Joyce v. United States, 71-2057.

• Decision Date: 16 February 1973
• Docket Number: No. 71-2057.,71-2057.
• Parties: John J. JOYCE v. UNITED STATES of America, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

474 F.2d 215 (1973)

John J. JOYCE v. UNITED STATES of America, Appellant.

No. 71-2057.

United States Court of Appeals, Third Circuit.

Argued January 18, 1973.

Decided February 16, 1973.

Alan S. Rosenthal, John B. Scott, Attys., Department of Justice, Washington, D.C., L. Patrick Gray, III, Asst. Atty. Gen., Richard L. Thornburgh, U.S. Atty., for appellant.

Ronald H. Heck, Bagley, Sydor & Heck, Pittsburgh, Pa., for appellee.

Before VAN DUSEN, and ADAMS, Circuit Judges and BARLOW, District Judge.

OPINION OF THE COURT

PER CURIAM:

This is an action against the United States under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671, et seq. The plaintiff, John J. Joyce, is a United States Postal Service employee. He seeks recovery for injuries sustained when he was hit on the top of his head by a bar of soap that was either dropped or thrown from the window of a restroom on the third floor of the United States Post Office and Courthouse Building in Pittsburgh, Pennsylvania.

The incident occurred at approximately 5:45 A.M. on August 26, 1968, while Mr. Joyce was walking along the sidewalk adjacent to the Post Office and Courthouse Building and on his way to enter the building in order to commence his 6:00 A.M. shift as a postal clerk. At the time he received the blow, Mr. Joyce was approximately 300 to 350 feet from the employees' entrance to the building on that portion of the sidewalk owned and maintained by the City of Pittsburgh.

Within two days after the incident occurred, Mr. Joyce notified the Bureau of Employees' Compensation (hereinafter BEC) of his injuries. In the "Notice of Injury" filed with BEC, Mr. Joyce, in addition to describing the place where the injury occurred, the injury's cause, and the nature of the injury, certified that "the injury described * * * was sustained in the performance of his duties as an employee of the United States Government. * * *"

The filing of Mr. Joyce's notice was followed on December 10, 1968, as required, by an official supervisor's Report of Injury that was executed by the Assistant Postmaster. It provided BEC with summary answers to a variety of form questions relating to the accident and to Mr. Joyce's injuries. Thereafter, on January 16, 1969, BEC approved for payment, on Mr. Joyce's behalf, two medical bills incurred as a result of the accident and certified to BEC by the United States Public Health Service.

Approximately nine months later, BEC requested additional information concerning the accident from Mr. Joyce's superiors. Then, on October 8, 1970, the examiner assigned to the case entered his findings formally approving the claim. In his "Notice of Injury," Mr. Joyce stated that as a result of the blow to his head he had experienced "headaches, dizziness, and pain continually at the point where the bar of soap hit him." The only demonstrable injury described was the contusion of the head.

Shortly after its approval of the claim, BEC authorized Mr. Joyce to undergo further medical examinations in order to determine the full extent of his treatment needs. On October 16, 1970, BEC wrote to Mr. Joyce, advising him to make an appointment with the United States Public Health Service in Pittsburgh to be examined and treated, if necessary, for possible residual effects of the injury. A similar letter was also sent by BEC to the Public Health Service, confirming the authorization for further treatment and advising clinic officials how best to expedite BEC's payment of any subsequent medical bills.

Having received no response from Mr. Joyce, BEC again wrote to him on February 17, 1971, asking for an explanation of why no medical reports had been received. Mr. Joyce did not respond to that letter.

On February 25, 1971, Mr. Joyce filed the present complaint against the United States under the Federal Tort Claims Act, seeking damages for a sum in excess of $10,000. Following several days of a non-jury trial, which commenced on May 20, 1971, the Government filed a motion for leave to amend the answer. In its motion, the United States asserted that the district court lacked jurisdiction to adjudicate plaintiff's cause of action until such time as the Secretary of Labor, through BEC, determined that the injuries were not covered by the Federal Employees Compensation Act (FECA). The court was asked to stay its proceedings in order to allow plaintiff time to complete the processing of his FECA claim.

The district court, 329 F.Supp. 1242, denied the motion and entered judgment in favor of Mr. Joyce for approximately $35,000. The court held that a district court must defer to BEC only when the facts in a particular case raise a substantial question of FECA coverage and that since no such question was presented it was free to adjudicate the cause of action. Alternately, the district court stated that even if FECA coverage did, in fact, exist, because the FECA issue was raised so late in the proceedings, it had discretion whether to consider the Government's motion and under the circumstances would deny such motion.¹

The FECA, 5 U.S.C. § 8101, et seq., provides the exclusive remedy for a Federal employee's injuries covered by that Act.²

The nature and purpose of the FECA were stated by this Court in Somma v. United States, 283 F.2d 149, 151 (3d Cir.1960):

"The Act sets up a comprehensive system of workmen\'s compensation for federal employees. Congress provided that the FECA be interpreted and administered by a Bureau of Employees\' Compensation and an Appeals Board whose action is not reviewable by the courts. * * * Obviously, the purpose in so providing was to insure uniformity of interpretation and policy. * * *"

The FECA has thus been made the exclusive remedy for federal employees within its coverage, and such employees have no election of remedies. See United States v. Demko, 385 U.S. 149, 87 S.Ct. 382, 17 L.Ed.2d 258 (1966).

As this Court recognized in Somma, supra, the Act explicitly provides that all questions "arising under" the FECA shall be decided by the Secretary of Labor, and his decision in allowing or denying a payment "is (1) final and conclusive for all purposes and with respect to all questions of law and fact; and (2) not subject to review by another official of the United States or by a court by mandamus or otherwise." 5 U.S.C. § 8128(b).

The statutory test of coverage is whether the employee was injured "while in the performance of his duties." 5 U.S.C. § 8102(a). In light of the foregoing, it is clear that an injured Federal employee must seek administrative relief before he files suit under the ...