United States v. Udy, 9156.

• Decision Date: 03 August 1967
• Docket Number: No. 9156.,9156.
• Citation: 381 F.2d 455
• Parties: UNITED STATES of America, Appellant, v. Elizabeth J. UDY, on behalf of herself and her minor children Lori Kay Udy, Jo Ann Udy, Verlene R. Udy and Delpha L. Udy, Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

381 F.2d 455 (1967)

UNITED STATES of America, Appellant, v. Elizabeth J. UDY, on behalf of herself and her minor children Lori Kay Udy, Jo Ann Udy, Verlene R. Udy and Delpha L. Udy, Appellees.

No. 9156.

United States Court of Appeals Tenth Circuit.

August 3, 1967.

Morton Hollander, Washington, D. C., (Barefoot Sanders, Asst. Atty. Gen., William T. Thurman, U. S. Atty., and Robert E. Kopp were with him on the brief), for appellant.

Robert V. Phillips, Ogden, Utah (C. C. Patterson, of Patterson, Foley, Phillips & Gridley, Ogden, Utah, on the brief), for appellee.

Before LEWIS, BREITENSTEIN and HILL, Circuit Judges.

DAVID T. LEWIS, Circuit Judge.

The United States appeals from a judgment in the sum of $140,000 entered in the District of Utah in favor of appellees in an action considered by the court under the Federal Tort Claims Act, 28 U.S.C. § 1346(b). The plaintiff below, wife of a civilian employee of Hill Air Force Base, a large military installation located near Ogden, Utah, obtained such judgment on behalf of herself and children, as damages for the death of her husband who was killed in a motor vehicle accident occurring within the Base area. A single appellate question is presented: Did the district court err in refusing the request of the United States to stay or dismiss the suit so as to enable the United States Department of Labor to make an original determination of whether plaintiff's claim was covered by the Federal Employees' Compensation Act (FECA), 5 U.S.C. § 8101 et seq. (1966 rev.) (Formerly 5 U.S.C. § 751 et seq. (1964 ed.))

The question so presented is a recurring one within this circuit and the basic applicable principles of substantive and procedural law have been firmly established. The Federal Employees' Compensation Act constitutes the exclusive liability of the United States for the death of a federal employee sustained in the performance of his duty, and the actions of the Secretary in administering the Act are not reviewable and are final and conclusive for all purposes. 5 U.S.C. § 8102(a); 5 U.S.C. § 8116(c); 5 U.S.C. § 8128(b) (1) (2). Applicability of the FECA would thus be a complete bar to plaintiff's action herein. Underwood v. United States, 10 Cir., 207 F.2d 862. It is also fundamental that the provisions of the FECA should be liberally construed to effectuate the humane purposes of the legislation in accord with judicial principles many times set forth in regard to other but comparable compensation acts. See O'Leary v. Brown-Pacific-Maxon, 340 U.S. 504, 71 S.Ct. 470, 95 L.Ed. 483; O'Keefe v. Smith, etc., Associates, 380 U.S. 359, 85 S.Ct. 1012, 13 L.Ed.2d 895. But the mere fact that an injury occurs upon government owned or controlled property does in no way impair the jurisdiction of the court under the Federal Tort Claims Act where it is clear that no proper administrative determination is interwoven with the tort claim. Thus, in United States v. Martinez, 10 Cir., 334 F.2d 728, this court held that the district court was free to adjudicate a tort claim arising from an injury occurring upon government property to a claimant not an employee of the United States. Our decision necessarily holds that the administrative remedy of the FECA is not applicable when the statute of the injured party is not that of an "employee," a term used and a status necessary within the meaning and bounds of the FECA. So, too, this court has held that an employee injured while on government property is not, as a matter of law, unequivocally entitled to compensation and thus exclusively and automatically within the shelter of the FECA. United States v. Browning, 10 Cir., 359 F.2d 937. However, both in Martinez and Browning we recognized the persuasiveness of the holdings in Somma v. United States, 3 Cir., 283 F.2d 149, and Daniels-Lumley v. United States, 113 U.S.App.D.C. 162, 306 F.2d 769, to the effect that, upon request of the government, the district court should not proceed with the tort claim where a substantial question exists as to whether the claimant is covered under the FECA. In the case at bar, the parties presented their causes to the trial court in accord with these applicable principles and the trial court, and properly so, rendered judgment only after determination that there was no substantial question of coverage under the FECA and a finding that the decedent was not killed in the performance of his duties. In their appellate contentions the parties continue to agree to the stated legal principles and the government urges only that the court erred in determining that no substantial question of coverage under the FECA existed under the factual circumstances leading to Mr. Udy's death. We turn our consideration to this question.

Hill Air Force Base is a complex government facility of 6,664 acres containing 120.27 miles of roadway, Wherry Housing accommodations for 875 families, and many recreational facilities including a golf course, swimming pools and a theater. Parts of the Base are open to the public, many facilities are available only to employees, military personnel, guests and visitors and other parts are subject to restriction and varying security regulations of the Air Force. Verl N. Udy was employed at Hill Air Force Base as a civilian electrical-parts repairman and lived with his family off-Base. All duties of his employment were performed at a work bench in a building located within the restricted area of the Base. In order to get to and from work each day, Mr. Udy participated in a car pool with four fellow employees. Each day they would park the car being used in a public parking lot outside the restricted area¹ and...