United States v. Demko

PETITIONER:United States
RESPONDENT:Demko
LOCATION:U.S. District Court for the Southern District of California, Central Division

DOCKET NO.: 76
DECIDED BY: Warren Court (1965-1967)
LOWER COURT: United States Court of Appeals for the Third Circuit

CITATION: 385 US 149 (1966)
ARGUED: Nov 08, 1966
DECIDED: Dec 05, 1966

Facts of the case

Question

Audio Transcription for Oral Argument – November 08, 1966 in United States v. Demko

Earl Warren:

No. 76 United States, petitioner vs. Steven Robert Demko.

Mr. Salzman?

Richard S. Salzman:

Mr. Chief Justice, may it please the Court.

Respondent commence this suit against the United States under the Tort Claims Act to recover for injuries he incurred in the cause of work he was performing while a Federal prisoner in the Federal Penitentiary of Louisburg, Pennsylvania.

The facts in the case are not in dispute for purposes of this hearing.

In private life, respondent had employed upon occasions as a carpenter.

While imprisoned he was assigned to do maintenance work.

In the course of replacing a broken window some height above the floor, he lost his balance, fell and was severely injured.

As a result of that injury, he applied for an award of workmen’s compensation.

Under the prisoners compensation statute, 18 USC 4126, he was awarded such compensation in the sum of $180 a month.

But as a result, this summer of Congress raising generally, the labels of workmen’s compensation paid throughout the United States to all non-government employees.

He is now receiving $245 a month in compensation from the United States for the injury he received in the course of his prison work.

The only question presented in this case is whether that prisoner compensation remedy is like all other workmen’s compensation remedies provided for any employee or anyone working for the United States, an exclusive one and therefore precludes this suit under the Tort Claims Act based on those very same injuries.

Or stated the other way, whether Congress intended the prisoner compensation remedy to be different from the compensation remedies provided for every other soldier or civilian employee of the government or any Federal employee of any branch with the government and that the prisoner was not only entitled to workmen’s compensation without regard to fault.

Earl Warren:

Is it entitled of right?

Richard S. Salzman:

Yes, Your Honor, the regulations on the statute provide that, it’s on 28 CFR 31.2, it provides that anyone who is injured will be granted an award of compensation, medical benefits and the like.

But it’s not payable when left his service.

What can you say to that?

Richard S. Salzman:

The answer, yes.

The compensation is actually paid when he leaves the prison the theory being that compensation is to replace lost earning power and he had been earning.

But that’s not entirely accurate, sir.

If the prisoner was employed in prison industries where he did get a salary, then he does continue to receive his pay while in prison even though he can’t work for prison industries.

Industry is a job to the apprentice program, contain a small stipend and the prisoner may earn several hundred dollars a year.

He continued to get that.

Was there a compensation schedule?

Richard S. Salzman:

The compensation schedule follows the Federal Employees Compensation Act.

That is the administrators had interpreted as meaning that for total disability, a prisoner who will receive the minimum award under the Federal Employees Compensation Act on a theory that the prisoner compensation statute says, in no event shall compensation under that statute exceed would be given to Federal employee.

That’s $245 a month.

There is a schedule of benefits paid in a measure of the minimum wage.

Whatever the Federal minimum wage is, it’s determined as to what the prisoner’s earning power, it’s a purposes of paying benefits.

Richard S. Salzman:

Indeed, this is also payments paid for lost of a member for example.

Off hand, I would assume that the prisoner would loss the hand.

I asked the prisoner to calculate that and receive about $8,000 in cash award, probably not in a lump sum benefit as a matter of a practice plus any disability benefits he would result from it.

Well, isn’t it a fact that a compensation system on par with that (voice overlap) for Federal employee?

Richard S. Salzman:

As far as I can see, yes, Your Honor, is and it can par with Federal employees.

It’s applied without regard to negligence on the part of the prisoner or fault on the part of the government.

Indeed, in many circumstances, the prisoners who were employed in jobs where they’re working alongside Federal employees.

For example, in some say, a prisoner is used to help collect trash and garbage and part of the crew is made up of ordinary Federal employees – GS 1, GS 2 employees – and when did we have a case where prisoner’s injured when he fell of the truck.

And we would say that he is entitled to compensation, if he is totally disabled.

If the employee had fallen off the truck, it’s quite clear that he would be entitled to compensation and would not be entitled to sue in court.

Abe Fortas:

Is there any difference in the discretionary element of the scheme?

Richard S. Salzman:

Not really, Your Honor.

The Act itself, that is the compensation Act that was passed, Mr. Justice Fortas, in 1932 originally when there is no recovery against the United States at all and no Tort Claims Act.

It’s passed the Attorney General’s urging to provide protection for prisoners working in prison industries and the Act, it says, “Compensation may be paid out of the Prison Industries Fund” —

Abe Fortas:

How does that compare with the language of the Federal Employees Compensation Act generally?

Richard S. Salzman:

Well, the Federal Employees Compensation Act –

Abe Fortas:

Such as may to?

Richard S. Salzman:

Well, I can say the actual lines of the statute, which is on the Brief, it says the — under regulations promulgated by the Attorney General, who is authorized to promulgate a workmen’s compensation statute.

Abe Fortas:

This is for prisoners.

How about the others, how about the general?

Richard S. Salzman:

There is certainly positive language on the Federal Employees Compensation Act that will be paid.

Abe Fortas:

And it’s incumbent, it’s mandatory?

Richard S. Salzman:

Yes.

But I think, however, it’s fair to state whether it was amended that Congress certainly assumed that a —

Abe Fortas:

Apart from that, I take it that your adversary puts a good deal of emphasis upon that in reaching his conclusion that a compensation paid under the Prisoner’s Act does not preclude a recovery under the tort claim, isn’t it?

Richard S. Salzman:

Well, he puts a regular emphasis on it but I would emphasize this in answer, the Act was original statute.

It passed in 1932 and the regulations promulgated there under and immediately made on a water compensation mandatory.

As any prisoner who was injured inside the compensation –

Abe Fortas:

Suppose that you maintain the Attorney General’s regulation, had maintained the discretionary feature of it, in your opinion, would that affect the exclusive nature of the scheme?

Richard S. Salzman:

I really don’t think the answer that it should affect the exclusive nature of the scheme where in fact there isn’t award made and the substantial award made.

Richard S. Salzman:

I think if you had a problem with the Attorney General, we’re going to say this prisoner is going to get an award of that prisoner’s not getting an award.

That might be such a system.

But the only discretion here is leaving the detail of the implementation of the system to the Attorney General.

Congress assumes such a system would be put in order as it was put into effect more than 30 years ago and has been maintained in effect.

The people administering the system under the regulations have no discretion.

In other words, a prisoner is entitled to an award under the regulations and always has that.

Abe Fortas:

With or without fault?

Richard S. Salzman:

With or without fault; that’s on ordinary workmen’s compensation system.

It was no question, for example, when this man in essence — what essence happened to that particular respondent if he alleged in his tort should we fail to provide him with a safe place to work.

And we raise no defenses in the compensation award.

We agreed he was entitled to it.

We didn’t suggest that we had or we hadn’t.

There was just an industrial accident.

This is a sort of accident and that the scheme covered this sort of accident and it happens in any sort of work conditions.

(Inaudible)

Richard S. Salzman:

Actually, well, I’m going to give you a specific example.

Had respondent been engaged in this – he was a carpenter – had he been engaged in doing the same sort of work, that is putting windows in a private dwelling for his private employer in his home State in Pennsylvania, he would have been entitled to an award, indeed he would be even restricted to an award of compensation under the Pennsylvania statute.

He would, under the compensation of laws in Pennsylvania, it would have been less than he is actually getting now from Federal Government.

It’s also clear on the Pennsylvania law, we’ve cited that on our Brief, that he couldn’t sue his employer under the Pennsylvania law.

He couldn’t saw her for tort, recovery of tort.

As a matter of fact, it happen in most State.

The award that prisoner getting in this circumstance was substantially less than he would get under the Prisoner’s Compensation system.

The Long Sherman’s Act, for example, provides a maximum recovery for the defendant upon salary of approximately $70 a week which compares something quite reasonable to the award being given to the prisoner.

I might add, of course, that like all compensation system, if the illegibility for an award to preclude suit against the prisoner, there’s no problem here.

We could prove that third person was negligent.

He was certainly be free to sue third-person account in tort.

All for that matter, if the Government came in and said, “You weren’t injured” or someone has found you weren’t injured in circumstances, we aren’t entitled to compensation; that if you are not covered by the system, then of course again, he could sue.

Indeed, I would point out that the decision below is quite unique.

But as far as we know, there is no compensation system anywhere in the United States where an employee is given the right both to attain his compensation recovery which is they say again is paid without regard to fault and without regard to contributory negligence and without regard to the other delays and tort litigations that always go on and it sometimes may be done by just settlement.

And also, while retaining in one hand that absolute right to recovery, suing his employer, there may be nothing on to award about this system but allowing both recoveries.

Richard S. Salzman:

But I would think that if Congress weren’t had intended to do that, it would’ve said so quite clearly that surely there was some indication of it.

Abe Fortas:

You mean in these instances, there might be inaction.

And he had a recovery, he would not have to quit it to receive this award?

Richard S. Salzman:

No, sir.

Under this system?

Richard S. Salzman:

Oh, no, no, the point I was making at is that we know of no system generally.

There was certainly no Federal system where he is entitled to a compensation award and also to try as hand to the suit in tort to see if he could do better.

As against his own employer here.

Richard S. Salzman:

Well, that’s the problem, of course.

It is employment and there would be employment if we were employed for Federal Prison Industries end.

That’s certainly a clear employment.

But that’s not this case?

Richard S. Salzman:

No.

This system is not substantially different from that other than the fact that the prisoners being required to do — maintenance work, training work and I allow it as it must be passed away.

This is not a network system; we are not suggesting that this covers system where man is making little ones out of the big ones out in the field.

He is in fact engaged in putting in a plate glass window that blown out the Louisburg Broiler Plant.

Other prisoners are engaged in helping maintain and operate the prison.

It’s a highly desirable program.

After all, one of the purposes of putting the man in prison, in addition to keeping him away from anyone else, is to get amused and help to working and to doing responsible jobs and working with other people.

This is not substantially different from an ordinary employment system.

There’s nothing in the way the prisoners would being work.

That would make that so any difference.

I might go on to the point out that it’s true as my opponent relies on heavily as the Court below relied on that the prisoner compensation statute itself does not say it exclusively.

It does not what?

Richard S. Salzman:

Does not say, in so many words and it is to be in exclusive remedy.

We’ve pointed out that this Court has faced that problem on at least two occasions regarding Federal seamen.

If you recall Yohansen and Patterson cases which came up in the circumstances of Federal seamen who were employed on Federal owned vessels.

At the time of question seamen rangered in the course of their work, and they were entitled to an award under the Federal Employees Compensation Act.

At that time, the Compensation Act did not say it was an exclusively remedy.

Moreover, to this day, the Federal Employees Compensation Act does not say in it’s an exclusive remedy for seamen.

Richard S. Salzman:

Nevertheless, this Court held it was an exclusive remedy.

It looked to the background of what the Congress had intended to do.

And so no indication that on the legislative history of the Public Vessels Act to have substantive of the Act which indicated any Congressional intend to give additional benefits to those who already had some.

The court said it was understandable that Congress didn’t make the employees compensation system in exclusive one in so many words because at the time it was passed, there wasn’t any other remedy for Federal employees against the United States and it was necessarily the exclusive and only remedy.

The same is true with the Prisoner Compensation statute.

It was passed in 1934, some 12 years before the Tort Claims Act.

When it was passed, it was the only remedy that any prisoner had.

It’s true that the Tort Claims Act is passed in 1946 and that under this Court decision in Muniz the prisoner could then sue under the Tort Claims Act.

However, when the Prisoner Compensation system was expanded in 1961 to cover all working prisoners, it was done so at the urging of the Attorney General once again, I mean far from the Attorney General not one any ground it was, the Attorney General was looking for way to pay these prisoners who were injured and he pointed out correctly that it doesn’t allow Federal Courts at all held that Federal prisoners had no remedy under the Tort Claims Act and at least one of those cases of certiorari had been denied.

In these circumstances, he went to Congress and asked for the expansion of the prison industries remedy to cover all working prisoners to give them equal treatment.

And the committee report which we’ve cited, the only one which is very important to page 21 on our Brief, pre-states what the Congress and the Committee thought.

Let me quote, “Presently, there’s no way on the general law to compensate prisoners injured while so engaged” – that is engaged in operation/maintenance work like respondent.

Their only recourse has been to appeal to Congress.

And this Committee has reported number of private bills in the relief of such prisoners.

In short, when Congress expanded the statute, the coverage to include, contains the provision or continued the provision that in no event shall recover exceed that under the Federal Employees Compensation Act.

Surely, indication that it did not intend to treat this compensation system any differently than he treated any other one.

Now in United States against Muniz which is the other case, which my opponent here relies on very heavily, this Court considered whether a prisoner could sue under the Federal Claims Act and held unanimously that he certainly could.

And the opinion contains language to the effect that the presence of a compensation system does not necessarily preclude the suit in tort.

But we think, and I think we noted in the Second Circuit whose decision this Court affirmed and unanimously agrees with us because as you know, the Second Circuit was exactly the opposite result of the Court here, the Third Circuit did in this case and we think that language as we understood in consideration with the argument which the argument was then advancing.

The government suggested that Congress had provided a remedy in small area for some prisoners and this indicated the Congressional intent never if not to provide any other remedy for any other prisoners.

That was the argument which this Court rejected.

But the Court didn’t consider whether the fact that prisoner had a compensation remedy and was in fact being paid, would preclude them from bringing suit.

Indeed, the Court didn’t mention Patterson, which is the seamen in this case, and then decided only a few terms or earlier, and mentions Yohansen only on the footnote in passing.

I think that the decision in Muniz doesn’t imply that one who has got an adequate, simple, certain remedy is also entitled to sue United States in tort in addition to that remedy.

I’m not saying of anything wrong of that, Your Honor.

It’s just that it’s unusual and it would be odd of the ordinary and one would expect Congress so said something like that and if you particularly wanted to do so.

I might add that once again that no employee of the Federal Government at all.

Any branch of the government, civilian or military has this right for injuries incurred there in the course of work.

And indeed, as far as we know, the uniform general rule in Workmen’s Compensation Act is that what was covered by the injury can only sue to make third parties or someone, some person other than his employer.

Earl Warren:

Would Muniz been entitled to come into the Act under the Compensation Act?

Richard S. Salzman:

Indeed it would not.

Muniz himself was injured on the course of practices.

You pinned him to private medicate.

Henry Winston, as a matter of fact, was a medical malpractice matter.

And more than that, the three cases which service granted was in conflict, none of those prisoners could have recovered under the compensation Act either.

I might add that in this regard, that the Prisoners Compensation statute is probably consistent with all workmen’s compensation matters.

For example, if you are injured by you are employer when you’re not working, then you’re free to sue your employer in tort and you are also not entitled to workmen’s compensation.

That’s precisely what would happen on the circumstances here.

If this fellowmen had been injured to the full negligence of the government at the time when it wasn’t part of his employment, it wasn’t a risk of employment which is protected, then he would be entitled suit just as Mr. Muniz was.

But there is nothing unusual about the rule saying he can’t sue when he’s already been given another remedy.

I might add, as I mentioned earlier, that the remedy is fully comparable, we thought, to any other workmen’s compensation remedies.

I would not say that it is as generous as given to full time Federal employees selected at least supposedly for that, in the merit.

But nonetheless, it’s not inadequate and it’s certainly matches the level of those keeping the ground level, threshold level given to Federal employees.

The –

Do you have any form with the list of deficiencies or differences in this Act set forth in your — in the respondent’s Brief on page 24 and the following?

Richard S. Salzman:

Certainly, Your Honor.

Some of them, I’m afraid, are inaccurate and some of them are irrelevant and some of them I think should not make any difference at all.

As we pointed out earlier, it’s mandatory how big it by regulation of the Attorney General in force for some 35 years rather than expressly by statute of Congress.

But the second one, the amount, if they would arrest entirely was in the discretion of the Attorney General, is only theoretical problem.

In essence, the Attorney General has set the regulation set that the certain scale to be followed and it’s followed in every case.

It’s not very comprehensible to prisoner.

All they really means is that these details of the compensation system has spelled out by regulation rather by statute.

I might add, do we have this problem or the problem came up in the context of persons who were employed by nonappropriated fund instrumentality to the military service.

In short, the officers message which were run, Justice Fortas, out of the fund they take in rather in treasury appropriation.

And the Congress there passed the statute which said that those employees shall be given/provided workmen’s compensation and left all the details up to the people administering it.

They simply went out and got the usual workmen’s compensation policy that anyone else could have done.

Every Court of Appeal, which has considered it, had held that that was exclusive to the policy they have.

Abe Fortas:

Your opponent also wants to guide us procedure on deficiencies in this scheme and that is no opportunity for administrant of review and no provision that have a personal position pursuant his examination and so on.

Assuming that all that were true, what’s your response to his contention that that shall leave this Court to conclude that this is not a preclusive remedy.

Richard S. Salzman:

Well, I think two.

Richard S. Salzman:

First, I don’t have to assume that this should but it isn’t.

And secondly, I thought –-

Abe Fortas:

So it’s not true?

Richard S. Salzman:

No, sir.

The regulations provide, for example, that one may file a claim for compensation but within a year after release from prison, as it is you file normally with file it and upon release and examined by prisoner’s physician who have doctors there.

If you are not satisfied, that’s what you get.

You can file another claim upon release.

Indeed I think the Second Circuit noted that in another decision.

And you can accompany that Second Circuit to your claim with the report of your present physician and to be represented by an attorney after he left prison.

And that’s something inaccurate, sir.

In this case, of course, he was given the full award before he left prison.

Abe Fortas:

How about the point that your opponent makes that the compensation paid to him is subject to being suspended and he’s subsequently convicted of a crime.

Or I suppose that he’s release on parole and the parole revoked that.

I’m at that point.

Richard S. Salzman:

I would certainly not deny that there is a difference in this case of prisoners between the –

Abe Fortas:

Well, is this correct?

Richard S. Salzman:

Only on the sense that, at the regulation as I’ve told actually quite only if he’s put back on jail and not entirely correct even in that case, Your Honor.

The circumstances of this, the compensation is understood to be in lieu of the lost earning power that he got because he could no longer work.

If he’s reconfined that there he was, that then he’s no longer lost any earning power and they could cut off the compensation.

Abe Fortas:

Well, does it resume when he’s released?

Richard S. Salzman:

Yes, Your Honor.

Abe Fortas:

Are you sure?

Richard S. Salzman:

So long advised.

Moreover, if he has dependents, he can continue repay to dependents while he has been reconfined.

Abe Fortas:

But did the dependents have the right to.

That’s what the word, I think.

Richard S. Salzman:

The answer to that case, it would depend upon the circumstance.

If the award were made to dependents, they would get it.

The difficulty with the problem, I would say, Your Honor is that there haven’t been any cases that I come across that we know of –-

Abe Fortas:

And it so admitted that they call this as a good deal of discretion in the Federal Prison Industries authorities, is that right?

Richard S. Salzman:

Well, Your Honor, let me put in this circumstances.

Federal employees under the Federal Employees Compensation Act have no right to judicial review of the actions of the board giving or withholding compensation either.

And to that extent, certainly, there is a problem of whether this thing is the administrate problem.

Abe Fortas:

Oh, I suppose Mr. Demko was arrested for making of another crime and put in jail again.

If your opponent’s Brief is correct, then at that point, the compensation award to him would cease.

Richard S. Salzman:

That’s correct, Your Honor.

Abe Fortas:

So that was he is thereafter be able to bring this suit on the Federal tort side?

Richard S. Salzman:

No, Your Honor, he will not.

But cert—

Abe Fortas:

Alright, let’s suppose he gets sides on parole, it violates parole.

He’s then picked up and put back in jail.

His compensation ceases then?

Richard S. Salzman:

That’s true.

But let me point out once again, Your Honor, we just don’t think that is relevant to this particular problem.

If compensation is understood to be a substitution for the wages you cannot earn, it’s quite clear that if you put back in the Federal Prison where he is provided with food, clothing and shelter, the problem of the wages you cannot earn will be obviated.

If for example, he went on private employment and then he would be put back in jail, his private way would cease immediately.

Abe Fortas:

Well, may be that‘s pretty easy because may be he was not broken or household (Inaudible) the county would pay him enough compensation.

I don’t know why they did that.

Richard S. Salzman:

Well, in that particular circumstances, I think that Mr. Demko is injured and the Federal preclude him from breaking the county since he broke his leg and he couldn’t get away.

But in any event, Your Honor, I think that would never deny that this particular scheme thus is tearing to certain degree to prisoners and that’s necessarily.

The question is whether that should mean any less comprehensive remedy or not I think that doesn’t make it single difference.

I don’t think we should turn on that point, Your Honor.

He would not loss any earning power or any wage earning capacity if you will reconfine.

I’ve covered, Your Honor, and if you don’t have any further questions, and all the points that I’ve intended to make in my opening argument.

I would like to save for a moment for rebuttal if I have it.

Earl Warren:

You may start, Mr. Ziskind?

Gerald N. Ziskind:

Mr. Chief Justice Warren and the distinguished associate judges, I’m somewhat amazed that the government ignored the primary issue of this argument.

And that issue is simply this, has Congress, by reason of the enactment of certain sketchy and restrictive modes of recovery for inmates, thereby obliterated rights which prisoners have under the Federal Tort Claims Act.

And, Your Honors, how can we say that this Prison Industry Fund is a compensation act?

Mr. Salzman speaks about the generosity of the office of the Attorney General.

Gerald N. Ziskind:

That may be.

That is the exercise of discretion on the part of the office of the Attorney General.

But we don’t determine Congressional intention on what the Attorney General does.

We determine Congressional intention upon what Congress has done and the nature of the bills that were introduced relative thereto.

Justice Brennan asked the very pertinent question when he said, “Is there a compensation schedule?”

Mr. Salzman answered the question by saying, “Well, the schedule provides that we can’t pay over the amount that is paid under Federal Employees Compensation.

But he didn’t tell you that there is no minimum.

There is no schedule at all under the so called “Prison Fund Industry”.

The Attorney General determines at his own discretion what will be paid.

He’s paid as always $50 for the lost of a finger.

He is paid as always $4,000 for the loss of a human life.

Now, when Congress was considering the enactment of the Federal Tort Claims Act, 31 bills were introduced.

Of these 31 bills, 6 bills specifically provided that prisoners should not be entitled to sue under Federal Tort Claims.

Congress rejected every single one of these.

If you will excuse me, Mr. Ziskind, but with respect to your comments about the absence of a minimum relief, may be what they elaborated as the Solicitor General said –

Gerald N. Ziskind:

I certainly am, Your Honor.

There is a case (Voice overlap).

Pardon, Your Honor?

Is this the sum a $190 represented the minimum monthly compensation award for total disability under the Federal Employees Compensation Act to which the Prisoner Compensation Award in 18 USC are geared.

How (Voice overlap) — that is indicating that there was enough minimum —

Gerald N. Ziskind:

That is the minimum under the Federal Employees Compensation Act to which he says (Voice overlap) that is geared.

But, Your Honor, the Attorney General tomorrow consists gearing it to the Federal Employees Compensation Act.

You mean you should have read that (Voice overlap)

Gerald N. Ziskind:

And it’s purely a discretionary provision within the Act.

Now, Congress rejected all measures which in anyway restricted the right of Federal prisoners to recover.

Now, this Court in the Muniz decision, very thoroughly analyzed this question.

The government came before this Court with the identical argument.

They said Federal Tort Claims does not apply because there is a Prisoner Compensation Act.

Well, Chief Justice Warren analyzed that question most intensively and he concluded that the compensation Act is a very questionable Act.

And here, in some of the provisions which you’ve contained and which we must consider most intensively –

May I ask you with this thing?

Gerald N. Ziskind:

Yes, Your Honor.

Is it true of you that the prisoner would – where they gets the compensation whether or not that you know it’s discretional, be able to retain the compensation if he gets the recovery under the Tort Claims Act?

Gerald N. Ziskind:

Absolutely not; that is an absolute absurdity.

What we have done in this case –

I’m sorry.

The answer is no he cannot –

Gerald N. Ziskind:

Absolutely, he will not retain any compensation which he has received under any award.

This Court has so held in the Brooks decision where a soldier sustained injury while he was getting compensation involving a government vehicle.

The Court held he had the right to sue under the Federal Tort Claims Act and Justice Warren cited that in the Muniz decision.

And they held that what he was receiving in compensation without a medically be deducted.

Now in this case, we have specific circumstances which are different.

The government stipulated by agreement that in addition to the $20,000 received was the receipt in the award that the compensation should be paid to him in order to represent a fair return.

This man is totally –

In other words, the right of the $20,000 after crediting in the fact.

Gerald N. Ziskind:

Exactly.

If compensation weren’t involved here, the verdict in this case would have been somewhere around a $100,000 to 1$150,000 and that is why the Court or the government stipulated to this in agreement.

They said the $20,000 plus the compensation would represent a fair award.

But you settled for trial?

Gerald N. Ziskind:

Your Honor, to this day, I regret that I remedied to that figure but I took into consideration the fact that this man would receive compensation for the rest of his life.

And that was a consideration in determining the amount of the award.

How about if they deny of that?

Gerald N. Ziskind:

Pardon me, Your Honor.

What if the prisons deny the compensation at the time of the judgment?

Gerald N. Ziskind:

At the time of the judgment, it was a $180 per month.

What if the prison deny that (Inaudible)?

Gerald N. Ziskind:

Based upon the mortality tables, this man is 35 years of age at the time of the injury he’s probable mortality was somewhere at around of 35 years.

That could have been a most substantial amount probably $67,000 or $80,000 representing the compensation plus the additional award that’s involved here.

(Inaudible)

Gerald N. Ziskind:

That’s correct, Your Honor.

Gerald N. Ziskind:

If I told you about the man’s injury, I’m going to refer to it later.

I feel that you understand the basis and the reason for this arrangement.

Now this Court has outlined certain references to consider in determining whether or not a so-called “Compensation Act” preempts or overwhelms some Act that Congress has previously enacted.

In other words, we are to determine here whether or not this Prison Industry Fund is a substitution for rights which are given to prisoners under the Federal Tort Claims Act.

And I believe it was Justice Clark in your Johansen decision where you decided this question queerly and categorically, you said before a compensation system replaces a specific right which Congress has given to an individual, the compensation system must be simple, it must certain, it must be uniform.

But pardon me that was stated in the Paras decision which involves soldiers.

In the Johansen decision, it was stated that before a compensation system can be presumed to preempt a Congressional enactment, it must be all inclusive.

Now let’s look at this compensation system and see in what category is at feast.

First, we have discussed that it is discretionary within the Attorney General, first, as to whether or not any award will be made and secondly, as to any amount which will be given.

Certainly, when the compensation award is to be made when a man is confined to a Federal Penitentiary, I don’t know what might happen after his release but he certainly does not have a right to a position, an independent position of his own choosing to determine the degree of injury, the degree of permanency – that is which were all determined while he was confined in the Federal Penitentiary.

He has no right of administrate of appeal, a right which is clearly laid down in the provisions of the Federal Employees Act and also in the Soldiers Disability Act.

And, of course, as Justice Fortas has clearly brought out, on conviction of any crime and we do know that a prisoner quite frequently may be picked up for vagrancy as he is released from a Federal institution.

At those points, whatever award is made or whatever award might be made is made determinate.

Now, I know in the Pittsburg District it’s frequently the practice of some of our District Judges to impose one of the conditions for probation that a prisoner show/attend charge.

His failure to attend charge would be reason to subject him to violation of his probation.

That would terminate his compensation.

Now, is this and (Voice overlap).

And when this compensation is terminated in those circumstances, can you tell us whether it is renewed that the prisoner gets inside of the jail again?

Gerald N. Ziskind:

Again, Your Honor, we come to the discretion of the Attorney General.

He could do whatever he wants.

You know of no rules covering at one way or the other?

Gerald N. Ziskind:

I know of no regulation and even if there were regulations that still would not be indicative of Congressional intent.

But I know of no instance where compensation was terminated and then it was reinstated.

I’d be very interested in a categorical answer to that if it can be obtained.

Gerald N. Ziskind:

And then we come to the –

(Inaudible)

Gerald N. Ziskind:

Well, I would think that the Attorney General is the ultimate source of this decision.

I mean in the present situation.

Gerald N. Ziskind:

I would think so.

That would be under the Director of Prisons.

Now the statute says (Inaudible) must be alleged, isn’t it?

Gerald N. Ziskind:

What is that, Your Honor, to the what?

To the Federal Employees Act.

Gerald N. Ziskind:

Yes, it says that it shall not exceed any payment which is made under the provisions of the Federal Employees.

The regulation (Inaudible) of that?

Gerald N. Ziskind:

I know of no regulation that — it may provide that it will not exceed but it says nothing about minimum awards.

They can make any minimum awards they see fair.

That’s the practice?

Gerald N. Ziskind:

The practice has been in many instances to make awards which are in keeping with provisions of the Parole Employees Compensation Act.

But there are many many cases to the contrary.

You mean whether they have (Inaudible)

Gerald N. Ziskind:

Exactly.

Where they have given much lower awards and they have provided –

There must be —

Gerald N. Ziskind:

They have given much lower awards and provided under the Federal Employees Compensation Act.

It’s strictly a matter of discretion.

Did you have a (Inaudible)?

Gerald N. Ziskind:

Well, I refer you to an excellent article which I cited in my Brief, written by student at Yale University in a bar review in which he speaks of these specific circumstances.

Now this information is certainly not available to me as an attorney.

It is something which is kept within the records of the office of the Attorney General that he has specific illustrations on this article.

He wrote a letter to the Director of Prisons and he secured certain indications of these awards.

And here, he cites the one of the $50 per finger and for $4,000 for the loss of a life.

Earl Warren:

We’ll recess now.

Gerald N. Ziskind:

Yes, Your Honor.

That in the absence of specific exceptions, it would naturally be regarded as exclusive.

Now, Your Honor, what are the specific exception which apply in the case of the Prison Industry Fund?

As the chief justice pointed out in the Muniz vs. United States decision, there is no fund which is available to inmates who were sick, who were aged.

Those who have physical or mental defects, there is no fund available to any prisoners who are in transit.

There is no fund available to any prisoners who were confined to the District of Columbia.

There is no fund available to any prisoners who were engaged in road construction and under own (Inaudible) for such purposes.

Gerald N. Ziskind:

There is no fund available for any prisoners who are lone out to military camps and installations which is done on a quite extensive scale.

There’s no fund available on any instance where there is an intentional assault or attack on the Federal inmate.

And in addition and this is the most significant, there is no fund available for any inmates who suffer any injury at times when they are not engaged in maintenance in prison industry.

In other words, a Federal employee is covered under Federal Employees Compensation, eight hours a day; if anything happens to him during that eight hour period, he is subject immediately to receive Federal Employees Compensation.

A Federal prisoner, call him an employee or what you will is engaged in his occupation 24 hours a day.

The only benefit which is specifically available to him, if by coincidence at the time of the injury occurs, he happens to have been engaged in this specific type of activity.

How is that different from the ordinary workmen’s compensation system?

Gerald N. Ziskind:

The ordinary workmen’s compensation, Your Honor, provides a compensation automatically applies regardless of negligence during the working hours, during the eight hour day that the party is engaged in his occupation.

I understand from counsel that this could apply here.

Gerald N. Ziskind:

No, sir, it would not apply.

Let us say that there’s a fire on the Louisburg Penitentiary at night and every prisoner has caused to suffer death as a result of that fire –

Every what?

Gerald N. Ziskind:

Every prisoner, every inmate were to suffer death as a result of that fire.

There would be no award under any compensation program.

Well, I know but when did he then be entitled to come under the Tort Claims Act?

Gerald N. Ziskind:

In any of the event if negligence can be shown, if that fire resulted as a result of a defective type of flow or defective furnace, there would be a right of action under Federal Tort Claims.

This very issue arose in the case of a soldier who suffered death as a result of fire in a military camp in a military installation that happened at night.

And he sued under the Federal Tort Claims Act and the Court said he cannot recover under the Federal Tort Claims Act because he has covered under the Soldiers Disability Act, which is an all inclusive compensation system.

In other words, if we have a compensation system here, that was comparable to any degree to the Federal Employees Compensation Act, to the Soldiers Disability Act, to that provided in the case of persons on the ships of the United States, we would have no issue in this case.

(Inaudible)

Gerald N. Ziskind:

That is correct.

(Inaudible)

Gerald N. Ziskind:

Well, he is no longer an employee after he returns.

But I say a prisoner is prisoner 24 hours a day just as a soldier – a solider is 24 hours a day.

He only works at certain number of days in the prison.

I mean a certain number of hours.

Gerald N. Ziskind:

That is correct.

It is very limited in the great many as I pointed or not engaged in any type of activity.

Well, he is covered while he is working.

Gerald N. Ziskind:

He is covered while he is working under these restrictive circumstances which I have indicated.

Gerald N. Ziskind:

And, Your Honor, as pointed out that before you can say that Congress intended to obliterate right which exists under a basic hall of the land, you must show that Congress in rule of that Act has instituted an Act which is all inclusive.

And I point out, Your Honor, that this Act is not all inclusive.

It is very skeptic –

— if the jurors — that prisoners can recover under both?

Gerald N. Ziskind:

Cover under both?

Yes?

Gerald N. Ziskind:

No, Your Honor, absolutely not.

You mean that all the prisoners will be compelled to sue with the court then?

Gerald N. Ziskind:

Only in the event that negligence can be shown.

When there’s no negligence, there’s no basis of any recovery under any recovery under Tort.

— the prisoner who couldn’t show negligence couldn’t get anything?

Gerald N. Ziskind:

Exactly.

And that is why I pointed out, Your Honor, that this is not a comprehensive compensation system.

Well he gets something out of the compensation?

Gerald N. Ziskind:

He would get nothing on the compensation unless he was engaged in a specific activity.

They didn’t have to be negligent under the compensation act?

Gerald N. Ziskind:

There does not have to be any negligence under the Compensation Act where he is engaged in a specific activity.

But where he is not engaged in night time at Prison Industry, he gets nothing under compensation.

Now I’ve just a question why he would recover from the compensation if he was injured regardless of (Inaudible)

Gerald N. Ziskind:

If he was injured while engaged in one of these specific activities.

But as I point out, Your Honor, there’s so many prisoners who were not engaged in specific activities of this kind and as, Your Honor, pointed out in your decision in Johansen, in order for the Act to be considered to show a Congressional intention to bypass a Federal statute, you must show that the statute which has replaced it is is of such a nature that Congress indicated an intention to substitute it for Federal Tort Claims.

Now what’s your claim on Doe as I understand it would knock out all prisoners unless they could show negligence?

Gerald N. Ziskind:

No, sir.

I say, Your Honor –

Who didn’t show negligence?

Gerald N. Ziskind:

Well then, Your Honor, there’s no basis of any recovery but I say this –

He can get it now.

Gerald N. Ziskind:

He cannot unless he is engaged in specific activity.

Now, I say if there was fire for example –

The clause is the same — your man here.

Would he have to show negligence now?

Gerald N. Ziskind:

At the present time, under Federal Tort Claims, I must to establish negligence and I say that what Congress had in mind in these cases was to discourage acts on the part of prisoner officials from committing acts of negligence which would result in serious injury to Federal prisoners.

This man, it seems to me like I don’t know of government case at all.

It seems to me like you’re throwing them all from the other undecided claims in a tort act and casting them entirely outside the benefits of this other, which I understand it he’s getting $225 a month.

Gerald N. Ziskind:

No, Your Honor.

I must say that —

How much is he getting?

Gerald N. Ziskind:

He is getting 240 a month.

For how long?

Gerald N. Ziskind:

As long as his disability continues which would be, in this case, for the rest of his life.

And he’d lost that entirely unless he could prove negligence.

Gerald N. Ziskind:

Well, Your Honor, the government stipulated here that there isn’t negligence.

That’s one of the stipulation —

Well, I know but I’m talking about the people who — this is — the government holds trial.

Gerald N. Ziskind:

That’s true.

But, Your Honor, the purpose of the Federal Tort Claims Act is to give the right where negligence exists to people to recover.

But also, the purpose of this Act was to give prisoners a right to exists better than the negligence denial.

Gerald N. Ziskind:

That’s correct.

But the trouble is, this other, this substitute to which we refer is not a comprehensive system and therefore is not a complete substitution.

(Voice overlap) $245 a month (Inaudible).

Gerald N. Ziskind:

Well, Your Honor, we are going to say that through the magnanimity of the Attorney Generals’ Office, we were able to modify and alter Congressional intent.

That is one thing.

Abe Fortas:

You’re fair raising collecting on the both, isn’t it?

Gerald N. Ziskind:

My theory is that because of the stipulation here, we can collect under both.

Abe Fortas:

Well, apart from your claim, your theory is, if I correctly understand you that a Federal prisoner could both apply for compensation and he gets compensation award and then he can sue in the Federal Court and the Federal Torts Claim Act.

You’re theory is then that any award, any judgment in his favor under the Federal Torts Claim Act is reduced by the maniacal concession.

Gerald N. Ziskind:

Exactly.

Abe Fortas:

But these are not all alternative remedies.

Gerald N. Ziskind:

They’re not alternative remedies.

They are combined remedies.

Gerald N. Ziskind:

This Court has held in Brooks vs. United States, it was held in Brown vs. the United States that the right to these two remedies exists unless Congress indicated to the contrary.

Well, Mr. Ziskind, isn’t really the thrust of your argument that the compensation remedy has two chances to read from it an intention by Congress to bar the prisoner from having an exception under the Tort Claim.

Gerald N. Ziskind:

That is precisely my argument.

And I say this that in most cases where compensation system has been provided to be the exclusive remedy, it is so provided in the provisions of the compensation system itself and the Federal Employees Compensation Act so provides.

Of course, I say this that, as I reiterate, that if Federal Employees Compensation or Soldiers Disability Compensation existed here on that basis, I think there would be a clear intent on the part of Congress to substitute that remedy.

Without an express provision of the –

Gerald N. Ziskind:

Without an express provision, they would go along with the government –

— the compensation system or whatever it is covers what it covers.

I suppose a Federal employee who was off duty completely and away from his place of work and was hit by a male truck, negligently driven by its driver could recover under the Federal Tort Claims Act.

Gerald N. Ziskind:

Precisely.

So if he is not covered under that situation, he does has another Federal Tort claim remedy.

In this case, your client was covered by the compensation system.

Gerald N. Ziskind:

Thanks to the application of the Act if it is applied.

Whatever it states too, in fact he was covered.

Gerald N. Ziskind:

But, Your Honor, if I may say, I don’t feel that we can construe Congressional intention on what the office of the Attorney General has done.

We must construe Congressional intention by the Acts of Congress and this Court has held that before we can say that Congress has substituted another remedy for a right given to a group of our people under specific Act, that intention must be established first by a clear, certain and uniform act and secondly, by an Act which is all inclusive.

I have pointed this many many instances for prisoners who would not be covered under the Act.

I pointed out that it is not a certain Act.

It is an Act, which is so beautifully stated by the United States Court of Appeals for the Third Circuit in this sentence.

The only merges on examination, therefore, is a severely restrictive system of compensation permeated at all levels that a very prison control and dominion which was at the origin of the inmate injuries.

Now, let me tell you why Congress intended to give prisoners this additional protection.

I don’t think it’s a case of over indulgence.

We know this is a fact.

Sutherland and his work on criminology.

He has pointed out that a prisoner has no freedom of choice, no freedom of action.

His every act, his every move is controlled by prisoner authority.

And we know that when prisoner authorities order a prisoner to perform a certain act, and when those authorities direct him to perform an act in a negligent matter which is dangerous to his well-being, that Congress wanted to protect those individuals and to give them the right and to discourage prison authorities from subjecting inmates to these dangerous conditions.

In the case in question, we have a prisoner.

He was not guilty of any active violence.

He was simply guilty of having passed some bad shots.

Gerald N. Ziskind:

He was serving a term in the Federal Penitentiary.

He was a carpenter.

He was told to go up in the powerhouse where a window had exploded and to replace the window.

They refused to provide him any stepladder, no scaffolding was provided.

He had to climb 15 feet on the side of the wall.

The wall, incidentally, is made of tile.

Water had come in, rain had come in, the tile had been slippery.

There were girdles that were about 7 ft. to 8 ft. apart and he tried to climb up cat like into this position.

He bounced a five foot piece of glass vicariously on his shoulder, he attempted to insert it into the window with the use of a screwdriver.

And the glass broke, he went to through the window and he fell 37 feet to the area below.

Now, Your Honors, I see that Congress intended to such persons, because of the fragrant negligent act of prison officials, shall have the right to sue under the provisions of the Federal Tort Claims Act.

Is it unreasonable to say that Congress males so have intended that if this fellow applied for compensation that they couldn’t thereafter bring an action under the Federal Torts Act.

There were findings something in the statute –

Gerald N. Ziskind:

But let me say this, that the Prison Act was enacted before the Federal Tort Act.

And at the time the Federal Tort Act was passed, the restrictions as against the prisoners was not placed, was not included.

You know why — is it your position that’s unreasonable to say that when Congress passed Federal Tort Act, Congress said that, “Well, perhaps this would be available to prisoners generally but not to prisoners who have filed for an award under the Prisoners Compensation Act and they have received that award.

Gerald N. Ziskind:

Well, I would say this.

First of all, I don’t feel that we should presume or infer inferences against persons who were granted certain rights under Congressional enactment.

I believe the burden should be on the party who say that a person is not entitled to the benefit of an Act, to establish that he is not entitled to the benefit of the Act.

But more significantly, it would appear that in the interest of good sound public policy, those prisoners who have no right to counsel at the time that compensation is awarded, we don’t have this but – returning to society, a subject to having this grant was drawn from them.

I say, Your Honor, we should not construe Congress as having created such an inference.

To the contrary, we should infer that Congress has created this Fund with the purpose of helping prisoners where negligence does not exist so as not to make them a drag upon society.

And that in addition, where negligence has been committed on part of officials to discourage the retention and then the appointment of such officials, that prisoners should have the right to sue under the rights of Federal Tort without any question –

Of course this man tried his law suit before the jury?

Would you say he could still recover the prisoner’s compensation?

Gerald N. Ziskind:

I would say, Your Honor, that compensation is a right which is inherent if it were awarded to him and the compensation has –

Well, I’m not talking about award and I don’t mean award.

Did he recover his lost, his losses on this tort?

Gerald N. Ziskind:

Yes, Your Honor.

At the time this prisoner under then the court he is receiving compensation.

Gerald N. Ziskind:

And the only basis —

Let’s suppose he is not receiving compensation.

Gerald N. Ziskind:

Yes, Your Honor.

But he sues of a tort and losses it.

He then turn around and recover on his facts on this case?

Gerald N. Ziskind:

I see no reason why not.

So he could recover on both?

Gerald N. Ziskind:

I say he has the right to recover under both –

(Inaudible)

Gerald N. Ziskind:

He has the right to recover under both and the amount of compensation awarded should be deducted from the amount of the award under the Federal Tort Claims which is done.

In all Jones Act —

Well, we know which one here sue and which one he could sue on.

Gerald N. Ziskind:

It’s a matter of his own choice.

If it is his own choice, he doesn’t waive it, does it, by suing.

Gerald N. Ziskind:

Absolutely not.

And this Court –

(Voice overlap) tort claim and then loss it and then come back in post claim under the –

Gerald N. Ziskind:

That’s right.

Exactly, and this Court has so declared in the case of Brooks vs. United States —

I don’t think it’s declared exactly there.

Gerald N. Ziskind:

It said this, Your Honor, that this Court will not impose the doctrine of the election of remedies unless Congress has indicated an intention to do so.

And this Court will not limit remedies available to individuals.

We know that in Ed Modi cases and Jones Sack cases, person sue under compensation on occasion and whatever award they receive under the Jones Act is automatically deducted from whatever award –

That’s automatically deducted if that (Inaudible).

Gerald N. Ziskind:

Whatever award is made under compensation, Your Honor, would automatically be deducted.

There are two remedies available to Federal Prisoners where negligence exists on the part of Federal Employees and the Congress has done this.

Two remedies?

Gerald N. Ziskind:

Exactly.

And Congress has done this in order to protect Federal prisoners from sadistic and arbitrary and capricious prison officials.

And that is what they had in mind; they want to discourage it.

Gerald N. Ziskind:

I thank you, Your Honor.

Richard S. Salzman:

Mr. Chief Justice, I’d like to spend a few moments I have in answering the questions proposed by Justice, just a few words in closure.

And, Mr. Justice Fortas, I’ve had the opportunity to check with the Federal Prisoner official who are in the courtroom and they say that “yes, the compensation is resumed upon whether the prisoner is released from confinement”.

Secondly, regarding the letter which were sent to all the justices and our opposing counsel, the letter is quite accurate by both by practice and regulation.

Total disability payments are geared to the minimum payments under the Federal Employees Compensation Act.

That was set out in specific sum of a $180 a month under the Federal Employees Compensation Act until this summer.

This summer, completely independent to this proceedings, Congress raised to pay the minimum award of $245 a month for all prisoners who were totally disabled not merely Mr. Demko, who received a prison award.

Regarding the other amounts, the award for other benefits, it is a schedule of benefits.

In practice and under the regulations, they follow the schedule of benefit set out under the Federal Employees Compensation Act which is normally set out for the loss of a particular member; so many weeks of compensation and so forth.

And they used to compute the amount of compensation, the matter was in tucked to which the prisoner is entitled the minimum wage that an employee would be entitled to receive, any Federal Employee in the United States minimum wage.

That’s set out in the regulation too.

If you’d like further details, I would be glad to send an additional letter to the Court.

I might add that the figures $50 and $4,000 relating to loss of finger and the death come from a letter which among other things is 12 years old.

On top of that, the $50 for a loss of a finger probably was $50 for loss of a tip of an index finger.

If you look at the Federal Employees Compensation Act, it has a different monetary amount for any particular joint or body loss.

The death of one, of course, it would be determined of how old the prisoner was and how much time it was like much longer his life would live.

Naturally, $4,000 it would for an older man would be unjust.

If I may answer, Mr. Justice Brennan’s question, I think Mr. Justice Blacks question too about two remedies.

The answer is, yes, that’s exactly what will be the case here.

We agree and indeed we insist, because we insist there’s no tort remedy that this prisoner is entitled to compensation if he was injured in the cause of his work.

And whether he win or loss the tort suit, he would get the compensation and that’s, of course, why the government –

Not because you say he is entitled to compensation?

Richard S. Salzman:

That’s right.

Yes, sir.

If he’s injured in the course of work, but let me get one other point clear.

We’ve had a lot of discussion about, on my recount, about the comprehensiveness of remedy.

Well, I think the accurate is remedy is comprehensive in the same sense the Federal Employees Compensation Act is comprehensive in the same sense that every compensation statute is comprehensive.

If a man is injured while working, he gets compensation benefits.

If he’s injured when his not working even because he is bitten up by a fellow prisoner for negligence, or for that matter runover by unrelated truck, a government vehicle, then he can sue as for tort.

That’s precisely Mr. Muniz’ situation.

Richard S. Salzman:

Indeed, there are cases, I think with the recent case the Tenth Circuit called Browning v. United States, in which the precisely that matter came up.

The Federal employee was rundown by a Federal truck and the District Court found and the Court of Appeals agreed.

He wasn’t working.

Consequently, he is not entitled to the compensation.

He gets the Federal Employees remedy.

I might add that the remedy as Mr. Justice Clark pointed out, is not insubstantial.

In this particular case, $75,000, I think this is reasonable minimum amount which is to be expected receive less, of course, because he has a sudden accidental death earlier.

That would be paid, of course, over the years.

Moreover, that’s something like three times the amount which the defendants would receive in the Perez cases, which this Court pointed out it was not an insubstantial amount.

I might add that in the army cases to which my brother makes reference here, it’s quite clear that no soldier was injured incident to service pursuant to the Tort Claims Act.

The Brown case and the Brooks case upon which he cites, but times when the soldiers run further, they weren’t working and they held that they could sue despite the benefits.

We agree that in circumstances where the man is not working, he is entitled to sue.

William O. Douglas:

Is this coverage comprehensive enough to cover work-related heart attacks which results to death and occupational diseases in that sort of –

Richard S. Salzman:

I am, Mr. Douglas that they didn’t’ come up.

I would assume the answer that that would be yes.

Are they covered under the Federal Employees Act?

Richard S. Salzman:

If they are covered under the Federal Employees Compensation Act and I can’t give you the answer to that, the answer is they would be covered under the statute because the people of the Muniz statute followed the same standard in the same –

William J. Brennan, Jr.:

And do I correctly understand that death due to injury at work results in a compensation payment to heirs next to him, I take it quite properly after death or as if he survives from injury at work, he gets nothing until he’s released, is that right?

Richard S. Salzman:

That’s exactly true.

He gets only care and—

Richard S. Salzman:

That’s right.

I have presumed the assumption would be that a prisoner who is not working, not to be released, is not supporting as defendants.

On the other hand, a prisoner who dies in prison out of accident might proceed and the future be released next day to pardon to anything.

Consequently, it’s not worries immediately to the widow.

I’d like to add in closing that we don’t think that this statute is in anyway in conflict with the Federal Tort Claims Act.

Indeed, with the express language of it.

I’d like to point out again that as I closed, that the liability of the United States imposed by that Act was to be, and I quote from 28 USC 2674, “Imposed on the same manner and to the same extent as a private individual in like circumstances”.

I have read nothing in respondent’s Brief and I heard nothing here this morning and this afternoon to suggest that in like circumstances in the State of Pennsylvania, private employer would recover.

And moreover, private employer-employee would not be able to recover in tort as private employee where he was getting compensation remedy in Pennsylvania or for that matter in any of the 50 states of this Columbia.

Consequently, we think that the interpretation we put on the prisoner compensation system.

Richard S. Salzman:

It may fairly comports with the act –

One last question.

Richard S. Salzman:

Yes sir.

The Prisoners Compensation System you say gives the prisoner incidence where a claim of right?

Richard S. Salzman:

Your Honor, let me read 20 of the pre-regulations entering Code.

These are the regulations, of course, promulgated through under the section of the Attorney General.

Nobody in the Federal Prison Industry can change them.

Section 28 CFR Section 301.2, “Accident compensation will be paid to such injured inmates as our totally or partially disabled” and it goes on to say when.

I guess no question on that, Your Honor.

If I have no further questions, thank you.