Bailey v. United States, Through Department of Army

• Decision Date: 08 December 1971
• Docket Number: No. 71-1731.,71-1731.
• Parties: Andy BAILEY and Barbara Bailey, Plaintiffs-Appellees, v. UNITED STATES, THROUGH the DEPARTMENT OF the ARMY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

451 F.2d 963 (1971)

Andy BAILEY and Barbara Bailey, Plaintiffs-Appellees, v. UNITED STATES, THROUGH the DEPARTMENT OF the ARMY, Defendant-Appellant.

No. 71-1731.

United States Court of Appeals, Fifth Circuit.

December 8, 1971.

L. Patrick Gray, III, Asst. Atty. Gen., Donald E. Walter, U. S. Atty., Paul Lynch, Asst. U. S. Atty., Shreveport, La., Robert Kopp, Morton Hollander, Robert M. Feinson, Attys., Civil Div., Appellate Section, Dept. of Justice, Washington, D. C., for defendant-appellant.

Scott McClain, Lake Charles, La., for plaintiffs-appellees.

Before THORNBERRY, MORGAN and CLARK, Circuit Judges.

LEWIS R. MORGAN, Circuit Judge:

In this case the district court held that plaintiffs' action was maintainable under the Federal Tort Claims Act,¹ 28 U.S.C. § 1346, because no substantial question of coverage was presented under the Federal Employees' Compensation Act (FECA),² 5 U.S.C. § 1801 et seq. We affirm.

Mrs. Barbara Bailey was a civilian employee of the Army Laundry at Fort Polk, Louisiana. On February 7, 1968, at 4:30 P.M., Mrs. Bailey left the laundry to go home for the day and walked to her car in the parking lot adjacent to the laundry. She entered her automobile and drove out of the parking lot and proceeded down the main street of Fort Polk. After driving more than a block Mrs. Bailey stopped for a signal light, at which time her car was struck from the rear by a military pickup truck transporting equipment for use on the rifle range. As a result of the collision Mrs. Bailey suffered personal injuries to her body.

Following the collision an action was filed in federal district court by Mrs. Bailey and her husband for recovery under the Federal Tort Claims Act. At the trial the court found that Mrs. Bailey was injured by the negligent act of a federal employee acting within the scope of his employment. The government contended, however, that plaintiff's proper remedy was to first seek recovery from the Department of Labor which, by virtue of the FECA, has exclusive primary jurisdiction of compensation for injuries sustained by a government employee "in the performance of his duty." The district court disagreed and held that there was no substantial question but that Mrs. Bailey's injury did not occur in the performance of her duty as a laundry employee, and hence the suit could be brought under the Federal Tort Claims Act. Accordingly, the court entered judgment of $2,500.00 for Mrs Bailey and $873.00 for her husband.

The Federal Employees' Compensation Act is but one of a number of workmen's compensation statutes which provide the injured employee with a substitute method of recovery, more efficient and less expensive than a common-law tort action. See United States v. Demko, 1966, 385 U.S. 149, 87 S.Ct. 382, 17 L.Ed.2d 258. Because such laws are intended to serve as a substitute rather than a supplement for the tort suit, the remedy thereunder is usually exclusive of any recovery which might otherwise be obtained in the absence of a workmen's compensation statute. Johansen v. United States, 1952, 343 U.S. 427, 72 S.Ct. 849, 96 L.Ed. 1051.

Specifically, the FECA requires the United States to pay compensation "for the disability or death of an employee resulting from personal injury sustained while in the performance of his duty . . ." 5 U.S.C. § 8102(a). (Emphasis supplied). The statute further provides that the liability of the United States "is exclusive and instead of all other liability of the United States . . . to the employee". 5 U.S.C. § 8116(c). The Secretary of Labor is vested with the power to "administer, and decide all questions arising under" the FECA and his action in denying or granting compensation is final and conclusive and may not be reviewed by a court of law. 5 U.S.C. § 8128(b) (1) and (2) and § 8145.

It is readily apparent that the injured federal employee may not bring an action against the United States under the Federal Tort Claims Act, supra, when there is a substantial question as to whether or not the injury occurred in the performance of the employee's duty. Somma v. United States, 3 Cir. 1960, 283 F.2d 149. Before such an action may be maintained, the employee must first seek and be denied relief by the Secretary of Labor, acting in his capacity as administrator of the FECA. On the other hand, if no substantial question of FECA coverage is presented, the employee may prosecute his tort claim without first applying to the Secretary of Labor. The issue before this court, therefore, is whether the district court was correct in holding that Mrs. Bailey's injury did not raise a substantial question of coverage within the provisions of the FECA.

The government contends that since the injury occurred on the employer's property while the employee was returning home from work, there is a very real possibility that the Secretary of Labor would compensate Mrs. Bailey, and hence the tort suit is premature. The government urges this court to adopt the so-called "premises rule", which would, in effect, preclude an initial judicial determination of FECA coverage whenever one federal employee, going to or coming from work, was injured by another federal employee while on government property. We cannot accept such a rigid interpretation. Although the location of the accident is certainly one of the factors to be considered in determining whether there is a substantial question of FECA coverage, we refuse to hold that it is the sole criteria. The better approach, we think, is that taken by the Court of Appeals for the Tenth Circuit which tests the existence of a coverage question by examining the issue in light of all relevant factors, including the premises on which the injury took place:

"The Government, in urging what it calls the `premises rule\' in workmen\'s compensation law generally, and as it has been applied under the Federal Employees\' Compensation Act, cites a series of cases which hold that an injury suffered by an employee is compensable if it occurs on the employer\'s premises, although the employee may be on his way to, or going from the place where he ordinarily performs his duties. The `premises rule\' is applicable under a great variety of circumstances, both in actions under state compensation acts and under the Federal Employees\' Compensation Act, but it must be treated as but one of a number of factors to be taken into consideration in reaching a decision as to whether or not the injury is compensable. It cannot be said in every instance where an injury occurs on the employer\'s premises and the employee is going to or from work, that therefore the injury is covered." United States v. Browning, 10 Cir. 1966, 359 F.2d 937, 940. (Emphasis supplied).

Accord, United States v. Udy, 10 Cir. 1967, 381 F.2d 455.

The government relies heavily upon the cases of Daniels-Lumley v. United States, 1962, 113 U.S.App.D.C. 162, 306 F.2d 769, and United States v. Charles, 1968, 130 U.S.App.D.C. 151, 397 F.2d 712.³ However, under close scrutiny, these cases will not support a strict adaptation of the "premises rule" as contended for by the government. While both cases held that substantial compensation questions existed, neither did so solely on the basis of the location of the accident. In Daniels-Lumley v. United States, supra, the Court of Appeals for the District of Columbia no doubt considered the fact that the injury was incurred on federal property, but the court also stressed the fact that the plaintiff was injured "during her normal working hours." 306 F.2d at 770. Likewise, in United States v. Charles, supra, the court did not restrict its inquiry to an examination of where the injury occurred but also focused on plaintiff's mode of transportation to the site of the accident and on the pendency of plaintiff's working hours.

The several cases, cited by the government, which deal with workmen's compensation under state statutes serve to clarify our point. Jaynes v. Potlatch Forests, 1954, 75 Idaho 297, 271 P.2d 1016; Davis v. Chemical Construction Company, 1960, 232 Ark. 50, 334 S.W.2d 697; Smith v. Industrial Accident Commission, 1941, 18 Cal.2d 843, 118 P.2d 6; Warren's Case, 1951, 326 Mass. 718, 97 N.E.2d 184. In each case the state court reviewed the totality of the circumstances surrounding the injury, including, of course, the factor of whether the injury took place on the employer's premises. The injured employee was held to be covered in these cases, but not merely because he was injured on the property of his employer. On the contrary, the Supreme Court of Idaho in Jaynes v. Potlatch Forests, supra, explicitly rejected any distinction based on property boundaries and ruled that the employee was entitled to compensation even though he was injured after he left his job site and entered upon a public highway. The court simply looked at all the surrounding circumstances and made a determination that the particular employee was injured as a result of a "zone of special danger" created by the conditions of his employment. See O'Leary v. Brown-Pacific-Maxon, 1951, 340 U.S. 504, 71 S.Ct. 470, 95 L.Ed. 483; O'Keeffe v. Smith, Hinchman & Grylls Asso., 1965, 380 U.S. 359, 85 S.Ct. 1012, 13 L.Ed.2d 895.

It is true that the foregoing state cases were concerned with the issue of whether the employees were actually within the provisions of the workmen's compensation statutes, and here, we must decide only whether there is a substantial question of coverage. But regardless of which issue a court has before it, the method of adjudication must remain the same, and that method should not be artificially restricted by the employer's property line. Furthermore, the Secretary of Labor is not bound by any such property concept in deciding if the employee should receive FECA compensation,⁴ and this is significant because the method of inquiry used by both the administrative body and the federal courts is identical. The only difference is that the Secretary of Labor...