# Petition for Writ of Certiorari — Ross v. United States

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385608_0175%3A1

## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1974
- **Citation:** 419 U.S. 1048

## Text

FILED
AUG 26 1974

Lotercere ln em

BPrca “oes

In The MICHAEL ROBAK, JR..CLERK

ne

SUPREME COURT OF THE UNITED STATES

October Term, 1974

“No. q4- 18 4

MICHAEL S. ROSS, Petitioner
V.

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

ii

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
iv

wae ee |
ie

NR

| ae PMSA ANSE MC RRS ATR

= a Ga G&G «& ¢& & ¢&

STATUTES (cont. )

Section
., Title 10,
» Title 28,
» 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,

oy
.

Section
Section
Section
Section
Section
Section
Section

Section

REGULATIONS

Section

oP. Rey Title BR,
» #, R., Title 3,

(2)

~ F. R., Title 32,

(a) (3) and (b)
re. Title Se.

Section

Section

Section

Section 713.382 (a) (2)

. F. R., Title 32,

Section 713.403 (3)

V

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
19
22

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

vi

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

3

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.

4

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

5

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).

6

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
7

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

10

a

SURREY POAT ES: —

danger; nor shall any person be subject for

the same offense to be twice put in jeopardy

;
¥
S
*

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.
1]

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

12

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

13

e
4
2
ba
&
av.
zi
©

SRSA EK

Cj CRVDA OIG REP POAT ARO OE
ERO RE

NESE ERS es

ae

=
-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

14

s
‘
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

15

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

16

j
|

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

17

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 .

18

se —
28

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,

19

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

20

b
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

21

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

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

3
:
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

22

“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

23

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

24

perspec

Ae EP OO i

é
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);
25

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

26

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

;
.
oe
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

"Tr gaa sececnieiinadal

PPO WON AAG

NEE WP CRETE EN

EDIE TIED PA ORNTENH ON

SRC AR
:

PPE, SALON Pe BE WT

RAS

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
mee
ow
pad
. fw
ail Be
fees
boma
fs
.
a 4
re
ies fi
}
i
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
I

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.
13
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
ve

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 MePTSH OF vom ay ;
DeSendwut, —)

eee dt et SASL ESOS OES em A te

OSs As heveby ulven cine “debnel 2, Sues, wiatestcen
ae Cryer Wester se Xeuhs te the Unheed NOS dee Crpmnman Cones

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

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

a0 sak Nunhead ©, Poe edny auteved Oa ange Conese oF Onte 8,

.

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

Cretas, '

: ‘ SICUOD:
dea, ey eee ee © 9900 cc cmmmmesee
erBewed de are WG :
ws: 345':ts AveruE
Anacrtne t 4%
Dee wae g Rucci Coretina 27705

52

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.

53

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

(c) The jurisdiction conferred by this
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

f
i
>
i
f

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:

55

£
.
‘
3 ROSS LEAP EN tm =

FREE RAPER

STRIIRT EY Pa

LAT ACO en ieee

sR Les SPL OR a Le
3

PETER A. T. SARTIN

Trial Attorney, Civil Division
Department of Justice

717 Madison Place

Washington, D. C. 20005

56

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385608_0175%3A1. Public record. Not legal advice.