Burke v. United States

• Decision Date: 21 July 1986
• Docket Number: Civ. A. No. 85-3745.
• Citation: 644 F. Supp. 566
• Court: U.S. District Court — Eastern District of Louisiana
• Parties: Paul V. BURKE v. UNITED STATES of America.

644 F. Supp. 566

Paul V. BURKE v. UNITED STATES of America.

Civ. A. No. 85-3745.

United States District Court, E.D. Louisiana.

July 21, 1986.

Edward Downing, III, Gauthier, Murphy, Sherman, McCabe & Chehardy, Metairie, La., for plaintiff.

John Elaine Chauvin, Asst. U.S. Atty., New Orleans, La., for U.S.

MEMORANDUM OPINION

MENTZ, District Judge.

Plaintiff, Paul V. Burke, was employed as Sectional Center Manager/Postmaster in the New Orleans, Louisiana Post Office. In March, 1983, he left work on a medical leave of absence. Psychological evaluations confirmed that due to his mental state, he was unable to continue his duties as Manager/Postmaster. Burke filed a claim for compensation under the provisions of the Federal Employees Compensation Act ("FECA"), 5 U.S.C. § 8101, et. seq., based on his depressive illness. The Secretary of Labor accepted that Burke's depressive illness was job-related and awarded Burke benefits under the FECA. Since March 14, 1983, Burke has received $3,394.75 every 28 days in compensation.

After having his compensation claim approved, Burke brought this action against the United States under the provisions of the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 1346. The complaint alleges that Burke was subjected to an intentional and continuing pattern of harassment from April, 1980 through August, 1983 by employees of the Postal Service. He seeks damages under the FTCA for "discrimination, intentional infliction of mental distress and the permanent loss of his employment".¹

The United States moved to dismiss and/or for summary judgment on the ground that the compensation Burke received through the FECA was his exclusive remedy. Burke contends that his compensation under the FECA does not include compensation for intentional infliction of mental and emotional distress, and that therefore, he is entitled to bring suit under the FTCA. Burke contends that the FECA's definition of the term "injury" is narrowly drawn to encompass injuries only from acts of negligence.

The FECA establishes a program of workmen's compensation for federal employees which provides a more efficient and less expensive recovery than a tort suit. It was intended as a substitute for, rather than a supplement to a tort suit. Therefore, it is the exclusive remedy for injuries falling within its coverage. See Bailey v. United States, 451 F.2d 963, 965 (5th Cir. 1971). The FECA provides in pertinent part that:

The liability of the United States ... with respect to the injury or death of an employee is exclusive and instead of all other liability of the United States ... to the employee ... because of the injury or death in a direct judicial proceeding, in a civil action, or ... under a Federal tort liability statute.

5 U.S.C. § 8116(c). Thus, it is clear that if the FECA provides coverage for the injuries complained of in this suit, the Secretary's award of compensation would bar Burke from bringing this action under the FTCA against the United States since the United States has not otherwise waived sovereign immunity. See Grijalva v. United States, 781 F.2d 472, 474 (5th Cir.1986).

The threshold requirement for determining FECA coverage is that the injuries alleged must be "sustained while in the performance of the employee's duty." 5 U.S.C. § 8102(a). Only the Secretary of Labor or his designee may determine the scope of the FECA coverage. 5 U.S.C. § 8128(b). The federal courts have held that where there is a substantial question as to whether the injury occurred in the performance of the employee's duty, an FTCA action may not be brought. Instead, the employee must first seek and be denied recovery under the FECA. See Heilman v. United States, 731 F.2d 1104, 1110 (3d Cir.1984); Avasthi v. United States, 608 F.2d 1059, 1061 (5th Cir.1979); Bailey v. United States, 451 F.2d 963, 965 (5th Cir. 1971).

The term "injury" under the FECA is defined as including "in addition to injury by accident, a disease proximately caused by the employment ..." 5 U.S.C. § 8101(5). The court in Sullivan v. United States, 428 F.Supp. 79 (E.D.Wis.1977), considered this definition and concluded that: "The type of injuries covered in 5 U.S.C. § 8101(5) includes injury by accident and disease; it does not appear to include such claims as are presented here for discrimination, mental distress, or loss of employment." Id. at 81. However, in Williams v. United States, 565 F.Supp. 59 (N.D.Miss.1983), where it was alleged that the employee suffered from intentional infliction of emotional distress, the court refused to follow Sullivan. Instead, the court followed the law of the Fifth Circuit as set forth in Avasthi, 608 F.2d at 1061, and found that where there is at least a question as to whether the FECA covers intentional torts, an FTCA action is barred until the Secretary of Labor determines that there is no coverage.

In the instant case, the Court, after hearing oral argument, followed Williams and stayed proceedings in this case pending Burke's submission of his claim of intentional infliction of mental distress to the Office of Workers' Compensation Program, United States Department of Labor for a determination of FECA coverage. See DiPippa v. United States, 687 F.2d 14, 20 (3d Cir.1982) (to avoid statute of limitations problems, the court stayed proceedings until the Secretary determined the FECA coverage). Since Burke already filed a claim for and received benefits under the FECA, he submitted a letter containing the following question to the Dallas, Texas Regional Office of Workers' Compensation Program: "Does the FECA provide coverage for the intentional infliction of mental distress?" See Addendum A. Will Massey, Assistant Regional Administrator for the United States Department of Labor, answered Burke's question. He explained that "the FECA provides compensation and medical benefits for job-related injuries or occupational diseases, including stress-related problems." He further explained that "the FECA is the injured federal workers' sole remedy for job-related injuries or illnesses ... no showing of negligence or intent is required — only that the job circumstances initiated or aggravated the condition, and that it arose out of and in the performance of duty." Massey concluded by noting that "Mr. Burke is in receipt of compensation based on his emotional problems, accepted as job-related." See Addendum B. Thus, it has been determined that Burke's emotional problems constitute an injury related to the performance of his duty and, consequently, Burke has received compensation under the FECA for that injury....