# Appendix — Pawnee Indian Tribe v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385601_0313%3A3 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1962 - **Citation:** 370 U.S. 918 ## Text Al ¢° §TATUTES INVOLVED q ‘5 USC. 1009. | “eee the. reviewing court shall decide .all relevant questions of law * * * It shall * * * hold unlawful and set aside agency action, findings and conclusions found to be (1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) contrary to con- stitutional right, power, privilege, or’ immunity; (3) in excess of ‘statutory jurisdiction, authority, or limitations, ‘or short of statutory right; (4) without observance of procedure, requiredyby law; (5) unsupported by substan- tial evidence * * *; (6) unwarranted by the facts to the extent that the facts are subject to trial de hovo by. the - reviewing court. In making the foregoing deterfninations the court shall review the record * * *” "42 USC. 1651. _ Compensation authorized—places of employmer t. a) Except as herein modified, the prov isions of the Longshoremen’s and Harbor Workers’ Compensation Act. as amended, shall .apply in respect to the injury qr death of any employee engaged in any employment, (1) at any military, air or naval base acquired atte January 1, 1940, by the United States from any foreign government. 33 U.S.C. 920. ‘Presumptions. In any proceeding for the enforcement _ of ‘a claim for compensation under this chapter it shall be presumed, in the absence of substantial ev ae to the contrary, A2 ? > a) That the claim comes. within - provisions-of this ‘chapter. . - ae -c) That the injury was not oceasioned solely by the intoxication of the —e employee. ' d) That the injury was not ocedsioned by the willful intention of the injured: employee to injure or kil him- self or another. : 33 U.S.C. 903. Coverage. b) No Compensation shall be payable if the? “injury was occasioned solely by the intoxication. of the employee or by the willful intention of the ie dae to mp OF, kill himself or another. |. 33 U.S.C. 921(b). = Oe Review of compensation orders. bf b) If- notyin ° ‘accordance with law, a compensation order may be suspended or set, aside, in whole or in part, through injunction préceedings, mandatory or otherwise, brought by any. party in interest against the deputy com- _ missioner making the order, and instituted in the Federal district court for the judicial district jn which - injury * occurred. ; | A3 OPINIONS AND JUDGMENTS OF THE — BELOW Opiniohf of the’ Court of Appeals IN THE i United. States Court of Appeals FOR THE FIFTH CIRCUIT. No 18897 / ‘UNITED STATES OF AMERICA and “JEANETTE E. GONDECK, Intervenor, ee , ’ Appellants, VS. PAN AMERICAN WORLD AIRWAYS, INCORPORATED, . and THE TRAVELERS INSURANCE COMPANY, Appellees, APPEALS FROM THE Unirép ‘STATES DistricT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA. _ (February 9, 1962) Before 2 JONES and BELL, Circuit Judges, and SIMPSON, : District Judge > ; JONES, Circuit Judge: The district court-set aside an order -of William M. O'Keeffe, Deputy . Commissioner, . Department of Labor, by which compensation was awarded to Jeanette E.'Gondeck for the death of her husband, - Frank J. Gondeck, pursuant te the provisions of the De- fense Base Compensation Act, 42 U.S.C.A., § 1651 et seq. - By this statute the employees under it were covered by the provisions of the Longshoremen’s and Harbor Work- * eee A4 ers’ Compensation Act, 33 U:S.C.A., § 901 et ‘seq. The evi- dentiary facts ‘are stipulated. The inferences drawn from the stipulated facts by the Deputy Commissioner and his findings are challenged. . Frank J. Gondeck, a Florida resident, was employed by Pan American World Airways in March, 1958, as a diesel generator operator at a defense base on San Salyador Is- land, British West Indies. .Hi§ work required him-to put in-an eight-hour. shift on the job after which he was off — . twenty-four.hours. He was subject to call for emergencies . when off duty. He lived at a dormitory on the Base. There was a recreation center on the Base known as the Reef Club. At Cockburn Town, about three miles from the Base, was a night club known as the Blue Marlin Club. Pan. American operated a bus.on a regular schedule for trans- _ porting its employees, without charge, between the Base and the town. Pan American supplied a jeep for transport- - ing the diesel operators to and from the several generating plants. ” Gondeck went off duty at 4:00 o’clock on the after- * noon of April 24, 1958. With seven or eight other em- ployees he went to the R@ef Club where they sat around drinking champagne, with time out for chow, until about 7:30 o'clock in the evening when Gondeck, in the company of James F, Norman, #ox F. Fry and R. M. Smith, took off in the jeep for town. They went to the Blue Marlin, a’ native elub, where they stayed for about fifteen minutes, had a beer, and started back to the Base with Norman driv- _ing the jeep. The use of the jeep for personal mission? of employees was forbidden by Pan American: Norman and Smith had been warned a few days earlier that the jeep was not to be used except for official business. It was -not shown whether this was known by Gondeck. As the jeep approached the gate to the Base, it went out of control, A5 skidded, and turned over. Smith was killed. Gondeck sustained brain injuries from which he died three days - later. In his order making an award of compensation the ° Deputy Commissioner found. among other things, that | ‘Gondeck had completed his day’s «york and was, on the journey to Cockburn Town, seeking reasonable ‘recreation and entertainment, that he was on call for emergency duty. An award was made to the widow for herself and the child of the decedent by the Deputy Commissioner against Pan American and Trav eles” Insurance Company. its compen-.. sation insurance carrier. Pan Asmerican and the Tr avelers Siemon Company brought suit against the Deputy Commissioner to set dside © the award and to enjoin its enforcement. The United: States Attorney represented the Deputy Commissioner in the litigation. Jeanette E. Gondeck intervened. On Sep- . tember 15, 1960 (and here the dates begin to become im- portant), the district court madé and filed findings of faci and conclusions of law in which it was stated that there was no substantial evidence that Gondeck was engaged in the scope of his employment at the time of his injury or that his injury and subsequent death arose out of or in the course of his émployment. .It was concluded that the award should‘ be set aside. On September 21, 1960. the Deputy Commissioner filedea motion to amend the find- ings and conclusions or for a new trial. On September 26,. 1960, Mrs. Gondeck filed a similar motion. The court’s judgment setting aside the award and enjoining | its enforce- ment was dated November 7. 1960, and filed on the foilow- ing day; November 8, 1960. On November 16, 1960. orders were entered denying the two motions. On January 13, 1961, the United States, which was never a party to the suit, filed a notice of appeal, not from the judgment, but from the order ‘denying Motion to Amend Findings of Fact and Conclusions of Law and denying Motion for New 4 A6 : Trial.” On January 13, 1961, the intervenor filed a notice of appeal from the final judgment of November 8, 1960, and the order of November 16, 1960. The appellees have moved ° to dismiss the appeal of the United Statés on the ground that it was not and is not a party and has no right to ap- peal, that the order on the motion for which it attempts to appeal is not a final order, and that the appeal.was not taken within the time permitfed by the ru uulps. The ap- pellees also move to dismiss the appeal bythe intervenor on the ground that her — -was not taken within the prescribed time. . We think there must be a dismissal of what purports _to be an appeal of the United States. It was not’a party to the proceedings in the district: court and wéuld not have . been a proper party had it sought to become one. The identity of the United States and of the Deputy Commis- sioner are separate. No notice of appeal was filed by the _ Deputy Commissioner. although the United States Attor- ney filed in his name a statement of “points on appeal” and a designation of the record on appeal. These do not ‘make an appellant out of-either the United States or the Deputy Commissioner. These matters do not preclude the intervenor, Jeanette E. Gondeck, from taking ‘ap- peal by the timely filing of a notice of appeal. Whether ~ she has done so is one of the questions for our decision. Thé appeal of the intervenor was, we conclude, taken within the prescribed time. The running of the time’ for taking an appeal is suspended until disposition is made of a timely’ motion to amend’ or make additional findings of fact. Rule 73 (a), Fed. Rules Civ. Proc., 28 U.S.C.A. Where, as in the case here, the motion presented a sub- stantial question and the motion is -not disposed of either expressly or by necessary implication, by the judgment, the rule is applicable. although the motion was made be- AT fore but not overruled until after the judgment. Phinney v. Houston Oil Fieid Material Co., 5th Cir., 1958, 252 F. _ 2d 357; Partridge v. Presley, 88 US. App. D.C. 298, 189 F. 2d 645, cert. den. 342 U.S. 850. 72 S. Ct. 79, 96 L. Ed. 642. Cf. United States v. Crescent Amusement Co., 323 US. | 173, 65 S. Ct. 254, 89 L. Ed. 160. The order on the motion - Was entered November 16, 1960. The Intervenor’s notice of appeal was filed on January 13, 1961. The Deputy Com- missioner was an officer ef the United States and therefore — the time of taking an appeal was sixty days as to all part- ies, including the intervenor. 28°-U.S.C.A., § 2107, Rule 73 (a) supra. .. a The intervenor-appellant asserts that “In the absence of. a finding that Gondeck was injured and killed within the terms of Sec. 903 (b),' the award must be reinstated. This is not-an accurate statement, at least since the passage of the Administrative Procedure Act,’ of the principle gov- erning a judicial review of an administrative determina- tion. The findings are to be accepted unless they are un- supported by.sybstantial evidence on the record considered as a whole. O'Leary v. Brown- -Pacific- Maxon, Inc., 340 U.S. 904, 71 S. Ct. 470, 95 L. Ed. 483; Universal Camera. Corp. National. Labor Relations Board, 340 US. 474, 71'S. Ct, : pe 95 L. Ed. 456. The intervenor urges the proposition _that Gondeck was entitled to seek recreation away from the base where he was employed as an incident of his em- ‘ployment and, having received the injuries resulting in his death in returning from a recreational excursion, it follows that death benefits under the Act are payable. The doctrines applicable cannot be stated by such a broad ~ Compensation shali be payable if the injury wads occa- sioned sulely by the intoxication of the e mployee or by the willful intention of-the employée to injure or kill himself or another. 33 US.C.A., § 903(b). . 2, 5 USCA. 88 1001-1011. ® A& theorem. Professor Larson, thus announces the gei_ ral principles: “Recreational or social activities. are within the ‘course of employment when ; “(a) They occur on the premises during a lunch or recreation period as a regular incident ‘of the employment; or . “(b) The employer, by expressly or itnpliediy requiring participation, or by making the activity part of the services of an employee, brings the activity within the orbit of the employment; or “(c) The employer derives substantial direct. benefit frém the activity beyond the intangible value of improvement in employee health and morale that is common to all kinds of recreation and oon life.” 1 Larson's Workmen’ s Compensation Law 328. § 22.00. The stated tests are not here met. We do not think it can be said that the employer sponsored the activity of going to Cockburn Town for recreation because it fur- nished free bus service between the town and the base. If such sponsorship could be inferred it would not inhere in an expedition made Th*the employer's jeep which the employe2s were prohibited from using for such purposes. The intervenor contends that Gondeck was subject to call at all times and that this, in some manner made his fatal injury an occurrence in the course of employment. The _ premise is unsupported and it is the Deputy Commission- -er’s finding that Gondeck was injured and killed “when, having completed his day’s work’’ he journeyed to town, drank a beer, and was returning to his quarters. The in-! | jury did not occur on the employer's. premises nor during the’ employee’s working time. The injury and’ death of Gondeck were wholly disassociated from his employment’ envifonment.- He had not been using recreational facilities mo es - furnished by the employer uor did he use the means of | _ travel to and from the place of recreation furnished by the employer. ‘No benefit to trie employer has been shown to resiilt from the ‘going ‘by. Gondeck to a native club. for a beer unless ‘it be-fer-the_in intangible and, we think, im- material benefit of improv ement of fidrate-that might be the consequence of such an excursion. The trip cannot be regarded as necessary travel to andfrom work. We find no evidence that furnishes a link by which the ac- ’ tivity in which Gondeck was engaged was related to his employment. Larson, supra. 328-342, $$ 22.00-22.30; 99 C.J.S. 737 et seq.. Workmen's Compensation, £ 221 ¢: 58 Am. Jur. 748; Workmen's Compensation , £237; O'Leary vy. Brown-Pacific-Maxon, Inc., supra; Ward y. Cardillo, D.C. Cir. 1943, 77 App. D.C. 343, 135 F.2d 260; N. L. Demara v. Employers Liability Assurance Corp., Sth Cir. 1958. 250 F.2d 799, cert. den. 353 U.S. 845, 79 S. Ct. 69.3 L. Ed. 2d 79; National Surety Corporation v. Bonds, 5th Cir. 1960, 275 F.2d 389, cert. den. 364 U.S. 849, 81 S. Ct. 93.5 L. Ed. 2d 73: Brown-Pacifie-Maxon, Inc., v. Pillsbury. D.C.N_D. Calif. 1953, 132 F. Supp. 421. G ’ The appeal of the United States will be DISMISSED. . The judgment of the District Court setting aside and enjoining the enforcement of the Deputy Commissioner's order is sh. aie . AFFIRMED. « * Al0 Judgment of the Court of Appeals Extract from the Minutes of February 9, 1962. | No. 18897 UNITED STATES: OF AMERICA and JEANETTE E. GONDECK, Intervenor, PAN AMERICAN WORLD AIRWAYS, INCORPORATED, and THE TRAVELERS INSURANCE COMPANY. 7 ‘This cause came on to be heard on the transcript of the record from the United States District Court for the ‘Southern District of Florida, and was argued by counsel; ON CONSIDERATION WHEREOF, It is now here ordered and adjudged by this Court that the appeal of - the United States in this cause be, and it-is hereby, dis- missed; and that the judgment of the District Court set- ting aside and enjoining the enforcement of the Deputy Commissioner's order be, and it is hereby, affirmed. * ¢ « * {Title Omitted | Findings of Fact and Conclusions of Law of District Court This matter having come on before the Court on the motions for summary judgment. and for review of the findings of the Deputy Commissioner upon the parties stipulated, record. for review, and the Court having ex- amined the record, the pleadings herein and the briefs of © counsel and, being fully informed in the premises, the -Court thereupon enters its Findings of Fact and Con- © ’ clusions of: Law, —— All FACTS SUPPORTED BY SUBSTANTIAL EVIDENCE 1. The plaintiffs, Pan American World Airways, Inc. . (Pan Am), and The Travelers Insurance Company, brought this action to review the findings of the defendant, Wil- liam M. O'Keeffe, Deputy Commissioner, Sixth Comnipen- sation District ( Deputy), granting an award to Jeanette E. Gondeck, the. widow of Frank B Gondeck, an, em- ployee of the plaintiff Pan Am. mee z.. Frank J. Gondeck, according to the undisputed, stipulated facts of record in this case, was, on April 24, 1958, an employee of Pan Am on San Salvador Island, British West Indies, having been transported there, fed and housed while there, at his emp:oyer's expense. ‘ 3. On April 24, 1958, Gondeck completed his sched- uled eight-hour shift, came off duty, returned to his quarters, cleaned up, availed himself to some extent of the employer furnished recreation facilities on the base, drank some alcoholic beverage of unspecified amount (ap- . “parently notin excess), left the employer's government base in the company of several fellow employees in a com- pany-owned jeep, the use of which had been denied em- ‘ployees for other than eompany business, in contravention of the employer’s regulations, and despite the fact. that the employer had furnished scheduled bus jransportation to Cockburn Town, this party’s destination. 4. Having arrived at Cockburn Town via the com- pany jeep, Gondeck and his companions had a “Beer” at a native tavern, and, again contrary ‘to company orders, picked up a native to give him a ride back to the base; on the return trip, before reaching the base, the jeep - - overturned seriously injuring Gondeck, from which in- | juries Gondeck died several days later. } Al2 5. The decedent was subject to:call at all times in any emergency, but, not only was he not on call, nor-on active duty, nor on*any business in any way connected — with his employment, but he and his companions were at the time of the injury, .actively engaged solely in a pleasure-trip of their" own and in violation of two of their _ employers regulations regarding the jeep in which they were injured. 6 Ina careful review of this record this Court is not only unable’ to discover any~substantial evidence to support the findings of-the Deputy, but ft is unable to find any evidence in ‘support of: the findings before it ee. review. 7. The decedent’s widow, Jeannette E. Gorideck, was +, ~ allowed to intervene herein in —_ of the. Deputy’s award. CONCLUSIONS OF: LAW 1. This Court has jurisdiction of the parties and sub-, ject matter of this case pursuant to the provisions of Title 33, U.S.C., Section 921, and Title 42, U.S.C., Section 1653, as made applicable to this case by Title 42, US.C., Sec- tion 1651. 2. The eadbinh ahi Frank J. Gondeck, ‘dfthe time of his death was an employee within the provisions of the Defense Bases Compensation Act. 3. "fhe record contains no substantial evidence to _ support the Deputy’s implicit¥inding that the decedent was engaged within the scope of his employment or that his injury and subsquent death arose out of or in the course of his employment. 4. There being no substantial evidencé to support - the findings of the Deputy, said findings are erroneous s , 6 Al? i, Florida, this 15th day of September, ° a a ‘ /s/ EMETT C. CHOATE | United States District Judge Uv THIS CAUSE hav ng come on. before the Court on the Complairt of the Plaintiffs to enjoin ‘a Compensation Order entered by the Defendant WILLIAM M. O'KEEFFE. Deputy Commissioner r the Longshoremen’s and Har- bor Workers’ Com tion Act, and Answers having been filed by the Def nt and by the widow of the deceased Employee who petitionei for leave to infervene and who was permitted so to do, and the Court having examined the Record, and Briefs having been submitted, ' and the Court having. heretofore oz September 15, 1960, entered its. Findings of Fact and*Conclusions of Law. and the Record containing no substantial evidence to support the Findings of the Deputy Commissiongr and said Find- ings. being not in accordance with the law it is ORDERED, ADJUDGED AND DECREED that: 1. The Compensation Order of WILLIAM M. O’- KEEFFE, Deputy Commissioner, Sixth Compensation Dis- trict, dated December 31, 1959, bearing File No. DB-C- ‘773-373 awarding compensation to Jeanette E. Gondeck and Barbara Ann Gondeck, regpectively the surviving. - Al4 spouse and child. of Frank J. Gondeck, deseased, be’ andy, , ‘the’ same hereby is suspended and set aside in whole; ‘2. -A permanent injunction bef an it hereby does issue against the said Deputy Commissioner, his officers. ‘agents and employees: restraining enforcement of the aforesaid Order, permanently; 3. The aforesaid Deputy Commissioner be and he is _ _. hereby directed to set aside the said Order and enter an Order dismissing the claim. DONE AND ODERED in the City of Miami; Dade County, Floriaa,.on this 7th day of November, 1960. er EMETT C. CHOATE — District Judge _ [Title Omitted | ~ - Compensation Order of Deputy ‘Commissioner Such investigation: in respect to the above .entitled claim having been made _as is considered necessary, and no -hearing having been applied for by any interested ~ party or considered necessary by the Deputy Commis- sioner, the Deputy Commissioner makes the following: “FINDINGS OF FACT That on‘the 24th day of April, 1958, the decedent _ herein, Frank J. Gondeck, of 1200 Northeast 144th Street, Miami, Florida, was in the employ of the employer herein, Pan American World Airways, Incorporated, of Post Of- fice Box 4187, Patrick Air Force. Base, Florida, a con- tractor-with the United States at San Salvador Air Force Base, San Salvador Island, British West’ Indies, in the Caribbean Compensation District, established under the provisions of the Defense Base Compensation Act (Pub- lic ‘Law 208—77th Congress as amended). and thit the ~~ Al5 liability of the employer for compensation under the said _ Act was insured by The Travelers Insurance Company; that the case was transferred to the Sixth Compensation District .in accordance with Section 19 (g) ‘of the said Act with. the approval of the Bureau of Employees’ Compensa-\, tion; that on the. said day the decedent ‘herein sustained personal injury’ resulting in his disability ahd subsequent death when, having completed ‘his day's work ard seck- _ing, reasonable recreation and entertainment. the . de- . ceaent journeyed to Cockburn Town, a native village on San Salvador Island, British West Indies, drank one’ glfss of beer, rode in a jeep back toward the decedent's living quarters, and the jeep overturned on the road, which r sulted in a fracture of the decedent's skullcand an epi hemorrhage; that the decedent was. paid in full sor rhe _ day of the accident and died on April 27, 1958, 4@a result of the injuries sustained on April 24. 1958: that temporary total disability did not extend beyond the three-day wait- ing period; that the decedent. was a passenger in a jeep being driven by another person when the accident oc- - curred; that intoxication of the decedent was not the sole cause of the accident; that the decedent was on call for emergency duty by the employer herein twenty-four.hours per day as long as the decedent was on the island; that the decedent: did not remove himself from a possible emergency call to duty on the day of the accident: that the employer provided the decedent with. food and. lodg- ing as well as pay; that the employer knew the decedent and co-employees journeyed regularly to Cockburn Town for recreation and entertainment; ‘that the employer to “make the recreation and entertainment found in Cock- burn Town more readily available to’the decedent and ~ other employees provided the employees with free trans- portation to Cockburn Town; that written notice of the injury and- subsequent death was not given to the em- e 7 4 J +s $7 e , “A16 . ployer within thirtv days, but the employer: had_ know!l- edge of the injury aid subsequent death and. has been prejudiced. by lack of such written notice; that the em- . ployer provided the décedent with medical treatment, etc.. in accordance with the provisions of Section 7. (a) of the ' said Act; that the average weekly wage of the decedent herein at the time of the injury amounted to more than $81.00; that the claimant herein, Jeanette E. Gondeck, who was born on: Apri! 26, 1913, and married to the de- cedent.on May 3, 1932, is the surviving widow of the de- . cedent herein, Frank J. Gondetk, and is entitled to death benefits for herself at $28.35 per, week (35% of the maxi- _mum average weekly wage of $81.00); that Barbara Ann Gondeck, who was born on August 29, 1940, is the sur- viving. child of the’ decedent herein, Frank J. Gondeck. and that Jeanette E. Gondeck, mother and naturai guard- ian of the child, is entitl6d to death benefits for the sup- port of the said child at $12.15 per week (15% of the ‘maximum average weekly wage of $81.00); that the sur- ‘ ‘deck is entitled to for herself and for the support of the - viving child, Barbara Ann Gondeck attained the age -of eighteen years on. August 29, 1958; that the funeral ex- penses of the decedent amounting to $1,083.05 -were paid by the claimant, Jeanette E. Gondeck, and she is entitled to reimbursement in the sum of $400.00 on account of such "expenditures; that the accrued death benefits to which.” Jeanette E. Gondeck is entitled for thé support of the said child. from April27. -1938, to August 28. 1958, inclusive, is 17 5/7th weeks at $12.15 per week in the amount of $215.23; that the accrued benefits to which Jeanette E. Gondeck is entitled to for herself as the surviving widow from April 27, 1958 to December 30, 1959, inclusive (87 4/7th weeks at $28.35 per week), amount to $2,482.65; that the total accrued death benefits to which Jeanette E. Gon- said ‘child to December 30, 1959, inclusive, amounts to ” as ; - ANT $2,697.88; that the. employer and the insurance carrier. have paid nothing to the claimant as compensation; that the services and expenses of Thomas G. Spicer and Gay, Hyman and Anderson, Attornets for the claimant, were necessary and the- reasonable value of such services and expenses, is $500.00. Upon the foregoing facts the Deputy Commissioner ' makes the following: : ‘AWARD - That, a employer herein. Pan Apoatice World