Legal Question in Federal Tort Claims in Nevada

retired P.O. 20 yrs w/ LVMPD (79 to 99). In 89 received gunshot wound on duty, contracted HepC 1b

from transfusions. retired 99 and began losing massive amounts of weight, down to 130 from 225. Now in end stage liver disease. declared PTD by courts in 05. Applied for benefits under PSOBP (originally home town hero's act) administered by DOJ for cops & fireman. was denied (however not officially) due to them using my date of injury as the date I was shot, which is about 6months before the between dates set by DOJ. I'm PTD'ed for end stage liver disease not because I was shot.There wasn't anything wrong with my liver in 89 or90 or 91 etc. US supreme court in Bath ironworks v. commissioner ruled "in cases involving occupational diseases the date of injury is not to be confused with date of exposure" "the date of injury is when the victim begins to notice the symptoms". I sent DOJ the case law and they left a mess on my answering machine that after review they decided that they didn't have to abide by the supreme court decision. They wont send me a denial of benefits letter so I can appeal. They have been chastised numerous times by the court of appeals for not acting within the spirit of the bill. Lots of info on the net about how doj denies cops and fireman for the most ridicules reasons, most of whom have died in the line of duty. DOJ is apparently out of control and doesn't answer to anyone.


Asked on 10/31/10, 12:27 am

1 Answer from Attorneys

Paul Malikowski Malikowski Law Offices, Ltd.

In the usual course of things, if an individual entitled to a denial of benefits letter, and issuance of the letter represents a legal duty owed to that individual by an officer of the U.S. government, Federal law provides for a court action called mandamus to compel the exercise of that duty.

TITLE 28 PART IV CHAPTER 85 1361

1361. Action to compel an officer of the United States to perform his duty

The district courts shall have original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff.

An attorney can explain further. But, according to a government website:

Public Safety Officers' Benefits (PSOB) Programs: Attorney Fee Information

If a representative (such as an attorney) has provided any services in connection with a claim, the representative must obtain authorization pursuant to 28 CFR Sec. 32.7 before seeking any compensation whatsoever for such services from the claimant. See 42 U.S.C. Sec. 3796c(a). A link to this law is found here:

http://www.lawserver.com/law/country/us/cfr/cfr_title_28_chapter_i_part_32

So, what this looks like is that the government agency being sued gets to approve or disapprove a lawyer's right to compensation for work on this type of claim.

I suspect that many attorneys would like to be able to control the compensation of their adversaries in litigation (like under Nevada's medical malpractice laws), so an attorney who represents a PSOB claimant is already under a considerable disadvantage in obtaining justice for her client.

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Answered on 11/06/10, 5:41 pm


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