Opposition — Sharp v. United States

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| In the Sigreme Gourt of the United Staie

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JIMMIE SHARP, PETITIONER

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UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT -

MEMORANDUM FOR THE UNITED STATES IN OPPOSITION

Rospert H. Bork,

Solicitor General,

Department of Justice,

Washington, D.C. 20530. .

In the Supreme Court of the United States

OCTOBER TERM, 1975

No. 75-1136

JIMMIé SHARP, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FU. A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT

MEMORANDUM FOR THE UNITED STATES IN OPPOSITION

Petitioner seeks damages totalling $2 1/2 billion under

the Federal Tort Claims Act, 28 U.S.C. 1346(b), 2671,

et seq., for the government’s alleged failure to provide

him compensation under the Federal Employees’ Com-

pensation Act, 5 U.S.C. 8101, et seg. (hereafter

“F.E.C.A.”) in a timely fashion.

Petitioner, a former civilian employee of the Navy,

injured his back in a work-related accident in 1954. He

received medical attention from a Navy doctor and, after

a short period of recuperation, returned to his job, per-

forming his former duties. In 1963 petitioner received an

early disability retirement on account of an aggravation

of the injuries resulting from the accident (Pet. 3-6; Pet.

F.E.C.A. total disability pension.

(1)

2

On August 19, 1971, the Department of Labor granted

petitioner’s F.E.C.A. claims, awarding him $64,048.00 in

back compensation payments and a total disability pension

(Pet. App. A, p. ii; Pet. 3-6).

In 1974, following several unsuccessful attempts to secure

an award of increased compensation from the Department

of Labor, petitioner brought this action in the United States

District Court for the Northern District of California,

seeking additional compensation in the form of damages

under the Federal Tort Claims Act. The district court

granted the government’s motion to dismiss (Pet. App. B,

p. iv), and the court of appeals affirmed (Pet. App. A).

The court of appeals correctly held that decisions of the

Secretary of Labor or his designee as to payments under

F.E.C.A. are final and not subject to judicial review. 5

U.S.C. 8128(b); Soderman v. United States Civil Service

Commission, 313 F.2d 694 (C.A. 9), certiorari denied, 372

U.S. 968; Cobia v. United States, 384 F.2d 711 (C.A. 10),

certiorari denied, 390 U.S. 986. Since the Secretary’s award

of compensation is not judicially reviewable, the “Federal

Tort Claims Act cannot be employed by [petitioner] to

circumvent this bar to judicial review” (Pet. App. A, p iii).

Moreover, the liability of the United States under F.E.C.A.

“with respect to the injury or death of an employee is

exclusive and instead of all other liability *** under a

Federal tort liability statute.” 5 U.S.C. 8116(c). See, e.g.,

Johansen vy. United States, 343 U.S. 427; Patterson v.

United States, 359 U.S. 495; United States v. Demko, 385

U.S. 149.!

'Moreover, a negligent or intentional denial of a claim for com-

pensation benefits is not actionable under the Federal Tort Claims

Act. 28 U.S.C. 2680(a), (h). See United States v. Neustadt, 366 U.S.

696; Fitch v. United States, 513 F.2d 1013 (C.A. 6), certiorari denied,

423 U.S. 866; Dalehite v. United States, 346 U.S. 15: J.H. Rutter

Rex Mfg. Co., Inc. v. United States, 515 F.2d 97 (C.A. 5), certiorari

denied March 8, 1976, No. 75-879.

3

Petitioner contends (Pet. 8), apparently for the first time,

and without citation of authority, that application of the

exclusivity principle here violates the Due Process Clause of

the Fifth Amendment. But due process does not require

judicial review of an administrator’s finding of facts or

application of a concededly constitutional statute to those

facts, at least where, as here, there is no claim that the

administrative procedures were themselves constitutionally

deficient and the administrative action involves no more

than the determination of the amount of benefits to whicha

former employee is entitled. Cf. Johnson v. Robison, 415

U.S. 361, 366-374.

For the reasons stated, it is respectfully submiited that the

petition for a writ of certiorari should be denied.

ROBERT H. Bork,

Solicitor General.

May 1976.

DOJ-1976-05