Petition for Writ of Certiorari — Travelers Insurance v. Toner

IN THE

4 Supreme Court of the Anited States

Octoser TeRM, 1951

~ are

TRAVELERS INSURANCE Company, Petitioner,

Vv.

3 Water J. Toner, Deputy Commissioner, United States

t Employees’ Compensation Commission, and E.izaBETH

: H. FREDERICKS

: PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

DISTRICT OF COLUMBIA CIRCUIT

ARTHUR J. PHELAN,

Frank F. Roperson,

: Counsel for Petitioner.

~ July 6, 1951.

5

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3

Press or Byron S. Apams, Wasurncton, D.C.

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Specification of errors to be urged ................. 4

Reasons for granting the writ ............cecceeeses 5

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' CITATIONS

; CASES:

, Brown-Pacific Maxon Co. v. Cardillo, 91 F. Supp. 968

et By NE Pcs cans on eerkatada eee en ewes 4

Del Vecchio v. Bowers, 296 U. S. 280 (1935)........ 5

Hampton Roads Stevedoring Corp. v. O’Hearne, 184

ee b. is Serer Creer re 4

Penn Jersey Welding Co. v. Lowe, 183 F. 2d 936 (3rd

Se re ries sane ne eee 4

United States v. Heth, 3 Cranch. 399 (1806)...... 6

Universal Camera Corp. v. N. L. R. B., 340 U. 8. 474

EE csv ctdeKeiveancl wera tesmeaseierorceres 6

STaTursEs:

; Defense Bases Act (Aug. 16, 1941, 55 Stat. 622, 42

t U. 8. C., Supp. IV, § 1651, ef seq.) ..........5. 5

District of Columbia Workmen’s Compensation Law

(May 17, 1928, 45 Stat. 600, D. C. Code, 1940, tit.

ee errr eee yer er ere re 5

i Longshoremen’s and Harbor Workers’ Compensa-

i tion Act (March 4, 1927, 44 Stat. 1424, et seq.; 33

oR eg PS Peery ero rer rer 2, 3, 4

Longshoremen’s Act Amendment (June 24, 1948,

80th Cong., 2d Sess., 62 Stat. 602, 33 U. S. C. A.

§ 906, et seq. (Cum. Supp. 1950)............... 2, 3, 4

MIsCELLANEOUS:

H. R. Rep. No. 2095, 80th Cong., 2d Sess. .......... 2-3, 5

Hearings before Subcommittee of Senate Committee

| on Labor and Public Welfare on S. 2237 and Re-

lated Bills, 80th Cong., 2d Sess. (1948) .......... 2,6

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ELT ERSTE TS RG LI ELE SRT A NTI NES SS OP FRR AIOE ee

IN THE

Supreme Court of the Anited States

OctoBEer TERM, 1951

No.

ee

TRAVELERS INSURANCE Company, Petitioner,

Vv.

Watter J. Toner, Deputy Commissioner, United States

y ’

Employees’ Compensation Commission, and ELizaBeTH

H. FREDERICKS

: PETITION FOR A WRIT OF CERTIORARI TO THE

; UNITED STATES COURT OF APPEALS FOR THE

DISTRICT OF COLUMBIA CIRCUIT

i To The Honorable, the Chief Justice of the United States,

and the Associate Justices of ihe Supreme Court of the

United States:

Your petitioner, Travelers Insurance Company, prays

that a writ of certiorari issue to review the judgment of the

United States Court of Appeals for the District of Colum-

bia Cireuit, entered in the above captioned case on May 24,

1951.

PRM RER SAID MM Uc ee, SEATS MINN NOT ORSR ERD REONAY atnlaRT pS

2

Opinions Below

Without written opinion the United States District Court

for the District of Columbia dismissed petitioner’s com-

plaint which sought an injunction against enforcement of

a workman’s compensation award. The opinion of the

United States Court of Appeals for the District of Colum-

bia Circuit (R. 18-19) is not yet reported.

Jurisdiction

The judgment of the Court of Appeals was entered on

May 24, 1951 (R. 20). The jurisdiction of this Court is in-

voked under 28 U. S. C., Section 1254 (1).

Questions Presented

1. Whether the enlarged death benefits provided by the

June 24, 1948, amendment? to the Longshoremen’s and Har-

bor Workers’ Compensation Act? are properly awarded

where the causating injury was sustained before, although

the death occurred after, the effective date of the amenda-

tory act.

2. Whether, in interpreting language of the Amendatory

Act of June 24, 1948, that its provisions

‘‘shall be applicable only to injuries or deaths occur-

ring on or after the effective date hereof,’”

the courts below erred in failing to apply the expressed con-

gressional intention that

“* * * it is necessary and desirable to make

the act prospective in its application in order

to avoid administrative difficulties and _ constitu-

tional questions which might be presented by a

1 Public Law 757, 80th Cong., 2d Sess., 62 Stat. 602, 33 U. S. C. A. §§ 906,

909 (Cum. Supp. 1950).

2 Act of March 4, 1927, 44 Stat. 1424, 33 U.S. C. § 901 et seq.

3 Section 6, Act of June 24, 1948, supra, note 1, .3 U. 8. C. A. § 906 note

(Cum. Supp. 1950).

3

retrospective change in the compensation provisions.

Furthermore, prospective application will enable em-

ployers to make adjustments in employee-compensation

coverage to reflect the changes.’’* (Kmphasis Added)

Statute Involved

The statute involved is the Longshoremen’s and Harbor

Workers’ Compensation Act of March 4, 1927, 44 Stat.

1424, 33 U.S. C. § 901 et seq. (1940), which was amended to

- enlarge the scale of benefits by the Act of June 24, 1948, 62

if Stat. 602, 33 U. S. C. A. §§ 906, 909 (Cum. Supp. 1950).

‘ The pertinent part of the Amendatory Act of June 24, 1948,

: is Section 6, which reads:

The provisions of this Act shall be applicable only to

injuries or deaths occurring on or after the effective

date hereof.

Statement

Walter J. Toner, Deputy Commissioner, United States

Employees’ Compensation Bureau, District of Columbia

Compensation District, made a finding that William W.

Fredericks, Jr., an employee of a corporation for which

petitioner, Travelers Insurance Company, carried the work-

men’s compensation coverage, was injured in his employ-

ment January 29, 1947, partially recovered, then as a result

of the injury died July 1, 1949 (R. 8-9). Upon these find-

ings Toner made an award to Elizabeth H. Fredericks,

for herself as widow and for the children of the deceased

employee, which included death benefits based upon a scale

| greater than that prevailing under the Longshoremen’s

and Harbor Workers’ Compensation Act as it existed on

the date of the fatal injury (R. 10). Under the act as it

existed in January, 1947, Mrs. Fredericks was entitled to

receive a maximum of $7,500. Under the award she is en-

titled to be paid compensation until she either dies or re-

marries irrespective of the amount of money to which such

payments run.

4H. R. Rep. No. 2095, 80th. Cong., 2d Sess. 9 (1948).

*< ERG oo

mii

7

Petitioner filed a complaint in the United States District

Court for the District of Columbia for a mandatory in-

junction directed against Toner pursuant to the review pro-

vided for in the Act of March 4, 1927, 44 Stat. 1436, 33

U.S. C. § 921 (1940) (R. 4-7). One of the grounds urged

for the relief sought was that the compensation award was

based, not upon the legal schedule of death benefits in effect

on January 29, 1947, date of the injury, but upon a greater

scale of benefits contained in the Amendatory Act of June

24, 1948, 62 Stat. 602, 33 U.S. C. A. §§ 906, 909 (Cum. Supp.

1950) (R. 6). Mrs. Fredericks having been granted leave

to intervene (R. 12), she and Toner filed motions to dismiss

the complaint (R. 13-14). The District Court entered a

final order dismissing the complaint (R. 14). From so

much of the order as affirmed the Deputy Commissioner,

Toner, in applying a scale of death benefits not in existence

at time of the fatal injury, en appeal was taken (R. 15).

On appeal, in affirming the District Court, the court be-

low disregarded the fact that the legislative history of the

amendatory act had not been made available to other courts

passing upon the question,” erroneously stated that ‘‘no

court has held to the contrary’’ (R. 19) and elected to fol-

low the decisions of the Third and Fourth Circuits (R. 19).

Specification of Errors to be Urged

The United States Court of Appeals for the District of

Columbia Circuit erred:

1. In holding that a scale of benefits enacted by the Con-

gress on June 24, 1948, applied to a 1949 death caused by

a 1947 injury.

5 None of the opinions relied upon by the court below as deciding the ‘‘ precise

question’’ involved herein mentions the legislative history which makes clear

an opposite Congressional intent. Penn Jersey Welding Co. v. Lowe, 182 F.

2d 936 (3d Cir. 1950); Hampton Roads Stevedoring Corp. v. O’Hearne, 184

F. 2d 76 (4th Cir. 1950) (reversing E. D. Va., which had ruled in aecordance

with petitioner’s interpretation even in the absence of the legislative history) ;

Brown-Pacific Maxon Co. vy. Cardillo, 91 F. Supp. 968 (S. D. N. Y. 1950).

An examination of the briefs filed on behalf of the employers in the appellate

courts reveals that those courts were not given the benefit of the expression of

congressional purpose.

5

2. In failing to give effect to the congressionally ex-

pressed intent that the effective date provision of the

amendatory act would ‘‘enable employers to make adjust-

ments in employee-conpensation coverage.’’

3. In affirming the District Court judgment insofar as it

denied an injunction against enforcement of an award which

applied retrospectively an inapplicable scale of death

benefits.

Reasons for Granting the Writ

This case presents a question of national importance in

the administration of federal workmen’s compensation

laws. The decision below fails to give effect to a clear

expression of congressional intent with respect to a na-

tional statute and, in following federal decisions which had

been predicated upon inadequate information, serves to

congeal into the federal law an erroneous interpretation of

a widely applicable statute. That there will arise for some

time in the administration of the Longshoremen’s and De-

fense Bases Acts cases of lingering illnesses, originating

with injuries prior to June 24, 1948, and culminating in

deaths thereafter, is obvious. That survivors will in many

eases seek to relate unrelated deaths back to remote in-

juries in order to receive a multiplied scale of benefits

6 While this immediate ease is under the District of Columbia Workmen’s

Compensation Law [Act of May 17, 1928, 45 Stat. 600, § 501 D. C. Cone, tit. 36,

(1940) ], that Law merely extends to the District of Columbia the basie federal

statute, the Longshoremen’s and Harbor Workers’ Compensation Act. This

factor was commented on by the Court in Del Veechio v. Bowers, 296 U. 8S.

280, 285 (1935):

In the view that the case does not fall within Rule 38, the respondent opposed

the issuance of a writ of certiorari. The objection might be valid if the

statute were confined in its operation to the Distriet of Columbia. We

will not ordinarily review decisions of the United States Court of Appeals,

which are based upon statutes so limited or which dczlare the common

law of the District. The Longshoremen’s and Harbor Workers’ Compen-

sation Act, however, is national in scope, and a decision with respect

to its enforcement constitutes a precedent of general application. We

therefore granted the writ because of the important question as to the

effect of § 20(d).

Moreover the basie Longshoremen’s Act was likewise extended to other

areas by the Defense Bases Act of August 16, 1941, 55 Stat. 622, 42 U.S.C,

Supp. IV, § 1651 et. seq.

ae

6

never contemplated by employees, employers, or Congress

at the time of the alleged fatal injuries seems equally

apparent.

The gross injustice of converting potential maximum lia-

bilities of employers for $7,500 for an injury and an addi-

tional $7,500 where the injury results in death into a poten-

tial ‘‘open-end’’ liability of many times $15,000, presents

multiple administrative and constitutional difficulties. To

mention just one instance, such would be the case where the

original insurance carri+r has gone off the risk between the

time of an injury ana the time of death and the employer

went out of business prior to June, 1948. In many cases

there obviously has not been available the opportunity ‘‘for

employers to make adjustments in employee-compensation

coverage to reflect the changes’’ which Congress desired.

This injustice occurs only because the courts below have

applied the amendatory act retrospectively rather than

prospectively as Congress intended. It was recently said

in Universal Camera Corporation v. National Labor Rela-

tions Board, 340 U.S. 474, 489 (1951) :

The legislative history of these Acts demonstrates a

purpose to impose on courts a responsibility which has

not always been recognized. Of course it is a statute

and not a committee report which we are interpreting.

But the fair interpretation of a statute is often ‘‘the

art of proliferating a purpose,’’ Brooklyn National

Corp. v. Commissioner, 157 F. 2d 450, 451, reveaied

more by the demonstrable forces that produced it than

by its precise phrasing."

7The demonstrable forces that produced Section 6, the ‘‘effective date’’

clause, are plain from the legislative history of Senate Bill 2237, 80th Cong.,

2d Sess.—which ultimately became the Act of June 24, 1948. As originally

introduced February 27, 1948, S. 2237 contained no effective date clause. No

doubt this was due to the long established principle that, absent unmistakable

legislative intent, statutes are not to be construed as retrospective. United

States v. Heth, 3 Cranch 399, 413 (1806).

Section 6 first appeared in the proposed bill after a representative of the

New York Shipping Association in April, 1948, so reeommended by oral

testimony and memorandum brief in the course of the April, 1948, Hearings

before a Sub-committee of the Senate Committee on Labor and Public Wel-

fare on S. 2237 and Related Bills, 80th Cong., 2d Sess. 56, 62 (1948):

It is further suggested that the act specifically state that the proposed

increases in compensation be applicable only to cases where the injury

occurred after the effective date of the amendment.

——

7

The opinion of the court below (R. 19, note 5) admitted

the congressional intent revealed in the committee reports

but then declined to settle the basic issue of applying that

intent by stating:

We regard this material as indicating the desire of

Congress to avoid retroactive application of the

amendatory act, as well as to avoid administrative dif-

ficulties and constitutional questions. But such mat-

ters are not directly involved in the instant proceeding,

and we do not find anything in the legislative history

which requires us to give a strained construction to

what we regard as the clear language of section 6 of

the amendatory act.

The court below thus expressly recognizes that administra-

tive difficulties »nd constitutional questions will arise from

retroactive application of the amendatory act. These dif-

ficulties are bound to result in further litigation. All of

these can be obviated by following the intent of Congress.

| A chronological study of the related bills which culminated

in the addition of Section 6 to the Amendatory Act of June

24, 1948, makes simple the task of proliferating the con-

gressional purpose to apply the increased benefits pros-

pectively only. Since effectuation rather thar frustration

of legislative purpose is the recognized aim cf statutory

interpretation, the basic issue of retroactivity involved in

this and like cases should be faced and decided now.

Conclusion

For the foregoing reasons, this petition for a writ of

certiorari should be granted.

Respectfully submitted,

ArTHUR J. PHELAN,

Frank F. Roperson,

Counsel for Petitioner.

July 6, 1951.