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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1963

## Text

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,
30

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.

2

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.

EE
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

0

3

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

4

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?

5

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.

ee

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

8

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.

10

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)

1]

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

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12

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.

13

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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14

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.

15

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

16

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

17

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

es

ae

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

18

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

19

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

20

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

21

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.

22

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.

23

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

24

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: -

25

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.

26

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.

27

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

28

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)

29

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 :

30

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
By

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: *
ob
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.

s/

FRANK E. ALLEN

Deputy Commissioner
Office of Workers'
Compensation Prcgrams

Subscribed and sworn to before me
this 7th day of November, 1984
s\

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

Bi

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.

s\

FRANK E. ALLEN
Director, Office of
Workers' Compensation

Programs

Subscribed and sworn to before me this
7th day of April, 1988.

s\
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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386008_1225%3A1. Public record. Not legal advice.