Vantrease v. United States

• Citation: 400 F.2d 853
• Decision Date: 04 September 1968
• Docket Number: No. 18222.,18222.
• Parties: Sammy J. VANTREASE, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

400 F.2d 853 (1968)

Sammy J. VANTREASE, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.

No. 18222.

United States Court of Appeals Sixth Circuit.

September 4, 1968.

J. Walter Brock, Grand Rapids, Mich., for appellant, Marcus, McCroskey, Libner, Reamon, Williams & Dillwy, by William G. Reamon, Grand Rapids, Mich., on brief.

William Kanter, Dept. of Justice, Washington, D. C., for appellee, Edwin L. Weisl, Jr., Asst. Atty. Gen., Morton Hollander, Atty., Dept. of Justice, Washington, D. C., Harold D. Beaton, U. S. Atty., Grand Rapids, Mich., on brief.

Before CELEBREZZE and PECK, Circuit Judges, and CECIL, Senior Circuit Judge.

JOHN W. PECK, Circuit Judge.

Plaintiff was injured while within the scope of his employment as a mail carrier for the United States Post Office when struck by a car driven by another Post Office employee, Cameron, who was also within the scope of his employment. Plaintiff received benefits under the Federal Employees' Compensation Act (5 U.S.C. § 751 et seq.) (now recodified, 5 U.S.C. (Supp. II) § 8101 et seq.) and then brought a common law negligence action against Cameron in the state courts of Michigan. Upon certification by the United States Attorney that Cameron was acting within the scope of his employment at the time of the incident, the cause was removed to the United States District Court for the Western District of Michigan under the Federal Drivers Act (28 U.S.C. § 2679(d)), and the United States was substituted as the party defendant. From the District Court's order dismissing the action on the government's motion for summary judgment, and denying plaintiff's motion to remand the cause to the state courts for his negligence claim against Cameron, plaintiff appeals.

The Federal Drivers Act (28 U.S.C. § 2679(b)-(e)¹) was enacted in 1961 to protect or immunize government drivers from personal liability on claims arising from vehicular accidents occurring during the course of their employment, and to accordingly relieve such employees of the burden of acquiring private automobile liability insurance for driving while on the job. See H.R.Rep. No. 297, 87th Cong., 1st Sess.; S.Rep. No. 736, 87th Cong., 1st Sess.; 107 Cong. Rec. 18,499-500, 87th Cong., 1st Sess., U.S.Code Cong. & Admin.News 1961, p. 2784. See Generally Annot. 16 A.L.R.3d 1394, 1402 (1967). The purpose of the Act is accomplished by making "the remedy by suit against the United States as provided by section 1346(b) Federal Tort Claims Act of this title for damage * * * or * * * personal injury, including death, resulting from the operation by any employee of the Government of any motor vehicle while acting within the scope of his office or employment * * *, exclusive of any other civil action or proceeding by reason of the same subject matter against the employee * * *." 28 U.S.C. § 2679(b). This section is implemented by subsection (d) which makes provision for removal to an appropriate district court of state court suits against a federal driver upon certification by a United States Attorney that the driver was within the scope of his employment at the time of the incident out of which the suit arose, the cause thereafter being "deemed a tort action brought against the United States" under the Federal Tort Claims Act. However, when a claimant such as plaintiff here is a federal employee who is entitled to benefits under the Federal Employees' Compensation Act, he cannot recover against the United States under the Tort Claims Act since the compensation act provides that "the liability of the United States or any of its instrumentalities under sections 751-756, 757-781, 783-791 and 793 of this title or any extension thereof with respect to the injury or death of an employee shall be exclusive, and in place, of all other liability of the United States or such instrumentality to the employee * * *." 5 U.S.C. § 757(b) (now recodified, 5 U.S.C. (Supp. II) § 8116(c)). The District Court in the instant case sustained the government's position that the above statutory provisions not only precluded plaintiff's claim for damages against the United States, but also precluded his common law action against the alleged tortfeasor individually. This determination is in accord with Noga v. United States, 272 F.Supp. 51 (N.D.Calif.1967); Beechwood v. United States, 264 F.Supp. 926 (D.C.Mont.1967); and Van Houten v. Ralls, 290 F.Supp. 67 (D.C.Nev., No. 1911-N, 1967).

Plaintiff does not assert a right of action against the United States. In this respect it is clear that a federal employee's exclusive remedy against the United States for injuries sustained while within the scope of employment is under the Federal Employees' Compensation Act. Johansen v. United States, 343 U.S. 427, 72 S.Ct. 849, 96 L.Ed. 1051 (1952); Patterson v. United States, 359 U.S. 495, 79 S.Ct. 936, 3 L.Ed.2d 971 (1959); Balancio v. United States, 267 F.2d 135 (2d Cir.), cert. denied, 361 U.S. 875, 80 S.Ct. 139, 4 L.Ed.2d 114 (1959). However, even though plaintiff was injured while within the scope of his employment and collected benefits under the federal compensation act, he contends that he is entitled to pursue his common law action against the alleged tortfeasor, and that the District Court erred in denying his motion to remand the cause.

It is initially argued that since the District Court found that plaintiff had no "remedy by suit" against the United States, the cause should have been remanded to the state courts pursuant to the provision of section 2679(d) of the Federal Drivers Act which provides:

"Should a United States District Court determine on a hearing on a Motion to Remand held before a trial on the merits that the case so removed is one in which a remedy by suit within the meaning of subsection (b) is not available against the United States, the case shall be remanded to the State court."

We believe this argument was properly rejected, for when this provision is read in light of the overall statutory scheme provided by the three federal acts mentioned above, it seems clear, as the government contends, that the remand provision is applicable only when the government driver is found to have been acting outside the scope of his employment at the time of the incident. See 107 Cong. Rec., supra, at 18500. In any event, we are not persuaded that the provision in question, standing alone, supports plaintiff's contentions.²

Plaintiff's principal contention is that the denial of his common law action against the alleged tortfeasor thwarts the legislative intent behind the Federal Employees' Compensation Act. In this respect, plaintiff cites four cases in support of the proposition that a federal employee who has sustained injuries as a result of an automobile accident may receive compensation benefits under the federal act and still bring suit against the federal employee who allegedly caused the injury. One case, with which we disagree, does support this assertion, Gilliam v. United States, 264 F.Supp. 7 (E.D.Ky.1967); two cases are factually distinguishable from the present situation, Allman v. Hanley, 302 F.2d 559 (5th Cir. 1962) and Seligman v. Gerlach, 28 Misc.2d 632, 215 N.Y.S.2d 634 (1961); and ...