Memo for Respondent — United States v. Brown

IN THE

Supreme Court of the Cnited States

: October Term, 19534

No. fd. ~) —

UNITED STATES OF AMERICA,

Petitioner,

v,

PETER BROWN ;

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE SECOND CIRCUIT.

MEMORANDUM FOR RESPONDENT.

a

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THE Reporter ComPayxy, Inc, New York Cit y—1956

Opinions Below ..

Index,

hiratictates.....,.,., (eileindalininieuiantendla cae ke

Statutes Involved .

Statement 0.

Bandy v. United

Fed. 2d 366

CITATIONS,

States (D. Nevada, 1950),

Pettis v. United States (D. CL. Calif, 1952), 108

Fed. Sup. 5

Santana vy. United

i er EEE Aaa

6

In THE

Siyireme Court of the United States

October Term, 1953

No. 654

Unirep States or AMERICA,

Petitioner,

V.

Peter Brown.

SS nen ee Seeeneeententasntanensineicneerece —— a A ee eee -

On Petition for a Writ of Certiorari to the United States

Court of Appeals for the Second Circuit.

MEMORANDUM FOR RESPONDENT.

Opinions Below.

The memorandum opinion of the United States District

Court for the Southern District of New York (R. 22) is

not reported, The opinion of the United States Court of

Appeals for the Second Cireuit (R. 29-31) is reported at

209 FY. 2d 463.

Jurisdiction.

The jurisdictional requisites are adequately set forth in

the Petition.

Question Presented.

Whether a discharged serviceman, who receives treat-

ment at a Veterans’ Administration Hospital, may sue the

United States of. Ameries under the Federal Tort Claims

Act for injuries sustained by him as a result of the neli-

gence of hospital emplovees,

Statutes Involved.

The Federal Tort Claims Act, 28 UL S.C. 1546(b), and

Section 31, Act of March 28th, 1934, 48 Stat. 026, 38 U.S.

C. 50la, are set forth in the petition at pages 2-3,

In addition, the Federal Tort Claims Act provides:

(28 U. 8S. C. A. 2674). The United States shall

he liable, respecting the provisions of this title re-

lating to tort claims, in the same manner and to

the same extent as a private individual under like

circumstances, but shall not. be liable for interest

prior to judgment or for punitive damages * * *,

(28 U.S.C. AL 2680), Exceptions.

The provisions of this chapter and Seetion

1346(b) of this title shall not apply to:

(a) Any claim based upon an act or omission, of

an emplovee of the Government, exercising

due care, in the execution of a statute or regu-

lation, whether or not such statute or regula-

tion he valid, or based upon the exercise or

performance or the failure te exercise or per-

form a discretionary function or duty on the

part of a federal ageney or an employee of

the Government, whether or not the diseretion

involved be abused.

(0) Any claim arising out of the loss, miscarriage,

or negligent transmission of letters or postal

Inatter,

(c) Any claim arising jn respect of the assess-

ment or collection of any tax or customs duty,

or the detention of any goods or merchandise

hy any officer of customs or excise or any

other law-enforcement. officer.

(d) Any claim for whieh a re mnedy is provided by

sections 741-752, 781-790 of Title 46, relating

to claims or suits in admiralty against the

United States.

(e) Any claim arising out of an act or omission

of any employee of the (iovernment in ad-

ministe ring the provisions of sections 1-31 of

Title o0, Appendix.

(f) Any claim for damages caused by the impo-

sition or establishment of a quarantine by the

United States,

(g) Any elaim arising from the j Injury to vessels,

or to the cargo, crew, or passengers of yes.

sels, while passing rp the locks of the

Panama Canal or While in Causal Zone waters.

Is

(hi) Any claim arising out. ef assault, battery,

false imprisonment, false arrest, malicious

prosecution, abuse of process, libel, slander,

misrepresentation, deceit, or interference with

contract rights,

(i) Any claim for damages caused by the fiseal

operations of the Tre: asury or by the reeula-

tion of the monetary system,

(j) Any claim arising ont of the combatant ac.

tivities of the military or naval forees, or the

Coast Guard, during time of war.

(k) Any claim arising in a foreign country,

(1) Any claim arising from the activities of the

Tennessee Valley Authority,

(m) Any claim arising from the activities of the

Panama Railroad Company. June 25, 1948,

¢, 646, 62 Stat. 984, amended July 16, 1949,

340, 62 Stat. 444.

4

Statement.

This is an aetion brought under the Federal] Tort Claims

Act to recover for personal injuries sustained by the re-

spondent when he was a patient at a Veterans Adminis-

tration Hospital.

The respondent had served in the Army Air Force from

October 27, 1942, to August 6, 1944. He was honorably

discharged on the latter date with a service connected

disability, having been injured in the left knee during

military operations in New Guinea. Upon his discharge,

he was able to walk. bat upon any sudden or any strenuous

Inovements, his left leg would become dislocated. Six

Years later, on March 8, 1990, he was operated upon by

the Veterans Administration for the purpose of ‘cleaning

up’ the knee joint. His leg continued to dislocate fre-

quently, however,

Pursuant to his status asa veteran, the respondent was

admitted to the Veterans Administration Hospital at 130

Kingsbridge Road, Bronx, New York, on October 1, 1951,

for examination and possible treatment. It was decided

at that time that another operation should be performed

on his left knee for the purpose of preventing the leg

from dislocating. The operation was performed on QOc-

tober 4, 1951. It was to be a so-called bloodless operation,

requiring the application of a tourniquet on the left thigh.

The tourniquet was applied by an operating room attend-

ant in the employ of the Veterans Administration. The

tourniquet was defective in that the pressure gauge was

not registering and an excessive amount of pressure was

applied to the respondent's leg. The attendant should

have realized that the tourniquet was defective as soon

as it was applied, but lie did not,

»

As a result of the excessive Pressure, the nerves in the

respondent’s leg were seriously and permanently injured.

The respondent was confined to the hospital for approxi-

mately sixteen weeks thereafter, and for a long period

after that was required to report to the hospital each day

for treatment. He Jost all sensitivity in portions of his

left leg below the knee, and he has Jost control of some

of the museles jy that portion of the leg. He is unable

to walk without an orthopedie brace and at this time it

appears that he will never regain the full use of his leg,

The respondent received a pension from. the Govern-

ment upon his divs¢harge, This pension was increased as

a result of the injury he sustained in the Veterans Ad-

ministration Hospital in 1951.

The respondent filed his complaint against the United

States under the Federal Tort Claims Act, on April 14,

1952, in the United States District Court for the Southern

Distriet of New York. After answering, the United States

moved to dismiss the complaint, **for failure to state a

claim upon whieh relief can he granted."’

The District Court granted the motion, noting that

there was a square conflict of authority between the cir-

cult courts on the pertinent question,

The respondent herein appealed to the Court of Appeals

for the Second Cirenit, and that Court reversed.

Reasons for Not Opposing the Petition.

Basically, the principal question herein js one of

statutory construction. ‘The question is whether the Fed.

eral Tort Claims A-t. as Written, and as interpreted by

this Court, provides a remedy for a discharged veteran

Who is injured, through negligence, at a Veterans Admin-

istration Hospital. There isa clear conflict on this ques-

tion. Santana . Uuited States (1st Circuit, 1949), 175

6

Fed. 2d 329, and Bandy v. United States (D. C. Nevada,

1900), 92 Fee. Supp. 360, as well as the decision below jn

the instant case allow sueh recovery, O'Neil v. United

States (D.C, Circuit, 1953), 202 Fed. 2d 266 and Peitis vr,

United States (D. ©. Calif., 1952), 108 Fed. Sup. 500, hold

that such a recovery may not be had.

The present conflict is due, in large part, to a difference

of opinion among the Courts as to what this Court held

in Feres v. United States (1950), 340 U.S. 135. Thus,

the United States claims in the petition that the Feres

decision is of general applicability, holding that. the eX-

istence of an administrative compensation system bars an

action for additional damages under the Federal Tort

Claims Act by anyone who has received Veterans Com-

pensation,

The Cireuit Court below, rejected this view of the Feres

ease, The Court below held that. the Feres decision only

barred an action under the act to a claimant who was a

serviceman on active duty and not on furiough when the

tort oceurred.

Thas, the question is one Which should he determined

by this Court. The respondent would prefer to have such

a determination before incurring the expense and diffi-

culties necessarily attendant to proceeding to trial.

CONCLUSION.

For the reasons set forth above, the respondent does

| not oppose the petition.

Respectfully submitted,

Ler S. Kreinpier,

Counsel for Respondent.

Mareh, 1054.