1999 Decisions

Opinions of the United

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Precedential or Non-Precedential: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
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). 

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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). 

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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. 

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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