Petition for Writ of Certiorari — Ross v. United States

Supreme Court brief1974

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Text

FILED

AUG 26 1974

Lotercere ln em

BPrca “oes

In The MICHAEL ROBAK, JR..CLERK

SUPREME COURT OF THE UNITED STATES

October Term, 1974

“No. q4- 18 4

MICHAEL S. ROSS, Petitioner

UNITED STATES OF AMERICA, et. al.,

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF CLAIMS

Michael S. Ross

5502 Pelham Road

Durham, North Carolina 27707

INDEX

Page

Opinions Below... . + eee eee 2

Jurisdiction... 1 «sees es 6

Questions Presented . . . . sues 7

Constitutional, Statutory And

Regulatory Provisions Involved . 10

Statement of the Case ....... 15

Reasons for Granting the Writ ... 25

COnCTUSTON . ws we ee seinen enee 46

Appendix A (Opinion of the District

Court For the Central District Of

Se eee ee 47

Appendix B (Opinion of the United

States Ccurt Of Claims) ..... 50

Appendix ¢ (Denial of rehearing by

United States Court Of Claims) . 51

Appendix D (Notice of Appeal) ... 52

Appendix E (28 U. S. C., Section

Dara age ae eae , 53

PAPE FOE ETO ED LPL TION EOP EET BE

Boas LAUR NY

CASE CITATIONS

Case Page

Ashe v. McNamara, 355 F. 2d. 277,

Fiat Civ. TUES} . 0s ee ee 8 31

Burns v. Wilson, 346 U. S. 137, 73 S.

Ct. 1046, 97 L. Ed. 2d. 1508, (1953) 30

Carney v. U. S., 462 F. 2d. 1142,

ton Ct. Cl. 160, (1972) ... 6, &

Carter v. Seamans, 411 F. 2d. 767,

cert. denied 397 U. S. 941, 70

S. Ct. 953, 25 L. Ed. 2d. 121,

PE se ake ee 26, 39, 40

Clinton v. U. S., 423 F. 2d. 1367,

7) Ct. Ci. GS. (IPG) . . - s 26

Edgar v. U. S., 171 F. Supp. 243,

145 Ct. C1. 8, C108R} wt wt 26

Fleming v. Chafee, 330 F. Supp. 193,

i: gk Sa oe Sh} eee 25

Glidden Co. v. Zdanck,

a Ma Ee oo al ee eae 28

Green v. U. S., 172 F. Supp. 679,

145 Ct. Ci. G26, (1969) . ...-> 26

Harmon v. Brucker, 355 U. S. 519,

ve S$. Ct. 433, ZL. . A. BSS,

SOE Sat oa hae ke ets 25, 30

Homcy v. Resor, 147 U. S. App. D. C.,

277, 455 F. 2d. 1345, (1971) . 25, 31

Beers Rares hous Gy aie Ta manta hoa

CASE CITATIONS (cont. )

Case Page

International Engineering Co. v.

Richardson, 361 F. Supp. 818, (1973) 26

Johnson v. Zerbst, 304 U. S. 458, 58 Ct.

Cl. 1019, 82 L. Ed. 1461, (1938) . 30

Kauffman v. Secretary of the Air

Force, 135 U. S. App. D. C. 277,

415 F. 2d. 991, (19699) ...... 30

Kirby v. U. S., 201 Ct. Cl. 537,

he Be ere eee ee 26

Larsen v. U. S., 170 F. Supp. 806,

pee Gt, O20. 376, CORRE nw ee ts 26

Minnesota v. Weinberger, 359 F. Supp.

Wes Rees a aa a 8K 26

Melvin v. Laird, 365 F. Supp. 511,

SUD cca ae ase ae 29

Parrish v. Seamans, 343 F. Supp. 1093,

SUE Sa ee a ee 26, 39, 40

Paulsen v. U. S., p. 570, Order No.

27-67, Ct. Cl., (1968) .. 2.2. 26

Technology Printed Circuits, Ltd. v.

O. Sug Sea ve Cee SSR, 178 Gt. Cl.

es a ae a ro a Pope 26

U. S. v. Alire,

Pests hs 6S ee ee ek 28

U. S. v. Jones,

on AS eS a a rr a ee 28

PHO ETA ELTON Ht

ME OPE IIETS

ARTES

Qerceene eee RY

CASE CITATIONS (cont.}

Case Page

U. S. v. King,

395 U. S. 1, (1968) 25, 28, 29, 35, 36

Ward v. U. S., 428 F. 2d. 1288, (1979) 26

William v. U. S., 139 F. Supp. 951,

aoe Ste Gh. FOes COUR? 2 ss ba 26

Zimmerman v. U. S. Government, 422

Pe ee ME). ) rere 26

CONSTITUTION

Section Page

Article IV 9, 10

Amendment V 10

STATUTES

Section Page

U. S. C., Title 10, Section 815 22

U. S. C., Title 10, Section 818 27

U. S. C., Title 10, Section 819 27

U. S. C., Title 10, Section 820 27

wae ee |

| ae PMSA ANSE MC RRS ATR

= a Ga G&G «& ¢& & ¢&

STATUTES (cont. )

Section

., Title 10,

» Title 28,

so litte 26,

~» Titles28,

-» litle 28,

eo Ft Vern Se Cf Ce BF

-, Title 28,

ww Vw WwW OF A A WH

Title 28,

Section

REGULATIONS

Section

oP. Rey Title BR,

» #, R., Title 3,

(2)

~ F. R., Title 32,

(a) (3) and (b)

re. Title Se.

Section

Section 713.382 (a) (2)

. F. R., Title 32,

Section 713.403 (3)

Page

933 27

1346 11, 31, 34

1361 6, 11, 31

1491 11, 31, 34

1651 6

2201 6

2401 4,9

2501 4,6, 9

Page

101.3 21

713.326

16, 22

713.381

19, 20

REGULATIONS (cont. )

Section Page

C. Fa Bow CeEee: Ae

Section 713.412 (b) 22

Oe Fe Ae ee ’

Section 730.12 19, 22

eet ae Fa 3 See a

Section 730.15 22

MICHAEL S. ROSS

5-04 Pelham Road

Durham, North Carolina 27707

TEL: (919) 544-3001

IN THE SUPREME COURT OF THE UNITED STATES

MICHAEL S. ROSS, CIVIL NO. 74-

Plaintiff, 527LTL

vs. COURT OF CLAIMS

THE UNITED STATES OF AMERICA, ) NO. 352-73

and

JOHN HUBBARD CHAFEE,

Secretary of the Navy,

PETITION FOR

WRIT OF

and

CERTIORARI

DR. ROBERT C. SEAMONS, JR.,

Secretary of the Air Force,

Defendants.

a i tN Ne a Ne ee Se et Se et Se tl Stl tl St etl St tt et ae

TO THE HONORABLE JUDGES OF THE SUPREME COURT OF

THE UNITED STATES:

Petitioner respectfully prays for a writ

of certiorari to the United States Court Of Claims

to review an order of that Court entered on

May 31, 1974 concluding petitioner's cause for

declaratory judgment and monetary damages to be

barred therein by the statute of limitations

encompassed by U. S. C., Title 28, Section 2501.

SUMMARY OF LOWER COURT OPINIONS

A decree, included as addendum hereto as

Appendix A at pages°47-49, sustaining jurisdiction

therein but delaying examination on the merits

until exhaustion of administrative remedies in

the military correction boards was entered in

the United States District Court For the Central

District Of California, the Honorable Robert J.

Kelleher presiding, on June 12, 1972. No appeal

was taken from said judgment by either party.

Extremely disdraught monetarily over a

so-called "criminal conviction" in early 1971 for

alleged attempted extortion in attempting to

bring forth the truth to evidence to attorneys

the grounds for and necessity of judicial relief,

extended litigation against the Veterans Adminis-

tration culminating in instigation of the within

cause and procrastination of the Board For the

Correction Of Naval Records in delaying over a

year in ruling on plaintiff's prerequisite

application thereto, immediately upon receipt of

the Board's review decision in early September,

1973, petitioner, eager to cash in and end the

monetary draught and feeling the rendering of a

declaratory judgment automatic and merely a

procedural formality at this stage and that the

worst rationaie:that could prevail would be that

his filing therein was premature, instituted an.

identically styled suit to the aforementioned in

the United States Court Of Ciaims on September 25,

1973. Extention was granted to the defendant

United States until the 25th of January, 1974 for

the reason that the Department Of the Navy had

delayed in thansmitting petitioner's military record

together with the facts and circumstances

attendant thereto to the Department Of Justice and |

thereby prevented counsel for the defendant from

being able to prepare an informative response. .

On March 15, 1974 presiding judge Skelton together

with judges Kashiwa and Kunzig deemed, as reported

herein ab Appendix B at page 50, petitioner's claim

barred by the running of the statute of limitations

therein under U. S. C., Title 28, Section 2501 as

exclusive, separate and distinct from the statute

of limitations applicable to district court

causes, U. S. C., Title 28, Section 2401.

Coincident therewith on March 8, 1974

plaintiff dutifly repeated his earlier complaint

filing in the United States District Court For

the Central District Of California.

Upon notification of said petition denial

in the Court Of Claims petitioner duly prepared and

proffered his petition for rehearing therein.

Likewise, shortly thereafter on June 5, 1974 he

received the document addended hereto at Appendix C

at page 61, denying said rehearing petition

effective May 31, 1974.

Whereupon, petitioner immediately

docketed the notice of appeal appearing as

Appendix D page 5} herein.

Now in a series of one motion to dismiss

coupled with three memoranda supplemental thereto

the defendant seeks to foreclose petitioner's

cause in the United States District Court For the

Central District Of California as well solely on

the basis of the res judicata? of the Court Of

Claims later and separate incredulous finding of

bar by the statute of limitations. And, in fact,

has succeeded, over petitioner's objections, in

obtaining a stay therein pending the outcome of

this appeal.

JURISDICTION TO REVIEW

The instant action was brought

immediately upon discovery of the existence

thereof of means by which to correct petitioner's

United States Navy record to witness the three

years of honorable commissioned service reflective

of the true legal consequence of the events

occurring therein under authority of the

Declaratory Judgment Act, U. S. C., Title 28,

Section 2201 and for recovery of back pay

thereupon pursuant to the Mandamus Statute,

U. S. C., Title 28, Section 1361.

The judgements sought to be corrected

to conform to the prior unappealed ascertainment

of the United States District Court For the

Central District Of California are the conclusions

of the Court Of Claims on March i5, 1974 that

petitioner's cause was barred by the statute of

limitations peculiar to that Court, U. S. C.,

Title 28, Section 2501 and its denial of petition

for rehearing entered on May 31, 1974. Notice of

appeal was filed on June 12, 1974 in the United

States Court Of Claims. This petition for

certiorari was filed less than ninety days from

the date aforesaid.

Authority to resolve this potentially

perpetual controversy is conferred upon this Court

by U. S. C., Title 28, Section 1651 (a).

QUESTIONS PRESENTED

Before the Court Of Claims was granted

cognizance of declaratory judgment actions in August,

1972, just prior to the running of the statute

of limitations of the instant cause in the

district courts, on February 25, 1972 petitioner

filed the within equitable and monetary complaint

in the United States District Court For the

Central District Of California. Jurisdiction

was upheld therein while consideration of the

merits was postponed pending prerequisite

administrative review. Subsequent to the

formality of rendition of that review on

September 16, 1973, petitioner submitted

an identically styled claim to the United

States Court Of Claims. Said claim was construed

thereby on March 15, 1974 to be barred by the

statute of limitations applicable exclusively

to it and to no other. Now; . the defendant

options to use that judgment by virtue of

application of the res judicata?oof the later

Court Of Claims decision on the earlier

contrary determination of the United States

District Court For the Central District Of

California to close the only route which this

Court and the Congress provided for relief.

The crux of this dispute, then, stems essentially

from the failure of the Court Of Ciaims to be

bound by the precursing a priori unappealed

decisions of the United States District Court

For the Central District Of California in

following the sequence of action prosecutions

specifically prescribed by this Court as

mandatory to obtain the type of relief sought.

The questions thereby arising are:

1. The within action focuses upon

and asks the plenary judicial resolution of a

single critical central issue. That issue is,

simply whether the filing and acceptance of

jurisdiction over an identical action in the

District Court For the Central District Of

California on February 25, 1972 stays the

running of the statute of limitations on the

very same action filed on September 25, 1973

in the United States Court Of Claims for

specialized declaratory judgment actions for

amounts in excess of $10,000.00 requiring later

adjudication of monetary recovery by the

Court Of Claims.

a. Ancillary thereto is the question

of whether U. S. C., Title 28, Section 2501

constitutes suchaa separate and independent

statute of limitations from U. S. C., Title 28,

Section 2401 for the United States Court Of

Claims so as to render timely applications under

the latter, at least in the type of communitive

case here involved, untimely when filed after

the six year limit in the Court Of Claims.

b. Inclusive therein as well is the

possibility of a violation of the full faith and

credit clause of Article IV, Section I of the

Constitution of the United States of America.

CONSTITUTIONAL, STATUTORY AND REGULATORY

PROVISIONS INVOLVED

Constitution Of the United States:

Article IV. The States and the Federal

Government

Section 1. Official Acts Of the State

Full faith and credit shall be given in

each State to the public acts, records, and

judicial proceedings of every other State.

And the Congress may by general laws prescribe

the manner in which such acts, records and

proceedings shall be proved, and the effect

thereof.

Amendment V. Criminal Proceedings and

Condemnation Of Property

No person shall be held to answer for a

capital, or otherwise infamous crime, unless

on a presentment or indictment of a grand

jury, except in cases arising in the land or

naval forces, or in the militia, when in

actual service in time of war or public

SURREY POAT ES: —

danger; nor shall any person be subject for

the same offense to be twice put in jeopardy

;

of life or limb; nor shall be compelled in any

criminal case to be a witness against himself,

nornor be deppived of life, liberty, or property,

without due process of law; nor shall private

property be taken for public use without

just compensation.

Statutes Of the United States:

U. S. C., Title 28, Section 1346 (addended

hereto as appendix E, page 53), page 251.

U. S. C., Title 28, Section 1361, nage 20.

Action To Compel an Officer Of the United

States To Perform His Duty

The district courts shall bave original

jurisdiction of any action in the nature

of a mandamus to compel an officer or

employee of the United States or any agency

thereof to perform a duty owed to the

plaintiff.

U. S. C., Title 28, Section 1491, page 513.

IRR YT TRI RE SOs

Claims Against the United States Generally

The Court Of Claims shall have jurisdiction |

to render judgment upon any claim against the

United States:

(1) Founded upon the Constitution; or

(2) Founded upon any Act of Congress; or

(3) Founded upon any regulation of an

executive department; or

(4) Founded upon any express or implied

contract with the United States; or

(5) For liquidated or unliquidated damages

not sounding in tort.

U. S. C., Title 28, Section 2201, page 412.

The Declaratory Judgment Act. Creation Of a

Remedy

In a case of actual controversy within its

jurisdiction, except with respect to Federal

taxes, any court of the United States, upon

the filing of an appropriate pleading, may

declare the rights and other legal relations

of any interested party seeking such

declaration whether or not further relief is

or could be sought. Any such declaration

shall have the force and effect of a final

judgment or decree and shall be reviewable

as such.

U. S. C., Title 28, Section 2401, page 293.

Statute Of Limitations

(a) Every civil action commenced against

the United States shall be barred unless the

complaint is filed within six years after the

Fight of action first accrues. The action

of any person under legal disability or beyond

the seas at the time the claim accrues may

be commenced within three years after the

disability ceases.

(b)(b)tArtortachaimaagainstetheiUnitédaStates

shall be forever barred unless action is begun

within two years after such claim accrues or

within one year after the date of enactment

of this amendatory sentence, whichever is

later, %r- unless, if it is a claim not

exceeding $2,500.00, it is presented in.

writing to the e>vropriate Federal agency

av.

SRSA EK

Cj CRVDA OIG REP POAT ARO OE

ERO RE

NESE ERS es

-3

ithin two years after the date of enactment .

of this amendatory sentence, whichever is

later. If a claim not exceeding $2,500.00

has been presented in writing to the

appropriate Federal agency within that period

of time, suit thereon shall not be barred

until expiration of a period of six months

after either the date of withdrawal of such

claim from the agency or the date of mailing

notice by the agency of final disposition

of the claim.

U. S. C., Title 28, Section 2501, page 2.

Statute of limitations

(a) Every claim of which the Court Of

Claims has jurisdiction shall be barred

unless the petition thereon is filed within

six years after such claim first accrues.

Every claim under 1497 of this title

shall be barred unless the petition thereon

is filed within two years after the termination

of the river and harbor improvement operations

‘

RA? EA Re Serie ea hel

SMR

SARA CON AO. ky

ROTEL EET TOMLIN MG

on which the claim is based.

A petition on the claim of a person under

legal disability or beyond the seas at the time

the claim accrues may be filed within three

years after the disability ceases.

A suit for the fees of an officer of the

United States shall not be filed until his

account for such fees has been finally acted

upon, unless the General Accounting Office

fails to act within six months after reviewing

the account.

STATEMENT OF THE CASE

On May 10, 1961 petitioner volunteered

and contracted for six years of enlisted service

in the United States Naval Reserve to be performed

in two parts: a two year active duty segment

and four years of reserve endeavor and training.

After completing accelerated boot camp, in August,

1961, on April 3, 1962 petitioner embarked on

snag a RSP ANY Ay

the most desireable BuPers scheduled 21 month

training curriculum in electronics technicianry

(comprising 6 months basic electricity training

coupled with 15 months training in basic

electronics) at NRSD 11-3, Los Alamitos. Upon

his entry the class had more than half completed

the intial six month basic electricity course;

consequently, he performed double duty without

complaint to stay abreast.

Later, he became somewhat disenchanted

with the seeming low morality prevalent amongst

the enlisted ranks; thus, when the Opportunity

to gain a commission through the Naval Reserve

Officer Candidate program arose in December,

1962, petitioner jumped at the chance, C. F. R.,

Title 32, Section 713.326 (2). The original

enlistment contract was superseded by a three

year active commissioned service obligation and

open end commissioned reserve Obligation. The

first rugged summer session was completed in

satisfactory fashion in August, 1963.

Owing to his excellent demonstration

of potentional in chemistry at Long Beach State

College, in order to complete his educational

training at tee Univessitvlf Gal igennda

Berkeley in chemical engineering, petitioner

was directed at Los Alamitos, NRSD 11-3, to

attend drills at NRSD 12-6, Vallego,

California.

Thus, on September 4, 1963, petitioner

and his parents sojourned to the situs of NRSD

12-6, whereupon they were advised of the

prohibitive distance involved for access to this

location via public transportation and assigned

thereby pursuant to Com Twelve Inst. 1306.5C to

transfer to NRSD 12-26, Treasure Island,

California. Later that same afternoon petitioner

inquiried, in the presence of his father, of the

yeoman stationkeeper on duty at NRSD 12-26 of

the meeting time designated for said unit. This

was stated by him to be on the first weekend of

each month. It was then reiteratively queried

of this third or second class yeoman whether

petitioner should report at the upcoming

a Seated

October meeting. The repeated reply was an emphatic

negative for the reason that the unit would not

yet have received petitioner}s records from NRSD

11-3. When asked when he should report, petitioner

was order by this individual in the presence of

his father to await contact by NRSD 12-26.

Finally, curious and worried about

what NRSD 12-26 expected of him and eager to

continue his ascent to electronics technician

third class, on or about December, 1963,

petitioner telephoned the representative of

that unit and learned that they expected his

presence at the subsequent drills. At the

January, 1964 drill, petitioner explained what

had transpired to Commander Holst and was

severély reprimanded.

At that point pétitioner ostensibly

resumes his quest for electronic technician

third class petty officer status, but his efforts

are stymied at every turn by the first class

instructor thereat who refuses to instruct

electronics, to provide advancement cnntnat ten .

se —

J aa

or do anything but consume the whole eight hour

training period in the narration of dity jokes

in diametric contravention of his responsibilities

under C. F. R., Title 32, Section 713.382 (a) (2).

;

Petitioner sits calmly by apprehensive

about his rapidly diminishing electronic

technician prowess, repulsively soaking up this

mealy-mouth sickening garbage, meanwhile, politely,

cogently, pleadingly urging the “instructor” to

reform of his own volition and constantly clamoring

to the officerdom of NRSD 12-26 to act either ;

to compel the first class to do his job, allow

petitioner to study on his own, transfer

petitioner, or remove the "instructor." All © [

such requests and demands were rebuffed on the H

grounds that "nothing could be done.” Inasmuch

as this prolonged shirking violated C. F. R.,

Title 32, Section 713.381 (a) (2) & (b) and

Section 730.12 (b) (2), it was unlawful, :

constituting an intent to defraud petitioner,

his classmates and the United States out of ;

their electronic technicianships and the benefits

expected to be dervved from its salary payments,

RMN TN

expected to be derived from its salary payments,

respectively, and the moneys to be paid them and

him by the United States, respectively, and

should have been stopped by command authorities,

C. F. R., Title 32, Section 713.381.

Finally, petitioner became so rankled,

angry, tormented, frustrated and driven crazy in

the course of being illegally forced to listen

to this uncouth, demeaning, sickening slop over

the course of two years while his electronic

technician thirdship slipped away that at the

March, 1965 drill, petitioner searched for and

found a place of recluse and aolitude within the

confines of Hanger No. 2 to engage in serious

prolific study of chemical engineering curriculum

including electrical engineering 101, comprising

a study of electronics and solid state

electronics. The “instructor! discovered

petitioner!s absence and apparently tattletailed

his version of petitioner's conduct to unit

commander, Jerry J. Holst, CDR.

Hence, immediately upon commencing

PRT MT mong

COA RET 64 AL DE A 7

*he next drill, April, 1965, petitioner was

called out on the carpet by the commanding officer.

Whereupon, without specifying any statutory or

regulatory violation, Commander Holst announced

that he would recommend petitioner's discharge

from the R. 0. C. program for "unofficer-like

. conduct," over petitioner's vehement protests

that the electronics technician instructor has

dose nothing but tell dirty jokes for years and

for a hearing or courts-martial trial.

Although satisfactory compliance with

Naval Reserve obligation under Navy regulations,

C. F. R., Title 32, Section 101.3, allows for

10% unexcused absences, unlimited certified

excused absences for sickness and no where

requires attendance at dirty joke sessions,

prescribes dirty jokes sessions as proper tate

training subject matter, or requires attendance

at activities unauthorized by law and petitioner's

attendance record is essentially impeccable,

Commander Holst's recommendation effectuated

petitioner's removal from the R. 0. C. program,

C. F. R., Title 32, Section 713.326 without

TRG sand

authority, U. S. C., Title 10, Section 815, and

without benefit of hearing or trial plainly

made prerequisite to removal by C. F. R.,

Title 32, Section 713.403 (3), Section 713.412 (b),

Section730.12 and-Section 730.15 and U. S. C.,

Title 10, Sections 818, 819, 820 and 933,

Consequently, such action was and is wholly

arbitrary and capricious, totally absent the

due process of law a legal nullity and void.

Petitioner thus reasoned that he had ‘

effectively been convicted of criminal conduct,

severely defamed thereby and defrauded and

robbed of $20,000.00 without benefit of a trial

and believing it unconscionable and catastrophic

employment-wise and economically to withstand

the scrouge of such a criminal conviction upon

his release from service, he inquired into the

possibility of covering up this scar on his

record by entering the Air Force Officer Training 4

program. Unbeknownst to petitioner, Commander

“upist received immediate notification of this

inquiry and undertook to inflict, without reason,

the still further punishment upon petitioner of

assigning him to fleet reserve ship U. S. S.

WALTON (DE 161) including an extra drill on

Friday evening each month and eliminating all

specialty rate training whatsoever. |

As a proximate cause of Commander

Jerry J. Holst's criminal act discharging

petitioner from the R. 0. C. program late in the

1965 school year petitioner lost, in the

alternative his compensation for summer

employment as a chemical engineer of

approximately $2,000.00 or his earnings for

completion of the 1965 R. 0. C. commissioning

summer .

Finally, at a special session held

in San Francisco on February 20, 1966, Mary L.

Brown, CPR, acting for the commandant of the

Twelfth Naval District denied petitioner$s

advoeation of his entitlement to serve either

as a Naval Reserve Officer of electronics

technician third class or better or be released,

while simul taneousty recommending petitioner

for re-enlistment in the Air Force wherein she

knew petitioner would engage in their officer

training program.

Moreover, as evidenced from the

affidavit of petitioner's former electronics

technician instructor at NRSD 11-3, Mr. William

B. Corbett, the NRSD 12-26's first class's

action was intended to defraud petitioner out

of the compensation comiensurate with the status

of electronic technician third and second class

petty officer.

On February 25, 1972 petitioner

commenced suit in the Federal District Court For

the Central District Of California for correction

of his’ Naval Reserve records to reflect three years

of honorable commissioned service, for back pay

therefor and reinstatement in commissioned status

in’ the Naval Reserve. That complaint was deemed

premature for the reason of petitioner's failure

perspec

Ae EP OO i

to exhaust his administrative remedies in the :

respective military correction boards and E

judgment entered in the defendants favor

without prejudice to petitioner's refiling said

complaint upon satisfaction of that objection.

On August 2, 1972 and August 31, 1973,

the Air Force and Navy Board For the Correction

Of Military Records, respectively, denied

petitioner's applications for corrective actions 2

thereto.

The very entity of the Court Of Claims i

itself has repeatedly, unequivocally, without :

exceptiong, unwaiveringly, resolutely decreed é

that accepted filings in the district court are

equivalent to filings in the Court Of Claims.

and as such, upon assumption of jurisdiction,

stay the statute of limitations therein; U. S.

v. King, 395 U. S. 1, (1968); Harmon v. Brucker,

355 U. S. 519, 78 S. Ct. 433, 2.L. Ed. wd. 503,

(1958); Carney v. U. S., 462 F. 2d. 1142, 199

Ct. Cl. 160, (1972); Homcy v. Resor, 147 U. S. '

App. D. C. 277, 455 F. 2d. 1345, (1971);

Ward v. U. S., 428 F. 2d. 1288, (1970); Clinton

v. U. S., 423 F. 2d. 1367, 191 Ct. Cl. 605,

__(1970); Zimmerman v. U. S. Government, 422 F. 2d.

326, 327, (1970); Carter v. Seamans, 411 F. 2d. —

767, 2%$, cert. denied 397 U. S. 941, 70S. Ct.

953, 25 L. Ed. 2d. 121, (1969); Technology Printed

Circuits Ltd. v. U. S., 372 F. 2d. 969, 974-975,

178 Ct. Cl. 543, 550-551, (1967); Kirby v. U. S.,

201 Ctl Cl. 537, (1973); Internation Engineering

Co. v. Richardson, 361 F. S. 818, (1973);

Minnesota ¥. Weinberger, 359 F. S. 789, (1973);

Parrish v. Seamans, 343 F. S. 1093, 1094;

Fleming v. Chafee, 330 F. S. 193, (1971 D. C. N.

Y.); Green v. U. S., 172 F. S. 679, 145 Ct. C1.

628, (1959); Paulsen v. U. S., p. 570, Order No.

327-67, Ct. Cl., (1969); Edgar v. U. S., 171 F.

S. 243, 145 Ct. Cl. 9, (1959); Larsen v. U. S.,

170. F. S. 806, 145 Ct. Cl. 178, (1959) and

William v. U. S., 139 F. S. 951, 134 Ct. C1.

763, (1956).

Yet in the instant case, with the

apparent intent of avoiding decision of this

harsh case for government military employees,

if the United States and, in particular, its

criminal officer representatives lose as

defense counsel knows they must with the true

facts applied to the law presently in force,

that Court has contradicted itself without

specifically reversing its rulings in even a

single one of these prior determinations. Is

petitioner to be defeated solely on the grounds

that the statute of limitations has been allowed

to continue to run while thousands of attorneys

persisted in denying to petitioner the existence

of any cause of action when he had relied

specifically on the credibilty of decisions

promulgated in that Court and followed the

directions of the District Coury in waiting

nearly two years for the correction boards to

act on a case which could only have, should have

and must have been decided instantaneously in a

courts-martial action, U. S. C., Title 10,

Section 818, in 1965, in deciding very reasonably

on a moments notice, that duplicate filing is

;

PP RPSS TPE srry _

VO I ANI OA Ae

slurplusage, unnecessary, a waste of judicial

machinery and probably premature in the Court

Of Claims because no enforceable judgment or

outstanding immediately collectable debt exists.

In fact, this is precisely the conclusion

reached by this Court in U. S. ¥. King, supra,

at page 3;

"In 1868 this Court held that

‘the only judgments which the Court

Of Claims is authorized to render

against the government ...... are

judgments for money found due from

the government to the petitioner,

U. S. v. Alire, 6 Wall 513, 515.

In U. S. v. Jones, 131 U. S. 1,

this Court reaffirmed this view

of the limited jurisdiction of the

Court Of Claims and held that passage

of the Tucker Act in 1887 had not

expanded that jurisdiction to

equitable matters. More recently,

in 1962, it was said in the prevail-

ing opinion in Glidden Co. vy. Zdank,

370 U. S. 530, 557, on a point not

disputed by any of the other members

of this Court that ‘from the

beginning [the Court Of Claims] has

been given jurisdiction only to award

damages. The foregoing cases decided

by this Court, therefore, clearly

show that neither the Act creating

the Court Of Claims nor any amendment

to it granted that court jurisdiction

of this present case. That is true

because Colonel King's claim is not

limited to actual presently due money

damages from the United States.

Before he is entitled to such a

judgment he must establish in some

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court that his retirement by the

Secretary Of the Army for longevity

was legally wrong and that he is

entitled to a declaration of his

right to have his military records

changed to show that he wac retired

for disability."

In order to achieve the relief

sought, petitioner need only demonstrate lack

of infirmity and extinction of contractual

obligation to the Navy upon Commander Jerry J.

Holst's ignomious action in severing petitioner's

commissioned status, this petitioner had

accomplished irrefuteably and uncontrovertably

in the district court by the Board For the

Correction Of Naval Records comminique,

petitioner's true Naval Reserve record, Chief

Warrant Officer William 5. Corbett's affidavit,

6<tainment of Second Lieutenant's commission in

the United States Air Force and Title 10, U. S.

C., Section 818, general courts-martial juris-

diction. In so doing petitioner followed the

procedural scheme of proof ludicly laid out by

this Court in U. S. v. King, supra and probably

most explicitly outlined in Melvin v. Laird,

365 F. Supp. 511,

STN FAUT RAR NTRABE LEE APES

DAPI TAN PP TP aT

"Since Johnson v. Zerbst, 304

U. S. 458, 58 Ct. Cl. T1019, 82 L.

Ed. 1461, (1938), the federal courts

have exercised habeas corpus juris-~

diction over federal court convictions

involving violation of constitutional

rights not constituting a juris-

dictional defect--there denial of

counsel was alleged. In Burns v.

Wilson, 346 U. S. 137, 73'S. Ct.

1045, 97 L. Ed. 1508, (1953), a like

jurisdiction was extended to con-

victions by courts-martial. Mandamus

was held to be an appropriate remedy

in the case of a former serviceman,

not in custody, who challenged a

less than honorable discharge, in

Harmon v. Brucker, 355 U. S. 579,

‘78S. Ct. 433, 2 L. Ed. 503, (1958).

Jurisdiction of federal courts

.to review courts-martial for con-

stitutional defects is generally

coextensive with their habeas corpus

jurisdiction in civilian cases. The

scope of federal court review of

court-martial is not limited, as

some originally though to the tech-

nical elements of jurisdiction or to

a mere inquiry into whether the

plaintiff received a "full and fair"

hearing from the military court, but

extends to all errors of constitutional

dimension. See, e. g., Kauffman v.

Secretary of the Air Force, 135 U.

S. App. D. C. 277, 415 F. 2d. 991,

(1969), cert. denied, 396 U. S. 1013,

90 S:: Ct. 572, 24 L. Ed. 2d. 505,

rehearing denied, 397 U. S. 1031,

90 S. Ct. 1255, 25 L. Ed. 2d. 546,

(1970).

There are a number of routes that

may be followed in obtaining collateral

review of court-martial convictions in

civilian courts. For a serviceman no

longer in custody, the primary alternatives

are (1) an action in a federal district

court for mandamus or declaratory judg-

ment, and (2) a suit in the Court of

Claims for back pay. Where a district

court has found the plaintiff's claim

meritorious, the result has typically

been a holding that the court-martial

sentence was a nullity and that necessary

action should be taken to remove the

disabilities that flow from the sentence.

Sometimes this takes the form of a

mandatory injunction directed to the

Secretary. See, e. g. Ashe v. McNamara ,

355 F. 2d. 277, (Ist Cir. - At

other times a declaratory judgment and

remand to the Department for appropriate

action is utilized. See, e. g., Homc

v. Resor, 147 U. S. App. D. C. 277, 455

F. 2d. 1345, (1971).

Notwithstanding these authorities,

defendants urge that, because a judgment

favorable to plaingiff here way give rise

to sbustantial monetary liability--well

in excess of $10,000.00--against the

United States for back pay, this court is

ousted of subject matter jurisdiction.

The superficial appeal of this position

arisés from the. fact that while the Court

of Claims can grant both monetary and

other relief, the district courts do not

have jurisdiction to render money judg-

ments in excess of $10,000.00. 28 U.

S. C., Sections 1346 (b), 1491, cf--

28 U. S. C., Section 1361. This position

does not withstand analysis.

eae:

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SPER 2)

Development of the powers of the j

district courts and the Court Of Claims to

provide particular kinds of relief has

been characterized by a gradually expanding

area of concurrent jurisdiction. Prior

to the 1964 passage of the Tucker Act,

28 U. S. C., Section 1346, there appears

to have been no overlap at all. Subse-

quently the power, first of the district ,

courts to award money judgments and then

of the Court Of Claims to issue non-

monetary orders, has been expanded, so

that today both courts have the power

to issue both monetary and non-monetary

judgments, where appropriate. The history

and statutory language of these develop-

ments discloses not the slightest indi-

cation that Congress intended, in expand-

ing the powers of one of these tribunals,

to reduce those of the other; the evidence

is strongly to the contrary.

Before 1964, the respective juris-

diction of the district courts and the

Court Of Claims were entirely separate

in terms of the relief they could grant,

so that it was necessary for a litigant

who sought both declaratory judgment

and back pay to go to both courts. The

Tucker Act partly rectified this situation,

granting power to the district courts to

render money judgments against the United

States for amounts not exceeding $10,000.00.

Chief Judge Wilson Cowen of the Court Of

Claims was later to note:

Wholly apart from their

Tucker Act jurisdiction, the

United States District Courts

have for years exercised juris-

diction over suits brought by x

illegally discharged Government S

employees for restoration

to their former positions.

Until 1964, however, the

District Courts did not have

the authority to award the affected

employee back pay for the period

of his illegal discharge. On

August 30, 1964, Congress en-

acted Public Law 88-519 which

empowered the District Courts

to render judgment on the claims

of such employees for back pay.

The declared purpose of

that act was to enable the

employee to obtain all necessary

relief in one action and to

eliminate the necessity of

filing another suit in the

Court Of Claims for back pay.

Hearings before Subcommittee

No. 2 of the Committee on the

Judiciary, House of Represent-

atives, on H. R. 12392, March 1,

1972, pp. 12.

Although it expanded the arsenal of

remedies available in the district courts,

the 1964 Act in no way contracted the

jurisdiction of the Court Of Claims. The

Court retained, in toto, its powers to

award money judgments. In a suit founded

upon wrongful dismissal from government

service, a claim that (as a result of the

1964 Act) the Court Of Claims could not

render a money judgrient for claims of less

than $10,000.00 wouid have been rejected

out of hand. As Chief Judge Cowen's

Statement clearly indicates, the purpose

RO OO} SIRRICIUYD OU Tee REE |

“ec

of the 1964 Act was to facilitate actions

in the district courts, but in no way to

contract the jurisdiction of the Court Of

Claims.

From 1964 through 1972 the relevant

statutory provisions were the following:

28 U. S. C., Section 1491:

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 de-

partment.

28 U. S. C., Section 1346 (a):

The district courts shall have orig-

inal jurisdiction, concurrent with

the Court Of Claims, of:

(2) Any other civil action or

claim against the United States, not

exceeding $10,000.00 in amount,

founded either upon the Constitution,

or any Act of Congress, or any

regulation of an executive de-

partment.

As to claims in excess of $10,000.00,

therefore, it was still necessary for any

claimant to seek monetary relief in the

Court Of Claims and to go to the district

court for any non-monetary relief he might

require. That the Court Of Claims lacked

the competence to grant non-monetary relief

as an incident to its moneary awards was

confirmed by the 1969 Supreme Court opinion

LMP MBAS

Sey

SEAN ALG

LSTA OP IPR I

in United States v. King, 395 U. S. 1,

89 S$. Ct. T1501, 23 L. ed 2d. 52 reversing

a Court Of Claims ruling that that Court

was empowered to grant declarartory relief.

King v. United States . 390 F. 2d. 894,

be . , 8). :

Congress responded in 1972 when Section ;

1491 of Title 28 was amended to extend the

Court Of Claims jurisdiction so that in cases

where monetary relief was properly requested i

the Court incident to its power to grant i

a micney judgment, could also grant injunctive

and declaratory relief. The amendment added

the following language:

To provide an entire remedy and to

complete the relief afforded by the

judgment, the court may, as an incident

of and collateral to any such judgment, &

issue orders directing restoration to i

office or position, placement in ap- :

propriate duty or retirement status, and ;

correction of applicable records, and f

such orders may be issued to any ap- é

propriate official of the United States. 4

In any case within its jurisdiction, $

the court shall have the power to 4

remand appropriate matters to any §

administrative or executive body or 5

official with such directsion as it .

may deem proper and just. :

The amendment was “applicable to all judicial 4

proceedings pending on or instituted after ¢|

the date of its enactment," on August 29,

1972. P. L. 92-415, (1972). We put aside

the issue of whether, even if it were intended

to oust this court of jurisdiction in the

future, the statute was designed to cancel

jurisdiction in a case already commenced

in a district court--the situation before

us.

The legislative history of the 1972

amendiient makes manifest that the motivation

for its enactment was a Congressional

desire to respond to the need of the Court

Of Claims to implement its monetary judg- }

ments with collateral equitable relief, Z

so that litigants, if they so desired,

would be able to obtain complete relief

in the Court Of Claims. The legislative d

background, however, leaves little doubt ¢

that the added powers of the Court Of

Claims to grant incidental relief were ;

in no way intended to oust the jurisdiction

of the district courts to act pursuant

to its mandamus and declaratory judgment

powers. See U. S. Code Congressional and

Administrative News, 92 Congress, Second

Session, 749, 3116, 5658 (1972); S. Rept.

No. 92-1066, 92 Cong. 2d. Sess. 2 (1972);

H. Rept. No. 92-1023, 92 Cong. 2d. Sess.

2 (1972); Hearings before Subcommittee

on the judiciary, House of Representatives,

on H. R. 12392, March 1, 1972; Congress-

ional Record, May 1, 1972, H. 3769.

aaa

The bulk of the legislative history

of H. R. 12392 is contained in the Hearings

before the House Committee on the Judiciary,

Subcommittee number 2, held on March 1,

1972. These hearings demonstrate the

concern of Congress about the effect of

the Supreme Court's decision in King upon

the power of the Court Of Claims to issue

orders directing restoration to office or

position, placement in appropriate duty

or retirement status and correction of

applicable records.

The House Report on H. R. 12392 under-

lines this primary concern impelling passage

ELTA EEO LEM TE NT I PI ETS

of the Amendment:

One of the primary purposes

of this legislation is to enable

the Court Of Claims to provide

for restoration to or placement

in appropriate duty or retirement

Status as an “incident of and

collateral to” the money judg-

ments it now renders in civilian

and military pay cases. As was

observed by the witness appearing

in behalf of the Department of

Justice at a hearing on this bill

on March 1, 1972, as a practical

matter this type of cllateral

relief generally follows the

entry of a money judgment since

the agency involved can provide

such relief by administrative

action. However, should such

action be refused, the unsuccess-

ful plaintiff in the Court Of

Claims must institute a second

proceeding in a United States

District Court for restoration.

House Report No. 92-1023, Pages 2-3,

The Senate Report is equally explicit |

in laying out the purpose of the enactment:

The purpose of H. R. 12392

is to allow persons having monetary

Claims falling within the jurisdiction

of the Court Of Claims to obtain all

necessary relief in one action. -The

bill does not extend the class of

cases over which the Court Of Claims

has jurisdiction. The bill would

Provide an entire remedy which would

complete the relief afforded by the

judgment as an incident of and

37 =

collateral to any judgment it

May now render. ...

+ +» « « The power of the

Court Of Claims hass been limited

in the past to rendering money

judgments. The interpretation of

section 1491, title 28, United

States Code, has excluded any

collateral remedy even though

a number of classes of cases,

composing a substantial portion

of the Court Of Claims docket,

are subject to the need for

collateral remedies in addition

to a money judgment.

Senate Report No. 92-1066, 2 U. S.

Code Congressional and Adminis-

trative News 3116, 3117 (1972).

In suggesting that district court

jurisdiction is ousted in these circum-

stances, defendants ignore the manifest

legislative intent that H. R. 12392 not

enlarge the jurisdiction of the Court Of

Claims; the new equitable relief was meant

to be collateral only. Our system of federal

courts, fortunately, requires no such cir- °

cuitous route to relief as Suggested by

defendants; a litigant is not required to

resort to claiming monetary relief from

the Court Of Claims solely for purposes

Of appending a non-monetary claim which

constituted the relief the party was really

seeking to begin with.

Claims of serious constitutional

deprivations have been alleged in this

cause. Only in the face of the clearest

of Congressional intentions could the

powers of this court to come to grips

with claims of such dimension be ousted

by the availability of monetary relief

citi

HSI a

from the Court Of Claims.

aOR Ae meng SIRO

In only two of the many cases cited

by defendants was district court juris-

diction declined on the ground that the

Court Of Claims should determine the

issue. Carter y. Seamans, 411 F. 2d. 767,

(5th Cir. 1969), cert. denied, 397 U. S,

941, 90 S. Ct. 953, 25 L. Ed. 2d. 121,

eee Parrish v. Seamans, 343 F. S. 1087,

D. S. C. 1972).

Carter v. Seamans was an action for

a declaratory judgment that the plaintiff's

discharge "under other than honorable

conditions" was illegal and that he had

continued to hold his commission and to

be promoted at regular intervals, and for

and injunction prohibiting the defendant

from withholding al] pay and allowances, .

estimated at $135,000.00. An action by :

the same plaintiff, based on the same f

allegations, was pending in the Court ;

Of Claims, and had been Stayed pending A

disposition of the case in the district 5

court. Noting that the relief sought

included a substantial Claim for pay and

allowances, the district court concluded

that “the claim for back Pay and allowances

constitutes the keystone of this entire

lawsuit", (emphasis added) and that the

action "in substance . . . is [for] a

money judgment against the United States

for back pay in excess of $10,000.00."

411 F. 2d. at 771. Under ot i

Section 1346 (a) (2), the court found

that it did not have jurisdiction to make

such a monetary award. It further held

that, while it had mandamus jurisdiction

under 28 U. S. ¢., Section 1361, it would

decline to exercise that jurisdiction in

view of its finding that the action was

BETO DM TENTS AES RIOR

essentially one for a money judgment

that it could not grant. The Fifth

Circuit affirmed in a short per curiam

opinion, finding "no abuse of the

district court's discretion" in

deferring to the Court Of Claims.

411 F. 2d. at 769. (The district

court opinion is unreported, but

it is printed as an appendix to the

Fifth Circuit opinion. )

Similarly, the plaintiff in

Parrish v. Seamans, sought a judgment

ecliaring nis court-martial conviction

void and restoring his rank, pay

allowances and other benefits. The

Board For Correction Of Military

Records had already corrected his

records to show that he had received

an honorable discharge. The court

found that, particularly in view of

the fact that his records had already

been corrected, "the crux of plaintiff's

claim is monetary," and that the

other relief requested was “only

incidental to his monetary claim"

343 F. Supp. at 1093, 1094. Assuming

it had jurisdiction the court

declined to exercise it and

followed Carter in deferring to the

Court Of Claims, 343 F. Supp. 1094.

Thus, the Court Of Claims and the defend-

ant United States in following its edict seek

to void a complaint already rendered justiciable

by the district court and formulted in the only

manner in which relief thereunder could ever

be secured. The Court Of Claims cptions to -

Supplant the unappealed District Court

judgment with its own. This it cannot do,

Carney v. U. S., 462 F. 2g. 1142, 199 Ct. C1.

160, (1972).

This Court has recognized this problem

in U. S. vy King, Supra. The District Court

recognized this problem and elucidated its

solution, Melvin vy, Laird, supra. Congress

perceived, considered and ultimately, in its

infinite wisdom, rectified the situation in

P. L. 92-415, enacted August 29,,1972. Follow-

ing this line of authority, from its inception

plaintiff's cause was relegated to a Single

course of relief through jurisdiction of the

district court to entertain an action for a

declaratory judgment and on to the Court Of

Cleims to secure monetary relief premised

thereupon. Thus, simply put, the Court Of

Claims has always been without jurisdiction.

Accordingly, if anything, petitioner's suit

in the Court Of Claims is premature.

There is not now nor has there ever

iia cents _

been any requirement that petitioner take

the Government to court to prove his

innocence of any crime or wrongdoing, Fifth

Amendment, United States Constitution. A

perfect defense was available to and duly

and timely presented by petitioner at the

very moment punitive action was contemplated.

Consequently, in essence, by his untoward

action in May, 1965, Commander Jerry J. Holst

was asking, in order for petitioner to obtain

relief therefrom, that petitioner secure

his own court-martial. But if petitioner had 5

court-martial convening power, albiet by

the ponderous circuitous route of compelling

trial by mandamus in federal court, then the

nedd for the "court-martial" usurping his

Naval Reserve commission could never have

occurred. For, in that event, petitioner

would necessarily have had courts-martial

convening authority over others as well and

had the electronics techncian instructor

at NRSD 12-26 court-martialed and removed

Brecveenser: PNAS LEE EEN Bt

from the service or, at least, from

performance of training functions over a

year previously, in December, 1963, thereby

eclipsing the need for petitioner's single

passive abstenance.

Now it is time for the Court Of Claims

to become aware of the legal ebisequences

of the thus promulgated jurisdictional

policy.

Concurrent with perception of the only

provisional route by which to Purge petitioner's

stigma of criminality and instability

garnered only through the fortuitous

mechanism of Scruitinizing, Carter v.

Seamans, infra, in researching the preparation

of his appeal to the United States Court Of

Appeals For the Ninth Circuit in the

intimately collateral case against the

Veterans Administration now appearing as

Ross v. U. S., 462 F. 2d. 618, (1972), cert.

denied 414 U. S. 821, (1973) on February 25,

1972, petitioner launched his attack against

the criminal negligence of his Navy Commander,

at his intial contact with the concept, by

the foreign to all laymen and exclusively

the military law practicing legal community,

device of seeking a declaratory judgment,

Pursuant to the jurisdiction conferred

thereupon by U. S. C., Title 28, Section

2201, to effect a legal change of factual

history already having transpired to reflect

commissioning, three years of honorable

service and promotion to lieutenant junior

grade in the United States Naval Reserve

and elimination of all other service or in

the alternative breach of contract by the

Uaited States Navy in refusing to maintain

training standards and allow petitioner to

complete his R. 0, C. training and

extinguishment of petitioner's obligation

thereupon.in the United States District

Court For the Central District Of California.

Said District Court asserted jurisdiction

of said cause under said declaratory

judgment act on May 25, 1972. On June 12,

1972 that Court, the Honorable Robert J.

Kelleher presiding, entered a judgment,

attached hereto as Appendix A, denying

petitioner's motion for Summary judgment -

and in favor of the defendant United States

Navy and the United States Air Force solely

on the grounds of petitioner's failure to

exhaust his administrative remedies in the

respective military departments’ correction

boards, but disavowing any statutory or

limitations failure, in being invoked

without prejudice to petitioner's refiling

upon surmounting that obstacle and in view

of petitioner's two alleged and readily

Proveable legal disabilities in excess of

four months duration.

EPS a ete

CONCLUSION

In view of all of the foregoing, it is

respectfully submitted that a writ of

certiorari should issue to review the

discordant judgment of the Court Of Claims

and remand the case thereto for further

Proceeding on the merits. 3

Respectfully submitted,

BY:

aah Ne ba strange

MICHAEL S. ROSS

ABR RTT,

5502 Pelham Road

Durham, North Carolina 27707

In Properia Persona

SESTRAYR IS EER RUNS, URS

Sr eee x

i a 7

APPENDIX A

WVIELIAN D, KELLER

Voited States attorace

PREUSRICK 3, SCSIO. IR.

ASSiztant U. §, Ace :y 5

Cisiel, Civil Dis vis: a a

CLARE Wi -Susece ‘

Assistant U.S. Ate nev

2100 U, 5, Buetiouse

312 North Seriv: Sireer

Los Anneles, Ct! fornia SS%32

Telepho.e: "68s- 2245

Attorneys for Defendsnts

UNITED SvnrcS DISTRICT COURT

CENTRAL DISTRICT CP CALIFOUNIA

MICHALL S. ROSS,

Plaintife,

Civil No, 72-415-257

Vv.

Defendents,

The Court having filed its Findisys of Faces and Conedy

of Law herein direct NS entry ef judgsent in favor o

and against plaintiff,

IT IS ADIUPSED thae:

1. Plaintiff, Michael S, Ross, take nothing by virtue

his Complaint;

2. That the action be end the Stic is hercby disnissed

without prejudice;

3. That the defendants have and recever their costs cf

action,

PATED: This day of eat aves

Presented by: 45

LL be Ls

“Givstink Be tceic: ga F

Acsistant U,.. &, Atloracy

Attorney for Detendants,

Pre are 2 60 tow. sere

1 WILLIAN D. ECLLER

United States Atteracy

“— ww

13609 U.S. Coursho:v.c

Los Anxeles

Telenhons::

Atterncys for D

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALLECRIIA

MICHAEL S$, Koss, )

ee, eee ee

a eee

Plaintiff,

Civil Ko. 72-415-nox

Defencauts,

The above-centitled cause having come on reaulariy for

it ee a

SS en Ee ee eer ae ee

Qo~

oss

em >

mee

pad

. <

a Ne Nel el

“. —

Se is

a {Oo

Ks) 3

eae

> fw

ail Be

fees

boma

a 4

ies fi

}

isi

hearing on Cofencants! Netion for Succciry Judgrent and the Cour

having considered the leadinas, affidsvits and papers on file

1 Pp « , Pp '

herein, argescnt of Plaintiff and counsel for Cefendants, end

being fully advised in tie premises rakes the following Findings

of Fact and Conclusions of Law,

pigs FINDINGS CY PACT

This is a civi) action for correction of

eee ee ee ee

military records

end Gonages in excess of $23,000.69 brought by plaincifs against

defendsnts., the relief Seucht includes a claim for correction of

Plaintiff's Air Force recor’

S to eliminate all record of Service

‘e the Air Yorce, and for correction of his Navy records to reflect

vencement in rate,

ee entitlccents to ad Comsissicning as a

‘= officer, active Cuty credit, an hororable Cischorpe in 1068,

@anopes incluting bact x

; “ivy pay and allo:vrences in excess of

$28,000.00, aad certain other relicf,

j -1-

Freer 8 08 toOw ane

APPENDIX A

1 Il °

2° Plainciff£ hos {riled to file eny application for relief

a with the hoard for Correction ef Naval Records pursuant to 10

4 U.S.C.§1552, ct seq. :

5 Ill

6 Plainciffl hac previously filed apoliestion for certain

1 relicf from the Board for Correction of Air Force Records, but

gf has never requested the relief he seeks in this sction, namely to

g" elisinate all recere of his service in the Air Foree.

10 Iv

1 Plaintiff has failed to exhcust the acdninistrative remedies

124 provided vacer 10 U.S.C. § 1552, et seq.

14 CONCIUS TCS OF 1

15 I

16 5 There is no genuine issee as to any of the foregoing find-

17% ings of fect. sr

18 II

al Plaintiff hos fcoiied to exh-ust the administrative rercdies

| provided under 10 U.S.C. § 1552, et seq., with reference to the

214 relicf sousht in this action.

22 Ill

23 4 Plaintiff's co-plaint fails to state a claim upon which

a! relief can be granted.

25 - “Iv

26 3 Defendants are entitled to judgment as a matter of law

4 Cisnissifg plaiatif{'s Complaint without prejudice and to their

2%} costs of action incurred herein.

»! WATED: This ___ day of » 1972.

not de ra A j P

5 Sf 0 OF este Le

* pale ae ap SEA CHD SiS WisTaicr ie

Attorneys for Defervants. 5

. Orv ere 40 seus nase - 43 -

yee.

APPENDIX B

IN| GHE UNITED STATES COURT OF CLAIMS

No. 352-73 - .

MIC ISEL S$. Ross 3

THE ULITZD STATES

Before SHELICN,

dcktassivariine

This case cones b:

Decezer 17, 1973, to dicnmiss dnintizf's petiticn. upon con-

: :

siceration thereof, tciether With the orposation filed thereto,

5} iP

Withost ora] argenent, it is concluccd that plaintiff's allesed

claim is bar:ed by the statue of linitations, 26 U.S.c. § 2501.

(Sce Fricd-2: vy, Uritcd States, 156 ct. Cl. § 320 F.2d 381 (1952),

“S

Son?

fert. fsi2d, 373 U.S. 932 (1963) and xirty v. “thited Stotes

201 Ct. Cl. 527 (1973)).

IT IS THEPEFORA CRPERED that te < 5 3

the petition be end the ¢

Gismissed.

BY Til. COvUnT

° . < 44 ~~. ae 7 ON

we bes fa Wa Le . ee a Pil .

Judse, Presiding

APPENDIX B

- 24 -

Jisse, Presiding, KASHIWA and RUNZIG, Jvczes.

siore tho court on eefend:nt's motion, filed

wofendzant'’s said motion to Gi “x7iss

fume is ¢rented and plaintiff's petitic, is

——_

—+ +

ee ee tne ns cae ete

Py ey sere J

NOTARY TT NS RAIN RAR PSE SmI UTI Boers

erent noes

oP eC eet eee

SURES

iam EN SEY PMR EN eT TE

_ ’ .

APPENDIX C

Ii THE UNITED S7ATES COURT OF CLAIMS

270-73 RIVIAND SARL CHARMAN ) :

)

352-73 MICHAEL S. ROSS ) Vv. GUE UNITED STATES

)

——$—

Before SKELTON, Juc-ce, Presiding, RASHIWA and- KUE2ZIG, gucses.

ORD TR

These cases come before the court on Plaintiffs’ motions for

amenement of dismissal order, for rehearing, reconsideration and

further relief filed pursucnt to rule 151. Upon consideration there-

of, without oral argu~at,

IT IS OiDERED that said motions be and the same are cenied as

follcws:

170-73) Richard f2rl Chapaca. Plaintiff's :.otien, filed April 15

1974, for emencment of “ismissal order.

352-73 Michael S. Ross. Plaintiff€'s motaon, filed April 15

1974, for rehearing.

466-73 Luis £. Colicado. Plaintiff's motion, filed April 23,

1974, for reconsideration.

BY TIIE COURT

i tree 4 (Ch [i ant

wn tie.

Li tAY 3 1 1974 Ses, Presiding

APPENDIX €

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wor ees FRR FP

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Vb. 6°39 OF Curcburas!’ SUPOU 8 88 T3ike 7. 8 "2652

fee:: the Cleese S. Thestecal C.' Sealedonewt: “apitian en ‘sy ts,

euesudes thaw Maa tay ol Suse, 1074 94 IWwebea, Moen

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Dee wae g Rucci Coretina 27705

Ae AT A Mili De SRG Er a be Waar: Rtieah DNC OE NE LN ES IRIE M oe Ae,

U. S. C., Title 28, Section 1346.

United States as defendant.

(a) The district courts shall have

original jurisdiction, concurrent with the

Court Of Claims, of:

(1) Any civil action against the United

States for the recovery of any internal-

revenue tax alleged to have been erroneously

or illegally assessed or cllected, or any

penalty claimed to have been collected

without authority or any sum alleged to have

been excessive or in any manner wrongfully

collected under the internal-revenue laws;

(2) Any other civil action or claim

against the Liited States, not exceeding

$10,000.00 in amount, founded either upon

the Constitution or any Act of Congress,

or any regulation of an executive depart-

ment, or upon any express or implied contract

with the United States, or for liquidated

of unliquidated damages in cases not

sounding in tort.

(by Subject to the provisions of

chapter 171 of this title, the district

courts, together with the United States

District Court for the District of the

Canal Zone and the District Court of the

Virgin Islands, shall have exclusive

jurisdiction of civil actions on claims

against the United States for money damages,

accruing on and after January], 1945, for

injury or loss of property, or personal

injury or death caused by the negligent or

wrongful act of omission of any employee of

the Government while acting within the scope

of his office or employment, under circum-

stances where the United States, if a private

citizen, would be liable to the claimant in

accordance with the law of the place where

the act or omission occurred.

SE SR ek oe wee aC rg

~~ ne ee Cae Pre oy

= iene!

ene Db CRs REN A EBA RN Sis RON CNET RN AR EPR ANE RS mW DLS

section includes jurisdiction of any set-off,

counterclaim, or other claim or demand

whatever on the part of the United States

against any plaintiff commencing an action

under this section.

“54

STATE OF NORTH CAROLINA

CITY OF DURHAM, COUNTY OF DURHAM )

being first duly sworn on oath, says:

I am a citizen of the United States and

a resident of the City of Durham and County

of Durham, State of North Carolina. I am

over the age of eighteen years and not a

party to the within action. My business

address is

On August 17, 1974, I served the within

"PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF CLAIMS," on the defendant

United States in said action by placing a true

copy thereof enclosed in a sealed envelope with

postage thereon fully prepaid in the United

States post office mail box at Durham, North

Carolina, addressed as follows:

‘

3 ROSS LEAP EN tm =

FREE RAPER

STRIIRT EY Pa

LAT ACO en ieee

sR Les SPL OR a Le

PETER A. T. SARTIN

Trial Attorney, Civil Division

Department of Justice

717 Madison Place

Washington, D. C. 20005

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.