Goewey v. United States

• Decision Date: 12 December 1979
• Docket Number: No. 456-73.,456-73.
• Citation: 612 F.2d 539
• Parties: Donald C. GOEWEY v. The UNITED STATES.
• Court: U.S. Claims Court

612 F.2d 539

Donald C. GOEWEY v. The UNITED STATES.

No. 456-73.

United States Court of Claims.

December 12, 1979.

COPYRIGHT MATERIAL OMITTED

Herbert P. Suskind, Washington, D. C., attorney of record, for plaintiff.

Jean Schepers, Washington, D. C., with whom was Acting Asst. Atty. Gen., Alice Daniel, Washington, D. C., for defendant.

Before FRIEDMAN, Chief Judge, and KUNZIG and BENNETT, Judges.

OPINION

PER CURIAM:

This case comes before the court on plaintiff's exceptions to the recommended decision of Trial Judge Bernhardt filed on December 14, 1978. That decision was rendered pursuant to the court's order of March 14, 1975, which remanded the case to the Trial Division to determine whether plaintiff was under a legal disability, within the meaning of 28 U.S.C. § 2501, from July 16, 1965 until December 3, 1970, so that the claim in this suit, filed on December 3, 1973, is not barred by the statute of limitations. The trial judge held that the plaintiff was not under a legal disability during that period. Upon consideration of the briefs and after oral argument, the court agrees with the trial judge's conclusion, and adopts his recommended opinion and findings as the basis for its decision.¹

We give somewhat greater weight than the trial judge apparently did to one fact. Finding 29, to which the plaintiff did not except (although he excepted to other findings), states that on May 28, 1969, the plaintiff filed an application with the Air Force Board for the Correction of Military Records to change his records to show that in 1951 he was retired for disability rather than having been honorably discharged. If plaintiff was competent to file that application, it is difficult to comprehend why at that time he was not also competent to have filed suit in this court.

At oral argument plaintiff's counsel stated that the cause of action did not arise until 1971, when the Correction Board denied plaintiff some of the relief he sought, so that his action filed in 1973 was timely. He further stated that if the court upheld the trial judge's determination that plaintiff was not under a legal disability between July 16, 1965 and December 3, 1970, then he would contend that under the foregoing theory this suit is timely. This contention rests upon a misapprehension of our order of March 14, 1975, remanding the case to the Trial Division to determine the disability issue. Implicit in the remand was the determination that unless the plaintiff was under a legal disability between 1965 and 1970, the statute of limitations bars his action. Since we now hold against the plaintiff on the disability issue, his suit is time-barred. Accordingly, the petition is dismissed with prejudice.

In our order of March 14, 1975, 206 Ct.Cl. 874 we held in abeyance plaintiff's motion to transfer to the district court his claim relating to his national service life insurance policy "pending the outcome of the proceedings on his alleged legal disability." The national service life insurance claim is governed by 38 U.S.C. § 784 (1976). Subsection (b) imposes a statute of limitations of 6 years upon such a claim and, in the case of a person under a legal disability, extends the limitations period for 3 years following removal of the disability. For the reasons stated in our discussion of plaintiff's competency, his national service life insurance claim necessarily fails. Although this court has no jurisdiction to hear the national service life insurance claim, it must consider the interests of justice in granting a transfer to the district court. 28 U.S.C. § 1506 (1976). Transfer of a claim that is barred by the statute of limitations would not serve those interests. Accordingly, plaintiff's motion to transfer the national service life insurance claim is denied.

OPINION OF TRIAL JUDGE

BERNHARDT, Trial Judge:

The sole issue remanded to the trial judge by the court's order of March 14, 1975, is whether plaintiff was under a legal disability within the meaning of the third paragraph of 28 U.S.C. § 2501 from July 16, 1965 (the date of his release from St. Elizabeths Hospital) to December 3, 1970 (3 years prior to the filing of his petition). It is concluded that he was not under a legal disability during the period named for the stated purpose.

The factual background of plaintiff's long history of mental disability and criminal record of false pretenses by passing bad checks going back to his military service during 1942-51 is presented in the cross-motions for summary judgment which were dismissed by the Appellate Division. That factual background, which necessarily influences plaintiff's mental condition during his 5 post-St. Elizabeths years, will not be repeated here; familiarity with it will be supposed.

Upon his release from St. Elizabeths by District Court order of July 16, 1965, plaintiff's condition on discharge was recorded as "Recovered" and he was diagnosed as "Competent." He had been a patient there since December 3, 1959. Dr. Owens, then Clinical Director of the hospital, felt plaintiff was free of mental illness and capable of managing the ordinary affairs of life. Since then plaintiff has remained under continual psychiatric care until the trial here in May 1977.

While in St. Elizabeths plaintiff had been given occasional conditional releases to work for Hinkel and Company, a rug cleaning concern in Washington, D. C., and upon his final release in 1965 he resumed employment there.

In the summer of 1966 plaintiff was referred to the law firm of Seltzer and Suskind in Washington, D. C., in connection with a criminal charge of false pretenses for writing bad checks. In the ensuing 5 years Suskind represented plaintiff in an estimated 20 to 30 different matters. He soon learned of plaintiff's history of mental and criminal problems and of his military record. Plaintiff used Suskind's office constantly as a base of operations for telephone calls, conducting correspondence, and consulting with Suskind on his legal problems. Plaintiff, a person of superior intellect, prepared much of the voluminous paperwork generated by his various legal problems, including his monthly probation reports. He demonstrated no mental or intellectual inability to understand the nature of his legal problems and was an active participant in their handling.

Plaintiff's close association with Suskind was interrupted briefly from May 1968 to March 1969 when he became married and moved to North Carolina, but he remained in frequent communication with his attorney. In May 1968 he received some $17,000 from Veterans Administration (hereafter VA) and Social Security which, with his wife's help, was quickly dissipated along with his other income. His wife emptied his bank account after he had drawn a check in payment of a car he had purchased for her daughter, and notified plaintiff's parole officer of the violation.

Because of this parole violation charge plaintiff was returned to Washington by a U.S. Marshal in March 1969 for a hearing before Judge Bryant, who appointed Suskind as plaintiff's guardian and placed him in charge of plaintiff's funds. Plaintiff was prohibited from having a bank account or credit cards.

Upon returning to Washington plaintiff resumed his constant attendance at Suskind's office, using it as a command post for his ongoing legal activities. Through Suskind the plaintiff was appointed by a bank to collect rents in a building. In doing so plaintiff, like a modern Robin Hood, used rents collected from some tenants to pay the rents of other delinquent tenants to prevent their eviction. Plaintiff was prosecuted by the bank for embezzlement and placed on 3 years probation.

Plaintiff had a long history of mental disability. In connection with an application for VA disability benefits plaintiff was given a neuropsychiatric examination in August 1966, and was found to be competent but diagnosed as chronic obsessive compulsive reaction. Another such VA examination was given in December 1967, and no evidence was found of thought disorder or psychosis. Plaintiff was at that time found alert and competent for VA purposes, and the prognosis was fair for his symptomatic improvement, if given adequate and prolonged psychiatric treatment. Until 1967 plaintiff was under the psychiatric care of Dr. Yochelson at the National Institute of Mental Health. At times in 1967 he was seen by Dr. Riesenman at St. Elizabeths. Plaintiff underwent psychotherapy by Dr. Berman from July 1969 to 1973. Dr. Berman diagnosed plaintiff as having an obsessive compulsive personality, with periods of psychosis from 1969 to 1973. Plaintiff was self-destructive and actively suicidal, and was too ill to undergo analytic treatments when first seen in 1969, and at the time of trial here in 1977. Dr. Berman found that plaintiff had a cyclothymatic personality (i. e., excessive mood swings) and believed that he had had periods of psychosis from 1965 to 1969. He did not think that plaintiff was capable of handling his own affairs from 1965 to 1969.

In May 1969 plaintiff applied to the Air Force Board for Correction of Military Records to change his discharge record to show that he was retired on May 5, 1951, due to a service incurred/aggravated disability. Plaintiff appeared at a hearing at which he was represented by Suskind. On June 17, 1971, the Correction Board recommended that the Air Force record of plaintiff's honorable discharge be corrected to show that on May 5, 1951, he was unfit to perform the duties of his office due to a service aggravated condition of obsessive compulsive reaction rated at 10 percent disability with entitlement to severance pay. It was about that time that it first occurred to Suskind that plaintiff had a possible cause of action in the Court of Claims.

After discharging Dr. Berman in 1973 plaintiff engaged Dr. Hamman, who diagnosed plaintiff as obsessive compulsive neurosis, with marked depression. Dr. Hamman saw plaintiff 3 times weekly...