White v. U.S.

• Decision Date: 23 June 1998
• Docket Number: No. 96-50810,96-50810
• Citation: 143 F.3d 232
• Parties: Kenneth WHITE, Plaintiff-Appellee, v. UNITED STATES of America, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 232

143 F.3d 232

Kenneth WHITE, Plaintiff-Appellee, v. UNITED STATES of America, Defendant-Appellant.

No. 96-50810.

United States Court of Appeals Fifth Circuit.

June 23, 1998.

John Hobart Rowley, Austin, TX, for Plaintiff-Appellee.

Robert S. Greenspan, U.S. Dept. of Justice, Constance A. Wynn, Washington, DC, for Defendant-Appellant.

Appeal from the United States District Court for the Western District of Texas.

Before KING, EMILIO M. GARZA and DeMOSS, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

The United States appeals from the district court's denial of its motion to stay pending a decision by the Secretary of Labor on the determination of Federal Employees' Compensation Act ("FECA") coverage and of its subsequent motion for reconsideration on the same issue. Because a substantial question of FECA coverage exists, we reverse the district court's denial of the government's motion to stay, vacate the subsequently entered judgment, and remand to the district court with instructions to stay the case pending the Secretary's determination of FECA coverage.

I

Kenneth White is a civilian employee of the Department of the Army at the White Sands Missile Range in New Mexico. White was driving home from work on a street within the military installation when a government vehicle driven by a military policeman struck his car. White sustained personal injuries and damage to his car as a result of the accident.

White filed a Federal Torts Claims Act ("FTCA") lawsuit against the United States in the El Paso Division of the Western District of Texas. The government filed a motion to stay the proceedings pending a decision by the Secretary of Labor on the issue of FECA coverage. The district court denied the government's motion as well as a subsequent motion for reconsideration. Several months later, the parties stipulated to entry of judgment, pursuant to which the government conceded liability, and the parties agreed to the amount of damages for White's personal injuries and the property damage to White's automobile. The parties further agreed, however, that the district court's entry of final judgment would be without prejudice to the government's right to appeal (1) the issue of whether FECA deprives the district court of subject matter jurisdiction of the FTCA claim and (2) the district court's orders denying the government's two motions. Following the district court's entry of final judgment, the government timely appealed.

II

The government contends on appeal that the district court erred in holding that no substantial question of FECA coverage exists as to the injuries White sustained. ¹ This is a question of law that we review de novo. See Concordia v. United States Postal Serv., 581 F.2d 439, 442 (5th Cir.1978).

FECA provides compensation for a federal employee's personal injuries "sustained while in the performance of his duty." 5 U.S.C. § 8102(a). For injuries within its coverage, FECA's remedy is exclusive of any other remedy, including the FTCA. 5 U.S.C. § 8116(c). Like workers' compensation statutes generally, "[FECA] is intended to serve as a substitute rather than a supplement for the tort suit." Bailey v. United States, 451 F.2d 963, 965 (5th Cir.1971). FECA vests with the Secretary of Labor the power to "administer, and decide all questions arising under [FECA]," 5 U.S.C. § 8145, and the Secretary's action in allowing or denying an award under FECA is final and conclusive and not subject to review by a court of law, 5 U.S.C. § 8128(b).

Our jurisdiction with regard to FECA is limited to determining if a substantial question of coverage under FECA exists. See Concordia, 581 F.2d at 442; Bailey, 451 F.2d at 967. A substantial question exists unless it is certain that the Secretary of Labor would find no coverage under FECA. See Concordia, 581 F.2d at 442. Thus, "[t]o avoid sending the case to the Secretary of Labor, we must essentially decide as a matter of law that, viewing all of the circumstances, the Secretary could not find FECA coverage of [White's] claim." Id. We cannot deny the Secretary the opportunity to decide the question of coverage "unless we are certain that he would find no coverage." Id. Only if we are certain that the Secretary of Labor would conclude that the employee's injuries do not present a substantial question of coverage under FECA may we entertain the employee's FTCA claim without the employee first submitting the claim to the Secretary of Labor. ² Bailey, 451 F.2d at 965. Accordingly, our task here is to determine whether a substantial question of coverage exists.

The parties dispute whether White's injuries were "sustained while in the performance of his duty" and, therefore, whether there is a substantial question of coverage. The government contends that because the Secretary of Labor has found coverage in cases factually similar to White's, we cannot be certain that the Secretary could not find coverage here. White, on the other hand, argues that the circumstances of his accident are factually indistinguishable from those in Bailey, in which we held that there was not a substantial question of coverage. Therefore, under our own circuit law, he argues, no substantial question of coverage can exist.

At the center of the parties' dispute is the application of the "premises rule," which provides that an employee's injuries are compensable when sustained on the employer's premises while the employee is going to or from work. See Bailey, 451 F.2d at 965-66; 1 ARTHUR LARSON & LEX K. LARSON, LARSON'S WORKERS' COMPENSATION LAW § 15.00 (1997). As support for its argument that the Secretary would likely find that White's injuries were sustained in the performance of duty, the government cites two ECAB decisions, Gordon R. Woodruff, No. 89-390, 1989 WL 221872 (Empl.Comp.App.Bd.1989), and Anneliese Ross, 42 E.C.A.B. 371 (1991), in which the Secretary, applying the premises rule, found coverage for injuries sustained by employees while the employees were driving on the employer's premises and going either to or from work. In Ross, Anneliese Ross, a civilian military employee, was injured while she was driving to work on a road within the military reservation, and a military vehicle hit her car. Ross, 42 E.C.A.B. at 371. Similarly, Gordon Woodruff, also a civilian employee on a military base, was injured in a car accident caused by a government vehicle while he was driving on the roads in the military reservation returning from lunch after his regular lunch break. Woodruff, 1989 WL 221872, at * 1. In both cases, the Board found that the employee's injury was covered under FECA, citing the premises rule as the reason the employee's injuries were sustained in the performance of duty. Ross, 42 E.C.A.B. at 373; Woodruff, 1989 WL 221872, at * 1. Noting that it had interpreted the phrase "sustained in the performance of duty" "to be the equivalent of the commonly found prerequisite in worker's compensation law of 'arising out of and in the course of employment,' " ³ the Board set out the connection between the premises rule and the requirement that the employee's injury occur in the scope of employment:

Under [FECA] an injury sustained by [an] employee, having fixed hours and place of work, while going to or coming from work is generally not compensable because it does not occur in the performance of duty. This is in accord with the weight of authority under workmen's compensation statutes that such injuries do not occur in the course of employment. However, many exceptions to the rule have been declared by courts and workmen's compensation agencies. One such exception, almost universally recognized, is the premises rule: an employee driving to and from work is covered under workmen's compensation while on the premises of the employer.

Ross, 42 E.C.A.B. at 373-74; see also 1 LARSON & LARSON, supra, § 15.10 (noting that the premises rule has been adopted by the courts with a "surprising degree of unanimity"). As the Board explained in Ross, being on the employer's premises because one is reporting to work is a reason related to employment. Ross, 42 E.C.A.B. at 374; see also Woodruff, 1989 WL 221872, at * 2 (reasoning that because employees "must travel the roads of the employing establishment when going to or coming from work," their traveling on the internal roads of the employer's establishment serves to benefit their employer and is an integral part of their employment, and, therefore, any injuries sustained in those circumstances are in the performance of their duties). ⁴

For his part, White contends that we must follow our decision in Bailey, in which we rejected the automatic application of the premises rule, instead holding that the location of the accident is only one of the factors to be considered in determining whether a substantial question of coverage exists. In Bailey, the plaintiff, Barbara Bailey, a civilian employee in the army laundry, was injured when her car was struck from behind by a military pickup transporting equipment for use on the rifle range. Bailey, 451 F.2d at 965. At the time of the accident, Bailey was traveling home, in her private automobile, on the military reservation's roads. The government argued that because Bailey's injuries occurred on the employer's premises while she was returning home from work, "there [wa]s a very real possibility that the Secretary of Labor would compensate" her. Id. Rejecting such a rigid interpretation of the premises rule, we found the better approach to be "examining the issue in light of all relevant factors, including the premises on which the injury took place." Id. at 966 (citing United States v. Browning, 359 F.2d 937, 940 (10th Cir.1966)). Holding that "the location of the collision ... was of small import and no substantial question of FECA coverage [was] raised by the fortuitous circumstance that the street was owned by the federal government," we allowed the plaintiff to maintain her...