# Petition for Writ of Certiorari — Sharp v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385609_0003%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1976 - **Citation:** 425 U.S. 972 ## Text VOUTT, ! : oe LILLE D | FEB LL 1976 Iu the Supreme Cxeyet mn x. coon OF THE Anited States 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. PERNAU - WALSH PRINTING CO. ~- B62 MISSION STREET - SAN FRANCISCO, CA 04108 FERIA IS -. Subject Index ee IN GAOT 2 Ton ates rs OP OO a Rae Ne I IE: ones Coen eilemas cheer eee Ceubete semeesige Jurisdiction eee eee eee eee eee ee eee reeset Foo eeeesee tere eeene ES eae re A eccnaeauss buen eeeeuekey NNN, MU co oly ot De oe eee peer Reason For Conclusion RN SHUN 3 hess oeeeeiskeerpeereekawase Cetera eee Ce eee eee ee ee ee ee ee eh ee ee oe ee sige nathan Bel Slack coker ae Bae. SRA ATT CIC aR bas ant SAH 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: ee ainda ewe etn eee 2,6 NED 9 5 cick ons e edn neacdenekeew seus 6, 8,9, 11 on ns uuigde deat enmeen kaw enkrkeleians 10 ee aes ca nian seem ine aa eae x enw 2 I kd rece weees ke nenedinneenews 7,9 Be de | ee eee See 7,9 California Statutes: ee er rer a 10 DA NE EE epi e kn sknddakennsiancewecnieens 10 Rules Federal Rules of Civil Procedure: as ity UR), Gs inv ck occ hacen sai sdeevaxenes 11 SED cs packed hap kas case seNbnyeeke eo eanneen 11 | BLEED THROUGH i. | a iitbeetad ie 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 v1 Bon pe cis ae wi Aa) * ss Pid fs = OE ee lip a et iS "] — . 2 3 PAS A ODEN. i NBO i eaccee rae 2 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 2 i | 4 a 4 i & 1 a ed %, > e 4 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, ’ BLEED THROUGH 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- 5 ihe RENTS © Dp Ce Bare, Be - ; Ie Ree 6 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 , BLEED THROUGH eteieeeetiens. hammeinamias ~] 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. — Eee eo 8 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 . BLEED THROUGH 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 ww BLEED THROUGH 1l 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 - — ee er Le i — RR DORE BITE Ey SO OE OT RSE TEE ET RT we te 12 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 y BLEED THROUGH 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 ¥ , aia Jimmie Sharp, 5 Plaintiff, : United States of America, et al., Defendants. ee & ¥ 2 a | ! [| 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 , BLEED THROUGH v 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385609_0003%3A1. Public record. Not legal advice.