Petition for Writ of Certiorari — Harry Alexander, Inc. v. Friend

No. 207

IN THE

Supreme Court of the Anited States

———__

October Term, 1954

Harry ALEXANDER, INc., CONTINENTAL CASUALTY Co.,

Petitioners,

¥.

Auice P. FRIEND, Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

DISTRICT OF COLUMBIA CIRCUIT

G. A. CHADWICK, JR.

JOHN A. BECK

Counsel for Petitioners

Harry ALEXANDER, INC.,

and

CONTINENTAL CASUALTY Co.

Press or Byron S. ApAMs, WasHINGTON, D. C.

JUL 5

-Svereme Court, U

FILZeD

1955

ILLEY,

RY Ww RNR .

INDEX

Page

Opinions below ....... ccc ccsscceccsceseccecnssens 1

EIGN | 6x. 5 inn uo4 6d 0ue ne 36440 cd oe ee hReKEES Re 2

Questions presented ............-. eee ee eee eee eees 2

SY GIUEE 6a vac ck nce uss iduesdepehanstnencecs 2

EE vp cd nen tama kudins Gachnaacens <Senaaek anes 2

Reasons for granting the writ ..................05: 5

SEO cenksdnnck ntheuetkawesanticematebens ens 8

Appendix—

Opinion of the court below ...................- la

Order denying petition for rehearing .......... 9a

CITATIONS

CASES:

Avignone Freres, Inc. v. Cardillo, 73 App. D. C.

8 &£ se 8 eee are 8a

Cardillo, Dep. Comm. v. Liberty Mut. Ins. Co., et

al, 330 U. &. 460, 67 S. Ct. GOR... 2... cnn anes, 7

Commercial Casualty Ins. Co. v. Hoage, 64 App.

D. C. 158, 75 F. 2d. 677, cert. denied 295 U. S.

SD i.e & Anh nee cate canky es keecken cea uknne 5a

DelVecchio, et al. v. Bowers, 296 U. S. 280, 56

er eye erry em 7

Fidelity & Casualty Co. of N. Y. v. Burris, 61 App.

Fh FF | SS Fo Seer ee Te 5,8

Grain Handling Co. v. Sweeney, 102 F. 2d. 464

(2nd Cir.), cert. denied 308 U. S. 570 ......... 5a

Hartford Accident & Indemnity Co. v. Cardillo, 72

App. D. C. 52, 112 F. 2d. 11, cert. denied 310

Wie a OE anc dncubhedebeeek seks cnaneraaeas 7a

Hoage v. Employers’ Liability Assur. Corp., 62

pe Eee 8 ee re 4a, 5a

Index Continued

Riley v. Henderson, 218 F. 2d. 752

Robinson v. Bradshaw, 92 U. S. App. D. C.

F. 2d. 435, cert. denied 346 U.S. 899

Universal Camera Corp.

tions Board, 340 U. S. 474, 71 S. Ct. 456 . .4, 5, 6, 2a

STATUTES:

Longshoremen’s and Harbor Workers Compen-

sation Act of March 24, 1927, 44 Stat. 1424, 33

U.S.C.A. 901, et seq. ..--e eee re neers

District of Columbia Code,

+

Be eae eK s ERS AS SEEMS VES NTE STEN ™*

~~

IN THE

Supreme Court of the Anited States

October Term, 1954

—

No.

Harry ALEXANDER, INc., CONTINENTAL CASUALTY Co.,

Petitioners,

v.

Auice P. Frrenp, Respondent.

_

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

DISTRICT OF COLUMBIA CIRCUIT

Petitioners pray that a writ of certiorari issue to

review the judgment of the United States Court of

Appeals for the District of Columbia Circuit, entered

in the above-entitled case on March 10, 1955.

OPINIONS BELOW

The opinion of the District Court is unreported.

The opinion of the Circuit Court of Appeals (App.

la) is reported in U.S. App. D.C. , 220

F, 2d 820.

2

JURISDICTION

The judgment of the Cireuit Court of Appeals was

entered on March 10, 1955. A petition for rehearing

by the Circuit Court of Appeals in banc was denied

on April 5, 1955. (App. 9a). The jurisdiction of this

Court is invoked under 28 U.S.C.A. 1254(1).

QUESTIONS PRESENTED

Whether the Circuit Court of Appeals may disre-

gard the reasoning and inferences of an administra-

tive tribunal and substitute its own views therefor,

when the conclusions of the administrative tribunal

are supported by substantial evidence.

Does the Longshoremen’s and Harbor Workers’

Compensation Act of March 24, 1927, 44 Stat. 1424,

23 U.S.C.A. 901 et. seq., require the courts to resolve

all factual doubts in favor of the employee or his

dependent family.

STATUTE INVOLVED

The Longshoremen’s and Harbor Workers’ Com-

pensation Act of March 4, 1927, 44 Stat. 1424, 33

U.S.C.A. 901 et seq., as made applicable to the Dis-

trict of Columbia by the Act of May 17, 1928, 45 Stat.

600, D.C. Code 36-501.

STATEMENT

This case arises upon a complaint for judicial re-

view of a compensation order filed on July 22, 1953

by Theodore Britton, Deputy Commissioner, Bureau

of Employees’ Compensation, United States Depart-

ment of Labor, in which order defendant below, Brit-

ton, rejected the claim for compensation of plaintiff

below, Alice P. Friend, widow of one Herbert W.

ASR eee yen se

3

Friend, hereinafter called the ‘‘deceased.’’ The said

order was issued pursuant to the provisions of the

Longshoremen’s and Harbor Workers’ Compensation

Act of March 4, 1927, 44 Stat. 1424, 33 U.S.C.A. 901

et seq., as made applicable to the District of Columbia

by the Act of May 17, 1928, 45 Stat. 600, D.C. Code

36-501.

On February 14, 1950 the deceased allegedly sus-

tained an aggravation of a pre-existing aneurysm

while at work and was awarded compensation for

total disability which continued until his death on

January 17, 1952 from a rupture of said aneurysm.

(An aneurysm is the dilatation of the walls of an

artery generally due to disease.) His widow then filed

claim for death benefits contending that the death re-

sulted from the injury. The question which the deputy

commissioner had to decide upon the hearing of the

claim was whether the aggravation of the pre-existing

aneurysm hastened the death. The deputy commis-

sioner found that it did not and rejected the claim.

THE COMPENSATION ORDER

The deputy commissioner in the compensation order

found the facts to be in part as follows:

“‘That the employee (Herbert W. Friend) con-

tinued to be totally disabled as a result of the

injury of February 14, 1950 (for which compen-

sation was awarded to the injured employee by

the Deputy Commissioner in a compensation order

filed on March 15, 1951), until the time of his

death; * * * that the employee died on January

17, 1952, as a result of hemorrhage and shock due

to rupture of an aneurysm of the abdominal aorta;

* * * that the employee had suffered from an

aneurysm of his abdominal aorta for several years

SETAE EE, Pe PRL on

~

4

before the injury of February 14, 1950; that the

said aneurysm weakened the wall of the employee’s

abdominal aorta; that such condition naturally

and progressively deteriorated from the time of

its inception to the time of the employee’s death,

and such deterioration culminated in and was the

cause of rupture of the wall of the aorta resulting

in his death; that the injury did not hasten the

patural and unavoidable progression of the de-

terioration of the said condition, but on the con-

trary the enforced cessation of work and curtail-

ment of all physical activities by the employee

during his disablement had a beneficial effect in

that the hazard of earlier fatal rupture of the said

diseased abdominal aorta was reduced; that the

employee’s death was not due to the injury of

February 14, 1950, nor was it hastened thereby,

but that his death was due to the natural and un-

avoidable progression of the said pre-existing

aneurysm of his abdominal aorta.”’

The widow then brought a proceeding in the United

States District Court for the District of Columbia to

set aside said order pursuant to Section 21 (b) of

the Compensation Law, 33 U.S.C.A., See. 921 (b).

The District Court sustained the order. An appeal

was then taken to the United States Court of Appeals

for the District of Columbia Circuit.

The Court below reversed the order of the District

Court upon the authority of O’ Leary v. Brown-Pacifie-

Maron, 340 U.S. 504, 71S. Ct. 470, read in light of Uni-

versal Camera Corp. v. National Labor Relations

Board, 340 U.S. 474, 71 S. Ct. 456, providing the re-

viewing court with the power to review the record as

a whole to determine whether the administrative find-

ings are supported by substantial evidence and not

merely by some isolated evidence. In reviewing the

a

5

record as a whole the court recognized that the Act

is to be construed with a view to its beneficient pur-

poses and that all doubts, including the factual, are

to be resolved in favor of the employee or his depend-

ent family. Cf. Fidelity d& Casualty Co. of N. Y. v.

Burris, 61 App. D.C. 228, 230, 59 F. 2d 1042, 1044;

Robinson v. Bradshaw, 92 U.S. App. D.C. 216, 206

F, 2d 435, cert. denied 346 U.S. 899 (App. 2a).

The Court below after reviewing the record as a

whole decided that the conclusions of the Deputy Com-

missioner were not supported by substantial evidence.

Two judges were of the opinion that the record as a

whole could support only a conclusion contrary to the

findings of the Deputy Commissioner and the case was

remanded for entry of an award in accordance with

the opinion. The other judge, although agreeing that

the record did not support the Deputy Commissioner’s

findings, stated that he did not believe the record sup-

ported the opposite conclusion as a matter of law and

suggested a remand of the case to the Deputy Com-

missioner for new findings (App. 7a, 8a).

REASONS FOR GRANTING THE WRIT

1, The scope of judicial review in cases involving

administrative findings has been clearly enunciated

by this Court, in Universal Camera Corp. v. National

Labor Relations Board, 340 U.S. 474, 71 S. Ct. 456,

and O’Leary, Dep. Comm. v. Brown-Pacific-Mazon,

Inc., 340 U.S. 504, 71 S. Ct. 470. The Court below

recognized the rule laid down in the foregoing cases,

but failed to adhere to it.

That standard of judicial review requires the re-

viewing court to accept the findings of fact of the ad-

ministrative tribunal unless they are unsupported by

ore

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$ ge Me pre A ter FORE ROPE teh, TE VOR ES

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6

substantial evidence on the record considered as a

whole. Stated negatively, the findings will not be

affirmed if based only on isolated pieces of evidence.

The respondent did not offer any testimony concern-

ing the cause of the employee’s death, at the adminis-

trative hearing. The petitioners offered the testimony

of several medical experts to the effect that the em-

ployee’s death was unrelated to the prior compensable

injury, and further that the prior injury may have

had the beneficial effect of prolonging the employee’s

life. This testimony was undisputed and without cori-

flict. The Deputy Commissioner at the request of the

respondent, incorporated into the record the adminis-

trative proceedings incidental to the prior injury and

made his finding of no causal relation between injury

and death from the whole record. It should be noted

however, that the administrative proceedings inci-

dental to the prior injury contained no evidence con-

cerning the effect of the injury upon the employee’s

life span.

The Court below, on the basis of the foregoing rec-

ord and applying the rules of judicial review set down

in the Universal Camera Case, supra, and O’Leary V.

Brown-Pacific-Maxon, supra, rejected the findings of

the Deputy Commissioner and found as a matter of

law that the record could only support an opposite

conclusion. It is patent that the court’s action con-

stituted a departure from the scope of judicial review.

The uncontradieted testimony concerning the causal

relationship between injury and death, indeed the

only testimony on that point—was given by the sev-

eral medical experts. That testimony was wholly con-

sistent with the Deputy Commissioners findings. If

the consistent expert testimony was not substantial

7

evidence upon which to base the findings of the Deputy

Commissioner, ¢ccitainly there was no other and more

substantial testimony which would justify the court

below in making an opposite finding as a matter of

law.

2. The decision of the court below is in conflict with

the decisions of this Court in Del Vecchio et al. v.

Bowers, 296 U.S. 280, 56 S. Ct. 190, and Cardillo, Dep.

Comm. v. Liberty Mutual Insurance Company et al.,

330 U.S. 469, 67 S. Ct. 801. The conflict results from

the court’s rejection of the inferences and reasoning

of the Deputy Commissioner and a substitution of its

own.

The court below did not dispose of this case by re-

solving a question of law. Instead, the court undertook

the task of sifting the facts, weighing the evidence and

drawing inferences from the testimony. This clearly

was an invasion of the province of the Deputy Com-

missioner whose inferences and reasoning, if other-

wise sustainable, may not be disturbed by the review-

ing court. It is immaterial whether the basic facts

from which the Deputy Commissioner draws his in-

ference are undisputed, or that the facts permit the

drawing of the diverse inferences. Cardillo, Dep.

Comm. v. Liberty Mutual Insurance Co., supra.

The foregoing error has been compounded by the

complete rejection of the Deputy Commissioner’s find-

ings by the court below, and a substitution of its find-

ings. This is an usurpation by the court of the duties

of the Deputy Commissioner, for which there is no

authority in either statute or judicial decision.

3. The decision of the court below is directly in con-

flict with a decision of the Fifth Circuit Court of Ap-

Ea.

Sees.

if es ie

8

peals in Darnell Riley et al. v. Joseph H. Henderson,

Dep. Comm. et al., 218 F. 2d 752, on the point of re-

solving factual doubts.

The court below stated in its opinion, that,

‘Doubts, including the factual, are to be re-

solved in favor of the employee or his dependent

family.’ Fidelity & Casualty Co. of N. Y. v. Bur-

ris, 61 App. D.C., 228, 230, 59 F. 2d 1042, 1044,

Robinson v. Bradshaw, 92 U.S. App. D.C. 216,

206 F. 2d 435, cert. denied 346 U.S. 399, and cases

there cited.”’

The Fifth Circuit Court of Appeals in Riley et al.

v. Henderson, et al., supra, commenting upon the case

of Fidelity & Casualty Company of N. Y. v. Burris,

et al., supra, stated,

“The court also said that where there is doubt,

it should be resolved in favor of the claimant, but

this language necessarily related to doubt as to

the construction of the statute, not as to the facts.”

It is readily seen that the two Circuit Courts of

Appeals are in disagreement on this subject. If Riley

et al. v. Henderson, et al., supra, contains the correct

statement of the law then the conclusion of the court

below must be reversed since its premise is defective

per se.

4. Clearly, the questions presented ave of impor-

tance in the administration of the Longshoremen’s

and Harbor Workers’ Compensation Act, supra. The

opinion of the court below is not just a statement of

the highest appellate court for the District of Colum-

bia on a local matter, but is an enunciation of the

law on an important federal statute, under which

9

there is a constant flow of claims and litigation in

every federal judicial circuit in the United States.

CONCLUSION

For the foregoing reasons, this petition for a writ

of certiorari should be granted.

Respectfully submitted,

G. A. CHapwick, JR.

JoHN A. Beck

Counsel for Petitioners

Harry ALEXANDER, INc.,

and

CONTINENTAL CasvuaLty Co.

Date:

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