Marion v. United States

• Decision Date: 28 February 1963
• Docket Number: Civ. A. No. 13259.
• Citation: 214 F. Supp. 320
• Parties: John I. MARION, Plaintiff, v. UNITED STATES of America and Staff Sergeant Billie Pierce, Defendants.
• Court: U.S. District Court — District of Maryland

214 F. Supp. 320

John I. MARION, Plaintiff, v. UNITED STATES of America and Staff Sergeant Billie Pierce, Defendants.

Civ. A. No. 13259.

United States District Court D. Maryland.

February 28, 1963.

Neil M. Shpritz, Baltimore, Md., Robert J. Stanford, Washington, D. C., for plaintiff.

Joseph D. Tydings, U. S. Atty., Daniel F. McMullen, Jr., Asst. U. S. Atty., Baltimore, Md., Leavenworth Colby, Washington, D. C., Allan J. Weiss, Arlington, Va., for defendant.

WINTER, District Judge.

Whether the remedy of a federal employee, injured in the course of his employment by another federal employee, also acting in the course of his employment, against the United States and also the fellow-employee lies exclusively in the benefits granted by the Federal Employees' Compensation Act, 5 U.S.C.A. § 751 et seq., is the question raised by the defendants' motion for summary judgment.

The complaint, answers, motion for summary judgment and supporting affidavit establish that plaintiff, a civilian employee of the United States, Department of the Air Force, Andrews Air Force Base, Maryland, was driving his privately owned light delivery truck on the base on August 27, 1959 in the performance of his duties when he was struck by a motorcycle driven by defendant Staff Sergeant Billie Pierce, a member of the United States Air Force, acting within the scope of his employment as an air policeman. Defendant Pierce received no injuries as a result of the collision. Plaintiff claims neck and spine injury.

Plaintiff received medical treatment and physical therapy pursuant to 5 U.S. C.A. § 759(a), and filed a claim for compensation pursuant to 5 U.S.C.A. § 751. On May 2, 1960, plaintiff was awarded compensation for temporary total disability for "whiplash, cervical muscles and back," but no amount was ever paid because plaintiff was also drawing retirement pay in a greater amount than the compensation award and, pursuant to 5 U.S.C.A. § 757(a), plaintiff elected to receive the latter, since the statute prohibits his receiving both.

On August 25, 1961, plaintiff instituted the instant suit, purportedly under the Federal Tort Claims Act against the United States and purportedly by the exercise of the Court's diversity jurisdiction against defendant Pierce, alleging negligence as to both. After answer, both defendants joined in moving for summary judgment.

Defendant United States contends that 5 U.S.C.A. § 757(b) makes the Federal Employees' Compensation Act the employee's exclusive remedy against the United States, so that suit will not lie under the Federal Tort Claims Act. Defendant Pierce contends that certain provisions of the Federal Employees' Compensation Act, (those requiring, (a) upon demand of the Secretary of Labor, an assignment of a claim against a third person; or (b) in the event of recovery against a third person, reimbursement to the United States for the amounts expended by it by reason of the injury) construed in the light of United States v. Gilman, 347 U.S. 507, 74 S.Ct. 695, 98 L.Ed. 898 (1954), should result in the conclusion that the Act prohibits suit against a fellow-employee for negligence.

There can be no question but that suit against the United States under the Federal Tort Claims Act will not lie. Since amended in 1949, 5 U.S.C.A. § 757(b) has stated that the liability of the United States to an employee for death or injury under the Federal Employees' Compensation Act is "exclusive, and in place, of all other liability of the United States * * *." Even prior to the 1949 amendment, the Act had been held to provide the exclusive remedy of the employee as against the federal government, Johansen v. United States, 343 U.S. 427, 429-441, 72 S.Ct. 849, 96 L.Ed. 1051 (1952), and Posey v. Tennessee Valley Authority, 93 F.2d 726, 727-728 (5 Cir., 1937). Since the amendment, the Act has widely been so applied, Patterson v. United States, 359 U.S. 495, 79 S.Ct. 936, 3 L.Ed.2d 971 (1959), rehearing den. 360 U.S. 914, 79 S.Ct. 1293, 3 L.Ed.2d 1263 (1959); United States v. Weyerhaeuser Steamship Company, 294 F.2d 179, 180 (9 Cir., 1961), cert. granted on other questions 369 U.S. 810, 82 S.Ct. 688, 7 L.Ed.2d 611 (1962); Somma v. United States, 283 F.2d 149 (3 Cir., 1960); Aubrey v. United States, 103 U.S. App.D.C. 65, 254 F.2d 768 (1958); Sasse v. United States, 201 F.2d 871 (7 Cir., 1953). That plaintiff received only medical treatment and not compensation (because he elected the greater retirement allowance), does not detract from the Act's exclusiveness of remedy, Thol v. United States, 218 F.2d 12 (9 Cir., 1954); Underwood v. United States, 207 F.2d 862 (10 Cir., 1953); Smithers & Co. v. Coles, 100 U.S.App.D.C. 68, 242 F.2d 220 (1957), cert. den. 354 U.S. 914, 77 S.Ct. 1299, 1 L.Ed.2d 1129 (1957).

In a post hearing memorandum and since studying the authorities above, all cited in the government's trial memorandum, plaintiff concedes that the United States is entitled to summary judgment. It will be granted.

The contention of defendant Pierce stems from 5 U.S.C.A. §§ 776 and 777.¹ It is said that these reimbursement provisions, when read in the light of the statement in Johansen v. United States, supra, 343 U.S. p. 440, 72 S.Ct. p. 857, that "Such a comprehensive plan for waiver of sovereign immunity the Federal Employees' Compensation Act, in the absence of specific exceptions, would naturally be regarded as exclusive," and the result in United States v. Gilman, supra, inevitably lead to the conclusion that, even in the absence of specific language to that effect, the provisions of the Act make it clear that Congress intended the Act to be an exclusive remedy of an employee against his fellow-employee, as well as the United States as employer, when an employee is injured in the course of his employment by the act of a fellow-employee also in the course of the latter's employment. The conclusion advanced is that under such circumstances an employee may not maintain a common law action for negligence against his fellow-employee.

The Act by its terms does not purport to accomplish this result. The exclusiveness spoken of in Johansen was in the context of a federal employee's rights against his employer.

In United States v. Gilman, supra, suit was instituted under the Federal Tort Claims Act by an injured third person against the United States by reason of the negligence of one of its employees. The United States attempted to implead the negligent employee as a third party defendant, on the theory that an employee is liable to indemnify his employer where the employer is held answerable in damages because of the employee's negligent act or omission. The precise question presented and decided was whether, in the absence of an express declaration by Congress affording the United States a right of indemnity against its employee, the courts should imply such an intention to Congress. The Supreme Court answered that contention in the negative, by saying:

(347 U.S. pp. 510, 511-513, 74 S.Ct. p. 697, 698):

"When the United States sues an employee and takes him to court, it lays the heavy hand of discipline on him, as onerous to the employee perhaps as any measure the employer might take, except discharge itself.

"On the government side are questions of employee morale and fiscal policy. We have no way of knowing what the impact of the rule of indemnity we are asked to create might be. But we do know the question has serious aspects—considerations that pertain to the financial ability of employees, to their efficiency, to their morale. These are all important to the Executive Branch. The financial burden placed on the United States by the Tort Claims Act also raises important questions of fiscal policy. A part of that fiscal problem is the question of reimbursement of the United States for the losses it suffers as a result of the waiver of its sovereign immunity. Perhaps the losses suffered are so great that government employees should be required to carry part of the burden. Perhaps the cost in the morale

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