United States v. King

PETITIONER:United States
RESPONDENT:King
LOCATION:Circuit Court of Mobile County

DOCKET NO.: 672
DECIDED BY: Warren Court (1969)
LOWER COURT:

CITATION: 395 US 1 (1969)
ARGUED: Apr 02, 1969
DECIDED: May 19, 1969

Facts of the case

Question

Audio Transcription for Oral Argument – April 02, 1969 in United States v. King

Earl Warren:

Number 672, United States versus John P. King.

Mr. Ruckelshaus.

William D. Ruckelshaus:

Mr. Chief Justice and may it please the Court.

This case involves the applicability of the declaratory judgment statute to the Court of Claims.

The decision of the Court of Claims was that the declaratory judgment statute, the federal declaratory judgment statute was applicable in this case.

Statement of the facts of this case I think would be in order in order to set the state for this decision.

Colonel King who was the respondent in this case on May 14, 1959 was found physically unfit for active duty by the Army Physical Evaluation Board.

On June 18, 1959, this decision was reviewed by the Army Physical Review counsel and that body found King fit for duty.

The latter decision was upheld by the Army Physical Disability Appeal Board on July 21, 1959 and King was retired for longevity on July 31, 1959.

In August of 1959, King filed an application for correction of military records with the Army Board for the correction of military records.

A hearing was held in January of 1961 and the application was formally denied by the Under Secretary of Army on May 19, 1961 that ended King’s procedure in the Army Appeal Boards.

On July 26, 1965, respondent King filed a petition in the Court of Claims alleging that the action of the Under Secretary of Army was arbitrary and capricious in contrary to law and demanded judgment in an amount equal to the taxes paid on his retirement since 1959.

Now, the difference between the retiring for longevity and for disability now was that he would’ve been paid 75% of his full pay as a Colonel in both instances except that if he had been retired for disability he would not have to pay any taxes on that retirement pay.

Potter Stewart:

It’s wholly exempt from tax, is it?

William D. Ruckelshaus:

Yes, that’s right Mr. Justice.

Potter Stewart:

If it’s disability retirement.

William D. Ruckelshaus:

Pursuant to the Government’s motion to dismiss and it asserted affirmative defense, the Court of Claims dismissed respondent King’s petition on the grounds that petition was basically a claim for a tax refund.

And since King had failed to file a refund with the Internal Revenue Service he was barred from asserting it in this suit pursuant to Section 26 U.S.C. 7422 (a).

The Court further stated on its own motion that the only basis for maintaining this action was under the Declaratory Judgment Act and gave plaintiff King — respondent King in this case 30 days to file a brief on the applicability of the Declaratory Judgment Act to the Court of Claims.

After briefs were filed, the Court ruled on February 16, 1968 that the Declaratory Judgment Act did apply to the Court of Claims and further the Court gave King 30 days to amend his petition and seek a declaration, “a declaration of his right to be retired for disability and to have his military records change.”

It was from this order of the Court of Claims that the Government has sought in this Court granted certiorari to the court below.

Now, this case in its broader sense I think involves the question of whether the power and authority of the Court of Claims should be appreciably increased with reference to suits against the United States without any additional grant of power or authority from Congress.

I think specifically the question before the Court is whether the Court of Claims in this case or indeed in the broader sense in any case as the jurisdiction or power to enter declaratory judgment and I might say that the Court of Claims for the first time is saying that cases which have a money cast or which are money-related or which are money-oriented confers jurisdiction upon that Court to grant declaratory judgment.

I think that at the outset it can be stated that it is agreed on the part of the Government and on the part of respondent an amicus that the declaratory judgment statute itself confers no jurisdiction on the Court of Claims or indeed on any court by its own terms.

I think the statute speaks of the power of a United States Court to declare the rights within its jurisdiction.

So the jurisdiction for this Court of Claims to enter this declaratory judgment had to be found somewhere else.

Earl Warren:

We’ll recess on Mr. Ruckelshaus.

Mr. Ruckelshaus, you may continue with your argument.

William D. Ruckelshaus:

Mr. Chief Justice and may it please the Court.

When the Court adjourned, the argument had just been put forward that there was no dispute between the petitioner and the respondent in the amicus or the court below for that matter as to whether the declaratory judgment statute itself conferred any jurisdiction on the Court of Claims to hear or to have the application of declaratory judgment statute applied to that Court because the statute itself says that they only have the power or right to declare rights within its jurisdiction so that that phrase within its jurisdiction means they must find this jurisdictional grant somewhere other than in the Court of — the declaratory judgment statute itself.

William D. Ruckelshaus:

And where the respondent and the court below looked to find that jurisdiction is in the Tucker Act and the Tucker Act by its terms according to the court below on the opinion at page — appendix on page 32.

Now, the Court said that Mr. King could seek declaratory relief even though he was “unable to obtain or request a money judgment.”

And the Court then went on to say that the declaratory — the Tucker Act granted judgment in a case of this nature because of the money cast or money orientation or a money relatedness of the claim.

Now, that is the contention of the Government that this flies in the face of the traditional grant of jurisdiction to the Court of Claims.

It flies in the face of the years of statutes and years of decisions that have been handed down restricting that jurisdiction to claims and which a money judgment could be awarded.

Now, this Court itself in Glidden versus Zdanok said that from the beginning “from the beginning” that meaning the Court of Claims has been given jurisdiction only to award damages not specific relief.

I think that the argument of the Court of Claims below seeking to restrict this jurisdictional grant or broaden this jurisdictional grant into areas where there was a money cast or money orientation or money relatedness again flies in the face of this statement from Glidden versus Zdanok.

Now, the court below originally dismissed this action on the grounds that it was a claim for a tax refund and said that since the plaintiff of the respondent herein had not filed a tax refund claim pursuant to 26 U.S.C. 7422 (a) that the Court had no jurisdiction.

Now, then, the Court invited the plaintiff to file a declaratory judgment and the plaintiff filed a declaratory judgment alleging essentially the same things and in his filed the brief favor of filing a declaratory judgment and when eventually it filed — amended the petition.

Now, the plaintiff asked for essentially the same thing that he had asked for in his original petition.

Now, the only difference being that it was phrased in terms of a declaration of his rights.

Now, I don’t see how the Court of Claims can be said to have expanded its jurisdiction under Declaratory Judgment Act simply because the claim itself as filed or the petition as filed was stated in a different way.

They really they released that the petitioner was seeking, the plaintiff was seeking herein was pretty much the same thing that he was seeking under his original claim.

I think the question of whether it’s a tax question or not, the original petition as filed really does not concern this Court because if the claim as originally filed or was a tax question if it was a petition to recover tax money then clearly the Court is without jurisdiction to entertain this under Declaratory Judgment Act because the Declaratory Judgment Act specifically precludes suits with respect to tax.

Thurgood Marshall:

Didn’t Judge Davis said, the real question was the army regulations and not revenue code?

William D. Ruckelshaus:

Yes Mr. Justice Marshall, he did say that the real question was the army regulation but I think he was forced to make that statement because he had already ruled prior to that time that this was essentially a tax refund claim.

And so if he said that it was a — it had to do with the eventual tax refund then he would be faced with the same section of 28 U.S.C. 7422 that he had dismissed it on previously.

Now, if he then turns around and says as he did on the last page of his opinion that the only question before the court below is the question of whether this man was properly retired, then I think he loses the money cast or money orientation or money relatedness of this claim which he says it’s necessary in order to confer jurisdiction on that Court.

Thurgood Marshall:

And it’s your position therefore loss of jurisdiction?

William D. Ruckelshaus:

No, the minute he said that the sole question before the Court had to do with whether the man was properly retired.

Thurgood Marshall:

He didn’t say sole, he said the controlling as I’ve got (Inaudible)?

William D. Ruckelshaus:

I think he — that’s the last part of his opinion.

He said the question before the Court in the declaratory judgment action that was filed and he said on page 40 of the appendix the only question he presents or need present relate to his retirement from the army.

Thurgood Marshall:

Yes.

William D. Ruckelshaus:

And those are the only issues with which this Court will treat in its further proceeding in this case.

I think that’s once he has said that, he has lost his argument that confer to jurisdiction in the first place that this case had a money cast to it or money orientation.

I don’t think it’s enough that you can say somewhere in the future way down the line.

The petitioner herein may be entitled to some money.

Now, this I believe what include virtually every case that was filed in any court.

Byron R. White:

Now, why is it that he couldn’t have said in the Court of Claims that United States made a mistake in retiring me and put me in the wrong category and by reason of that mistake I am out some money and that the United States told me that money for having cause me to pay it out when I shouldn’t have.

Byron R. White:

Now, what’s wrong with that claim?

William D. Ruckelshaus:

Mr. Justice White, I think that the original —

Byron R. White:

Do you think that’s just a tax refund claim?

William D. Ruckelshaus:

That’s what the court below held in its original order to dismiss the —

Byron R. White:

Well, I know but he says if I were in the right category why if I were retired in the right category, well of course I owe those taxes and as long that classification stands then why I did all the taxes but I want to get rid of the classification.

I certainly can’t do it in the tax refund suit.

Now, but he’d listen to me in the tax refund suit to review this classification question, this is the only place I can go to have this classification reviewed and this is what’s cause me the money.

Why do you suppose that — why would that be thrown out of the tax refund claim or as beyond the jurisdiction of the Court of Claims?

William D. Ruckelshaus:

I think on basis of Prince against United States, Mr. Justice White, the Court therein entertained a very similar fact situation herein in which Prince had filed a petition for tax refund with the Internal Revenue Service before bringing his suit to determine whether he was properly retired.

And on the basis of that case which the Government does not completely accept by the way, the Court of Claims then when they had to decided Prince’s case but in this instance why King did not file a petition for tax refund —

Byron R. White:

Do you think in a tax refund suit that in an ordinary tax refund suit that this officer could’ve had had litigated the correctness of his retirement?

William D. Ruckelshaus:

I don’t believe that he could’ve had litigated or he could’ve had the determination made by the Internal Revenue Service as to whether (Voice Overlap).

Byron R. White:

Or in that kind of a suit?

William D. Ruckelshaus:

Well, in Prince against United States, Mr. Prince did just that Mr. Justice White.

He had his determination as to whether he’s properly retired.

Byron R. White:

In the tax refund suit?

William D. Ruckelshaus:

In the tax refund suit in the Court of Claims.

Byron R. White:

Well, in the Court of Claims, yes but how about the Internal Revenue Service that we won’t look at that, you just know the tax if he — could he get adjudicated in the District Court you think?

William D. Ruckelshaus:

Well, if Prince is a proper holding and as I say we have some question about that.

I don’t see any reason why he couldn’t because the district courts have concurrent jurisdiction in tax refund claims.

In addition to that I think that clearly King could’ve brought a mandamus action against the Secretary of Army under 28 U.S.C. 1361 and requested a mandate against the Secretary of Army to change his records pursuant to an arbitrary and capricious decision made by the Secretary of Army.

I think he could’ve got such a suit in a District Court or could’ve got such relief in the District Court.

He did not seek such relief in the District Court.

Clearly, he could not get that relief in the Court of Claims because our case is specifically holding tht mandamus does not lie although I think in this case what the Court of Claims is in effect doing — is doing indirectly what they can’t do directly and that is by declaring the rights of King in effect mandating the Secretary of the Army to change his records.

Certainly, if King then went into the District Court against the Secretary of Army the decision as to whether he was properly retired would’ve been collaterally — the doctrine collateral estoppel would apply to those issues in the District Court.

So I think King had some additional remedies here to the one that he tried but that he chose this method in the Court of Claims at the invitation of the Court of Claims.

Hugo L. Black:

I don’t see your Prince case cited in your brief, is it?

William D. Ruckelshaus:

I believe it is, Justice Black.

Hugo L. Black:

I didn’t see in the index.

William D. Ruckelshaus:

It’s cited on page 2 of Justice Davis’ opinion Mr. Justice Black, its 127 Court of Claims 612.

William D. Ruckelshaus:

I think that the argument that is advance by the respondent having to do with legislative history of Declaratory Judgment Act and of the 1948 recodification of that Act has a very little to do with the determination of whether the Court of Claims has jurisdiction over this case in the first instance.

And I think the most that can be said for their legislative history argument is that you can show from this history that Congress did not even consider the Court of Claims in enacting the declaratory judgment statute.

And that I would emphasize to the Court that we are not saying that the declaratory judgment statute specifically excluded the Court of Claims from its operation.

I think this is the thrust of the argument of the respondent here that the Government insists that the Declaratory Judgment Act statute specifically excluded the Court of Claims.

We do not insist that I think that what we do say is that before the United States Government consist to be sued or before sovereign immunity is waived there must be a clear and expressed statement of that waiver on the part of Congress and that there is no such clear and expressed statement either in the declaratory judgment statute or in the Tucker Act.

And that without such a clear expresses statement the argument sovereign immunity has been waived in this case simply cannot stand up.

Byron R. White:

What made you to the Tucker Act after the waiver as the immunity by the United States to the extent you concede United States waiver?

William D. Ruckelshaus:

The Tucker Act states its jurisdictional statement.

The Court of Claim shall have jurisdiction to render judgment upon any claim against the United States found that either upon the Constitution or any Act of Congress or any regulation of an Executive Department or upon any expressed or implied contract with United States or for liquidated or unliquidated damages in cases not sounding in tort.

I think the language that expressly waives it is where the Tucker Act says to render judgment upon any claim.

And when the Tucker Act was passed, the reason for the Tucker Act itself was the fact that Congress had been inundated with private bills that took up a good percentage of their time and they wanted this decision to be made by another court and so traditionally the jurisdiction of that court has been limited to hearing claims for money damages.

Byron R. White:

Do you think that is harmless just amended the statute, the Tucker Act has said the Court of Claims now also have jurisdiction to adjudicate Declaratory Judgment Act, he made it to money claim and that would be (Inaudible)?

William D. Ruckelshaus:

I think that would be clear enough Mr. Justice White that —

Byron R. White:

But what will Declaratory Judgment Act (Inaudible)?

William D. Ruckelshaus:

The Declaratory Judgment Act simply said that any court of United States may — has the right to adjudicate —

Byron R. White:

Has jurisdiction?

William D. Ruckelshaus:

— within its jurisdiction, he didn’t say it didn’t speak in jurisdictional terms.

It was the creation of additional remedy.

Byron R. White:

Well, it did speak about cases otherwise within its jurisdiction.

William D. Ruckelshaus:

Within its jurisdiction what it said that the court could issue a declaratory judgment in a case or controversy within its jurisdiction.

And in this, I think that means you must find the jurisdictional grant in some statute other than the declaratory judgment statute and that’s why the Court of Claims in the respondent herein is seeking to find that jurisdictional grant in the Tucker Act.

Byron R. White:

Well, when Declaratory Judgment Act was passed, what was wrong with Declaratory Judgment Act?

William D. Ruckelshaus:

Well, I think the primary question was one of rightness prior to the Declaratory Judgment Act and there were many — you had to do with a rightness of a claim that some — there were many purposes that it was primarily to decide controversies between private individuals that had not reached the degree of rightness in which a suit could normally be brought.

And that someone did not need to act of their parallel or did not need to avoid act being for fear of the consequences when they could get their rights determined in advance of having the act.

I think that was the original purpose of declaratory judgment statute.

Byron R. White:

There isn’t — there wasn’t jurisdictional power regarding the (Inaudible)?

William D. Ruckelshaus:

Well, I think that there was a problems of rightness and problems of whether the controversy had ripened enough to be determinable by a court, justiciable by a court and that prior to the enactment of the declaratory judgment statute many cases were dismissed for being premature and that many activities on the part of private individuals were inhibited because they could not get their rights determined prior to the time that they acted.

Byron R. White:

Do you say that the Declaratory Judgment Act didn’t help the Court of Claims in declaratory judgment situation because the claim became once and otherwise this jurisdiction in the first place.

William D. Ruckelshaus:

I think that’s right Mr. Justice White.

Byron R. White:

Because of the lack of waiving.

William D. Ruckelshaus:

Because there has to be a waiver somewhere or consent to be sued in all that the Congress has ever consented in this area was that the United States could be sued in the Court of Claims for money damages.

Byron R. White:

For right of claims and consent of money damage suit would only mean that the claim is sufficiently right.

William D. Ruckelshaus:

Well, I think it goes further than that because if you are to say that the Court of Claims has the power to grant declaratory judgment in areas where the claim is not right, these means that under the general grant of the Tucker Act to determine controversies in regarding governmental regulation and this amounts to a considerable increase in power in the Court of Claims whether you call that additional remedy or additional jurisdiction.

Now, that was not otherwise have.

Byron R. White:

Because I understand your position you do not claim that the Declaratory Judgment Act on its face in speaking of the Courts of the United States excluded the Court of Claims?

William D. Ruckelshaus:

That’s right.

Byron R. White:

That within the word “courts” is included the Court of Claims but the Act doesn’t give the Court of Claims the privilege of doing something that wasn’t doing before because it didn’t have jurisdiction to do so —

William D. Ruckelshaus:

I think —

Byron R. White:

— to issue declaratory judgment because of lack of consent for the United States.

William D. Ruckelshaus:

I think the problem Mr. Justice White —

Byron R. White:

But where does the consent of the United States stop in the Tucker Act?

William D. Ruckelshaus:

I think it stops when somebody goes into the Court of Claims and request something in addition to a money judgment or other than a money judgment.

Byron R. White:

You mean that ask for a declaration about of money judgment but the money judgment isn’t right or not, or the money claim isn’t right or not?

William D. Ruckelshaus:

Well, if the Court, I think the problem is basically is a problem between jurisdiction and remedy and we were talking about sovereign immunity.

We can get into a semantic argument on whether the Declaratory Judgment Act simply created a new remedy and had nothing to do with jurisdiction.

When viewed in light of the Tucker Act or we can look at the whole situation of the Court of Claims saying they have the power under the Tucker Act the jurisdiction of the Tucker Act to grant declaratory judgment and see that they are exercising considerably more power than Congress ever intended for him to do and that where a court is exercising considerably more power than they did in the past under a court decision as regards United States that before they do that there has to be a clear consent on the part of United States to be sued.

And in this case there was not such a consent and there was not such a waiver of sovereign immunity.

Thurgood Marshall:

Well, I suppose you could spell out the declaratory judgment involving a matter of dollars and cents would the Court of Claims do?

William D. Ruckelshaus:

Well, I think that’s exactly what the — has been done here Mr. Justice Marshall the —

Thurgood Marshall:

Or if it involves a matter of dollars and cents, isn’t that the Tucker Act?

Didn’t it say you’re limited to dollars and cents claim?

William D. Ruckelshaus:

The — in the declaratory judgment the question of whether any further relief can be granted is a reserve in Judge Davis’ opinion and the petitioner herein asked for a money judgment in the form of a declaratory judgment petition and I don’t think that traditionally declaratory judgments have been used to grant money judgment and so if and again in this particular case if what they’re asking for is a money judgment by the Court’s own earlier decision.

It is a tax claim and as such specifically not cognizable (Voice Overlap).

Thurgood Marshall:

Haven’t you run across declaratory judgments and ordinary actions would end up in sizeable money?

William D. Ruckelshaus:

I’m sorry I didn’t hear your question Justice Marshall.

Thurgood Marshall:

Declaratory judgments in ordinary courts, district courts involving hundreds of thousands of dollars, simply a declaratory judgment?

William D. Ruckelshaus:

That’s right.

Thurgood Marshall:

Nothing wrong with that?

William D. Ruckelshaus:

No, there’s nothing wrong except that the —

Potter Stewart:

Except against the United States is that (Voice Overlap)?

William D. Ruckelshaus:

Except against in the Court of Claims against United States.

Now, there (Voice Overlap) —

Potter Stewart:

I thought you said in any court?

William D. Ruckelshaus:

Well, I am not maintaining, Mr. Justice Stewart, in any court because they have issued some declaratory judgments under the Admiralty Act and under the Federal Tort Claims Act where the jurisdictional grant to sue the United States is considerably broader than it is in the Tucker.

Potter Stewart:

Oh, I remember those cases in your brief at least the admiralty one but I thought your basic claim was that absence on special conferral of jurisdiction that no court not merely the Court of Claims but the District Court didn’t have the power to our judgment against the United States?

William D. Ruckelshaus:

Well, without some jurisdictional absence, some jurisdictional grant and a clear waiver of sovereign immunity by Congress, yes they cannot have a Declaratory Judgment Act against United States.

And we — it’s our contention that under the Tucker Act there is no such a waiver of sovereign immunity.

And what the — I think it’s really happening here is that the Court is — the Court of Claims is reaching out the past judgment on a whole conglomerate of decisions being made by the United States Government in attempting to infuse their jurisdictional power into all areas of governmental problems and governmental decision making that simply was not contemplated with the Tucker Act and does not contemplate in the jurisdictional grant given at Court of Claims.

Potter Stewart:

The District Courts have concurrent jurisdiction up to what amount is that?

William D. Ruckelshaus:

$10,000.00

Potter Stewart:

$10,000.00 and there are several courts of appeals —

William D. Ruckelshaus:

That have held that, if they try to found jurisdiction on the Tucker Act that the declaratory judgment action does not lie.

Hugo L. Black:

Can the tax court issue a declaratory judgment?

William D. Ruckelshaus:

I can’t answer that Mr. Justice Black.

I’m not — I can’t answer whether they can or not.

A District Court — District Courts have from time to time issued declaratory judgments against United States in specific statutory areas but I’m not aware that it had been issued in the tax court.

Hugo L. Black:

What about the Court of Customs Appeals?

William D. Ruckelshaus:

CCPA?

Hugo L. Black:

Yes.

William D. Ruckelshaus:

To my knowledge they cannot either Mr. Justice Black.

Earl Warren:

Mr. Kabatchnick.

Neil B. Kabatchnick:

Mr. Chief Justice, if it please the Court.

It is the respondent’s position that the decision below holding that the Declaratory Judgment Act does apply to the United States Court of Claims was correct and that the decision below should be affirmed.

The considerations before the Court revealing the correctness of the decision below is readily apparent from an examination of the provisions of 28 U.S.C. 2201 the Declaratory Judgment Act and 28 U.S.C. 451.

As the Court is aware the Declaratory Judgment Act says in pertinent of part that any court of the United States in a natural controversy within its jurisdiction may declare the rights and other legal relations of the parties whether or not further relief is or could be sought.

Of course the keyword from respondent’s point of view is the word “any” any court of the United States.

Court will recall that in the original Declaratory Judgment Act passed in 1934 the language of the Act was the courts of the United States and that in the recodification in 1948, the language was changed to read any court of the United States.

It would seem that on its face without going beyond the bounds of Section 2201 and examination of that language of that phraseology would readily cause anyone to come to the conclusion that the Declaratory Judgment Act does apply to the United States Court of Claims.

Hugo L. Black:

What about the Texaco?

Neil B. Kabatchnick:

Sir, I find nothing if following my theory if it is correct in going to the provisions of Section 451 and the term Court of United States as defined there.

Neil B. Kabatchnick:

The tax court is not specifically identified within the language of Section 451 and —

Hugo L. Black:

Just one of any court?

Neil B. Kabatchnick:

Sir?

Hugo L. Black:

I’m under the terms of any court, wasn’t it?

Neil B. Kabatchnick:

If as a Court of the United States I would think that it is but it’s not expressly identified within Section 451 which —

Potter Stewart:

Well, it’s not covered by the definition, is it because it says —

Neil B. Kabatchnick:

No, sir.

Potter Stewart:

— has a catchall on the end any court created by Act of Congress the judges of which are entitled to hold office doing good behavior and tax court judges serve for term of years not during (Inaudible).

So it would not be included.

Neil B. Kabatchnick:

Yes, sir.

Hugo L. Black:

What about the Court of Customs?

Neil B. Kabatchnick:

Yes, sir.

That is expressly if my — if respondent’s theory is correct it would apply to the Court of Customs Appeals which is expressly stated in Section 451 as being within the term “Court of the United States.”

As I indicated earlier if it was believed that we would have to go outside the bounds of Section 2201 to find a definition of the term “Court of the United States” as respondent has pointed out we could go to Section 451 of Title 28 which defines Court of the United States.

And within that definition of course there is the term or the designation of the Court of Claims in expressed language.

Now, I believe it is significant that at the time of the original passage of the Declaratory Judgment Act in 1934 in many of the decisions holding that the Act did not apply to the United States that the expressed statutory definition of a Court of the United States was not contained explicitly in the judicial code.

Therefore, I believe the Court need not go beyond an examination of the terms of Section 2201 and Section 451 to find expressed language indicating that the Declaratory Judgment Act does apply to the United States Court of Claims.

Now, considerable discussion was made of the matter of the waiver of sovereign immunity which would permit the declaratory — the United States Court of Claims to apply that procedural remedy and proceedings within its jurisdiction.

I submit that Section 1491 the Tucker Act is the waiver of sovereign immunity is this statute which permits the United States Court of Claims to apply the procedural remedy accorded by the Declaratory Judgment Act to proceedings within its jurisdiction.

As the Court held in the Aetna Life Insurance Company versus Haworth at 330 U.S. 227 in 1937, the operation of the Act is procedural only.

As the Court in the Scaly Oil case said it does not enlarge the range of remedies.

It does not expand the jurisdiction of the Court.

And I think it’s quite significant in assessing the merit of the decision of the court below that the court and respondent respectfully invites of the Court’s attention to the language in the Scaly Oil case where the court said that before the Declaratory Judgment Act, the federal court would entertain a suit on a contract only if, and this was a contract action if the plaintiff asked for an immediately enforceable remedy like money damages or an injunction.

Then the Court went on at page 671, 672 to say, the Declaratory Judgment Act allow the relief to be given by way of recognizing the plaintiff’s right even though no immediate enforcement of it was earnest.

And I think this is the essence of the holding of the court below.

I would like to point out in connection with Mr. Ruckelshaus’ argument that examination of the order entered on February, I believe it was February 10, 1967 which is set out in the appendix.

I believe at page A-12 that the Court of Claims did not dismiss the respondent’s original petition and did not dismiss it on the grounds that it was a tax refund case.

The Court said so far as it appeared at that time that appears at the only possibly basis that the United States, the action could be maintain was under the Declaratory Judgment Act, leave was given to file briefs and argue the matters no matter was argued and ultimately the Court rendered the decision below that it’s before the Court’s consideration today.

So if the Court did not dismiss the action below as a tax refund case.

Now, I think it’s extremely significant here to understand and there are some intricacies, the operation and the theory of respondent’s case below.

Neil B. Kabatchnick:

Respondent has persistently as the record in this case shows and the briefs below, the briefs here that this is not a tax refund case.

Respondent’s claim is a claim for physical disability retired pay which put for the action of the Secretary of the Army before July 31, 1959 the day of retirement and but for his actions afterward where he sought administrative relief, that the respondent would’ve been paid physical disability retired pay.

The gross amount of which is the same, 75% whether by disability retirement or by longevity.

However, if he had retired for physical disability in July 31, 1959 he would’ve receive 75% the total amount due him, his basic pay provided by statute.

If he had been retired by reason as he was here for longevity, a portion of that 75% was deducted by operational law as and it happens here to be income tax.

Now, the respondent went to the Army Board for the correction of military records under 10 U.S.C. 1552 in August of 1959 asking that his records be corrected to show that he was retired by reason of physical disability.

As pointed out and I would particularly and respectfully invite the Board’s attention to the subject matter of footnote 4 on page 4 of respondent’s brief where the respondent has endeavored to specifically identify what would’ve happen had his records been corrected.

If the respondent’s records have been corrected in 1961 pursuant to his application, his records by operation of law under 10 U.S.C. 1552 would’ve been corrected to show that he was retired by reason of physical disability.

In other words, not for one second would the respondent by operation of law under 1552 ever have been deemed to have been retired for longevity.

His records would have been in all records of the Department of the Army would have been corrected to show that for all times, for all purposes he had been retired by reason of physical disability.

As a result of such a correction of the record as respondent has endeavored to point out in this footnote.

The Department of Army under 10 U.S.C. 1552 (c) by that statute from current applicable appropriations of that Board, Department of the Army, funds would have been used to pay the full 75% or that amount that would have been due him would’ve been paid out of army appropriations.

And evidence of this is indicated of how this operates has indicated in the Darby case, Darby versus the United States which respondent has cited in the footnote below.

And —

Potter Stewart:

You say the amount in this footnote would coincidentally have equal the amount of taxes without —

Neil B. Kabatchnick:

Yes, sir.

Potter Stewart:

— it’s not coincidentally it’s — that’s because that’s the difference, isn’t it?

Neil B. Kabatchnick:

That’s the actual (Voice Overlap) —

Potter Stewart:

Not coincidence?

Neil B. Kabatchnick:

My choice of words might have been —

Potter Stewart:

Yes, but you mean it comes out of army appropriation it’s not a —

Neil B. Kabatchnick:

Yes, sir.

Potter Stewart:

Not the out of or whatever source or tax refund comes from?

Neil B. Kabatchnick:

Yes, Justice Stewart.

And it is on this theory that plaintiff or respondent below filed this action for physical disability retired pay and I might point out also that had — if these were deemed a tax refund case, it was respondent’s position below and respondent’s position here that going to the tax and making application for tax refund would be a futile gesture on the part of respondent because the Commissioner of Internal Revenue does not have jurisdiction to assess whether or not this man was physically disable at the time of his retirement in 1959.

Byron R. White:

Well, what if he brought suit in a District Court for a tax refund which I suppose he can do, couldn’t he?

Neil B. Kabatchnick:

He would first —

Byron R. White:

To bring the suit he might not want.

He could bring — could he present the claim and have it adjudicated that he had been misclassified upon retirement?

Neil B. Kabatchnick:

He could’ve brought an action Justice White in the form of a declaratory judgment action to have his —

Byron R. White:

What about a tax refund suit?

Neil B. Kabatchnick:

He would first have to file his application for refund but this is not and I respectfully submit —

Byron R. White:

Alright, he files an application for a tax refund that is rejected?

Neil B. Kabatchnick:

Yes, sir.

Byron R. White:

Then he sues in the District Court for tax refund?

Neil B. Kabatchnick:

This could possibly to be done and this was —

Byron R. White:

And then he would claim that I am entitled of the tax refund because they put me in the wrong category.

Neil B. Kabatchnick:

But the Court I don’t think the Court and I don’t think that the Commissioner of Internal Revenue would be a futile act as far as Commissioner of Internal Revenue is concerned because he has no basis for determining —

Byron R. White:

Well, I want to know about the Court.

Neil B. Kabatchnick:

I don’t — I think that the Court could if this were a tax refund case, I think that or excuse me, no he could not seek a declaratory judgment because he accepted under the exemptions of —

Byron R. White:

Well,

Neil B. Kabatchnick:

— Declaratory Judgment Act.

Byron R. White:

— is he asking money?

He’s asking for a return of taxes he’s been paid.

He says the reason I’m entitled to it is that I was put in the wrong category and was taxed when I shouldn’t have been.

So, give me my money back here’s the reason, now why can’t he have that adjudicated by a judge and why can’t the judge say, well the army didn’t make a mistake when they retired?

Neil B. Kabatchnick:

As I think that a District Court as a disability retirement action could (Voice Overlap) —

Byron R. White:

This is in a tax refund suit?

Neil B. Kabatchnick:

I don’t —

Byron R. White:

When he sues for the return of taxes couldn’t he have adjudicated in that suit the army had made a mistake and once that was adjudicated they have a judgment for taxes he shouldn’t pay.

Neil B. Kabatchnick:

I do not think that the Court would possibly even reach that question because there had not been a prior adjudication or there would be nothing before the Court as to the merit or lack of merit of the tax refund.

And that’s why it was respondent’s position Justice White that going to the Commissioner of Internal Revenue would be compelling the respondent here to perform a futile gesture because it is not taxes that he is seeking and I –- this has been consistently opposite as the Court of Claims said below, the tax court here are no consequences.

The interpretation with tax statute is not in question.

It is action arising out of whether or not the respondent here was unfit for general military service or not unfit.

Byron R. White:

What would be — would you think you’d have said something fatal if you have answered me yes?

Neil B. Kabatchnick:

Your Honor, I just feel and maybe counsel has failed to convey these thoughts of the Court and I apologize —

Byron R. White:

Well, I understand that you say (Voice Overlap) —

Neil B. Kabatchnick:

That this is —

Byron R. White:

— but you really weren’t interested in the tax refund suit?

Neil B. Kabatchnick:

Yes, sir.

Neil B. Kabatchnick:

That’s correct.

This is not a tax refund suit.

Byron R. White:

So you really — my question is irrelevant but that’s a fair (Inaudible).

Neil B. Kabatchnick:

Well, I can’t if Your Honor I cannot speak with any expertise as to the general nature of a tax refund suit other than as the general term applies if I may use that phraseology sir.

If it please the Court, —

Potter Stewart:

Did your client go as far as he could administratively?

Neil B. Kabatchnick:

Yes, sir.

The only place we could go was to the Army Board for Correction of Military Records.

That was after retirement prior to retirement there were three stages, the Physical Evaluation Board proceeding, the Physical Review Counsel proceeding and the Disability Appeal Board proceeding.

Now, it’s prior to —

Potter Stewart:

Retirement.

Neil B. Kabatchnick:

— retirement and I believe in the petitioner’s brief in their statement of the facts on page 3, they mentioned subsequently.

But I noticed that Mr. Ruckelshaus corrected this in his narration of the chronology or what the administrative processes were in the court below.

Potter Stewart:

And you fully exhaust them?

Neil B. Kabatchnick:

Yes, Your Honor.

Potter Stewart:

I mean there’s no issue about that?

Neil B. Kabatchnick:

No, sir.

Potter Stewart:

Between you and your —

Neil B. Kabatchnick:

No.

Potter Stewart:

— brother?

Neil B. Kabatchnick:

All of the available remedies have been exhausted and proceedings of the correctional records are of course are in the appendix.

But I think that basically getting back I think to the basic question here I think that the language of 2201 and 451 are clear that the act does apply as far as waiver of sovereign immunity that this is carried forth in or show by 1491.

Now, —

Abe Fortas:

Well, I suppose that your position that if the Government says that — if the statute says its sovereign immunity is waived with respect to this category of claims against the United States then that’s a waiver that makes — that opens the door to whatever remedy a court may apply, is that your position?

Neil B. Kabatchnick:

Yes.

Abe Fortas:

Now, on the other hand, I suppose that the argument is that the United States waived sovereign immunity but only for purposes of permitting a judgment for money and not for purposes of obtaining declaratory relief.

Neil B. Kabatchnick:

That’s my understanding.

Abe Fortas:

And your position is that once a Government has waived sovereign immunity with respect to a particular subject matter, the restriction on the form of action is of no consequence.

Neil B. Kabatchnick:

As to form of action Justice Fortas it would be a consequence but I’m thinking of the language of describing what a declaratory proceeding is that is not a proceeding in equity or a law but a sui generis.

It’s also been described as a procedural remedy as a remedy I think that you of course must have the basic consent in particular statute such as suits and Admiralty Act.

Abe Fortas:

Well, that’s really the issue here, it seems to me I’m not sure that I’m help by talking about it in terms of jurisdiction that the question maybe here whether the waiver of sovereign immunity by in the statute which is a consent to be sued for money judgment also operates as a consent to be sued and declaratory judgment action.

Neil B. Kabatchnick:

It would be respondent’s position Justice Fortas that where you have consent to sue such as in the Tucker Act which gives you the jurisdictional to leave, to proceed for judicial relief that this waiver in the Tucker Act does accord the claimant the right to seek declaratory relief.

Abe Fortas:

Oh, yes.

Neil B. Kabatchnick:

As the form of action or as incidental portion of his claim, of his monetary claim and as what’s stated in the Pennsylvanian Railway Company as a procedural step to the accomplishment or the achievement of the receipt or to be put in the position, I believe it was one of the phrases that Judge Davis used below to be put in the position to have this right, to have a judicial statement of his right to the claim or a recognition of his right to a monetary claim.

Abe Fortas:

In short, a declaratory judgment.

Well, I’m sure it seem to me it have to take that position.

It seems to me that involved in this case are two questions.

One, does the Court of Claims — does the declaratory judgment statute make available as a matter of theory that’s sort of a instrumentality that sort of remedy to the Court of Claims?

And your argument is that it does and I’ve listened to that and read what you got to say in your brief.

But the next question is when the United States consented to be sued in the Court of Claims by way of an action for money judgment, does that extend, does that consent to be sued also extend to a consent to be sued for declaratory judgment in the Court of Claims in this type of situation?

Neil B. Kabatchnick:

I might in response to your second portion of your question, of course the first portion, Justice Fortas my answer is yes that the Act, our position if the Act does apply.

As to whether the consent, as I understand your question, where their consent also gives leave to not only seek monetary relief but also declaratory relief, my answer to that would also be in the affirmative for this reason.

When the Tucker Act or when the first act of establishing the Court of Claims in 1855 and the 1863 statute, of course we did not have the concept of declaratory relief and also of course when the Tucker Act was passed in 1887 we didn’t have that.

We didn’t have that until 1934 and I believe that taking the history of the Declaratory Judgment Act and the Tucker Act and of course they didn’t, when the Congress passed the Tucker Act they did invidious declaratory relief and this is an advent of recent — comparatively recent advantage.

And I think that looking in retrospect especially when it says any claim it does not say a claim for present money due.

Potter Stewart:

Just at the verbal level the statute, the linguistic, the semantic level.

You don’t — it’s not true is it that the Tucker Act does confine itself to monetary claims.

It is in the disjunctive.

It says any claim against the United States followed upon the Constitution or any Act of Congress or any regulation of an Executive Department.

Neil B. Kabatchnick:

Yes.

Potter Stewart:

Or upon contract or for liquidated or unliquidated damages in cases other than tort cases.

Neil B. Kabatchnick:

That’s correct.

In fact, in the Jones decision, United States versus Jones which reaffirmed the Lear decision.

There was a dissent in that decision that said that even under the 1887 Act that it was the intent of the Congress to go beyond really monetary type of relief in the Court of Claims.

And of course our position is that the utility of declaratory judgment as it released to the Court of Claims it would be a procedural step and that there is no limitation in the Declaratory Judgment Act that a consideration of both 2201 and 451 leaves and readily apparent that the decision does apply.

Thank you very much.

Earl Warren:

Mr. Ruckelshaus, if you have something briefly in closing.

William D. Ruckelshaus:

Mr. Chief Justice, may it please the Court.

I would just point out at the outset that as to the court decision below to dismiss the case on — originally on the ground since the tax refund while the dismissal order itself is somewhat ambiguous that Judge Davis’ opinion in the record on page 13 clearly states the reasons for dismissing the claim.

He says before bringing the suit here meaning King did not however filed a claim with the Commissioner of Internal Revenue for a refund of the taxes paid on his retirement benefits.

William D. Ruckelshaus:

And since the Internal Revenue Code of 1954 bars a suit for taxes in the absence of the timely refund claim, we issued an order upholding in effect the Government’s defense that the petition alleges basically a claim for refund of taxes paid on retirement pay.

So the Court I think in its decision did say this was the reason that it dismissed the case as far as the grant, Mr. Justice Fortas, under the Tucker Act of waiver of immunity here, I think that so traditionally the term “claim” has meant money claim and Congress has never overturned that that this Court and the court below should not have overturned this tradition without a clear congressional statement on.

Earl Warren:

Very well.