Brief for the United States in Opposition — Grisham v. United States

: an the Supreme Court of the ited shies

Ocroser TERM, 1968

No. 300.

—— 5

ALBERT H. GRISHAM, PETITIONER

: Vv. ,

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

. STATES COURT OF CLAIMS

_ BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The opinion and findings of the Court of Claims

whee App. A. _20-35)~are Yeported at 392 F. 2d 980.

J URISDICTION

The judgment of the Court of Claims was cibuned

on April 19, 1968. The petition for a writ of certiorari

was filed July 17, 1968. The jurisdiction of this Court

is invoked under 28 U.S.C. 1255(1). |

. QUESTIONS PRESENTED

« 1. Whether, m applying the doctrine of laches to

~ a suit for back pay, the Court of Claims may consider

(1)°

316-869—68

. the period inte lrhich a discharged government

employee was in prison pursuant to a sentence of a

court-martial later held to have. been without juris-

diction over his person. —_

2. Whether, even if the er of confinement be

excluded, his delay of two years and ‘pine months

after his release before filing’ this suit bars’ the action

under the’ laches doctrine. ° ."

3. Whether petitioner’s action was barred for fail-

ure to exhaust his administrative remedies. Bt

STATEMENT ~

In 1952, petitidher, a civilian employee of the .

Army Corps of Engineeis, was temporarily assigned

to a military command of the United States Army,

for service in Orleans, France. On December 6, 1952,

petitioner was arrested by the French authorities for

murdering his wife. Shortly thereafter, the Army re-

‘quested jurisdiction over petitioner and the French

released him to American custody. On March 27,

1953, he was convicted of murder by 4 general court

martial. His conviction was approved by the review-

ing authorities, and the Court of Military Appeals

affirmed the findings and sentence in February 1954.

In the meantime, while awaiting trial, petitioner

had requested the Corps of Engineers to pay him for

his annual leave and then to carry him on leave with-

out pay until the situation was clarified. His request

was honored, and he was placed on leave-without-pay

status commencing February 24, 1953, when his an-.

nual leave was exhausted, fpending review of Court

Martial Sentence. yo On Heuruary 26, 1954, after the

conviction was affirmed by the Court of Military Ap-

peals, the Corps’of Engineers mailed to petitioner a

notice that he was to be separated from the service

for notorious misconduct. Petitioner, however, never

_Teceived this -notice; he testified that he, remained

_ under the impression that he was on leave without pay

until advised by an-employee of the Corps of Engi-

neers in October 1957, that he had been discharged.’

Later that month, relying on. this Court’s June 10,

1957, decision in Reid v. Covert, 354 U.S. 1, peti-

tioner—then confined at the federal penitentiary at

Lewisburg, Pennsylvania—filed a petition for a writ

of habeas corpus. The lower courts denied relief but

on January 18, 1960, this Court held that petitioner’s

court-martial had been without jurisdiction over him.

Grisham v. Hagan, 361 U.S. 278. Petitioner was re-

leased from confinenient on February 5, 1960.

At no time while petitioner was pursuing his habeas

corpus action through the courts did he protest his

discharge from the Corps of Engineers, either to the -

Corps of Engineers, to the Civil Service Commission,

or to the courts.* Nor did he make any protest for

nearly three years following this Court’s holding that

* But see Ct. Cl. Finding 31(a), Pet. App. 32. _

*In November of 1957 petitioner did apply to the Civil

Service Commission for a refund of the amount credited to

him in the retirement fund. In his application he indicated

that his service had ended on February 28, 1954 (Ct. Cl. Find-

ing 31(a), Pet. App. 32), From the filing of his habeas corpus

petition in October 1957, petitioner has been continuously repre-

sented by counsel (Ct. Cl. Finding 29(d), Pet. App. 32). See,

also, Grisham v. Taylor, 161 F. Supp. 112 (M.D. Pa.), affirmed,

261 F. 2d 204 (C.A. 3), reversed sub nom. Grisham v. Hagan,

361 U.S. 278.

ae F

his conviction was invalid. It was not until November

15, 1962, that he filed this action Seeking. to recover.

back pay for the period he was in pyison.

The Comrissioner of the Court of Claims held that

the suit. was barred by the six-year statute of limita-

BEPC PE a et ee

tions* and that, alternatively, petitioner’s delay of -

two years and’nine months in filing suit after his re-

lease from confinement constituted laches. The Court

of Claims found it necessary to discuss only the laches

“defense and held the action barred because filed more

than five years after October 1957—by which time.

Reid v. Covert had been decided and personer noti- ~

‘fied of his discharge. |

. ARGUMENT

. ‘Alteneh petitioner seeks. to relate this case to

United States v. Augenblick, pending on writ of cer-

tiorari, No. 45, this Term, the instant case involves

very different questions, presents an- unusual factual.

situation unlikely to recur, and \ was dormectty decided

below. .

1. The Court of Claims maaekaaiile held that pe- |

- titioner’s suit was barred by laches because of his

failure to sue until November 1962, five years after

learning of his discharge. Petitioner rested his claim

for back pay on the contention that under the Vet-

erans’ Preference Act and Ariny regulations (Pet.

App. 25) he was entitled to actual notice of his place-

’The Commissioner held that the statute started to run on

the date of discharge, February 28, 1954—and that since there

was no showing | of fraudulent concealment by the government,

petitioner’s ignorance of the claim until 1957 did not toll the .

statute.

a |

ment on leave without pay and of his’ impending dis-

charge, and that failure to follow these procedures

vitiated the personnel action taken.‘ This ground of

suit, however, was. available to petitioner in 1957,

after he learned of his discharge. Petitioner contends

(Pet. 11-12) that he could not have recovered in

1957, sinee his, claim for.back pay would have been —

' . met by the defense that a person may not recover

back pay for any period during which he was unable

to work. United States v. Wickersham, 201 ‘U.S. 390;

Everett v. United States, 169 Ct. Cl. 11, 15-16 (back

pay may not be recovered for period in which employee

was physically disabled from working). To meet this ;

defense, petitioner argues, he would have had to show

| ‘that his inability to work was caused ‘by imprison-

inent pursuant to an invalid’conviction which should.

not be applied against ‘him. But, he continues, the

invalidity of the conviction may only be established

-in a habeas corpus proceeding.’

The government has taken the ‘position that the

Court of Claims is without jurisdiction to review thé

ralidity of.court-martial convictions in military back-

pay eases, and this Court has granted certiorari to’

‘Thus, the case is unlike Augenblick, where removal from

the service was ordered by the sentence of an allegedly invalid

court-martial. Here petitioner's cause of action did not directly

involve the power vel non of the Court of Claims to review

court-martial convictions; rather, petitioner sought to invoke

that court’s authority to determine compliance with civilian ‘

personnel procedures.

* As explained in note 9, p. 8, infra, it is our view that the i in-

validity of petitioner’s conviction would not -negate the defense _

that he may not recover back pay for the period he was in

prison.

6

resolve the question.’ As a practical matter, however,

the Court of Claims in 1957 would have considered

petitioner’s contention that Ifis court-martial convic-

tion was invalid, if it were deemed relevant to his

claim. Ever since its decision in Shapiro v. United

States, 107. Ct. Cl. 650, 69 F. Supp. 205 (1947), the

Court of* Claims has asserted the power to review

court-martial convictions in back-pay actions, and. has

_ entertained numerous. such claims on the merits, Thus,

whatever remedy petitioner claims now, it was equally

available—or equally unavailable—to him in 1957. The

Court of Claims acted: reasonably in finding laches a _

bar when petitioner delayed so long before invoking

the consideration of the court. The court’s findings ‘of

excessive delay by petitioner and resulting prejudice ~

to the government (Pet. App. 24-26) are justified. ©

See, also, Jackson v. United States, 179 Ct. Cl. 29,

certiorari denied, 389 U.S. 985. The fear that the

government, might raise a troublesome affirmative

defense does not excuse a connequent delay in filing

suit.’ |

2. Moreover, as the commissioner of the Court of

. Claims held, petitioner. is chargeable with laches even

6 Augenblick v. United States and Juhi v. United States, 377

F. 2d 586, 383 F. 2d 1009 (Ct. Cl.), certiorari oe, 390

U.S. 1038.

7In challenging a defense that his incarceration oucitadil

_him from being ready, willing, and able to work, petitioner

might well have argued—as this Court held—that he was not sub-

' ject to the Uniform Code af Military Justice, under which he

was court-martialed. In that context, the finality clause of the

Code, 10 U.S.C. 876, which we argue in Augenblick precludes

collateral review of a court-martial, may be inapplicable to a

civilian not subject to the Code.

Pe

if his period of imprisonment’ is excluded: from ¢on-

.. sideration. He waited two years and nine months after —

his release from confinement before bringing suit.

Much shorter periods of delay have been held to war- -

rant application of laches to back pay actions. Arant .

v. Lane, 249 U.S. 367 (1 year and 8 months) ; Norri 1S

v. United States, 257 U.S. 77 @L1 months) ; Grasse V.-

Snyder, 192 F,' 2d 35 (C.A.D.C.) (1 year and 4.

months) ; ef. Jones V. Summerfield, 265 F. 2d 124

“ (C.A.D.C.), certiorari denied, 361 U.S. 841 (2 years.

and 9 months). As this Court stated in Arant v. Lane,

supra (249 U.S. at 372):

‘When a public official is unlawfully removed |

from. office, * * * obvious considerations’. of

public policy make it of first importance that

he should promptly take the action requisite to

effectively assert his rights, to the end that, if

his contention be justified, the- Government

service may be disturbed as little as possible

and that two salaries shall- not: be paid for a

single service.

3. Even if laches were > not applicable, petitioner’s—

suit would be barred by his failure to exhaust ad-

ministrative remedies. As a veterans-preference eligi- _

ble, petitioner was entitled to appeal his removal to

the Civil Service Commission. In 1957, when he first

learned of his removal, he had legal: counsel (see

n. 2, supra) and thus cannot plead ignorance of his

rights.* It has been held repeatedly that an employee °

who does not pursue his appellate remedy in the Civil

| ® Civil Service Commission regulations required an appeal to

be filed within 10 days of the adverse action—which occurred

here ‘on February 28, 1954. However, the regulations provided®

8

Service Commission may not later challenge the basis —

for his removal. See, :e.g., Hatton v. United States,

173 Ct. Cl. 1187, certiorari, denied, 384 U.S. 965;

Blackmar v. United States, 354 F. 2d 340 (Ct. Cl.).

Requiring a claimant. to -exhaust administrative

remedies permits. the government to correct errors on’

the administrative level, and thus to mitigate or avoid

large damage claims that might otherwise be created.

United States v. Holpuch Co., 328 U.S. 234, 239, Thus,

if petitioner had promptly applied to the Civil Serv-

ice Commission for relief in October 1957, and the

Commission had determined that the removal proce-_

dure violated the Veterans Preference Act, the Corps

of Engineers could then have pursued proper pro-

cedures to avoid further accrual of a back pay claim.’

for an ion, in the discretion of the Commission, “upon

« showing by the employee that he was not notified of the.

applicable time: limit and was not. otherwise aware of the Jimit

or that circumstances beyond his control prevented him. from’

filing an appeal within the prescribed time limit.” Section

99.302(d), 20 Fed. ‘Reg.- 2701 (April 23, 1955). There is no .

' “peason to believe that the Commission would have refused to

waive the time limit, upon a showing that petitioner did not

learn of his discharge until October "1957. Petitioner’s habeas

corpus action, in which he was represented by counsel, was filed

on October 26, 1957, only 15 days ‘after the date of the letter

by which petitioner claims that he was = informed of his .

Giemharge.

* Since the Court of Claims found it unnecessary to reach

the ‘merits of petitioner’s suit, we shall do no more than sug-

gest that he would not have prevailed even if the suit were.

entertained. Recovery in back pay actions is limited to those

periods during which the claimant would have been able to

work, had he not been discharged. See United States v. Wicker- —

sham, supra, 201 U.S. at 399-400. And under the Back Pay Act, 5

U.S.C. 5596, an-employee may recover only the pay which: he

Nye A eth " pe ares ™ ona .

ab Hd nei Ae NE Lit BOR Bhi LE A ScD ti al Ae alt te le lt 19h Bt ea be St RPI hoe

ai ‘Siok i oj laid CEE Sip ON rs aS - : ae sais. ln cumcaaapea wi siti m

e . ‘ . .

9

CONCLUSION

. The 5 petition for a writ of certiorari oa there-

fore be denied.

re: submitted. ee :

Erwin N. Griswo.p,

* Solicitor General.

‘ Epw1n L. WEHISL, Jr.,

‘ | Assistant Attorney General.

doun C. E prince,

RoBERT V. ZENER,

- Attorneys.

Avaust 1968 = - ‘

es

¢

“normally would have earned during that period if the [defec-

tive] personnel action had notzeceurred”. Here, if petitioner had

not been removed, -he would have continued on leave-without-pay .

status, as’ he had requested, and would- in addition have. been

unavailable for work. His loss of pay was the consequence, not

of the failure to afford him actual notice of the impending dis-

missal, but rather of his inability to render service during con-

finement. It is, of course, not the funetion of back pay actions to

award damages for a criminal conviction that is later over- -

turned. Congress has provided a remedy in.some such cases, but

petitioner cannot avail himself of it. Thus, the ‘Court of Claims

may award damages of up to $5,000 to any person whose con-

- vietion of an offense against the United States, including a

court-martial (see Roberson v. United States, 129. Ct. Cl. 581,

certiorari denied, 349 U.S. 954), is set aside on ‘grounds of

~ innocence. 28 U.S.C. 1495, 2513. Petitioner’s conviction, how-

ever, was not set aside.an grounds of innocence, and it seems

likely that his back pay recovery would exceed $5,000. Thus

his. action is, in effect, an attempt to extend the Scope of the

unjust conviction” statute. '

-

yy /

«

‘

U.S. GOVERNMENT PRINTING OFFICE: 1968