                                                                                                                           Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-30-2002

Brasch v. USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 01-4514




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2002

Recommended Citation
"Brasch v. USA" (2002). 2002 Decisions. Paper 462.
http://digitalcommons.law.villanova.edu/thirdcircuit_2002/462


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2002 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
                                               NOT PRECEDENTIAL

                 UNITED STATES COURT OF APPEALS
                     FOR THE THIRD CIRCUIT
                           __________

                          No. 01-4514
                           __________

               JACQUELINE BRASCH, ADMINISTRATRIX
               OF THE ESTATE OF RONALD P. BRASCH,
                                              Appellant

                                    v.

                    UNITED STATES OF AMERICA
                           __________

        ON APPEAL FROM THE UNITED STATES DISTRICT COURT
            FOR THE EASTERN DISTRICT OF PENNSYLVANIA
                   D.C. Civil No. 01-cv-01179
       District Judge: The Honorable Mary A. McLaughlin
                           __________

           Submitted Under Third Circuit LAR 34.1(a)
                         July 26, 2002
                           __________

      Before: SLOVITER, NYGAARD, and BARRY, Circuit Judges

                (Opinion Filed: July 26, 2002)
                          ____________

                            OPINION
                          ____________


BARRY, Circuit Judge
     Appellant Jacqueline Brasch, administratrix of the estate of Ronald P. Brasch, her
husband, filed a complaint against the United States under the Federal Tort Claims Act
(’FTCA") for the wrongful death of her husband. Mr. Brasch, a United States Postal
Service ("USPS") employee with a history of heart disease, suffered cardiac arrest on the
post office premises shortly before he was scheduled to begin work. Although a USPS
nurse administered oxygen and CPR to Mr. Brasch until an ambulance arrived, her
efforts to revive him were unsuccessful and, appellant asserts, negligent in large part
because she did not timely call 911.
     Before initiating this action, appellant pursued her administrative remedies under
the Federal Employees’ Compensation Act ("FECA"), 5 U.S.C. 8101 et seq.. Her
FECA claim was denied because she failed to establish a causal connection between her
husband’s death and the medical services rendered by the USPS. App. at 28-31,
Jacqueline Brasch, No. 00-743, slip op. at 1 (E.C.A.B. Feb. 8, 2001). The Office of
Workers’ Compensation Programs ("OWCP") evaluated appellant’s claim under 5
U.S.C. 8102(a) and FECA Program Memoranda Nos. 42 and 186. The issue presented
in this appeal is whether Program Memorandum No. 42, as supplemented by Program
Memorandum No. 186, is a "legislative" rule subject to the notice and comment
requirements of the Administrative Procedure Act ("APA") which, concededly, were not
met. We hold that the rule is merely interpretive and, therefore, exempt from those
requirements and appellant may not bring an action under the FTCA.
     The FECA entitles a federal employee to compensation for disability or death
"resulting from personal injury sustained while in the performance of his [or her] duty."
5 U.S.C. 8102(a). An employee is also entitled to medical services following an injury
sustained "in the performance of duty." 5 U.S.C. 8103. The statute does not identify,
however, what activities constitute "in the performance of duty." In Program
Memorandum No. 42, the OWCP’s Division of Federal Employees’ Compensation
explained that an employee who avails him or herself of an employer’s medical services
is "considered in the performance of duty on those occasions when such participation
causes him [or her] to be absent from his [or her] regular duties" and that the deleterious
effects of such services are compensable. This memorandum was supplemented by
Program Memorandum No. 186, which emphasized that the FECA applies "to any
deleterious result of medical services furnished by the employing agency for non-work
related illnesses or injuries," whether from an "act of commission" or "omission." As
noted above, the public was not given notice of or an opportunity to comment on either
memorandum before it was issued.
     Appellant argues that this lack of notice and opportunity to comment renders the
rule embodied in the program memoranda invalid under the APA. Under 5 U.S.C. 553,
a federal agency must provide thirty days’ notice and an opportunity for public comment
before it may enact a rule. Exempt from this requirement are interpretive rules. 5 U.S.C.
 553(b). Appellant’s argument, therefore, hinges on whether the rule extending FECA
coverage to non-work related illnesses and injuries is "legislative" or "interpretive."
     An administrative rule is deemed "interpretive" if it "is based on specific statutory
provisions, and its validity stands or falls on the correctness of the agency’s interpretation
of those provisions." Dia Navigation Co., Ltd. v. Pomeroy, 34 F.3d 1255, 1264 (3d Cir.
1994) (quoting United Technologies Corp. v. EPA, 821 F.2d 714, 719-20 (D.C. Cir.
1987)). Interpretive rules seek to construe or clarify the statutes and regulations to which
they relate. Id. Conversely, a rule is "legislative" if it is intended to "have the force an
effect of law" and is promulgated by an agency to implement a statutory mandate. FLRA
v. U.S. Dep’t of Navy, 966 F.2d 747, 762 n.14 (3d Cir. 1992) (citations omitted). "If a
rule creates rights, assigns duties, or imposes obligations, the basic tenor of which is not
already outlined in the law itself, then it is substantive [i.e., legislative]." Dia Navigati
Co., Ltd., 34 F.3d at 1264 (quoting La Casa Del Convaleciente v. Sullivan, 965 F.2d
1175, 1178 (1st Cir. 1992)).
     Here, the rule announced in Program Memoranda Nos. 42 and 186 merely
interprets the language "in the performance of duty" contained in 5 U.S.C. 8102 and
8103. It has no significance independent of the specific statutory sections it seeks to
clarify. There is no indication that the OWCP or its FECA Division intended the
program memoranda to have binding legal effect or to create obligations and rights not
already outlined in the FECA. Similarly, it does not appear that the rule’s function is to
implement a general statutory mandate. In short, Program Memoranda Nos. 42 and 186
reflect nothing more than the OWCP’s current understanding of the phrase "in the
performance of duty." As such, they create an interpretive rule that is exempt from the
APA’s notice and comment requirements.
     For the foregoing reasons, we will affirm the October 29, 2001 Order of the
District Court.

TO THE CLERK OF THE COURT:
     Kindly file the foregoing Opinion.


                                   /s/Maryanne Trump Barry
                                             Circuit Judge
