Petition for Writ of Certiorari — Robinson v. Franke (No. 615)

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PETITION FOR: WRIT OF CERPFIORARE TO THE

UNITED STATES COURT OF APPEALS FOR THE

DISTRICT OF COLUMBIA CIRCUIT

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INDEX

OPINIONS BELOW .... poeta, 7 rte :

JURISDICTION ............. OCS. ROMAIN is OREN RE RD

WUESTIONS [PRESENTED a“

CONSTITUTIONAL, PROVISIONS, STATUTES

AND REGULATIONS. INVOLVED ....._’ yea

STATEMENT SEE PEAR re MR on Reds Se

NO See et ae

“APPENDIX A | 7

Opinion of the United States Court_of Appeals

for the District of Columbia in Payson v. Franke.

APPENDIX B )

APPENDIX C

Judgment of the United States Court of Appeals

' ‘im Payson v. Prenke 0,

APPENDIX D

Excerpts from Sectiyn 8, Art. I, United States

OE scningnsimiiilendininaig athe sit

Excerpt from the Act of Apri. 18, 1946, 60 Stat.

ere Ne SRL a en eR

- sonnel Act of 1947 _...... hinbinigielandnntintcaceteti eat

“10 U.S.C. 6384(a) ow SED SI am

- £

17

33

8

ot tee * INDEX—Continued

APPENDIX D—Continued _ eee PaGE*

10 U.S.C: 6388(a) EE EE cesiecessiningas hinpalcqeniniibieitonslaeass . 35

a a MII ice ciasdsinpcacoicsoincosniiiptneeannschiomantoians siiventaions 36

kf AE RST aN, Oe eee eT” anes 37

Art. 1701(8) (a) and (b), US. inated Regulations,

1948 , saints a 38

| ’ Citations

CASES — | .

Bates & Guild v. Payne, 194 U.S. 106 .................... 10

7 ’ Creary. v. Weeks, 259° U.S. 336 cc ceccccccccccecpesceeee - 13, 23

Crenshaw v. The United States, 134 U.S. 99... 12

Dismuke v. United States, 297 U.S. 167 .............. a ©

Heikkila v. Barber, 345 U. = } Saas “fi -

Etoyd Sabando Societa v. Elting, 287 U.S. 329 .... - 10

Orloff v. Willotighby,-345 U.S. 83 ote 12, 23

Peters v. Hobby, 349 U.S. 331 ote 1OZ12 ©

' Rooker v. Fidelity Trust Co., 263 U.S. 413 . 26

- Service v. Dulles, 354 U.S. 363 SidaaidciasinisianenaitibasScias 10, 12

Schoot of Magnetic ry v. aie ‘187 .

U.S. 94 (ahessaigiasiniierdarttiniianmniatanepaneiiinsaniiciaennaiitlennnitinthesn 10

STATUTES AND REGULATIONS | eS eat

~~~ ~“Aet of “April: 18, SRE. Sa eae aiesacad ... 16, 19, 34

.-Administrative Procedures Act of 19460 oc. 4, 10

, -Art. 1701(8), Navy Regulations .................. weeeee 15.13, 38

~ ’ D.C. Code. (1951), | | anne nen 4

a Office Personnel Act of 1947 t.............. 8, 14, 15, 21, 34

Be ne IIE sCiccaissnccncetsimicinaqibiccesnsiecs 3, 5, 13, 36, 37

10 U.S.C, 6384(a) .......... . 6, 13, 14, 18, 20, 25, 26, 29,.35

i RE SUIT, Ginhinsttendtsocdusasiencaneinnin .- 14, 15, 20, 21, 26, 35

ae ; Miscellaneous

I I i scactectnlet a onnechistismssineinngiacieosensors en ee

SS. _ &. 2p eekSeer ee enn ee 15, 22

Navy Court-Martial Orders, 1-1949 and 2-1949 .......... 15

In Tue

Supreme Court of the United States

_ OcToBer TERM, 1960

James B. Rosinson,

_ Petitioner

¥.

sting Wittum B. FRANKE, Secretary of. the Navy,

Re »spondent

and :

. StepHen H. Payson,

Petitioner

v. a

Wittum B. FRawe, Secretary of the Navy,

Respondent

( »

PETITION FOR A WRIT OF CERTIORARI TO THE:

UNITED STATES COURT OF APPEALS FOR THE |

DISTRICT OF COLUMBIA CIRCUIT

a

The Petitioners pray that a writ of certiorari issue to

review the judgments of the United States Court of Ap-

peals for the District of Columbia Circuit entered in the

above cases on October 28, 1960, and August 4, 1960,

respectively, (am extension of time of sixty days within

which to petition for certiorari having been granted on

October 28, 1960 until January, 2, 196] in the latter case

by.the Chief Justice). :

\ ‘ \

° 2

OPINIONS BELOW - | a

Opinions were not rendered by the United States Dis-

trict Court for-the District of ‘Columbia (Dist. Ct. Record; .

Robinson, CCA Record, Payson, 108) in either case. The -

United States Court of Appeals for the District of Co.

lumbia Circuit affirmed in Robinson w. Franke on October -

- 28, 1960, on Government’s motion without rendering an -

_ opinién (CCA Record, Robinson, 8). The opinion of

ithe United States Court of Appeals for the District of

‘- Columbia Circuit in. Payson v. ‘Franke, announced on

' , August 4, 1960, is reported at 282 F.2d 851, and a copy

is appended to this petition as Appendix A.

Pex _ JURISDICTION

The judgments of the Court of Appeals for the District:

of ‘Columbia Circuit were made and entered on October

28, 1960 in Robinson v. Franke, and on August 4, 1960 in *

Payson .v. Franke, and are appended to this petition in -

‘Appendices B* and C, respectively. The jurisdiction of

—this Court is invoked under 28 U.S.C. 1254/1).

tek: QUESTIONS PRESENTED .

Both petitioners, officers of the regular Navy with over -—

.. 17 years of active duty, were discharged as unsatisfactory ,

pursuant to a Board’s findings based exclusively on peti-

tioners’ fitness reports. The majority of the fitness re-

_ ports were not shown to petitioners, and all of them were

_. expressly graded satisfactory or better. -Neither peti-

* tioner was granted a hearing or opportunity for a hear-

ing, although the Board involved’ was authorized to con-

duct. hearings prescribed by 10 -U.S.0. 5863:

Moreover, despite the fact that the Board’s considera-

* tion of officers for discharge as unsatisfactory was limited-

‘Appendix B also contains the Government’s Motion to Affirm

or Dismiss, Petiticaers: Opposition and the Government’s Reply.

fe)

3

to oficers’ “with less than 20 years “of service,” both

petitioners were, under 10 U.S.C. 6388, deemed to have

constructively the same years of service as certain Naval

Academy graduates once’ junior ‘to then= who had com-

pleted over twenty years” service, .

+ The Government took the position in both -cases that.

it was beyond the scope of the Court's power to review

the Board’s findings. “In Payson vy. Franke, the Court of

Appeals sustained the: Government’s pesition in this re-

spect, holding that it was without power to review the

Board’s findings. Robinson v. Franke was thereafter

decided by the District Court and affirmed on Govern-

ment’s motion by the Court of -Appeals (Circuit Judge

Fahy would have denied the motion) on the basis of the”

opinion in Paydou v. Franke. The questions presented

are; : 7

. ay Is the action of the Board involved judicially _re-

viewable for arbitrariness or abuse of discretion?

(2) If the action is so reviewable, ‘ean sufficient basis.

- for the Board’s action be found in petitioners’ records.

(3) Is the’ pertinent statute (10 U.S.C. 6384(a) ) rea-

-sonably clear as to the Board’s limits of authority to

find an of§cer unsatisfactory so as to sustain its validity?

(4) Was the Board’s failure to give petitioners an

opportunity for a hearing a denial of administrative due

process? . .

(5) w ere petitioners officers with: over “20 years of

service” and therefore statutorily exempt from discharge

_ 4s unsatisfactory? . .

CONSTITUTIONAL PROV ISIONS, STATUTES AND

REGULATIONS INVOLVED

The constitutional provisions, statutes and regulations

‘which are relevant to decision of this case, and the perti-

-

A

4

‘neni text of whieh is set forth in Appendix D hereto, are

Section 8, Article I of the United States Constitution, -

<'the Act of April 18, 1946, 60 Stat. ‘92, Sections 202(a) .

sy

opportunity to be heard on the matter.

and 202(d)(1) of the Officer Personnel Act of 1947, 61

Stat. 816, Sections 6384(aJ, 6388(a) and (b), 5862, and

9863 of Title 10, United States Code, and Article 1701

(8), U.S. Navy Regulations.

. ; STATEMENT

Petitioners originally brought separate suits for de-

claratory "judgments to set aside a Selection Board’s find-

angs of unsatisfactory service which resulted in their dis-

charge from the servicé.. Jurisdiction of. the District

Court for the District. of Columbia ‘was invoked under

the Administrative Procedures Act of 1946, 5 U.S.C. 1009,

and under D. C. Code (1951), Section 11-306. (Dist. (Ct. me

Record, Robinson, 2nd Amended Complaint; CCA Record,

‘Payson, 1) i

The facts of Robinson v. Franke serve better to high-

light the issues.

Commander Robinson was initially appointed in the

‘Naval Reserve of the United States Navy, January 19,

"1940, in the*grade of lieutenant (junior grade). In

2 Insofar as applicability of the governing opinion in Payson V.

_ Franke, Appendix A; is concerned; the cases of Commanders

Robinson and Payson would appear legally identical.- Both were

regular commissioned officers in the Civil Engineer Corps, United

States Navy. Both had formerly been Naval Reserve officers.

Both had completed:over 17 years of active duty at the time of

their disposition and were deemed to have the constructive service

of Naval Academy graduates with over 20 years’ active duty.

Neither had any unsatisfactory fitness reports and the Govern- .

ment admits in each case that it cannot sustain the Board's

action on any records outside these reports. Neither were ever

shown the majority of their fitness reports upon which the Board’s

action «is allegedly ‘based. Both were branded as unsatisfactory

by the same Board at the same time. - Neither was given: any

t&

*

) Soa *

e . ® nie? , ; Sd

‘August, 1940, he was ordered. to. active duty. at Pearl

Harbor, but was” subsequently transferred) to Wake

"Island. On December 22, 1941, while,engaged in the de-

fense of that outpost, he was taken a. prisoner-of-war of

the Japanese and remained in such status until Septem-

ber 11, 1945, when freed to Ameriqnn jurisdiction. Upon

returning, he was promoted in. successive steps: through

the grades of lieutenant, lieutenant commander, and final-

ly to commander, and in April, 1947, was released from

active duty. He, however, made application to be ap-

‘pointed to thé Regular Navy and, this application being

accepted, on August 1, 1947, he‘ was permanently ap-

pointed to ‘the Regular’ Navy in the temporary grade of

commander (Civil Engineer Corps). and-returned to active

duty. Subsequently his ‘grade of commander -was ‘made

permanent to.rank from February 16, 1950. (Dist. Ct.

Record, Robinson, 2nd Amended Complaint, Answer)

Commander Robinson became statutorily eligible to be-

considered for discharge as unsatisfactory’ in the fiscal ©.

year 1952 and was presumably -so considered for dis-

tharge by a ‘Board -that year and each successive year

, (Dist. Ct. Record, ‘Robinson, Answer). In fiseal 1958,

however, a Board, which was a combined Selection Board

and Examining Board: (CCA Record. Payson, &7), con-

cluded—without. setting fort’ any basis—that Robinson's |

records indicated his unsatisfactory performance of duty

in his’ present grade (Dist, ('t. Re

of Proceedings of Selection Board and Naval Examining

Board). This, despit® the fact. that Commander Robhin-

son’s records. contained -no unsatisfactory ratings .what~

Soever. After the action of the Board was approved hy:

the President, Commander Robinson was notified thereof

and orders were issued for his discharge which became

effective July 1,.1958 (Dist. Ct. Record, Robinson: 2nd

Amended Complaint, Answer). He was given no Oppor

tunity for a hearing pursuant to 10 U.S.C. 58g3 ( Appen-

‘cord, Robinson, Record .

e*

i

dix D) or otherwise and, in “fact,;was unaware of the

Board’s action’ until “it_had been°approved. At. the time

of his discharge he: had 17% years’ attive duty—2!. short

of eligibility for voluntary retirement.

Under Section 6384(a), Title 10, U.S.C., the Board was

requiréd to make its finding of unsatisfactory perform. .

ance of duty on the basis: of petitioners’ records. The

Government and petitioners. have agreed that if any evi-

dence of: unsatisfactory performance of duty exists, it

cannot be found in any of petitioners’ records. outside of

their fitness reports. (Dist. Ct. Record, Robinson, An-

swer,, CCA Payson, 77) Moreover, since the Board must

find that an officer performed unsatisfactorily in his

present grade, the scope of review ean be ‘narrowed to

petitioners’ fitness reports in the grade of commander--

or in Robinson’s case, those fitness reports issued after

his release as a prisoner-of-war. This is, of course, not

to intimate that adverse material may be found in the

other® records, ‘but rather to narrow the scope of review.

Looking now’ at Robinson's fitness reports, the form

used: for such reports during September 5, 1946 through

July 4, 1951, provided in Space 12 as follows * ;

«

_ Give in this space a clear, concise appraisal of the

officer ‘reported on and his performance of: duty, in-.

cluding afiy worthy of SpecM@il mention. Include rev-

‘ommendations as to promotion, Any statements of

unsatisfactory performance, ability, character, or con-

duct miust be referred to. the officer for statement.

Statgments of a ecenstructive nature which refer to

« Minor. imperféctions: or lack of qualifications do not

— . eonstitute an unsatisfactory report. For example:

“This officer was a little slow in getting started Init

is now making good progress” .or: “This officer vis

well qualified in his present duties: but has had no

experience “at sea” would not. be unsatisfactory in

nature. Check one’ of these boxes—I_ consider this

report to be | | Satisracrory (J Uwsravorant.

[7 Unsatisractory | a,

“3

a tee

For, the above-mentioned period, Commander Robin-

son’s fitness reports were all Parked “Satisfactory”.

(Dist. Ct. Reeord, Robinson, Photostats of Fitness Re-

ports, p. 36-56) “ |

For'‘the period of July 4, 1951 to February 28, 1954, a

different fitness report form was utilized. In tiis. form,

Item 14 provided as follows:

A report containing adverse matter must .be -re-

» ferred to the officer reported on-for statement. pur-

suant to article 1701(8) USNR. His statement should

“be attached to this report. Statements of minor

deficiencies either in character. or performance of

‘duties must be brought to the attention of the officer

reported on _cither orally, or in writing. “Has Tins

Been Done? ....... Rik sehsiddid AIR SL LN Wat

During this period Commander Robinson TECETV EC q no

unsatisfactory marks on his fitness reports and there ‘is

no indication in Item 14 that any of the reports contained.

adverse matter. (Dist. Ct. Record, ‘Robinson, Photostats

of Fitness Reports, p. 21-35) .

Starting March 1, 1954 and continuing for the remain-

der of Commafder Robinson's naval career, a still fur-

ther form was used for: fitness reports. In this form,

performance of duties were rated. Item 16 provided. for’

- an “Unsatisfactory” mark on a comparative basis. Item

21 provides as follows: 2

(a) As a general rule, officers should pot be shawn

their fitness reports by the reporting seniors unless

the report contains adverse matter. An adverse re-

port must be referred for statement. pursuant to

Article 1701-(8) Nayy Regulations. His .statemént

should be attached to this report. i

(b) Has the officer reported on seen -this report?

.Yes [] - No nm

8

In the foregoing reports not. one contained an unsatis.

factory or adverse mark apd not one was checked “Yes”

under Item 21. (Dist. Ct. Record, Robinson Photostats

of Fitness Reports, p. 1-20). :

In summation, none of Robinson's fitness reports con-

tained unsatisfactory ratings or are any indicated as

unfavorable by the rating officer. Of all the reports, it is

indicated that only owe was even ever seen by him or

referred to. him for comment. This is the report for

June 6, 1950 to August 31, 1950, which was referred to

Robinson for comment by the Bureau of Naval Personne!

rather than by his commanding officer. (DRt Ct. Record,

Robinson, -Photostats of Fitness Reports, p. 41, 37-39)

The purpose of referring the. report to Robinson was in

View of: a comment contained in the report whieli reads

in full as follows: |

This officer has performed his duties satisfactorily

since reporting ag Assistant Naval Attache, Cairo,

Egypt. He shouk concentrate upon development of a

more forceful personal presentation and positiveness.

Hy is not recommended for promotion at this time.

[Emphasis supplied |

This report. which unquestionably is petitioner Robin-

-son’s worst report and was rendered almost eight years

prior to his discharge: as unsatisfactory, is onits face no:

e . r + .

an unsatisfactory report. To the contrary, it affirmative-

z . ‘ . . .

ly states that Robinson had performed his duties satis.

factorily. One might easily conelude from Robinson’:

records that the Board -had inadvertently, confused his

records with those of another less. desirable officer,

Counsel for petitioners challenges the Solicitor General

to point out anything in the pertinent records of Robin-

son. which would provide any basis. whatsoever for the

Board's findings. - 7

id

The same vact > which first ‘authorized the discharge

* The Officer Personnel Act of’ 1947.

* 9 ;

of staff corps officers “with less than”20 years of service”

as unsatisfactory, constructively gave to Regulars who

had formerly been in the Reserves the same service “in

respect to separation” of “an officer originally appointed

in the grade or rank of lieutenant (junior grade) or en-

sign in the: -Regular Navy.” There is no’ dispute that.

Commander Payson had constructively the same service

as one Mark Henry Jordan (CCA Record. Payson, 77,

100) (who was appointed to the Regular Navy from -the

Naval Academy June 3, 1937, and served continuously

thereafter without loss’ of precedent to have completed

over 21 years* active duty upon Payson's” disposition)

or that Commander Robinson had constructively the same

service as. one Jolin Joseph Cassidy who, by the same °

token, had completed 20 years’ active duty at the time. of

Commander Robinson's Alischarge. (Dist. Ct. Récord, 2nd

Amended_Complaint, Answer). Nevertheless, both Com-

manders Robinson and: Payson were considered as officers

“with less than’ 20 years of -serview” in respect to estab-

lishing eligibility for their separation. as unsatisfactory.

* #

Not only have petitioners lost a Valuable retirement

equity, but as a result of the arbitrary actjon of the

Board, they will bear for the rest of their lives a brand:

of: “What did they do?” Yet, when put to it, ‘the

Government was unable to answer this simple question in’

the hearing before District Judge Youngdahl ( Dist. Court

Record, Robinson, Transcript)

REASONS FOR GRANTING THE WRIT

1. The decisions of the court. below have either de-

cided an important question of federal law which has

not been settled by this Court or have decided the ques-

tion in conflict with applicable decisions of this Court.

The Court of Appeals has thus in effect held that it will

not review the record to determine whether action taken

to discharge a regularly commissioned officer of the armed

. f

a

oe

10

_ forees as unsatisfattory met the statutory criteria under

Which the action Was ostensibly authorized even though

it may be arbitrary and ‘an abuse of diseretion.. The

Court of Appeals has thus carved in a critical and im.’

portant area an é@xtensive exception to judicial review-

ability of administrative actions contrary to this Court's

decisions in School of, Magnetic Healing y. McAnnulty,

187 U.S. 94 (1902); Bates & Guild v. Payne, 194 US. 106;

Lloyd Sabaudo Societa vy. Elting, 287 U.S. 329; ana

Dismuke v. United States, 297 U.S. 167; and more recently

in Peters y- Hobby, 349 U.S. 331 (1955); and Service ¥.

Dulles, 354 U.S. 363 (1957). ‘ ay

2. The subsidiary question of. statutory construction

pertaining to petitioners’ years of service is, in itself,

not unimportant. -Thus, the decision -of the Court of

Appeals permits an uncontemplated discriminatory treat-

ment as between line officers and staff corps ‘officers and

as between Naval Academy graduates and ox-Reserve

officers that is clearly inconsistent with both the inteit

and letter of the law. ‘ a

3. The Court of Appeals seems to have completely

overlooked the applicability of the Administrative Proce-

dures Act of 1946, 5 U.S.C. 1009, 60 Stat. 243. Seetion

1) of this Act provides: “Exeept so far as (1) statutes

preclude judicial review or (2) agency action jis by law

committed to agency diseretion— : . - (ec) Every agency

_ action made reviewable by statute and every final agency

action for which there is no other adequate remedy in

any court shall be subject to judicial review.” And _ thie

term “agency” includes the President, cabinet: mombers.

and other executive officers. It includes also the military

exeent “courts martial and military commissions” and

“military or natal authority exercised in the field in time

of war or in oceupied territory.”* In the House report

to this Act it. is provided: “To preclude judicial review

*5 U.S.C. 1001(a). ’

under this bill’a statute if not specific in withholding such

review, must upon its face give clear and convincing evi-

dence of an intent to withhold it.’5 Having in peti-

tioners’ case a situation Where, in contrast to the Army

and Air Force, no hearing is given, no basis. for the,

action-is given, and no provision ¢s made for adequate

check bie? a of diseretion, it is indeed remarkable that

there may be no judicial inquiry,as to whether the action

nay not constitute abuse of discretion. ‘There is nothing

in 10 U.S.Code 6384(a) which either specifically provides

or gives. “clear.and' convincing evidence of intent to with-

hold” judicial review. It would thus appear manifest the

action of the Selection Board involved clearly falls within

the ambit of judicial review provided hy Section 10 of the

Administrative Procedures Act of 1946. |

, rs ¥

4. Under the Constitution, while the President is the

commander-in-chief of the Army and Navy, the power

‘is given to Congress to provide and maintain a Navy and

to make rules for the government and regulation of the

land and naval forces. The instances in history Wherein

the armed forces have been the instrument of power and

control over a people are too numerous to recount. While

this has fortunately been comparatively thon-existent in

this nation, espevially in peacetime, never before lave we

maintained such a large peacetime Regular Establishment

in the Armed Forces. It is perhaps more truly analogous

of the armed forces than any other agencies that we have

a large beast on a bridle. If this bridle should fray or

hecome loose, ‘should the judiciary he either more of less

prone to repair the same than it jis in the cases of those

smaller beasties also bridled? It is petitioners’ position

that, if anything, more attention should be paid to this

particular bridle than the others. In any event, certainly,

a

5 CF. Heika V. Barber, 345 U.S.) 229, 232.

* Sec. 8, Art. I, U.S. Constitution ( Appendix D); Cf. Federalist

Papers Nos. 13 and 69. ae

- -

12

‘no good reason is pereeived why. the armed forees, or

specifically, why the Navy should be above the law than

any other federal agency. Yet the opinion of the (Court

of Appeals creates just such on distinetion: For while (

Crenshaw vo The United States (1890), 134 U.S. 99, -it was

noted on page 107 that in “respect of official tenure ther:

is no difference in iaw hetween officers in the army and

other officers of the government,” the Court of Appeals

holds petitioners” cases nonreviewable’ by the Judiciary

contrary te the holdings of this Court in connection with

civilian Officers, Peters y. Hobby, 349 US. 331 61955).

Service v. Dulles, 304 US. 368 (1957).

5. The citations by ‘the Court of Appeals of Creary +:—

Weeks, 250 US, 336 449225>+and Orloff v. Willough he,

53 U.S. 83 (9953). for its proposition that petitioners’

Cases are unreviewable, are only casually related to peti-

tioners’ cases. Creary ¥, Weeks involved a post World

War | -Board concerned with reduction in numbers in

Officers. In that case, the relator was given full Oppor-

tunity te be heard and this Court carefully held at 343.

344 that the “hoards which acted on his ease did not

exceed the powers conferred upon them.” Morcover, the

Statute’ involved specilically provided that the adminis.

trative action should be final. Still f¥rther, in Creary v..

Weeks the board's function Was, in effect, to thin out the

oherd”—but- tiving” those tentatively chosen for elimina-

tion opportunity to be heard. In comparison, the purpose

of petitioners’ board was te eliminate the “black sheep"—

based. upon the “sheepherders’ ” records. But the records

of petitioners do not designate them as “black sheep”.

Orloff v. Willoughby held that this Court would not. in-

‘terfere with the President's power to appoint comniis-

sioned officers. The Court in no way indicated that this

non-interfergnee should apply also to an involuntary cut:

ting off-of tenure. In fact, the: contrary Was indicated

(although in a back-Nanded manner) when the Court

stated on pays 90, “Whatever control courts have exerted

over tenure or compensation under an appointment, they

©

?

13 oO

have never assumed any process to conceal the appeinting

power either in civilian or military. positions.”

6. Although in Payson it was argued to the Court of

Appeals that he should have been given a hearing under

10 U.S.C. 5862-5863, (Appendix D) the Court of Appeals |

failed entirely to comment on this issues These provi-

sions of-law, and regulations in implementation “thereof,

give to a “candidate for promotion” notice and oppor-

tunity for a hearing hefore the board when the beard

_entertains doubt as t | .s mental, moral and professional

fitness. There is no qaestion but that the Board consider-

ing petitioners had these powers, but did not. exercise

thent in petitioners’ cases. No explanation has been

offered by the Government for this failure,

F - *,

‘ The criteria set forth ‘for the Board's avtion in 10.

U.S.C. 6384(a) is whether the Officer's record indieates

that “his performance of duty is unsatisfactory in’ his

present grade and that he Would not satisfactorily per.

form the duties of a higher grade. For a long time past,

the Navy has specifically provided a place in an. officer's

fitness reports to mark him unsatisfaetory-if he was so”

considered by his reporting senior. Under Navy Regula-

tions an officer ix -shown all Unsatisfactory reports and

given an opportunity to reply. (Navy Reg. Art. 1701(8),

Appendix D) It -is clear from the legislative histery that

it Was specifically in view of this procedure that 10 UIS.C.

6384(a) was originally enacted into law. Yet the Gov.

* The Government has not contended that petitioners failed to

exhaust their administrative remedies. But siffte in the oral

arguments in Payson, despite the statutory provision fot notice

in 10 USC 5863(c). the Court expressed some curiosity” as to

whether Commander Payson had requested a hearing, it might be

well to relate that Commander ‘Payson did request review and

cancelation of his prospective dischargé but was informed that

no person or board possessed the power -to cancel or hold in

abeyance his prospective discharge. Neither Payson nor Robin-

son knew “that they had been. selected for discharge as unsatis-

factory until after the’ President's action. '

, ff Pg" in .

; mareey .

* ernment has contended that an unsatisfactory ‘perform. °

ance could be determined from purely ex parte reports

Which are all graded satisfactory such as petitioners—

through insight gained by. experienced navat-efficers. bhe=—

yond that of. persons not so favored. And-there is some

hint from the opinion in Payson that the Court’ of Ap-.

peals felt it lacked\such insight and for such reason could

not review petitioners’ records. But if this be so.. it is

submitted that the criteria of 10 U.S.C. 6384(a) is either

no. criteria or not the criteria intended by Congress, and

the proviso itself must fail as being too broad of a déle- ;

gation of legislative authority. . ; s

(‘8 ‘The opinion of the Court of Appeals in Payson

‘Testates ‘petitioners’ position upon the computation ef

years of: service precisely opposite to that taken. It was

and is: petitioners’ position-that the original statute (Sec-

tion 202 of the Officer Personnel Act. of 1947, Appendix

D) is unequivocally clear that Staff Corps officers were

to count their service from the date of original appoiut-

ment ‘in the Regular Navy whether they were originally

appointed in the Staff Corps og in the Line and trans:

- ferred without loss of rank to the Staff Corps concerned.

This way, all the service Was counted gnd the transferee

Was, not, in effeet, “reborn”. when he was transferred.

With such interpretation, Line and: Staff Corps running

mates” becane eligible for separation and. retirement at

the same t.me. Hov ever, despite the unambiguous nature

of the statute, ihe Navy Judge Advocate Genera] in 1949

Ppined that there was a Statutory “rebirth” and Stat? .

Corps transferees lost the time they had previously spent

in the Line. (CC@ Record, Payson, 111-123) Tater, the

Navy Judge Advogate General proposed a modification of

his original opinion in line with that. subsequently sub-

mitted: on behalf of petitioners. But in the meanwhile

-a Codification of laws relating to the military was en-

acted. And wheteas the prier provision was not: am-

biguous, the codified provision was..> (10 U.S.C. 6888,

‘Appendix D) In view of the Codifieation’s changes, the

a

Comptroller General would not accept the Navy Judge

Advocate General's proposal for a different interpretation

onthe grounds that the Codifieation had adopted his prior

opinion (37 CompGen ‘747, CCA Reeord, Payson, 124-128).

However, the Senate artd House Reports to the Codifi-

cation state that where such opinions were adopted with

the: text reworded to express those interpretations, such

changes were explained in the revision. notes: But, th®

changes in the applicable provision (10 U.S.C; 6388) .

Were not so’ explained—there being no mention of the

prior opinion of the: Navy Judge Advocate General in

the Reyision notes at all. ’ ;

. Petitioners and their attorney alike seriously question

whether consideration of the case by the Court of Appeals’

was more than superficial when the Court's statement,

“Appellant seems totally to have overlooked: the effect

Which must be given®o Section 202(a) of the 1947 Act”

is edntrasted rae following from page 14 of the -

Repiy Brief in. Payson:

Counsel for Appellant, however, utterly fails to

discern any Foom for int®rpretation.of the language

in Section 202(d)(1), supra, When “commissioned

officers holding permanent appointments in the Staff

Corps” is:substituted for “officers” in th section (See

Appellee'’s Brief, page 12 [referring to Section 202

(a) of: the 1947 Act]), the meaning would, if any-

thing, seem even more clear that the eléck for-tota!

commissioned service started running for these off.-

cers upon their original Regular Navy appointment, °

Moreover, it is, submitted that this Viewpoint is con-

siderably fortified by the fact that the Judge Advo-

¢ cate General of the Navy indicated in ‘his opinion

submitted to the Comptroller General tht he con-

sidered that the 1949 opinion did not correctly in-

_ terpret Section 202(d). Had the Comptroller Gen-

“eral agreed with the Judge Advocate General, it is

apparent that we would not now be before this Court.

It is a fundamental pule df Statutory construction

that where a statute is clean and unambiguous an

administrative construction thereof. js not material.

“a

Q

16

The foregoing is then followed in the Brief by ofe and

one-half pages of pertinent case citations ‘and quotations.

9. It might ‘at first blush seem that the Court, of

Appeals’ decision as te petitioners’ years of service ‘will |

have the same adverse effects on Line officer transferees

to the Staff Corps fs on ex-Reserve Staff Corps officers

who later integrated into the Regular Navy. . But this

is not.the case. While it -is true that both ‘rémain to-

_ gether for eligibility to be recommended for discharge

as unsatisfactory and for involuntary retirement, the :

Line transferee can count his “lost” time. for voluntary

retirement—something*the ex-Reserye officer can not do.

‘Hence, had either of-the Line transferees, to which peti-

tioners must look. for their years of ,service under 10

U.S.C. 6388 (Appendix D), been recommendéd for dis-

charge as unsatisfactory, they tould haye neatly avoided

same merely by voluntarily retiring before their involun-

tary separation. Thus the Court of Appeals has sue.

ceeded in fostering a discrimination af to officers because

of their, source contrary to the express intent of Congress

‘that-no préference was to be accorded officers becanse

they enteréd the Regular Navy from a particular source.

(Act of April 18, 1946, “Appendix D)

-. CONCLUSION:

For the foregoing reasons, it is respectfully submitted

that this writ of certiorari should be granted.

. }

PENRose} Lucas ALBRIGHT

Attorney for Petitioners

-° — 708 Perpetual Building

Washington 4, D. ¢.

Mason, Mason and Albright 3

Of Counsel

7“~-

ty

17

APPENDIX A

UNITED. STATES COURT OF APPEALS: FOR THE

: DISTRICT OF COLUMBIA CIRCUIT

No. 15554

-StErHeN H. PAYSON, APPELLANT

Vv.

Wituim B. Fraxkr, Secretary of the Navy,

> e .

APPRKLLEE .

Appeal from the United States District Court

mf. for the District of Columbia

ge

- Decided August 4, 1960 ©

Mr. Penrose Lucas Albright for appellant. j

-

Mr. Daniel J. McTaque? Assistant United States Attor-

ney, with whom: Messrs. Oliver Gasch, United States

Attorney, and Car! W. Belcher, Assistant United States

Attorney, were 6n the brief, for appellee,

- ? ae We Sy.

Before Puiups, Senior United States Circuit Judge

for the Tenth Cireuit,* and Wiser K, MILLer and Dawa-

NER, Circuit Judges,

Dananer, Circuit Judge: A Navy Department selection:

board was convened September 24, 1957, to consider the

cases of officers of the Civil Engineer Corps of the Navy

* Sitting by designation pursuant to 28 U.S.C. § 294(d).

+

* 18

on active duty eligible for consideration for temporary

promotion tothe grade of Captain. Three officers: were

selected. By direction of. the Secretary, the’ selection

board also considered the cases of all such officers “with

less than twenty years of service” whose reeords indi-

cated their unsatisfactory performance of duty in their

present grade and that they would not satisfactorily per-

form the duties of a higher grade, The board found this

appellant ineludable among the latter group. The report

of the selection board was concurred in oy the Chief of

Naval Operations, and thereafter was approved -by the

Secretary of the Navy and the Secretary of Defense.

Finally,. after the report bad been approved by the

President on October 17, 195 , appellant was given notice

of the action taken and was informed that he would be

separated from the service as of June 30, 1958. After the

Secretary of the Navy had refused appellant’s request”

that his. discharge be suspended, appellant filed suit in

the District Court where a temporary restraining ordér

was issued. A motion-for a preliminary injunction was

denied, and appellant was finally discharged on July 18,

1958. Cross motions for summary. judgment having. been -

filed, .the Secretary's motion Was granted. Appellant's .

motion was denied and his case was dismissed, and this

appeal followed. “T° OS

. Appellant’s ¢omplaint had. asked the District Court. to

adjudge and declare null and void that portion of ‘the

report of the selection board which reflected the board's

opinion that appellant’s record indicated his, unsatisfac-

tory performance of duty in his grade of Commander.

Alternatively, appellant asked the District Court to ad-

judge and declare 10°U.S.C. § 6384 to bea nullity, (a),

for its failure to prescribe with reasonable clarity the

_ limits of the power entrusted to the selection board, or

(b), for prescribing “unreasonable and too broad limits:

of authority which Congress is without power to pre-

scribe,” ; .

19 Eee

! .

The record shows that’ appellant on October I4, 1937

was appointed Lieutenant (j.8.) in the Civil Engineer

Corps of the United States Naval Reserve and*that he

accepted appointment December 29, 1937, He Was not

called to active duty until January 22, 1941. He served

in various grades until, on’ September 7, 1946, he was

appointed an officer in the Regular Navy, Civil Engineer

Corps, achieving the permanent. rank of Commander in

June, 1949. Pursuant ‘to the Act approved April 18,

1946, 60 Srar. 92, 34 U.S.C. $15. (1952), many officers

like appellant who had served in World War II as Re-

serves transferred ‘to the Regular Navy. It is clear from

the Act that Congress contemplated no discrimination .

against officers because of the source from which they

entered the Regular Navy and that no preference was to

be accorded officers because they entered the Regular

Navy from a particular source. Problems arose. never.

theless, and Congress next passed the Officer Personnel

Act of 1947, 61 Srar. 795, 891, 34. U.S.C. § 806d (e) (2) ©

(1952),-(now 10 U.S.C. § 6384(a) (1958)), where provision

was made for certain action by a selection board as to

‘officers “of less than twenty years’ service.” :

Despite appellant’s claims, we perevive no proper basis

upon which to conclude that the sections here applied

Were a “nullity.” Not only does Congress possess specific

constitutional authority to legislate with respect. to the

Navy, U. S. Consr. art. I, § 8, but the President from: the’

same source derives his authority as Commander-in-chief.

_He appointed the Seeretary-of the Navy by whose “pre.

cept” the selection board was convened. To the latter,

expressly detailed duties were assigned by the Secretary.

The carefully outlined agenda, set forth in the record,

discloses a comprehensive plan whereby a recorder was

named and sworn, each member of the hoard was sworn

to the performance of the specific duties devolving upon

source provisions to be found in the Officer Personnel Act

20

the board, at least two-thirds. of the membership were

bound to, and did, coneur in the ultimate individual opin-

ions and conclusiors, and the final findings were read

aloud ‘in the presence of all members who then siigned

the report as did the recorder. We can not agree that

.the administrative plan authorized by statute with the

report of the board proceeding through. channels, and

ultimately approved by the President, was a “nullity.”

_ Apparently the records of some 125 Civil Engineer’

Corps officers of the Navy were under consideration by

the board. Three officers were found eligible for promo-

tion and three others were in. the board’s sworn, collec-

tive judgment not qualified for continued service. Short

of court martial proceedings based upon gross derelic-

tion, or’ retirement for physical or ‘mental disability, the

mechanism may well seem ta reflect. the experience of

long years involving thousands of offivers, Whose qualiti-

cations for continued service may thus become subject to

periodic’ review. Congress has long been aware of the

problem, with severance pay, retirement status and other

personnel factors the subject of extensive legislation.

To decide, as we do, that the statutes and the proceed-

ings ‘under them are not a “nullity” is not to end our :

task. If appellant had achieved “tatal commissioned sery-

ice” of twenty years, he would not have been subject to.”

separation from service. He insists he possessed a ree-

ord of twenty years’ serviee for the purposes of 10 U.S.C. °

§$ 6384(aJ (providing for action by the selection board

looking to separation from the service), and 6288(a) and

(bj(1) and (b)(2} (providing for computation of total

commissioned’ service). He argues that the codifiers in

drafting 10 U.S.C. and particularly § 6388(a) and (b)(1)

and (b)(2), erroneously and substantively altered the

of 1947, particularly Section 202(d)(1). The-latter not

only specified how “total ¢éommissioned service” must be

«

a | ; Yan ; °

computéd for Regular Navy Officers but related his service

fo one of the latter next — to him.

Appellant thus claims that his “total commissioned

service” should be deemed to date back to June 30, 1937,

of the fiscal year from which his Nayal Academy “run-

ning mate” must date his service undef 10 U.S.C. § 6388 °

(@).. On appellant’s ‘theory, his twenty years’ service

would have been concluded by June 30, 1957, and the

selection beard therefore lacked power to recommend

his separation,

We do not agree. The record clearly shows that ap-

pellant’s running’ mate had been appointed Ensign in the

Regular Navy on June 3, 1937, but he did not accept ap-

pointment as Lieutenant (j-g.) in the Navy's Civil. Engi-

neer Corps until August 23, 1940. The onset date of: his

Staff corps Service, under the Act, became June 30, 1941, whe

Appellant seems totally to have overlooked the effect

Which must be given to section 202(a) of the 1947. Act.

There the word “officers” was detined for the purposes of

Title II to mean “commissioned offiéers . . . in the Staff -

Corps of the Regular Navy,” (emphasis supplied) which

ineluded the Civil Engineer Corps: . Thus section 202(d)

(1) in referring to “total commissioned service”. of such

a Regular Navy Officer ‘provided that computation must

date “trom June 30 of the fiscal year in whiclr he accepted —

such appointment,” Lé€.,-as a commissioned officer jn the

Staff Corps. Sections 202(a) and 202(d)(1) must be read

together. The codifiers in drafting 10° U.S.C. § 6388

simply elided the terminology as to “staff corps” service

to avoid the circumlocution and interpolation essential to

& proper reading of the 1947 Act.

The affidavits and administrative records before’ us

demonstrate a consistent application by the Navy: of inter-

pretations with which we agree. The Officer Personnel

Act of 1947, 61 Star. 815. denominates Title IT as con-

b oe 22

; Pag

taining “Permanent Provisions Relating to Officers of the

Staff Corps of the Navy.” The'Judge Advocate Genera.

of the Navy had clearly distinguished section 1U02(d) of

the 1947 Act as ‘applicable to line officers from section. °

202(d) (1) as applicable to staff corps. officers. That his

persuasive opinion, Court-Martial Order 2-1949, p. 40,

since followed, had commended itself to Congress, we do

not doubt. The Comptroller General agrees.- See 37 |

Comp. Gen. 747 (1958).!| When Title%0 of the United

States Code was. enacted: into positive law as of August

10, 1956, Senate Report No, 2484, 84th Cong., 2d Sess, 1)

(1956), to accompany H.R. 7049, explained in pertinent

part: - soe

“The object of the new titles has been to restate

existing law, not to make new lan, . . . Where.

court decisions, Opinions of officials“such as the At-

torney General or the Comptroller General, executive

orders, regulations, or well-established administrative

practice have established authoritative interpretations

clarifying ambiguities in: the law, the text has been

reworded to express those interpretations.” (Emplia-

sis added.) Rian ri

‘We are satisfied that the qriginal statute, the depart-

mental interpretations, thé codification and the Comp-

troller General's decision, supra, demonstrate that. ap-

pellant’s total commissioned service was correctly com.

puted. Calculated as it was, appellant had not achieved

the twenty vears’ service which would have insulated him

from separation from service.

- It is net our function to reassess the appellant’s per-

_ formance record which the selection hoard deemed ‘unsutis-

factory. Varidus references therein may well have ap-

1 Appellant on brief concedes ‘that if these two -administrative

opinions can be sustained, his allegation that he had over 20

years’ service, computed under 10 U.S.C. 6388, “must fail.”

°

23

v °

peared to an expert budy to suggest an adequate basis for

the conclusion which was reached. This may seem espe-"

cially the case where this appellant’s record was to be con-

trasted with-many others. The criteria were for the board

in its sworn judgment to apply for the good of the service, °

Suffice it to say that we are in no position to assess and.

appraise that record by itself even were we free to do so.

Cf. Orloff v. Willoughby, 345 U:S. 83, 93 (1953) ; Creary

v. Weeks, 259 U.S. 336, 343, affirming Weeks +. United

‘States, 51 App.D.C. 195, 277 Fed. 594 (1922),

We have carefully considered evety aspect of the claims

advanced before us. We ean not say that appellant's

separation from service was improperly accomplished.

>

Affirmed.

24

APPENDIX B

UNITED STATES COURT OF APPEALS |

FOR THE DISTRICT OF COLUMBIA CIRCUIT é

é

Zz

(United States Court of Appeals For the District of

* Columbia Circuit Filed Oct 28 1960 /s/. Joseph W.

; Stewart. Clerk) ~ ;

No. 16,021 September Term, 1960

id

James B. Ropinson, aPPELLANT

| v.

Wittiam B. Franke, Secretary of the Navy,

7% _ APPELLEE

Before: Prettyman, Bazelon and Fahy, Circuit

Judges, in Chambers: .

ORDER .

On consideration of appellee’s motion to affirm or dis-

miss, of appellant’s opposition, and of appellee's reply,

it is

Orverev by the court that the judgment of the District

Court is affirmed on authority of Payson v. Franke. No.

15,554, D.C. Cir., Aug. 4, 1960.

Per Curiam.

Dated: October 28 1960

Circuit Judge Fahy would deny the motion.”

25

e

UNITED STATES COURT OF APPEALS FOR THE

: DISTRICT OF COLUMBIA CIRCUIT

“No. 16,021

JAMEs B. RoBINsON, APPELLANT

*

¥. = *

st , } .

Wituiam B, FRANKE, Secretary of the Navy,

. APPELLEE

MOTION TO AFFIRM’ OR DISMISS

Appellant was ag Officer in the United States Navy.

A Navy Selection Board compared appellant's service

record with the service records of other officers of the

Navy. It found that appellant’s Navy service record

indicated unsatisfactory performance of duty in-his pres-

ent grade and that he would not satisfactorily perform

the duties of a higher grade. . It recommended he be

separated from the Navy, The Chief of Naval Opera-

tions, Secretary of the Navy, Secretary of Defense and

the President approved this ‘recommendation. Appellant

. Was thus honorably discharged from the Navy. 10 U.S.C.

§ 6384. ‘ :

In the Distriet Court he challenged the Jurisdiction and

findings of the Selection Board. Because tho sane “pre.

cise questions” were invelved, the -District Court withheld

its ruling pending ‘this Court’s de¢ision in Payson vy,

Franke, Secretary of the. Navy, appeal no. 15.554, decided

August 4, 1960. .Thereafter, appellee’s motion for sum.

mary. judgment was granted and appellant's cross motion

for summary judgment was denied.

On appeal appellant argues the evidence before the

Selection Board was insufficient to support the findings

made by the Board. He does net argue a total absence

26 :

of any evidence to support those findings. In addition,

he argues the Seléction Board ‘had no jurisdiction to re.

view his service record because he was not “an officer with .

less than 20 years of service,” a condition required jhy

-10 U.S.C. § 6384(a). He relies upon his own interpreta.

tion of the definition: section: of the statute, 10 U.S

-§ 6388(a) and (b)(1) and (b) (2). :

These same issues were rejected by this Court in an

appeal brought by the same counsel who brings tiv

instant appeal. -Payson v. Franke, Secretary of the Navy,

supra. As to appellant’s first point, this Caurt held in

Payson, it would not review the sufficieney of the evidence

in a service record to support a similar finding hy this

same Selection Board. As to appellant’s remaining point,

this Court in Payson, validated the’ same. application. of

the same statutes as is now challenged by the instant °

appellant. .

Because of the recent decision by this Court in the

Payson case, it is clear there is no merit to either of the

issues raised by the instant appellant. Such appeals ary

to be summarily affirmed, Rooker v. Fidelity Trust Co..

263 U.S. 413 (1923), or. in the alternative, dismissed.

F.R. Civil P. 75(a); 28 U.S.C. § 2106. ;

Wherefore, it is respectfully submitted the appeal be

‘summarily affirmed or, in the alternative, dismissed.

‘/8/ Ottver Gascu

Oviver Gascu, .

United States Attorney.

/8/ Cart W. Beucuer-

‘Cart W. BeLcHer,’

Assistant United States Attorney.

L

bor .

CERTIFICATE oF SERvIcE.

I hereby certify that a copy of the foregoing Motion

has been personally served on attorney for’ appeNant,

Penrose Lucas Albright, ‘Esquire, 1111 E Street, XN. W.,

Washington, D. C., this 11th Was of October, 160, °°

/s/ Caru’W. BELCHER

Car. W, Bevcuer,

Assistant United States Attorney, .

UNITED STATES COUR? OF APPEALS FoR THE.

DISTRICT OF COLUMBIA CIRCUIT a

No. 16,021

James B. Ropinson, appertayxy’

Vv.

Wittiam B. Frayxe. Secretary of the Navy, °.

APPELLEE .

OPPOSITION TO APPELLEE'S MOTION

TO DISMISS OR AFFIRM

Appellant was a regular -officer of the United States

_ Navy. “A Navy Selection Board found pursuant to See.

tion #384(a), Title. 10, United States Code, that appel-

lant’s Navy records indicated his unsatisfactory perform.

ance of duty in his\present grade and that he would not:

satisfactorily perform the duties of. 4 higher grade. The

President approved this ‘recommendation and appellant

Was separated from the Navy. Appellant had no unsatis-

- fagtory fitness reports in his regerd=all sneh reports

being’ graded satisfactory or better—and app lee has ad.

$

A

28

Sibel ee .

..Mitted that Said fitness reports were the only. material

before the board which contained material on which the

board’s report cduld have been based. (See Allegation 6,

Plaintiff's Secon Amend. Complaint and Defendant's

' Answer) —

Before the District Court, appellant asked that the find.

ing of the selection board as pertains to him be declared

a nullity and void on the grounds, inter alia, that the evi-

dence before the selection board was legally insufficient to -

Support the findings made by the board, and such find.

ings*°were therefore arbitrary and capricious: and also

that appellant was not “an officer with less than 20 years

of service”, as required for consideration under Section

6384(a), Title 10, United States Code. Appellant's Mo-

tion for Summary Judgment was denied and. Appette..’s

Motion for Summary Judgment was. granted by the Dis-

trict Judge on authority of the decision. in Payson vy.

Franke, Court of Appeals No. 15554; decided August 4,

1960. - : A

The case of Payson y. Franke, supra, involved an of.

ficer faund unsatisfactory by the same selection board

in the same report despite the faet. that he did not have

any unsatisfactory fitness reports. The contentions ad-

vanced in the Payson case were substantially the same

as advanced. in thé instant ease. This Court held in the’

Payson that it could not review the sufficiency of evidence °

in @ service record to Support the board’s finding, and

sustained the Government’s interpretation of the: statutes

under which appellant's service is to be computed.

oo

Counsel for Appellant agrees that the above holding

in the Payson case appears to govern the instant cast.

It is the decision itself "which is considered erroneous

and, in opinion of counse', warrants reversal.

It is thus’ appeilant’s Position that ‘there must be a2

rational basis in the evidence for the conclusion of. the

29

, Selection board, and if such conclusion is not supported

by evidence, the District Court could and should have set

it aside together with orders based thereon’ as arbitrary.

And it is appellant’s further position -that his “years: of

service” should be considered the same as the Years of

service of one John Joseph Cassidy, Jr. who was origi-

_ nally appointed to the rank of Ensign in the Regular

* Navy on June 2, 1938, and he therefore was not “an -—

officer with less than 20 years of service” within the

meaning of 10 U.S.C, 6384(a) upon disposition of the

Selection Board's action.

While in no way considered controlling upon the legal

‘Aspects of this case, counsel invites to the Court’s atten.

tion that he is authorized to seek review of the Payson

case by the Supreme .Court, and if this Court adheres to

its holding in «the Payson with respect to the instant

case, it is contemplated that this case will besjojned with

Payson in such application to -the Supreme Court.

Wherefore, it is respectfully submitted that, in view of

the above and for reasons submitted in detail in the ap.

pellant -Payson’s briefs in. Payson, this Court should not

follow, but should reverse the precedent of Payson in

this case, and accordingly the appeal should ‘neither be

summarily affirmed nor dismissed,

=

Respectfully submittéd, .

/s/ Pengese Lucas Albright ;

‘ ’ PENkoseE Ltcas ALBRIGHT

Counsel for Appellant

708 Perpetual Building

Washington 4, D. ©

Mason, Mason & ALBRIGHT

Of Counsel

30°

CERTIFICATE’ or SERVICE

I hereby certify that a copy of the foregoing Opposi-

tion has been personally served on Carl W. ‘Belcher,

Esquire, Attorney for Appellee, at the U.S. Court House,

Constitution Avenue and John Marshall Place, Wash.

ington, D.C., this 12th day of October, 1960.

‘/8/ Penrose Lucas Albright :

Penrose Lucas ALBRIGHT

Counsel for Appellant

.

ae

Copies to: Attorney General '

Secretary of the Navyl J

~

uu

UNITED STATES COURT OF APPEALS FOR TIE °

DISTRICT OF COLUMBIA CIRCUIT

No. 16,021

James B. Robinsoy, aprpeLLant

: 3

P ce v.

Wituiam B. Franke, Secretary of the Navy,

APPELLEE.

REPLY T9) “OPPOSITION TO APPELLEE'S MOTION |

TO DISMISS OR AFFIRM

‘Appellant concedes (Opposition, p. 2) that his Navy

service record is in degal effect in the same posture as. °

the Navy service rend of Payson, the appellant in

Payson v. Franke, appeat-No. 15,554, decided August 4.

1960. In both service records there are no adverse con-

clusions stated in the various fitness reports in the service

31

records. However, in both service records. there are

certain fitness reports which do. contain notations and

comments which make it Possible to reach an evaluation

of the individual in comparison with other individuals

by review of the Service records and fitness reports’ of

such other individuals. This comparison ts the legal

function. of the Navy Selection Board.

This Court held in the Payson case that the Board

hess “reports, looks to the notations and comments con-

tained in the body of. fitness reports, and reach a legal

finding from comparing such notations and comments

with similar material in the service records of other

Navy officers, Thus, appellant presents no issue which

iS not now foreclosed to him by the decision in the

Payson case. ie

Appellant ‘suggests that ne is wrongly decided,

There is no petition for rehearing pending in Payson.

That ease is final, and, therefore, the law of this juris-

diction. :

Whereforé, it. is respectfully submitted this appeal be

summarily affirmed, OB, in the alternative, dismissed,

o ‘ ' a

/8/. OLIVER Gascu

OLIVER Gasca,

‘ United States Attorney,

/s/ Cart W. BELCHER

Cart W. BELcuer, |

‘Assistant United States Attorney,

32

Certiricate or Service -

y of the foregoing Reply has

ttorney for appellant, Penrose

petual Building, Wash

this 12th day of October, 1960,

/s/ Caru/W. Betcuer

Cary W. Betcuer, .

Assistant United States Attorney,

2

APPENDIX G*

.UNITED STATES COURT OF APPEALS FOR TIE

DISTRICT OF COLUMBIA CIRCULT |

- No. 15,554

September Term, 1959

Civil 1670.58

Srepusy -H. PAYSON, APPELLANT _

. v.

Wiuiam B. F Ranke, Secretary of. the Navy,

: APPELLEE

Appeal from the United States District Court

For the District of Columbia

Before: Phillips,

for the Tenth Circuit, and Wilbur K. Miller a

Circuit Judges, : 1

Senior United States Cirenit Judge

nd Danaher,

; JUDGMENT

This cause came on to be heard on the

from the United States District

of Columbia, and was argued by

On consideration whereof, It ,is

-by this Court that the order—of

pealed from in this cause he,

record on appeal

Court for the District’

counse, .

ordered and adjudged

the Distriet Court ap-

and it is hereby, affirmed.

¥

Per Curiam.

Dated: August 4, 1960

34

, 4

APPENDIX D

Section, 8, Article I of Constitution:

Congress shall have the, Power to . provide for the

common Defense and geperal welfare of the United

States; ... To provide and maintain a Navy; To make .

Rules for the Government and Regulation’ of the land

and naval forces; ... To provide for organizing, arming,

and disciplining, the Militia, and fer governing such Part

of them as may be employed in the Service of the United

States, reserving to the States, respectively, the Appoint-

ment of the Officers, and the Authority of training the

Militia according to the discipline prescribed hy Congress;

. And to make all Laws which shall be nec essary and

proper for carrying into Execution the foregoing Pawers,

and all other Powers vested by this Constitution in “the

Government of the United States, or any Department or

Offices thereof.

The Act of April 18, 1946, 60 Stat. 92:

... ({]n order to remove any apprehension on the part

of Naval Reserve officers regarding their opportunitiys

for advancement in event of their transfer to the Regular

Navy, it is hereby declared to be the policy of the Con-

gress that in all matters relating to commissioned officers

in the Regular Navy there shall be no discrimination

whatsoever against officers because of the source from

which they entered the Regular Navy, and that no pret:

erences shall be given officers by reason of the fact that

they entered Regular Navy from any particular source.

Officer Perso». Act of 1947, 61 Stat. 816:

Sec, 202(a) As used in this title, the word “officers” shall

be held to mean commissioned officers holding, permanent

appointments as such on the active list in the Staff Corps

of the Regular Navy. »

a

(d)(1)

For the’ purposes of this‘title in -respect to eligibility

for contihuation on the active list and in respect to sep-

aration from the active list, the total commissioned service

of an officer originally appointed in the grade or rank

of lieutenant (junior grade) or ensign in the ‘Regular

Navy, who has served continuously on.the active ‘list shall

be computed from June 30 of the fiseal year in which he

accepted such appointment, except for officers appointed

pursuant to the Act of April 18, 1946 (Publie Law 347,

Seventy-ninth Congress). Each other: officer shall be

deemed to have for these purposes as anuch total com-

missioned service ’as any officer described above in this

subsection who shall not have lost numbers or precedence

and who is, or shall have been, junior to such other offi er

in his corps for the purpose of eligibility for promotion

or selection for promotion since the date of the latter's

first appointment to permanent conimissioned rank in thy

. Regular Navy above the grade-of commissioned warrant

- Offeer, following which he shall have served continuously

on the eative list of the Regular Navy.

10 U.S. Code 6384(a):

Facli: selection board convened’ under chapter 543. of

this title to recommend officers for promotion shall report,

from among those officers eligible for. consideration, the

name of each officer with less than 20 years of service

whose record, in the opinion of the board, indicates his

unsatisfactory performance of duty in his present grade,

and, in the opinion of the board, indicates that he Would

not satisfactorily perform the duties of a higher .grade.

10 U.S. Code 6388:

(a)»For the purpose of the preceding sections of this

chapter, the total commissioned service of each officer

originally appointed. in the grade of lieutenant (junior

yrade) or ensign in any staff corps of the Navy, who has

.

‘

a

36

since that appointment served continuously on the active

- list of the Navy, is computed from June 30 of the fisea!

year in which he accepted that appointment. However,

this subsection does not apply te officers appointed under

the Act of April 18, 1946, ch. 141 (60 Stat. 92)...

(b) Each other commissioned officer on the active list

of the Navy in any staff Corps is considered to have the

same total commissioned service for the purpose of the’

preceding sections of this chapter as the officer ‘in his.

corps -described in subsection (a) having the’ maximum

total commissioned service who—

(1) has not lost numbers or precedence; and

(2) is, or at any tinre has been, junior to the other

officer: for the purposes of eligibility for promotion,

and selection for promotion during that other officer's

_ latest period of continuous service on the active list.-

. . © °

10 U.S. Code 5862:

a) Before an officer on the. active list of the Navy or

the Marine Corps may be permanently promoted to a

higher grade, he must, except as provided in subsection

(ce), be examined by an examining board and certified,

under section 5863 of this title, to be qualified,

(b) Before an officer cn the active list of the Navy

below the grade of rear admiral or an officer on the

active list of the-Marine Cérps below the grade of major

_ general may be temporarily promoted to a higher grade

under section 5769, 5772, 5773, or 5784 of this title, he

must be examined Ky an examining | ‘board and certitied,

under section 5863 of this title, to be qualified.

_ (@) An officer who has successfully passed the mental. .

moral, and professional examination for temporary pro-

motion to a grade under subsection (b) may not again

be examined for permanent appointment in that grade.

Y |

. 37

(d) Each board for the mental. mora}, and professional

examination of officers shall be convened by the Presi-

dent or, when authorized by the Sec retary of the Navy,

by the senior officer present, or other commanding officer,

on a foreign station. A board convened by a senior officer

present, or other commanding officer, on a foreign station

may only examine officers who are under-the command

of the convening authority and who are directed. to ap

pear before the board.

(e) Each examining bonne convened under this séetion

shall be composed of commissioned officers of the naval

service. At least three members must act in’ each’ case.

No member may act in the case of any officer Senior to

hi . ’

10 U.S. Code 5863; ;

(a) Except as provided i in subsection (b), an examining -

hoard convened under section 5862 of: this titlt may take

. testumony and may examine al] matter in the records of

the’executive part of the Department of the Navy relating

to the case of any officer: that. it is considering. The

president of a board shall administer the oath to all wit- |

nesses who testify in person before the board. A record

shall be made of the examination and statement of the

officer and of the testimony of the witnesses.

(b) The report of an examining board convened under

section .5862 of ‘this title, recommending an officer for pro-,

motion, is conclusive, after its approval, as ‘to any fact

concerning that officer that was considered and decided

upon by the examining hoard. Such a fact may not again

he considered by a later examining board unless it is a

continuing one and shows the unfitness 6f the ‘officer to

perform his duties at sea. If a board fails to comply With

this subsection, the President may-direct a reexaniination

of the case of the officer concerned.

.,

38

(c) An officer is. entitled to be present and submit a

statement under oath when an examining board convened

under section 5862 of this title is considering his case.

Before the board may find an officer not qualified, it-

must conduct a public examination of the records of the

executive part of the Department of the Navy concerning

the officer and, unless he fails to appear after due notice,

of the officer himself.

(d) An examining board shall report the recommenda-

tion of-an officer for promotion in the following terms:

WD TN GU TUE peri ee has

the mental, moral, and professional qualifications to per-

furm efficiently all the duties, both at sea and on shore, °

of the grade to. which he is to be promoted, and recom- .

mend him for promotion,”

(e) The record and certification of a bourd in each case,

with any record of the executive part of the Department

of the Navy considered by the board to be necessary in

the determination of that case, shall be submitted to the

President for approval or disapproval: of the finding.

U. S. Navy Regulations, 1948, Article 1701(8) provides:

(a) Adverse matter shall not be placed in an’ officer's

record without his knowledge. It shall be first referred

to the officer reported upon for such official statement as -

he may choose to make in reply. If the officer reported

upon desires to make no statement, he shall so state

officially in writing. "

(b) When a report of fitness containing adverse matter,

or any correspondence relating thereto, is sent to an of-

ficer, it shall be sent direct, addressed in his name. The

officer concerned shall report any communication so re.

ceived, together with his statement in reply to the Chief

of Naval Personnel (Commandant of the Marine Corps)

via, the officer by whom the original report was completed

and via the officer oy officers through whom such report

was forwarded.