Petition for Writ of Certiorari — United Ass'n of Journeymen & Apprentices of the Plumbing & Pipefitting Industry of the United States & Canada, Local 540 v. Lusk

PaGE

Petition for Certiorari ..................0..eeeeceee 1

I SI onc cons dscn cca dekuudveuseancuoeeses 1

Jurisdiction of Supreme Court ..................... 2

| er rr rrr rere. 2

Constitutional and Statutory Provisions ............. 2

Statement of the Case ......................0..0.0. 3

CASES CITED

PaGE

Cason v. U.S. (1973), 200 ct. cl. 424, 471 F. (2d) 1225.. 6

Hames v. U. S., 164 ct. cl. 746 (cert. denied) 377 U. S.

6

We I gos oc bn eet ee cece renee snes

Palmer v. U. S., 129 ct. el. 322 .......---- essere 6

Rynerson v. U. S., ct. el. No. SE: snxsv ku nee sass 5, 6, 8

Sauer v. U. S., 173 ct. cl. 642, 354 F. (2d) RE 6

Taylor’s Administrator v. U. S., 14 et. el. 380 ........ 6

U. S. v. Throckmorton, 98 U. S. 61 .........--------> 6

Wehrman v. Conklin, 155 U. S. 314 ........-.------>- 6

( iti )

RAL AE I

IN THE

Supreme Court of the United States

Ocroser TERM, 1973

LINDBERGH KIRBY, Petiriones,

versus

THE UNITED STATES, ResponDENT

PETITION FOR WRITS OF CERTIORARI

TO THE UNITED STATES COURT OF CLAIMS

The petitioner, Lindbergh Kirby, plaintiff in Case

Number 760-71 in the United States Court of Claims prays

that the Supreme Court issue to said lower court writs of

certiorari to review each of the judgment orders of the

United States Court of Claims as follows:

A. The opinion, dated May 11, 1973, dismissing his

petition to said court; and

B. The order, dated October 17, 1973, denying his mo-

tion for reconsideration of the decision in the opinion of

May 11, 1973.

OPINION BELOW

On May 11, 1973, the lower court rendered an opinion

in petitioner’s claim styled Lindbergh Kirby v. The United

States, number 760-71. That opinion, with two dissenting

opinions, has not been officially reported but has been re-

ported in a slip opinion which is copied verbatim at pages

6-24 of the Appendix.

2 KirBy, PETITIONER, v. THE UNITED STATES, RESPONDENT

An order, dated October 17, 1973, denying reconsid-

eration is at pages 25-26 of the Appendix.

JURISDICTION

The judgment-orders of the United States Court of

Claims sought to be reviewed were dated May 11, 1973. An

order, dated October 17, 1973, denied petitioner Kirby’s

request for reconsideration of the decision of May 11, 1973.

On January 17, 1974, Mr. Chief Justice Burger signed

an order extending the time for petitioner Kirby to file a

petition for certiorari in the case to and including Febru-

ary 14, 1974.

Jurisdiction in the Supreme Court is invoked under

28 USC 1255.

QUESTIONS PRESENTED

A. Can the United States Court of Claims dismiss a

petition for money judgment (filed within six (6) years

of accrual) because the plaintiff has failed to assert some

narrower cause of action in some other court?

B. Did the United States Court of Claims fail to exer-

cise its jurisdictional functions in refusing to afford relief

to the plaintiff, Kirby, under the provisions of 10 USC

1491, as amended?

C. Was the Court of Claims in error in narrowly in-

terpreting the statute of limitations of six (6) years to in-

elude plaintiff’s claim for retired pay because it applied to

his claim for active duty pay?

CONSTITUTIONAL AND STATUTORY PROVISIONS

The constitutional and statutory basis of petitioner’s

claim are cited below.

Their pertinent text are set forth in the Appendix at-

tached hereto, pages 1 through 4.

Kirsy, PETITIONER, v. THE UNITED STATES, RESPONDENT 3

UNITED STATES CONSTITUTION

Article I, Section 8

Article ITI, Sections 1 (1) & 2 (2)

10 USC 1552

28 USC 1491 (1973 pocket part)

28 USC 2501

10 USC 8811 (now 10 USC 1169)

10 USC 8914

Rule 37 Court of Claims

STATEMENT OF THE CASE

1. Petitioner was born on May 12, 1928. He enlisted

in the U. S. Army on June 30th, 1946, and was assigned to

the Army Air Force. When the Air Force separated from

the Army, he became a regular member of the Air Force

and served through four continuous six year enlistments

except for a short interim of three and one-half months

between enlistments. He last enlisted on June 10, 1961, for

& six (6) year term in the grade of Master Sergeant (E7),

the highest enlisted grade at that time. Had he been pri-

vileged to serve out his contract which would have ex-

pired on July 9, 1967, he would have been eligible to have

voluntarily retried on July 10, 1967 as a Master Sergeant

(E7) with twenty years, ten months, and seventeen days

active duty.

2. On May 2, 1963, he was administratively, involun-

tarily discharged from the Air Force in his grade of Mas-

ter Sergeant with an honorable discharge for unsuitabil-

ity, under regulations pursuant to 10 USC 8811 (now 10

USC 1169).

3. Petitioner sought to have his discharge set aside

and his records corrected by appealing to the Air Force

Discharge Review Board and to the Air Force Board For

Correction of Military Records, as permitted in 10 USC

TT

4 Kigsy, PETITIONER, v. THE UNITED STATES, RESPONDENT

1552, requesting that his discharge be set aside and/or his

records be corrected by removing the “unsuitability” char-

acterization of his discharge so that he would be eligible

to re-enlist and complete his current six year enlistment

contract which was in effect at the time of his discharge.

The correction board arbitrarily refused him a hearing

(although required to do so) and denied his request for

relief by letter dated January 19, 1968.

4. By petition filed September 16, 1971, petitioner sued

in the United States Court of Claims pursuant to 28 USC

1491 seeking to recover active duty pay and allowances

from the date of his illegal discharge on May 2, 1963 to the

date his enlistment contract of six years would have ex-

pired by operation of law, July 9, 1967, and for retired pay

and allowances due him as a Master Sergeant with thirty

years active service or in the alternate, with more than

twenty years active service. The basis of plaintiff’s claim

in the Court of Claims was that his discharge was illegal

because in violation of the rules and regulations promul-

gated by the Secretary of the Air Force pursuant to his

authority under 10 USC 8811 (now 10 USC 1169) (App.,

p. 3).

5. Defendant United States pleaded the statute of

limitations of six years as to petitioner’s claim for active

duty pay and allowances. Defendant did not plead the limi-

tation statute as a defense to the claim for retirement pay

and allowances, defending, instead on the ground that

plaintiff’s claim for retirement pay should be dismissed

because his involuntary discharge was legally sufficient. In

this pleading, defendant admitted plaintiff’s claim was not

barred by the statute of limitations (Rule 37, Court of

Claims, App., p. 4).

6. The cause came on to be heard before the full Court

of Claims on November 3rd, 1972 on cross-motions - for

eb SR OI NTE

KirgBY, PETITIONER, v. THE UNITED STATES, RESPONDENT 5

summary judgment. During the course of oral argument,

plaintiff conceded that his money claim for active duty

pay and allowances was filed too late because it was filed

more than six years after the date of his discharge on May

2, 1963. Plaintiff contended however, that his claim for re-

tired pay and allowances was not barred by the statute of

limitations because his right to retire with twenty years

active service accrued on July 9th or 10th, 1967, less than

six years from the date his claim first accrued. At the same

hearing, counsel for defendant, The United States, was

asked by a court member why the defense did not plead the

statute of limitations as a bar to plaintiff’s claim for re-

tired pay. Counsel’s response was that the defense was of

the opinion that the order in the case of Rynerson v.

United States, No. 57-71 (App., pp. 5-6), dated November

11, 1971 holding that Rynerson’s claim for retired pay, hav-

ing been filed within six years of his right to retire, con-

stituted authority that plaintiff’s claim for retired pay and

allowances was timely made.*

7. On completion of argument, the court directed both

sides to file briefs on the points (1) was plaintiff’s claim

for retired pay and allowances barred by the statute of

limitations (28 USC 2501) and (2) was it barred by laches.

8. In an opinion, dated May 11, 1973, with two of the

seven justices strongly dissenting, the court held that

plaintiff Kirby’s claim for retired pay and allowances was

barred by the limitations statute because it had not been

filed within six (6) years from the date Kirby was ordered

discharged in 1963 (App., pp. 6-24). By order, dated Octo-

ber 17, 1973, that court denied petitioner Kirby’s request

for reconsideration of the decision of May 11, 1973 (App.,

pp. 25-26).

* Rynerson’s claim was subsequently dismissed on the grounds of

laches. Thus his claim, like Kirby’s, was not barred by the statute of

limitations. Rynerson v. U. S., 57-71, decided June 22, 1978.

6 Kimsy, Peririoner, v. THE UNITED STATES, RESPONDENT

REASONS FOR GRANTING THE WRITS

1. The Court of Claims has decided the following im-

portant question of federal law which has not been, but

should be, settled by this court:

Can the United States Court of Claims dismiss a

petition for money filed within 6 years of accrual, as

was petitioner’s claim for retired pay because the

plaintiff has failed to assert some narrower cause of

action in some other court such as a request for de-

claratory judgment, mandamus, etce.?

2. The Court of Claims’ decision in Kirby v. The

United States is in conflict with its judgment order in Ry-

nerson v. The United States, No. 57-71, dated November

11, 1973 (App., p. 5), and with the following prior decisions

of the Court of Claims: Hames v. Umted States, 164 Ct. Cl.

746 (cert. denied), 377 U. S. 904 (1964) ; Palmer v. United

States, 129 Ct. Cl. 322, 121 F. Supp. 643 (1954); Cf. Cason

v. United States, 200 Ct. Cl. 424, 471 F. (2d) 1225 (1973) ;

Sauer v. United States, 173 Ct. cl. 642, 354 F. (2d) 302

(1965).

3. The Court of Claims has decided federal questions

in ways conflicting with the following decisions of this

court:

ee NT SR

Wehrman v. Conklin (1894), 155 U. S. 314, 325,

326, 15 S. Ct. 129, 39 L. Ed. 167, holding that a pure

claim for money filed within the statutory period of

limitation may not be dismissed on that ground or for

laches.

Taylor's Admimstrator v. U. S. (1878), 14 Ct. Cl.

339, 353, affirmed in U. S. v. Taylor (Oct. 1881),

104 U. S. (14 Otto) 216, 26 L. Ed. 721, where the courts

held that a claim against the government for money

due under a statute which required the claimant to file

an application with the executive branch, does not ac-

crue until the application is filed with such branch.

U. S. v. Throckmorton (Oct. 1878), 98 U. S. 61, 25 L.

ee

Kinsy, PEeririoner, v. THE UNITED STATES, RESPONDENT q

Ed. 93, holding that plaintiff may not split his causes

of action.

4. The Court of Claims has decided a federal question

in this case not heretofore decided by this court when the

Court of Claims refused to grant plaintiff Kirby’s Motion

for Reconsideration, dated May 30, 1973, asking the court

to provide - - - “an entire remedy and to complete relief

afforded by the judgment - - - by issuing orders directing

restoration to office or position, placement in appropriate

duty status, and correction of applicable records, and such

orders may be issued to any appropriate official of the

United States - - - - ” pursuant to the amendment of 29

August 1972 to 10 USC 1491 (86 Stat. 652).

ARGUMENT

Petitioner will not present a lengthly argument here,

relying upon the authorities filed and in particular, on the

reasoning and opinions of dissenting Judges Davis and

Nichols in the decision of May 11, 1973 in plaintiff’s case

before the Court of Claims. In addition, petitioner is of the

opinion that the Court of Claims arbitrarily refused to

grant relief to plaintiff Kirby which was within its juris-

dictional functions, in declining to grant any of the options

afforded it under the 1972 amendment to 10 USC 1491.

Petitioner is satisfied that the reasons heretofore cited

are sufficient to cause this court to grant the writs prayed.

In deference to the provisions of pragraph 3, Rule 23,

no separate or supporting brief is being filed.

8 Kimsy, PETITIONER, v. THE UNITED STATES, RESPONDENT

CONCLUSION

The United States Court of Claims misdecided a new

and important question of federal law, decided federal

questions in ways conflicting with its own and decisions of

this court, and far departed from the accepted and usual

course of judicial proceedings. These grounds for certi-

orari are summarized in Reasons for Granting the Writs.

These lower court errors involved the court’s abuse of

judicial power of retroactive judicial legislation and other-

wise, thus enlarging technical and anomalous time-bars, and

the court’s non-use of its power to hear and decide the mer-

its of a money claim against the United States based on

statutes benefiting veterans, plus its refusal to apply addi-

tional relief to claimants granted it by recent acts of con-

gress, are believed to require writs of certiorari.

Pursuant to Rule 23, paragraph 5, this court’s atten-

tion is invited to the petition for writs of certiorari in the

case of Rynerson v. United States, number 73-1084, dock-

eted January 9, 1974.

Respectfully submitted,

DAVID E. TRICE,

113 Market Street,

Cheraw, South Carolina 29520,

Attorney for Petitioner.