Petition — Kielwein v. United States

Pe ee

i

Supteme Court of the United

Octroser Term, 1976

No. . 16 =f 1 Ye

LIZZIE ETHEL KIELWEIN, Perrriones,

versus

UNITED STATES OF AMERICA, Responpent

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

©

TERRELL L. GLENN,

GLENN, PORTER AND

a —hlUl ll |UD

Post Office Box 11588,

Columbia, South Carolina 29211,

JAMES H. MOSS,

MOSS, CARTER, BRANTON &

BAILEY,

Post Office Box 499,

Beaufort, South Carolina 29902,

Attorneys for Petitioner.

The R. L. Bryan Company, Lega! Printers, Columbie, $. C.

Pace

CM cs gi a aa i paige tga oa's eR ow 5m

I > EEA Doe Silk oe dS ewe e. Hewes 2

Questions Presented for Review. .................... 2

Statutory and Rules Provisions Involved ............ 3

ND SC cs 55 coe a ehad einai ese 4

Reasons for Granting the Writ:

1. The Court of Appeals has decided an impor-

tant question of Federal law which has not been,

but should be, settled by this Court.............. 7

2. The decision below conflicts with the decision

of another Court of Appeals as to the proper inter-

pretation and application of Title 28, U. S. C.,

| RR Rg SS ik eR Re ee gt ee 9

3. The decision of the Court of Appeals herein

is in conflict with the accepted and usual course of

judicial proceedings and is in conflict with the

Federal Rules of Civil Procedure resulting in sub-

I I 82. Sis Lavy cs Riese a mY vets 11

Re scart hs oe, ea Mir ea aro te. Se oy Sar 13

pT ESTAR et te BGs Diaper gees Oy ORS ee a 15

(i)

. CITATIONS

Pace

Aunt Mid, Inc. v. Fjell-oranje Lines, 458 F. 2d 712 (7th

Cir. 1972), cert denied, 409 U. S. 877, 93 S. Ct. 130,

Oe Sy OR OE Oe ree i ee 12

Baltimore and O. R. R. v. Postom, 177 F. 2d 53 (D. C.

Ny I i ons MN a is Ka etc e cant ¥b bay 12

Bonnor v. United States, 339 F. Supp. 640 (E. D. La.

Nr a he ae AD aEN Wa casein cnce®) as 8

Coleman v. United States, 176 F. 2d 469 (D. C. Cir.

WD. hae ge apy ip coca ip Mapes. Re cee 6 ape 12

Corkle v. United States, 94 F. Supp. 908 (E. D. S. C.

BE at cay OCs gh She eiehG whee Feo on wees 8

Crowe v. Cherokee Wonderland, Inc., 379 F. 2d 51 (4th

SE oh ile oka bin sk cd TESTS DEP Oka dO Raed 12

Executive Jet Aviation, Inc. v. United States, 507 F. 2d

OD Ca i BI ii ii i 85s wa nn Se vine s® darby rf)

Fleming v. Palmer, 123 F. 2d 749 (1st Cir. 1941) cert

denied, 316 U. S. 662, 62 S. Ct. 942, 86 L. Ed. 1739

3 bak a ar ik csv Ange he a a dio HERA ewes 12

Glasscock v. United States, 323 F. 2d 589 (4th Cir.

Back casita ot vee Red Fie ce Us Cee VA Chas ORS 12

James Julian, Inc. v. President & Comm’rs of Town of

Elton, 341 F. 2d 205 (4th Cir. 1965) ............... 12

Joyce v. United States, 329 F. Supp. 1242 (W. D. Penn.

EE ae ass cee bic ea CR ERIE TS hice ts 8

Lichter v. Goss, 232 F 2d 715 (7th Cir. 1956) .......... 12

Little v. United States, 317 F. Supp. 8 (E. D. Pa. 1970). 8

McCarter v. United States, 373 F. Supp. 1152 (E. D.

FIR: PUPAL Sk. oo cbcc ence picccidivavews Merwe 8

Menclewicz v. United States, 116 F. Supp. 847 (W. D.

N. Y. 1953) ..... mie SUR KR tine Es nee tees OMY ote. 8

CITATIONS—(Continued)

Pace

Morgan v. United States, 123 F. Supp. 794 (8S. D. N. Y.

1968) 2. ia Te Ka a ae ea, ee 8

Nichols v. United States, 147 F. Supp. 6 (E. D. Va.

19) 06: CLL RAGE BAA eee §

Phillips v. United States, 102 F. Supp. 943 (E. D. Tenn

ROGR) ce et eS ea ee i a eee oe 8

Rabovsky v. United States, 265 F. Supp. 587 (D. Conn

WN) COPA Ra ae eee 8

Rudd v. United States, 233 F. Supp. 730 (M. D. Ala.

GD nan oa co Fe recs > eR Eas PETE Tes Cee 8

Schwartz v. United States, 446 F. 2d 1380 (3rd Cir.

BOURD .ncaw. ccebns ous kes bac kewsentsss sneer 7

Socash v. Addison Crane Co., 346 F. 2d 420 (1965) .... 12

Smith v. United States, 239 F. Supp. 152 (D. Md. 1965) 8

United States v. Alexander, 238 F. 2d 314 (5th Cir.

BD eco cic cs Sav esctheone c. Giemoen teeees Senne 7,9

United States v. E. I. Du Pont de Nemours & Co., 351

U. S. 377, 76 S. Ct. 994, 100 L. Ed. 1264 (1956) ...... 12

United States v Yellow Cab Co., 340 U. S. 543, 71 S. Ct.

SUD, GE Tn TOR. GE CD sow vas owen xe ohh Ss ns 10

Zenith Radio Corp. v. Hazeltine Research, Inc., 395

U. S. 100, 89 S. Ct. 1562, 23 L. Ed. 2d 129 (1969) .... 12

OTHER REFERENCES

28 U. S. C.:

DOR ED... os . Ku edna andes ee Coens 2

Beste: Gio... . S.A Daa. Se 1, 3

Section 2675(b) ......... .423%467,380 01

Federal Rules of Civil Procedure

ES ssw 5 dw sive Cae eee 3, 6, 11, 13

Supreme Court of the United States

Ocroser Term, 1976

LIZZIE ETHEL KIELWEIN, Perrrionzr,

versus

UNITED STATES OF AMERICA, Responpent

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

The petitioner prays that a Writ of Certiorari issue

to review the decision and judgment of the United States

Court of Appeals for the Fourth Circuit entered April 22,

1976, rehearing denied June 23, 1976, which reversed the

District Court’s Order that the petitioner have judgment

against the United States pursuant to the provisions of

Title 28, U. S. €., § 1346(b) in the amount of One Hundred

Twenty-three Thousand Five Hundred Seventy-eight and

90/100 ($123,578.90) Dollars, on the ground that the Dis-

trict Court was in error in finding as a fact that petitioner

had proved an intervening fact affecting the amount of her

claim pursuant to the provisions of Title 28, U. 8. C.,

§ 2675(b).

2 KIELWEIN, PETITIONER, v. U. S. OF AMERICA, RESPONDENT

OPINIONS BELOW

The District Court’s Findings of Fact and Conclusions

of Law appear in transcript at 545-546 and 605-610 (App.

17-21). The District Court’s Order for Judgment (App.

22) is unreported. The opinion of the Court of Appeals

(App. 22-30) is not yet reported. The Order denying re-

hearing by the Court of Appeals was entered on June 23,

1976 (App. 30).

JURISDICTION

The judgment of the Court of Appeals was entered on

April 22, 1976, (App. 22) and rehearing was denied by

the Court of Appeals on June 23, 1976 (App. 30). The

jurisdiction of this Court is invoked under the provisions

of Title 28, U. S. C., § 1254(1).

QUESTIONS PRESENTED FOR REVIEW

1. Where agents of a federal agency, inflicting per-

sonal injury upon the petitioner, lead the petitioner to

believe that the disabilities from which she suffered would

be alleviated substantially by remedial surgery to be per-

formed by physicians of that agency and after petitioners

filing the administrative claim physicians of that agency

advised petitioner that there was no relief for her disabil-

ity, do such circumstances constitute intervening facts af-

fecting the amount of the claim within the meaning of

Title 28, U. S. C., § 2675(b)?

2. May the Court of Appeals disregard the Findings

of Fact by the District Court relative to proof of interven-

ing facts affecting the amount of the administrative claim

within the meaning of Title 28, U. 8. C., § 2675(b) where

the testimony of the petitioner on this issue was unchal-

lenged and the Court of Appeals considered matters not

in evidence to conclude that the District Court was clearly

Kieiwein, Perrrioner, v. U. S. oF AMERICA, RESPONDENT 4

erroneous without reducing Rule 52(a) of the Federal

Rules of Civil Procedure to a nullity?

STATUTORY AND RULES PROVISIONS INVOLVED

United States Code, Title 28:

' § 1346(b)

“Subject to the provisions of chapter 171 of this

title, the district courts, together with the United

States District Court for the District of the Canal

Zone and thé District Court of the Virgin Islands,

shall have exclusive jurisdiction of civil actions on

claims against the United States, for money damages,

accruing on and after January 1, 1945, for injury or

loss of property, or personal injury or death caused

‘by the negligent or wrongful act or omission of any

employee of the Government while acting within the

scope of his office or employment, under circumstances

where the United States, if a private person, would

be liable to the claimant in accordance with the law of

the place where the act or omission occurred.”

United States Code, Title 28:

§ 2675(b)

“Action under this section shall not be instituted

for any sum in excess of the amount of the claim

presented to the federal agency, except where the

increased amount is based upon newly discovered evi-

dence not reasonably discoverable at the time of

presenting the claim to the federal agency, or upon

allegation and proof of intervening facts, relating to

the amount of the claim.”

Federal Rules of Civil Procedure

Rule 52(a)

“In all actions tried upon the facts without a jury

I payee mg ey pe a ae ag ad

specially and state separately its conclusions of law

4 KIELWEIN, PETITIONER, v. U. S. oF AMERICA, RESPONDENT

injunctions the court shall similarly set forth the find-

ings of fact and conclusions of law which constitute

the grounds of its action. Requests for findings are

not necessary for purposes of review. Findings of fact

shall not be set aside unless clearly erroneous, and

due regard shall be given to the opportunity of the

trial court to judge of the credibility of the witnesses.

The findings of a master, to the extent that the court

adopts.them, shall be considered as the findings of the

court. If an opinion or memorandum of decision is

filed, it will be sufficient if the findings of fact and

conclusions of law appear therein. Findings of fact

and conclusions of law are unnecessary on decisions

of motions under Rules 12 or 56 or any other motion

except as provided in Rule 41(b).”

STATEMENT OF THE CASE

This Federal Tort Claims case was commenced by the

filing of an administrative claim with the Department of

the Navy in the amount of Twenty-five Thousand ($25,000-

00) Dollars on October 1, 1971. No action was taken by

the Navy for over six (6) months and the petitioner filed a

Complaint in the United States District Court for the Dis-

trict of South Carolina on August 24, 1972, seeking dam-

ages against the United States in excess of the amount in

the administrative claim under the provisions of Title 28,

U. S. C., § 2675(b). Petitioner, a service dependent, was

seeking damages for the injuries she received as a result

of the negligence of the Navy surgeon who on October 2,

1970, at the Beaufort Naval Hospital, Beaufort, South

Carolina, negligently severed petitioner’s left spinal acces-

sory nerve. As a result of the injury, petitioner was sent

by the Navy to orthopaedic and neurological specialists

seeking relief from the drooping of the left shoulder and

painful symptoms of the injury. Petitioner was advised

by every specialist that there were operative procedures

available which would alleviate her painful condition. Peti-

KimeLwein, Perrrioner, v. U. 8S. oF AMERICA, RESPONDENT 5

tioner maintained that she was aware that the nerve had

been damaged or severed; however, she did not learn

finally that nothing could be done to alleviate her painful

condition until she was advised by two specialists at the

Bethesda Naval Hospital in February, 1972, several

months after she had filed her administrative claim.

The respondent’s Answer admitted that petitioner had

exhausted her administrative remedies, but later the re-

- spondent moved to limit recovery to Twenty-five Thousand

($25,000.00) Dollars, the amount of the administrative

claim. At the conclusion of the petitioner’s case, the re-

spondent argued its motion to limit damages, at which

time the District Court entered its Finding of Fact and

overruled the motion on the basis that petitioner had

proved an intervening fact, as required by Title 28, U. 8. C.,

§ 2675(b) (App. 18). The conclusion of the District Court

that petitioner had proved an intervening fact affecting

the amount of the claim was based upon the fact that peti-

tioner did not have knowledge that there was no operation

or medical procedure available to relieve or alleviate her

condition until she was told by the Navy specialist that

her condition could not be alleviated. The District Court

issued its Findings of Fact and Conclusions of Law where-

in it was found as a fact that the Navy surgeon was neg-

ligent (App. 19) and ordered judgment for petitioner in

the amount of One Hundred Twenty-three Thousand Five

Hundred Seventy-eight and 90/100 ($123,578.90) Dollars.

(App. 21).

On appeal, respondent did not challenge the District

Court’s finding of negligence but maintained that the Dis-

trict Court exceeded its jurisdiction under Title 28, U. 8. C.,

§ 2675(b) in awarding damages in excess of the administra-

tive claim.

The record shows that from a time not long after the

original injury to the left spinal accessory nerve the peti-

6 KIELWEIN, PETITIONER, v. U. S. OF AMERICA, RESPONDENT

tioner was advised by Navy physicians that even though

the nerve may have been permanently and irreparably

damaged that remedial surgery was available by Navy

doctors that would lessen the drooping of the left shoulder

and would decrease the pain caused by the drooping of the

left shoulder. The petitioner was being so advised by a

Navy doctor at the time she filed her administrative claim

and arrangements were made to send her to Bethesda ~

Naval Hospital for this surgery after she had filed her

claim. The record shows that the petitioner continued to

believe such relief was possible, and her testimony in this

regard was wholly unchallenged by the respondent, until

she was advised to the contrary at Bethesda Naval Hos-

pital in February, 1972, several months after she had filed

her claim. Based upon this record the District Court who

had the cpportunity to observe the witnesses, and in par-

ticular the petitioner, rejected the government’s conten-

tion that the petitioner had failed to prove an intervening

fact affecting the amount of her claim and reasoned that

the knowledge and information concerning the absence of

any remedial surgery which came to petitioner after she

had filed her administrative claim was an intervening fact

within the meaning of the statute.

Notwithstanding the substantial evidence in support

of the District Court’s Findings of Fact and the spirit and

clear meaning of Rule 52(a) of the Federal Rules of Civil

Procedure, upon appeal the Court of Appeals substituted

its own findings to conclude that about the only extent of

proof of an intervening fact in the case was that the claim-

ant or her attorneys were of the opinion that the claim was

of greater value than the amount of the original admin-

istrative claim.

Kigiwein, Peririonger, v. U. S. or AMERICA, RESPONDENT 7

REASONS FOR GRANTING THE WRIT

1. The Court of Appeals has decided an important

question of federal law which has not been, but should be

settled by this Court: The issue for interpretation in this

case is what constitutes proof of intervening facts relating

to the amount of the administrative claim under the Fed-

eral Tort Claims Act. The District Court found the peti-

tioner had proved intervening facts while the appellate

-court said there was no such proof. There is nothing in

the legislative history of the Act that provides a guide to

its application and interpretation in this regard.

There are only two other decisions of Courts of Ap-

peals which deai with the application of Title 28, U. 8. C.,

§ 2675(b). In United States v. Alexander, 238 F. 2d 314

(5th Cir. 1956), the Court affirmed the District Court’s

finding that the plaintiff met the requirements of § 2675/b).

However, the Court in that case had difficulty because of

the lack of legislative history in determining whether or

not the injured party should prevail by reason of newly

discovered evidence not reasonably discoverable at the

time of filing the claim or because of intervening facts

affecting the amount of the claim. The District Court in

the instant case was troubled by the same question. The

Fifth Cireuit Court of Appeals continued, “It is clearly

one or the other and, being so, the plaintiff is not limited

in his recovery to the amount of his administrative claim.”

Alexander, 238 F. 2d 314 (5th Cir. 1956) at page 318.

The Court of Appeals for the Third Circuit in

Schwartz v. United States, 446 F. 2d 1380 (3rd Cir.

1971) sustained a District Court’s finding that the claim-

ants had failed to sustain their burden of showing any

newly discovered evidence or intervening facts. The opin-

ion in that case does not give a detailed recitation of the

evidence presented by the claimants, but on its face it

8 KIELWEIN, PEeTITIONsR, v. U. S. OF AMERICA, RESPONDENT

would appear that case presented the classic situation con-

templated by Congress in prohibiting awards in excess of

the administrative claim where there exists no evidence

upon which to base a finding that there was newly dis-

covered evidence not reasonably discoverable at the time

of the claim or intervening facts affecting the amount of

the claim.

The District Courts, when confronted with cases in-

volving interpretations and applications of Title 28,

U. S. C., § 2675(b), have reached results almost as diver-

gent as there are reported opinions. Decisions in favor of

allowing increased claims are: Bonner v. United States, 339

F. Supp. 640 (E. D. La. 1972); Phillips v. United States,

102 F. Supp. 943 (E. D. Tenn. 1952); McCarter v. United

States, 373 F. Supp. 1152 (E. D. Tenn. 1973); Joyce v.

United States, 329 F. Supp. 1242 (W. D. Penn. 1971);

Little v. United States, 317 F. Supp. 8 (E. D. Pa. 1970);

Rabovsky v. United States, 265 F. Supp. 587 (D. Conn.

1967). Decisions against allowing increased claims are:

Smith v. United States, 239 F. Supp. 152 (D. Md. 1965);

Rudd v. United States, 233 F. Supp. 730 (M. D. Ala. 1964) ;

Nichols v. United States, 147 F. Supp. 6 (E. D. Va. 1957) ;

Corkle v. United States, 94 F. Supp. 908 (E. D. S. C. 1951);

Menclewicz v. United States, 116 F. Supp. 847 (W. D. N. Y.

1953); Morgan v. United States, 123 F. Supp. 794 (S. D.

N. Y. 1954).

Because of the uncertainty which exists in the absence

of an interpretation by this Court claimants and their at-

torneys are left without guidance as to the standards of

proof which must be met in the event of newly discovered

evidence not reasonably discoverable at the time the ad-

ministrative claim is filed or what would constitute an

intervening fact. In light of the opinion of the Court below

in the instant case, claimants will be tempted to file ad-

ministrative claims for amounts far in excess of that which

a

KIELWEIN, PETITIONER, v. U. S. OF AMERICA, RESPONDENT 4

would seem reasonable at the time of the filing of the

claim in order to protect themselves in the event of com-

plications or developments that would render the original

amount claimed grossly inadequate. This would hardly

seem to be the original Congressional intent to encourage

the settlement of claims administratively and reduce litiga-

tion under the Federal Tort Claims Act in the District

Court. On the other hand, comfort might be taken from

. the Court of Appeals for the Sixth Circuit in the case of

Executive Jet Aviation, Inc. v. United States, 507 F. 2d

508 (6th Cir. 1974), where in footnote 4 at page 516 the

Court noted that it was not alone in holding that the clear

demands of justice should preempt the technical procedures

of the Tort Claims Act. The Court continued to note that

there were many District Court opinions that had allowed

claims that awarded damages in excess of the amount stated

in the administrative claims even though those District

Courts were straining the exception to avoid injustice that

might result from literal applications of Title 28, U. S. C.,

§ 2675(b).

The allowance of the petition in this case would afford

both the opportunity for review of the question of whether

the petitioner herein has been the subject of such an unjust

result from a strictly literal application of the statute and

would afford the Court an opportunity to review and re-

solve the problems inherent in cases of this nature on an

important federal statute and would be conducive to the

fair and uniform administration of justice.

2. The decision below conflicts with the decision of

another Court of Appeals as to the proper interpretation

and application of Title 28, U. 8. C., § 2675(b): In the case

of United States v. Alexander, 238 F 2d 314 (5th Cir.

1956) the Court of Appeals for the Fifth Cireuit dealt with

an interpretation of Title 28, U. S. C., $ 2675(b). In

10 KIELWEIN, PETITIONER, v. U. S. OF AMERICA, RESPONDENT

Alexander the claimant filed an administrative claim for

a sum he initially thought adequate for the injuries to his

shoulder. After the claim was denied suit was instituted

for an amount in excess of the administrative claim. Plain-

tiff then amended his Complaint alleging that subsequent

to the filing of the claim that he learned that the shoulder

would require surgery. The District Court found that the

amount claimed in the action in excess of the amount in

the original claim was based upon the allegation and proof

of intervening facts relating to the amount of the claim

which were not reasonably to be anticipated at the time

it was filed and tat plaintiff was not limited to the amount

of the claim presented. The government, on appeal, urged

that it was error for the District Court to enter judgment

in an amount exceeding that originally sought in the ad-

ministrative claim. The Court of Appeals for the Fifth

Cireuit affirmed, citing United States v. Yellow Cab Co.

340 U. S. 543, 71 S. Ct. 399, 95 L. Ed. 523 (1951) and stated

that the Act is to be liberally construed.

In the instant case petitioner had knowledge com-

municated to her by the treating Navy physicians that her

condition could be alleviated by surgical procedures. She

was given this knowledge before the claim was filed, and

reaffirmed shortly after the claim was filed. However, the

Navy specialists at Bethesda Naval Hospital to whom she

was referred by the Navy physicians in South Carolina,

ultimately advised petitioner that there existed no opera-

tion which would help her. The Court below has woven a

fine distinction between what knowledge of a condition is

in the Alexander case and petitioner’s knowledge in this

case. In Alexander the claimant thought he would not need

surgery at the time the claim was filed, however, he later

learned that his condition warranted surgery and the Court

held that to be an intervening fact. Petitioner here was led

to believe and thought there was surgery available to help

KIELWEIN, PeTiTIoner, v. U. S. of AMERICA, RESPONDENT 11

her. Here the District Court applying Alexander, found

that the knowledge transmitted to petitioner that there

were no operative procedures to alleviate her condition,

which was contrary to what she had been led to believe

for thirteen (13) months, was an important intervening

fact affecting the amount of the claim. The only factual

difference is that in the Alexander case the claimant found

out that an operation would be required after the claim

~ was filed and in this case the petitioner found out that an

operation she had been told would improve her condition

before and after her claim was filed was ultimately told

that no such operation would benefit her. The petitioner’s

position here was that this was an intervening fact and

the District Court so found. By rejecting the District

Court’s Finding, the Court of Appeals for the Fourth Cir-

cuit has placed itself in a conflicting position by holding

that new knowledge could not constitute an intervening

fact affecting the amount of the claim. Thus there appears

a conflict between the United States Courts of Appeal for

the Fourth and Fifth Circuits in inierpreting and applying

Title 28, U. S. C., § 2675(b) which should be resolved by

this Court.

3. The decision of the Court of Appeals herein is in

conflict with the accepted and usual course of judicial pro-

ceedings and is in conflict with the Federal Rules of Civil

Procedure resulting in substantial injustice: The Court of

Appeals has departed from the accepted and usual course

of judicial proceedings by ignoring the substantial evi-

dence upon which the District Court based its Findings of

Fact and by considering matters not in evidence at trial

thereby reducing the provisions of Rule 52(a) of the Fed-

eral Rules of Civil Procedure to a nullity. By holding that

the District Court was clearly erroneous the Court of

Appeals has given lip service to Rule 52(a) of the Federal

12 KIELWEIN, PETITIONER, v. U. S. OF AMERICA, RESPONDENT

Rules of Civil Procedure but has failed to follow the spirit

of the rule and the accepted and usual application of the

rule.

Findings of the District Court are presumptively cor-

rect. Crowe v. Cherokee Wonderland, Inc., 379 F. 2d 51

(4th Cir. 1967); Coleman v. United States, 176 F. 2d 469

(D. C. Cir. 1949); Fleming v. Palmer, 123 F. 2d 749 (1st

Cir. 1941), cert denied, 316 U. S. 662, 62 S. Ct. 942, 86 L.

Ed. 1739 (1942). It is not the function of a Court of Ap-

peals to weigh the evidence de novo. Zenith Radio Corp. v.

Hazeltine Research, Inc., 395 U. S. 100, 89 S. Ct. 1562, 23

L. Ed. 2d 129 (1969); United States v. E. I. Du Pont de

Nemours & Co., 351 U. 8S. 377, 76 S. Ct. 994, 100 L. Ed. 1264

(1956); Socash v. Addison Crane Cod., 346 F. 2d 420

(1965); Lichter v. Goss, 232 F. 2d 715 (7th Cir. 1956).

When reviewing non-jury cases, a Court of Appeals may

find the decision of a District Court “clearly erroneous” if

it is without substantial evidentiary support. Baltimore

and O. R. R. v. Postom, 177 F. 2d 53 (D. C. Cir. 1949);

James Julian, Inc. v. President & Comm’rs of Town of

Elton, 341 F. 2d 205 (4th Cir. 1965); Glasscock v. United

States, 323 F. 2d 589 (4th Cir. 1963). A Court of Ap-

peals must take that view of the evidence and the inferences

deducible therefrom which is most favorable to the party

prevailing below. Aunt Mid, Inc. v. Fjell-oranje Lines, 458

F. 2d 712 (7th Cir. 1972), cert denied, 409 U. S. 877, 93

S. Ct. 130, 34 L. Ed 2d 131 (1972).

Here the Court below has departed from the accepted

and usual course of judicial procedures in that it com-

pletely ignored the testimony of petitioner and the evidence

of record thereby disregarding the function of the trier of

facts to base its decision on its understanding of the testi-

mony in the case, its observation and study of the docu-

ments submitted into evidence and to issue its Findings of

Fact and Conclusions of Law. In this case the Court below

KIeLwein, Perrrioner, v. U. S. oF AMERICA, RESPONDENT 13

has ignored the true meaning of Rule 52(a) of the Federal

Rules of Civil Procedure by viewing the evidence ‘n a

manner most favorable to respondent and in addition has

considered matters not in evidence. Thereby the Court of

Appeals substituted its own judgment to that of the Dis-

trict Judge and tried the case de novo on appeal.

CONCLUSION

. For the foregoing reasons, this Court should grant the

petition for a Writ of Certiorari, should reverse the judg-

ment of the lower Court below and should affirm the Order

of the District Judge that the petitioner have judgment

against the United States of America in the amount of

One Hundred Twenty-three Thousand Five Hundred Sev-

enty-eight and 90/100 ($123,578.90) Dollars.

Respectfully submitted,

TERRELL L. GLENN,

JAMES H. MOSS,

Attorneys for petitioner.

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INDEX TO APPENDIX

Pace

Appendix A, District Court’s Findings of Fact and

eB RE ee, Sa een 17

Appendix B, District Court’s Order for Judgment .... 22

Appendix C, Opinion of the Court of Appeals ........ 22

Appendix D, Order of Court of Appeals denying Re-

Es Svucduwh’s « varus ndhccemeer hows icone Wen 30

(16)

APPENDIX A

Civil Action No. 72-893

TRANSCRIPT OF TRIAL

IN THE DISTRICT COURT OF

THE UNITED STATES FOR THE DISTRICT OF

SOUTH CAROLINA

CHARLESTON DIVISION

LIZZIE ETHEL KIELWIEN, Puarntirr,

versus

UNITED STATES OF AMERICA, Derenpant

[pp. 545-546]

The Cover: Mr. Hightower, I believe the statute pro-

vides in the alternative, that the claim is limited to the

amount filed or the amount presented to the federal agency,

—in this case $25,000.00, except where the increased

amount sought in the suit or I assume sought in an addi-

tional claim would be relevant, is based upon newly dis-

covered evidence not reasonably discoverable at the time

of presenting the claim to the federal agency, or upon

allegation and proof of intervening facts relating to the

amount of the claim.

The Court finds as a fact that the plaintiff has alleged

and proven intervening facts, or an intervening fact which

does relate to the amount of the claim, namely, that after

the date the claim was presented, the plaintiff learned,

upon going to Bethesda, that no operation would give her

yew f relief, and that this was a permanent lifetime dis-

ability.

I think that fact, being the most important factor,—

while she did have information prior to going to Bethesda,

that the end to end—

Mr. Hicutower: Anastomosis.

The Court: —anastomosis, or tying of the nerve to-

gether, would probably not be helpful and would not be

(17)

18 KIELWEIN, PETITIONER, v. U. S. OF AMERICA, RESPONDENT

suggested. She really didn’t know until she went to

Bethesda that that surgery that was recommended, the

muscle operation by the orthopedist, who explained the

seriousness of it but who had not indicated that it wouldn’t

be helpful, and the plaintiff didn’t learn until she sought

someone higher—I am not sure that is the word she used,

but at least someone in consultation with a greater skill

than the local orthopedist,—she didn’t learn until she went

to Bethesda that that operation was completely out.

And I find that that is an important fact, and an

intervening fact, that would warrant the presentation of

a claim or the bringing of a suit for an amount in excess

of the amount filed or the amount of the claim, because

she thought, or she didn’t know until sometime in January

or February that there was no relief at all for her, and

when she filed the claim, she had reason to think that there

was relief for her. And I so find that that does amount to

proof of the intervening fact or facts which does relate to

the amount of the claim. And therefore she comes within

the exception in the statute.

And I will overrule your motion.

. * *

[pp. 605-610]

The Courr: Gentlemen, as I said, I follow the practice

of trying to dispose of nonjury matters when I hear them

because I feel that I know more about them then than I

will know at any other time.

I have tried to give this case appropriate, proper and

due consideration.

I don’t feel that requiring findings of fact and con-

clusions of law, briefs and other material from counsel

would be of any further assistance. The briefs that have

been submitted were fine briefs. The legal issues aren’t

complicated. I took what I think are copious notes on the

testimony of the different persons, and other than some

being furnished in a transcript, which would be at some

distant time, I don’t feel that any briefs from counsel or

any additional proposed findings from counsel, as I said,

I doubt would be of any additional assistance.

APPENDIX 19

Therefore, in accordance with Rule 52 of the Federal

Rules of Civil Procedure, the following contains the find-

ings of fact and conclasions of law of this Court:

This Court finds as a fact that the plaintiff suffered a

severance of the spinal accessory nerve on the left side as

a result of surgery committed by Doctor G. D. Maxwell,

an agent, servant and employee of the defendant, for whose

acts the defendant is liable under the federal tort claims

act, and that said agent, servant and employee of the de-

fendant was at the time of the operation acting in further-

~ ance of and in the scope of his employment by the defend-

ant and under such circumstances for which the defendant,

if it were a private employer, would be liable.

I find as a fact that the severance of the spinal acces-

sory nerve was due to the negligence of the operating

surgeon, Doctor Maxwell, and that said Doctor deviated

from reasonable and acceptable medical practice in that

he operated on the plaintiff to remove a lymph nodule, and

in performing said operation he failed to give any con-

sideration to either locating or avoiding the spinal acces-

sory nerve while in the process of removing the lymph

nodule.

I find as a fact that the reasonable medical standard

under which Doctor Maxwell should have performed the

operation requires that a direct effort be made to avoid

the spinal accessory nerve when performing the removal

of the lymph nodule, and that the failure by Doctor Max-

well to follow this reasonable medical standard was the

direct and proximate cause of the severance of the plain-

tiff’s spinal accessory nerve.

I find that as a result of the severance of the spinal

accessory nerve the plaintiff has suffered a prominent and

noticeable drooping of the left shoulder; she suffered the

loss of the use of her left arm, lost strength in the left

hand, and a paralyzed trapezius muscle, causing her shoul-

der to fall forward with resultant pressure on the nerves

and blood vessels in the shoulder area, which fact: causes

the plaintiff to have constant pain in the left arm and

shoulder.

20 KIELWEIN, PETITIONER, v. U. S. OF AMERICA, RESPONDENT

I further find as a fact that these damages, suffered

as a result of the severance of the spinal accessory nerve,

have been endured by the plaintiff since the day of her

operation on October 2, 1970, and these conditions are

permanent, and there is no reasonable medical treatment

available to the plaintiff which will to any appreciable

extent remedy these permanent conditions.

I find as a fact that as a result of the physical condi-

tion of the plaintiff, above set forth, which is the direct

and proximate result of the severance of the spinal acces-

sory nerve, the plaintiff not only has suffered physical and

mental pain but it has damaged her earning capacity and

the ability to enjoy a normal life since the date of the

operation approximately three and a half years ago, and

these conditions are permanent. The plaintiff who is now

40 years of age has a life expectancy of 32 years, and she

will continue to suffer these disabilities during the balance

of her life.

Based on the foregoing findings of fact, I find and con-

clude as a matter of law that under the federal tort claims

act, the defendant, as would a private employer, is respon-

sible to the plaintiff for the negligence of its agent, servant

and employee, Doctor G. D. Maxwell, as the result of an

operation performed on the plaintiff by Doctor Maxwell,

in which Doctor Maxwell’s surgical technique was not

within reasonable acceptable standards, and as a perma- .

nent result of this negligence and conduct on the part of

Doctor Maxwell, the plaintiff has suffered permanent in-

juries resulting in disfigurement, damage to her earning

capacity, inability to enjoy a normal life, and physical and

mental pain, all of which conditions have existed since the

date of the operation in October 1970, which conditions are

permanent and will be with and endured by the plaintiff

for the balance of her life expectancy of 32 years from the

date of this trial.

I further find as a matter of law that the plaintiff is

entitled to receive the following damages from the defend-

ant, said damages being computed from the date of this

trial:

APPENDIX 21

(1) For permanent bodily disfigurement, $10,000.00.

(2) For damage to her earning capacity, computed at

the rate of $10.00 per week, with an inflationary factor

added of 25 percent, and discounted at the rate of 6 per-

cent, a total of $9,154.60.

(3) For the inability to enjoy a normal life tenure

with her usual and normal everyday routine, the sum of

$20,000.00.

(4) For physical and mental pain and suffering, com-

puted at the rate of $10.00 a day, or $3,650.00 per year,

with a 25 percent inflationary factor added and discounted

at the rate of 6 percent, $64,434.30.

I further find that for the period from October 1970 to

date, that is, from the date of the piaintiff’s operation to

the date of the trial, for disfigurement, damage to her earn-

ing capacity, and the inability to lead and enjoy her normal

life, physical and mental pain and suffering, the plaintiff

is entitled to receive from the defendant the sum of $20,-

000.00.

Therefore, based on the foregoing, I find as a matter

of fact and law, the Clerk shall enter judgment for the

plaintiff against the defendant a total amount of $123,-

578.90.

22 KIELWEIN, PETITIONER, v. U. S. OF AMERICA, RESPONDENT

APPENDIX B

UNITED STATES DISTRICT COURT

DISTRICT OF SOUTH CAROLINA

CHARLESTON DIVISION

Civil Action No. 72-893

ORDER

For the reasons set forth in the oral Order of the court

made at the completion of the trial of the above-entitled

action, it is

ORDERED, that the plaintiff, Lizzie Ethel Kielwien,

recover judgment against the defendant, United States of

America, in the amount of $123,578.90.

SOL BLATT, JR.,

United States District Judge.

Charleston, South Carolina,

March 15, 1974.

APPENDIX C

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 74-1696

Appeal from the United States District Court for the

District of South Carolina, at Charleston. Sol Blatt,

Jr., District Judge.

Argued: November 11, 1975. Decided: April 22, 1976.

Before BOREMAN, Senior Circuit Judge, RUSSELL and

FIELD, Cireuit Judges.

e .

.

RUSSELL, Circuit Judge:

The issue in this appeal is whether the District Court,

having found that the United States was liable under the

Federal Tort Claims Act,’ was clearly erroneous in finding

that there was an “intervening fact” permitting recovery

128 U.S. C. § 1346(b).

APPENDIX 23

by the plaintiff in excess of the amount fixed by her in her

administrative claim as filed with the Government under

the requirements of 28 U.S. C. § 2675(a) and (b). We con-

clude that such finding was clearly erroneous and accord-

ingly remand the cause to the District Court with direc-

tion that the judgment awarded be corrected by limiting

the recovery to the amount stated in plaintiff’s claim as

filed under § 2675(a), 28 U.S. C.

The plaintiff is the wife of a Marine Sergeant. At the

_ time involved here, she lived near the Parris Island Marine

base at Beaufort, South Carolina. On October 1, 1970, she

was admitted to the United States Naval Hospital at Beau-

fort for the removal of a lump on her neck. Immediately

after the operation, she noticed that she “couldn’t get [her]

left arm up” and that her left shoulder “seemed to be

drooping.” * When she returned home after the operation,

this condition continued; in fact, the “drooping” of her

shoulder was such that she “couldn’t keep [her] bra strap

up.” She visited the hospital a number of times to complain

of these difficulties and to seek relief. It was suggested to

her at first by the examining physician that her condition

represented normal post-operative symptoms, which, with

time, should disappear. Because of the continuance of her

problems, however, she was given further examinations in

January, 1971, and was advised to take physical therapy.

After about four or five treatments, the physical therapist

sent her back to the surgeon who had operated on her and

she was examined and advised that she had “either a nerve

problem or a muscle problem.” She was then referred to

a neurologist, Dr. Feller, at the Charleston Naval Hospital

for further examination.

On February 24, 1971, she was seen by Dr. Feller, who,

at the completion of his examination, told her that her left

spinal accessory nerve had been either severed or injured,

presumably in the operation, and recommended explora-

tory surgery. She reported back to the surgeon in Beaufort

who then referred her to Dr. Baird, a neurosurgeon at the

stated that Call of these hens problema [daablite tie maniterted themselves Saselves

24 KIELWEIN, PETITIONER, v. U. S. OF AMERICA, RESPONDENT

Charleston Naval Hospital. After examination on March

30, 1971, Dr. Baird told her that he would not advise sur-

gery, that she was “partially paralyzed,” that such condi-

tion was permanent and that any attempt to repair the

nerve would only mean she “could possibly come out more

paralyzed.” The same problems continued and she was re-

ferred to Dr. Herring, an orthopedist, who, on August 30,

discussed with her the practical possibilities of an opera-

tion to reconstruct the back muscles, in the hope of

“help[ing] with the movement of [her] arm and some of

the pain.” Dr. Herring brought a Dr. Barone, a private

neurosurgeon, into consultation. Dr. Barone examined the

plaintiff on September 7, 1971. After this examination, the

plaintiff was told again by Dr. Barone what Dr. Baird had

previously told her, that “surgery on the nerve” was out

of the question and when she saw Dr. Herring later, he

told her that so far as any effort to improve her condition,

through an operation to construct her back muscles, that

operation would represent “major surgery,” which he as

an orthopedic surgeon had never attempted, and that there

“was no guarantee at all that it would even be successful.”

The plaintiff testified that Dr. Barone told her at this time

that she was “going to have to live with the pain.” * After

receiving this advice, the plaintiff expressed no desire to

have the muscle operation.

About this time the plaintiff engaged counsel to prose-

cute a claim against the defendant. Prior to this, all phy-

sicians, who had treated the plaintiff or had been consulted

by her, had been either in the naval service or engaged by

the Government to examine and treat the plaintiff. Her

counsel, however, determined to have her examined by a

private neurosurgeon in Charleston, Dr. Luther Martin.

The plaintiff saw Dr. Martin on September 10, 1971. She

gave him the same symptoms that she had previously given

the other physicians. After examining her, Dr. Martin told

her that her injuries were permanent but indicated that

two operative procedures might be attempted. Neither,

however, in his opinion would give relief.* The first would

2 Transcript, p. 262.

* See page 28, Transcript.

APPENDIX 25

be an operation whereby the suturing of the severed nerve

would be accomplished, an operation that he would not

favor * and the other was the possible restructuring of the

back muscles. Dr. Martin, however, said that he was “very

skeptical about” this second operation, that he didn’t think

it “a very practical procedure” and that, in his opinion,

there was “unlikelihood of success” in such an operation.

Dr. Martin provided a written opinion to this effect to the

plaintiff’s counsel on September 23, 1971. In this letter, he

_ repeated that he did not “know of any treatment which

would benefit the patient other than the possible explora-

tion of the left side of the neck with an attempt to suture

the nerves” or the “possibility [of] * * * some type of re-

constructive surgery to the left shoulder muscle.” He ex-

pressed, however, “doubt that either of these procedures

would be of very much benefit to the patient.” °

On the basis of Dr. Martin’s report and the advice re-

ceived by her from the other doctors who had seen her, the

plaintiff filed her administrative claim with the Depart-

ment of Navy, under date of October 1, 1971, for personal

injury, fixing the amount of her claim as $25,000.00. In this

claim she described her injury as arising out of an opera-

tion, in the course of which her “spinal accessory nerve

was severed leaving drooping left shoulder and permanent

disability to the left arm.” * When no action was taken on

her claim, plaintiff filed this action on August 24, 1972. In

*Dr. Martin testified that he had no knowledge of any successful

i a en reen Se ee eee

of success, must follow after the

p OF 1 Fp Att

fe

At

|

|

point, plaintiff argued the administrative claim

was not properly tn record, never having offered in evidence by

pF ph gt A tS pt Eg =

in the mal Fi to deny proof of

26 KIELWEIN, PETITIONER, v. U. S. OF AMERICA, RESPONDENT

her complaint the plaintiff alleged that her injuries re-

sulted from the negligence of the physicians who operated

on the plaintiff and who owed the duty to treat her after

the operation. She made no reference to the administrative

claim she had filed other than an averment that she had ex-

hausted administrative remedies under § 2675, 28 U. S. C.

After a trial, the District Court found as a fact (1)

that the plaintiff’s injuries were caused by the negligence

of the Government’s agents;' (2) that the plaintiff was not

limited in her right to the maximum amount stated in her

claim because of “intervening facts relating to the amount

of the claim” and the extent and permanency of her in-

juries ; and (3) that the plaintiff was entitled to judgment

in the sum of $123,578.90. The District Court did find that

the extent and permanency of plaintiff’s injuries were not

based “upon newly discovered evidence not reasonably dis-

coverable at the time of presenting the claim” to the Gov-

ernment.

The Government has appealed. It does not challenge

the finding of negligence; its appeal raises the single issue

whether the District Court committed clear error in finding

that the plaintiff both alleged and proved “intervening

facts” justifying under § 2675(b), 28 U. S. C., a recovery

by the plaintiff in excess of the maximum amount set forth

in the claim she filed with the Government.

The right to sue the Government exists wholly by con-

sent as expressed in § 2675, 28 U. S. C., which fixes the

terms and conditions on which suit may be instituted. The

first requirement is the filing of a claim. That requirement

is jurisdictional and is not waivable. Provancial v. United

States (8th Cir. 1972), 454 F. 2d 72, 74; Driggers v.

United States (D. 8. C. 1970), 309 F. Supp. 1377, 1379-80;

Hlavac v. United States (D. Ill. 1972), 356 F. Supp. 1274,

1276; Robinson v. United States Navy (E. D. Pa. 1972),

odo. Laci ee tedy nk at ti lasne of Hahiliey was

conceded. Liability was hotly disputed the trial;

testimony was introduced on the issue; and liability of the United

States could have been decided either way. The District Court, however,

found for the plaintiff and that cannot be faulted as clearly

erroneous. It was no doubt recognition of this fact that led the Govern-

t not to the issue of negligence.

ie § 2etetb) Be U. 8. C.

APPENDIX 27

342 F. Supp. 381, 382-3; Goodman v. United States (M. D.

Fla. 1971), 324 F. Supp. 167, 170, aff'd, 455 2d 607. The

statute further provides that no action shall be instituted

“for any sum in excess of the amount of the claim

presented to the federal agency.” The statute, however, in-

cludes an escape clause with reference to this ad damnum

limitation. It adds that a plaintiff may sue for a sum

greater than that stated in his or her claim if “the increased

amount is based upon newly discovered evidence not rea-

sonably discoverable at the time of presenting the claim to

~ the federal agency, or upon allegation and proof of inter-

vening facts, relating to the amount of the claim.” The

eae of pPrt cd such “newly discovered evidence”

or “intervening fact,” it has been held, rests on the claim-

ant-plaintiff. Smith v. United States (D. Md. 1965), 239 F.

Supp. 152, 154. The District Court found, and there is no

appeal from such finding, that the plaintiff, though failing

to sustain the burden of establishing that the “increased

amount” claimed by the plaintiff was “not reasonably dis-

coverable at the time” she presented her claim, had sus-

tained her burden in establishing “intervening facts relat-

ing to the amount of the claim,” entitling her to judgment

in excess of the amount stated in her claim. It .s this latter

finding which is challenged. We are of the opinion that the

District Court’s finding that the plaintiff had proved “in-

tervening facts” which would justify judgment in excess

of the amount of her claim was clearly erroneous.

It is the plaintiff’s contention that she did not know

the full extent of her injuries or their permanent nature

until she visited Bethesda Naval Hospital in December,

1971 and February, 1972, and was told by Dr. Brown, an

orthopedist, in the presence of his superior, Dr. Wilson,

that neither “neck surgery” nor “muscle surgery,” in his

opinion, would “help” her. It was this advice, received some

four months after she had filed her claim, which constitutes

the “intervening fact” which plaintiff asserts, and the Dis-

trict Court found, justifies her right under the statute to

recover more than the amount stated in her claim. Dr.

Brown’s diagnosis of the plaintiff's condition was, though,

the same as the plaintiff had been repeatedly given by

28 KIELWEIN, PETITIONER, v. U. S. OF AMERICA, RESPONDENT

other physicians from February, 1971, on. As we have seen,

she was told by Drs. Feller, Baird, Herring, Barone and

Martin—all before she filed her claim—that she had a per-

manent disability, that she was paralyzed and that there

was no form of surgery that, in the words of Dr. Martin,

offered “a very practies] procedure” in an attempt to re-

lieve even partially her disability. Dr. Wilson’s and Dr.

Brown’s opinions were merely confirmation of what plain-

tiff had already been told, not once but repeatedly by other

physicians and surgeons, including one privately employed,

before she filed her claim. Their diagnoses and advice were

thus cumulative and confirmatory of what plaintiff had

largely already been told. Their diagnoses could not be

considered an “intervening fact” within the meaning of

§ 2675(b).

This case is quite different factually from those cited

and relied on by the plaintiff. In Umited States v. Alexan-

der (5th Cir. 1956), 238 F. 2d 314, the plaintiff, unlike

the claimant here who filed her claim almost a year after

her injury, filed his claim some six weeks after his shoulder

injury. During the time the agency was considering his

claim, the claimant in that case on several occasions ad-

vised the agency that his injury was more serious than

originally contemplated. He later was told for the first time

that his shoulder would only mend after surgery. The Dis-

trict Court found this to be either “newly discovered evi-

dence” of the extent of his injury or an “intervening fact,

relating to the amount of his claim,” and this finding was

sustained on appeal. The claimant’s case here is, however,

the opposite of that of the claimant in Alexander. She

knew some eight months before she filed her claim the ex-

tent and permanency of her disability and the “unlikeli-

hood of any relief.” In Rabovsky v. United States (D.

Conn. 1967), 265 F. Supp. 587, the plaintiff “through no

fault of his own” was unable to secure from his doctor a

statement of his condition before he filed his claim and he

so advised the agency when he filed his claim. The fact that

it was only later that by due diligence he was able to secure

an opinion on “[tjhe medical extent of his injuries and

expenses” was sufficient to bring him within the exception

APPENDIX 29

of § 2675(b). In this case, though, the plaintiff had repeated

medical advice on the extent of her injuries prior to the

filing of her claim. Joyce v. United States (W. D. Pa. 1971),

329 F. Supp. 1242, vacated on other grounds, 474 F. 2d

215, is similar to Rabovsky. There, “[t]he initial claim was

made to the administrative agency within days of the in-

jury, at a time when the full benefits of medical diagnosis

were not available” and when “the full extent of his in-

juries * * * are such that medical science [eould not] im-

mediately establish them.”* In Bonner v. United States

(E. D. La. 1972), 339 F. Supp. 640, it was found that the

plaintiff did not know the diagnosis of her condition when

she filed her claim because “neither plaintiffs nor their

counsel could reasonably have known the medical extent of

Hazel Bonner’s disability at the time of the administrative

claim.” * That is not this case.

We find no difference between this case and innumera-

ble others where the claimant has been limited in his or her

recovery by the amount fixed in his or her administrative

claim. See Schwartz v. United States (3d Cir. 1971), 446

F. 2d 1380; Smith v. United States, supra; Nichols v.

United States (E. D. Va. 1957), 147 F. Supp. 6; Corkle v.

United States (D. S. C. 1951), 94 F. Supp. 908; Mencle-

wice v. United States (W. D. N. Y. 1953), 116 F. Supp. 847;

Morgan v. United States (S. D. N. Y. 1954), 123 F. Supp.

794. The Federal Tort Claims Act is remedial and should

be liberally construed to grant the relief contemplated by

Congress; but, as the Court said in Nichols v. Uni'ed

States, supra, at p. 10, “[t]he statute, 28 U.S. C. § 2675(b),

would be meaningless if claimants, after rejection of their

claim, could institute actions for amounts in excess of the

claim filed merely because they, or their attorneys, are of

the opinion that the claim has a greater value” and that is

about the extent of the proof of an “intervening fact, re-

lating to the amount of the claim” in this case.

The cause is remanded to the District Court with in-

structions to reduce the amount of plaintiff’s recovery, as

. Supp. at 1247-8, supra.

osno Fi Seen ates.

80 KIELWEIN, PETITIONER, v. U. S. OF AMERICA, RESPONDENT

allowed by the judgment entered, to the maximum amount

claimed in her administrative claim.

(Reversed and remanded with directions. )

APPENDIX D

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT :

No. 74-1696

ORDER DENYING REHEARING

Upon consideration of the petition for rehearing and

of the petition for rehearing en banc;

Now, therefore, with the concurrence and approval of

the other members of the panel and in the absence of

a request for a poll of the entire court, as provided by Ap-

_ pellate Rule 35(b),

It is ADJUDGED and ORDERED, That the petition

for rehearing is denied.

/s/ DONALD RUSSELL,

United States Circuit Judge.

Filed June 23, 1976.

U.S. Court of Appeals,

Fourth Circuit.