2002 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

7-30-2002

Brasch v. USA

Precedential or Non-Precedential: Non-Precedential

Docket No. 01-4514

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Recommended Citation

"Brasch v. USA" (2002). 2002 Decisions. Paper 462.

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 NOT PRECEDENTIAL 

 UNITED STATES COURT OF APPEALS 

 FOR THE THIRD CIRCUIT 

 __________ 

 No. 01-4514 

 __________ 

 

 JACQUELINE BRASCH, ADMINISTRATRIX 

 OF THE ESTATE OF RONALD P. BRASCH, 

 Appellant 

 

 v. 

 UNITED STATES OF AMERICA 

 __________ 

 

 ON APPEAL FROM THE UNITED STATES DISTRICT COURT 

 FOR THE EASTERN DISTRICT OF PENNSYLVANIA 

 D.C. Civil No. 01-cv-01179 

 District Judge: The Honorable Mary A. McLaughlin 

 __________ 

 

 Submitted Under Third Circuit LAR 34.1(a) 

 July 26, 2002 

 __________ 

 

 Before: SLOVITER, NYGAARD, and BARRY, Circuit Judges 

 (Opinion Filed: July 26, 2002) 

 ____________ 

 OPINION 

 ____________ 

BARRY, Circuit Judge 

 Appellant Jacqueline Brasch, administratrix of the estate of Ronald P. Brasch, her 

husband, filed a complaint against the United States under the Federal Tort Claims Act 

(’FTCA") for the wrongful death of her husband. Mr. Brasch, a United States Postal 

Service ("USPS") employee with a history of heart disease, suffered cardiac arrest on the 

post office premises shortly before he was scheduled to begin work. Although a USPS 

nurse administered oxygen and CPR to Mr. Brasch until an ambulance arrived, her 

efforts to revive him were unsuccessful and, appellant asserts, negligent in large part 

because she did not timely call 911. 

 Before initiating this action, appellant pursued her administrative remedies under 

the Federal Employees’ Compensation Act ("FECA"), 5 U.S.C. 8101 et seq.. Her 

FECA claim was denied because she failed to establish a causal connection between her 

husband’s death and the medical services rendered by the USPS. App. at 28-31, 

Jacqueline Brasch, No. 00-743, slip op. at 1 (E.C.A.B. Feb. 8, 2001). The Office of 

Workers’ Compensation Programs ("OWCP") evaluated appellant’s claim under 5 

U.S.C. 8102(a) and FECA Program Memoranda Nos. 42 and 186. The issue presented 

in this appeal is whether Program Memorandum No. 42, as supplemented by Program 

Memorandum No. 186, is a "legislative" rule subject to the notice and comment 

requirements of the Administrative Procedure Act ("APA") which, concededly, were not 

met. We hold that the rule is merely interpretive and, therefore, exempt from those 

requirements and appellant may not bring an action under the FTCA. 

 The FECA entitles a federal employee to compensation for disability or death 

"resulting from personal injury sustained while in the performance of his [or her] duty." 
5 U.S.C. 8102(a). An employee is also entitled to medical services following an injury 

sustained "in the performance of duty." 5 U.S.C. 8103. The statute does not identify, 

however, what activities constitute "in the performance of duty." In Program 

Memorandum No. 42, the OWCP’s Division of Federal Employees’ Compensation 

explained that an employee who avails him or herself of an employer’s medical services 

is "considered in the performance of duty on those occasions when such participation 

causes him [or her] to be absent from his [or her] regular duties" and that the deleterious 

effects of such services are compensable. This memorandum was supplemented by 

Program Memorandum No. 186, which emphasized that the FECA applies "to any 

deleterious result of medical services furnished by the employing agency for non-work 

related illnesses or injuries," whether from an "act of commission" or "omission." As 

noted above, the public was not given notice of or an opportunity to comment on either 

memorandum before it was issued. 

 Appellant argues that this lack of notice and opportunity to comment renders the 

rule embodied in the program memoranda invalid under the APA. Under 5 U.S.C. 553, 

a federal agency must provide thirty days’ notice and an opportunity for public comment 

before it may enact a rule. Exempt from this requirement are interpretive rules. 5 U.S.C. 

 553(b). Appellant’s argument, therefore, hinges on whether the rule extending FECA 

coverage to non-work related illnesses and injuries is "legislative" or "interpretive." 

 An administrative rule is deemed "interpretive" if it "is based on specific statutory 

provisions, and its validity stands or falls on the correctness of the agency’s interpretation 

of those provisions." Dia Navigation Co., Ltd. v. Pomeroy, 34 F.3d 1255, 1264 (3d Cir. 

1994) (quoting United Technologies Corp. v. EPA, 821 F.2d 714, 719-20 (D.C. Cir. 

1987)). Interpretive rules seek to construe or clarify the statutes and regulations to which 

they relate. Id. Conversely, a rule is "legislative" if it is intended to "have the force an

effect of law" and is promulgated by an agency to implement a statutory mandate. FLRA 

v. U.S. Dep’t of Navy, 966 F.2d 747, 762 n.14 (3d Cir. 1992) (citations omitted). "If a 

rule creates rights, assigns duties, or imposes obligations, the basic tenor of which is not 

already outlined in the law itself, then it is substantive [i.e., legislative]." Dia Navigati

Co., Ltd., 34 F.3d at 1264 (quoting La Casa Del Convaleciente v. Sullivan, 965 F.2d 

1175, 1178 (1st Cir. 1992)). 

 Here, the rule announced in Program Memoranda Nos. 42 and 186 merely 

interprets the language "in the performance of duty" contained in 5 U.S.C. 8102 and 

8103. It has no significance independent of the specific statutory sections it seeks to 

clarify. There is no indication that the OWCP or its FECA Division intended the 

program memoranda to have binding legal effect or to create obligations and rights not 

already outlined in the FECA. Similarly, it does not appear that the rule’s function is to 

implement a general statutory mandate. In short, Program Memoranda Nos. 42 and 186 

reflect nothing more than the OWCP’s current understanding of the phrase "in the 

performance of duty." As such, they create an interpretive rule that is exempt from the 

APA’s notice and comment requirements. 

 For the foregoing reasons, we will affirm the October 29, 2001 Order of the 

District Court. 

TO THE CLERK OF THE COURT: 

 Kindly file the foregoing Opinion. 

 /s/Maryanne Trump Barry 

 Circuit Judge