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LLAPS The Competition


No. 97-55822

IN THE

SUPREME COURT

OF THE UNITED STATES


October Term, 1998


GARY B. JEFFERSON, Petitioner,

v.

UNITED STATES OF AMERICA, Respondent.

_______________________________________________________________

On petition for a writ of certiorari to the United
States Court of Appeals for the Ninth Circuit
_______________________________________________________________

PETITION FOR WRIT OF CERTIORARI
________________________________________________________________

    Gary B. Jefferson
           5408 West Boulevard
               Los Angeles, CA 90043
  (323) 293-7572




QUESTIONS PRESENTED

1.   Does the continuous or simultaneous adjudication of a federal employee's Federal
Workers' Compensation Act claim and Federal Torts Claim Act litigation create a
conflict in "F.E.C.A." administration?

2.   Does the legal issues utilized in the Ninth Circuit's calculation of accrual cause a
conflict in statutory construction or application where allegations of concealment of vital
information prevents the petitioner from alleging crucial elements of his claim?

3.   Does the legal issues presented in Gibson v. United States, 781 F.2d 1334, 1344
(9th Cir. 1986) cause a conflict in statutory construction or application where allegations
of fraudulent concealment capable of tolling of the statute of limitations are in question?

4.  Where legal issues are in dispute, does the procedures utilized in the Ninth Circuit's
award of summary judgment cause a denial of due process?


- i -


TABLE OF CONTENTS


A. ..QUESTIONS PRESENTED...................................................................................Pg. i

B. ..TABLE OF AUTHORITIES.............................................................................Pgs. iii, iv

C. ..TABLE OF STATUTES AND ACTS OF CONGRESS........................................Pg. iv

D. ..OPINIONS BELOW.................................................................................................Pg. 1

E. ..JURISDICTION.......................................................................................................Pg. 1

F. ..STATUTES INVOLVED..........................................................................................Pg. 1

G. ..STATEMENT OF THE CASE...........................................................................Pgs. 1 - 3

H. ..REASONS FOR GRANTING THE WRIT..........................................................Pgs. 4 - 8


When the appearance of justice has been tainted by jeopardy of procedurally insufficient ruling, both ethical integrity is offended and public trust in our legal system devastated.

1. The continuous or simultaneous adjudication of a federal employee's Federal Workers' Compensation Act claim and Federal Torts Claim Act litigation in the U.S. District Court creates a conflict in administration where the F.E.C.A. decision, though not mandatory, grants review based on the merits of identical issues characterized as meritless by the appellate court.

2. The legal issues utilized in the Ninth Circuit's calculation of accrual cause a conflict in statutory construction and application where allegations of concealment of vital information prevents the petitioner from alleging crucial elements of his claim. Liuzzo v. United States, 485 F. Supp. 1274 (E.D. Mich.1980

- ii -


3. The legal issues presented in Gibson v. United States, 781 F.2d 1334, 1344 (9th Cir. 1986) cause a conflict in statutory construction and application where allegations of fraudulent concealment capable of tolling of the statute of limitations are in question. Hohri v. United States, 782 F2d. 227 (D.C. Cir. 1986)

4. Where legal issues are in dispute, the procedures utilized in the Ninth Circuit's award of summary judgment causes a denial of due process by inverting the burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552, 91 L.ED.2d 265 (1986)

I . CONCLUSION...............................................................................................................Pg. 9

Appendix A: Ninth Circuit Unpublished Opinion and Judgment, 8/20/1998

Appendix B: Denial of Petition For Rehearing, 1/14/1999

Appendix C: Memorandum To The Director, 11/28/1995

Appendix D: C.R. 69 at pages 30 and 31(Admissions & Responses31, 32, 34), 6/26/96

Appendix E: C.R. 84 at pages 66 - 68(In the matter of George A. Johnson and U.S.

                    Postal Service--Issued April 27, 1992), 8/2/1996

Appendix F: Statement of Facts

TABLE OF AUTHORITIES

  • Anderson v. Lobby, Inc.,
  • 477 U.S. 242, 251-52, 106 S.Ct. 2505,
  • 91 L.E.d.2d 202 (1986)....................................................................................................Pg. 7

  • Celotex Corp. v. Catrett,
  • 477 U.S. 317, 322-23, 106 S.C.T. 2548, 2552,
  • 91 L.E.D.2d 265 (1986)..............................................................................................Pgs. 1, 7

  • Doe v. Blake,
  • 809 F.Supp. 1020 (D.Conn 1992)....................................................................................Pg. 8

  • - iii -


    TABLE OF AUTHORITIES

  • Gibson v. United States,
  • 781 F.2d 1334, 1344 (9th Cir. 1986)................................................................................Pg. 6

  • Gross v. United States,
  • 723 F.2d 609 (1983); 676 F.2d 295(1982).................................................................Pgs. 3, 8

  • Hohri v. United States,
  • 782 F2d. 227 (D.C. Cir. 1986)....................................................................................Pgs. 3, 6

  • Holmberg v. Armbrecht,
  • 327 U.S. 392, 397, 66 S.Ct. 582, 585,
  • 90 L.Ed. 743 (1946). (Quoting Bailey v. Glover,
  • 88 U.S. (21 Wall.) 342, 348, 22 L.Ed. 636 (1874)......................................................Pgs. 3, 6

  • Liuzzo v. United States,
  • 485 F. Supp. 1274 (E.D. Mich.1980)......................................................................Pgs. 3, 4, 5

  • Maslauskas v. United States,
  • (1984, DC Mass) 583 F.Supp. 349...................................................................................Pg. 8

  • Matsushita Elec. Industrial Co. v. Zenith Radio,
  • 475 U.S. 574, 586, 106 S.Ct. 1348,
  • 89 L.Ed.2d 538.................................................................................................................Pg. 7

  • Peck v. United States,
  • (1979, SD NY) 470 F.Supp. 1003....................................................................................Pg. 3

  • Poller v. Columbia Broadcasting System, Inc.,
  • 386 U.S. 464, 473, 82 S.CT. 486, 491,
  • 7 L.Ed.2d 458 (1962).......................................................................................................Pg. 7

  • Sheehan v. United States,
  • 896 F.2d 1168 (9th Cir. 1990)......................................................................................Pg. 3, 8

  • T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n,
  • 809 F2d. 626, 630 (9th Circuit 1987)................................................................................Pg. 8

  • Ward v. Caulk,
  • 650 F.2d 1144-47 (9th Cir. 1981)....................................................................................Pg. 8

  • - iv -


    TABLE OF STATUTES AND ACTS OF CONGRESS

    5 U.S.C. 8101 et seq..................................................................................................... Pgs. 2 - 4

    5 U.S.C. 8123................................................................................................................Pgs. 1 - 6

    5 U.S.C. 8128 (a) ......................................................................................................Pgs. 1; 3 - 5

    28 U.S.C. 1346(b), 2671 et seq...................................................................................... Pgs. 1, 8

    28 U.S.C. 2401(b).......................................................................................................... Pgs. 1, 8

    20 C.F.R. 10.7(a).............................................................................................................Pg. 2

    20 C.F.R. 10.506............................................................................................................. Pg. 2

    Fed.R.Civ.P. 12(b)(1)....................................................................................................... Pg. 8

    Fed.R.Civ.P. 12(b)(6)....................................................................................................... Pg. 8

    Fed.R.Civ.P. 56(c)............................................................................................................ Pg. 7

    - v -


    OPINIONS BELOW

    The unpublished opinion of the Ninth Circuit Court of Appeals, entered on August 20, 1998 and denial of appellant's Petition for Rehearing, entered on January 14, 1999, appear in the appendix hereto, as Appendices A and B respectively.

    JURISDICTION

    The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1); ie., that the Supreme Court may review cases in the federal courts of appeal by writ of certiorari granted upon petition. The unpublished opinion of the Ninth Circuit Court of Appeals was entered on August 20, 1998. The Ninth Circuit's order denying appellant's Petition for Rehearing and rejection of Suggestion for Rehearing En Banc was entered on January 14, 1999. This petition for certiorari is being filed within 90 days of that date after the United States Supreme Court denied petitioner's Application for Extension on April 7, 1999.

    STATUTES INVOLVED

    The statutory construction and application of the following titles are the bases for the complaints in this petition for writ of certiorari to the United States Supreme Court:

    1. 5 U.S.C. 8123

    2. 5 U.S.C. 8128(a)

    3. 28 U.S.C. 1346(b), 2671 et seq.

    4. 28 U.S.C. 2401(b)

    STATEMENT OF CASE

          On March 31, 1995, petitioner filed his Federal Torts Claim Act ("FTCA") complaint in the United States District Court for the Central Division alleging tortious conduct arising from events that occurred during the processing of his Federal Workers' Compensation Act ("FECA") claim. On March 22, 1996, the court entered its order granting defendant's motion to dismiss with leave to amend as to FTCA claim; and granting defendant's motion for summary judgment as to plaintiff's procedural due process claim.

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    On April 1, 1997, the court entered its judgment granting summary judgment in favor of defendant United States of America. Plaintiff petitioned the court for relief via motion for reconsideration pursuant to Rule 59(e) of the Fed.R.Civ.P. (C.R. 107) which was denied and entered on May 23, 1997 (C.R. 117). Plaintiff subsequently filed his Notice of Appeal within 60 days of the original order granting defendant United States summary judgment. The Ninth Circuit Court of Appeals entered its affirmation of the district court's award of summary judgment on August 20, 1998. Plaintiff filed his petition for rehearing on October 9, 1998 which was denied by order and filed on January 14, 1999.

         On November 25, 1998, one month after the petitioner submitted his Petition For Rehearing, two specific federal regulations, inter alia, were published1 but enacted while the petitioner's claim was pending appeal to the Ninth Circuit (submitted November 16, 1997). Each new regulation is aimed at curtailing activities that the petitioner has alleged as being violated in his action since 1983. Petitioner also pointed out the fact that 5 U.S.C. 8123 already provides the same protection; ie., against tampering with physicians, their reports, and the forms designed to protect a whole class of individuals; federal employees covered under the Federal Employees' Compensation Act (5 U.S.C. 8101 et seq.). These new federal regulations, 20 C.F.R. 10.7(a) and 20 C.F.R. 10.506 both mirror the intent of 5 U.S.C. 8123. The significance here is that [a]ll of the petitioner's claims, contrary to the decision rendered below, did not occur on or before 1991. The petitioner's workers' compensation claim was viable and still being adjudicated up to and through 1996. A November 28, 1995 copy of the Office of Workers' Compensation Memorandum To The Director is attached below as Appendix C. (C.R.82 at page 53). To date, petitioner's work related injuries remain


    120 CFR (Code of Federal Regulations) Parts 10 and 25; published in the Federal Register, November 28, 1998 (63 FR 65284).


    - 2 -


    compensable under the F.E.C.A. The case thus presents important questions under the Constitution of the United States,namely the Fourteenth Amendment; the subtle erosion of life, liberty, and due process, including statutory and legal principles. Petitioner's administrative claim and subsequent torts claim action in the District Court is predicated upon recurrent negligent processing of his workers' compensation claim. Petitioner submitted sufficient evidence; i.e, affidavits, declarations, and admissions under oath by agents of the defendant admitting to or proving that a pattern of conduct exist which was both continuous and unlawful. Conduct to which the respondent does not deny. As a result, the petitioner should have prevailed with judgment as a matter of law where (1) requirements of Fed.R.Civ.P 56(c)are not met; (2) where fraudulent concealment is entwined; Holmberg v. Armbrecht, 327 U.S. 392, 397, 66 S.Ct. 582, 585, 90 L.Ed. 743 (1946). (Quoting Bailey v. Glover, 88 U.S. (21 Wall.) 342, 348, 22 L.Ed. 636 (1874), Hohri v. United States, 782 F2d. 227 (D.C. Circuit); factual disputes as to the extent of the governments concealment precludes summary judgment. Liuzzo v. United States, 485 F. Supp. 1274 (E.D. Mich.1980). (3). where continuous torts are entwined; Gross v. United States, 723 F.2d 609 (1983); 676 F.2d 295 (1982); Sheehan v. United States 896 F.2d 1168 (9th Cir. 1990); where concealment of the last tort, accrual from date plaintiff became or reasonably should have become knowledgeable about injury and its cause. Peck v. United States (1979, SD NY) 470 F.Supp. 1003). Thus those claims occurring in 1992 are timely under 5 U.S.C. 2401(b) as a result of the April 5, 1994 filing of petitioner's administrative claim but ruled "meritless" by de facto judicial jurisdiction--jurisdiction that congress delegated to the Secretary of Labor under the "F.E.C.A." (5 U.S.C. 8101 et seq.) resulting in a conflict of statutory construction and application of titles 5 U.S.C. 8123 and 5 U.S.C. 8128(a), and "inconsistency" with long-established policies of the U.S. Department of Labor.

    - 3 -


    REASONS FOR GRANTING REVIEW

    When the appearance of justice has been tainted by jeopardy of procedurally insufficient ruling, both ethical integrity is offended and public trust in our legal system devastated.

    1.   The continuous or simultaneous adjudication of a federal employee's Federal Workers' Compensation Act claim and Federal Torts Claim Act litigation in the U.S. District Court creates a conflict in administration where the F.E.C.A. decision, though not mandatory, grants review based on the merits of identical issues characterized as meritless by the appellate court.

         The decision of the Ninth Circuit Court of Appeals has created an intolerable conflict in administration of claims covered under the "FECA" where decisions, though not mandatory, grant review based on the merits of identical issues characterized as "meritless" by the appellate court. This decision is not only at war with the well established statutory construction and application of titles 5 U.S.C. 8123 and 5 U.S.C. 8128(a) but is also "inconsistent" with long-established policies of the U.S. Department of Labor. Reviews of administrative claims under 5 U.S.C. 8128(a), though not mandatory, are based on the merits of newly presented evidence. Appendix C. (C.R. 82 at page 53). Thus a discretional function bestowed upon the Secretary of Labor by congressional intent. The consequences of appellate ruling has thus rendered a whole class of federal employees covered under the "FECA" (5 U.S.C. 8101 et seq.) susceptible to de facto judicial jurisdiction where congressional intent sought to restrict.

    2.   The legal issues utilized in the Ninth Circuit's calculation of accrual causes a conflict in statutory construction and application where allegations of concealment of vital information prevents the petitioner from alleging crucial elements of his claim. Liuzzo v. United States, 485 F. Supp. 1274 (E.D. Mich.1980).

    - 4 -


        This decision has created an intolerable conflict for federal employees covered under the "FECA" by ruling conduct restricted by 5 U.S.C. 81232 "meritless". The appellate court decision is not only at war with the well established statutory construction and application of the statute but is also "inconsistent" with long-established policies3 of the U.S. Department of Labor. The holding in Liuzzo v. United States, 485 F. Supp. 1274 (E.D. Mich.1980) is an analogous case where the claim did not accrue until plaintiffs had reason to believe government agent was person who caused injury where agent and other government officials, including the President, had asserted that other persons were responsible. Here, the petitioner's knowledge was limited to what the government provided; namely, that the evidence was exculpatory and thus inadequate for reversal. Petitioner was diligent and made numerous document requests under the Freedom of Information Act ("FOIA") to which the respondent falsely claimed compliance (C.R. 69 at pages 30 - 31 (Admissions & Responses 31, 32, 34)--attached hereto as Appendix D). For the first time, several of the torts characterized by the Court as "time-barred" surfaced as a result of discovery in another unrelated court action in 1992 (C.R. 82/Calliet deposition). It was at this time petitioner learned of the government's role in the continuous fraudulent processing of his "FECA" claim; a pattern of conduct covering a period of 15 years. Prior to that date there was no evidence of any "pattern of unlawful conduct" on anyone's behalf. One obvious reason, the petitioner never saw the same referral doctor on more than one occasion. At that time, the record reflected isolated and sporadic incidents to which the petitioner filed numerous petitions under 5 U.S.C. 8128(a) as provided. Subsequently, petitioner filed his administrative claim within two years of the discovery date of a "pattern of unlawful conduct". Conduct restricted by 5 U.S.C. 8123 and, as a result of appellate


    2illegal contact: illegal telephone calls; inaccurate, outdated, and biased physician referral forms and "Statement of Accepted Facts"; shopping around for opinions in support.

    3psychological testing as required ; timely processing of claims; acquisition of second medical opinions as required.


    - 5 -


    ruling by the Ninth Circuit rendering identical conduct "meritless", causing a conflict and de facto judicial jurisdiction where congress specifically delegated those matters to the Secretary of Labor.

    3.     The legal issues presented in Gibson v. United States, 781 F.2d 1334, 1344 (9th Cir. 1986) causes a conflict in statutory construction and application where allegations of fraudulent concealment capable of tolling of the statute of limitations are in question. Hohri v. United States, 782 F2d. 227 (D.C. Cir. 1986).

         The decision of the Ninth Circuit Court of Appeals has created an intolerable condition for federal employees covered under the "FECA" by ruling conduct restricted by 5 U.S.C. 8123 and capable of tolling the statute of limitations under allegations of fraudulent concealment, "meritless". The consequences of this appellate ruling has thus rendered a whole class of federal employees susceptible to de facto judicial jurisdiction where congressional intent sought to restrict by bestowing jurisdiction upon the Secretary of Labor. Thus petitioner should have benefited from the theory of fraudulent concealment, Holmberg v. Armbrecht, 327 U.S. 392, 397, 66 S.Ct. 582, 585, 90 L.Ed. 743 (1946). (Quoting Bailey v. Glover, 88 U.S. (21 Wall.) 342, 348, 22 L.Ed. 636 (1874), Hohri v. United States, 782 F2d. 227 (D.C. Circuit) where the defendant is "impeached" and later submits testimony that corroborates the petitioner's claims as viable genuine factual issues affecting the calculation of accrual (i.e., fraud, deceit, and concealment of vital information that prevented the petitioner from alleging crucial elements of his claim, namely, that these were continuous torts--"a pattern" of both continuous and unlawful conduct). (See C.R. 87/Statement of Genuine Issues In Opp.)

    4.   Where legal issues are in dispute, the procedures utilized in the Ninth Circuit's award of summary judgment causes a denial of due process by inverting the burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552, 91 L.ED.2d 265 (1986).

    - 6 -


         An award of summary judgment where there exists genuine issues of material fact, the conditions of  Fed.R.Civ.P 56(c) are not met, and all reasonable inferences and genuine factual disputes are in favor of the movant denies due process by inverting the burden of proof. Although, once confronted, plaintiff must adequately refute allegations with viable material factual issues, he is still [g]uaranteed that the evidence will be viewed in the light most favorable to the him and all reasonable inferences will be drawn in his favor, Poller v. Columbia Broadcasting System, Inc., 386 U.S. 464, 473, 82 S.CT. 486, 491, 7 L.Ed.2d 458 (1962). The Court cannot justify a ruling of time-barr where a petitioner submits affidavits that prove on the face of the record that his F.E.C.A. claim was still being adjudicated up to and through 1996, his administrative claim submitted on April 5, 1994 and where the affidavits are uncontested by the respondent. Matsushita Elec. Industrial Co. v. Zenith Radio, 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). A ruling that all plaintiff's claims accrued on or before 1991 constitutes a deprivation of due process under the current conditions; especially where the petitioner's legal action is predicated upon continuous and unlawful activity up to and through 1996; unlawful activity that the respondent does not deny but rather pleads exemption under the F.E.C.A. to which none applied. A party is entitled to summary judgment where the documentary evidence produced by the parties permits one conclusion. Anderson v. Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 91 L.E.d.2d 202 (1986). Summary judgment should be granted if there are no genuine issues of material fact and the conditions of Fed.R.Civ.P. 56(c) are met, Celotex Corp. v. Catrett, 477 U.S. 317, 322- 23, 106 S.CT. 2548, 2552, 91 L.ED.2d 265 (1986). Because credibility is not an issue on summary judgment, the nonmovant's evidence must be accepted as true for purpose of the motion. The court cannot discount a nonmovant's affidavit for lack of credibility, and it must draw all reasonable inferences and resolve all genuine factual disputes in favor of the nonmovant. Reasonable doubts as

    - 7 -


    to the existence of a material factual issue resolved against the nonmoving party denies due process where petitioner submits affidavits, declarations, and admissions under oath by agents of the defendant admitting to or proving that a "pattern of conduct" exists which was both continuous and unlawful. A pattern of conduct to which the respondent does not deny and allegations that the court could not and did not dismiss under Fed.R.Civ.P. 12(b)(1) or 12(b)(6). (See C.R. 87 at pages 2- 10/Alleged Uncontroverted Facts And Opposition's Response) Under the "FTCA", a continuing tort is sufficient to toll statute of limitations. Continuing tort sufficient to toll statute of limitations prescribed by 28 U.S.C. 2401(b) is occasioned by continued unlawful acts, not by ill effects from original tort. Maslauskas v. United States. (1984, DC Mass) 583 F.Supp. 349; Doe v. Blake 809 F.Supp. 1020 (D.Conn 1992); Ward v. Caulk, 650 F.2d 1144-47 (9th Cir. 1981) "[a] continuing violation is occasioned by continuing unlawful acts, not by continued ill effects from the original violation." Accordingly, effect on accrual is such that accrual starts from the last tort. Exception to the general rule that claim accrues under the FTCA when claimant learns of his injury and its cause exists when a defendant's conduct constitutes a continuing tort. 28 U.S.C. 1346(b), 2671 et seq., Gross v. United States, 723 F.2d 609 (1983); 676 F.2d 295 (1982); Sheehan v. United States 896 F.2d 1168 (9th Cir. 1990). As shown by opinion below, this case involves the interpretation of the statute of limitations under 28 U.S.C. 2401(b) and the calculation of accrual which, in its application to the petitioner, has been construed to cause several conflicts in the administration of the "FECA" and tainted the "appearance of justice". Reasonable doubts as to the existence of a material factual issue are resolved against the moving party, T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F2d. 626, 630 (9th Circuit 1987)4.


    4Over 70 new actions referenced in Shepard's Citations; 65 pending in the 9th Circuit alone.


    - 8 -


    CONCLUSION

         The Supreme Court should grant Certiorari and thereafter vacate the August 20, 1998 unpublished opinion and Judgment of the Ninth Circuit. As an alternative, a ruling of summary reversal and judgment as a matter of law should be granted.

                                                                                            Respectfully submitted,                                                                                                                                                                                 ______________________________

  •                                                                                     Gary B. Jefferson
  •                                                                                     5408 West Boulevard
  •                                                                                     Los Angeles, CA 90043 
  •                                                                                     (323) 293-7572
  •                                                                                     Pro Se Petitioner
  • - 9 -


    CERTIFICATE OF SERVICE

    I, GARY B. JEFFERSON, a party to the above-entitled action, hereby certify that on this 14th day of April, 1999, one copy of my PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT was mailed, first class postage prepaid to the following counsel for the defendant United States of America, one copy to the Solicitor General, and the original plus 40 copies to the Clerk of the court as addressed below.

    Attorneys for the defendant:

  • NORA M. MANELLA                                                Seth P. Waxman
  • United States Attorney                                                  Solicitor General  
  • LEON W. WEIDMAN                                                Department of Justice
  • Assistant United States Attorney                                   Washington, D.C. 20530
  • KATHERINE M. HIKIDA                                          (Certified Receipt # P 387 734 357)      
  • Assistant United States Attorney                            
  • 300 North Los Angeles Street
  • Room 7516, Federal Building
  • Los Angeles, CA 90012
     
  • Clerk of the Court
  • United States Supreme Court
  • 1 First Street N.E.
  • Washington, D.C. 20543
  • (Certified Receipt # P 387 734 356)
  •      I  further certify that all parties required to be served have been served.

                                                                                               ______________________________

  •                                                                                        Gary B. Jefferson
  •                                                                                        5408 West Boulevard
  •                                                                                        Los Angeles, CA 90043
  •                                                                                        (323) 293-7572
  •                                                                                        Pro Se Petitioner

  • STATEMENT OF FACTS

         Petitioner's claims, one through four listed below, are both continuous and unlawful; continuing up to and through 1996. Respondent does not deny allegations but instead plead exemptions under the F.E.C.A. to which none were applicable as validated by appellate court jurisdiction. Petitioner should have benefited from the holding in Doe: "to toll the statute of limitations under continuing violations doctrine, plaintiff must show more than the occurrence of isolated or sporadic acts." Under continuing violations theory pursuant to which statute of limitations is tolled if defendant is engaged in a pattern of continuing violations until the course of conduct is complete, where the last act alleged to be part of the ongoing pattern occurs within the filing period, allegations regarding earlier acts are not time barred. Petitioner submitted affidavits, declarations, and admissions under oath by agents of the defendant admitting to or proving that a pattern of conduct exists where:

    1.    Documents were repeatedly tampered with, falsified or secretly substituted for the purpose of controversion and omission of facts to support a denial of benefits (i.e., physician reports and forms; affidavits; etc.) See Admissions 31 and 34. (C.R. 69 at page 30 and 31--attached hereto as Appendix D). Compare answers to defendant's response in Appellee's Brief at page 7, footnote 4. Defendant states:

    - 1 -


         Thus petitioner should have benefited from the theory of fraudulent concealment, Holmberg v. Armbrecht, 327 U.S. 392, 397, 66 S.Ct. 582, 585, 90 L.Ed. 743 (1946). (Quoting Bailey v. Glover, 88 U.S. (21 Wall.) 342, 348, 22 L.Ed. 636 (1874), Hohri v. United States, 782 F2d. 227 (D.C. Circuit) where the defendant is "impeached" and later submits testimony that corroborates the petitioner's claims as viable genuine factual issues affecting the calculation of accrual (i.e., fraud, deceit, and concealment of vital information that prevented the petitioner from alleging a crucial element of his claim, namely, that these were continuous torts--"a pattern" of both continuous and unlawful conduct).

    2.    5 U.S.C. 8123 was repeatedly violated for the purpose of controversion and omission of facts to support a denial of benefits; (i.e., illegal telephone calls; See C.R. 84 at page 23 in light of C.R. 84 at pages 66 - 68; attached hereto as Appendix E; intimidation; inaccurate, outdated, biased physician referral forms (See C.R. 82 at page 56), including the "Statement of Accepted Facts"; illegally substituted physician referral forms; See C.R. 82 at page 40 (Original Calliet Report) and the illegal substituted report (C.R. 82 at pages 41 - 43) as authorized by "OWCP" (C.R. 82 at page 58)

    3.    Policies, regulations (20 C.F.R. 10.140), and mandatory directives were repeatedly violated for the purpose of controversion and omission of facts to support a denial of benefits; (i.e; lack of psychological testing by all "OWCP" referral physicians (C.R. 88 at page 25; C.R. 88 at page 36); malingering up to 3 years at a time in processing claims causing inaccurate, outdated, biased, physician referral forms, including the "Statement of Accepted Facts"; See at pages 30 - 32 (Admissions and Responses 177 - 182) and C.R. 82 at pages 47 - 50 (Attachments); lack of second opinions on matters in dispute. See C.R. 82 at page 33 (Admission and Response 34).

    - 2 -


    4.    All torts were continuous up to and through 1996, including recurrent acts that constituted gross negligence, collusion, and bad faith; before and after the fact, for the purpose of controversion, evading judicial review and omission of facts to support a denial of benefits.

                                                                                               Respectfully submitted,

                                                                                               ______________________________

  •                                                                                        Gary B. Jefferson
  •                                                                                        5408 West Boulevard
  •                                                                                        Los Angeles, CA 90043
  •                                                                                        (323) 293-7572
  •                                                                                        Pro Se Petitioner
  • - 3 -


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