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Tuesday, April 17, 2012

dual capacity

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Dual capacity


- Employer must be acting as a third party vis-à-vis the employee


(Schmid v United States, 187, 86 Fd 7- the court stated that it did not have to decide the validity of the dual capacity doctrine since the doctrine only applies if the employer was acting via-a vis the employer in manner entirely unrelated to its capacity as an employer and , in the case before the court, the injury occurred on land owned by the government , and in which the government encouraged its employees to play; thus, the plaintiff’s injuries were sustained in the course of an activity sufficiently related to the employment, and the government’s role was related to its status as employer, and the doctrine was not applicable.


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- (Wright v united states, 717 F.d 54, Employee of Veterans Administration hospital brought action against the United States under the Federal Tort Claims Act to recover for throat injuries allegedly sustained when hospital applied and operated respirator after her preexisting tubal pregnancy manifested itself while she was on duty. The United States District Court for the Eastern District of Michigan, Horace W. Gilmore, District Judge, held that the Federal Employees Compensation Act was employees exclusive remedy, and she appealed. The Court of Appeals, Keith, Circuit Judge, held that (1) fortuitous circumstance that employees preexisting tuba pregnancy manifested itself while she was on duty was not a sufficient relationship to establish coverage under the Act, and () dual capacity doctrine would have enabled employee to bring the action.


Reversed and remanded.


- (Saltsman v US. 104 F.d 787,17, following gun attack by worker at military base, injured co-workers; representatives of deceased co-workers, and family members brought action against United States pursuant to Tort Claims Act for negligent supervision and retention of co-worker. The United States District Court for the Western District of Kentucky, Charles M. Allen, J., dismissed action. Plaintiffs appealed. The Court of Appeals, Kennedy, Circuit Judge, held that (1) Federal Employees Compensation Act (FECA) provided sole remedies for plaintiffs, and () dual-capacity doctrine did not apply to action to allow plaintiffs to bring action under Tort Claims Act…The record indicates only that the employees at issue suffered their injuries at their work place and during their work day. Indeed, the awards of FECA benefits already received by plaintiffs are predicated upon this fact. The dual-capacity doctrine therefore does not apply because defendant was acting solely in its capacity as the employer of the injured


- The injury must be sustained not in performance of duty (of the employee)


- Schmid v US, supra)


- Noble v U.S. 16 F.d 1, 000- Former federal employee who allegedly sustained an on-the-job neck injury brought Federal Tort Claims Act (FTCA) action against the United States, seeking damages for the prolonging of his pain and the loss of his job that purportedly resulted from the Office of Workers Compensation Programs (OWCPs) tortious delay in authorizing his surgery. United States filed motion to dismiss. Finding there to be a substantial question as to Federal Employees Compensation Act (FECA) coverage of the alleged injury, the district court ordered the FTCA action held in abeyance and directed former employee to file claim with the OWCP for additional compensation under FECA for the alleged prolonged pain and job loss. Following the OWCPs denial of the claim, and the Secretary of Labors affirmance of that denial, the United States District Court for the Northern District of Alabama, No. 7-04-CV-BU-M, H. Dean Buttram, Jr., J., dismissed former employees complaint for lack of subject matter jurisdiction. Former employee appealed. The Court of Appeals, Alarcon, Circuit Judge, sitting by designation, held that (1) district court did not err in determining that there was a substantial question as to FECA coverage of former employees second alleged injury, namely, OWCPs purported delay in authorizing surgery, and that the coverage determination by the Secretary was necessary before former employees FTCA claims could proceed, and () district court did not err in ruling that it lacked jurisdiction to review the Secretarys determination that the OWCPs delay in authorizing surgery, and that the job loss and prolonged pain allegedly resulting therefrom, fell within FECAs coverage but were uncompensable under the statutes limited remedies.


Affirmed. …Once the Office of Workers Compensation Programs (OWCP) determines that a disability or death resulted from a work-related injury as defined by the Federal Employees Compensation Act (FECA), claimant is limited to the remedies authorized by FECA, even if a particular type of damage or consequence the claimant suffered is not compensable under FECA. 5 U.S.C.A. § 8116(c).


- United States V.Udy, 81 F.d 455, infra


Special Zone of danger The mere fact that the injury occurred while the employee was on the premises of his/her employer generally is not controlling; the court inquires whether the obligations or the conditions of the employment created a “special zone of danger”


- (Bailey v U.S., 451 Fd 6,171, Action by employee of army laundry for injury sustained when employees automobile was struck by military truck on government premises. The United States District Court for the Western District of Louisiana at Lake Charles, Benjamin C. Dawkins, Jr., Chief Judge, entered judgment for employee and Army appealed. The Court of Appeals, Lewis R. Morgan, Circuit Judge, held that circumstance that employee was returning home from her job at army laundry when her automobile was struck by military truck and that accident occurred on army base did not present substantial question of FECA coverage and employee could maintain action under the Federal Tort Claims Act. Affirmed. Clark, Circuit Judge, dissented and filed opinion. (This case has many negative history and criticism)


- United States v. Udy, 81 F.d 455, 456 (10th Cir.167)- Action by wife, on behalf of herself and her children, against United States to recover for death of her husband who was killed while a civilian employee on air force base. The United States District Court for the District of Utah, A. Sherman Christensen, J., rendered judgment for plaintiffs, and defendant appealed. The Court of Appeals, David T. Lewis, Circuit Judge, held that where decedent had checked out from his employment site, had traveled three miles from that location and was then killed in automobile accident after having returned to restricted area, with permission of government, to avoid road construction on his normal route, there was no substantial question presented as to whether his death occurred in performance of his duties, and recovery of wife and children under the Federal Tort Claims Act was not barred by any coverage under the Federal Employees Compensation Act.


Affirmed.


Question of Substantial coverage of FECA


The general rule is that the federal employee cannot proceed with an action of F.T.C.A. if there is a “substantial question” whether FECA applies; or unless the injury is “clearly not compensable” under FECA.


- (Somma v US, 8 Fd 14, 160)


- (Noble v U.S., 16 F d 1, 000, supra)


- (Farley v. US, 16 Fd 61, 1, Former employees of United States Probation Office brought action under Federal Tort Claims Act, alleging sexual discrimination by supervisor. The United States District Court for the Northern District of Oklahoma, John E. Conway, Chief Judge, dismissed for lack of subject matter jurisdiction, and employees appealed. The Court of Appeals, Brorby, Circuit Judge, held that (1) substantial question existed as to whether Federal Employees Compensation Act (FECA) was applicable, so court had to stay proceedings in instant action pending FECA coverage decision by Secretary of Labor, and () abatement, rather than dismissal, of instant action was proper.reversed and remanded with directions) (White v. US, 14 F.d , 18-court of appeal found substantial question of whether FECA applies.)


FTCA would not apply unless it is certain that Secretary of Labor would find no coverage under FECA


- White V. U.S. Civilian employee of the Department of the Army, who was struck and injured by government vehicle when he was driving home from work on a street within the military installation where he worked, sued United States under Federal Tort Claims Act (FTCA). The United States moved to stay proceedings pending decision by the Secretary of Labor on issue of Federal Employees Compensation Act (FECA) coverage. The United States District Court for the Western District of Texas, W. Royal Furgeson, Jr., J., denied motion for stay, and, subsequently, entered judgment for employee. United States appealed. The Court of Appeals, Emilio M. Garza, Circuit Judge, held that substantial question existed as to whether Secretary of Labor would find FECA coverage for employees injuries, thus requiring court to stay proceedings pending Secretarys determination on that issue; receding from - Bailey v. United States, 451 F.d 6(5thCir.171). Reversed, vacated, and remanded.


- Noble V. U.S., supra


- Traver V. U.S., 5 F. d 00, 10th cir.(colo., may 18 14


- Figueroa v. U.S., 7.d 1405 (th cir. Guam), 1)


- Swafford V. US 8 F.d 87, 10th circ, Okla., 1


- Tiippetts V. U.S., 08 f.d 101, 10th circ, Utah, 00


The injury coved in FECA does not include claims on mental distress


- Sullivan v. United States, 48 F.Supp. 7, 81 (E.D.Wis.177)The motion of the defendant United States is bottomed on its contention that Mr. Sullivans exclusive remedy in this matter is with the Office of Workers Compensation Programs. Section 1005(c) of U.S.C. Provides that remedies for certain injuries are available exclusively under 5 U.S.C. s 8101, which relates to compensation for federal employees for work-connected injuries. I believe the position of the United States is incorrect. The type of injuries covered in 5 U.S.C. s 8101(5) includes injury by accident and disease; it does not appear to include such claims as are presented here for discrimination, mental distress, or loss of employment. The argument advanced by the defendant United States therefore does not entitle it to dismissal of this action.


However, I find for different reasons that the complaint must be dismissed against this defendant for lack of subject matter jurisdiction. Rule 1(h)(), Federal Rules of Civil Procedure, directs a court to dismiss an action in the absence of jurisdiction over the subject matter. That rule provides


- DeFord V. Secretary of Labor, 700 F.d 81-… The FECA provides generally for compensation upon disability or death of employees due to personal injury. 5 U.S.C. § 810. To the extent that the term is potentially relevant here, the definition of an injury is more specifically limited to injury by accident or by a disease proximately caused by the employment. 5 U.S.C. § 8101(5). It has been held that [t] he type of injuries covered in 5 U.S.C. § 8101(5) ... does not appear to include such claims as ... for discrimination, mental distress, or loss of employment. Sullivan v. United States, 48 F.Supp. 7, 81 (E.D.Wis.177). We are inclined to agree. Neither the language of the statute itself nor the policy foundations underlying workmens compensation acts support a conclusion that intentional discrimination is to be viewed as causing an injury subject to FECA coverage. True it is that compensation acts are habitually given a liberal construction in order to effectuate their intended purposes, e.g., United States v. Udy, 81 F.d 455, 456 (10th Cir.167), but it should also be recognized that [s]uch a rule of construction is for the benefit of the employee so that liberal coverage under the Act may be provided, DeSousa v. Panama Canal Co., 0 F.Supp. , 5 (S.D.N.Y.16), and is not a device to be used for applying the FECA where it has no application or where stretching its application would be unjust, id. at 5; accord, 0 C.F.R. § 10.1(c)


- McDaniel v. U.S., 70 F.d 14, 6th cir. Ohio, 1- Former postal worker brought action under the Federal Tort Claims Act (FTCA) alleging negligent and intentional infliction of emotional distress by a supervisor. The United States District Court for the Southern District of Ohio, Walter Herbert Rice, District Judge, dismissed the action under the FTCA, and the former postal worker appealed. The Court of Appeals held that (1) the Federal Employees Compensation Act (FECA) preempted the FTCA claims, and () the former postal worker could seek remedies under either the Civil Service Reform Act (CSRA) or the FECA.


Affirmed. McDaniel contends that FECA does not cover claims based upon non- physical emotional distress. He relies upon this courts opinion in DeFord v. Secretary of Labor, 700 F.d 81 (6th Cir.18). In that case, DeFord, a Tennessee Valley Authority (TVA) employee, brought an action pursuant to the Energy Reorganization Act of 174 (ERA), alleging that the TVA had illegally discriminated against him because he assisted in a Nuclear Regulatory Commission investigation at a TVA facility. Id. at 8. We held that FECA did not cover such claims


The FECA provides generally for compensation upon disability or death of employees due to personal injury. 5 U.S.C. § 810. To the extent that the term is potentially relevant here, the definition of an injury is more specifically limited to injury by accident or by a disease proximately caused by the employment. 5 U.S.C. § 8101(5). It has been held that [t]he type of injuries covered in 5 U.S.C. § 8101(5) ... does not appear to include such claims as ... for discrimination, mental distress, or loss of employment. Sullivan v. United States, 48 F.Supp. 7, 81 (E.D.Wis.177). We are inclined to agree.


DeFord, 700 F.d at 0 (alteration in original) (emphasis added). Technically, because DeFord involved discrimination rather than mental distress, the emphasized language is dictum. The logic of the passage, however, applies equally to mental distress, and thus, DeFord undoubtedly bolsters McDaniels position.


Nonetheless, the Secretary of Labor, not the Sixth Circuit, has the final say as to the scope of FECA


The action of the Secretary or his designee 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


() not subject to review by another official of the United States or by a court by mandamus or otherwise.


- Greathouse v. U.S.


61 F.Supp. 17


W.D.Ky.,17. Former federal employee brought action against government under Federal Tort Claims Act (FTCA) to recover damages for emotional injuries. Government moved to dismiss, contending that former employees claim was barred by Federal Employees Compensation Act (FECA). The District Court, Heyburn, J., held that whether former employees emotional injuries were compensable under FECA presented a substantial question of coverage which was best left to Secretary of Labor.


Motion denied; action stayed… Subsequent to DeFord ... the Sixth Circuit has described the language in DeFord stating that FECA does not apply to claims regarding mental distress as dictum. See McDaniel v. United States, 70 F.d 14, 16 (6th Cir.1). Further, the McDaniel Court held that FECA applied to, and therefore preempted, a claim of intentional infliction of emotional distress when the harassment of a supervisor triggered a psychiatric hospitalization.


Saltsman, 104 F.d at 70.


Nonetheless, the issue has not been resolved definitively. The McDaniel court explained that even though it may have disagreed with the outcome, the Secretary of Labor had decided that FECA covered McDaniels claims and the Secretarys determination of the scope [of FECA] is binding upon this court. McDaniel v. United States, 70 F.d 14, 17 (6th Cir.1). The court did not state a general rule as to the applicability of FECA; it only determined that the Secretarys decision on that issue was conclusive. As a result, it left the question of whether FECA categorically covers emotional distress claims, absent physical injury, unanswered. Moreover, none of these cases explain what this Court should do when a plaintiff with a potential FECA claim completely bypasses that exclusive remedy.


- Aponte v. U.S. Dept. of Treasury, Bureau of Alcohol, Tobacco, and


40 F.Supp. 88


E.D.N.C.,16.


Sept. , 16Deputy sheriff for county brought action against United States under Federal Tort Claims Act (FTCA) to recover damages for injuries he sustained from gunshot wound when executing federal search warrant and federal arrest warrant. On United States motion to dismiss, the District Court, Terrence William Boyle, J., held that (1) Federal Employees Compensation Act (FECA) applied to cover deputy sheriffs injuries; () coverage under FECA was exclusive remedy; () FECA coverage included claims of emotional distress and loss of consortium; and (4) refusal to accept FECA benefits did not nullify determination of FECA coverage.


Motion granted.





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