Concordia v. U.S. Postal Service

• Decision Date: 03 October 1978
• Docket Number: 76-3587,Nos. 76-3662,s. 76-3662
• Citation: 581 F.2d 439
• Parties: John A. CONCORDIA, Plaintiff-Appellant, v. The UNITED STATES POSTAL SERVICE, an executive sub-division of the United States of America, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 439

581 F.2d 439

John A. CONCORDIA, Plaintiff-Appellant, v. The UNITED STATES POSTAL SERVICE, an executive sub-division of the United States of America, Defendant-Appellee.

Nos. 76-3662, 76-3587.

United States Court of Appeals Fifth Circuit.

Oct. 3, 1978.

Rossman & Baumberger, Miami, Fla., for plaintiff-appellant in No. 76-3587.

Jack V. Eskenazi, U. S. Atty., Miami, Fla., for defendant-appellee in No. 76-3587.

John F. Cordes, Jr., Ronald R. Glancz, Attys., Barbara Allen Babcock, Asst. Atty. Gen., Appellate Section, Civil Div. Dept. of Justice, Washington, D. C., for defendant-appellee in Nos. 76-3587 and 76-3662.

Robert Orseck, Joel D. Eaton, Stephen F. Rossman, Miami, Fla., for plaintiff-appellant in Nos. 76-3587 and 76-3662.

Robert W. Rust, U. S. Atty., Miami, Fla., for defendant-appellee in No. 76-3662.

Appeals from the United States District Court for the Southern District of Florida.

Before BROWN, Chief Judge, and THORNBERRY and CLARK, Circuit Judges.

JOHN R. BROWN, Chief Judge:

John Concordia, a federal employee, sued the United States under the Federal Tort Claims Act (FTCA), 28 U.S.C.A. §§ 1346, ¹ 2671 Et seq., alleging that the negligence of other employees had caused him to have an accident and suffer serious injuries. The District Court found that plaintiff's claim presented a substantial question of coverage under the Federal Employees' Compensation Act (FECA), 5 U.S.C.A. § 8101 Et seq. ² and, dismissing the suit, concluded that he would have to seek relief through the Secretary of Labor. While we agree with the District Judge's finding, we reinstate the suit and order that it be held in abeyance pending final administrative determination by the Secretary of whether the FECA covers this claim.

Concordia's story ³ began on September 29, 1973, when, while on the job as a United States Postal Service employee, he lost consciousness of his actions as a side effect of medication he was taking. Although his co-workers apparently knew of his helpless condition, they allowed him access to his car. On his way home, plaintiff lost control of his car, crashed, and suffered serious injuries requiring him to incur considerable medical expenses.

Plaintiff then instituted this action ⁴ under the FTCA, claiming (1) that defendant had breached its duty of reasonable care to the plaintiff and (2) that at the time of the accident, plaintiff was not engaged in the performance of his duties of employment with the United States Postal Service. The Government moved to dismiss on the ground that plaintiff's sole remedy lay in the FECA and that the Court thus lacked jurisdiction over the subject matter. ⁵ Applying the test this Court announced in Bailey v. United States Through Department of Army, 5 Cir., 1971, 451 F.2d 963, 966, the District Judge found that Concordia's allegations presented a "substantial question of coverage" under the FECA and dismissed the suit without prejudice. ⁶

On appeal ⁷ Concordia argues that his claim indisputably falls outside the scope of the FECA. Reasoning that a tort is complete only when the injury has occurred, ⁸ he insists that his Accident rather than his co-workers' breach of duty must be the event that determines whether the FECA applies. He maintains that no interpretation of the language of the statute, which provides a remedy for "injur(ies) sustained while in the performance of his duty," ⁹ can bring his after-work injury within its coverage.

The Government, on the other hand, maintains that the FECA applies to all job-related injuries and that through application of the doctrine of "delayed-action" injuries, ¹⁰ Concordia's accident was at least arguably job-related. Since, the government argues, the Secretary May Find FECA coverage of plaintiff's claim, the Court Must defer to administrative expertise and judgment.

Our function in reviewing this case is defined in Bailey v. United States Through Department of Army, supra. In that case an employee of the Army laundry was injured in a collision on the military base with a military truck as she was driving home from work. She filed suit under the FTCA, seeking damages for the injuries she had suffered as a result of the collision. Although the Government argued at trial that plaintiff should have filed a claim under the FECA, the District Court held that there was no substantial question that plaintiff was not in the performance of her duty as a laundry employee. Accordingly the Court entered judgment for the plaintiff.

We affirmed the judgment. In framing the issue before it, the Court stated that

(i)t 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.

After considering and rejecting the strict "premises" rule ¹¹ that the Government proposed, and adopting instead a totality of the circumstances approach, Supra at 966-67, the Bailey Court concluded that although the collision occurred on government property, that fact was not enough among the other circumstances ¹² to create a substantial question of coverage. Supra at 967-68.

As we read Bailey, then, to avoid sending the case to the Secretary of Labor, we must essentially decide as a matter of law that, viewing all of the circumstances, the Secretary could not find FECA coverage of Concordia's claim. ¹³ We do not think we can make such a determination. First of all, since we have not found any other case that presents facts identical to those here, we cannot be absolutely sure of what action the Secretary would take. Moreover, although the "delayed-action" cases are not totally analogous, they at least provide an arguable basis for the Secretary's finding coverage here. ¹⁴ Faced with such a situation, it would be unwise for us to prevent the Secretary from even considering the case.

Secondly, 5 U.S.C.A. § 8128(b) ¹⁵ precludes judicial review of the Secretary's action in allowing or denying payment under the FECA. It stands to reason, therefore, that if we cannot correct what we deem to be errors in the Secretary's determination, we should not be able to deny him the opportunity to make such decisions unless we are certain that he would find no coverage.

Finally, although Bailey holds that there will be some cases in which we Will be assured that the Secretary would deny FECA relief, that case does not offer precedent for our doing so here. The circumstances surrounding Mr. Concordia's injury are much more closely related to his employment than were those in Mrs. Bailey's case. Although he had left the Post Office premises, the action he complains of the breach of duty of care occurred while he was on the job. And although the Secretary may quite conceivably rule that Mr. Concordia's injury does not fall within the scope of the FECA, the facts raise a question that must initially be referred to agency determination.

The question remains whether our decision today leaves appellant remediless. Since, as he has stressed to us, the FECA statute of limitations has run on Mr. Concordia's claim, ¹⁶ the Secretary may refuse even to consider it. As the Government has pointed out, however, the Secretary may waive the time limits pursuant to 5 U.S.C.A. 8122(c). ¹⁷ Such a waiver in this case would not prejudice the Government, since it has had at least constructive knowledge of appellant's claim since he filed under the FTCA. Indeed, Mr. Concordia has diligently pursued remedy though perhaps not the statutorily proper one for his injury since it occurred. ¹⁸ While we do not purport to instruct the Secretary to exercise his discretionary powers, we do think that since the equities of Mr. Concordia's situation argue for allowing his claim, the Secretary may do so. ¹⁹

If the Secretary does elect to consider the claim and determines that the FECA provides the exclusive remedy for this injury, appellant must pursue that claim accordingly. If, however, the Secretary finds no FECA coverage, appellant will be free to proceed under the FTCA. We cannot predict how long that administrative process will take. In the meantime, the two-year statute of limitations ²⁰ may have run, raising serious questions regarding whether the Court could grant any relief. To avoid that problem we think that the District Court should merely have held the cause in abeyance pending the Secretary's determination of FECA coverage. Except as thus modified, the District Court's order was correct.

AFFIRMED AS MODIFIED.

1 § 1346. United States as defendant

(b) Subject to the provisions of chapter 171 of this title, the district courts, together with the United States District Court for the District of the Canal Zone and the District Court of the Virgin Islands, shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages, accruing on and after January 1, 1945, for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.

2 § 8102. Compensation...