Cunningham v. United States

• Decision Date: 26 January 1977
• Docket Number: No. 433—60.,433—60.
• Citation: 549 F.2d 753
• Parties: Katherine CUNNINGHAM v. The UNITED STATES.
• Court: U.S. Claims Court

549 F.2d 753

Katherine CUNNINGHAM v. The UNITED STATES.

No. 433—60.

United States Court of Claims.

January 26, 1977.

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Katherine Cunningham, pro se.

R.W. Koskinen, Washington, D.C., with whom was Asst. Atty. Gen., Rex E. Lee, Washington, D.C., for defendant.

Before SKELTON, KUNZIG and BENNETT, Judges.

OPINION

PER CURIAM.

In Cunningham v. United States, 423 F.2d 1379, 191 Ct.Cl. 471 (1970), this court en banc held that the plaintiff in this case had been illegally separated from her civilian position with the Air Force on June 12, 1959. The court ruled that she was entitled to back pay from the date of the wrongful severance to date of judgment, less applicable offsets. This ruling, of course, as in all such cases, implicitly mandated that she prove in a subsequent proceeding under Rule 131(c) that she was ready, willing, and able to perform the duties of her Air Force post at all times during the pay recovery period.¹ The proceeding to determine the amount of recovery was conducted in 1974. Plaintiff met her burden of proof and Trial Judge C. Murray Bernhardt determined the amount of back pay to which plaintiff was entitled from 1959 to July 25, 1970, in his opinion and findings filed February 10, 1976. The amount of recovery, less offsets, from July 25, 1970, to today's judgment was reserved for further proceedings under Rule 131(c). This case is now before the court on the exceptions and briefs of the parties to the trial judge's 1976 opinion. Upon consideration thereof, having heard oral argument, the court agrees with the trial judge's opinion and findings and adopts the same, with minor modifications, as the basis for its judgment in this case.² It is necessary, however, for the court to address one issue not raised before the trial judge.

On May 20, 1976, plaintiff moved for permission to make a "third amendment" to her original petition filed November 10, 1960. The amendment prayed, inter alia, for the reinstatement of plaintiff to her former Air Force position or to one of similar status.³ The motion in support of the amendment recited that the amendment would alter the prayer for relief "in order that it may encompass issues developed and supported by evidence adduced by reason of the trial held under Rule 131(c)." In other words, the amendment was said to be one to conform the pleadings to the evidence. Rule 39(b) authorizes such an amendment "when issues not raised by the pleadings are tried by express or implied consent of the parties." Upon this representation, the court allowed the motion on June 4, 1976. Defendant did not oppose, in fact did not even respond to, plaintiff's motion to amend.

Although plaintiff's motion appeared on its face to fall under Rule 39(b), in truth the prayer for reinstatement as shown in the amendment itself did not relate to any matter developed at trial. The new prayer was, instead, a request for additional relief, first set forth some 4 years after this court was granted reinstatement authority, see Pub.L. 92-415, now codified as 28 U.S.C. § 1491 (Supp. V, 1975), and some 16 years after plaintiff began her proceeding in this court on November 10, 1960. As an amendment sought totally apart from developments in the proof, plaintiff's May 20 motion falls not under Rule 39(b), as her statement of reasons for the motion suggested, but under Rule 39(a). The amendment itself cites both Rule 39(a) and 39(b). The standards of neither rule, however, permit the motion to succeed. The June 4, 1976, allowance, issued on erroneous representations, must be treated as void and improvidently issued.

Rule 39(a) provides that, after the initial pleading period, "a party may amend his pleading (1) by leave of court (which shall be freely given when justice so requires), or (2) by written consent of the adverse party." Defendant has not consented in writing to plaintiff's amendment. The first standard therefore governs, requiring leave of court to amend the pleadings. The court's permission is to be given freely, according to the rule, but with the qualification that it is to be given freely "when justice so requires." The viability of plaintiffs May 20 motion rests squarely on whether justice requires that she be allowed to amend her pleadings in 1976 to add a prayer for reinstatement. Such a determination is left to the court's discretion. It is obvious to us that considerations of fairness and substantial justice to both parties not only do not require that permission to amend be given, but to the contrary counsel against allowance of the motion. Plaintiff has waited 16 years from the filing of her original petition in this court to ask for the remedy of reinstatement. She could have sought mandatory or declaratory relief in this vein from the United States District Court for the District of Columbia as early as mid-1959, Levine v. Farley, 70 App.D.C. 381, 107 F.2d 186 (1939), and from federal district courts sited elsewhere following enactment of 28 U.S.C. § 1361 (1970) in 1962. See Chaudoin v. Atkinson, 494 F.2d 1323 (3d Cir. 1974). She could have requested reinstatement from this court beginning in late 1972, after the enactment of Pub.L. 92-415 on August 29, 1972. Plaintiff never sought to invoke the district court's aid, however, and delayed submitting her prayer to this court until 4 months after the filing of the trial judge's opinion in February of 1976. Interestingly, plaintiff's motion to amend arose only after the trial judge observed in his opinion, printed infra, that "there is no express prayer for reinstatement."

At oral argument, plaintiff was questioned by the court regarding this delay. She responded that she did not know that a request for reinstatement should have been made prior to the time that she convinced the court — presumably meaning the trial judge — that she was entitled to full back pay to the present date. Ignorance of rights and procedural rules may sometimes be forgiven a pro se claimant, as plaintiff now is, but other facts reveal her explanation of delay to be merely a lame excuse. Although plaintiff is presently conducting her case alone, she has had the assistance of four legal counsel at various times during the odyssey of her case. Since filing her petition she has worked as a legal secretary for four large law firms and is not unacquainted with law and lawyers and how to get legal advice. The trial judge describes plaintiff as "exceptionally intelligent." Further, when the court first received authority from Congress to order reinstatement, the clerk of the court sent written notice of this development to all claimants with cases then pending in the court, including of course the present plaintiff. The notice sent forth, styled "General Order No. 3 of 1972," 200 Ct.Cl. xxvii, dated December 12, 1972, recited that "any party may request that the court issue * * * an order directing restoration to office or position * * *," that "in any case pending on the date of this order in which such relief * * * is sought, the nature of the order desired shall be specified in such pleading as may be allowed in accordance with the provisions of Rule 39," and that "any request for such relief * * * shall be made at the earliest practicable opportunity." Plaintiff was thus on written notice that she could and should promptly amend her pleadings under Rule 39 to ask for reinstatement. Plaintiff's delay of 3½ years after notice, in seeking reinstatement from this court, and her much greater delay in seeking help from the district court remain unexplained and unexcused. Her May 20 motion smacks of afterthought, and justice does not require that it be allowed. Plaintiff has had quite long enough to formulate in her own mind the relief that she wants from this court. Her amendment praying for reinstatement is tardy beyond belief, and cannot now be permitted.

Since we have decided to read the pleadings absent the amendment requesting reinstatement, and since no findings were requested or made about it or proof adduced thereon which might justify amending the petition to conform to the evidence, nor does justice require it, no relief will be forthcoming beyond the payment of sums that have been or will be found properly owing in proceedings under Rule 131(c) to date of this judgment.

OPINION OF THE TRIAL JUDGE

BERNHARDT, Trial Judge:

In April 1970 it was determined that plaintiff was entitled to judgment of back pay for procedurally improper separation in 1959 from her civilian position in the Air Force. 423 F.2d 1379, 191 Ct.Cl. 471 (1970). The amount of recovery was remanded to the trial division for ascertainment. The Comptroller General has computed, without dispute, the amount of back pay due plaintiff to July 25, 1970, and the deductions therefrom for lump sum terminal leave payment, contributions to the Civil Service Retirement Fund, and premiums for Federal Government Life Insurance. Disputed issues remaining include principally the following: (1) whether plaintiff has been ready, willing and able to work since 1959; (2) whether her failure to seek or obtain employment from 1967 to date so as to mitigate damages was justified; (3) whether the 100-percent disability compensation she has received from the Veterans Administration (hereafter VA) from 1959 to date should be credited against her recovery. In addition, plaintiff wants the court to repudiate and declare invalid various diagnoses of mental illness by the Army in 1945 and by the VA from 1954 to 1970, upon which later her 100-percent disability compensation rating is predicated.

So that these issues might be considered in their proper context, highlights of the record are summarized, starting with plaintiff's service in the Army where for present purposes her official medical history in the Government originated:

1944-45: Served as private in Women's Army Corps from August 7, 1944 to April 30, 1945. Hospitalized at three...