# Opposition Brief — Randolph v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386416_0993%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1947 - **Citation:** 330 U.S. 839 ## Text 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 ai cctnn ann sup iwawnndiakawetiin ke md ami EES IRE darian TR, ee Oe er sh ee iS ebb ntnncen een Shae te mewiwanwihbink ed sm mels ae in shea Lynch v. "United States "992 U. 8. 571 eR aia mike aig 5, Morgan v. United States, 115 F. 2d 426........-.------- United States v. Beaman, 61 F. 2d 493_......-...--_.- cis Statutes: Act of April 3, 1939, as amended, 53 Stat. 557, (10 U. 8. Q Fi < fd rE 8. Q Q & B ABAaaan Serviceman’ s Readjustment Act of 1944, 58 Stat. 287, Sec. 302 (a) (38 U. 8S. C. Supp. V 693i (a))-.------.-.----- 7, 10 Judicial Code (Tucker Acty as amended), Sec. 24 (20) (28 7,10 inser anh nuceninewbeansendenwae 5,9 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. i, CN, On i occ wen ecensesccsecns A | . Thee, Oe, een Se. 100 OUND... nnn cn cece en cccues 4 tt) 734484— 47 7 on i tl a 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. “= (1) 2 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 - ss =~ oe 3 (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). ——e 4 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. a on ie 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 — 6 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 ee 7 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. SE NiO a AN CN tit LE LALA RETAIN AIR ATTEN SE, PEGE, GOT AIOE I) PE e 4 t | | 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) 10 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 | | | 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. ) S$. 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