Petition for Writ of Certiorari — United States v. Kenite Corp., 160 Ct. Cl. 778 (1963) (No. 98-58)

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Supreme Court, U.S.

‘tha oD

(') Q8 58 Ju 30199

OFFIGE OF THE CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1998

In Re: Gerald L. Brumley

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

Gerald L. Brumley

Pro-se

P.O. Box 190607

Little Rock, AR 72219

Phone (501) 847-0826

QUESTIONS PRESENTED

1. Where a judgement of an Appeals Court is the

direct fruit of false statements by the prevailing party, is that

judgement nullified by irrefutable showing of the falsity and

materiality of the false statements?

2. Where a judgment is void as the fruit of fraudulent

statements, should the judiciary prevent the fraud feasor from

future enjoyment of the illicitly obtained judgment, such as res

Judicata reliance on the judgment the court was duped into

handing down?

— 3. Does the Hazel-Atlas Glass Co. v. Hartford Empire

Co. Standard for fraud upon the Court oblige the court which

was duped to exercise its powers under rules of equity to

grant relief from fraudulently gained judgment?

4. Where a person has been certified by a responsible

agency as entitled under statutory provisions to a certain

monetary benefit, and said agency then withholds the payment

of those benefits for no stated reason, does withholding that

certified entitlement, without justification infringe upon the

entitled person's property rights under the Constitution?

5. Does the Eighth Circuit internal operating

procedure providing for non argument decisions to be made

unilaterally by a person in the Clerk's office rather than by

unanimous consensus of a three judge panel as called for by

Rule 34 of the Federal Rules of Appellate Procedure violate

the due process clauses of the Constitution?

6. Does the Eighth Circuit interne! operating practice

excluding pro-se litigants from oral argument, without notice,

and on the ground only of their pro-se status constitute a

Ceprivation of due process and of equal protection under the

lew?

TABLE OF CONTENTS

ic, sole vs Oak a hears hak Ss 2

I ce eS Ee ee 5

Deprivation of Due Process

and Equal Protection Under the Law: ............... 23

Denial of Equal Protection

FE ag Sa ae et es ae aa 25

ee ee ee ees 27

APPENDIX A

Text from the notification

by the clerk of the supreme court

of Mr. Justice Thomas’ grant

ofenlargement oftime .................... A-1

APPENDIX B

Text from Judgment of Denial

from the U.S. Court of Appeals

ee EP eg a ce ky B-|

APPENDIX C

Text from per curiam decision

of the U.S. Court of Appeals

for the Eighth Circuit

in case # 93-305]

underlying petition for

error coram nobis relief ................ ee eS

APPENDIX D

Text of November, 1984

affidavit of Frank Allen ............. D-1

APPENDIX E

Text of April, 1988

ies Or wee Re an ae E-1

APPENDIX F

Text from Department of Labor

written statement to the Office

of Management & Budget .................. F-]

TABLE OF AUTHORITIES

STATUTES:

Section 4 of P.L. 79-161, 59 Stat 503 ............... 16

PO FE oe eS as RS ee as 8

Federal Employee Retirement Act (FERA) .......... 6,7

Federal Employee's Compensation Act (FECA) . 6-10, 12, 13,

15-17, 19, 22, 29

Paperwork Reduction Act, 44 USC §3501....... 19-21, 28

Section 4 of P.L. 79-161, 59 Stat 503 .............. 15, 29

SO ae i: © IPOD sa a i ee 8

REGULATIONS:

Pe Eee cE SAS See ace ©

SUR CT os se See 19

CASES:

Bulloch v. United States, 95 F.R.D. 123 000000 1]

Hazel-Atlas v. Hartford Empire , 322 U.S. 238 ....... 5, 28

Lindahl v. Office of Personnel Management,470 U.S. 678 ,

MI ela ways ai ok PRG hayes 16, 29

FEDERAL RULES:

Rule 34 of the Federal Rules of Appellate procedure 23-26,

No.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1998

In Re: Gerald L. Brumley

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

Petitioner, Gerald L. Brumley, respectfully prays that a

writ of certiorari issue to review the judgement of the United

States Court of Appeals for the Eighth Circuit’ wherein the

Court of Appeals denied, without opinion, a petition for

extraordinary writ in the nature of error coram nobis and

Audita querela.* Jurisdiction is claimed pursuant to Title 28

U.S.C. § 1254(1) Petitioner presented a credible showing

"An enlargement of time to July |, 1998 in which to file this

petition was granted by Mr. Justice Clarence Thomas. The text of the

notification by the Clerk of Justice Thomas’ enlargement 1 is attached hereto

as Appendix-A.

The text of the one. ntence Judgment of denial is attached

hereto as Appendix-B.

that an earlier judgement’ adverse to petitioner had been the

fruit of false statements and fraudulent information placed

before that court by a U.S. Department of Labor ("DOL")

attorney and another DOL employee in collaboration with that

attorney. Credible evidence of the falsity of the statements of

that DOL attorney and her confederate was in the form of an

official U.S. Government document made by superiors of

those fraud perpetrators, said official statements made to the

Office of Management and Budget in a White House meeting

at a time subsequent to the Federal Circuit's reliance on the

fraudulent representation of the DOL attorney and her

confederate; and said official statements by superiors of the

DOL attorney and her confederate source attesting to facts

absolutely contradictory to the false statements made by the

DOL attorney and her confederate in the litigation preceding

the petition for extraordinary writ.

STATEMENT OF THE CASE

Petitioner made a credible showing that the judgment

of the U.S. Court of Appeals for the Eighth Circuit in case #

93-3051 was controlled by reliance on false information.

The common law doctrine of error coram nobis recognizes

that where a fraud has been practiced on the court and a

judgement won there was on the strength of the court's

* Per Curiam Order of the Eighth Circuit Court of Appeals in case

# 93-3051 entered on June 16, 1994. The text from that decision is

provided as Appendix-C attached hereto. It should be noted however that

petitioner disputes several assertions of the court such as the representation

that petitioner presented a "violation of clear Statutory mandate argument" in

conjunction with the Secretary's lack of authority to require earnings

reports, and the Courts assertion that petitioner had been asked to fill out a

Form CA-8 and had refused. Both of those characterizations of fact are

incorrect

reliance on that false information, such illicitly gained

judgement and opinion is a nullity. The question is, whether

or not the court which was so duped is obligated to rectify its

mistake, or whether the court may simply stonewall it and

arbitrarily let the illicit judgment appear to the world to have

been a legitimate judicial holding. Moore's federal practice

states a scholarly distinction for such circumstance, to wit:

" ... if the federal judgment is valid and has not been

reversed or otherwise set aside or its enforcement

enjoined, it must be given effect in the court which

rendered it and in any other federal court, when it is

properly pleaded or its effect is otherwise

appropriately presented." ..." A void judgment is

something very different than a valid judgment."

..."The void judgment creates no binding obligation

upon the parties or their privies; it is legally

ineffective."

The scholarly concept is clear, but Courts can not be

compelled to comply with scholarly concepts. Where, as here,

the doctrine of coram nobis is ignored and an illicitly gained

judgment is allowed to stand or to continue to have the

appearance of a legitimate judgement, it raises the issue of

whether there is no longer to be protection for the victimized

party from the success achieved in an adversarial forum by

reliance on fraud and deceit. On March 3, 1998, four work

days after the petition for Coram Nobis relief was submitted to

an unidentified panel of judges, the clerk entered a Judgment

denying the petition without any statement of rationale, or

identity of the judicial authority which purportedly directed

that it be entered. There is no information available as to

whether a panel or one judge decided the matter; or whether

the proof of fact was considered lacking; or whether the

materiality of the proof of fact to the prior decision was

disputed; or anything else about why the Circuit Court chose

to stand on its prior decision despite the showing that it was

the fruit of false information placed before the Court by

Opposing counsel.

If the concept of coram nobis is to be abandoned in

one circuit, it may thereafter be abandoned in other circuits as

well. The issue now placed before this court seeks national

guidance on whether a court which has fallen victim to false

information and relied on it, and produced a ruling which is

undeniably the result of judicial reliance on fraudulently

presented information, is obligated by concepts of equity,

upon becoming aware of the fraudulent underpinning of its

judgment, to correct the error and withdraw the illicitly gained

fraud feasor's victory. Failure to correct a ruling resulting

from a misplaced judicial confidence in the veracity of an

officer of the court perpetrating such a fraud on the court, not

only grants such officer of the court the unjust victory, but

equips that lawyer with an avenue to thereafter trade upon the

illicitly gained ruling under the guise of the doctrine of res

judicata.

While doing so is actually perpetration of a new fraud

on the court in which res judicata is invoked, as long as the

originally duped court stands by its erroneous holding, other

courts are likely to regard it as unimpeachable. In point of

fact, the DOL attorney having lied to the Eighth Circuit and

told it that there was a "need" for a certain filing of

information to be more thoroughly discussed below; and

having succeeded, in deceiving the Eighth Circuit into

believing that such "need" existed; gained the advantage of a

dicta remark by the Eighth Circuit that

"the DOL needed the information",

Since that time, the same DOL attorney has repeated the

falsehood to the Fifth Circuit and enhanced it with a showing

that the Eighth Circuit said "the DOL needed the

in‘ormation", and therefore under res judicata the Fifth circuit

is »bligated to accept that as judicially decided (and the Fifth?

Circuit did).* The fraudulent representation can be repeated

and relied on by the perpetrators of the original fraud unless

and until the court in which they practiced the original fraud is

willing to face up to the fact that it accorded judicial notice to

a presentation of evidence that was not from a source which

was authoritative and unimpeachable and thus of a stature

which warranted judicial notice, but instead was a false

representation and not even credible. The Hazel-Atlas v.

Hartford Empire standard established by this Court in 1944,

322 U.S. 238, obligates the court that issued a judgement

founded on fraudulent information, under rules of equity, to

grant relief from such judgment as "manifestly

unconscionable".

Petitioner believes that the appeals court's refusal to

nullify such illicitly obtained victory of the government upon

being furnished clear and convincing proof of fact of the false

statement of government counsel, rises to the same level that

is labeled "stonewalling" when an Executive Branch

functionary refuses to correct a prior error, or to say why it

should not be corrected. Further, petitioner respectfully

suggests that withholding of such corrective process infringes

upon petitioner's due process rights under the United States

Constitution.

-[I-

HISTORY AND DISCUSSION

* There was a significant factor differing in that Fifth Circuit

representation however, in that it was made even after the Top level DOL

authorities had officially declared to the Office of Management of budget

that there is no requirement for the CA-8 form to be filed by persons not

sll employed by the Federal Government. Thus that attorney had even

more reason to be absolutely cognizant of the fact that she wa. presenting

false information to a Court.

Petitioner is a 65 year old former federal employee

who is both retired under the Federal Employee Retirement

Act (FERA) and entitled to injury compensation under the

Federal Employee's Compensation Act (FECA). The

monetary advantages of FECA are significantly greater than

those under FERA. but under the provisions of the two

statutes, each of which prohibit receipt of both at the same

time, petitioner is required to forego receipt of money benefits

under one, while he elects to receive payment under the

other®. This election of benefits can be changed at any time at

the entitlee's sole discretion, for any designated period of time,

either prospectively or retroactively®. When such election is

made for a retroactive period, the United States Department

of Labor who administers the FECA and the Office of

Personnel Management who administers the FERA are

required by their respective regulations to settle accounts with

each other for the period of time in question, and then the

balance of the entitlement for the specified period (if any) is

required to be remitted to the entitlee.

When petitioner originally retired from the Federal

Aviation Administration, he was awarded and began to draw a

* The deferment of receipt of the money from one program or the

other does not in any way affect the other entitlements under that program

That is, for instance, while electing to not receive the money from FECA for

a given period of time, the entitled person remains entitled to the medical

benefits, travel expenses, vocational re-training and other features of the

FECA. Thus the court should understand that forgoing receipt of the

periodic payments does not disqualify the claimant from entitlement under

the program.

° Petitioner's right to make the election at his sole discretion has

been attested in a DOL official's swom affidavit to be discussed further

infra, and has heen entered as an unappealed finding of fact by the District

~ Court level in the litigation underlying this petition.

retirement annuity in 1974. At a later time, the U.S.

Department of Labor ruled that petitioner was entitled to

FECA injury compensation. Petitioner then elected to receive

the FECA injury compensation, and DOL reimbursed the

OPM (then Civil Service Commission) for annuity payments

made up to that point in time, and remitted the balance to

petitioner. Petitioner continued to receive the FECA

compensation until late 1982 at which time the Department of

Labor (illicitly) alleged that petitioner was no longer entitled

to the compensation. Upon withdrawal of the FECA

compensation payments, petitioner filed for the FERA annuity

payments, and the OPM complied. In late March of 1984 the

Director of FECA at the Department of Labor in Washington,

sua sponte vacated the withdrawal of petitioner's injury

compensation and held that petitioner remained entitled to the

injury compensation payments. The regional office level of

DOL in Dallas. Tx failed to restore the payments the FECA

Director in Washington thus certified as a due. In essence, the

functionaries at the Dallas office simply did not comply with

the dictate of their Washington superiors, and ultimately

petitioner brought suit to compel the performance of a duty

unlawfully withheld or unreasonably delayed. The

Department of Labor never answered that complaint, but

instead began a series of ex-parte communication with the

judge wherein DOL agreed that the payments were due, and

that they were willing to pay the compensation and were

moving ahead to do so. Judge Henry Woods of the Eastern

District of Arkansas then entered an order on December 13,

1984 that the government agreed that the entitlement existed

and that they were willing to pay it, and that they therefore

were ordered to do so.

The DOL then issue payment to the OPM in early

1985 reimbursing that agency for all payments of retirement

annuity made from the late 1982 annuity reinstatement date to

that January, 1985 point in time, and issued a check to

petitioner for the $20,000 +/- difference. At that time,

petitioner had been encouraged by attending physicians to

find some way to distance himself from the running battle with

the Dallas, Texas DOL functionaries. Accordingly, petitioner,

having established as a matter of law that the FECA

entitlement existed, and the prior DOL compensation order

withdrawing it had been vacated, elected at that time to

change back to the OPM annuity.

In conjunction with the just mentioned DOL

correspondence to Judge Woods, Mr. Frank Allen, the District

Director of the Office of Worker's Compensation Programs

("OWCP") in Dallas had filed a sworn affidavit with the Court

which inter alia swore that Gerald Brumley was entitled to the

injury compensation as of the November 25, 1984 date of that

affidavit;

"and continuing thereafter ... for as long as Gerald L.

Brumley is found to be disabled under the Federal

Employee's compensation Act".

That sworn testimony establishes beyond any doubt, a point of

beginning for a period during which petitioner's entitlement to

the injury compensation is indisputable.’

There came a time in April of 1988, in conjunction

with litigation over certain records which petitioner sought to

have corrected under the Privacy Act, that the same Dallas, Tx

District Director of OWCP, Mr. Allen, filed another affidavit

with the Court (dated April 7. 1988) wherein he swore under

oath that as of that point in time Gerald Brumley continued to

be entitled to FECA injury compensation.’ The second

7A copy of Mr. Allen's November 25, 1984 swor affidavit of

petitioner's entitlement is attached as Appendix-D to this petition.

affidavit also establishes

- That all rights and duties vested in the Secretary of

Labor by the FECA (for the geographic area involved)

have been exclusively delégated to the affiant therein.

- That petitioner's January 19, 1985 election to receive

OPM annuity instead of FECA injury compensation

can be changed by petitioner at any time at petitioner's

sole discretion.

- That all FECA claimants (such as petitioner) have

the right to change election of benefits from retirement

to compensation at any time retroactively or

prospectively.

It is thus established that the official determination of

the person to whom all rights and duties vested in the

Secretary of Labor by the FECA have been delegated; that

petitioner indisputably has entitlement to the compensation

payments between November 25 1984 and April 7, 1988, and

is entitled at any time to claim those compensation payments

by simply electing to do so.”

On or about February 28, 1991 petitioner informed

DOL that he elects to receive the FECA compensation

payments for a peri inning in January of 1985 through

* A copy of Mr. Allen's April 7, 1988 swom affidavit of

petitioner's entitlement 1s attached as Appendix-E to this petition.

” As a point of clarification, petitioner continues to have that

entitlement even to this date, but no election to receive compensation for a

period of time beyond the date of Mr. Allen's last affidavit has been filed by

petitioner. Therefore, compensation payment entitlement after the April 7,

1988 affidavit is not at issue and should not have been an issue in the

federal circuit, but it is apparent from the Circuit Court's musings that the

Court was presuming some delibcrative function to be necessary to

ascertain petitioner's FECA entit!ements as of the tume of the Circuit's

decision and thereafter.

December of 1987 ( a period well within the time frame for

which the two sworn affidavits of Mr. Allen certifies petitioner

to have entitlement to compensation payments and the right to

receive them at any time at his sole discretion.'° Petitioner

believes that such certified entitlement establishes a property

right in those statutorily conferred entitlements. The Dallas,

Texas District Director and his subordinates simply did not

respond in any way to petitioners election of benefits, despite

several follow up letters, the last of which specifically inquired

as to whether or not there was anything else that DOL

required petitioner to do or any further information DOL

needed from petitioner. DOL simply would not respond.

Finally, petitioner brought suit seeking to have the U.S.

District Court for the Eastern District of Arkansas ( "EDAR")

compel the performance of a duty unlawfully withheld or

unreasonably delayed. No one from the Dallas OWCP office

or anywhere else within the chain of delegation of authority

for administration of the FECA ever, to this day, has offered

any reason for not implementing petitioner's election of

benefits. However, there came a time during the course of

litigation when an attorney in the Dallas DOL Solicitor's office

and a confederate in the Washington Office (not within the

delegation of authority chain, although she falsely stated in her

declaration that she was) presented false information to both

the District Court and to the Eighth Circuit, designed to justify

the withholding of petitioner's money on a "clean hands" basis.

The Judiciary embraced those falsehoods as fact and approved

of the withholding of petitioners money on a stated rationale

that petitioner had failed in an obligation to complete some

forms and in doing so had deprived the DOL of information it

needed to accomplish the implementation of petitioner's

election of benefits. The truth is, that the allegation of there

'° (less reimbursement to OPM for any annuity

payments received during that period)

being an obligation to fill out the subject form was a false

representation of counsel. The allegation of there being some

need for information upon which the DOL would predicate

some deliberative activity in order to disburse what they had

already certified as petitioner's entitlement with right to elect

to receive it at petitioner's sole discretion, was false.

The fraud which the DOL attorney and her

confederate perpetrated was almost an exact parallel to the

government behavior condemned by the U.S. District Court

for the District of Utah in Bulloch v. United States, 95 F.R.D.

123. In that case, the government's false and deceptive

misrepresentations and manipulating the process of the court

was judicially condemned as fraud upon the court of the most

egregious nature because the government enjoyed a virtual

monopoly of knowledge in comparison to that independently

available to the plaintiff sheep owners, their attorneys and

indeed, the Court ... Id at 144. Such was also the case here.

What government counsel knew, but the court didn't,

and petitioner was prevented from proving because of the _

government's control of the evidence, was that while there is a

provision in the code of federal regulations at 20 CFR §10.122

which calls for the filing of a certain form known as a CA-8

Form on a bi-weekly basis, that requirement applies only to

current federal employees, and not to those ex-federal

employees who have been separated from service due to

compensable injury. The provision requires current federal

employees to file the CA-8 "claim for continuing

compensation" every two weeks while recuperating, so that

DOL can track their recovery and their eventual return to

work. That provision does not apply to persons who

experience long term disability, and are therefore separated

nid neemains

EL SS ee See e ye

from Federal Employment." At the time of separation from

service, such long term disability persons are specifically

instructed by written instructions to thereafter_not send in that

"claim for continuing compensation (unless specifically

instructed at some future time to do so). Petitioner is such a

long term disability case, and was so specifically instructed to

not send in CA-8 forms anymore unless requested. The

government admits that it did not either solicit such a

submission or furnish such a form to be filled out in

conjunction with the subject election of benefits (even when

petitioner sent them a letter specifically asking if there was

anything else he should do or any other information they

needed in order to process his election of benefits). There is

no evidence of record that expectation of a CA-8 Form was a

condition of mind or otherwise was the motivation for inaction

of the Claims Examiners. But, the government attorney lied

to the court and told the court that petitioner was obligated to

have been sending in a CA-8 Form every two weeks; had

failed to do so; and accordingly had obstructed DOL's ability

to honor his election of benefits by depriving them of

information they needed in order to administer the FECA.

The proof of fact that those attorney representations were

false was not available at the time, but has since become

available in the form of official statements made by DOL

superiors of the attorney and her confederate, to the Office of

Management and Budget in a White House meeting.

DOL counsel had pulled an eleventh hour maneuver at

the District Court level by presenting a sworn declaration from

Ms. Susan Rydalch of the DOL Washington Office which was

'! When a person is separated, they are no longer “federal

employees”, but instead become "members of the public”. See definitions

of the distinction between the two classes of persons in the Paperwork

Reduction Act to be discussed infra.

false, and both the district court and the court of appeals relied

on it as authoritative. In the declaration, Ms. Rydalch swore

that she was in a supervisory capacity over the OWCP claims

examiners who had handled petitioner's case, and that is false.

Ms. Rydalch was in fact, a supervisor, but not one with

authority over claims officials as she attested under oath. Ms.

Rydalch supervised a staff of technical writers in the

Washington Office, and in fact is not anywhere within the line

of delegation of authority for administering the FECA.”

Answers to interrogatories by Ms. Rydalch's superiors in the

Washington Office in a later separate litigation establishes her

real organizational assignment, contrary to what she said in

her declaration. On the strength of Ms. Rydalch's false

representation, the Federal Circuit looked upon her as an

expert in FECA claims administration, and as corroboration of

the DOL attorney's fraudulent assertion that persons in

petitioner's circumstance were required to fill out the form

CA-8 when making an election of benefits. Subsequent to the

incorrect holding of the Federal Circuit in this matter, official

statements at the OMB in the White House were presented

there by Ms. Rydalch's superiors which state conflicting

information to that urged upon the Court by Ms. Rydalch.

One of the DOL officials making that White House

Presentation was Mr. Dennis Mankin, Executive Assistant to

2 The delegations of authority for administering the FECA are in

writing, and run from the Secretary of Labor to the Assistant Secretary for

Employment Standards, thence to the Director of the Office of Worker's

Compensation Programs, and thence to the Regional Directors for Worker's

Compensation Programs. The written delegation specifically states that the

relationship between the Regional Directors for Workers Compensation

Programs and the Director of the OWCP in Washington is a direct one, (not

delegated through any subordinate line or staff organization). Thus Ms.

Rydalch's assertion that she has line authority over FECA administration is

f.!se. See also the Allen affidavit attesting that all nghts and duties vested

in the Secretary of Labor for the administration of the FECA have been

delegated to him.

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the Director of Office of Worker's Compensation Programs,

and his statement in conflict with his subordinate, Ms.

Rydalch, are certainly the more authoritative.'* As part of Ms.

Rydalch's deception she had presented what purported to be a

valid internal directive stating that persons making an election

of benefits must submit a CA-8 Form. In reality, that directive

had been a temporary trial process instituted for a one year

test period some twelve years earlier, and had contained a

mandate that it expired one year from date of issue and that it

was to be destroyed by all recipients upon that expiration.

Ms. Rydalch simply had not complied with the destruction

order, and had squirreled away a copy of that directive in her

private collection, and then pulled it out eleven years after its

expiration and foisted it off on the courts as a current policy of

the DOL/OWCP.

The nation is gripped at this time in a struggle to

determine whether the President and or Monica Lewinski and

or Vernon Jordan made false sworn statements in a civil

litigation, and a prosecutorial philosophy that to do so

constitutes perjury, and if that perjury is suborned, the person

who suborned it is guilty of obstruction of justice. Yet, there

is no judicial interest in the Eighth Circuit in the false

statements of the DOL attorney and Ms. Rydalch, nor in the

attorney's collaboration with Mz. Rydalch to elicit support for

the attorney's false representations to the Court.

The U.S. District Court for the Eastern District of

Arkansas ruled that it lacked jurisdiction over petitioner's

'3 Also participating in the White House meeting was Cornelius

Donoghue, Deputy Associate Solicitor in the Office of the Solicitor of

Labor. His support to the official presentation of the truth that the CA-8

Form had theretofore been applicable only to currently employed Federal

Employees 1s certainly more authoritative than the contrary false statements +

invented by the staff attorney in the Dallas Texas Solicitor's Office.

complaint because of a statutory withdrawal in the FECA.

The District Court reasoned that the only way petitioner could

attack that holding, was to show either a conflicting

constitutional mandate to the (alleged) statutory withdrawal,

or to show some conflicting statutory mandate to the (alleged)

statutory withdrawal. Petitioner took the matter on appeal to

the Eighth U.S. Circuit Court of Appeals, but did not pursue

the conflicting constitutional provision or the conflicting

statutory mandate theory. Instead, petitioner challenged the

very existence of any statutory withdrawal of jurisdiction for

judicial review pertaining to persons in petitioner's

circumstance. Petitioner is well aware that in 1945, the

Congress of the United States passed emergency legislation to

deal with some 800 special bill requests then pending to grant

injury compensation to non citizens of the United States who

had been in the employ of the U.S. Government and were

taken prisoner and interred in Japanese Concentration Camps.

The congreSsional intent that it be applicable only to non

citizens injured on foreign soil was emphatically discussed on

the floor of the House of Representatives, and may be seen at

pages 7815 -7817 of the Congressional Record for July 19,

1945. The floor manager for the bill assured the House that

the intent was for the provisions of Section 4 of P.L. 79-161,

59 Stat 503, to apply only to non citizens of the U.S. injured

on foreign soil. The essence of said section 4 amended

Section 42 of the FECA in such a way as to extend coverage

to such non citizens in overseas locations, but with significant

variationto the injury compensation entitlements from those

enjoyed by U.S. Citizens. First, instead of the ministerial duty

to pay compensation according to the hard and fast formula of

compensation statutorily prescribed for U.S. Citizens, the

amount to be paid to the non-citizens was left to the discretion

of the Administrators of the FECA. Secondly, whatever such

administration awarded to these non citizens, was made final

and conclusive with no right of judicial review. The original

a aS

codification of that amendment was properly codified in the

United States Code in a section clearly caption as pertaining to

overseas employees. At a later time, in a general

recodification, the codifiers moved the provision and made

slight modifications to the language in such a way that gave

the appearance of applicability to all FECA recipients. This

Court, in Lindahl v. Office of Personnel Management, 470

U.S. 678 , 779-80 & i..13 made dicta comments about the

general premise that Congress has the right to preclude

judicial review when it sees fit, and petitioner here presents

nothing in challenge of that judicial holding. As an example of

an instance where congress had done so, the Court cited the

FECA as a statute where Congress had used unambiguous and

comprehensive language to declare the intent to preciude

judicial review. Petitioner argued in the Eighth Circuit that

while there is no doubt that this Court had cited the FECA

preclusion of review as model language, this Court had said

nothing that should be construed as overruling the intent

stated in the Congressional Record that the provision of

section 4 of P.L. 79-161, 59 Stat 503 was intended to apply

only to non citizens of the U.S. injured on foreign soil.

Petitioner argued that other courts having misconstrued the

dicta of this court does not rise to the level of overcoming that

congressional intent. Petitioner argued that it is not within the

power of the codifier of the U.S. Code to change the impact

of a statute from that declared to be the intent of the statute by

the Congressional action. Petitioner argued that no session of

Congress has ever enacted a statute precluding judicial review

of U.S. Citizens under the FECA. Petitioner argued that no

President has ever signed into law a statutory preclusion of

judicial review for U.S. Citizen FECA claimants. Petitioner

argued that therefore there is no statutory preclusion of

judicial review applicable to U.S. Citizens under FECA, and

that accordingly the U.S. District Court for the Eastern

District of Arkansas erred when it held that it lacked

jurisdiction to review petitioner's complaint due to statutory

preclusion of review.

The Eighth Circuit never examined, commented upon

or otherwise addressed any of the just mentioned arguments.

Instead, the Eighth Circuit_began with the rationale that "since

there is a preclusion of review", and then went to a conclusion

that petitioner had not shown either a Constitutional mandate

of a conflicting statutory mandate sufficient to override that

(presumed) statutory preclusion of review. The Circuit Court

was sO committed to a view contrary to petitioner's claim that

there actually has never been a statutory withdrawal of judicial

review applicable to U.S. Citizen FECA claimants that the

court would not even entertain petitioner's argument, and

instead treated the appeal as if petitioner was asserting a claim

of "circumstance sufficient to overcome" statutory withdrawal

rather than the real appeal that there actually "is no" statutory

withdrawal applicable to U.S. Citizen FECA claimants.

Petitioner asserts that the Office of Law Revision Counsel

erred in codification of the non citizen withdrawal of judicial

review, and there has since been a judicial accretion applying

that statutory withdrawal to U.S. Citizens as well. Petitioner

implies no criticism of the judicial presumption that the

withdrawal applied to all FECA claimants, where heretofore

the distinction has not been prensented to the judiciary for

determination. But, when petitioner did bring that distinction

for determination of the law, petitioner was entitled to have

the law examined and properly ruled on, and not to be barred

from any consideration whatsoever simply in preservation of

past judicial habit. The Circuit Court owed petitioner an

examination of his basis for appeal as a matter of due process,

and that was simply another element of denial of due process

with which petitioner has been burdened throughout these

matters. Actually, the Eighth Circuit's holding was that (on

nothing stronger than the DOL attorney's assertion of a

iz Sa Tow a Eat RN Sn NEP. 0 EB le ELS Sacha RAI BE LM AE AME AAS DEANE LH

petitioner obligation to file bi-weekly CA-8 forms and an

alleged DOL "need" for the information on them) the DOL

needs the information on the CA-8 forms .... and that

therefore DOL requiring such information "does not violate a

clear statutory mandate" which settles nothing about_whether

there actually is a statutory withdrawal of judicial review

applicable to U.S. Citzen injured employees. Then somehow,

in a leap of logic that is beyond petitioners imaginative

powers, the Eighth Circuit then "affirmed" the Eastern District

of Arkansas holding (that there was an existing preclusion of

review), without addressing in any way where the court found

statutory content, legislative history or any other information

at odds with the question raised on the floor of the House as

to whether the section under discussion applied only to non

citizens injured on foreign soil, and the assurance by the floor

manager of the bill that applicability only to non citizens was

the intent of the section.

Petitioner brought the matter of the Eighth Circuit's

failure to decide the matter brought on appeal, before this

court's October 1994 term on petition for Writ of Certiorari

to the United States Court of Appeals for the Eighth Circuit,

in case # 94-862. This Court denied Certiorari. That ended

petitioner's hopes of successfully electing the benefits DOL

has repeated certified by sworn affidavit to be his due.

The matter was not further approachable, until the

proof of fact that resulted from the DOL meeting with OMB

at the White House was later obtained through a Freedom of

Information Request. That proof of fact established, by direct

statements presented there by both superiors of the DOL

attorney, and by superiors of Ms. Rydalch, that the statements

made by attorney averment and the Rydalch sworn declaration

were false. The holding of the Eighth Circuit used language

clearly excerpted from those false statements of the DOL

attorney. Thus, the doctrine of Error Coram Nobis arises.

To reach that avenue of relief, which is the only

avenue of relief available for correction of this manifest

injustice, petitioner had to find a way to get the U.S.

Department of Labor to tell the truth about the applicability of

the form CA-8 being only to current federal employees and

not to persons such as petitioner who are "former" federal

employees as the DOL attorney had told the Circuit Court.

The Paperwork Reduction Act, 44 USC §3501 et seq

provides inter alia, that no agency of the Executive Branch

may require ten or more members of the public per year, to fill

out any form without first submitting that form for OMB

approval and successfully gaining assignment of an OMB

approval number, and the form must display that OMB

approval number to be considered legitimate. The statute

provides (under the caption of "Public Protection") that no

person may be penalized in any way for failure to or refusal to

fill out any form that does not display an OMB approval

number. The “public Protection clause" does not apply to

current federal employees, but does apply to retired or other

former federal employees. (See definitions at 5 CFR

§1320.7(n).) In sum then, if the CA-8 Form which had no

OMB approval number (at that time), and was in fact (as the

DOL attorney represented to the Circuit Court) being used in

a manner that required all FECA corpensation claimants

including those on long term disability who were no longer

federal employees, to fill out the CA-8 Form, this would

certainly be more than ten "members of the public (i.e. former

federal employees) being required to fill out the form.

According to the U.S. Department of Labor "OWCP Annual

Report to Congress FY-1994" (particularly table A-1 at page

34 therein), there were 51. 679 people on long term disability

during the FY-1991 period. No one can deny that is more

than ten people per year, and if the DOL was really requiring

all of those people to spontaneously send in a CA-8 Form

every two weeks, it would have been soliciting, or requiring

one million, three hundred forty three thousand, six hundred

fifty four reports per year without OMB approval, a clear

violation of the paperwork reduction act. Petitioner has

always maintained that they really were not doing that, but the

| DOL attorney sold the Circuit Court a false bill of goods that

such was the practice, and that petitioner was guilty of

violation of such requirement and thus did not have clean

hands in the litigation at bar. The Eighth circuit gave its

blessing to the deprivation of petitioner's benefits as a product

of that story. The definitions in the OMB regulations gives

one of the definitions of "penalty" the "withholding of any

entitlement or benefit". Clearly petitioner had been "penalized"

by the withholding of the benefits already certified by sworn

DOL affidavits to be his entitlement. While the Circuit Court

seems to have been of a mind that petitioner had been asked to

fill out the CA-8 form_and had refused, that simply is

inaccurate (even though under the paperwork reduction act,

refusal to fill out such a bootleg form with congressionally

mandated immunity from penalty would have been petitioner's

| right) In truth, petitioner was never asked to fill out that form

in conjunction with this election of benefits. In fact it should

be noted that petitioner, as a last ditch effort to exhaust

: administrative avenues before litigating the matter, specifically

asked DOL, in writing, if there was any further information he

| needed to provide, or any further action he should take in

order to have the DOL move on his election of benefits, and

DOL simply would not answer.

3 phen nae eae epae 4

As just stated, petitioner knew that DOL does not

really require CA-8 forms from former federal employees. In

the actual circumstance that petitioner knew to exist, the CA-8

form really did not require an OMB approval number because

it was used only on current federal employees, and forms used

only to collect information from current federal employees are

exempt from the PRA. However, petitioner was faced with

the contrary false representations by the DOL attorney and

the judicial reliance on those false representations. Therefore,

petitioner informed OMB that DOL officials had asserted that

it was requiring the CA-Form of tens of thousands of

members of the public and that petitioner had researched the

matter and determined that not only was no OMB approval

number displayed on the form, none had ever been assigned by

OMB nor even applied for by DOL. OMB challenged DOL

on the possibility of a PRA infraction. A contingent of DOL

officials made a visit to the White House on September 11,

1985 at approximately 2:00 PM and filed an official

government document with the OMB explaining that there

had been no use of the CA-08 form involving anyone other

than current federal employees, and thus the PRA had not

been violated.'* Petitioner agrees, but that is not what the

DOL attorney and her confederate told the Eighth Circuit and

what that court relied on. Of note is the fact that the

contingent of DOL officials presenting the paper to the OMB

included the highest ranking OWCP officials in DOL, as well

as a representative of the Solicitor of Labor's office. There is

therefore no possibility that the contrary allegations of DOL

counsel and her confederate to the Eighth Circuit are more

authoritative.

The information presented to the OMB is absolutely

contradictory to allegations made in the courts by the DOL

attorney.

- DOL told OMB that the CA-8 form is (as of that

point in time and theretofore) required only of active

ae copy of that DOL statement to OMB is attached hereto as

Appendix-F.

duty federal employees (just as petitioner had asserted

in judicial proceedings).

- DOL told OMB that when a person is placed on long

term disability and separated from Federal Service,

he/she is given specific instruction to not send in the

CA-8 Form anymore (just as petitioner had asserted in

judicial proceedings)

- DOL asked OMB to assign an OMB approval

number to the CA-8 Form for subsequent use about

200 time per year in unusual circumstances where

DOL has wrongfully withdrawn FECA benefits and is

obligated to restore them (a circumstance which has

nothing whatsoever to do with petitioner or with the

litigation at issue).

Petitioner has been deprived of money that has

already been officially determined to be his entitlement and

thus is being deprived of a property right. Petitioner has been

wrongfully accused of, and through judicial error adjudged to

have been guilty of, either willfully withholding or negligently

failing to provide information to the DOL which it needed.

Petitioner has done absolutely nothing wrong and has failed in

absolutely no obligation. DOL, since succeeding by

fraudulent representation in convincing the judiciary in the

Eighth Circuit that it "needed" the information on the CA-8

Form from all FECA entitlees every two weeks, has invoked

Res Judicata status for the Eighth Circuit resulting utterance

that "DOL needs the information". Where the judiciary has

been duped by false representation, and the incorrectness of

that representation has been irrefutably established, justice

demands that the fruit of that misrepresentation be officially

quashed, lest the practice of lying to the courts in order to

illicitly gain an improper ruling becomes profitable and

worthwhile to the party making such false representations.

Petitioner filed a petition with the Eighth Circuit, for

extraordinary writ in the nature of Coram Nobis and Audita

Querela. Petitioner provided clear and convincing evidence of

the falsity of the representations made by DOL counsel there,

and of the fact that the prior Eighth Circuit judgment was

based solely on the Court's reliance on those false DOL

attorney assertions. Four work days after the petition was

filed in the Eighth Circuit, petitioner was sent a notification by

the Clerk stating that he had been instructed by the court to

enter a denial of the petition. No logic for the denial or any

other information about the court's action or reasoning

process, or indeed the identity of the judge or judges who had

so instructed him was provided to petitioner.

-IIl-

DEPRIVATION OF DUE PROCESS

AND EQUAL PROTECTION UNDER THE LAW:

Petitioner is a pro se litigant, and as such is subjected

to deprivation of both due process and of equal protection

under the law by Eighth Circuit appellate procedures. Rule 34

of the Federal Rules of Appellate procedure provides that “all

parties” are entitled to oral argument except where one of

three conditions exist. The first two, frivolity of the case and

recent decisions dispositive of the issues are not germane to

this claim of deprivation of due process and equal protection.

The third condition allowing exception to oral argument

entitlement is that oral argument may be withheld if under

local rule, a three judge panel "after examination of the briefs

and record" unanimously decides that there is such sufficiency

of the briefs or the record, that oral argument is not needed.

In that event, the FRAP requires that any such local rule, as a

minimum standard, also provides "any party" an opportunity

to file a statement setting forth reasons why oral argument

should be heard. That is the process that is due. It has been

denied petitioner (as well as other litigants)

Clearly the minimum standard set by this Court,

requires that deviation from the general rule of entitlement to

oral argument, be protected from unilateral opinion of a lower

court jurist. It may only be invoked by unanimous action of

the three judge panel, and not even by a majority.

Because the operating practice actually employed by

the Eighth Circuit is so far from the minimum standard set

forth by FRAP 34, petitioner took the precaution of

discussing the intent to lay this question before the Supreme

Court in a telephone conversation with the Chief Deputy Clerk

on May 11, 1998 to make certain that what petitioner

describes hereinafter is an accurate description of the actual

practices of the Eighth Circuit. The actual practice divides

into separate procedures for represented parties and pro se

parties.

The practice for represented parties involves a person

in the clerk's office (not a Federal Judge) making the decision

about whether oral argument is to be granted, and a

suggestion of allocated time. Notice is then sent out to the

representatives, who then have an opportunity under local

rules (but not specifically stated in the notification) to object

to the withholding of oral argument and to state the rationale

for said objection. The objection to deprivation of oral

argument is then decided by one or more judges. The Chief

Deputy Clerk hastened to clarify that one of the panel judges

may decide to override the clerk's office decision and want to

hear oral argument even without a motion for an override.

Thus, where Rule 34 is emphatic that the decision to withhold

oral argument i s not even permissible by panel majority

without unanimity of a three judge panel, the Eighth Circuit: -

allows a person who is not even a Federal Judge to unilaterally

make that decision and the only time it is then overcome is if

one or more judges of a panel elects to override that decision.

(The Chief Deputy Clerk seemed to be impressed by the fact

that such judicial override could be exercised by a single

judge.) The practice in the Eighth Circuit therefore

undeniably deprives litigants before it the process prescribed

by rule 34 to be due “all parties". It follows that an internal

practice which deprives parties of the minimum standard set

by FRAP 34 is a deprivation of due process.

-IV-

DENIAL OF EQUAL PROTECTION UNDER THE

LAW

As stated above, the process for litigation before the

Eighth Circuit is distinctly different for represented parties

and for pro-se parties. While rule 34 declares that "all parties

are entitled to oral argument unless...", the practice in the

Eighth circuit is that "all parties except pro-se plaintiffs are

entitled to oral argument unless..."

Pro-se plaintiffs are categorically removed from

consideration for the oral argument calendar and scheduled for

decision. There is no consideration of the sufficiency of the

briefs or sufficiency of the record, even by the unilateral

decision of the clerical person or staff attorney, much less by a

three judge panel. Pro-se plaintiffs just do not get oral

argument and that is that. The Chief Deputy Clerk made

much of an assertion that there had been a few cases in her

memory where a pro-se plaintiff was allowed oral argument,

and that was seemingly looked upon as evidence that all is

well. It is not elear just what "rare circumstance” might give

rise to a pro- se plaintiff being allowed oral argument.

The minimum standard specified in rule 34 is that any

local rule allowing for three judge unanimous deviation from

the oral argument entitlement must at least provide notice to

the parties of the decision to withhold oral argument and must

as a minimum, allow an opportunity for the parties to argue in

favor of oral argument. As stated above, the practice in the

Eighth Circuit does, for represented parties, involve

notification of ( the Clerk's office --- not a judicial panel) first

impression against oral argument to the parties, and an

Opportunity for the parties to argue in favor of an oral

argument opportunity. Not so for a pro-se litigant! A pro-se

litigant gets neither a notification of being scheduled as a non

argument Case, nor an opportunity to present a showing of a

need for oral argument. The pro-se plaintiff is simply sitting

there waiting to be notified of the argument calendar, when —

out of the blue he gets a decision. Not only does the pro-se

litigant thus experience deprivation of the process which has

been set out as "due" by this court with congressional consent,

but such litigant is so deprived simply because he is self

represented, without any consideration of the factors of

"frivolity", "recently decided issues", "sufficiency of the briefs"

or "sufficiency of the record". This court, with congressional

approval has described a minimum standard that is withheld

from pro-se litigants because they are pro-se litigants. This is

denial of equal protection under the law, as well as denial of

due process.

Petitioner does not in the least, challenge the right of

courts to make local rules setting forth a process for applying

the provisions of the Federal Rules. Petitioner does however

emphatically and directly attack the legitimacy of any local

rule which either limits, or expands the scope of, the Federal

Rules. The Federal Rules of procedure set down a process

that is due a litigant, and deprivation of that process violates

the Constitution of the United States.

On June 12, 1998, Mr. Justice Thomas appeared in

Hot Springs, Arkansas as a speaker to the Arkansas Bar

Association meeting. Mr. Justice Thomas’ remarks were on

the need for proper preparation and presentation of the case

before the bar of justice. Justice Thomas emphasized the

importance of oral argument as the element that often either

makes or breaks a case. Petitioner would hasten to applaud

Justice Thomas' views in that regard. For pro-se litigants to

be deprived of the opportunity to function in an element of the

litigation process which "may make or break his case" by

effective oral argument, just as represented parties have that

opportunity, not only falls short of the doctrine of equal

protection, it constitutes a gross miscarriage of justice.

-V-

WHY CERTIORARI SHOULD ISSUE

There is no doubt that petitioner is entitled to the

‘ compensation, for the U.S. Department of Labor had

considered that question and decided that petitioner is due the

compensation and has on two occasion provided sworn

testimony that petitioner is entitled to the compensation up to

the instant of those affidavits and may simply call for the

payment of it at any time at his sole discretion. There is no

doubt that petitioner has called for payment of it. There is no

doubt that the Department of Labor was informed of

petitioners desire to have that money disbursed, and those

officials within the chain of delegation of authority pursuant to

the Federal Employee's Compensation Act simply did not

answer Or Cite any reason why it should not respond. Thus, a

citizen of this country is being deprived of a property right by

his government, without justification either established or even

alleged.

Stic hide te sstiabaihe

8 a oO wh st

The false statement of the government attorney are now

known to be false because the highest levels of the Office of

Worker's Compensation Programs along with officials from

the Solicitor of Labor's office and other Department of Labor

entities have, subsequent to the entry of judgment by the

circuit court, appeared at the Office of Management and

Budget and told that White House Office that the Form CA-8

was not theretofore required of anyone other than active duty

federal employees, and that on the basis of that declaration the

DOL had not violated the Paperwork Reduction Act, because

active duty Federal Employees are exempt from the PRA."

That is conclusive proof that the DOL attorney's story to the

Circuit Court about petitioner, a person who has been retired

and removed from Federal service, and placed on "the long

term disability roll", having failed in a duty to provide a CA-8

form, and thus prevented DOL from doing its duty, is untrue.

There is something more important here than the

deprivation of a right to this individual petitioner. This

government attorney, with a co-conspirator has thrown a

monkey wrench in the wheels of the judicial machinery, and

unjustly obtained a favorable ruling by fraudulent behavior.

Mr. Justice Black stated the concept that should apply here,

very clearly and very emphatically in Hazel-Atlas Glass Co. v.

Hartford Empire Co., 322 U.S. 238, to wit:

"...tampering with the administration of justice in the

manner indisputably shown here involves far more than

injury to a single litigant. It is a wrong against the

institutions set up to protect and safeguard the public,

'S The PRA and its implementing regulations makes clear that

“current employees” are excluded from the coverage of the PRA, but that

“retired and other former federal employees” are included as persons from

whom forms may not be required without OMB approval. See 5 CFR

§1320.7(n)

institutions in which fraud cannot complacently be

tolerated consistently with the good order of society"

id @ 246.

and

"We hold therefore that the Circuit Court on the

record here presented had both the duty and the

power to vacate its own judgment and to give the

District Court appropriate direction" id @ 249-250.

The Circuit Court, after vacating the wrongful holding

of fault on the hands of petitioner, should then turn to the

issue which was actually appealed, and consider petitioner's

argument that while the codification of PL 79-161, 59 Stat

503 as enacted by the 79 Congress, Ist Sess on July 28, 1945,

by its placement and use of codification language gives the

appearance of being an across the board withdrawal of judicial

review from all FECA claimants, the statute itself does not

say that, and the legislative history clearly states that it is not

applicable to anyone other than non citizens injured on foreign

soil. This Court's expressed enthusiasm in Lindahl v. Office of

Personnel Management, 470 U.S. 768, 779-80 & n.13 for the

language used to enunciate that withdrawal from judicial

review from non citizen federal employees does not mean that

the language also applies to citizens of the United States,

especially in the face of a clear understanding discussed on the

floor of the House of Representatives that it would apply only

to the non citizen class of persons. That was the issue brought

to the Circuit Court on appeal, and it was not decided; was

not discussed; was not even referred to by the Circuit Court.

Petitioner should have his day in court to have that matter of

law determined. If, as petitioner claims, there is no statutory

withdrawal of judicial review, then the District Court erred in

basing dismissal on the theory that it was precluded from

judicial review by statutory withdrawal, and the Circuit Court

must remand the matter to the District Court to be properly

ie cee cer eam apie de :

tried there. This is the process that was derailed by the

government attorney's success at misleading the Circuit Court

into a belief that petitioner had failed in a duty and thus did

not come to court with clean hands. Upon the clear showing

that those counsel representations were false, and were the

foundation upon which the Circuit Court fashioned its

judgment, petitioner is entitled to have that judgement

vacated, and to have the proper judicial process made

available to him.

In decidi>~ whether or not there ever was any

Statutory action ». sed by congress and signed by the

President withdrawing judicial review from Federal Employee

Compensation Act claimants who are U.S. Citizens, the

parties should be allowed oral argument, as clearly the brief

and the record were not sufficient for the Circuit Court to

fathom the issues involved.

This Court should exercise its supervisory powers to

require that the Eighth Circuit Court of Appeals come into

compliance with Rule 34 of the Federal Rules of Appellate

Procedure.

For the reasons stated above, a writ of certiorari

should issue to review the Judgment of denial by the Eighth

Circuit Court of Appeals of petitioner's Petition for

Extraordinary Writ in the nature of Coram Nobis and Audita

Querela in case # 98-1526 EALR on March 3, 1998.

Dated July 29, 1998

Respectfylly subsnitted,

rald L: Brumley

Petitioner, pro-se

tl ht ae tl PE co Sec

So RII te IAS me dy OR

APPENDIX A

TEXT FROM THE NOTIFICATION

BY THE CLERK OF THE SUPREME COURT

OF MR. JUSTICE THOMAS' GRANT

OF ENLARGEMENT OF TIME

Mr. Gerald L. Brumley

P.O. Box 190607

Little Rock, AR 72219

Re: Gerald L. Brumley

v. United States Court

of Appeals for the Eighth

Circuit

Application No. A-886

Dear Mr. Brumley:

The application for an extension of time

within which to file a petition for a

writ of certiorari in the above-entitled

case has been presented to Justice

Thomas, who on May 28, 1998, extended the

time to and including July 1, 1998.

This letter has been sent to those

designated on the attached notification

list.

Sincerely,

WILLIAM K. SUTER, Clerk

Melissa A. Blalock

Assistant Clerk

APPENDIX B

TEXT FROM

JUDGMENT OF DENIAL

FROM THE

U.8. COURT OF APPEALS

FOR THE EIGHTH “CIRCUIT

No. 98-1526EALR

In re: *

Gerald L. Brumley *

* Petition for

* Extraordinary Writ

Petitioner, *

JUDGMENT

Petition for Extraordinary Writ

of (sic) has been considered by the court

and is denied.

= March 3, 1998

Order entered at the Direction of the

Court:

Michael E. Gans

Clerk, U.S. Court of Appeals, Eighth

Circuit.

B-|

APPENDIX C

TEXT FROM PER CURIAM DECISION

OF THE U.S. COURT OF APPEALS

| FOR THE EIGHTH CIRCUIT

; IN CASE # 93-3051

UNDERLYING PETITION FOR

ERROR CORAM NOBIS RELIEF

ene are

No. 93-3051

Paseke ee

i Gerald L. Brumley, *

} +

i Appellant, >

Vv. * Appeal from the

* United States

United States * District Court

: Department of Labor, * for the Eastern

; * District of

Appellee. * Arkansas

(PUBLISHED)

Submitted: May 9, 1994

i Ni eh Disc MGA Hn SE ini mR Oty i

Filed: June 16, 1994

Before BOWMAN, LOKEN, and HANSEN, Circuit

Judges.

PER CURIAM.

Gerald Brumley appeals from the district

court's’ order dismissing his suit under

the Federal Employees Compensation Act

FECA), 5 U.S.C.§ 8101. We affirm.

Brumley filed a pro se complaint alleging

that the Department of Labor (DOL),

through the Office of Workers

Compensation Programs (OWCP), failed to

disburse FECA benefits for his

disability. According to the complaint,

OWCP accepted Brumley's claim of total

disability and required him to choose

either FECA benefits or Federal Employees

Retirement Act (FERA) benefits. Brumley

originally elected FERA annuity payments

for the period of January 1985 through

December 1987. Brumley then elected to

receive, retroactively, FECA benefits for

the same period, less reimbursement to

the Office of Personnel Management (OPM)

for the distributed FERA payments.

Brumley alleged that OWCP did not

acknowledge the retroactive election

despite his successive demands. The DOL

answered that Brumley did not comply with

regulatory requirements in seeking to

retroactively change FERA benefits to

FECA because he did not complete form CA-

8, required by 20 C.F.R. §10.122, on

which a claimant must report his

earnings.

The district court dismissed Brumley's

claim for lack of subject matter

jurisdiction. The court held that 5

U.S.C. § 8128(b) precluded review of

‘The Honorable Elsijane Trimble Roy,

Senior United States District Judge for

the Eastern and Western Districts of

Arkansas.

C=2

ee Be se ee as ter Le

hater ae,

RECS Se OOS BOER hae abba ke Ri

final and conclusive actions of the

Secretary unless DOL violated the

Constitution or a clear statutory

mandate. The district court found that

DOL did not violate a clear statutory

mandate by requiring an earnings report

and, therefore, the court lacked

jurisdiction to review the agency's

regulatory requirement.

Section 8128(b) states: "The action of

the Secretary or his designee in allowing

or denying a payment. . . is (1) final

and conclusive for all purposes and with

respect to all questions of law and fact;

and (2) not subject to review by another

official of the United States or by a

court by mandamus or otherwise." 5 U.S.C.

8128(b). The plain meaning of section

8128 shows Congressional intent "to bar

judicial review altogether." Lindahl v.

j 470 U.S.

768, 779-80 & n.13 (dictum referring to

section 8128(b) as a model preclusion-of-

review statute); see also, Waters v.

United States, 458 F.2d 20, 22 (8th Cir.

1972). However, it has been held that the

preclusion-of review statute cannot serve

to immunize DOL from judicial review when

its actions violate the Constitution or a

clear statutory mandate. See Woodruff v.

United States Dep't of Labor, 954 F.2d

634, 639 (llth Cir. 1992); Qwens vy.

Brock, 860 F.2d 1363, 1367 (6th Cir.

1988);

Cleland, 604 F.2d 1075, 1078 (8th Cir.

1979) (regarding Veterans Administration

preclusion-of-review statute) .~

Brumley argues that 5 U.S.C. § 8105

does not empower DOL to require earnings

reports or make wage earning capacity

C=-3

determinations and, therefore, that DOL

violated a clear statutory mandate by

requiring him to disclose his earnings.

Section 8105 does not expressly mention

earning capacity or earning reports.

Section 8105(a) defines FECA benefits:

"If the disability is total, the United

States shall pay the employee during the

disability monthly monetary compensation,

equal to 66-2/3 percent of his monthly

pay. ..." 5 U.S.C. § 8105(a) (emphasis

added).

"Disability," in turn, is defined as "the

incapacity, because of employment injury,

to earn the wages the employee was

receiving at the time of injury." 20

C.F.R. § 10.5(17). Therefore, the DOL

needs the earnings information required

on form CA-8 to assess an essential

element of the claimant's continued

disability: wage earning capacity. Thus,

given its broad policy-making authority

to administer and enforce FECA, the DOL's

regulatory interpretation of section

8105(a) does not violate a clear

statutory mandate. See Woodruff, 954 F.2d

at 640. As a result, we agree with the

district court that it lacked subject

matter jurisdiction. Last, we deny

Brumley's motion for oral argument.

Accordingly, we affirm the judgment of

the district court.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH

CIRCUIT.

tatters obi

MAD 9 wie meh

APPENDIX D

TEXT OF NOVEMBER, 1984

AFFIDAVIT OF FRANK ALLEN

I, Frank E. Allen, being sworn do say and

depose that:

1. I am Frank E. Allen, Deputy

Commissioner, of the Office of Workers'

Compensation Programs of the United

States Department of Labor, and that:

2. All rights and duties vested in the

Secretary of Labor for the administration

of the Federal Employees' Compensation

Act (5 U.S.C. 8101, et seg.) have been

delegated to me and that these

declarations are based upon my personal

knowledge or upon information furnished

to me in my official capacity.

3. The records of the Office of Workers'

Compensation Programs show that Gerald L.

Brumley reaffirmed his election of

benefits on October 7, 1984, which was

received in this office on October 17,

1984.

4. That the Office of Workers'

Compensation Programs contacted the

Office of Personnel Management on October

18, 1984, to terminate Gerald L. Brumley

and to advise the Office of workers'

Compensation Programs of the amount to be

reimbursed.

5. The Office of Personnel Managememt so

notified this office that they would

terminate Gerald L. Brumley from their

rolls effective October 31, 1984.

D-1

6. Gerald L. Brumley was eligible to

receive Office of Workers' Compensation

Programs benefits beginning November l,

1984, without fear of dual payment.

7. The Office of Workers' Compensation

Programs will issue a payment on November

26, 1984, to cover the period November l,

1984, to November 24, 1984.

8. Further, the Office of Workers'

Compensation Programs has processed

paperwork to begin Gerald L. Brumley on

the periodic rolls effective November 25,

1984, and continuing thereafter each

twenty-eight (28) days for as long as

Gerald L. Brumley is found to be disabled

under the Federal Employees' Compensation

Act.

9. Upon verification by the Office of

Personnel Management of the amount of

benefits they paid to Gerald L. Brumley

from November 4, 1982, until October 31,

1984, the Office of Workers' Compensation

Programs will reimburse that agency for

all monies paid by them and forward the

balance to Gerald L. Brumley.

IN WITNESS THEREOF, Frank E. Allen

executed this 7th day of November, 1984.

FRANK E. ALLEN

Deputy Commissioner

Office of Workers'

Compensation Prcgrams

Subscribed and sworn to before me

this 7th day of November, 1984

Goldie Smith

NOTARY PUBLIC

My commission expires 3/9/88

al i eee en eet Re

APPENDIX E

TEXT OF APRIL, 1988

AFFIDAVIT OF FRANK ALLEN

| STATE OF TEXAS _)

) )

COUNTY OF DALLAS )

I, Frank E. Allen, being sworn do say

and depose that:

1. I am the District Director, District

16, Office of Workers' Compensation

Programs, Employment Standards

Administration, United States Department

of Labor.

2. All rights and duties vested in the

Secretary of Labor for the administration

of the Federal Employees' Compensation

Act (FECA) (5 U.S.C 8101 et seq.) have

been delegated to me and the declarations

herein are based upon my personal

knowledge or upon information furnished

to me in my official capacity.

3. The records of the Office of Workers’

Compensation Programs show that Gerald L.

Brumley filed a claim for benefits under

the FECA on August 14, 1974 on the basis

of an occupational disease of emotional

problems resulting from stress. On

February 12, 1975 the Office of Workers'

Compensation Programs (OWCP) accepted the

condition of reactive depression and

commenced payment of compensation for

this disability on February 13, 1975. On

January 19, 1985 Mr. Brumley elected to

receive Civil Service retirement benefits

in lieu of OWCP compensation. However, he

can at any time change this election.

4. Even though Mr. Brumley is currently

receiving Civil Service retirement

benefits, he remains entitled to medical

treatment benefits under FECA as long as

he has a work-related condition.

5. Under the FECA, entitlement to

benefits is reviewed periodically.

Assessments of degree of disability,

potential for rehabilitation, and

continued entitlement of compensation at

the same rate or a reduced rate take into

consideration impairments arising from

work-related conditions as well as pre-

existing impairments.

6. Mr. Brumley was medically evaluated in

1979 and 1980. In a report prepared by

Dr. Charles Betts; dated January 12,

1979, Dr. Betts' diagnostic impression

was that Mr. Brumley had a borderline

psychotic personality disorder with some

depression and conversion hysteria

(conversion of his right arm), and some

hysterical aphasia. Based upon Dr. Betts'

report, the additional condition of

disability due to the conversion hysteria

affecting the right arm was accepted by

OWCP.

7. Because assessments of FECA disability

take into consideration both impairments

arising from work-related conditions and

pre-existing impairments, the limited use

of the right arm and the medical records

documenting this limitation are necessary

for an accurate determination of

continuing disability.

E-2

8. Removal of all references to Mr.

Brumley's right arm would have the

following effect on the current

determination of his disability:

a. Since the conversion hysteria

affecting his right arm was a part of his

psychiatric condition, removal of all

reports about his right arm would also

remove reports about his psychiatric

condition which served as the basis for

his continued entitlement to FECA medical

benefits. Moreover, removal of all

references to the right arm would have

the effect of modifying the basis of the

disability determination itself.

b. Inasmuch as claimants have the right

to change election of benefits from

retirement to compensation at any time

retroactively or prospectively, the

information pertaining to the right arm

is important_in consideration of entitle-

ment to FECA disability compensation.

In witness whereof, Frank E. Allen,

executed this 7th day of April, 1988.

FRANK E. ALLEN

Director, Office of

Workers' Compensation

Programs

Subscribed and sworn to before me this

7th day of April, 1988.

JoAnn Murrell

Notary Public

My commission expires: 3-8-90

APPENDIX F

pee ee

TEXT FROM

DEPARTMENT OF LABOR

WRITTEN STATEMENT

TO THE

OFFICE OF MANAGEMENT & BUDGET

Supporting Statement for Clearance of

Claims Forms CA-7 and CA-8

1. The Office of Workers' Compensation

Programs administers the Federal

Employees' Compensation Act (FECA). The

Statute provides for the payment of

benefits for wage-loss and/or for

permanent impairment to a scheduled

member, arising out of a work related

injury or disease. The Act outlines the

elements of pay which are to be included

in an individual's pay rate, and sets

forth various other criteria for

determining eligibility to and the amount

of benefits, including: augmentation of

basic compensation for individuals with

qualifying dependents; a requirement to

report any earnings during a period that

compensation is claimed; a prohibition

against concurrent receipt of FECA

benefits and benefits from OPM or certain

VA benefits; a mandate that money

collected from a liable third party found

responsible for the injury for which

compensation has been paid be applied to

benefits paid or payable. These forms

request information, allowing OWCP to

fulfill its statutory requirements, for

period of compensation claimed (e.g., the

pay rate, dependents, earnings, dual

benefits and third party information).

The CA-7 is used for an initial claim for

F=3

compensation; the CA-8 is filed for

continuing compensation. The front page

is completed by the claimant. On the back

page, the employing agency verifies the

accuracy of the claimant's statements and

provides relevant information from agency

records.

In the vast majority of cases,

compensation is claimed while a claimant

continues to be employed by the Federal

Government. In those cases, the form is

completed by a Federal employee and their

supervisor, therefore not affecting the

public. The form is required of a member

of the public on rare occasions, such as

when compensation is claimed after the

claimant's Federal employment has

terminated. It is estimated that

approximately .5% [ 1/2 OF 1 %] of all

Claim forms filed are filed by claimants

after leaving Federal employment. This

request for clearance by OMB only

pertains to about .5% of the overall use

of these forms.

The appropriate sections of the FECA and

the implementing Regulations are

attached.

2. The information collected by the CA-7

and CA-8 is used by claims examiners for

OWCP to determine eligibility for and the

computation of benefits. With the medical

evidence of file, it is used to determine

whether or not the claimant is entitled

to compensation for disability for work

or permanent impairment of a scheduled

member; the appropriate period, rate of

pay, compensation rate, any concurrent

employment or dual benefits, and third

party credit. Without the requested

F-2

re aah cia St A ay A he BLE RE RY

information, an eligible beneficiary

could be denied benefits, or benefits

could be authorized at an incorrect rate,

resulting in an underpayment or

overpayment of compensation. The CA-7 is

generally filed only once for a

particular injury. The CA-8 is filed

every 2 weeks while disabled, until

advised by OWCP not to file the forms

until further notice. This advice is

provided when the claims examiner

determines, based upon an analysis of the

medical evidence, to place the claimant

on either the short term or the long term

disability roll.

3. No improved information technology

exists to reduce the burden of the

respondents. The claimant must complete

and sign the CA-7 or CA-8 affirming that

the information submitted is true. The

claimant is therefore legally responsible

should it be determined that false

information was purposely submitted, or

that information was deliberately

withheld, in order to receive

compensation to which the claimant was

not entitled. If the information was

obtained via teleprinter or over the

telephone, there would be no way to hold

the claimant legally responsible, since

the claimant would not have sworn in

writing to the veracity of the

information.

4. The information requested on these

forms is not duplicative of any

information available elsewhere. The

claimant and employer are the only

sources of the required information.

5. This information collection does not

F=3

effect small businesses.

6. If this information were not

collected, or were collected less

frequently, OWCP would be unable to

properly provide disability benefits to

injured Federal employee. If benefits

were paid in the absence of full

information, there would be numerous

incorrect payments, creating

overpayments, and depriving claimant's of

benefits to which they are entitled.

7. There are no circumstances that

require information to be collected that

is inconsistent with the guidelines in 5

CFR 1320.6.

8. Recently, an extensive survey was

conducted of agency personnel soliciting

their opinion of the CA-7. Much of the

language appearing on Form CA-8 was

required y the Office of the Inspector

General based upon their experience in

Federal Courts in cases where claimant's

had falsified earnings information.

9. The information collected by these

forms is maintained in FECA claim files,

which are fully protected under the

Privacy Act.

10. Neither of these forms ask questions

of a sensitive nature.

Mailing Cost: 400 x .32 = $1.28

Printing Cost: $3688

Processing Cost:

Time to review each form - 1/2 hour

F-4

hourly wage of reviewer - $19.64

(GS-11/5)

400 responses X 1/2 X $19.64 -

$3,928

Total annual Federal cost $4.081

12. The claimant should have the

information required by these forms

readily available. It should simply be a

matter of filling in the form. 30 minutes

has been allotted for the completion of

each form to include reading the

instructions and providing all requested

information.

CA-8 200 responses 1/2 hour 100 hours CA-

7 200 responses 1/2 hour 100 hours

Total 200 hours

13. This is a new collection

14. Data collected with these forms will

not be published.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.