Petition for Writ of Certiorari — Norman v. United States

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EME COURT. I). &

no, 0 2 6 OCT 14 106g

» CLERK

IN THE

senate Court of the Uniten States

OCTOBER TERM, 1968

RoscoE L. NORMAN, ET AL.,

Petitioners,

¥.

THE UNITED STATES,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF CLAIMS

RICHARD L. MERRICK

802 Junie Court

Joliet, Illinois 60435

Attorney for Petitioners

Norman, Crowley, Buckland,

Fitzgerald and Buckey

CLIFFORD A. DOUGHERTY

Securities Building

2007 North Fifteenth Street

Arlington, Virginia 22216

Attorney for Petitioner Martin

SRC na

WILSON - EPES PRINTING Co. - RE 7-6002 - WASHINGTON, D. C. 20001

LVS EITARS. SNE

LE GLEP ILE LE LILES EN ILE VOL LON ETS

orn

INDEX

Page

Appendix : ; la-5la

Conclusion oe 16

Decision Below Constitutes Departure from Usual

Course of Judicial Proceedings 4, 8-13

Does Temporary Statute Repeal or Suspend Permanent

ones al 13

Federal Questions Involved ? 4,6, 7,8

a cae caeeenaiohaadebaiies 2

Misrepresentations of Air Force to Procure Enactment

of White Charger Act ah ices leaicenciasiaidasbtescisniiae 8,9

New Statute and New Questions Involved 6

Opinion of Court of Claims.............................. 1, 2, 8, 18, 1a-48a

Proceedings and Opinion Beiow 1, 2, 8, 13, la-48a

Questions Presented a 2,3, 4

Reasons for Granting the Writ 4,16

Secretary of Air Force Unlawfully Delegated Discre-

tion a 5

UT csc ceesincasacnconnncsenciuienenuniaonaccbs 4

Unlawful Delegation of Discretion fe 14, 15

Vested Rights, Creation of : 7

White Charger Act Unconstitutional -............000....... 5

STATUTES MENTIONED

Act of June 4, 1920, 41 Stat. 758 ....... ‘ |

Sec. 10, Act of Juiy 12, 1960, P. L. 86-616, 74 Stat.

___ GREE ene OE Ela ane Rees 2, 3, 6, 11, 18, 14, 49a

Sec. 8916, Title 10, United States Code 3, 6, 50a

Sec. 8921, Title 10, United States Code 3, 6, 50a

INDEX (Continued)

Page

Sec. 8963, Title 10, United States Code -.....00....0..... 3

Sec. 1255(1), Title 28, United States Code ............. 2

White Charger Act (Sec. 10, Act of July 12,

IIE. ‘ibdissnnnedimcacinniteadincamicidsaadadud 2,3, 10, 11, 13, 14, 49a

OTHER AUTHORITIES

11 Am. Jur. 1200, Sec. 371, 16 Am. Jur.2d 762,

SOS IIE accion baitiedh i Niicalasdlcetilee actuated alana atacce ies 7

Constitution of United States, Article I, See. 8 ...... 14

TABLE OF CASES

Andrews v. U. S., 175 Ct. Cls. 561 (1966) ............... 13

Barber v. Gladden, 385 U. S. 363, 364 (1966) ......... 7

Barber v. Page, 390 U.S. 719, 88 S. Ct. 1318

SE cchbcensaaveabcsdestienteasalimnbaniad cath ons abinadaiekenecenethies 7

Barnes v. Northwest Air Lines, 223 Minn. 410, 433,

if i. Sf Se Gt | RRR On Ena eae 7

Beard v. Stahr, 370 U.S. 41, 43 (Dissenting Opin-

a ae 6

Cudahy Packing Co. v. Holland, Administrator of

the Wage and Hour Division of the Department

of Labor, 315 U.S. 357, 363, 367, 86 L. Ed. 895,

a I I aeons salicnicas orb seenesinrmnteogosuncs 15

Fletcher v. U. S., Ct. Cls. No. 386- 65, Decided

A LE, | SOLES 7

Greene v. McElroy, 360 U.S. 474, 496 (1959) ......... 6

Kirby v. U. S., 174 U.S. 47, 55, 56 (1899) 2022. 7

Panama Refining Co. v. Ryan, 293 U.S. 388, 55 S.

ee Fe i | OE 5

Schechter Poultry Corp. v. U. S., 295 U.S. 495,

55 S. Ct. 837, 79 L. Ed. 1570 (1935)... 5

Slochower v. Board of Higher Education, 350 U.S.

RE III inhi nacacaceiansamaccevaaeniomnnsintuanaabeakiemeniais 7

State Board of Milk Control v. Newark Milk Co.,

118 N. J. 504, 521, 522, 179 A. 116, 125 (1935)... 5

State v. Traffic Telephone Workers Federation, 66

Ad. G6 (KN. J. Sup. Ct. 1968)...

INDEX (Continued)

State ex rel Lum v. Archibald, 43 Minn 328, 45

Bs eh IE eherkicncevederemervneendansameanvincaiin

Symons v. Klinger, 372 F. 2d 47 (9th Cir.) cert.

A, Te Wee RO CED vecieeterictectomnn

United Public Workers v. Mitchell, 330 U.S. 75

UIE: Se otiaddieieetstivecsebia-taspiede a tin sadamncielbbaiaiasaniioentea

Veix v. Seneca Bldg. & Loan Assoc., 126 N. J. L.

Se Fe |: Fe. |: | Reece

Williams v. Zuckert, 371 U.S. 531, 534 (cert.

granted on rehearing) 372 U.S. 765 (1963)

Weiman v. Updegraff, 344 U.S. 183 (1952)

see ewe we etn eee

iii

a as ed

IN THE

Suprenve Court of the United States

OCTOBER TERM, 1968

No.

RoscoE L. NORMAN, ET AL.,

Petitioners,

THE UNITED STATES,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF CLAIMS

Petitioners, Roscoe L. Norman, John E. Crowley, Sher-

wood E. Buckland, Maurice J. Fitzgerald, Loran E. Buck-

ey, and John B. Martin, plaintiffs in the court below,

pray that a writ of certiorari issue to review the judg-

ment of the United States Court of Claims, filed March

15, 1968, which became final on July 17, 1968, upon the

denial of plaintiffs’ motion for a new trial and reassign-

ment of their cases to a different judge of said Court of

Claims.

PROCEEDINGS AND OPINION BELOW

The six cases involved herein were filed separately,

were consolidated for hearing by a Commissioner of the

Court below on his own motivn, and were heard by him

at Washington, District of Columbia, on January 19, 20

and 21, 1966. The Commissioner filed a report on Febru-

ary 2, 1967, containing a “Memorandum Opinion”, find-

ings of fact and a recommended conclusion of law. On

June 5, 1967, the six plaintiffs, by counsel, filed excep-

tions and objections to the Commissioner’s Report and a

48 page brief in support thereof. Government counsel

filed a brief in opposition on August 9, 1967.

The cases were argued before the Court of Claims on

December 6, 1967, and on March 15, 1968, the Court filed

a 48 page opinion containing a so-called “Conclusion of

Law” “that plaintiffs are not entitled to recover” and

“their petitions are dismissed.”

On May 16, 1968, plaintiffs filed a motion for a new

trial and reassignment of their cases to a different judge

of the Court of Claims. On July 17, 1968, the Court of

Claims denied that motion.

JURISDICTION

The jurisdiction of this Court is invoked under the pro-

visions of Title 28, United States Code, Section 1255(1).

QUESTIONS PRESENTED

The questions to be decided are new, arise under a new

and unusual statute not previously construed by any

court, and are as follows:

1. Unconstitutionality of Section 10 of the Act of July

12, 1960, Public Law 86-616, 74 Stat. 395, a temporary

statute, commonly referred to as the “White Charger

Act”, for faiiure of the Congress to provide standards

for the exercise of Congressional discretion conferred cn

the Secretary of the Air Force only; denial to plaintiffs

of their constitutional rights of due process of law, in-

cluding a hearing, confrontation, cross-examination, and

representation by counsel; and because enactment thereof

was procured by the United States Air Force by misrep-

resentations made to the Congress.

2. The decision by the United States Court of Claims

of a federal question of substance not previously deter-

mined by this Court.

3. The decision by the United States Court of Claims

of an important question of federal law which should be

settled by this Court.

4, The decision by the United States Court of Claims

in these cases so far departs from the accepted and usual

course of judicial proceedings as to call for the exercise

of this Court’s powers of supervision.

5. Whether Section 10 of the Act of July 12, 1960, a

temporary statute, has the effect of suspending or tempo-

rarily repealing Sections 8916 and 8921 of Title 10,

United States Code, permanent statutory provisions, vest-

ing in plaintiffs the right to remain on active duty for

28 years as lieutenant colonels and 30 years as colonels

in the regular United States Air Force.

(Fo. the convenience of this Court, the statutes men-

tioned in this paragraph and the opinion of the

Court below are printed in the appendix hereto)

6. The unlawful delegation by the Secretary of the

Air Force of Congressional discretion conferred on him

only by said Section 10 of the Act of July 12, 1960, thus

rendering the premature mandatory retirement of plain-

tiffs void and ineffectual.

The foregoing questions are discussed in the following

pages of this petition.

STATUTES INVOLVED

Section 10 of the Act of July 12, 1960, Public Law

86-616, 74 Stat. 395. —

Section 8916 of Title 10, United States Code

Section 8921 of Title 10, United States Code

Section 8963 of Title 10, United States Code

STATEMENT OF THE CASES

The six plaintiffs involved herein were lieutenant colo-

nels and colonels in the Regular United States Air Force

rio accepted their appointments with the intention of

making service in the Air Force their careers and of re-

maining on duty until they became entitled to retirement

for length of service. By statutes in force at that time

the terms of office of lieutenant colonels and colonels were

28 and 30 years respectively. Plaintiffs served honorably,

faithfully and to the entire satisfaction of their superior

officers for more than 20 years, but were retired manda-

torily under Section 10 of the Act of July 12, 1960, the

enactment of which, as hereinafter shown, was procured

by misrepresentations and misstatements made to the

Congress by the Air Force. Plaintiffs’ premature forced

retirements resulted in materially reduced incomes at a

time when maximum incomes were necessary for the sup-

port of their families, education of their children, and

discharge of other necessary financial obligations.

REASONS FOR GRANTING THE WRIT

1. The statute involved (Sec. 10, Act of July 12, 1960)

is unconstitutional and should have been so found by the

Court of Claims.

2. The questions to be decided are new and arose under

a new and unusual temporary statute not previously con-

strued by any court; namely, Section 10 of the Act of

July 12, 1960.

3. The Court of Claims has deci‘ed federal] questions

of substance not theretofore determined by this Court,

but which should be settled by this Court.

4. The decision below constitutes such a departure

from the usual course of judicial proceedings as tv call

for the exercise of the powers of supervision of this

Court.

5. Even if the statute should be found to be constitu-

tional, the Secretary of the United States Air Force un-

lawfully attempted to delegate Congressional discretion

conferred only upon him without authority from the Con-

gress therefor.

1. The White Charger Statute is Unconstitutional.

Section 10 of the Act of July 12, 1960, is unconstitu-

tional and void because (1) it attempted to confer on the

Secretary of the Air Force the legislative discretion to

reduce the strength of the Air Force by the retirement

mandatorily of permanently commissioned officers of the

Regular Air Force before completion of their statutory

tenures of office without prescribing any standards or

methods of selecting such officers and without affording

them any of the usual constitutional rights of a hearing,

confrontation, cross-examination or representation by

counsel. Under the terms of the statute as enacted, the

Secretary of the Air Force could retire mandatorily the

youngest, the oldest, the tallest, the shortest, the thinnest

or heaviest officers, or all graduates of a particular col-

lege, or those with blue eyes, who had served at least 20

years and had been passed over for promotion more than

twice.

Legislative standards for the exercise of delegated leg-

islative discretion are essential] to the validity of such a

statute.

Panama Refining Co. v. Ryan, 293 U. S. 388, 55 S.

Ct. 241, 72 L. Ed. 446 (1935)

Schechter Poultry Corp. v. U. 8., 295 U. S. 495, 55

S. Ct. 837, 79 L. Ed. 1570 (1935)

State Board of Milk Control v. Newark Milk Co., 118

N. J. 504, 521, 522; 179 A. 116, 125 (1935)

Veix v. Seneca Bldg. & Loan Assoc., 126 N. J. L.

314, 321, 19 A. 2d 215 (1941)

State v. Traffic Telephone Workers Federation, 66

A. 2d 616 (N. J. Sup. Ct. 1949)

2. New Statute and New Questions Involved.

Section 10 of the Act of July 12, 1960 (74 Stat. 595),

a temporary statute, constitutes a radical] legislative de-

parture from usual statutory provisions of a somewhat

similar nature, because it purported to vest in the Secre-

tary of the Air Force the temporary authority and power

summarily to retire commissioned officers of the Regular

United States Ais Force of the ranks of lieutenant colonel

and colonel as being marginal, marginally effective, un-

satisfactory or substandard before they had served their

terms of office fixed by permanent statutes without af-

fording such officers the requisite constitutional rights of

a hearing, confrontation and cross-examination.

By Sections 8916 and 8921 of Title 10, United States

Code, lieutenant colonels and colonels were required to

serve at least 28 and 30 years, respectively, before be-

coming entitled to retirement for length of service. In

other words, their statutory terms of office were 28 and

30 years. Plaintiffs were summarily and mandatorily re-

tired at reduced retirement pay before completion of

their terms of office.

3. Federal Questions of Substance Are Involved.

Plaintiffs maintain that they had vested rights in their

offices of which they could be deprived only by due process

of law. Where an officer’s tenure of office is fixed by

statute, as here, before he can be deprived of his office

against his will, he is entitled to a hearing, to be repre-

sented by counsel, to be confronted by his accusers, and

to cross-examine them, as well as to exercise the right

to challenge members of the hearing agency or court.

Plaintiffs were denied all such rights.

Confrontation and cross-examination are “vital when

one’s employment rights are involved”.

Greene v. McElrov. 360 U. S. 474, 496 (1959)

Beard v. Stahr, 370 U. S. 41, 48 ied opin-

ion) (1962)

Williams v. Zuckert, 371 U. S. 531, 534, cert. granted

on rehearing 372 U. S. 765 (1963)

Barnes v. Northwest Airlines, 233 Minn. 410, 433,

47 N. W. 2d 180, 193 (1951)

Symons v. Klinger, 372 F. 2d 47 (9th Cir.), cert.

denied 386 U. S. 1040 (1967)

Barber v. Page, 390 U. S. 719, 88 S. Ct. 1818 (1968)

Barber v. Gladden, 385 U. S. 368, 364 (1966)

Fletcher v. U.S.Ct. Cls. No. 386-65, decided March

15, 1968

The right of confrontation is “one of the fundamentals

of life and liberty”.

Kirby v. U. S8., 174 U. S. 47, 55, 56 (1899)

Plaintiffs’ interests in their employment were entitled

to constitutional protection.

United Public Workers v. Mitchell, 330 U. S. 75

(1947)

Weiman v. Updegraff, 344 U. S. 183 (1952)

Slochower v. Board of Higher Education, 350 U. S.

551 (1956)

“Vested rights may be created by common law, by

Statute, or by contract. No matter how created they are

entitled to the same protection.”

11 Am, Jur. 1200, Sec. 371, 16 Am. Jur. 2d 762,

Sec. 422.

Plaintiffs’ rights to remain on duty for 28 and 30 years

were created by statute and plaintiffs could be deprived

thereof only by due process of law. As stated above, they

were denied due process of law.

Following the First World War, the Army was over-

staffed with commissioned officers. Authority was request-

ed of the Congress to reduce the commissioned strength

of the Army. The Congress enacted the Act of June 4,

1920, 41 Stat. 758, 773, Sec. 246, which provided for

placing Army officers in Classes A and B. Those in Class

A were to be retained in the service, and those in Class

B were to be eliminated. In enacting that statute, Con-

gress carefully safe-guarded the rights of such officers by

authorizing them to show cause as to why they should

not be eliminated from active service, to have a formal

hearing before a Court of Inquiry, to appeal their cases

to the Secretary of War and then to the President. We

contend that the least that should have been granted to

plaintiffs was a hearing, the rights of conirontation and

cross-examination, and representation by counsel. Con-

stitutional rights certainly are federal questions of sub-

stance, are invclved in plaintiffs’ cases, anu this Court

properly should settle those questions.

4. The Decision Below Departs From the Usual

Course of Judicial Proceedings.

As we have shown above, plaintiffs were denied the

constitutional rights of a hearing, confrontation and

cross-examination before their mandatory premature re-

tirements were effected.

Prior to during, and after 1958, the Department of the

Air Force sought legislative authority for the elimina-

tion from the active list by mandatory retirement of a

“small number” of “marginal”, “marginally effective’,

“unsatisfactory” and “substandard” lieutenant colonels

and colonels.

To procure enactmert of such legislation, the Depart-

ment of the Air FKurce represented to the Congress that

it expected to eliminate about “a hundred (such officers)

and then their problem will be solved”; “it is our hope

to use this permissive legislation, if passed, very sparing-

ly to eliminate only the very bottom in these grades”;

“Therefore, in the interest of good personnel manage-

ment, the Air Force would like the authority to involun-

tarily retire a certain few of these officers”. “Based upon

an examination of the records of the officers concerned,

it is estimated that from 100 to 200 permanent lieuten-

ant-colonels will be retired the first year.” “In this grade

(colonel) the proposed law limits the number who may

be involuntarily retired to 20 percent of those considered.

This means that 40 would be the maximum number that

could be eliminated in any particuiar year. Based on an

examination of the records of these officers, it is estimated

that approximately 25 would be retired the first year.”

“The primary purpose of this (legislation) is to give us

a management tool to eliminate from the service margi-

nally effective officers.” “* * * we currently think we

vould probably eliminate 25 colonels.” “* * * we have

today approximately 600 permanent colonels serving in

the active grade of colonel. “* * * if this legislation were

passed we would involuntarily retire 25”.

(See Transcript of Hearing before a Subcommittee

of the Committee on Armed Services, United States

Senate, on S. 1795, June 17, 1959, Pages 16, 39, 40,

41, 42)

The evidence in the record before the Court of Claims

and this Court conclusively and definitely shows that each

of the plaintiffs was classified by superior officers under

the Air Force’s rating system as “A Very Fine Officer of

Great Value to the Service’, the rating category next to

the highest used. None of the plaintiffs was classified or

characterized as “marginal”, “marginally effective”, “sub-

standard” or “unsatisfactory.”

Instead of retiring 25 colonels and 100 to 200 lieuten-

ant colonels tne first year, the Air Force, less than seven

months after passage of the White Charger statute, ac-

tually directed the retirement of 120 colonels and 375

lieutenant colonels, nearly five times the number of colo-

nels and three times the number of lieutenant colonels

which the Air Force represented to the Congress it want-

ed to retire. The Air Force deliberately misled the Con-

gress into enactment of Section 10 of the Act of July 12,

1960. (Commissioner’s Memorandum Opinion, pp. 19-

20)

The court below failed to give any weight to the actions

of the Air Force in procuring enactment of the White

Charger statute by misrepresentations.

In the second paragraph on Page 2 of the opinion of

the Court below, the following appears:

“* * * The Act permitted early mandatory retire-

ment of not to exceed 20 per cent of officers in the

military service in the grade of permanent colonel

and an unlimited number of permanent colonels with

20 years or more of service who had been considered

fer promotion twice, but not recommended.”

Those statements are erroneous in several respects. The

pertinent provisions of the so-called White Charger Act,

(P.L. 86-616, 74 Stat. 395) are as follows:

“(a) Not more ths once in each fiscal year, the

* * * Secretary of the Air Force may convene one

or more boards, * * * to review the records of, and

recommend for continuation on the active list, offi-

cers * * * in the regular grade of colonel or lieuten-

ant colonel who have at least 20 years of service

* * * and who have been considered more than twice

but not recommended for promotion * * *.

“(b) A board convened under this section shall

recommend officers for continuation on the active list

in the number specified by the Secretary. The Sec-

retary may specify separate numbers for particular

categories of officers. However, except with respect

to the first board convened under this section * * *

in the Air Force, the number specified by him for

officers in any category must be at least 80 per cent

of the officers in that category being considered.

* * * (See pp. 5 and 6 of Court’s opinion where

pertinent provisions of the Act appear).

Accordingly, it is self-evident that the statements in

the Court’s opinion that the Act permitted early manda-

tory retirement of not to exceed 20 percent of officers in

the grade of permanent colonel and an unlimited number

of permanent colonels with 20 years or more of service

who had been considered for promotion twice are incor-

rect and inaccurate. The officers subject to mandatory

retirement included both colonels and lieutenant colonels

and was limited to such officers with at least 20 years

of service who had been passed over for promotion three

or more times. Furthermore, the limitation of 20 per cent

applied to boards subsequent to the first board convened

under the act. (Third sentence of Par. (b) of Sec. 10

of Act, beginning in 4th line). An unlimited number of

officers might have been specified for continuation on the

active list by the Secretary fox the first board, after which

the number specified must have been at least 80 per cent

of the officers in a particular category. The Act further

provided that

“* * * if the Secretary approves the report of a

board, he shall, not later than the first day of the

seventh month beginning after he approves that re-

port, retire each officer who is considered but not

recommended for continuation.”

Also, the statement in the opinion of the Court below

to the effect that the Act applied to officers “who had

been considered for promotion twice” but not recommend-

ed, is incorrect. The Act provided that it related to offi-

cers “who have been considered more than twice.” (Last

two lines of Par. (a) of Sec. 10). “More than twice”

means at ieast three times and not twice, as stated in

the Court’s opinion.

Plaintiffs filed a motion for a new trial and reassign-

ment of their cases to a different judge on May 16, 1968,

in which they carefully pointed out the erroneous portions

of the Court’s opinion, but the Court denied that motion

without comment. The Court’s decision, therefore, con-

stitutes a radical departure from the usual course of judi-

cial proceedings. Practically all courts are meticulous and

careful to avoid inaccuracies and misstatements of fact

and law in their opinions. An inaccurate opinion under-

both lawyers and litigants usually have for judicial deci-

sions. Furthermore, the glaring inaccuracies mentioned

above indicate a careless and superficial] examination and

reading of the statute involved.

In addition to the erroneous statements mentioned

above, the Court’s opinion, in the last paragraph on page

3, *outains the statement that “responsible officials of the

Air Force became concerned as to the quality of service

of some of these senior officers’’, etc.

There is absolutely no evidence in the record in these

cases that any “responsible” or other “officials of the Air

Force” or any other component of the Armed Services of

the United States became concerned as to the quality of

the service of any of the six plaintiffs in these proceed-

ings. On the contrary, each was, as already stated, rated

as “A Very Fine Officer of Great Value to the Service”

and in a number of instances as “Outstanding”. There-

fore, the statements quoted above have no proper place

in the opinion of the Court below, and constitute an un-

just, unsupported reflection upon sincere, upright, com-

petent and efficient officers of high calibre, who served

with distinction in peace and war. The Court below,

therefore departed from the truth, contrary to the usual

course of judicial proceedings.

Again on page 5 of the Court’s opinion there are quo-

tations from the 1957 report of the Cordiner Committee

on Professional and Technical Compensation, including

the following:

“* * * Having failed of selection for promotion

and being in the sanctuary of this provision, these

officers have not continued to produce with customary

effectiveness. * * *” (about middle of page).

Those words have absolutely no application to plain-

tiffs. On the contrary, the only evidence before the Court

below conclusively shows that all of the plaintiffs con-

tinued to perform their duties up to the very hour of

their mandatory retirements in a manner entirely satis-

factory to the superior officers under whom they served,

as well as their contemporaries. In this respect the

Court’s opinion again departs from the usual course of

judicial proceedings. The portions of the opinion quoted

above improperly and unjustly reflect upon the plaintiffs

and should be deleted therefrom.

Furthermore, at page 7 of the opinion of the Court

below are found inaccuracies believed to call for the exer-

cise of the supervisory powers of this Court. There the

case of Charles L. Andrews et al. v. United States, 175

Ct. Cls. 561 (1966) is cited as an applicable precedent in

these proceedings. That case is not an applicable or per-

suasive precedent in the cases involved here. In that case,

the plaintiffs had served the full period of time required

by the Uniform Pay Act of 1963. In the present cases,

plaintiffs’ statutory periods of service were cut short by

their mandatory retirements, they were deprived sum-

m«rily of the right to serve the periods fixed by the ap-

plicable statutes, and their rates of retired pay were ma-

terially reduced thereby.

Certiorari should be granted by this Court and the

Court below should be directed to eliminate from its opin-

ien all reflections upon the character of the service of

plaintiffs.

5. Does Temporary Statute Repeal or Suspend Permanent

Statutes?

This seems to be a novel question. The situation in

these cases suggests the query whether Section 10 of the

Act of July 12, 1960, which had a life of five years and

expired July 12, 1965, by implication, repealed or sus-

pended Sections 8916(a) and 8921(a) of Title 10, United

States Code, permanent statutory provisions which have

been in effect for 20 years. (Act of August 7, 1947, 61

Stat. 605). Section 10 contains no language even sug-

gesting that a repeal or suspension of the provisions of

Sections 8916(a) and 8921(a) of Title 10 was intended.

Construing all three statutory provisions together and

giving effect to all seems to be impossible. Therefore, the

permanent statutory provisions should prevail.

Repeals by implication are not favored in the law.

State ex rel Lum v. Archibald, 43 Minn. 328, 45

N. W. 606, (1890).

Section 10 of the Act of July 12, 1960, seems to have

had no actual force and effect, and that plaintiffs’ retire-

ments thereunder are wholly void.

6. Unlawful Delegation of Legisiative Discretion.

Article I, Section 8, of the Constitution of the United

States provides that all legislative powers granted are

vested in the Congress, and that the Congress shall have

power “To make Rules for the Government and Regula-

tion of the land and naval Forces.” No other agency, de-

partment or officer has any authority or power to increase,

reduce or otherwise affect the strength of the military

forces of the United States unless empowered by appro-

priate Congressional legislation to do so.

In enacting Section 10 of the Act of July 12, 1960, the

Congress, as heretofore pointed out, did not prescribe any

standards for the selection of the officers to be retained

on the active list or those to be retired mandatorily, and

did not authorize the Secretary of the Air Force to dele-

gate to anyone else the legislative discretion conferred

upon him by said Act to reduce the strength of the Air

Force by mandatorily retiring commissioned officers. The

Act specifically and definitely provides that

“(a) * * * the * * * Secretary of the Air Force

may convene one or more boards * * * to review the

records of, and recommend for continuaticn un the

active list, officers of that component * * *.

no a ere an emene emecenE <o

“(b) A board convened under this section shall

recommend officers for continuation on the active list

in the number specified by the Secretary * * *.

“(c) * * * if the Secretary approves the report of

a board, he shall * * * retire each officer who is con-

sidered but not recommended for continuation.”

Notwithstanding the fact that the statute limited the

power and authori.y to convene selection boards and to

specify the number of officers to be continued on the ac-

tive list to the Secretary of the Air Force, and did not

authorize him to delegate either of those powers to others,

the selection board which considered plaintiffs’ cases was

appointed by the Assistant Vice Chief of Staff of the Air

Force. The order of the Aiv Force appointing a “Screen-

ing Board”, the board “to review the records” of officers,

despite the statement therein that “the law requires that

the Secretary of the Air Force specify the exact number

to be continued on active duty”, directed that “The Letter

of Instructions to the Central Board will, * * * delegate

to the Deputy Chief of Staff, Personnel, authority to spe-

cify for the Secretary of the Air Force the exact number

in each group to be cortinued on active duty * * *”. The

order appointing the selection board directed that “With-

in the percentages specified above, the Deputy Chief of

Staff, Personnel, shal] establish for the Secretary of the

Air Force * * * the exact number of officers in each grade

to be selected for continuation on the active list * * *”.

Since the statute did not confer the power on the Secre-

tary to delegate his discretionary authority and power

mentioned above, it would follow, as a matter of course,

that ail acts performed under delegated powers are void,

and plaintiffs’ retirements likewise are void.

In the case of Cudahy Packing Co. v. Holland, Admin-

istrator of the Wage and Hour Division, Department of

Labor, 315 U. S. 357, 363, 367; 86 L. Ed. 895, 899, 901,

902 (1942), this Court had before it for consideration

“the narrow but important question as to the power of

hy ie ARO A tee eas SPADA ER ARI EAA Sah VOLE AI 0D le A cal Oe A ee 8 Be RE OD DAT aN eG, ve 00 the Cah tebe ao. saul

the Administrator to delegate his power to issue a sub-

poena.” In deciding that question, this Court, among

other things, said

“The Act does not define the Administrator’s

power to issue subpoenaes or specifically authorize

him to delegate it to others * * *

“Unlimited authority of an administrative officer

to delegate the exercise of the subpoena power is not

lightly to be inferred:”

This Court held that a subpoena duces tecum signed by

a person other than the Administrator was void.

No logic is required to determine which is the more

important, the issuance of a subpoena for the appearance

of a witness before an administrative body making an

investigation and directing the witness to bring along

some documentary evidence, or an exercise of the discre-

tionary determination of how many military officers shall

have their careers in the armed forces abruptly ended

and their financial affairs disrupted, officers who served

their country honorably, faithfully and efficiently in war

and peace for more than 20 years and who could not be

promoted because of lack of vacancies. The mere state-

ment of the question prompts the answer. The determi-

naticns made under attempted delegations, we contend,

are void and the retirements of plaintiffs likewise are

void.

CONCLUSION

Since the judgment of the United States Court of

Claims relates to and purports to decide questions of law

not previously considered and decided by any court; since

the Court below departed from the usual course of judi-

cial proceedings; since plaintiffs were prematurely and

mandatorily retired under and as a result of unlawful

delegations of Congressional discretion; and since the

decision below is defective for the other reasons stated

herein, this petition for writ of certiorari should be

granted.

Respectfully submitted