                                                                                                                           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Precedential or Non-Precedential: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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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
