### 1999 D e c i sion s O p inion s of the U nit e d

S t a t e s C our t of Appe al s for the Thir d C ir c uit

4-27-1999 

# E lm a n v . U S A

P r e c e de n t i al or N on-P r e c e de n t i al :

D ock e t 98-1186

F o l lo w thi s a nd a dd it ion al w ork s a t : h tt p://d i g it alc ommon s .l a w

. v i l l a no v a

. e du/thir dc ir c uit_1999

Thi s de c i sion i s br ou gh t t o y ou for f r e e a nd ope n a c c e s s b y the O p inion s of the U nit e d S t a t e s C our t of Appe al s for the Thir d C ir c uit a t V i l l a no v a

U niv e r sit y S choo l of L a

w Di g it al R e posit or y

. I t h as be e n a c c e pt e d for inclusion in 1999 D e c i sion s b y a n a uthor i z e d a dmini s tr a t or of V i l l a no v a

U niv e r sit y S choo l of L a

w Di g it al R e posit or y

. F or mor e infor m a t ion, p le as e c on t a ct Be n j a min

. C a rl s on@l a

w

. v i l l a no v a

. e du

. 

### R e c omme nde d C it a t ion

" Elm a n v . U SA" (1999). 1999 D e cisio n s

. P a pe r 110.
h tt p://d i g it alc ommon s .l a

w

. v i l l a no v a

. e du/thir dc ir c uit_1999/110Filed 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 J udge 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 jud gment
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 em ployee 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 th e injury was significantly different from its role as an emp loyer.

2I.

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 EEO C offices to attend a federal employees' health benef its fair being held at the Federal Building nearby. While wa lking along the south side of Market Street between 5th a nd 6th Streets, Elman fell, fracturing her left knee and i njuring her face. Elman claims that her fall was caused by a de fect in the sidewalk, which is owned by the Commonwealth of Pennsylvania but maintained by the National Park Se rvice.

Elman required the insertion of three bone screws a nd has incurred pain and suffering. Because of her inj uries, Elman applied for workers' compensation benefits un der FECA on December 3, 1996. Her application was appro ved on January 8, 1997, and as of August 25, 1997, Elma n 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 Ser vice, which it denied on August 18, 1997. Elman then file d suit against, inter alia, the United States in the Distr ict Court for the Eastern District of Pennsylvania, seeking compensation under the FTCA. The government moved f or summary judgment on the ground that recovery under FECA disqualified Elman from recovering under the F TCA. The District Court granted that motion by Order dat ed February 27, 1988, and Elman filed a timely appeal.

We have jurisdiction under 28 U.S.C. S 1291. Our re view of a grant of summary judgment is plenary. We apply "the

same test the district court should have utilized i nitially," viewing those inferences that may be drawn from the underlying facts in a light most favorable to the n onmoving party. Goodman v. Mead Johnson & Co., 534 F.2d 566, 573 (3d Cir. 1976).

3II.

DISCUSSION

An employee of the federal government is entitled t o be compensated for "personal injury sustained while in the performance of his duty" under 5 U.S.C. S 8102(a) a nd to

receive medical treatment under 5 U.S.C. S 8103. Se ction 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 ins trumentality thereof under this subchapter . . . with res pect 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 proceed ing . . . or by an administrative or judicial proceeding und er .. . 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 de cision is "(1) final and conclusive for all purposes and with respect to all questions of law and fact; and (2) not subje ct 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. Un ited States, 460 U.S. 190 (1983):

[FECA] was designed to protect the Governmen t from suits under statutes, such as the Federal To rt Claims Act, that had been enacted to waive the Gove rnment's sovereign immunity. In enacting this provisi on, Congress adopted the principal compromise -- the "quid pro quo" -- commonly found in workers' compensation legislation: employees are guar anteed the right to receive immediate, fixed benefi ts, regardless of fault and without need for lit igation, but in return they lose the right to sue the Gov ernment.

4Id. at 193-94.

Section 8116(c) thus bars an employee who has colle cted benefits under FECA from subsequently bringing suit against his or her employer for damages under the F TCA. As this court said in DiPippa v. United States, 687 F.2d 14, 17 (3d Cir. 1982), "Where FECA applies, it unambigu ously 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, 71 7 F.2d 254, 259 (6th Cir. 1983), recognized an exception t o this general rule, widely known as the "dual capacity do ctrine." The dual capacity doctrine treats the government as though it were a third party, and therefore subject to sui t despite the exclusivity provision of FECA, when the governm ent's role in contributing to the employee's injury is en tirely different from its role in employing that individua l. As the Sixth Circuit articulated the test, " `An employer may become a third person, vulnerable to tort suit by a n employee, if--and only if--he possesses a second pe rsona 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 14-2 29, 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 enti rely different one when it employed Elman. We note that some of the state courts, interpreting their own state w orkers' compensation statutes, have also adopted versions o f the dual capacity doctrine. See, e.g., Tatrai v. Presby terian 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. C t. App. 1971).

5We 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 go vernment employee who had been injured while participating i n a softball game sponsored by his employer alleged tha t his injury was caused by the government's negligent maintenance of its property. Schmid sought to recov er under the FTCA, even though his FECA claim had alre ady been approved by the relevant agency. Having been a sked to adopt the dual capacity doctrine, we expressed "concern[ ] that the question at the center of th[a t] doctrine --whether at the time of injury the employer was ac ting as a third party vis-a-vis the employee--is virtually identical to the question the agency must ask in determining whe ther the employee is eligible for FECA benefits--i.e. wh ether or not the injury was sustained `in the performance of his duty.' " Id. at 229. We noted that "a court applyin g the [dual capacity] doctrine may come perilously close to sec ond guessing the agency's decision about whether the em ployee is entitled to FECA benefits, something that [the s tatute] explicitly states the courts must not do." Id.

We did not, however, reject the dual capacity doctr ine 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 spo rts activities. Although some non-employees were permit ted 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 lan d as insufficiently removed from its role as employer to justify imposing FTCA liability.

A majority of the courts of appeals that have consi dered similar claims have refused to adopt the dual capac ity doctrine. See Votteler v. United States, 904 F.2d 1 28, 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)], an d we reject it."); Bush v. Eagle-Pitcher Indus., Inc., 9 27 F.2d 445, 452 (9th Cir. 1991) ("As a result of a short-lived loophole in

6the [Longshore and Harbor Workers' Compensation Act ], a

private shipyard could be subjected to a dual capac ity suit. The United States, though, by virtue of FECA sectio n 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. Th ere, the plaintiff, Sharon Wright, suffered a ruptured tubal pregnancy while performing her duties as a secretar y at the Veterans Administration Hospital. She was treated a t the hospital, and, according to her allegations, furthe r injured by the medical malpractice of the hospital personne l. Wright did not file a FECA claim within the three-y ear statute of limitations, but did sue the United Stat es under the FTCA. The Sixth Circuit rejected any suggestion that Wright's injuries were covered by FECA before it he ld that the dual capacity doctrine would allow Wright to re cover 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. 19 90), 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 Ci r. 1986), we permitted a plaintiff to proceed under Title VII after receiv ing FECA benefits, because we concluded that recovery under Title VII did not constitute "damages . . . for injury" within the meaning of FE CA. We specifically noted that the same cannot be said of recovery unde r the FTCA. See id.

at 663.

7further injury when treated for that injury at a go vernment

hospital in another location. And, as recently as 1 997, that court stated in a footnote, "The dual-capacity doct rine appears merely to represent a rewording of the stan dard 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 ac curate reflection of the court's intent in Wright, the Sal tsman footnote suggests that the Sixth Circuit may have b ecome disenchanted with the dual capacity doctrine.

With this background in mind, we first consider whe ther Elman's claim would fit within the dual capacity do ctrine before we consider whether to adopt that doctrine a s 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 w hich the Park Service extended an invitation to the public t o come upon particular land and assumed a limited obligati on to assure the public's safety thereon. Elman acknowled ges that receipt of FECA benefits prevents her from rec overing from the government in tort for actions taken in it s role as her employer. She contends, however, that there is no bar to her recovering in tort for actions the governmen t took or

failed to take as a landowner.

The District Court concluded that the dual capacity doctrine would not apply to these facts because "Pl aintiff's injuries were sustained in the course of activity s ufficiently related to her employment that the government's rol e as sponsor of the fair and manager of the property was related to its role as employer." Elman v. United States, C iv. 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. Th e Park

8Service's role in maintaining the Market Street sid ewalk is

not related to the EEOC's role as an employer. Unli ke in Schmid, the government here did not restrict use of the property to EEOC employees in particular, or to fed eral employees more generally. Rather, it held the prope rty 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 sidewal k. 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 i n the process. Moreover, the government's motivation in maintaining public land, such as the Market Street sidewalk, is unrelated to its interests in preventi ng employment discrimination, one of the principal fun ctions of the EEOC. Thus, we conclude that the dual capaci ty doctrine would apply to Elman's claims were we to a dopt it.

B.

We thus must consider whether that doctrine accurat ely reflects applicable law.

Elman has not identified any language in the FECA statute that supports the rule she advocates. Indee d, the dual capacity doctrine is inconsistent with the lan guage of that statute. Section 8116 provides that FECA liabi lity on the part of the United States or an instrumentality thereof is "instead of all other liability of the United St ates or the instrumentality to the employee . . . because of th e 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) "b ecause of the injury [compensable under FECA]." Id. The liabi lity Elman seeks to impose on the United States with thi s suit

meets these three criteria and should be barred und er the plain language of the statute. Nonetheless, Elman w ould have us carve out an additional exception for liabi lity that arises out of the United States' role in a persona other than an employer. As a court of limited powers, we see n o justification for doing so.

9Elman attempts to offer us a justification by appea ling to

this court's sense of public policy. She correctly notes that tort law holds the Park Service responsible for cer tain injuries incurred while the plaintiff was on Park S ervice land in an effort to deter the Park Service from pe rmitting dangerous conditions to remain on that land. Elman

contends that the need for such deterrence is not r educed by the fact that the injured party was a federal em ployee. And, she concludes that, therefore, the Park Servic e'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 be cause it ignores the fact that workers' compensation laws re present a balance. The injured workers have assurance they will be compensated quickly, efficiently, and without exten ded litigation in return for limited recovery exclusive to that claim. The reduction in liability is based solely o n the injured party's status as an employee, not on any l essening

of the need for deterrence. FECA likewise sacrifice s some deterrence in order to assure that federal employee s "receive immediate, fixed benefits, regardless of f ault and without need for litigation." Lockheed Aircraft Cor p., 460 U.S. at 194. Thus, were we to adopt the dual capaci ty doctrine Elman advocates, we would undermine the workers' compensation rationale embodied in FECA. T hat is a decision that must be made by Congress.

As the Second Circuit stated in Votteler, "Sometime s the broad coverage of a compensation scheme confers a `benefit' that a plaintiff would rather forgo in pr eference to the traditional tort remedies, but the breadth of c overage, with its consequent exclusivity, must be upheld, ev en when it might not be advantageous to the employee." 904 F.2d at 130. This logic is particularly applicable here whe re the employee, having already accepted the benefit of th e workers' compensation scheme, now seeks a fuller re covery under tort law.

Finally, we address Elman's remaining argument, viz
., that our construction of the relevant federal statu tes should be informed by principles of state law, in this cas e Pennsylvania law. Elman notes (1) that the federal government is subject to suit under the FTCA "in th e same

10manner and to the same extent as a private individu al

under like circumstances," 28 U.S.C. S 2674, and (2 ) that the extent to which a private employer would be sub ject to suit under similar circumstances would depend on Pennsylvania's willingness to accept the dual capac ity

doctrine. She concludes that this court should ther efore look to that doctrine as it exists under Pennsylvan ia law to determine the extent of the government's liability.

We disagree. It is FECA, specifically S 8116(c), no t the FTCA which bars Elman from bringing suit. Even if E lman is right that the extent of government liability un der the FTCA should be determined by reference to Pennsylva nia 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