Gibbs v. United States

• Decision Date: 29 November 1950
• Docket Number: 25344.,25303,25263-25265,25287,No. 25255,25255
• Parties: GIBBS v. UNITED STATES, and six other cases.
• Court: U.S. District Court — Northern District of California

94 F. Supp. 586

GIBBS v. UNITED STATES, and six other cases.

Nos. 25255, 25263-25265, 25287, 25303, 25344.

United States District Court N. D. California, S. D.

November 29, 1950.

Melvin M. Belli and Lou Ashe, San Francisco, Cal., for libelant James C. Gibbs.

Albert H. Gommo, Jr., San Francisco, Cal., for libelants Henry Williams, Michael A. Di Matteo, David Bower, and Forrest J. Kincade.

Eric A. Falconer, San Francisco, Cal., Frank S. Barrett, San Jose, Cal., and Albert H. Gommo, Jr., San Francisco, Cal., for libelant Forrest J. Kincade.

Charles A. Christin, Wm. T. Eckhoff, San Francisco, Cal., for libelant William Comber.

Gladstein, Anderson, Resner & Sawyer, Herbert Resner, Henry Gross, and Francis P. Walsh, all of San Francisco, Cal., for libelant Robert Lee Dentley.

Frank J. Hennessy, U. S. Atty., C. Elmer Collett and Antoinette E. Morgan, Asst. U. S. Attys., all of San Francisco, Cal., for United States of America.

GOODMAN, District Judge.

These seven consolidated cases are actions in tort against the United States. All of the libelants were shoreside civilian employees of the United States. On November 19, 1946, they were engaged in repairing the United States Aircraft Carrier Antietam, at San Francisco Naval Shipyard, Hunters Point. An explosion occurred and the libelants all suffered injuries.

Heretofore Judge Harris of this court decided that the actions could proceed under the Public Vessels Act, 43 Stat. 1112, 46 U.S.C.A. 781 et seq. When the cases were called for trial, the Court, with the consent of all parties, proceeded to conduct a preliminary trial to determine whether or not the libelants had received and accepted compensation pursuant to the Federal Employees Compensation Act, hereinafter referred to as FECA, 39 Stat. 742, 5 U.S.C.A. § 751 et seq. Witnesses testified in each of the cases as to applications for and receipt and acceptance of compensation by the libelants.

The evidence showed that six of the libelants received compensation for varying periods. One libelant, James C. Gibbs, received medical treatment and hospitalization, but no compensation.

Upon conclusion of the preliminary trial there were submitted to the court for decision the following issues:

1. Was the FECA the exclusive remedy of the libelants?

2. If it was not, was the receipt and acceptance of compensation an election of remedies on the part of libelants thus estopping them from maintaining tort actions against the United States?

Exclusiveness of Remedy.

A study of the statutory system for compensating injured federal employees, as well as of the various statutes whereby the United States has consented to be sued for tort liability, and applicable decisions, is persuasive that, until the FECA was amended in 1949, it did not provide an exclusive remedy and did not prevent suits by employees of the United States under the Public Vessels Act.

Since the first federal employees compensation statute was adopted in 1908 up to the amendment of October 14, 1949, there has never been a provision in any of the compensation statutes or their amendments, either in form or effect, making the benefits thereof the exclusive remedy of federal employees. Footnoted is a chronological list of the statutes and their scope.¹

It is equally true that in none of the statutes by which the United States has waived its sovereign immunity and consented to be sued, is there any provision making the benefits provided in the compensation statutes the exclusive remedy of federal employees. Footnoted is a chronological list of such statutes and their scope.²

From a review of court decisions, it can be categorically stated that no federal court decision, other than the case of Posey v. Tenn. Valley Authority, 5 Cir., 1937, 93 F. 2d 726,³ has ever held that the FECA affords the exclusive remedy to federal employees. To the contrary, it has been specifically held that the FECA does not bar suits by federal civilian employees against the Panama Railroad,⁴ or against the United States under the Federal Control Act of 1918,⁵ under the Suits in Admiralty Act,⁶ under the Public Vessels Act⁷ and under the Federal Tort Claims Act.⁸

Indeed numerous suits by seamen injured on government merchant vessels have been allowed to proceed against the United States and the United States Shipping Board Fleet Corporation without any discussion of the effect of the FECA.⁹ The Supreme Court itself appears to have taken it for granted that the FECA is not an exclusive remedy. This it has done in several cases, even though what it has said may be characterized as dicta. Yet its reiteration, if it be dicta, is, to say the least, cumulatively persuasive.¹⁰

It is true that there are three cases in the Second Circuit denying naval personnel the right to sue under the Public Vessels Act.¹¹ But those cases are, at best, merely analogous in that the remedy they hold to be the exclusive remedy available to naval personnel is that provided by the veterans' pension laws and not that accorded by the FECA.¹² Moreover, the validity of those decisions is now extremely doubtful in view of the Supreme Court's holding in Brooks v. United States, 1949, 337 U.S. 49, 69 S.Ct. 918, 920, 93 L.Ed. 1200, that there is nothing in "the veterans' laws which provides for exclusiveness of remedy" so as to bar a suit by a serviceman under the Federal Tort Claims Act.¹³ The support which the Second Circuit purported to find for these decisions in the Clarification Act of 1943, 57 Stat. 45, 50 U.S.C.A.Appendix, §§ 1291-1295, is somewhat illusory. The Court stated that the provision of that Act excluding seamen employed through the War Shipping Administration from the benefits of the FECA showed that the Congress did not expect those in its service upon public vessels to enjoy at once the privilege of compensation and the right to sue for damages. Even were the congressional policy expressed in the Clarification Act accepted as a proper guide to the legislative intent of a previous Congress, the policy behind the special treatment of War Shipping Administration seamen was not that deduced by the Circuit Court. The Committee Reports on the Act¹⁴ clearly demonstrate that the Congress was motivated by the desire to equate the rights of War Shipping Administration seamen and seamen privately employed, rather than by any feeling that all employees on public vessels should be limited to a single remedy.

It has been argued by the Government that Section 9 of the Public Vessels Act, 46 U.S.C.A. § 789,¹⁵ limits libelants to their remedy under the FECA, because a private employer would not be liable to suit inasmuch as the Longshoremen and Harbor Workers' Compensation Act, 44 Stat. 1424, 33 U.S.C.A. § 901 et seq., is made the exclusive remedy of employees against private employers. I see no reason for prolonging this opinion by a discussion of this argument. In my opinion the argument is not meritorious.

On October 14, 1949, the Congress added subsection (b) to Section 7 of the FECA, 5 U.S.C.A. § 757(b), and there provided specifically and clearly that the Act was the exclusive remedy of all employees of the United States except the masters or members of the crew of vessels. Public Law 357 81st Cong., 1st Sess. The issue of exclusiveness of remedy therefore is no longer precedentially significant. The 1949 amendments may be said to have some argumentative weight as indicative of Congressional awareness that up to that time the compensation statute was not the exclusive remedy of employees; or, to say the least, that there was grave doubt in the matter.

It is my conclusion that the compensation statute was not the exclusive remedy of the libelants in these cases.

Election of Remedies.

There has been almost uniform approval, in the authorities, of the rule that acceptance of compensation under the compensation statute, in the absence of coercion or other improper influence, is a bar to tort suits against the United States for damages. The cases so holding are footnoted.¹⁶

The evidence in all of the consolidated cases, except that of Gibbs, is clear and convincing that the libelants applied for and periodically received compensation under the statute. The evidence shows that some, if not all of the six libelants, other than Gibbs, suffered serious burns and injuries in the Antietam explosion. These men were immediately hospitalized and received medical attention. The employees of the Compensation Commission prepared all the necessary papers for the injured men and cooperated in every way to secure the prompt payment to them of their compensation payments. The evidence shows, and it is my conclusion, that all six men were fully aware that they were receiving compensation under the compensation statute. It was suggested and argued by counsel for libelants that some duty rested upon the employees of the Compensation Commission to advise libelants that they might have a right of action against the United States in tort for damages. There is no basis in law or in fair dealing for such a duty. To the contrary, it was the conscientious duty of the employees of the United States, administering the compensation statute, in the circumstances of this case to see to it that the injured men were assisted in every way to promptly and regularly receive the compensation to which they were entitled. It is my opinion and finding that the libelants uncoercedly received and accepted compensation under the compensation statute. There is not the slightest evidence to sustain the claim that the acceptance of compensation was either not free or was coerced.

It is contended by libelants the making of claims for and acceptance of compensation under the statute is not sufficient to constitute an election without a final award by the Commission. This argument is invalid. See Frader v. U. S., supra, footnote 16.

The cases of all the libelants except Gibbs will therefore be dismissed upon the ground that the...