaus &

Co. v. United States, 373 F.2d 944 (1967). Petitioner has,

- therefore, been denied equal application of the court’s own .

rules. He is as entitled to the benefit of that rule as‘was’

that company. : ane .

In view of the lack of medical evidence as to the trauma-

tic effect of the mental illness, both as to the timeliness of

the appeal and to his ability to work, this case was not —

for summary judgment.

A FEDERAL EMPLOYEE. ANSWERING A NOTICE OF

PROPOSED REMOVAL FROM EMPLOYMENT HAS A

FIRST AMENDMENT RIGHT TO INCLUDE HIS PETI-

TION FOR REDRESS OF GRIEVANCES AND A FAI- Sf

LURE BY THE GOVERNMENT TO MEANINGFULLY . “

PROCESS IT IS A SUBTLE INTERFERENCE WITH A

CONSTITUTIONAL RIGHT VOIDING THAT EM-

PLOYEE’S REMOVAL FROM EMPLOYMENT.

7

Amendment I to the Constitution, of the United States

_ provides for a Petition-for Redress of Grievances as follows:

“Congress shall make no law respecting an eqgablich

ment of religion, or prohibiting the free exercise there-

- of; or abridging the freedom of speech, or of the

press; or the right of the people peaceably to assemble,

and to petition the Government for a redress of

_griévances.”

In Swaaley v. United States, No. 405- 65, decided May 12,

_ 1967, as yet: unreported, the Court of Claims-tuled that .

federal.employees have the right to petition their agencies for

redress of grievances and that the statements contained therein

19

>

could not be used as grounds for removal, unless such state-

ments were made with knowledge they: were false or with

reckless disregard of their falsity relying on the libel principle. -—

in New York Times v. Sullivan, 376 U.S. 254 (1964). Swaaley,

- however, appears to be in conflict with the 240 1 opinion of

the United States Court of Appeals for the District of Coluim-

bia Circuit in Turner v. Kennedy, 118 U.S. App. D.C. 104,332

F.2d 304 (1964), Judge F ahy*dissenting. The majority did not

render an opinion but the facts were stated by Judge Fahy.

Here a federal employee was held properly discharged for

alleged false statementsfade to Congress. Judge Fahy dis-

sented contending that such statements were privileged since

they were made under the protection of the First Amendment

right of Petition for Redress ‘of Grievances and by 5 U.S.C.

652(d), 62. Stat. 356 (1948) giving federal employees the right

to petition Congress. which right shall not be denied or inter- .

fered with. -

A conflict therefore exists between two Courts of the -

United States which Petitioner believes this Court Should.

settle. -

Here, Petitioner’s statements were not slanderous, but

were made with good intentions and with a belief that they

were true. In response to the proposal advising of intent to

remove him he asked for an investigation calling attention to

the fact that the charges arose out of conditions at his place

of employment and that there had been another attempt to

remove him that had no substance and never materialized.

In his letter to the San Francisco Region, Civil Service Com-

mission, he said that he had been ganged upon through a whiper-

ing group and because of a political wrangle in his unit. He

became specific in his letter to the Civil Service Commission

(R 45, 46, 47) more fully related under Statement of the

Gase but which-in short stated: - ae iar

20 «

“In the organization to which I was assigned was a ,

woman employee who became my subordinate and .

who had tried to get the job to which I was assigned

- but failed for lack of qualifications. This woman at

-....the_outset and throughout my tenure of the job

conspired with the military superiors to discredit me

in order to get my-job. The writer is 1/20th colored

and this fact was suspected and used by this woman

to spread rumors and hate among assigned personnel.

This continued with each succeeding officer so that

at various times it was proposed to abolish my job,

reduce my grade and other harassing tactics used.

When a new Commander was assigned the same proc-

ess was used over dnd over. Then in 1960 a new

deputy to the Commander was assigned and it soon

became apparent that they did not see eye. to eye.

I was loyal to the Commander as required by my job

and this major was from Little Rock, Arkansas so

this woman. quickly sought to appeal to his aversion

to a person with color. Becatise of his dissention (sic)

with the Commander the organization suffered and in

1960 an IG annual inspection of the organization was

severely critical. The deputy tried to place the blame

for the poor showing of the organization on me since

because of rank he could not blame the Commander,

a Lt. Colonel. Finally through political and fraternal

- ‘associations he succeeded in having the Commander

relieved of his post and avowed to get me.”

The statements in all three of his petitions have never been

controverted by the Government and on summary judgment.

must be taken as true. Turner v. Kennedy, supra, dissent,

: 332 F.2d pp. 304-305.

Here, Petitioner’s first statement of grievances was before.

his removal and in answer to the charges. Whatever happened

‘to his letter of grievances has never come to light and whether

it was a contributing factor for his discharge cannot be deter-

mined without a hearing on the merits. This petition and the

EP LAA AIL tht te SAAR te ck

21

two forwarded to the Civil Service Commission required some

meaningful processing and a mere receiving of it without any

_ transmittal to proper effective authorities is a governmental

stifling of a fundamental right. Compare Bates v. City of

Little Rock, 361 U.S. 516,'523, 80 S.Ct. 412. ‘

This removal is void becayse of violation of Petitioner’s

| right to Petition for Redress of Grievances.

_ CONCLUSION __y

For the reasons stated herein, Petitioner prays that a

Writ of Certiorari-issue to review the erroneous. and unfair

judgment of the United States Court of Claims.

Respectfully’ submitted,

_ LAWRENCE J. SIMMONS

934 Shoreham Building

806-15th Street, N.W.

ae Washington, D.C. 20005

Counsel for Petitioner

Qo