Petition for Writ of Certiorari — Kanarek v. United States

Supreme Court brief1969

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IRVING A. KANAREK,

Petitioner,

vs.

UNITED STATES OF. AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO

- ‘THE UNITED STATES COURT OF .

CLAIMS

IRVING A. KANAREK

14416 Victory Boulevard

Van mest Celiforata.

poss ae Le

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1968

No.

IRVING A. KANAREK,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF

CLAIMS

IRVING A. KANAREK

14416 Victory Boulevard

Van Nuys, California

Counsel for Petitioner,

Pro Se

TOPICAL INDEX

Table of Authorities

CITATION TO OPIN IONS BELOW

JURISDICTION

QUESTIONS PRESENTED .

CONSTITUTIONAL PROVISIONS,

STATUTES, REGULATIONS AND

COURT RULE INVOLVED (See

Appendix '"'C")

STATEMENT

REASONS FOR GRANTING THE

WRIT

CONCLUSION

OPINION OF COURT OF. CLAIMS,

March 6, 1963

OPINION OF COURT OF CLAIMS,

May 10, 1968 i

CONSTITUTIONAL PROVISIONS,

STATUTES, REGULATIONS AND

CUURT RULE INVOLVED.

REPS EEG PO TAT, FO

14.

ik et Dae tt a

TABLE OF AUTHORITIES

Cases Page

Dooley v. United States,

182 U.S. 222 15

Dupree v. United States,

141 Fed.Supp. 772,

136 Court of Claims 57 18, 19, 20

Greene v. McElroy,

360 U.S. 474 é, 6, 6, 36,.3%, 18

Parker v. Lester,

227 F.2d 708 19

Peters v. Hobby,

349 U.S. 331 4, 19

Public Utilities Commission v. U.S.,

355 U.S. 534 4

U.S, v. United States Gypsum Co.,

333 U.S. 364 20, 21

Weiman v. Updegraff,

344 U.S. 183 4, 19

Constitution

United States Constitution,

Fifth Amendment 5, 14

Statutes

F.R.C.P. , Rule 44 3, & i¢

28 U.S.C. 1255(1) 3

ii.

GRP TENE RI *

28 U.S.C. 1491 4, 5, 14, 15

28 U.S.C. 1738 3, 5, 17

28 U.S.C. 1739 3, 5, 17

iii.

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PAPVPOS ‘

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IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1968

No.

IRVING A. KANADEK,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF

CLAIMS

To the Honorable Chief Justice Ear] Warren, and

to the Honorable Associate Justices of the

Supreme Court of the United States:

Petitione~: petitions that a Writ of

Certiorari issue to review all the action of the

United Ste.es Court of Claims in case 139-58,

as to which the final judgment was entered on

May 10, 1968; a timely Petition for Rehearing

was denied on October 18, 1968; this Honorable

Court has extended the time for docketing the

. ale” hee

EO RRR ee Vy FR er Tete rv pe oe @ eruenee.

Petition for Writ of Certiorari until March 16,

1969; after an interlocutory judgment, and denial

of a timely Petition for Rehearing by the Court

of Claims as to said interlocutory judgment, this

Honorable Court denied Certiorari (379 U.S.

83s).

CITATION TO OPINIONS BELOW

The interlocutory judgment of the afore-

mentioned U.S. Court of Claims was entered on

March 6, 1963; concurrently with the entry of

judgment said Court of Claims filed a written

opinion which is reported at 314 Fed. 2d 802.

The certified record which accompanies this

Petition includes said opinion [R. 146-151].

(See Appendix A, pp. 1-8).

Subsequent to this Honorable Caurt deny-

ing the Petition for Certiorari in connection with

the interlocutory judgment, the U. S. Court of

Claims entered on May 10, 1968 a subsequent

opinion in connection with this case. (See

Appendix B, pp. 1-18).

JURISDICTION

As stated, supra, the interlocutory Court

of Claims judgment was entered with written

opinion, on March 6, 1963, and timely Petition —

for Rehearing was denied on April 17, 1964

without written opinion; on May 10, 1968 a sub-

sequent opinion of the U.S. Court of Claims

was entered and a timely Petition for Rehear-

ing in connection with this second, and

purportedly fimal, decision was denied on

October 18, 1968. The jurisdiction of this

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

QUESTIONS PRESENTED

1. Can an ultimate finding of fact and a .

conclusion of law (Appendix B, P- 18) in the U.S...

Court of Claims be predicated upon the purported

testimony over objection, of a purported a

California bepartment of Employment employee,

which testimony was a crucial basis for the _

decision that petitioner was not "ready, willing -

and able to accept suitable employment" “es

(Appendix B, p. 18, paragraph 25), when Said

testimony by ‘he non-percipient employee was

incompetent hearsay (said employee having never

seen the plaintiff and having had nothing.tc do te

whatever with the plaintiff, or any matter per-.

taining to the plaintiff) and in violation of Rule 44

of the Federal Rules of Civil Procedure ?

.2.. May an act of the legislature of the .

State, herein the State of California, be used in

determining and rendering judgment in the U. &.....

Court of Claims notwithstanding that 28 U.S.C.A.

1738, 1739 have not been complied with ?

3. Whether the United States Court of ne

Claims has power to invoke the provisions of '

"The Industrial Personnel Security Review

Regulation" (Department of Defense Directive

5220.6) termed Program "'B" for the sake of .-

convenience in this Petition for a Writ of

RR emenerr ees sernmeemnpees Eras Samer

Sertiorari (set forth in 20 Federal Register

1554), and its antecedent ''The Industrial

Personnel and Facilities Security Clearance

Program, "' termed Program "A" for the sake of

convenience in this Petition for a Writ of

Certiorari, to evaluate the measure of monetary

recovery of petitioner whose security clearance

while employed at North American Aviation,

Inc., was withdrawn without authority by the

United States, wiin the consequent pinning oP

him of a lifetime "BADGE OF INFAMY, "2! in

view of the fact that this Court holds in Greene

v. McElroy, 360 U.S. 474 at page 504, that

Program "A" and Program "'B" constitute an

"elaborate clearance program" which was

unauthorized? Includéd ‘in this question is

whether there was, in fact, any administrative

remedy whatsoever available to petitioner [See

Public Utilities Commission v. Unitec States,

355 U.S. 554 at 539 and R. 121].

4. Whether 28 U.S.C. 1491 provides a

bases for monetary recovery by petitioner due

to the unauthorized withdrawal of petitioner's

security clearance by the United States?

Included in this question is whether the due

y Language used by this Court in Wieman v.

Updegraff, 344 U.S. 183 at 191 (involving a

State Civil Service employee) and Peters v.

Hobby, 349 U.S. 331 at 347 (involving a profes-

sor of medicine employed as a Special

Consultant by the Federal Government).

;

i al a a ek Boas IF FETRIIRES, 1S LEELA I NE INLINE SFR EINE 1 a TERI ET SII ERO IIE LRM ERE NOG CRIS t ] he eh

process clause of the Fifth Amendment

constitutes a basis for recovery and/or whether

the just. compensation clause of said Fifth

Amendment constitutes a basis for recovery.

5. What are the criteria which must

be used to- evaluate the extent of petitioner's

nonetary recovery for the damage resulting to

him from.the unauthsrizec withdrawal of security

clearance by the United States ? 7 ,

CONSTITUTIONAL PROVISIONS,

STATUTES , REGULATIONS AND

COURT RULE INVOLVED (See

Appendix "C"')

A. The Constitutional provisions involved

are the due process and. just compensation

clauses of the Fifth Amendment.

- B. Statutes involved are 28 U.8.C,

1491; 28 U.S.C, 1738 and 28 U.S.C. 1739.

'C. . The regulations involved are |

‘1. Industrial Personnel and Security

Clearance Program [R. 42-60],

held unauthorized in Greene v.

McElroy, 360 U.S. 474,

2. Industrial Personnel Security

Review Regulations, Department

' of Defense Directive No, 5220.6,

held unauthorized in Greene v, :

RIEL LOOSE ELIE ts) SRW ERE NONA UNC The Bae LEN ALG TRO NINTH

McElroy, 360 U.S. 474, [Ex. 2

attached to ''Defendant's Reply to

Plaintiff's Objections to Defen-

dant's Motion to Dismiss" and

referred to at R. 68].

(In this Petition for a Writ of Certiorari

1, supra, is termed Program "A", and 2, supra,

is termed Program ''B"; the purported Monetary

Restitution provisions of these two progiams are

set forth in Appendix C).

D. Rule 44 of Federal Rules of Civil

Procedure.

STATEMENT

On April 1, 1958, petitioner filed a timely

Petition with the United States Court of Claims

[R. 1-6]. This Petition has a Court of Claims

Docket Number 139-58. The jurisdiction of the

Court of Claims was invoked because the security

clearance of petitioner was revoked by the

purported.authority of Program "A", a regula-

tion promulgated by the Secretaries of the Army,

Navy and Airforce on May 4, 1953 [R. 42-60].

Prior to and including July 12, 1954,

petitioner was employed at Los Angeles, Calif.

‘by North American Aviation, Inc., hereinafter

referred to for convenience as North American,

as a Research Engineer. Prior to and including

July 12, 1954, petitioner was possessed ofa .

security clearance authorizing petitioner to have

6..

SPELL PIL STF LE PPE AN ONE IEA NET ETA RTT SNE. TENT EO HN PORE TENE PYRITE Or . 4

ON Nd a eal PE Rieti SB I ss

; OL OE DONS TION PRELIM *) Sa eee

re Sie aati "7 :

access to classified security information up to

and including material and information classified

as Top Secret.

‘On or about July 12, 1954, petitioner and

North American were informed by the Screening

Division of the Western Industrial Personnel

Security Board, purportedly an agency of the

Department of Defense of the United States

Government, that the granting of clearance to

petitioner of access to classified security infor-

mation was not clearly consistent with the

interests of national security. Petitioner was

suspended without pay on or about July 12, 1954

by North American as a result of said action of

Said Screening Division. Petitioner's Salary

at the time of said Suspension was $710.00 per

month.

After a hearing before the Appeal _

Division of the Western Industrial Personnel |

Security Board, petitioner and North American

were informed on or about September 29, 1954, |

that granting petitioner access to classified |

information was-not-clearly consistent with the

interests of national ‘security.

__ On or about September 6, 1955 the

Industrial Personnel Security Review Board

determined that the granting to petitioner of

clearance for access to classified information

was clearly consistent with the interests of.

national security. This Board was purportedly

operating under Department of Defense _

Directive No. 5220.6 (termed Program "'B" —

Uprkbes a

ee oe a ee es

herein), [Referred to as Ex. 2 at R. 68], the

S effective date of which was April 3, 1955. , The.

aforementioned Directive purportedly super-

seded the Industrial Personnel and Facility —

Security Program (termed Program "A" herein).

Both of these Programs were found to be un-, |

authorized by this Court in Greene v. McElroy, .

supra. Notwithstanding the determination of the.

Industrial Personnel Security Review Board (on —

or about September 6, 1955), that the granting: .

to petitioner of clearance for access to classified

information was clearly consistent with Bes

interests of national security, petitioner was not |

regranted access to information classified as. _

Secret until on or about February 7, 1958 while

employed at Radioplane Co.

Due to the fact of the withd rawal of

security clearance petitione. was completely

deprived of employment utilizing his technical

skills from July 12, 1954 to April 9, 1956. |

During the period September 21, 1955 to April

9, 1956 petitioner had no earnings.

puring the period April 9, 1956 to -

January 21, 1956 petitioner was employed at

Lockheed Aircraft Corp.;, Missile Systems _

Division, but notwithstanding the action of the

Industrial Personnel Security Review Board of

on or about September 6, 1955, and the letter

of September i5, 1955 seat to the Headquarters ©

Air Materiel Command [R. 127], the United

States did not regrant petitioner Secret clearance.

while he, petitioner, was employed at Lockheed.

Due to the fact of withdrawal of security

clearance on or about July 12, 1954 and the fact

that petitioner was not successful in obtaining

re-grant of security clearance to the Secret level

(at North American petitioner had a Top Secret _

security clearance) until on or about February 7,

1958, petitioner has been extensively and

permanently damaged due to withdrawal of his

security clearance. Due to the fact of with-

drawal of security clearance on or about July 12,

1954 and the fact that petitioner was not succes-

sful in getting the re-grant of security clearance

to the Secret level until on or about February 7,

1958, petitioner has lost forever irreplaceable -

experience-time in the field of rocket propul-

sion research in which field he had been engaged.

The withdrawal of security clearance disloged

petitioner from the field of rocket pr spulsion

research and the entire field of rocket propul- . .

sion, research and otherwise, with consequent

extensive and permanent damege to him.

Petitioner is co-inventor of a patent

(No. 2, 760, 845) entitled "Stabilized Fuming

Nitric Acid, " a material now extensively used

as a propellant (oxidizer) by the United States

Government in jet propulsion driven vehicles,

such as vehicles driven by certain rocket

engines. This invention also has non-jet

propulsion uses. Petitioner is inventor of a

patent (No. 2, 930, 684) entitled ''Propellant

Combination Including Liquid Fluorite and

Liquid Oxide Oxidizer.'' Since these inventions -

occurred during the course of research work

while petitioner was at North American,

petitioner's interests in said patents were assigned

to North American. Nevertheless, North

American has had a policy of making certain -

monetary awards to each inventor in con.ection

with each of his inventions provided the inventor

is on the payroll at the time of the issuance of the

patent. The "Stabilized Fuming Nitric Acid"

patent referred to, supra, was issued on August

28, 1956; the "Propellant Combination Including

Liqu'd Fluorine and Liquid Oxide Oxidizer" patent

refer.«# to, sypra, was issued on March 29,

1960. ther patent disclosures both classified

and unclassifieés were made to North American

by petitioner. At least two of said cisclosures

have resulted in the issuance of Secrecy Orders

by the United States Patent Office. (Said Secrecy

Orders are themselves not classified. They are

transmitted by ordinary mail and are not labled

as classified matter. -“‘No patent can issue from

a disclosure covered by a Secrecy Order, regard-

less of the patentability of the subject matter,

until the Secrecy Order is lifted. )

The fact of withdrawal of security clear-

ance imposed, and still imposes, a ''badge of

infamy'' «pon petitioner. By way of illustration,- '

reference is made to a paper which was presented

to the American Rocket Society atits fall. -— :

meeting, September 18-21, 1955, at Los Angeles,’

California, by North American personnel. This

paper, entitled "Generalized Solution of the .

Theoretical Specific Thrust of a Rocket Motor for

the C-H-N-O-F Atomic System," did not include

petitioner as a co-author because of the fact of

the withdrawal of his security clearance. |

10;

rm mo SPT OE SOMPLO ba Bs Tae SET TY ICL TS SREY CEO

2 RAE TF

P ewe

Si Ds oh Mert A Ate MN I lg eh Sp alg kb nee

ment, professional, and other Opportunities for

petitioner have been permanently and extensively

damaged and limited, Petitioner did not

the Ramo- Wooldridge Corporation and its

affiliates, and the Douglas Aircraft Cumpany,

Inc., have been permanently and extensively

compense in both. Scientific and non-scientific

activity consistent with his unique and highly : .

Specialized training, abilities, and experience,

whether said activity requires security clear-

ance or not. . me

Petitioner alleges that he has been <i» ~.

ged in the sum of at least $163, 831.00.

On August 1, 1958, the defendant made

a Motion to Dismiss Pluintiff's Petition [R. 1-6]

for the alleged reason that it failed to State a

Claim upon: which review can be granted. On

November 19, 1958, in response to this Motion

to Dismiss, petitioner filed a brief entitled,

"Plaintiff 's Objections to Defendant's Motion to —

11.

a See REN ORRS Se ehadiasidicnimek anette dara

‘er 3

ng ene

Dismies."" [R. 11-60]. (On December 8, 1958,

petitioner filed certain corrections involving

clerical errors {R. 61-62] to Plaintiff's Objec-

tions to Defendant's Motion to Dismiss. ") On

October 14, 1959, defendant filed "Defendant's

Reply to Plaintiff's Objections to Defendant's

Motion to Dismiss" [R. 63-94].

On May 12, 1961, petitioner filed

"Plaintiff's Response Brief to Defendant's Reply

to Plaintiff's Objections to Defendant's Motion to

Dismiss" [R. 95-122].

On June 5, 1961, defendant filed ''Defen-

dant's Supplemental Documents and Citations"

[R. 123-128).

On June 5, 1961, petitioner moved to

have the Petition deemed amended by the |

incorporation of certain matter already before

the Court and said Motion was allowed on June

19, 1961 [R. 129-131}.

On June 30, 1961, after oral argument

before the Court by the parties, the Court

suspended further proceedings peading petitioner's

“pursuit and completion of the administrative

remedy available through the Department of the

Airforce, " which remedy petitioner contended,

and now contends, is, in fact, no remedy at all

and unauthorized (see Sec. VII, p. 23 et Seq.

of "Plaintiff's Response Brief to Defendant's

Reply to Plaintiff's Objections to Defendant's ;

Motion to Disrniss" [R. 118-122], wherein it is

pointed out that there was not any agministrative

12.

remedy to exhaust since, inter alia, Program

"A" and Program "B" supra, were unauthorized. )

On December 7, 1962, defendant filed

“Defendant's Supplemental Brief and Exhibits

Following Administrative Action" [R. 133-139},

where defendant purportedly determined that

$4, 677.52 was the maximum that petitioner can

recover, Petitioner filed "Plaintiff'; Response

to Defendant's Supplemental Brief and Exhibits

Following Administrative Action" [R. 140-142]

on February 4, 1963, and the affidavit of

petitioner [R. 143-145] on February 5, 1968,

which affidavit reiterates the fact that Secret

clearance was not restored until February 7,

1958: [R. 145). It was NOT restored on

September 21, 1955, as set forth in the Court

of Claims' judgment and opinion [R. 147]. The

Top Secret level of clearance was never

restored [R. 145],

On April 5, 1963, petitioner filed a

timely request for a rehearing by way of "Motion

for Rehearing, Motion for Alteration of Judgment,

Motion for Amendment of Judgment, and Motion

for New Trial" [R. 152-159] which was opposed

by "Defendant's Response to Plaintiff's Motion

for Rehearing, Motion for Alteration of Judg-

ment, Motion for Assignment (sic ), and Motion

for New Trial" [R. 160]. Petitioner's request

for a rehearing was denied on April 17, 1964

(R. 161-162}, more than one year after the

timely request was filed. Subsequent to the

decision and Interlocutory Judgment repre-

Sented in Appendix "A", there was a hearing

13.

before a Commissioner of the U.S. Court of

Claims, at which hearing only Petitioner, and,

over objection, an employee of the California —

Department of Employment testified. The

Commissioner rendered his report to the U.S.

Court of Claims recommending that recovery

by Petitioner be limited to $4,677.52. The

Court of Claims in its final decision and judg-

ment of May 10, 1968 adopted the recommenda-

tion of the Commissioner and on October 18,

1968 the Petition for Rehearing was denied (see

certified record, referred to with particularity,

infra).

This Honorable Court has granted until

March 16, 1968 to file this Petition for Writ of

Certiorari.

REASONS FOR GRANTING THE WRIT

The present paucity of judicial authority

on the important question of the liability of the

“Inited States to the employee of a contractor

uf the United States, where said employee's .

security clearance has been withdrawn without

authorization, warrants review by this Court of

the instant case to determine the extent of the

obligation of the United States under the Fifth

Amendment and/or under 28 U.S.C. 1491 to

Petitioner in view of the fact that said petitioner's

security clearance was withdrawn without

authorization. (About twelve years ago there

were 3,000,000 employees and 22, 000 private

contractors involved in eraployee-contractor

security programs [R. 18]; today there are

14.

probably both more employees and private

contractors.) Said security clearance was held

by petitioner at a time when he was an employee

of North American Aviation, Inc., a contractor

of the United States. This question has not

been decided by this Court. In Dooley v. The

United States, 182 U.S. 229 at 224, this Court,

in referring to an earlier version of what is

now 28 U.S.C. 1491, stated that the statute

contemplated "distinct classes of cases, '' and

near the bottom of page 228 in Dooley this

Court clearly sets forth that even if a par-

ticular case appears to be ruled out under

one section of the statute, it may still fall with-

in another section.

The instant case presents the question

of what criteria shall be used in determining

the measure of recovery of an employee of a

contractor of the United States when said

employee has his security clearance withdrawn

without authorization by law; petitioner contends

that the Fifth Amendment, by way of the due

process and just compensation clauses, and

28 U.S.C. 1491, provide several independent

bases for the obligation of the United Stotes

to pay for damages resulting from the un-

authorized withdrawal of security clearance of

a contractor employee. This Court has not

decided what criteria Shall be used as a measure

of damages for the unauthorized withdrawal of

security clearance, nor has this Court decided

what legal basis or bases Shall be used to

impose upon the United States the obligation to

pay for unauthorized withdrawal of security

15.

clearance of a contractor employee. It is

respectfully suggested that this Court should

review the decisions:of the Court of Claims in

view of the fact that notwithstanding this Court's

decision in Greene v. McElroy, 360 U.S. 474,

that the purported security programs used to

withdraw security clearance of petitioner were

unauthorized, the Court of Claims, neverthe-

less, purportedly used the monetary restitution

‘provisions of those security programs in

determining the extent of payment to be made

to petitioner. Petitioner claims at least

$163, 381 should be paid to him whereas the

Court of Claims has authorized payment of

$4,677.52 denying him even the heretofore

possible additional amount of $5, 291.37 [R.

151, including footnote, and R. 3, item 13 in

the original Petition before the Court of Claims].

As a result of the purported action of the-

Court of Claims represented by Appendix B,

Findings of Fact and an ultimate Conclusion of

Law are predicated,.despite timely objection

(Rep. Tr. of July 7, 1965, 54:16 through 19; 55:

4 through 12; 55:26-26:7; 57:13-16; 57:23-58:6;

58:25-59:10; 59:19-59:24; 61:24-72:25) upon in-

competent: hearsay and procedures that do not

comport with due process. Rule 44 of the .

Federal Rules of Civil Procedure was not

followed in that there was no showing by compe-

tent testimony or written statement, pursuant to

sections (a), (b), or (c) thereof, that no

California Department of Employment records

exist as to petitioner; nor can any inference be

made from the purported testimony of Mr. Zack,

16.

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- ee ae :

SR aera mcemyen: PES ELL LESTE IN IESE IIE EF ae

the employee of the California Department of

Employment as to the petitioner's efforts to

obtain employment. Mr. Zack knew nothing of

petitioner's case (Rep. Tr. of July 7, 1965 at

69:3 through 69:5); yet predicated crucially on

the Zack testimony, the Court of Claims denied

$5, 291.37 of the total amount claimed by -

petitioner (Appendix ''B", Pp. 2, et seq.).

Although extensive use of purported statutes of

California is made in Appendix "'B", footnotes

pp- 5, 6, and 7, proper authentication required

by 28 U.S.C. 1738, 1739 was not present (See

Appendix ''C"'),

In this case there are such fundamental

issues as (1) What is or are the legal basis or

bases for recovery? (2) Whether the Court

of Claims had the power to invoke the monetary

restitution provisions of security programs

which this Court has found to be unauthorized,

Greene v. McElroy, supra, and (3) whether

there is, in fact, an administrative remedy in

view of the procedure available, or rather lack

of it. The Court of Claims has stated in its

first opinion [R. 146] that the determination and

opinion of March 6, 1963, constitutes a deter-

mination of the petitioner's entire Claim.

Despite Greene y, McElroy, Supra, and the

fact that, in fact, there was no administrative

remedy available through the Department of the

Airforce [R. 118-122}, the Court found an

administrative remedy to exist [R. 146]. Itis

noteworthy in this regard that nowhere in the

Court of Claims' decision and judgment [R.

146-151] is there any discussion or analysis of

17.

ee Bn Sal irs —_

oR ee a Ee * eee 2

the principles of Greene v. McElroy, supra, nor

for that matter any mention of the case .

whatsoever.

In the first decision it is stated [R. 147]

that petitioner's security clearance was restored

on September 21, 1955. This is not the fact.

During the first part of September, 1955, the

Industrial Personnel Security Review Board

getermined that the granting of clearance to

petitioner "for access to classified information

is clearly consistent with the interests of

national security" [R. 126]. Although she

Commander, Headquarters Air Materiel

Command, Wright Patterson AFB, Ohio, was

allegedly instructed to issue clearance for

access to classified information to petitioner by

way of letter dated September 15, 1955, clear-

ance did not result therefrom; but rather, it was

not until on or about February 7, 1958, that

petitioner was able to obtain a re-grant of

security clearance to the Secret level [R. 2,

Item 9).

The Court below laid great stress in its

first decision (Appendix A) on Dupree <v- United

States, 141 Fed. Supp. 772, 136 Court of Ciaims

57 [R. 148-149}. In Dupree, however, the

regulations under which Dupree was denied

security clearance were promuigated with

express statutory and execttive authority, 136

Court of Claims 57 at 58. This Court, as set

forth, supra, by way of Greene V> McElroy,

found the security programs which were applied

to petitioner to be without authorization. This

18.

Sika ds ta 3

NE el ep ny a ee”

Court should grant certiorari in the instant case

in view of the fact that without such grant there is

no appellate review possible of the Court of

Claims' decision in the instant case, and thelaw,

and novel premise, would be settled, without

judicial review, that unauthorized regulations

can purportedly be used to determine the criteria

for recovery [Bottom of R. 149 to top of R. 150,

and note 2 at the bottom of R. 68; also, see.

Appendix A, p. 6]; such procedure offends due

process under the Fifth Amendment as did the un-

authorized withdrawal of security clearance; not-

withstanding the statements in Dupree [R. 148

and Appendix A, pp. 3-4], petitioner contends that

the right to follow a lawful calling is Constitu+

tionally protected and hence his claim is one

founded upon the Constitution. This is borne out

by Parker v. Lester, 227 F.2d 708 at 717 where

the Court states, referring to privately employed

merchant seamen, that the liberty to follow their

chosen employment

"is no doubt a right more clearly

entitled to Constitutional protection

than the right of a Government

employee to obtain or retain his job."

Thus, there is a fundamental conflict between the

Court of Appeals for the Ninth Circuit and the

Court of Claims; furthermore, it is urged that

the position of the Court of Claims is inconsis-

tent with that of this Court in Wieman v.

Updegraff, 344 U.S. 183, and Peters v. Hobby,

349 U.S. 331 (see footnote at bottom of p. 2,

supra), in that, as stated by Mr. Justice Douglas

in his concurring opinion in Peters v. Hobby,

supra, at 351,

19.

"We deal here with the:reputation

of men and their right to work --

things more precious than property

itself."

The Court of Claims in its first decision in the

instant case, quoting from its own decision in

Dupree, supra (Appendix A, p. 4) asks the

question

"did plaintiff lose his means of live-

lihood because of the alleged

violation of his constitutional rights ?"'

In the case of petitioner the answer must be

"yes" since, except for the violation of due

process by way of the unauthorized withdrawal

of the security clearance vested in him,

petitioner. would not have been severed from

North American and dislodged from the rocket-

propulsion field.

Petitioner, unlike a litigant in the State

Courts or a Federal District Court, has no

appellate review from the Court of Claims

except that granted by this Court in his struggle

to obtain redress for the at least $163, 381 .

damages done him which redress the Honorable

Court of Claims below has seen fit to evaluate

at $4,677.52. Petitioner urges this Court to

grant certiorari so that it may review,.inter

alia, the findings of fact and conclusions of law

below and reverse. This Court has the power

so to do (U.S. v. United States Gypsum Co.,

333 U.S. 364 at 395) when the trial court's

20.

finding (or findings) is "clearly erroneous. '"

Thus, in the instant case there is no question

but what ''a mistake has been committed" (U.S.

v. United States Gypsum Co. » Supra, at 395),

for insiance, by the Honorable Court below in

its using the purported evidence advanced by

Mr. Zack of the California Department of

Employment.

CONCLUSION

For the foregoing reasons, this petition

for a writ of certiorari should be granted.

Respectfully submitted,

IRVING A. KANAREK

Counsel for Petitioner,

Pro Se

21.

APPENDIX “A”,

Opinion of the United States Court of Claims.

In the United States Court of Claims.

No. 139-58

(Decided March 6, 1963)

Irving A. Kanarek v. The United States.

Rex M. Minter for plaintiff.

Lawrence S. Smith, with whom was Acting Assistant

Attorney General Joseph D. Guilfoyle, for defendant.

Before Jones, Chief Judge; Whitaker, Judge; Lara-

more, Judge; Durfee, Judge; and Davis, Judge.

On Defendant’s Motion to Dismiss Plaintiff’s Peti-

tion 7

Laramore, Judge, delivered the opinion of the court:

This case originally came before the court on defend-

ant’s motion to dismiss. The court, at that time,

suspended the proceedings until plaintiff had exhausted

his administrative remedy through the Department of

the Air Force. ©

Plaintiff thereafter pursued said remedy, and the

Secretary of the Air Force approved the claim in

the amount of $4,677.52.

On Juiy 23, 1962, plaintiff moved that the suspension

of proceedings be lifted and that the court set the

matter down for argument. This motion was premise

on the contention that more money is due plaintiff

and the administrative recommendation of $4,677.52

was unacceptable to him. By order of court, this

motion was allowed and, after filing” of certain addi-

A —2—

tional exihibits by defendant,’ the case was assigned

for argument on the validity of plaintiff's claim.

Thus the case now before us calls for a determination

of the entire claim of plaintiff as alleged in his

petition.

It is plaintiff’s claim that in addition to loss of wages

during the period his security clearance was withdrawn,

he is entitled to a much greater sum representing dam-

ages suffered because of lost merit raises and general

increases, damages based on a linear increase in earning

power, loss of experience in the field of rocket pro-

pulsion research, loss of a bonus resulting from an

invention of plaintiff, damages because of certain patent

disclosures by North American Aviation, Inc., and for

damages occasioned by loss of employment opportunities.

Plaintiff alleges his action arises under Article II

of the Constitution of the United States, the Fifth

Amendment thereto, and section 1491, Title 28 US&.,

the general jurisdictional act relating to the Court

of Claims.

The facts are these: On July 12, 1954, while

employed as a research engineer for North American

Aviation, Inc., plaintiff's Goverament clearance for

access to classified security information was with-

drawn. On September 21, 1955 it was restored.

North American Aviation, Inc., was a Government

contractor and had, on April 6, 1953, entered into

a written security agreement with the Government,

containing various provisions for the safeguarding of

1Tnasmuch as the defendant filed exhikits to support its motion

to dismiss, we now treat the Governmcnt’s motion as @ mouon

for summary judgment. Rule 16(b) of the Rules of this court.

RR A REINA CLM LEI NE TE ETE, TT EE TS ST TT ST TE

A—3—

Classified security data that would come into its posses-

sion in the course of its performance of Government

Contracts. One of these provisions was that the Govern-

ment agreed, upon application of the contractor, to

designate employees of the contractor who could have

access to certain types of classified security information.

With the exception of plaintiff’s claim for loss of

wages, we are of the opinion that plaintiff’s claims

are unfounded, and we will dispose of such claims at

the outset,

not an employee of the contractor as plaintiff argues.

Furthermore, it is apparent that there was no privity

between plaintiff and the Government, and since his

alleged injuries were the result of dealings between the

United States and the sontractor, there is no basis for

& contract implied or in fact between plaintiff and the

United States.

Nor can plaintiff base a claim upon the due process

clause of the Constitution. It was so held by this

court in Dupree v. United States, 136 Ct. Cl. 57.

in this case the court stated, at page 61:

We are, nevertheless, of opinion that his petition

is insufficient to state a case as one founded on

the Constitution. If it is possible at all in a

A-A—

case such as this to state a case founded on the

Constitution, it would, at least, be necessary to

allege facts to show that, except for this violation ~

of his constitutional rights, the certificate would

have been granted him, and he would have been

permitted to follow his vocation and would have

earned the wages for which he sues.

It is hardly conceivable that such a case could

‘be stated, and, even if it could be done, we seriously

doubt the right of a citizen to recover a money

judgment in such a case. But, assuming such a

case could be stated, the question is, did plaintiff

lose his means of livelihood because of the alleged

violation of his constitutional rights? Otherwise

stated, is it necessarily true that the certificate

would have been issued to him if his alleged

constitutional rights had been respected, that is,

had he been confronted by his accusers.

How can we know? Suppose he had been con-

fronted by his accusers and they had testified to

the things alleged * * *; and that after these

witnesses had been subjected to cross-examination,

the Commandant had still believed their testimony,

under these circumstances must he have granted

the certificate? If this does not follow, plaintiff

has not stated a case. Plainly it does not follow.

The Dupree case and this case are strikingly similar.

Dupree’s security clearance was withheld; plaintiff’s

security clearance was withheld. Here, as in the Dupree

case, nothing is present, alleged or proved, to convince us

that under any circumstances plaintiff’s certificate

would not have been removed or would have been

granted him so that he would have been permitted to

follow his vocation. Having failed to allege and prove

the necessary allegations under the criteria of the

Dupree case, supra, plaintiff cannot recover under the

due process clause of the Constitution.

Nor has plaintiff stated a case under the just

compensation clause of the Fifth Amendment of the

Constitution. The action taken was simply the issuance

of a regulation designed to protect the United States

and action taken thereunder to withhold the security

clearance. Its purpose was not to take property for

public use, nor was property taken for public use which

is essential to a Fifth Amendment taking.

Since there can be no recovery in this case under any

article or amendment of the Constitution of the United

States, and absent a contract between plaintiff and the

United States, plaintiff’s only alternative for recovery,

with the exception noted earlier relating to loss of wages,

would be under a statute, or a regulation, or for liqui-

dated or unliquidated damages for cases not sounding

in tort. 28 U.S.C. § 1491.

No statute or regulation is called to our attention

and we know of none which could form the basis of

plaintiff’s claim. Consequently, plaintiff must also

fail on this aspect of the case.

Respecting the portion of the statute which permits

suits for liquidated or unliquidated damages for cases

not sounding in tort, two decisions of the Court of

Appeals for the Third Circuit? are significant. The

facts of the above cases are very similar to the facts

*Dupree v. United States, 247 F. 2d 819; Dupree v. United

States, 264 F. 2d 140.

A—6--

in this case, and the court therein clearly recognized

and treated the alleged actionable conduct of the de-

fendant as a tort. Recovery was denied because the

Federal Tort Claims Act specifically precludes recovery

for this particular category of torts. We can see no

distinction between the two above cited cases and the

case at bar. If it was a tort in the case of Dupree,

it is a tort in the instant case, and since the statute

specifically exludes tort claims from our jurisdiction,

plaintiff cannot recover under this court’s general

jurisdictional act, supra.

This brings us to plaintiff's claim for wages lost

by reason of the withholding of his security clearance.

Paragraph 26, Industrial Personnel Security Review

Regulation, Department of Defense Directive 5220.6,

dated February 2, 1955, as amended, authorized the

secretary of the department concerned to settle reim-

bursement claims in appropriate cases resulting from

the suspension of a contractor employee’s clearance.

As noted earlier, plaintiff’s security clearance was

restored September 21, 1955. Pursuant to this court’s

order, plaintiff pursued his administrative remedy and

the Secretary of the Air Force approved the claim in

the amount of $4,677.52, covering the period July 12,

1954 to January 29, 1955, less outside earnings. He

did not grant the claim for the balance of the period

January °30, 1955 to September 21, 1955, because

plaintiff failed to furnish satisfactory evidence to

reasonably demonstrate a deligent interest in securing

a ¥ Ch i ah a i a i eS tines

meeeeemiemaial

‘

employment and availability therefor. It was pointed

out to plaintiff in the letter allowing his claim in part

that he drew unemployment compensation benefits from

the State of California up to January 29, 1955, but

they were terminated on that date, presumably because

he failed to qualify for them under the unemployment

code of that state, and that he did not contest or

otherwise dispute such action. This was the only

evidence concerning plaintiff’s efforts to obtain em-

ployment during this period.

At the time of oral argument plaintiff was granted

the opportunity to file an affidavit concerning his ef-

forts to obtain employment and he thereafter did

file such an affidavit. In his affidavit he avers that

while he is now unable to state with precision the

particular times, he did make efforts to secure employ-

ment and he lists the names of certain organizations

to which he applied. He also avers that his efforts were

to no avail. He also avers that menial employment, such

as dishwashing as suggested by the Department of Em-

ployment of the State of California, was not sought,

and that he was always ready, willing and able to work

after July 12, 1954.

We are of the opinion that a person with the scientific

background of plaintiff should not be forced to take

jobs so far below his level of intelligence and level

of his former employment in order to avoid the impli-

cation of failure to seek employment. We are further

of the opinion that in consequence of his affidavit, a

A—8—

question of fact now exists which cannot be disposed

of except by a trial before a commissioner cf this court.

Consequently, we now remand the case to a commis-

sioner for a determination of the unresolved question

of whether or not plaintiff actually did attempt to

obtain employment in the period January 30, 1955 to

September 21, 1955.°

On all other phases of the case, defendant’s motion

for summary judgment is granted, and plaintiff's

petition with respect thereto is dismissed.

8If plaintiff prevails, he, of course, would be entitled to recover

loss of wages for this period in addition to the administrative de-

termination of $4,677.52.

APPENDIX B

Gn the Waited States Gourt of Gains

No. 139-58

(Decided May 10, 1968)

IRVING A. KANAREK v. THE UNITED STATES

Irving A. Kanarek, pro se.

Lawrence S. Smith, with whom was Assistant Attorney

General Edwin L. Weisl, Jr., for defendant.

Before Cowen, Chief Judge, Lazamore, Dorrez, Davis,

Cottins, SKELTON, and Nicuo1s, Judges.

OPINION

Per Curtam: This case was referred to Trial Commis-

sioner Saul Richard Gamer with directions to make findings

of fact and recommendation for conclusions of law under

the order of reference and Rule 57(a). The commissioner

has done so in an opinion and report filed on February 21,

1967. Exceptions to the commissioner’s opinion, findings of

fact and recommended conclusion of law were filed by

plaintiff and the case has been submitted to the court on the

briefs of the parties and oral argument of plaintiff, pro se,

and counsel for defendant. Since the court is in agreement

with the commissioner’s opinion, findings and recommended

conclusion of law, as hereinafter set forth, it hereby adopts

the same as the basis for its judgment in this case. Therefore,

plaintiff is entitled to recover and judgment is entered for

plaintiff in the sum of $4,677.52.

297-755—68

SPR commennn cn ereeremarens NISL ENNIO OM GME SEE WT SE IRS NE POSES OG RN Ie PON F

ene

B-2

OPINION OF COMMISSIONER

Gamur, Commissioner: By its decision of March 6, 1963 *

on defendant’s motion to dismiss (which was treated by the

court as @ motion for summary judgment), the court held

thet plaintiff was entitled, in accordance with the determi-

nation of the administrative agency (the Department of the

Air Force), to recover the sum of $4,677.52, being the net

amount of back salary plaintiff lost during the period July

12, 1954, when plaintiff's security clearance was suspended,

to January 29, 1955, when plaintiff’s eligibility to receive

further unemployment compensation payments was with-

dravn by the State of California Department of Employ-

ment. The administrative agency denied the balance of

plaintiff's back salary claim in the amount of $5,291.87 cov-

ering the period January 30, 1955 to September 21, 1955, the

date plaintiff was notified that favorable action had been

taken on his appeal and that the suspension of his security

clearance had been lifted. The agency determined that, for

such latter period, plaintiff had failed to make a satisfactory

showing that he was ready, willing, and able to take suitable

employment.

By said decision, the court granted defendant’s motion

and dismissed all of plaintiff’s claims set forth in his peti-

tion, totaling $163,831, except as to said amount of $4,677.52,

to which it held plaintiff to be entitled, and said balance of

$5,291.37, upon which it reserved judgment. As to plain-

tiff’s entitlement to said balance, the court remanded “the case

to a commissioner for a determination of the unresolved

question of whether or not plaintiff actually did attempt to

obtain employment in the period January 30, 1955 to Sep-

tember 21, 1955.” (161 Ct. Cl. at 43-44.)

For the reasons set forth in the following detailed and

ultimate findings of fact and conclusions of law, it is con-

cluded that, considering all the facts and circumstances based

upon a full review of the record, the administrative agency’s

action was fair and reasonable and should be sustained, that

1161 Ct. Cl 87, G14 F. 24 802; plaintif’s motion for reconsideration denied

April 17, 1964; plaintiff's petition for a writ of certiorari denied October 12,

1964 (879 U.8. 888).

a SE SO ee SRP LSNSOR A, SILL MO EEL INO LE INO SLL EI ODL IED IO GOL GE Eg ELE SE I

B-3

plaintiff has failed to sustain his burden of proving entitle-

ment to recovery for the period January 30, 1955 to Septem-

ber 21, 1955, and that judgment should ke entered for plain-

tiff in the net amount of $4,677.52, representing gross lost

wages of $4,752.52 during the period July 12, 1954 to Janu-

ary 29, 1955, less the amount of $75 earned in other employ-

ment during such period.

Finpines or Faor

1. On July 12, 1954, the Department of the Air Force, by

the action of the Screening Division of its Western Indus-

trial Personnel Security Board, withdrew plaintiff's authori-

zation for access to Government classified information. As

& consequence, the employment of plaintiff, a research engi-

neer, with North American Aviation, Inc. an Air Force

contractor, was suspended, the contractor having previously

executed a “Security Agreement” with the Department of

the Air Force, acting for the Department of Defense, which

required it to take such action under such circumstances. By

letter dated September 29, 1954, plaintiff was notified that

the Screening Division’s action had been affirmed by the

Appeal Division of said Board.

2. On November 11, 1954, plaintiff established an “unem-

ployment insurance” claim in the office of the State of Cali-

fornia Department of Employment and thereafter drew

weekly unemployment compensation from such date to Jan-

uary 29, 1955 in the total amount of $270. The record does

not indicate why. plaintiff waited until November before

establishing such aclaim. On the latter date, such payments

were terminated. No appeal proceedings were instituted by

plaintiff with respect to such cessation.

3. On plaintiff’s request, his case was reviewed by the De-

partment of Defense Industrial Personnel Security Review

Board which determined that the granting of clearance to

plaintiff for access to classified information was clearly con-

sistent with the interests of national security. North Ameri-

can Aviation was so notified by a letter dated September 15,

1955 from the Director of the Department of Defense Office

of Industrial Personnel Security Review. On September 21,

1955, plaintiff was also so notified by the receipt of such a

letter dated September 16, 1955.

B-4

4. (a) Department of Defense Directive No. 5220.6 of

February 2, 1955, entitled “Industrial Personnel Security

Review Regulation”, provided in paragraph 26, headed

“Monetary Restitution”, that where, in such cases, there was

a final determination favorable to an employee of a Depart-

ment of Defense contractor, the particular Department con-

cerned would reimburse the employee “in an equitable amount

for any loss of earnings during the interim resulting directly

from a suspension of clearance”, such amount not to “exceed

the difference between the amount the contractor employee

would have earned at the rate he was receiving on the date of

suspension and the amount of his interim net earnings.”

(b) By letter of October 31, 1955, plaintiff inquired of

the Director of the Office of Industrial Personnel Security

Review how he could obtain the restitution provided by the

directive.

5. Following receipt of information from the Department

of Defense as to how to proceed, plaintiff, on December 27,

_ 1955, submitted to the Department of the Air Force, on the

required Department of Defense form entitled “Claim for

Loss of Wages”, a claim in the amount of $9,698.89 for net

lost wages from July 12, 1954, the date his security clearance

was withdrawn, to September 21, 1955, which plaintiff set

forth as the date of the reinstatement of such clearance.

Plaintiff listed the total lost wages during the period of the

suspension of his security clearance as $10,258.89. In re-

sponse to a specific inquiry on the form concerning the

“A mount of Unemployment Compensation Benefit Payments

Received or Due for Period of Your Suspension”, plaintiff

inserted the figure of $270, and deducted such amount from

the total of lost wages, as well as, in response to another ques-

tion on the form, the amount of $290 in earnings during such

interim suspension period, making a net claim of $9,698.89.

6. The California Unemployment Insurance Code in effect

at that time (West’s Annotated California Codes, Unemploy-

ment Insurance §§ 1253, 1256-1258) provided, among other

things, that to be eligible to receive weekly unemployment

compensation benefits, the claimant must register for work;

continue to report to the appropriate public employment

office; be able to, and be available for, work; and attempt to

LO BREIL RE IE TINT Te a a ele NE ah i ¢ LIER APR ENE PEE LOIRE YETI CALE TITLE iy BN MERON RE Ml NY IEA

tts

B-5

seek work on his own behalf. Among the causes for dis-

qualification were leaving work voluntarily and without good

cause, a discharge for misconduct, refusing to accept suitable

employment, or failing to apply for such suitable employ-

ment when notified by a public employment office. “Suitable

employment” was defined as “work in the individual’s usual

occupation or for which he is reasonably fitted * * *.” For

the latter, the risk to health and safety had to be considered,

as well as, among other things, the applicant’s physical fit-

ness, training, and experience. The Department’s regula-

1 Pertinent parts of sald sections of the Code, in effect in 1954 and 1955,

are as follows:

““§ 1258. Bligibility for partioular week. An unemployed individual is ell-

gible to receive unemployment compensation benefits with respect to any week

only if the director finde that:

(a) A claim for benefits with respect to that week has been made in accord-

ance with authorized regulations.

(b) He has registered for work, and thereafter continued to report, at a

public employment office or such other place as the director may approve.

Either or both of the requirements of this subdivision may be waived or

altered by authorized regulation as to partially employed individuals attached

to regular jobs. ’

made such effort to seek work on his own behalf as may be required in accord-

ance with such regulations as the director sha‘l prescribe.

(4) He has been unemployed for a waiting poriod of one week as defined in

Section 1254, © © ©

* o « aa . e a

§ 1256. Disqualification ; voluntarily quitting; presumption of discharge ;

rebuttal of presumption. An individual is disqualified for unemployment

compensation benefits if the director finds that he left his most recent work

voluntarily without good cause or that he has been discharged for misconduct

connected with his most recent work.

An individual is presumed to have been discharged for reasons other than

misconduct in connection with his work and not to have voluntarily left his

work without good cause unless his employer has given written notice to the

contrary to the director within five days after the termination of service,

setting forth facts sufficient to overcome the presumption. If the employer

files such notice, the question shall immediately be determined in the same

manner as benefit claims. * * #

§ 1257. Disqualification; falsification; refusal of employment. An indi-

vidual is also disqualified for unemployment compensation benefits if:

(a) He wilfully made a false statement or represeatation or wilfully failed

to report a material fact to obtain any unemployment compensation benefits

under this division. :

(b) He, without good cause, refused to accept suitable employment when

offered to him, or failed to apply for suitable employment when notified by a

public employment office. * * ¢

$1258. Suitable employment. ‘Suitable employment’ means work in the

individual’s usual occupation or for which he is reasonably fitted, regardless

of whether or not it is subject to this division.

In determining whether the work is work for which the individual is reason-

ably fitted, the director shall consider the degree of risk involved to his

health, safety, and morals, his physical fitness and prior training, his expe-

rience and prior earnings, his length of unemployment and prospects for

a a a ee Re eee ee eee ee ‘ ne EPR EN

. 4

B-6

tzons defined in detail the action tiat would be considered

as constituting reasonable efforts by a claimant t» eek work

on his own behalf."

Department of Employment to discontinus bene

At no time was it the policy or authesized practice of che

£ts to an applicant who refused to accept employment far

California

below his educational background level, treining, or

Saf iptaT?

nea

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ry 1k 8 §4

pagel

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hE | geal :

Ls ae

ie it

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j He

itil

TH: Hire

employment of a permanent

8. Plaintiff did not obtain

type antil

he was employed by the Lock-

April 9, 1956, when

heed Aircraft

security

with

time he was gi

given

lower

clearance, &

clearance than he had held

type

Reddy

AHE

isle]

full

THE

passage of evveral letters between the parties,

Despite the

in which the

unemployment

reitarated its

Air Force

employment, plainti#® refused te

HIE

aad a

fi HAY

a ae a

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raehy ae tf fd

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Hit

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apply to claimants applying for deaedits

of thie section do not

of partial enemployment.”

ie as

B-8

queries in the July 18 letter are not pertinent to the adjudica-

tion of my claim”. Among other things, plaintiff relied on

the case of Mendes v. United States, 119 Ct. Cl. 845, 96 F.

Supp. 826 (1951), stating that such decision “is not con-

cerned with nor even makes mention at all relative to Mr.

Mendez’s attempts to obtain employment during this period.”

Plaintiff stated that unless he received the claimed $9,698.89,

he would sue in the Court of Claims for “alZ the damages

suffered by me as a proximate result of the withdrawal of

my security clearance * * *.” [Emphasis in original.]*

10. By letter dated February 26, 1957, the Office of the

Judge Advocate General of the Air Force advised plaintiff

that, in view of his persistent refusal to answer the questions

which the Air Force felt were necessary for a proper adju-

dication of plaintiff’s claim, “the long period during which

this claim has been under consideration, and the rather

considerable amount of correspondence in the interval, this

office has decided to set March 15, 1957 as the latest date

upon which administrative processing of our final recommen-

dation to the Secretary of the Air Force will be undertaken.

If you elect to answer our previous propounded questions,

we shall be pleased to include them in our recommendation.”

However, plaintiff did not, by March 15, 1957, answer the

questions.

11. (a) Because the Air Force concluded that replies to

its previous queries were essential to an equitable disposition

of plaintiff’s claim, no adjudicatory action was taken with

respect thereto, the claim being held in a so-called “open”

status.

In this exchange of letters, plaintiff, araong other thingy, (a) asserted a

statutory basis for his claim, as against the Department's contrary assertion,

and (b) complained about a delay in the delivery of a letter to him.

Also plaintiff had enrolled in the Loyola University School of Law on Sep-

tember 29, 1952 and graduated on June 10, 1956. In the aforesaid letters, the

Air Force also inquired of plaintiff? whether he had removed himself from ths

labor market by attending school during the period of his suspension, but

plaintiff satisfactorily answered certain of the Department's questiong on this

subject, advising that his attundance, except for one course of two credit units

during the summer quarter of 1955 (June 20-September 1, 1955) was as a

part-time evening student, an activity he had undertaken while he had had

full-time employment with North American. The Department verifiec this

information by direct inquiry of the law school.

B-9

(b) On April 1, 1958, plaintiff instituted his suit herein

seeking damages totaling $163,831.

12. On August 1, 1958, defendant filed a motion to dis-

miss the petition, which plaintiff, by objections filed Novem-

ber 19, 1958, opposed. In defendant’s reply to plaintiff's

objections, filed October 14, 1959, defendant made the addi-

tional contention that plaintiff, by having refused to furnish

the Air Force with the pertinent data concerning his un-

employment compensation, had frustrated agency action and

had therefore failed to exhaust his administrative remedy,

warranting the dismissal of the petition. In the alternative,

defendant requested that the suit be suspended and plaintiff

directed to pursue his administrative remedy and, in con-

nection therewith, to submit to the Air Force the data it had

previously requested. Over plaintiff’s objection, and after

oral argument, the court, by order dated June 30, 1961,

ordered that “further proceedings, including action with

regard to defendant’s motion to dismiss, be and the same are

suspended pending plaintiff’s pursuit and completion of the

administrative remedy available through the Department of

the Air Force which proceedings are to be instituted and

completed within a reasonable time.”

13. (a) Upon receipt of the court’s order, the Office of

the Judge Advocate General, Department of the Air Force,

by letter of July 12, 1961, advised plaintiff that, in accordance

with the court order, the Air Force would continue to process

plaintiff's claim upon receipt of the information previously

requested. It again set forth the specific questions it de-

sired answered, including the reason for the termination of

the unemployment benefits on J anuary 29, 1955. However,

by letter of August 1, 1961, plaintiff failed to furnish the

data requested. Plaintiff took the position that the court’s

order “made no mention” of the claim he had previously filed,

and that his claim row consisted of the full damages that he

was claiming in his court suit.

(b) By letter of August 4, 1961, the Air Force replied that

it had, under the aforesaid directive, authority to consider

only a claim for back wages and not for other consequential

damages arising from the suspension. It stated that it could

therefore only take action, under the court order, on the

297-755—68——-2

——eEEEEyEE—————E

B-10

original $9,698.89 claim which plaintiff had filed, and that, if

plaintiff did not submit the information requested by Sep-

tember 15, 1961, “your claim will be considered on the merits

upon the basis of available facts.” The specific questions to

which it desired answers were again set forth.

14, By letter of September 18, 1961, plaintiff did furnish

answers to some of the questions. He stated he had been

informed by the California Department of Employment “that

compensation was terminated”, but could rot then, because

of the lapse of time and his failure to remember, give any

further information on this matter, the records pertaining

to old claims having been destroyed. He stated, however,

that “I do recall that it was suggested that I take dishwash-

ing employment.” Specifically as to the reason for the

termination of his unemployment benefits on January 29,

1955, plaintiff stated he was, “because of the long passage of

tims” unable to state the reason. He further stated that:

“In any even, it is suggested, that whatever reason might

have been stated for the termination of said unemployment

benefits was probably different from, and perhaps even un-

related, to the true reason.” Plaintiff listed the names of a

number of companies with which he had sought employment

and stated that “Menial employment such as, for instance,

dishwashing was not sought.” In answer to the question

whether unemployment benefits were ever withdrawn be-

cause he refused to accept suitable employment when offered

or failed to apply for such employment, plaintiff again re-

sponded that “because of the long passage of time, these

questions cannot be answered by me with precision” but:

“It is suggested that whatever the reason stated may have

been for the termination of unemployment compensation

payment, the real reason was something else wherein the real

reason or alleged real reason was a reflection of the atmos-

phere at that time. * * * In any event, the alleged reason for

termination of unemployment compensation payments would

be rank hearsay on the part of an individual, it is suggested,

who was influenced by the hysteria and atmosphere at the

time. * * * Regardless of the termination of the unemploy-

ment compensation payments, I was available for work and

able to work at the time said termination occurred. The

problem was, it is suggested, that no suitable employment

B-11

was offered me; as I recall, the only employment actually

offered was, as aforesaid, menial in nature such as dishwash-

ing. Furthermore, although much time has passed, I know

that when I was notified by the California Department of

Employment that there was a possibility for suitable employ-

ment, I followed up such possibility.”

15. (a) By letter of September 25, 1961, the Office of the

Judge. Advocate General advised plaintiff that “According

to the California Unemployment Insurance Code, it fully

appears that your benefits were terminated on 29 January

1955 by the State of California for the reason that you had

failed to make a reasonable effort to secure employment in

your own behalf.” The Office therefore felt that it was

necessary for plaintiff to furnish further information con-

cerning his efforts to secure employment during his suspen-

sion period, and requested that, in support of plaintiff’s

assertions that he attempted to secure such employment,

plaintiff furnish some supporting “definitive proof”, such

as any copies of applications he submitted, résumés, or

correspondence.

(b) By letter of February i2, 1962, plaintiff responded

that the “definitive proof” which the Air Force requested

“is simply not obtainable * * * either with the organize-

tions from whom employment was unsuccessfully sought or

with myself * * * .” He also advised that the California

Department of Employment no longer had any records

concerning the matter. He suggested that the Department

make its own inquiries of such sources. Plaintiff again,

however, sought payment of his claim in the amount of

$163,831.

16. (a) On April 16, 1962, the Air Force Judge Advocate

General recommended to the Secretary of the Air Force that

consideration be given only to that part of plaintiff’s

$163,831 claim which related to back wages, i.e., plaintiff's

original claim of $9,698.89. He stated, among other

things, that “* * * it fully appears that claimant’s

[unemployment] benefits were terminaied because he had

removed himself from the labor market by failing to dili-

gently seek employment.” He noted plaintiff’s failure to

appeal the State’s action in removing plaintiff from the

B-12

unemployment compensation rolls and his attendance of law

school during such period. Despite plaintiff’s contention

that “he was unable to secure satisfactory employment

commensurate with his abilities during this period and that

he remained ready and willing at all times to accept em-

ployment of a suitable nature”, he concluded that “it appears

from all of the information available that claimant was not

actively seeking employment subsequent to 29 January 1955

* * * when he became ineligible for unemployment benefits.”

He therefore recommended to the Secretary that any re-

imbursement after such date be denied. For the period

July 12, 1954 to January 29, 1955, plaintiff's salary would

have been $4,752.52. During such period plaintiff had

received $75 in other earnings, making a net amount due of

$4,677.52. Since California required repayment, where back

wages were awarded, of unemployment benefits during the

period involved, the $270 plaintiff received was not added

to the deductions, Accordingly, it was recommended that

plaintiff be awarded the net amount of $4,677.52, and that

the balance of plaintiff’s claim, in the amount of $5,291.87,

be denied.‘

(b) On April 19, 1962, the Secretary of the Air Force

approved payment of said amount of $4,677.52 “subject to

acceptance by the claimant in full satisfaction and final

settlement.” By letter of the same date, plaintiff was so

advised. The letter stated that “After considering all the

facts, it was determined that your entitlement to reimburse-

ment should be limited to the period from 12 July 1954 to

29 January 1955”, it being concluded “that any entitlement

for the period thereafter should be disapproved since you

had failed to furnish satisfactory evidence to reasonably

demonstrate a diligent interest in securing employment and

availability therefor.” The letter further stated that “* * *

it was considéred significant that your unemployment bene-

fits were terminated by the State of California on 29 January

1955 ostensibly for the reason that you had failed to qualify

‘4 The agency treated plaintiff’s claim as $270 more than he actually claimed

because it did not, as did plaintiff, deduct the unemployment compensation

payments he received. ‘hus, the total lost wages for the period involved was

$10,258.89. Deducting the $290 outside earnings made a net claim of $9,968.89.

The amount awarded was $4,677.52, leaving a balance cf $5,201.87.

B-13_

to deny any reimbursement claimed for the period 30 Janu-

ary 1955 to 21 September 1955.” Plaintiff was advised that

if he accepted the amount of $4,677.52 in full satisfaction and

final settlement of his claim, a check in such amount would

be issued. 3

of $4,677.52, and reasserted his claim in the amount of

$163,831.

17. On July 23, 1962, plaintiff moved that, since the amount

found due to him administratively was unacceptable to him,

the suspension of the proceedings on defendant’s motion to

dismiss be lifted and that the motion be calendared for fur-

ther argument. By order of August 3, 1962, the motion was

allowed. At the second oral argument, plaintiff was given

permission to file an affidavit concerning his efforts to obtain

employment. Such an affidavit was filed on February 5,

1963, in which plaintiff listed various companies with which

he sought employment during the neriod J uly 12, 1954 until

April 9, 1956, when he secured employment with Lockheed.

He further stated that he was “informed and believes” that

the reason he was denied unemployment: benefits after Janu-

ary 29, 1955 “was because of his refusal to tak menial labor,

such as dishwashing * * *,” which the Department suggested

he take, the Department personnel having “equated the with-

drawal of Security Clearance with one being a Communist

and a disloyal American.”

18. By decision of March 6, 1968 (161 Ct. Cl. 37, 814 F. 2d

802), the court ruled that plaintitf was entitled to recover

$4,677.52, constituting lost wages for the period July 12, 1954

to January 29, 1955, as allowed by the administrative deter-

mination, but that, asa result of plaintiff's affidavit submitted

after the oral argument, a question of fact existed concerning

whether plaintiff actually did attempt to obtain employment

during the period January 30, 1955 to September 21, 1955.

The court remanded the issue to a commissioner for the

determination of such “unresolved question.” The court

further’ stated that plaintiff’s claim was not to be prejudiced

by his failure to accept or seek menial employment, such as

AE A aE NTN NE LE LE IE SELES EERE AEA SE NE: PREP TE LEBER EEL I ERE Ss Tb Sl,

B-14

dishwashing. In all other respects, plaintiff’s petition was

dismissed. Plaintiff's motion for reconsideration was denied

on April 17, 1964, and his petition for certiorari on October

12, 1964 (879 U.S. 888).

19. At the trial held in Los Angeles, California, on July

7, 1965, plaintiff himself was the only witness in his behalf.

He did testify that he had, during the period in question,

sought employment commensurate with his educational

background and experience. However, the testimony was

otherwise unsupported. No documents or exhibits, such as

copies of letters or applications for employment, were

introduced. Plaintiff testified he retained no such copies.

He did not enlighten the court with respect to the “unresolved

question” in any respect that added to the affidavit he had

filed with the court on February 5, 1963. Actually, plaintiff's

case at the trial in effect consisted only of such affidavit,

which plaintiff adopted as his testimony and his proof.

(Tr. 17-20; 51.)

Defendant’s evidence consisted of a witness from the

California Department of Employment. He testified that

as a matter of policy, case records are retained only three

years sfter the expiration of the benefit year, so that

plaintiff's records are no longer in existence. He further

testified that as a matter of policy and practice, the Depart-

ment at no time required a man to take work far below his

educational background level ; that the suspension of security

clearance in no way affected an applicant’s eligibility to draw

compensation (although it might affect his availability for

employment); and that benefits could not be terminated

without cause.

Uurmmate Finprngs anp CONCLUSIONS

20. Plaintiff’s conduct before the agency in effect frus-

trated the administrative process. In 1955, when he first

applied to the agency for the restitution of his lost wages, a

remedy which the agency had the power to provide (finding

4) and for which he now sues in this court, as weil as in 1956

when the agency was processing his claim (findings 7, 9),

plaintiff took the position that the reason the State of Cali-

fornia terminated his unemployment compensation payments

om oe eo te aR IES eR ; NR: <TR RT PONIES POP LE RN, My FER OD SD I RAN IM PE

ey UEP IIES «1

B-15

was not pertinent or relevant to the issue of his right to receive

back salary (finding 9). His contention apparently was

that there was no legal obligation on anyone in his position

even to attempt to obtain employment, and relied on the

Mendez case, supra (finding 9), for this proposition, stating

that that case “is not concerned with nor even makes mention

at all relative to Mr. Mendez’s attempts to obtain employ-

ment” (fincing 9). At that time, although plaintiff well knew

the reasons why the State had removed him from the compen-

sation rolls, he refused to inform the agency, daspite the

agency's numerous specific requests therefor. The agency

itself found it was unable, because of confidentiality require-

ments, to obtain the information directly from the State’s

Department of Employment.

21. (a) Plaintiff erred when he contended the agency’s

questions as to why he was removed from the unemployment

compensation rolls were not pertinent or relevant to the issue.

The basic statutory reasons for the removal of applicants

from the compensation rolls were their refusal or failure to

make a reasonable effort to seek work on their own or to

accept or attempt to obtain suitable employment to which

they were referred by the Department of Employment (find-

ing 6). Under the Department of Employment’s regulations,

a claimant, in order to remain eligible, had to show that he

had “followed a course of action which is reasonably de-

signed to result in his prompt re-employment in suitable work,

considering the customary methods of obtaining work in his

usual occupation or for which he is reasonably suited, and

the current condition of the labor market.” Applicants could

not arbitrarily be removed from the compensation rolls

without cause, the bases for such removal being spelled out

in detail. The fair inference is that plaintiff had taken some

voluntary action to disqualify himself by, in effect, remcving

himself from the labor market. The inference is fortified by

plaintiff's failure to appeal or otherwise contest the action

of the State in terminating the payments. At the least,

plaintiff owed the administrative agency an explanation,

which he could have easily given since he was then in full

possession of the facts. And the Department of Employ-

ment’s records were then in existence if resort to them was

necessary.

Se VS ag eS oROne

B-16

The restitution directive provides for payment of loss

of earnings “resulting directly from a suspension of clear-

ance” (finding 4(a)). It directs that interim net earnings

be deducted from the award. One who takes voluntary

action which prevents employment and the accrual of outside

earnings obviously does not qualify. A showing that one

is ready, willing, and able to work at suitable employment

during the interim period is normally a prerequisite to a

back salary award. Graves v. United States, 176 Ct. Cl.

68 (1966); Armand v. United States, 186 Ct. Cl. 339

(195%). In conformity with the rule applicable to dis-

charged employees generally, one suspended for security

reasons must also attempt to mitigate damages by making a

reasonable effort to secure other employment, Schwarts v.

United States, 149 Ct. Cl. 145, 181 F. Supp. 408 (1960), the

rule being particularly applicable where the back pay com-

pensation provisions specifically require, as they do here,

a deduction of interim earnings. Jd.

Accordingly, the questions asked by the administrative

agency were relevant and proper and plaintiff’s refusal to

supply the information amounted to a frustration of the

administrative process. |

(b) The Mendez case upon which plaintiff relied is not

to the contrary. No question was raised in that case such

as is here involved. The issue there was only whether

Mendez’s removal was “unjustified or unwarranted” within

the meaning of a statute allowing back pay compensation

for such removals.

22. In the exhaustion of his administrative remedy, plain-

tiff had a duty to cooperate fully with the agency so that it

would be in a position to make a rational disposition of his

claim and thus possibly avoid burdening the courts with

unnecessary litigation. When the court, by its order of

June 30, 1961, suspended proceedings on defendant’s motion

to dismiss and directed plaintiff to exhaust his administrative

remedy (finding 12), it must have similarly concluded,

despite its decision to give plaintiff another chance. How-

ever, on his return to the agency pursuant to the court’s order,

plaintiff now claimed that, due to the passage of time, he

could not remember the reason for his removal from the rolls

— B-17

in January 1955 (finding 14). By that time, the Department

of Employment had, in normal routine, destroyed the records

in plaintiff's case. Plaintiff “suggested” that whatever reason

the Department then offered was not the real reason anyway,

but instead was grounded on the hysteria of the times,

Plaintiff stated that the Department of Employment sug-

gested he take dishwashing employment but that he refused

to seek such menial employment. The pertinent California

statutes, and the State Department of Emplcyment’s imple-

menting regulations, negate this suggestion. The reguls-

tions specifically provide that “[mJaking + »plication with

such employer who may reasonably be expected to have

openings suitable to the claimant” would be considered by

the Department as making a reasonable effort to obtain

employment, and thus to constitute sufficient compliance to

assure continuance of entitlement to benefits.

Under the circumstances, the administrative agency was

justified in refusing to accept such suggested reason for

plaintiff's removal from the compensation rolls and in

awarding plaintiff back salary only up to J anuary 29, 1955,

the date he was so removed. ~

23. On the basis of the entire record, it is concluded that

plaintiff was not removed from the unemployment compen-

sation rolls because of any suggestions or insistence by the

California Department of Employment that he seek or take

such menial employment as dishwashing.

24. When the court ordered the “unresolved question” of

plaintiff's efforts to obtain employment during the period

January 30, 1955-September 21, 1955, to trial (finding 18),

it must have concluded that the affidavit plaintiff had sub-

mitted to it on February 5, 1963 after the second oral argu-

ment on defendant’s motion to dismiss (finding 17), including

the general, unsupported, self-serving statements contained

therein to the effect that he had sought employment during

such period, was an insufficient basis upon which to predicate

a judgment for back wages for such period. However, at

the trial, plaintiff merely rested his case on such affidavit

(finding 19). Thus plaintiff’s case is in no different posture

now than it was when it was submitted to the court on

B-18

defendant’s motion to dismiss. Pisintiff is no more entitled

to a judgment for such period now than he was then.

Although plaintiff's feelings are, considering the devastat-

ing effects of his experience, quite understandable, neveithe-

less plaintiff in effect delivered an ultimatum to the agency

to pay his back wage claim without asking any questions

else he would sue, in a far greater amount, for “all” his

“damages”, And now that the court has dismissed all claims

asserted other than his back wage claim, the pertinent quee-

tions the agency asked over 10 years ago still remain, due to

plaintiffs original attitude, unanswered.

25. Plaintiff has failed to carry his burden of proving

that he was, during the period January 380, 1955 to Sep-

tember 21, 1955, ready, willing, and able to accept suitable

employment.

26. The administrative agency acted reasonably and was

justified in limiting plaintiff's award of back salarv to

$4,677.52 (finding 16).

27. Such amourt of $4,677.52, to which the court by its

decision of March 6, 1963, held plaintiff to be entitled, is the

total amount plaintiff is entitled to recover.

Conciusion or Law

Upon the foregoing findings of fact and conclusions of law,

which are adopted by the court and made a part of the

judgment herein, the court concludes as a matter of law that

plaintiff ig entitled to recover in the amount of four thovu-

sand six hundred seventy-seven dollars and fifty-two cants

($4,677.52), and judgment is entered for plaintiff in this

amount.

U.S. GOVERNMENT PRINTING OFFICE, 1968

APPENDIX C

CONSTITUTIONAL PROVISIONS, STATUTES,

REGULATIONS AND COURT RULE INVOLVED.

Due Process Clause of Fifth Amendment

nor shall any person

"be deprived of life, liberty, or property,

without due process of law;"

Just Compensation Clause of Fifth Amendment

"nor shall private property be taken for public

use, without just compensation".

Portion of 82 U.S.C. 491 pertinent in the instant case

"The Court of Claims shall have jurisdiction

to render judgment upon any claim against the

United States founded either upon the Constitution,

or any Act of Congress, or any regulation of an

executive department, or upon any express or

implied contract with the United States, or for

liquidated or unliquidated darhages in cases not

sounding in tort. "'

Purported Monetary Restitution Provisions of Regula-

tions Held Unauthorized in Greene v. McEvoy, 360

U.S. 474.

"Industrial Personnel and Security Clearance

Program" (referred to as Program "A" in this

Petition for Writ of Certiorari.)

"23. Monetary Restitution: In cases where

a final determination is favorable to a 7

contractor-employee (but nct a contractor),

the Appeal Division will instruct the Executive

C-1

Secretary to recommend to the Department whose

agency originally referred the case that the

contractor-employee be reimbursed for any loss

of earnings resulting directly from the denial or

revocation of clearance during the interim in an

amount not to exceed the difference between the

amount he would have earned at the rate he was

receiving upon the date of the initial denial or

revocation of clearance and the amount of his

interim net earnings. "'

"Industrial Personnel Security Review Regulation

(Department of Defense Directive No. 5220.6)

referred to as Program "B" in this Petition for

Writ of Certiorari. )

"26. Monetary Rewtitution: In cases where

a final determination is favorable to a con-

tractor employee, the department whose activity

originaliy forwarded the case to the Director

will reimburse the contractor employee in an

equitable amount for any loss of earnings dur-

ing the interim resulting directly from a

suspension of clearance. Such amount shall

not exceed the difference between the amount

the contractor employee would have earned at

the rate he was receiving on the date of sus~

pension and the amount of his interim net

earnings. No contractor employee shall be

compensated for any increase in his loss of

earnings caused by his voluntary action in

unduly delaying the processing of his case

under this regulation."

2 ‘ RF RET MESENTERY I SE TANARIS PRN

1738. State and Territorial statutes and

judicia! proceedings—full faith and credit.—

The Acts of legislature of any Stete, Terri-

tory, or Possession of the United States, or

copies thereof, shall be authenticated by affix-

ing the seal of such State, Territory or Posses-

“ts eae d judicial proccedings of

court of any such State, Territory or Posses-

sion, or copies thereof, shall be proved or

admitted in other courts within the United

States and its Territories and Possessions by

the attestation of the clerk and Seal of the

court annexed, if a seal exists, together with

& certificate of a judge of the court that the

said attestation is in proper form.

Such Acts, records and judicial proceedings

or copies thereof, so authenticated, shal! have

Revisory committee note.—This section was based

on § 687 of former Title 28 (R. 8. $908).

stud for of any county subect toa Joa

or “ coun subjec °

tion of the United States".

te “or ae” were added = three

Statutes and judicial reese under § of

Words “and its Territories and Possessions” were

two

this tle uniform, the basic section of the

book, aving provided that nonjudicial records or

books of any te, Territory, or “county subject to

the jurisdiction of the United States” should ad-

revuru, see tue WRLM) VA bars a2 curaas atunse -= we

cases, proof Rule 27

* Criminal of official recerd, see

of the Federal Rules of Criminal Procedure.

Trending in action on ju ent, see Rule 9(e) of

Rules of thea,

so as to make this section and —

SIMS ENG

addi a

CAPRIS AEA PE FHL TET #

1739. State and Territorial nonjudicial rec-

erds—Fuill faith and credit.—All nonjudicial

records or books kept in any public office of

any State, Territory, or Possession of the

United States, or copies thereof, shall be proved

or admitted in any court or office in any other

State, Territory, or Possession by the attesta-

tion of the custodian of such records or books,

and the seal of his office annexed, if there be

a seal, together with a certificate of a judge

of a court of record of the county, parish, or

district in which such office may be kept, or of

the Governor, or secretary of state, the chan-

cellor or keeper of the great seal, of the State,

Territory. or Possession that the said attesta-

tier. is in due form and by the proper offices.

If the certificate is given by a judge, it

shall be further authenticated by the clerk

or prothonotary of the court, who shall certify,

under his hand and the seal of his office, that

such judge is duly commissioned and qualified;

or, if given by such Governor, secretary, chan-

cellor, or keeper of the great seal, it shall be

under the great seal of the State, Territory,

or ossession in which it is made.

Such records or books, or copies thereof, so

authenticated, shall have the same full faith

and credit in every court and office within the

United Stats and its Territories and Posses-

Revisory committee note.—This section was based

on § 688 of former Title 28 (R. S. § 906).

Words “Possession of the United States” were

substituted for “or any country subject to the juris-

diction of the United States.”

ous hers teen Ce m5. " and

ve n prove

beoks under § 688 of former Title 28, and the addition

these words clarifies the former implied meaning

references. Authentication of copy of official

es of Civil

Criminal cases, of . Rule 27

of the Federal Rules of Crimina) Procedure.

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— TRIRTGS AURA we “4

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.