# 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 > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385607_1283%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1974 - **Citation:** 415 U.S. 913 ## Text 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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385607_1283%3A1. Public record. Not legal advice.