Opposition Brief — Randolph v. United States

No, 1001

Inthe Supreme Gourt ofthe Winited States

Ocroser TreRM, 1946

Nowlin RANDOLPH, PETITIONER

Untrep StTaTes

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED

STATES OIROUIT OCURT OF APPEALS FOR THE FIFTH

OIROUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

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Statutes:

Act of April 3, 1939, as amended, 53 Stat. 557, (10 U. 8.

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Serviceman’ s Readjustment Act of 1944, 58 Stat. 287, Sec.

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Judicial Code (Tucker Acty as amended), Sec. 24 (20) (28 7,10

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Judicial Code, Sec. 145 (1) 28 U.S. C. 250 (1)_.....----- 5

Miscellaneous:

Executive Order 8099 of April 28, 1939, as amended by

Executive Order 8461 of June 28, 1940 (C. F. R., Cum.

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Guthe Supreme Court of the Bnited States

OctoBerR TERM, 1946

No. 1001

Now.Lin RANDOLPH, PETITIONER

v.

Unitep STATES

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED

STATES CIRCUIT COURT OF APPEALS FOR THE FIFTH

CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the United States District Court

for the Southern District of Texas (R. 31-34),

and that of the United States Circuit Court of

Appeals for the Fifth Cireuit (R. 40-41) have

not yet been reported.

JURISDICTION

The judgment of the circuit court of appeals

was entered on November 15, 1946 (R. 41). The

petition for a writ of certiorari was filed on Feb-

ruary 10, 1947. The jurisdiction of this Court is

invoked under Section 240 (a) of the Judicial

Code, as amended by the Act of February 13,

1925.

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(1)

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QUESTION PRESENTED

Whether a reserve officer can sue in a district

eourt to establish his right to retirement pay on

account of alleged disability incident to his mili-

tary service, where he has not pursued the ad-

ministrative remedies made available by statute

and executive order for the assertion and review

of such claims, and in the face of the Tucker

Act’s specific denial of jurisdiction over ‘claims

for pensions.”

STATUTES INVOLVED

The relevant statutes and executive orders are

set forth in the Appendix, infra, pp. 9-12.

STATEMENT

On March 13, 1946, petitioner, a reserve officer,

instituted this action against the United States

under the Tucker Act to recover retirement pay,

in the amount of $2,300, allegedly due to him in

accordance with Section 5 of the Act of April 3,

1939, as amended (R. 4; Appendix, infra, pp.

9-10). The complaint was twice amended (R.

8-17, 19-30). In the second amended complaint,

filed July 23, 1946, petitioner alleged that for

many years prior to September 12, 1940, he was

a member of the Officers’ Reserve Corps of the

United States Army (R. 21); that he served as

an officer of the Army of the United States from

September 12, 1940, until termination of his

active duty on May 13, 1945 (R. 21); that while

so serving on the island of New Caledonia in 1942

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(R. 22, 25), he became ill “in line of duty’’ so

as to incapacitate him for active service, which

“disability and incapacity continues until the

present time and is permanent’? (R. 22). Peti- .

tioner further alleged that he was given various

examinations by the Army Medical Corps (R.

25-28); that as a result of a retiring board’s

finding him “incapacitated for active duty as an

incident to his service,’ he was placed on ter-

minal leave on March 7, 1945 (R. 27); that after

the expiration of his terminal leave, he was

ordered to report again to a military hospital and

did so report (R. 27); that studies then

made ‘“* * * again revealed plaintiff’s. dis-

ability * * ** (R. 27); and that, after being

thus examined at the hospital, he was on August

22, 1945, ordered to appear before another

retiring board (R. 27-28); but that, upon his

protest, subsequent orders ‘‘were issued relieving

him from duty as of August 1, 1945, such orders

reciting that his relief from active duty was ‘not

by reason of physical disability’ ’’ (R. 28).

The Government moved to dismiss on the

ground that the claim was one for a gratuity and

the suit was one as to which the court lacked

jurisdiction (R. 7, 18, 31-32). After hearing, the

district judge granted the motion and ordered the

action dismissed (R. 31-34, 35). On appeal, the

judgment of the district court was affirmed per

curtam (R. 40-41).

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ARGUMENT

Both courts below held that petitioner’s suit

must fail for want of jurisdiction, since the

United States had not consented to be sued in

respect of claims to establish a right to retire-

ment pay arising out of disability incurred in

military service. In addition, the district court

held the suit barred because it was one for a

pension. We think that the judgments below

were correct on either of these grounds.

1. The purpose of the provision of Section 5

of the Act of April 3, 1939, under which peti-

tioner claims, was ““ * * * _ to accord to

* * * Reserve officers and to the enlisted men

of * * * the Reserve called into the Federal

service the same treatment as that accorded to

the officers and enlisted men of the Regular Army

in connection with pensions, compensation, retire-

ment pay, and hospital benefits.” S. Rep. 80, 76th

Cong., Ist sess., p. 7. Being thus assimilated to

an officer of the permanent establishment,’ peti-

tioner stands on the same footing as an officer of

the Regular Army seeking to assert a claim for

retired pay. Such retired pay involves no con-

tributions by the officer from his active duty pay;

1 See also the Senate Committee’s characterization of Re-

serve Officers on active duty as “a pool from which appoint-

ments in the Regular Army may be made,” S. Rep. 80, 76th

Cong., ist sess., at p. 7, and Section 7 of the Act, which gave

Reserve Officers on active duty a high priority for appoint-

ments in the Regular Army.

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5

it is a gratuity (Barnett v. Hines, 105 F. 2d 96,

89 (App. D. C.) ; United States v. Beaman, 61 F.

2d 493 (C. C. A. 5)), “fan honorary form of

pension’ (Geddes v. United States, 38 ©. Cls.

428, 445), which is “‘paid by the government in

recognition of past services in the Army or

Navy’’ (Dismuke v. United States, 297 U. S. 167,

170). The statutory privilege of retirement pay

creates no vested rights and involves no enforce-

able agreement. Lynch v. United States, 292 U.

8. 571, 577. Jurisdiction to entertain such claims

is expressly excluded from the Tucker Act con-

sent to be sued; they are cognizable neither in a

district court nor in the Court of Claims. (Judi-

cial Code, Sec. 24 (20) ; 28 U. S. C. 41 (20), ixfra,

p. 9. See also Judicial Code, Sec. 145 (1); 28

U.S. C. 250 (1).

Contrary to petitioner’s contention (Pet. 8, 11),

there is no conflict with Dismuke v. United States,

297 U. 8. 167. That case involved, not the retired

pay of military personnel, but annuities under the

Civil Service Retirement Act, towards which Dis-

muke had made contributions by way of deduc-

tions from his salary. The two situations are

wholly unrelated, as the Dismuke opinion points

out in detail (297 U. 8. at 170).

2. Even if Section 5 of the Act of April 3,

1939, can be construed to create a right in peti-

tioner to retirement pay, it is well settled that

Congress is not bound to provide a judicial

remedy for such rights, but can limit claimants

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to an exclusive administrative procedure. Lynch

v. United States, 292 U. S. 571, 582, and cases

there cited; Morgan v. United States, 115 F. 2d

426 (C. OC. A. 5). The present case does not differ

materially from Denby v. Berry, 263 U. S. 29,

cited by the district court (R. 32). There a Naval

Reserve Officer permanently disabled in line of

duty was honorably discharged from active serv-

ice without having his case referred to a retiring .

board. The officer sought mandamus to compel

the Secretary of the Navy to revoke the release

order and to send the officer before a retiring

board. Though the argument was made that the

officer was entitled as of right to retirement on

pay, and that this right should be secured by

the courts, this Court refused to interfere, since

an exclusive administrative remedy had been

provided by statute. The circumstance that the

officer in that case sought relief by way of man-

damus rather than, as here, in an action for

money damages, is not material; in both cases,

the prayer in this Court is, in substance, to

remove the administration of reserve officers’

retirement pay into the courts, and out of the

hands of the executive department to which it

has been entrusted by the Congress.

3. In this case, there was available to petitioner

a complete system of administrative review in

the War Department—of which he seems not to

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have availed himself. Executive Order 8099 of

April 28, 1939, as amended by Executive Order

8461 of June 28, 1940 (Appendix, infra, pp.

11-12), provides that with regard to retirement

pay, under Section 5 of the Act of April 3, 1939,

as amended, ‘‘the determination of all questions

of eligibility for the benefits thereof, including all

questions of law and fact relating to such eligi-

bility, shall be made by the Secretary of War’’

in the manner provided for Regular Army per-

sonnel. Section 302 (a) of the Servicemen’s Re-

adjustment Act of 1944, 38 U. S. C. Supp. V

6931 (a) (Appendix, infra, pp. 10-11), directs the

Secretary of War to establish boards of review,

whose duty it is to review the findings and

decision of a retiring board ‘‘at the request of

any officer retired or released to inactive service

without pay, for physical disability pursuant to

the decision of a retiring board.’”’ In addition to

the service records of the officer in question, such

other evidence as the officer may present shall be

considered. The proceedings and decision of the

reviewing board are to be transmitted to the:

*It should be noted that the district court found that in

this case it was not clear whether the question of petitioner’s

right to retirement pay was still pending before the War

Department or whether petitioner’s claim had been denied

by the War Department (R. 32). The district court further

found that petitioner had apparently failed to take ad-

vantage of the available administrative procedure within the

War Department (R. 82).

8

Secretary of War to be laid before the President

for his approval and orders.

It follows that, although Congress has provided

petitioner with no judicial forum, it has estab-

lished ample remedial procedures within the War

Department. Those procedures, in the circum-

stances of the present case, constitute the sole

avenue of relief available to him.

CONCLUSION

The decision below was clearly correct, and

there is no conflict. The petition for a writ of

certiorari should therefore be denied.

Respectfully submitted.

{ Georce T. WASHINGTON,

| Acting Solicitor General.

JOHN F. SonneETT, .

Assistant Attorney General.

‘ FREDERICK BERNAYS WIENER,

Special fissistant to the Attorney General.

SaMvueEL D. SLabeE,

JANE A. PARKER,

Attorneys.

Marcu 1947.

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APPENDIX

The Tucker Act, now Section 24 (20) of the

Judicial Code, 28 U. 8. C. 41 (20), insofar as

here relevant, provides as follows:

The district courts shall have original

jurisdiction * * * Coneurrent with the

Court of Claims, of all claims not ex-

ceeding $10,000 founded upon the Consti-

tution of the United States or any law of

Congress, or upon any regulation of an

executive department, or upon any con-

tract, express or implied, with the Govern-

ment of the United States * * *. Noth-

ing in this paragraph shall be construed

as giving to either the district courts or

the Court of Claims jurisdiction * *

to hear and determine claims for pen-

a

See. 5 of the Act of April 3, 1939, as amended,

53 Stat. 557, 1079, 10 U.S. C. 456, provides in part :

all officers, warrant officers, and enlisted

men of the Army of the United States,

other than the officers and enlisted men of

the Regular Army, if called or ordered

into the active military service by the

Federal Government for extended military

service in excess of thirty days, other than

for service with the Civilian Conservation

Corps, and who suffer disability or death in

line of duty from disease or injury while

so employed shall be deemed to have been

in the active military service during such

period and shall be in all respects entitled

to receive the same pensions, compensation,

(Y)

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retirement pay, and hospital benefits as are

now or may hereafter be provided by law

or regulation for officers and enlisted men

of corresponding grades and length of serv-

ice of the Regular Army.

Section 302 of the Serviceman’s Readjustment —

Act of 1944, 58 Stat. 287, 38 U. S. C. Supp. V |

693i, provides, in pertinent part, as follows:

(a) The Secretary of War, the Secre-

tary of the Navy, and the Secretary of the

Treasury are authorized and directed to

establish, from time to time, boards of |

review composed of five commissioned

officers, two of whom shall be selected from

the Medical Corps of the Army or Navy,

or from the Public Health Service, as the

case may be. It shall be the duty of any

such board to review, at the request of any

officer retired or released to inactive serv-

ice, without pay, for physical disability

ursuant to the decision of a_ retiring

oard, the findings and decision of such

retiring board. Such review shall be based

upon all available service records relating

to the officer requesting such review, and

such other evidence as may be presented by |

such officer. Witnesses shall be permitted |

to present testimony either in person or by

affidavit and the officer requesting review |

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shall be allowed to appear before such

board of review in person or by counsel.

In carrying out its duties under this sec-

tion such board of review shall have the

same powers as exercised by, or vested in, |

the retiring board whose findings and |

decision are being reviewed. The pro-

ceedings and decision of each such board

11

of review affirming or a the deci-

sion of the retiring board shall be trans-

mitted to the Secretary of War, the Sec-

retary of the Navy, or the Secretary of the

Treasury, as the case may be, and shall be

laid by him before the President for his

approval or disapproval and orders in the

case.

* 7 ” wo *

(c) As used in this section—

(1) the term “‘officer’’ means any officer

subject to the laws granting retirement for

active service in the Army, Navy, Marine

Corps, or Coast Guard, or any of their

respective components ; .

* ~ *

Executive Order 8099, promulgated April 28,

1939, as amended by Executive Order 8461, pro-

mulgated June 28, 1940 (C. F. R., Cum. Supp.,

Title 3, pp. 482 and 680), provides:

Whereas section 1 of the act of August

30, 1935, c. 830, 49 Stat. 1028, as amended

by section 5 of the act entitled ‘‘An Act to

provide more effectively for the national

defense by carrying out the recommenda-

tions of the President in his message of

January 12, 1939, to the Congress,’’ ap-

roved April 3, 19389 (Pub., No. 18, 76th

Jongress), provides, in part, as follows:

“ * * * That all officers, warrant

officers, and enlisted men of the Army of

the United States, other than the officers

and enlisted men of the Regular Army, if

called or ordered into the active military

service by the Federal Government for

extended military service in excess of

thirty days, and who suffer disability or

death in line of duty from disease or in-

jury while so employed shall be deemed

12

to have been in the active military service

during such period and shall be in all

respects entitled to receive the same pen-

sions, compensation, retirement pay, and

hospital benefits as are now or may here-

after be provided by law or regulation for

officers and enlisted men of corresponding

grades and length of service of the Regular

Army.”’;

Whereas the said act is silent as to what

agency shall administer the benefits pro-

vided thereby; * * *

Now, therefore, by virtue of the author-

ity vested in me as President of the United

States, and by the act of July 3, 1930, c.

863, 46 Stat. 1016, the duties, powers, and

functions incident to the administration

and payment of the benefits provided

by the statute as above set out are

hereby vested in the Veterans’ Adminis-

tration: Provided, That in the administra-

tion of the retirement-pay provisions of the

said statute, the determination of all ques-

tions of eligibiity for the benefits thereof, in-

cluding all questions of law and fact

relating to such eligibility, shall be made

by the Secretary of War, or by someone

designated by him in the War Department,

in the manner, and in accordance with the

standards, provided by law, or regulations

for Regular Army personnel.

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