Elman v. United States , 173 F.3d 486 ( 1999 )


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  •                                                                                                                            Opinions of the United
    1999 Decisions                                                                                                             States Court of Appeals
    for the Third Circuit
    4-27-1999
    Elman v. USA
    Precedential or Non-Precedential:
    Docket 98-1186
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    Recommended Citation
    "Elman v. USA" (1999). 1999 Decisions. Paper 110.
    http://digitalcommons.law.villanova.edu/thirdcircuit_1999/110
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    Filed April 27, 1999
    UNITED STATES COURT OF APPEALS
    FOR THE THIRD CIRCUIT
    No. 98-1186
    BARBARA ELMAN,
    Appellant
    v.
    UNITED STATES OF AMERICA;
    UNITED STATES OF AMERICA, DEPARTMENT OF
    THE INTERIOR; NATIONAL PARK SERVICES;
    COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF
    TRANSPORTATION, OFFICE OF THE ATTORNEY
    GENERAL; COMMONWEALTH OF PENNSYLVANIA,
    DEPARTMENT OF GENERAL SERVICES, OFFICE OF
    THE ATTORNEY GENERAL; CITY OF PHILADELPHIA;
    JOHN DOE; MARY DOE; ABC PARTNERSHIPS;
    XYZ CORPORATIONS
    On Appeal from the United States District Court
    for the Eastern District of Pennsylvania
    (D.C. Civil No. 97-cv-05825)
    District Judge: Honorable Clifford Scott Green
    Argued: December 17, 1998
    Before: SLOVITER and COWEN, Circuit Judges,
    and RODRIGUEZ,* District Judge
    (Filed April 27, 1999)
    _________________________________________________________________
    *Hon. Joseph H. Rodriguez, United States District Judge for the District
    of New Jersey, sitting by designation.
    Bruce M. Ginsburg, Esq.
    Gregory C. DiCarlo, Esq (Argued).
    Ginsburg & Associates
    Philadelphia, PA 19103
    Attorneys for Appellant
    Michael R. Stiles, Esq.
    United States Attorney
    Eastern District of Pennsylvania
    James G. Sheehan, Esq.
    Assistant United States Attorney
    Chief, Civil Division
    Scott A. Coffina, Esq. (Argued)
    Assistant United States Attorney
    United States Attorney's Office
    Philadelphia, PA 19106
    Attorneys for Appellees United
    States of America, United States
    Department of the Interior, and
    National Park Service
    OPINION OF THE COURT
    SLOVITER, Circuit Judge.
    Barbara Elman, a federal employee, appeals from the
    decision of the District Court granting summary judgment
    to the United States on her claim under the Federal Tort
    Claims Act (FTCA), 28 U.S.C. SS 1346(b), 2671-2680. This
    appeal requires us to consider whether a federal employee
    who has received compensation under the Federal
    Employees' Compensation Act (FECA), 5 U.S.C. S 8101 et
    seq., for an injury sustained during the course of
    employment may sue the United States under the FTCA,
    alleging that the United States' role in causing the injury
    was significantly different from its role as an employer.
    2
    I.
    FACTUAL AND PROCEDURAL HISTORY
    The facts in this case are not in dispute. Elman is an
    employee at the Philadelphia office of the Equal
    Employment Opportunity Commission (EEOC). On
    November 20, 1996, she and a co-worker left the EEOC
    offices to attend a federal employees' health benefits fair
    being held at the Federal Building nearby. While walking
    along the south side of Market Street between 5th and 6th
    Streets, Elman fell, fracturing her left knee and injuring her
    face. Elman claims that her fall was caused by a defect in
    the sidewalk, which is owned by the Commonwealth of
    Pennsylvania but maintained by the National Park Service.
    Elman required the insertion of three bone screws and
    has incurred pain and suffering. Because of her injuries,
    Elman applied for workers' compensation benefits under
    FECA on December 3, 1996. Her application was approved
    on January 8, 1997, and as of August 25, 1997, Elman had
    received $20,299 in FECA benefits.
    Elman also sought to receive compensation for her
    injuries from the National Park Service. On July 3, 1997,
    she filed an administrative claim with the Park Service,
    which it denied on August 18, 1997. Elman then filed suit
    against, inter alia, the United States in the District Court
    for the Eastern District of Pennsylvania, seeking
    compensation under the FTCA. The government moved for
    summary judgment on the ground that recovery under
    FECA disqualified Elman from recovering under the FTCA.
    The District Court granted that motion by Order dated
    February 27, 1988, and Elman filed a timely appeal.
    We have jurisdiction under 28 U.S.C. S 1291. Our review
    of a grant of summary judgment is plenary. We apply"the
    same test the district court should have utilized initially,"
    viewing those inferences that may be drawn from the
    underlying facts in a light most favorable to the nonmoving
    party. Goodman v. Mead Johnson & Co., 
    534 F.2d 566
    , 573
    (3d Cir. 1976).
    3
    II.
    DISCUSSION
    An employee of the federal government is entitled to be
    compensated for "personal injury sustained while in the
    performance of his duty" under 5 U.S.C. S 8102(a) and to
    receive medical treatment under 5 U.S.C. S 8103. Section
    8116 of the same title explicitly provides that the liability
    incurred under these provisions, with one exception not
    pertinent to this appeal, is exclusive. It states:
    The liability of the United States or an instrumentality
    thereof under this subchapter . . . with respect to the
    injury or death of an employee is exclusive and instead
    of all other liability of the United States or the
    instrumentality to the employee. . . because of the
    injury or death in a direct judicial proceeding . . . or by
    an administrative or judicial proceeding under .. . a
    Federal tort liability statute. . . .
    5 U.S.C. S 8116(c) (emphasis added).
    The decision to award FECA benefits is entrusted to the
    Secretary of Labor or his or her designee, whose decision is
    "(1) final and conclusive for all purposes and with respect
    to all questions of law and fact; and (2) not subject to
    review by another official of the United States or by a court
    by mandamus or otherwise." 5 U.S.C. S 8128(b).
    The Supreme Court explained Congress's purpose in
    enacting S 8116(c) in Lockheed Aircraft Corp. v. United
    States, 
    460 U.S. 190
    (1983):
    [FECA] was designed to protect the Government from
    suits under statutes, such as the Federal Tort Claims
    Act, that had been enacted to waive the Government's
    sovereign immunity. In enacting this provision,
    Congress adopted the principal compromise -- the
    "quid pro quo" -- commonly found in workers'
    compensation legislation: employees are guaranteed
    the right to receive immediate, fixed benefits,
    regardless of fault and without need for litigation, but
    in return they lose the right to sue the Government.
    4
    
    Id. at 193-94.
    Section 8116(c) thus bars an employee who has collected
    benefits under FECA from subsequently bringing suit
    against his or her employer for damages under the FTCA.
    As this court said in DiPippa v. United States, 
    687 F.2d 14
    ,
    17 (3d Cir. 1982), "Where FECA applies, it unambiguously
    precludes ``all other liability of the United States' either
    ``under a workmen's compensation statute or under a
    Federal tort liability statute.' "
    Elman relies on a decision of the Court of Appeals for the
    Sixth Circuit, which in Wright v. United States, 
    717 F.2d 254
    , 259 (6th Cir. 1983), recognized an exception to this
    general rule, widely known as the "dual capacity doctrine."
    The dual capacity doctrine treats the government as though
    it were a third party, and therefore subject to suit despite
    the exclusivity provision of FECA, when the government's
    role in contributing to the employee's injury is entirely
    different from its role in employing that individual. As the
    Sixth Circuit articulated the test, " ``An employer may
    become a third person, vulnerable to tort suit by an
    employee, if--and only if--he possesses a second persona
    so completely independent from and unrelated to his status
    as employer that by established standards the law
    recognizes it as a separate legal person.' " 
    Id. at 259
    (quoting 2A Larson, Workmen's Compensation Law 14-229,
    S 72.81 (1982)).
    Elman urges this court to adopt the dual capacity
    doctrine and to find that the government was acting in one
    persona when it maintained the sidewalk and an entirely
    different one when it employed Elman. We note that some
    of the state courts, interpreting their own state workers'
    compensation statutes, have also adopted versions of the
    dual capacity doctrine. See, e.g., Tatrai v. Presbyterian Univ.
    Hosp., 
    439 A.2d 1162
    , 1166 (Pa. 1982) (Roberts, J.,
    concurring, joined by O'Brien, C.J., and Larsen and
    Flaherty, J.J.); Sobczak v. Flaska, 
    706 N.E.2d 990
    , 997 (Ill.
    Ct. App. 1998); McGee v. Goodyear Atomic Corp., 
    659 N.E.2d 317
    , 323-24 (Ohio Ct. App. 1995); Panagos v. North
    Detroit Gen. Hosp., 
    192 N.W.2d 542
    , 558-59 (Mich. Ct. App.
    1971).
    5
    We have expressed doubts about the wisdom and
    viability of the dual capacity doctrine in the past. In Schmid
    v. United States, 
    826 F.2d 227
    (3d Cir. 1987), a government
    employee who had been injured while participating in a
    softball game sponsored by his employer alleged that his
    injury was caused by the government's negligent
    maintenance of its property. Schmid sought to recover
    under the FTCA, even though his FECA claim had already
    been approved by the relevant agency. Having been asked
    to adopt the dual capacity doctrine, we expressed
    "concern[ ] that the question at the center of th[at] doctrine
    --whether at the time of injury the employer was acting as
    a third party vis-a-vis the employee--is virtually identical to
    the question the agency must ask in determining whether
    the employee is eligible for FECA benefits--i.e. whether or
    not the injury was sustained ``in the performance of his
    duty.' " 
    Id. at 229.
    We noted that "a court applying the [dual
    capacity] doctrine may come perilously close to second
    guessing the agency's decision about whether the employee
    is entitled to FECA benefits, something that [the statute]
    explicitly states the courts must not do." 
    Id. We did
    not, however, reject the dual capacity doctrine in
    that case. Instead, we held that the doctrine would not
    apply to Schmid's claim in any event. We noted that
    Schmid's employer not only owned the land on which
    Schmid was injured, but sponsored the softball game and
    encouraged its employees to participate in such sports
    activities. Although some non-employees were permitted to
    play on the softball teams, we concluded that such
    participation was limited. In these circumstances, we
    viewed the government's role in maintaining the land as
    insufficiently removed from its role as employer to justify
    imposing FTCA liability.
    A majority of the courts of appeals that have considered
    similar claims have refused to adopt the dual capacity
    doctrine. See Votteler v. United States, 
    904 F.2d 128
    , 130-
    31 (2d Cir. 1990) ("The ``dual capacity doctrine' is
    inconsistent with the rationale of our decision in Balancio
    [v. United States, 
    267 F.2d 135
    (2d Cir. 1959)], and we
    reject it."); Bush v. Eagle-Pitcher Indus., Inc., 
    927 F.2d 445
    ,
    452 (9th Cir. 1991) ("As a result of a short-lived loophole in
    6
    the [Longshore and Harbor Workers' Compensation Act], a
    private shipyard could be subjected to a dual capacity suit.
    The United States, though, by virtue of FECA section
    8116(c) cannot and never could."); Wilder v. United States,
    
    873 F.2d 285
    , 289 (11th Cir. 1989) (noting that the dual
    capacity doctrine "has been persuasively criticized" and
    "adopt[ing] those criticisms in declining to apply the
    doctrine"); cf. Vilanova v. United States, 
    851 F.2d 1
    , 6-7 (1st
    Cir. 1988) (rejecting the dual capacity doctrine in the
    context of a claim under the Nonappropriated Fund
    Instrumentalities Act).
    Indeed, Elman has not identified any case in which a
    federal court permitted an individual to sue under the
    FTCA after having received benefits under FECA. The Sixth
    Circuit's decision in Wright is not such a case. There, the
    plaintiff, Sharon Wright, suffered a ruptured tubal
    pregnancy while performing her duties as a secretary at the
    Veterans Administration Hospital. She was treated at the
    hospital, and, according to her allegations, further injured
    by the medical malpractice of the hospital personnel.
    Wright did not file a FECA claim within the three-year
    statute of limitations, but did sue the United States under
    the FTCA. The Sixth Circuit rejected any suggestion that
    Wright's injuries were covered by FECA before it held that
    the dual capacity doctrine would allow Wright to recover
    under both FECA and the FTCA in any event. 
    See 717 F.2d at 258-59
    . Thus, whatever its language, in fact the court
    did not allow Wright to recover under both FECA and the
    FTCA.1
    The Sixth Circuit itself has apparently moved away from
    the dual capacity doctrine in subsequent cases. In McCall
    v. United States, 
    901 F.2d 548
    , 550-51 (6th Cir. 1990), it
    refused to allow dual recovery where the plaintiff, who was
    injured while on the job in one location, allegedly suffered
    _________________________________________________________________
    1. In Miller v. Bolger, 
    802 F.2d 660
    , 663-66 (3d Cir. 1986), we permitted
    a plaintiff to proceed under Title VII after receiving FECA benefits,
    because we concluded that recovery under Title VII did not constitute
    "damages . . . for injury" within the meaning of FECA. We specifically
    noted that the same cannot be said of recovery under the FTCA. See 
    id. at 663.
    7
    further injury when treated for that injury at a government
    hospital in another location. And, as recently as 1997, that
    court stated in a footnote, "The dual-capacity doctrine
    appears merely to represent a rewording of the standard
    inquiry under FECA of whether an employee suffered his
    injuries ``while in the performance of his duty.' " Saltsman v.
    United States, 
    104 F.3d 787
    , 791 n.7 (6th Cir. 1997).
    Without considering whether this statement is an accurate
    reflection of the court's intent in Wright, the Saltsman
    footnote suggests that the Sixth Circuit may have become
    disenchanted with the dual capacity doctrine.
    With this background in mind, we first consider whether
    Elman's claim would fit within the dual capacity doctrine
    before we consider whether to adopt that doctrine as law.
    A.
    Elman contends that there were two relationships
    between her and the government at the moment of her fall.
    First, she claims, there was an employer-employee
    relationship between her and the EEOC, pursuant to which
    she agreed to perform certain duties in return for payment.
    Second, she claims, there was a landowner-invitee
    relationship between her and the Park Service, in which the
    Park Service extended an invitation to the public to come
    upon particular land and assumed a limited obligation to
    assure the public's safety thereon. Elman acknowledges
    that receipt of FECA benefits prevents her from recovering
    from the government in tort for actions taken in its role as
    her employer. She contends, however, that there is no bar
    to her recovering in tort for actions the government took or
    failed to take as a landowner.
    The District Court concluded that the dual capacity
    doctrine would not apply to these facts because "Plaintiff's
    injuries were sustained in the course of activity sufficiently
    related to her employment that the government's role as
    sponsor of the fair and manager of the property was related
    to its role as employer." Elman v. United States, Civ. Action
    No. 97-5825, slip. op. at 5 (E.D. Pa. February 27, 1998).
    We disagree. To the extent that the government ever acts
    in more than one capacity, it was doing so here. The Park
    8
    Service's role in maintaining the Market Street sidewalk is
    not related to the EEOC's role as an employer. Unlike in
    Schmid, the government here did not restrict use of the
    property to EEOC employees in particular, or to federal
    employees more generally. Rather, it held the property open
    to all members of the general public.
    Nor was the EEOC's role as sponsor of the benefits fair
    directly responsible for Elman's use of the sidewalk. The
    EEOC allowed its employees to walk to the fair, but there
    is no evidence that it encouraged them to do so or that it
    encouraged them to use the Market Street sidewalk in the
    process. Moreover, the government's motivation in
    maintaining public land, such as the Market Street
    sidewalk, is unrelated to its interests in preventing
    employment discrimination, one of the principal functions
    of the EEOC. Thus, we conclude that the dual capacity
    doctrine would apply to Elman's claims were we to adopt it.
    B.
    We thus must consider whether that doctrine accurately
    reflects applicable law.
    Elman has not identified any language in the FECA
    statute that supports the rule she advocates. Indeed, the
    dual capacity doctrine is inconsistent with the language of
    that statute. Section 8116 provides that FECA liability on
    the part of the United States or an instrumentality thereof
    is "instead of all other liability of the United States or the
    instrumentality to the employee . . . because of the injury
    or death." 5 U.S.C. S 8116(c). In other words, FECA
    recovery bars liability that is (1) "of the United States or the
    instrumentality"; (2) "to the employee"; and (3) "because of
    the injury [compensable under FECA]." 
    Id. The liability
    Elman seeks to impose on the United States with this suit
    meets these three criteria and should be barred under the
    plain language of the statute. Nonetheless, Elman would
    have us carve out an additional exception for liability that
    arises out of the United States' role in a persona other than
    an employer. As a court of limited powers, we see no
    justification for doing so.
    9
    Elman attempts to offer us a justification by appealing to
    this court's sense of public policy. She correctly notes that
    tort law holds the Park Service responsible for certain
    injuries incurred while the plaintiff was on Park Service
    land in an effort to deter the Park Service from permitting
    dangerous conditions to remain on that land. Elman
    contends that the need for such deterrence is not reduced
    by the fact that the injured party was a federal employee.
    And, she concludes that, therefore, the Park Service's
    liability should not be reduced by that fact.
    Although we recognize the force of some of Elman's
    observations, we decline to adopt her conclusion because it
    ignores the fact that workers' compensation laws represent
    a balance. The injured workers have assurance they will be
    compensated quickly, efficiently, and without extended
    litigation in return for limited recovery exclusive to that
    claim. The reduction in liability is based solely on the
    injured party's status as an employee, not on any lessening
    of the need for deterrence. FECA likewise sacrifices some
    deterrence in order to assure that federal employees
    "receive immediate, fixed benefits, regardless of fault and
    without need for litigation." Lockheed Aircraft 
    Corp., 460 U.S. at 194
    . Thus, were we to adopt the dual capacity
    doctrine Elman advocates, we would undermine the
    workers' compensation rationale embodied in FECA. That is
    a decision that must be made by Congress.
    As the Second Circuit stated in Votteler, "Sometimes the
    broad coverage of a compensation scheme confers a
    ``benefit' that a plaintiff would rather forgo in preference to
    the traditional tort remedies, but the breadth of coverage,
    with its consequent exclusivity, must be upheld, even when
    it might not be advantageous to the 
    employee." 904 F.2d at 130
    . This logic is particularly applicable here where the
    employee, having already accepted the benefit of the
    workers' compensation scheme, now seeks a fuller recovery
    under tort law.
    Finally, we address Elman's remaining argument, viz.,
    that our construction of the relevant federal statutes should
    be informed by principles of state law, in this case
    Pennsylvania law. Elman notes (1) that the federal
    government is subject to suit under the FTCA "in the same
    10
    manner and to the same extent as a private individual
    under like circumstances," 28 U.S.C. S 2674, and (2) that
    the extent to which a private employer would be subject to
    suit under similar circumstances would depend on
    Pennsylvania's willingness to accept the dual capacity
    doctrine. She concludes that this court should therefore
    look to that doctrine as it exists under Pennsylvania law to
    determine the extent of the government's liability.
    We disagree. It is FECA, specifically S 8116(c), not the
    FTCA which bars Elman from bringing suit. Even if Elman
    is right that the extent of government liability under the
    FTCA should be determined by reference to Pennsylvania
    law and that such FTCA liability would exist here, FECA
    excuses the government from that FTCA liability in any
    event.
    III.
    CONCLUSION
    For the reasons set forth, we will affirm the order of the
    District Court granting Appellees summary judgment on
    Elman's FTCA claims.
    A True Copy:
    Teste:
    Clerk of the United States Court of Appeals
    for the Third Circuit
    11