Petition for Writ of Certiorari — Sharp v. United States

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OcroReER TERM, 1975

No 75-1136

JIMMIE SHARP,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent,

to the United States Court of Appeals

for the Ninth Circuit

Donavp P. McCuiivm,

CHARLES ©. TRIEBEL. -] R.,

2150 Valdez Street.

Suite 2050,

Oakland, California 94612.

Attorneys for Petitioner.

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Table of Authorities Cited

Cases Pages

Flippo v. T.N.A. (5th Cir. 1973) 486 F, 2d 612 .......... 11

Pittman v. U. S. (E.D. Va. 1970) 312 F. Supp. 818 ...... 7

Unruh vy. Truck Insurance Exchange (1972) 7 Cal. 3d 636,

202 Cal. Retr. 815, 496 P. 2d 1063 ................. 9,10,11

U. S. v. Browning (9th Cir. 1966) 359 F. 2d 937 ........ 6

Constitutional Provisions

United States Constitution, Fifth Amendment ............ 8

Statutes

Federal Statutes:

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California Statutes:

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Rules

Federal Rules of Civil Procedure:

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In the Supreme Court

OF THE

United States

OcToBER TERM. 1975

No.

JIMMIE SHARP,

Petitioner,

VS.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

to the United States Court of Appeals

for the Ninth Circuit

INTRODUCTION

Petitioner prays that a writ of certiorari issue to

review the judgment of the Court of Appeals for the

Ninth Circuit entered on November 14, 1975.

OPINION BELOW

The opinion of the Court of Appeals for the Ninth

Circuit is unreported and is printed at Appendix A

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hereto. The Judgment of the District Court for the

Northern District of California is printed at Appen-

dix B hereto.

JURISDICTION

The opinion printed in the Appendix <A hereto,

Which is sought to be reviewed, is dated November 14,

1975, This petition for certiorari was filed less than

GO days from said date. The jurisdiction of this

Court is invoked under Section 1254 of Title 28 of

the United States Code.

QUESTIONS PRESENTED

Petitioner brought suit under the Federal Tort

Claims Act for failure of the agents of the United

States to comply with and follow the Federal Employ-

ees Compensation Act (5 United States Code Section

S1OL et seq.) for more than seventeen years. The ques-

tions thereby arising are:

1. Whether petitioner's action was for a compen-

sable wrong under the Federal Tort Claims Act

independent of the exclusive remedy provisions con-

tained in the Federal Employees Compensation Act.

2. Whether the decision of the United States after

seventeen vears to properly accord petitioner the ben-

efits of the Federal Employees Compensation Act

affects the right of petitioner to sue for the wrong

visited upon him for the preceding seventeen years

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which caused injury independent of the original work

related injury.

STATEMENT OF FACTS

Petitioner entered employment with the United

States, on or about October 17, 1952 at the U.S.

Naval Air Station, Alameda and worked in overhaul

and repair of aircraft engines. On August 12, 1954

petitioner complained of an occupational injury to his

back resulting from lifting of aircraft engine parts

and obtained medical treatment from his private doc-

tors. Upon his return to work the United States’

medical doctor recommended on August 23, 1954 that

petitioner he placed on limited duty.

However, the United States reassigned petitioner

to his regular duties, failing to admit of, or care for,

petitioner’s occupational injury, despite his protests,

as was its duty under the Federal Employees Come-

pensation Act.

During the ensuing two and one-half years peti-

tioner was required to carry out his regular duties

involving stooping, bending and lifting contrary to

the recommendations of the United States doctors.

Petitioner protested this reassignment to his su-

periors to no avail. Petitioner suffered two hospitali-

zations for emotional disturbance associated with this

work assignment. His initial claims in 1954 and 1959

for disability were rejected as not work related or

compensable.

Tn 1963, petitioner retired hecause of his disability

and filed a claim for a total disability pension due to

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his original occupational injury of 1954. This claim

was denied by the United States until, in 1971, more

than seventeen years after the initial injury, the

United States found the injury was work related and

compensable under the Federal Emplovees Compensa-

tion Act. Petitioner received $64,048.00 through 1974

of which the Civil Service Commission had a lien for

$23,749.00 for prior payments. He now receives reg-

ular disability pension.

There was never any conflict in the evidence that

petitioner’s initial injury on August 12, 1954 and

growing aggravation of that injury thereafter was

work related. On February 14, 1957, a United States

medical officer stated (Reeord, page 70):

On 24 August 1954 a physical valuation was aec-

complished by the Medical Officer. It was re-

vealed that Mr. Sharp has a congenital Low back

abnormality of the spine which presents a prob-

lem of especial susceptibility to strains, sprains,

and back aches. At that time [August 24, 1954]

it was recommended that Mr. Sharp be assigned

duties which did not necessitate frequent bending

and stooping. This recommendation ts reaffirmed

at this time. (emphasis added) ‘

‘Between 1954 and 1957 this advice of the govern-

ment Medical Officers was not followed, and at the

time of petitioner's disability retirement in 1963. the

duty under the Federal Employees Compensation Act

to cure or relieve petitioner’s condition had been

continuously breached by the United States,

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5

In 1963 petitioner received an early disability re-

tirement. Finally, seventeen years after the injury

the United States Department of Labor found that

the injury was work related and compensable. Peti-

tioner has suffered from emotional illness requiring

intermittent hospitalization since 1956.

The June 7, 1971 statement of Richard TI. Meyers,

M.D., Medical Director, (Record, page 75) which

finally led to a compensation award discloses the duty

of the United States of America, the breach of that

duty, and the resulting new injury and damages suf-

fered by Jimmie Sharp requiring hospitalization for

psychotic breaks:

The file shows that prior to this injury the claim-

ant had no evidence of emotional illness. He was

advised by a physician to perform light duties

only, which apparently the agency did not ree-

ognize for several vears. During the interim the

claimant continued with the same position as be-

fore the injury, working with pain according to

the medical report from Celia Lee, M.D., who

treated the claimant while in the V.A. Hospital.

It is her opinion that the claimant’s schizophrenic

reaction was precipitated by the physical pain in

the back and legs and his concern over his job

placement at the Naval Air Station. Doctor Lee

is quite familiar according to the record, with re-

ports from the Naval Air Station and private

physicians as well as her personal treatment

while he was in the V.A. Hospital. I am, there-

fore, in complete agreement with the opinion of

Doctor Lee that the claimant’s psychotie breaks

were, in part at least, related to the back condi-

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tion, the chronic pain, his concer regarding in-

come, transfer of jobs, ete... .

REASON FOR GRANTING WRIT

EXCLUSIVITY OF REMEDY AS APPLIED IN THIS CASE VIO-

RSENS SES eS aes LR te seasiart

; LATES THE DUE PROCESS CLAUSE OF THE FIFTH AMEND-

é MENT OF THE UNITED STATES CONSTITUTION

: Petitioner, an employee of the United States, was

: entitled as of legislative right to the full benetits of

é the Federal Employees Compensation Act (6 USC

SSLOL et seg.). As a worker injured in the course and

scope of his employment, petitioner was entitled to

P compensation and medical treatment to relieve or cure

§ the effects of his disability.

j In the case at bench petitioner net only was denied

compensation, but the directions of the medical officer

: for limited duty to cure or relieve the effects of the

: injury were ignored for two and one-half years,

‘ August 1954 to February 1957. During this period

: petitioner’s congenital anomaly of his lower spine

? became inflamed, remained painful and petitioner suf-

3 fered two hospitalizations for emotional illness,

i The Federal Employees Compensation Aet ‘vas in-

‘ tended to provide a broad and comprehensive plan

3 for compensation of Injured government employees.

: US. Browning (8th Cir. 1966) 359 F.2d 937,

3 Title 5 U.S.C. S8116(¢) provides:

: “(e) The liability of the United States or an in-

5 strumentality thereof under this subchapter or

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any extension thereot with respect to the injury

or death of an employee is exclusive and instead

of all other liability of the United States or the

instrumentality to the employee, his legal repre-

sentative, spouse, dependents, next of kin, and any

other person otherwise entitled to recover dam-

ages from the United States or the instrumental-

ity because of the injury or death in a direct

judicial proceeding, in a civil action, or in ad-

miralty, or by an administrative or judiciai pro-

ceeding under a workmen's compensation statute

or under a Federal tort liability statute. However

this subsection does not apply to a master or a

member of a crew of a vessel.”

Workers Compensation Acts such as the Federal

Employees Compensation Act are liberally construed

in accordance with the legislative intent that humane

purposes be accomplished. Pittman vu. US. (E.D.Va.

1970) 312 EF. Supp. Sis, 819.

The Congress could not have intended that a gov-

ernmental employee be denied all rights of eompen-

sation under the Federal Emplovees Compensation

Act as was done in this case for seventeen years and,

at the time time, deny the injured worker a cause of

action under the Federal Tort Claims Aet, 28 USC

§1346(b), §S2671-2680) for the new and additional

injuries,

The emotional illness and exacerbation of the spine

were caused by the failure of the United States to

accord compensation and medical treatment as re-

quired under the Federal Employees Compensation

Act.

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Though the language of 5 USC §s116(¢) appears

clear in its reach, the Congress’ legislative sweep is

limited by the due process guaranty of the Fifth

Amendment to the United States Constitution which

declares that “no person shall... be deprived of

life, liberty, or property, without due process of law;

... U.S. Constitution 5th Amendment.

There is no question that the enactment of 5 USC

§8116(¢) is within the constitutional scope of legisla-

tive authority of the Congress. But due process under

the 5th Amendment implicitly mandates that the law

be reasonably applied consonant with the purpose of

the legislation itsel/.

Petitioner has not received due process of law. Pe-

titioner’s right to receive the benefits of the Compen-

sation Act was unreasonably and arbitrarily denied

over the course of two and one-half to nine years.

This wrong visited on petitioner caused new and

additional injury and was directly contrary to the

purpose of the congressional legislation. Petitioner

now seeks redress for this unconstitutional depriva-

tion of his property rights under the Federal Tort

Claims Act and he is met by the mechanistic ineanta-

tion, “exclusivity of remedy,” not that the wrong did

not occur: not that he was not injured anew thereby;

not that he could not state a Tort cause of action—

but “exclusivity of remedy.”

Due process insures the fair and orderly admin-

istration of the laws.

To permit the United States te envelop itself in

the protective immunity designed hy Congress would

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reward the acknowledged wrongdoer and punish the

hapless victim by allowing no remedy for deprivation

of his property rights under the Federal Employees’

Compensation Act.

Even if the Congress could have intended such a

result the due process Clause of the Fifth Amend-

ment to the U.S. Constitution requires that the stat-

ute, 5 USC SS8116(e), as applied in this case, is

arbitrary, unreasonable and unconstitutional, and

must give way to petitioner's right to fashion a rem-

edy under the Federal Tort Claims Act, 28 USC

§1346(b), §$2671-2680.

The courts continually protect the legal rights of

employees where the rule of exclusivity threatens to

eliminate substantive remedies for actual wrongs not

governed by the specific conditions of the Compensa-

tion Acts themselves.

Thus, in Vnrah v. Truck Insurance Exchange (1972

7 Cal. 3d 616, 102 Cal. Rptr. 815, 498 P. 2d 1063, the

Court refused to exempt a compensation insurer from

an action at law under the exclusivity rule where the

wrongful actions of the insurer were separate from the

industrial accident, and separate from the insurer’s

responsibility vender the industrial accident itself. The

Court stated at 7 Cal. 3d 630:

[W]e are unable to conclude that a compensa-

tion insurer remains within its proper role as

such, when, as in the instant ease, through its

agents or others employed by it, such insurer in-

tentionally embarks upon a deceitful course of

conduct in its investigations which causes injurv

to the subject of the investigation. We cannot

10

give our approval to such misconduct which

tramples upon the employee’s rights, ... (empha-

sis added)

The Court said at page 654:

However we have held that as to the second,

fourth, and fifth counts defendant Truek did not

remain within its proper role as a compensation

carrier. Thus, under the facts pleaded in those

intentional tort counts, Truck was and is actually

a “person other than the employer” (Labor Code

Section 3852), against whom plaintiff is entitled

to bring a Civil action for damages.

Section 3850 (b) of the California Labor Code pro-

vides:

“Employer” includes insurer as defined in this

division.

There is no doubt that the United States is also the

insurer of the Employees’ Compensation Fund.

5 USC Section 8147 provides in part:

(a) There is in the Treasury of the United

States the Employees’ Compensation Fund .. .

The fund is available without time limit for

the payment of compensation and other benefits

and expenses . . . authorized by this subchapter.

As an insurer under the U’nruh doctrine the United

States would he “a person other than the employer”

if the allegation is of an intentional tort, which is so

alleged in the instant case at paragraph VIII of

the petitioner’s complaint (Record, page 3):

“In spite of plaintiffs protestations, defend-

ants negligently and wilfully reassigned plaintiff

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to the production line contrary to the directions

of the medical officer for a period of nine years.”

Federal Rules of Civil Procedure Rule 8 provide:

(e)

(1) Each averment of a pleading shall be sim-

ple, concise, and direct. No technical forms of

pleading or motion are required.

(2) A party may set forth two or more state-

ments of a claim or defense alternately or hy-

pothetically, either in one count or defense or

in separate counts or defenses...

(f) All pleadings shall be construed as to do

substantial justice.

Pursuant to the Unruh rule heretofore set forth it

is contended that the apparent exclusive remedy

under 5 USC §8116(c¢) is modified where, as here, the

victim employee was powerless to change his job as-

signment and the safety orders designated for the

health and safety of the employee were intentionally

avoided and violated at least for 3 years and there is

evidence that the restrictive duty schedule was not

followed as late as eight and one-half years after the

initial injury.

In spite of the admonition of the Court of- Appeals

in Flippo v. T.V.A. (5th Cir. 1973) 486 F.2d 612, 613

affirming an order denying relief based on exclusivity

of remedy that “nothing new has been added, nothing

new need be stated, so nothing new he ordained,” it is

respectfully suggested that despite the failure of such

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litigation urging exception to the exclusivity doctrine

for the last twenty-six years, this immunity was not

intended to create a climate where new wrongs go

without remedy.

CONCLUSION

For these reasons, a writ of certiorari should issue

to review the judgment of the Court of Appeal for the

Ninth Cireuit entered on November 14, 1975.

Dated, Oakland, California,

February 10, 1976.

Respectfully submitted,

DonaLp P. McCuLium,

CHARLES O. TRIEBEL, JR.,

Attorneys for Petitioner.

(Appendices Follow)

» BLEED THROUGH

Appendix A

DO NOT PUBLISH

United States Court of Appeals

for the Ninth Circuit

No. 74-3080

Jimmie Sharp,

Plaintiff-Appellant,

VS.

United States of America,

Defendant-Appellee.

[ November 14, 1975]

Appeal from the United States District Court

for the Northern District of California

MEMORANDUM

Before: WRIGHT and SNEED, Circuit Judges,

and TAYLOR, District Judge.*

Appellant seeks damages of $214 billion under the

Federal Tort Claims Act [28 U.S.C. § 1346(b),

§§ 2671-2680] for the government’s allegedly negligent

failure to provide him compensation due under the

Federal Employees Compensation Act. [5 U.S.C.

*Honorable Fred M. Taylor, Senior United States District

Judge, District of Idaho, sitting by designation.

ii

§ 8101, et seg.] The district court dismissed the com-

plaint and we affirm.'

Appellant, a former sivilian employee of the United

States Navy, injured his back on the job, received

medical attention, and after a short period of recuper-

ation returned to his former duties. Despite his pro-

tests to the contrary, the injury was not classified as

occupational and appellant was forced to provide fur-

ther medical care on his own. Although the original

government medical examination suggested that ap-

pellant be assigned less physically demanding work

due to his medical condition, this was not followed

until more than two years after the injury.

Nine years later, having received an early disability

retirement, appellant filed a claim for a total dis-

ability pension. Finally, 17 years after the injury,

the Department of Labor re-examined his case, found

that the injury was work related and compensable

and awarded appellant the maximum compensation

to which he was entitled, including $64,048 for the

period prior to the re-examination.

Decisions of the Secretary of Labor or his designee

as to payments under the Federal Employees Com-

pensation Act are final and not subject to review.

5 U.S.C. § 8128(b); Sodeman v. United States Civil

Service Commission, 313 F.2d 694 (9th Cir. 1962).

1An order dismissing the complaint and not the action is not

ordinarily appealable. Dockery v. Dockery, 437 F.2d 898 (9th Cir.

1971). Where, as here, it appears that the action could not be

saved by any amendment of the complaint which appellant could

reasonably be expected to make, it will be treated as a final order.

Lanning v. Serwold, 474 F.2d 716, 717 n.1 (9th Cir. 1973).

apa RETREATS aes ee er Bsmt cea Lighh SS SAGER TER REARS IMRT 2 EMR TEN. Leth Ng

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Although the 17-year delay in appellant’s receipt of

compensation is regrettable, both the initial determi-

nation to deny compensation and the subsequent re-

versal of that determination are not reviewable. The

Federal Tort Claims Act cannot be employed by ap-

pellant to circumvent this bar to judicial review.

Any claim stated by appellant for damages result-

ing from the government’s initial failure to treat his

injury as compensable under the Act or from the

failure to assign him to less physically demanding

duties were also properly dismissed. Federal employ-

ees who sustain injuries during the performance of

their duties must look to the Federal Employees Com-

pensation Act for recovery and the remedies provided

thereunder are exclusive. 5 U.S.C. § 8116(¢); Noga

v. United States, 411 F.2d 948 (9th Cir. 1969).

AFFIRMED.

Appendix B

In the United States Distriet Court

for the Northern District of California

3 Civil No. C-74-0645-SW

| igi iieenaesascasianiccincasestianeninitesaneneicnaninenatimnnsinibisiiien

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Jimmie Sharp,

5 Plaintiff,

: United States of America, et al.,

Defendants.

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[| Filed Sep, 12, 1974]

JUDGMENT

This cause having come on for hearing on Septem-

ber 12, 1974, upon Defendants’ Motion to Dismiss (or

in the alternative) Motion for Summary Judgment,

and the matter having been submitted to the Court,

both on the written record and based upon oral argu-

ments by Counsel, and the Court being fully advised

in. the premises, and the matter having been sub-

mitted for deeision, the Court entered its Order on

that date, granting the Motion to Dismiss (or in the

alternative) Motion for Summary Judgment in favor

of the Defendants, United States of America, and

against Plaintiff Jimmie Sharp.

a

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It Is Hereby Ordered, Ad judged and Decreed that:

1 ‘The Plaintiff take nothing by his Complaint

and that Judgment be entered for the Defendants

and against the Plaintiff, Jimmie Sharp.

2.0 Each party shall bear its own costs.

Dated:

Approved as to Form:

s/ Spencer Williams

United States District Judge