UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

____________

No. 96-50810

____________

KENNETH WHITE,

Plaintiff - Appellee,

versus

UNITED STATES OF AMERICA,

Defendant - Appellant.

Appeal from the United States District Court

For the Western District of Texas

June 23, 1998

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

it 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.-2- 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 dis trict 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 governme nt contends on appeal that the district court

erred in holding that no substantial question of FECA coverage1 We need n ot address White’s property damages on appeal

because, as the government concedes, FECA does not cover these

property damages. S ee 5 U.S.C. § 8102; Anneliese Ross

, 42 E.C.A.B.

371, 372 (1991).

-3- exists as to the injuries White sustained. 1 This is a question of

law that we review de novo

. S ee 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, in cluding 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. S ee

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. S ee 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 of2 If a plaintiff’s case is submitted to the Secretary, and

the Secretary finds no FECA coverage, the plaintiff is free to

proceed under the FTCA. See Concordia , 581 F.2d at 444.

-4- [White’s] claim.” I d

. We cannot deny the Secretary the

o pportunity to decide the question of coverage “unless we are

certain that he would find no coverage.” I d

. Only if we are

certain that the Secretary of Labor would conclude that the

employee’s in juries 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 B ailey

, 451 F.2d at 965. Accordingly, our task here is to

determine whether a substantial question of coverage exists.

A

The parties dispute whether White’s injuries were “sustained

while in the performance of his duty” and, therefore, whether there

is a s ubstantial 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 e mployer’s premises while the-5-

employee is going to or from work. S ee Bailey

, 451 F.2d at 965-66;

1 A RTHUR L ARSON & L EX K. L ARSON

, L ARSON ’ S W ORKERS ’ C OMPENSATION L AW § 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 o n the employer’s

premises and going either to or from work. In R oss

, Anneliese

Ross, a civilian military employee, was injured while she was

drivi ng to work on a road within the military reservation, and a

military vehicle hit her car. R oss

, 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 co mpensation law of3 The Board expanded on the meaning of the phrase “course

of employment”:

In the compensation field, to occur in the course of

employment, in gen eral, an injury must occur (1) at a

time when the employee ma y reasonably be said to be

engaged in his or her master’s business; (2) at a place

where he or she may reasonably be expected to be in

connection with the employment; and (3) while he or she

was reasonably fulfilling the dut ies of his or her

employment or engaged in doing something incidental

thereto.

Ross , 42 E.C.A.B. at 373 (citations omitted).

-6- ‘arising out of and in the course of employment, ’ ” 3 the Board set

out the connection between th e 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 compe nsation

while on the premises of the employer.

Ross

, 42 E.C.A.B. at 37 3-74; s ee also 1 L ARSON & L ARSON

, 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. R oss

, 42 E.C.A.B. a t

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 establishmen t serves to

benefit their employer and is an integral part of their employment,4 As the ECAB has recognized, t he term “premises” is not

synonymous with “property” in workers’ compensation law. W oodruff

, 1989 WL 221872, at *2. For property to be considered part of the

employer’s premises, “there must exist a close[] nexus between the

Federal property on wh ich an injury occurs and the use made and

benefit rece ived by the employing establishment from that

particular piece of Federal property.” I d

. The key, therefore, is

the “use made” or “benefit received” by the employer from the

particular piece of property on which the injury occurs.

-7- 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 B ailey

, the plaintiff,

Barbara Baile y, 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. B ailey

, 451

F.2d at 965. At the time of the accident, Bailey was traveling

home, in her private automobile, on the military reservatio n’s

roads. The government argued that because Bailey’s injuries

occurred on t he 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.” I d

. at 966

(citing United States v. Browning

, 359 F.2d 937, 940 (10th Cir.

1966)). Holding that “the location of the collision . . . was of5 In reaching this result, we took into consideration the

two factors that might raise a substantial question of coverage:

(1) that Bailey was injured while returning home from her job and

(2) that she was injured on a public street owned by her employer.

Noting that FECA coverage does not apply solely because an employee

is injured on the way home from work, w e stated that the

government’s case turned on the amount of significance we accorded

the location of the accident. Because she was traveling home on a

street apparently open to all persons authorized to be on the base,

was not under the supervision of her employer, and the driving of

her car was not an activi ty connected to the usual activities of

laundry work, we concluded that the street traveled by Bailey was

not a “zone of special danger” incident to her laundry employment.

Id. at 967-68.

-8- sma ll 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

FTCA claim. 5 Id . at 967.

White claims that his case is distinguishable from W oodruff

and Ross for two reasons. First, he argues that the ECAB found

FECA coverage in those cases because the injured employee was

required to t ravel the p articular road on which the accident

occurred; thus, because White was not required to use the specific

road on which his accident occurred and instead had the option of

taking a different route, his injury was not related to his

employment. Second, he contends that, unlike Woodruff and Ross, he

was no longer conducting the business of his employer when the

accident occurred because he had already left his worksite. In

support of these arguments, White quotes the following language

from Woodruff :

[E]mployees such as appellant m ust travel the roads of

the employing establishment when going to or coming from

work, both before and after working hours, an d during

lunchtime; the use made and benefit received by the6 White also attempts to distinguish the ECAB cases cited

by the government by noting that the ECAB has recognized that

injuries sustained by an employee on the employer’s premi ses are

not compensable when “the employee’s presence on the employer’s

premises at the time of the injury was for the employee’s personal

convenience rather than being related to their employment.” R oss

, 4 2 E.C.A.B. at 374. White, however, takes this statement out of

context. In fact, in making this statement, the Board was

explaining why Ross’ traveling to and from work on her employer’s

premises was related to her employment and was contrasting cases in

which the employee was on the employer’s premises for personal,

nonemployment-related reasons. S ee Ross

, 4 2 E.C.A.B. at 374

(citing Joann Curtiss , 38 E.C.A.B. 122, 125-26 (1986) (finding no

coverage for employee injured when she stopped after working hours

at a hospital tha t was also on the employer’s premises to fill a

prescription for her sister); Nona J. Noel

, 36 E.C.A.B. 329, 331-32

(1984) (finding no coverage for employee who arrived to work an

hour and a half early to eat breakfast at the noncommissioned

officers club, where her injury occurred); D onald C. Huebler

, 28

E.C.A.B. 17, 22-24 (1976) (finding no coverage for employee injured

in baseball game after work where employing establishment did not

sponsor or exercise control over the baseball l eague); T helma B.

-9- employing establishment from this particular piece of

property is that employees arrive and leave the employing

establishment, and conduct the business of the employing

establishment, through the use of this property

.

Woodruff

, 1989 WL 221872, at *3 (emphasis supplied by White).

White’s reliance on this passage is, however, misplaced. The ECAB

in fact ruled that neither the particular road on which Woodruff

traveled nor the personal nature of Woodruff’s trip was relevant.

See id. at *2-3; Gordon R. Woodruff

, No. 89-390 (order on petition

for rehearing) (Empl. Comp. App. Bd. Oct. 26, 1989). Instead, the

Board concluded that these internal roads were an integral and

necessary component of the employing establishment’s business )) the

employing establishment ( i.e. , the military) used and benefitted

from the roads because the employees used them to travel on and off

the military reservatio n on their way to and from work. S ee

Woodruff , 1989 WL 221872, at *3. 6Barenkamp , 5 E.C.A.B. 228, 229-30 (1952) (finding no coverage for

employee injured while hunting squirrels on em ployer’s premises

after work)).

-10- Despite White’s attempts to distinguish Ross and Woodruff

, we

find his case to be factually similar to the ECAB’s W oodruff and

Ross cases as well as this court’s decision in B ailey

. In all

three cases, a civilian employee traveling on an internal road of

a military reservation sustained personal injuries in a motor

vehicle accident caused by another federal employee. Furthermore,

Bailey and the ECAB cases employ a similar analysis of whether the

employee’s injury is sustained in the performance of duty: both

ask whether there is sufficient nexus between the injury and the

employment to sustain FECA coverage of the employee’s injuries, and

both assign some weight to the premises rule in their analysis.

Bailey

, 451 F.2d at 966-67; Ross

, 42 E.C.A.B. at 373-74. The cases

diverge, however, when determining how mu ch weight to accord the

fact that the employee was traveling to or fr om work on the

employer’s premises.

Bailey can be reconciled with these ECAB de cisions, the

government suggests, because our role is limited to determining

whether the Secretary would find coverage, and, in adhering to that

l imit, we must consider the Secretary’s relevant past decisions.

The governmen t contends that if we take into consideration ECAB

decisions such as Woodruff and Ross

, we cannot be certain that the

Secretary of Labor would not find coverage in the instant case.

The government explains that Bailey reached a different result

because the Bailey court did not have the benefit of ECAB decisions-11-

such as Woodruff and Ross

, which make clear how the Secretary

weighs the location of the employee’s accident in determining

coverage. Now that the Secretary has clarified FECA’s application

to circumstances similar to White’s, the government argues, we

cannot be certain that the Secretary would deny FECA coverage to

White.

We find the government’s arguments persuasive. In C oncordia

,

we defined the limits of our jurisdiction: we are to send the case

to the Secretary unless we are certain that the Secretary could not

find coverage of White’s claim. C oncordia

, 581 F.2d at 442-43. As

we did in Concordia

, therefore, we should look to decisions of the

Secretary to determine whether a substantial question of coverage

exists here. I d

. at 441 (examining ECAB cases cited by government

and finding that although the cases were no t totally analogous,

they provided at least an arguable basis for the Secr etary’s

finding coverage).

We have ex plained the basis of this deferential standard:

because FECA precludes judicial review of the Secretary’s action in

allowing or denying payment, “[i]t stands to reason . . . that if

we cannot correct what we deem to be errors in the Se cretary’s

determination, we should not be able to deny him the opportunity to

make such decisions unle ss we are certain that he would find no

coverage.” I d

. a t 443. Congress has conferred on the Secretary

the exclusive authority to administer FECA, 5 U.S.C. § 8145, to

decide all questions arising under FECA, id

., and to prescribe all

rules and regulations necessary to administer and enforce FECA, 5-12-

U.S.C. § 8149. In structuring FECA to confer this exclusive and

broad authority on the Secretary of Labor, Congress made clear its

intention that FECA be interpreted and applied uniformly. S ee,

e.g. , H.R. Rep. No. 105-446, at 2 (1998) (“The Federal Employees’

Compensation Act

. . . is a comprehensive workers’ compensation law

for federal employees that is designed to provide uniform coverage

for work-related injuries or deaths.”). As we stated previously,

our role here is limited to determining whether a su bstantial

question of coverage exists. We are not to determine whether

White’s injuries are compensable under FECA ) ) that is a decision

Congress left for the Secretary to make. Moreover, looking to the

decisions of the Secretary to determine whether a substantial

question of coverage exists and sending the case to the Secretary

if we find such a question are the most effective ways of carrying

out Congress’s intent. S ee Woodruff v. United States Dep’t of

Labor, Office of Work ers Compensation Program , 954 F.2d 634, 640

(11th Cir. 1992) (explaining that because Congress has en trusted

the Department of Labor with administering the FECA, “a court would

give deference to the Secretary’s interpretation of FECA even

without the statutory preclusion of judicial review.” ) (citing

Federal E lection Comm’n v. Democratic Senatorial Campaign Comm.

,

454 U.S. 27, 102 S. Ct. 38, 70 L. Ed. 2d 23 (1981 )); see also

Texports Stevedores Co. v. D irector, Office of Workers’

Compensation Programs , 931 F.2d 331, 333 (5th Cir. 1991)

(“According to the Supreme Court, ‘[c]onsiderable weight should be

accorded to an executive department’s construction of a statutory-13-

scheme it is entrusted to administer.’”) (quoting Chevron, U.S.A.,

Inc. v. Natural Resources Defense Council, Inc.

, 467 U.S. 837, 844,

104 S. Ct. 2778, 2782, 81 L. Ed. 2d 694 (1984)). If we were to

decide that no coverage exists here solely because of Bailey and

without regard to relevant decisions by the Secretary, we would be

abridging the authority Congress expressly granted to the Secretary

to determine FECA coverage as well as defeating Congress’s intent

that FECA be uniformly interpreted and applie d. Without

consideration of the intervening decisions of t he Secretary, we

would also be allowing two independent bodies of FECA law to

develop )) with the result that an employee’s FECA coverage may

differ depending on whether the employee first brought his case in

federa l court or to the Secretary. B ailey does not, and indeed

cannot, stand for the proposition that no FECA coverage exists even

when the Secretary’s past decisions provide at le ast an arguable

basis that the Secretary would find coverage of White’s injuries.

Furthermore, as the government asserts, the Board did clarify

after Bailey

that coverage may be afforded under facts similar to

those in Bailey

. See Ross , 42 E.C.A.B. at 374-75; Woodruff , 1989

WL 221872 at *3-4. In fact, in R oss

, the Secretary rejected Ross’

argument that the Secretary should follow Bailey , explaining that

Bailey failed to recognize that “injuries sustained by employees on

the employer’s premises while going to or from work are compensable

u nder the FECA.” R oss

, 42 E.C.A.B. at 375 (citing Al vina B.

Piller

, 7 E.C.A.B. 444 (1955); Raymond F. Brennan

, 14 E.C.A.B. 249

( 1963)). We recognize that Board cases preceding B ailey invo ked7 White endeavors to distinguish Concordia by pointing to

the “fact ” that he was injured twenty miles from where he worked

whereas the employee in Concordia was injured occurred in front of

the employee’s building. The government responds that because this

factual assertion is not supported by affidavit or otherwise in the

record, we cannot properly consider it on appeal. S ee In re GHR

Corp. v. Crispin

, 791 F.2d 1200, 1201 (5th Cir. 1986) (noting that

“this court is barred from considering filings outside the record

on appeal”). We previously denied plaintiffs’ motion to supplement

the record on this very point of fact. S ee White v. United States

, No. 96-50810 (5th Cir. July 16, 1997) (order). Moreover, even

assuming arguendo that this fact were adequately supported by the

record, White has fai led to show why this fact would warrant a

-14- the premises rule, see, e.g.

, Bre nnan , 14 E.C.A.B. at 249-50

(finding coverage where emplo yee slipped and fell in parking lot

that employer contracted for employees’ exclusive use, even though

parking lot partially extended into public street), but, unlike

Woodruff and Ross

, those cases did not involve facts similar to

those in Bailey

.

We therefore hold that the Secretary should be presented with

this case. ECAB decisions since B ailey

, such as Woodruff and Ross

,

provide a substantial question that the Secretary cou ld find

coverage in the instant case. In C oncordia

, although we did not

find any ECAB cases presenting facts identical to that case, we

sent the case to the Secretary because we could not be “absolutely

sure of what action the Secretary would take.” I d

. at 442. Here,

the government cites ECAB cases that are even more analogous to

White’s case than the cases the government cited in Concordia for

that employee’s case. Thus, because we cannot be assured that the

Secretary would deny White FECA benefits, see Concordia , 581 F.2d

a t 443, we hold that the district court erred in deny ing the

government’s motion for stay. 7 We reiterate, however, that we aredifferent conclusion than the one we reach here. Although the

distance traveled by White before the accident may be a dispositive

factor for the Secretary, we cannot conclude based on Concordia or

the Secretary’s prior decisions that this facto r eliminates the

substantial question of coverage that exists. See Concordia , 581

F.2d at 443 (“[A]lthough the Secretary may quite conceivably rule

that [the employee’s] injury does not fall within the scope of

FECA, the facts raise a question that must initially be referred to

agency determination.”). Thus, as we decided in Concordia , “it

would be unwise for us to prevent the Secretary from even considering the case.” Id. at 443.

8 White presents two reasons why we should nevertheless

affirm the district court’s decision. First, as he states in his

brief,

this court should c onsider the U.S.A.’s position as a

violation of a clear federal statutory m a ndate, and

affirm the dist rict court’s judgment. A federal court

may exercise jurisdiction over a decision of the

Secretary of Labor concerning FECA when the Secretary

violates a clear statutory mandate or prohibition. . .

. Therefore, this court should af firm the district

court’s FTCA judgment because the Government has shown

its willingness to violate a clear statutory mandate.

Because, at this point, the Secretary has not rendered a decision

that we could consider as violating a clear statutory mandate, we

reject this contention. White also alleges that he has been

deprived of an FTCA cause of action, a species of property, without

due process of law. We have, however, previously upheld the FTCA’s

exclusive remedy provision to a similar constitutional challenge.

See Benton v. United States , 960 F.2d 19, 22-23 (5th Cir. 1992)

(holding that FECA’s exclusive remedy provision did not deprive

inj ured federal employee of equal protection and due process

rights, even though employee’s FTCA suit was barred, because “the

FECA bar applies only to those claims arising out of injuries

incurred in the scope of employment” and “[t]he government has a legitimate reason for maintaining a federal workers’ compensation

program in this manner”). Moreover, in making this argument, White

again assumes the occurrence of an event that has not occurred,

-15- not deciding whether White’s injuries are covered under FECA, nor

are we deciding the scope of FECA. Our decision today is a limited

one: we conclude only that a substantial question of coverage

exists under FECA as to whether White’s injuries were sustained in

the performance of his duties. The final determination of FECA

coverage for White’s injuries lies with the Secretary of Labor. 8namely, the final determination of FECA coverage of his claim.

Unless and until the Secretary determines that White’s claim falls

within FECA’s coverage, White has not been deprived of an FTCA

claim. We therefore also find White’s due process claim to be

meritless.

9 In reaching this decision, we have not considered the

opinion letter of Thomas M. Markey, Director for Federal Employees’

Compensation, Office of Workers’ Compensation Programs, which the

government su bmitted below in connection with its motion for

reconsideration.

-16- III

For the foregoing reasons, we hold th at the district court

erred in denying the government’s motion to hold the case in

abeya nce pending the determination of FECA coverage by the

Secretary of Labor. 9 S ee Concordia

, 581 F.2d at 444 (advocating

this procedure, as opposed to dismissal, to avoid the running of

the statute of limitations for the FTCA, 28 U.S.C. § 2401(b), and

leaving White with no remedy). If, after remand, White presents

his claim to the Secretary, and the Secretary determines that FECA

provides White’s remedy, then White must pursue the claim

accordingly. If, however, the Secretary finds no FECA coverage,

White will be able to pursue his claim under the FTCA, in which

case the district court is free to reinstate the judgment. S ee id

.

Accordingly, we REV ERSE the district court’s denial of the

government’s motion to stay, VACATE the subsequently entered

judgment, and REMAND to the district court with instru ctions to

stay the case pending the Secretary’s determinatio n of FECA

coverage.