The opinion of the court was delivered by: VANARTSDALEN
Plaintiff, Anna Marie Luczyszyn, filed this civil action seeking compensatory and punitive damages for injuries incurred as a result of an alleged unlawful arrest and detention on June 10, 1981. At the time of the alleged incident, plaintiff was an employee of the United States Government, working at the Veterans Administration Building in Philadelphia, Pennsylvania. Count I of the complaint asserts a claim against the General Services Administration and jurisdiction is invoked under the provisions of the Federal Tort Claims Act, 28 U.S.C. §§ 2671-2680 and 28 U.S.C. § 1346. Count II of the complaint asserts a claim against two security officers employed by the United States Government for violations of plaintiff's rights to liberty and due process under the fifth and fourteenth amendments to the constitution. Jurisdiction over Count II is invoked under 28 U.S.C. § 1331.
Presently before the court is defendants' motion to dismiss under Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction. In the alternative, defendants seek a stay of these proceedings to permit plaintiff to pursue her administrative remedies under the Federal Employees Compensation Act, 5 U.S.C. §§ 8101-8151. For the reasons stated herein, defendants' motion to dismiss will be denied and defendants' application for a stay will be granted.
The Federal Employees Compensation Act (FECA) established a comprehensive system of workmen's compensation for federal employees. The basic statutory requirements for eligibility for FECA compensation are as follows:
(a) The United States shall pay compensation as specified by this subchapter for the disability or death of an employee resulting from personal injury sustained while in the performance of his duty, unless the injury or death is --
(1) caused by willful misconduct of the employee;
(2) caused by the employee's intention to bring about the injury or death of himself or of another; or
(3) caused by intoxication of the injured employee.
5 U.S.C. § 8102(a) (1976) (emphasis added). The remedy provided under FECA for a federal employee's injuries within the statute's coverage is exclusive. Id. § 8116(c). Therefore, unless the injuries were clearly not sustained while in the performance of the employee's duties, an injured federal employee must seek administrative relief before filing an action under the Federal Tort Claims Act. Joyce v. United States, 474 F.2d 215, 219 (3d Cir. 1973).
The statute vests with the Secretary of Labor exclusive authority to administer FECA and to decide all questions arising under FECA, including eligibility for benefits. 5 U.S.C. § 8128(b). Decisions on questions under FECA made by the Secretary of Labor or his designee are not subject to judicial review by mandamus or otherwise. Id. In deference to such authority, the Third Circuit Court of Appeals has held that where a "substantial question" of FECA coverage exists, federal district courts will not entertain claims under the Federal Tort Claims Act. DiPippa v. United States, 687 F.2d 14, 16 (3d Cir. 1982); Joyce, supra at 219; Somma v. United States, 283 F.2d 149, 151 (3d Cir. 1960). Other circuit courts have similarly acknowledged that a federal employee cannot file an action under the Federal Tort Claims Act if there is a "substantial question" of FECA's applicability, Wallace v. United States, 669 F.2d 947, 951 (4th Cir. 1982); Avasthi v. United States, 608 F.2d 1059, 1060 (5th Cir. 1979); Reep v. United States, 557 F.2d 204, 207 (9th Cir. 1977), or unless the injuries are "clearly not compensable" under FECA. Daniels-Lumley v. United States, 113 U.S. App. D.C. 162, 306 F.2d 769, 771 (D.C. Cir. 1962).
The question presented by the defendants' motion is, therefore, whether there exists a substantial question of FECA coverage of the alleged injuries sustained by the plaintiff. In DiPippa, an action involving a federal employee seeking to recover for injuries incurred as a result of her voluntary participation in the swine flu inoculation program, the Third Circuit Court of Appeals stated that a substantial question exists unless it is "certain that the [Secretary of Labor] would find no coverage." DiPippa, supra at 16 (citing Concordia v. United States Postal Service, 581 F.2d 439, 442-43 (5th Cir. 1978)). It would seem to follow that if the facts alleged in this action could in any way raise the spectre of FECA coverage, then this court must defer to the Secretary to make a determination of FECA's applicability in the first instance.
To determine whether plaintiff's claim presents a substantial question of FECA coverage, a variety of factors may be considered. Courts have uniformly rejected the so-called "premises rule," which limited the court's inquiry essentially to whether the employee was injured at the federal work place, in favor of an examination of the totality of circumstances surrounding the federal employee's injuries. See Avasthi, supra at 1061; Bailey v. United States, 451 F.2d 963, 966 (5th Cir. 1971); United States v. Udy, 381 F.2d 455, 456 (10th Cir. 1967); United States v. Browning, 359 F.2d 937, 939-40 (10th Cir. 1966). Under this test, the place of the occurrence of the federal employee's injury is but one factor for the court to consider. The crux of the analysis appears to be whether the obligations or conditions of the plaintiff's employment created a "special zone of danger" that resulted in the injury. Cf. O'Leary v. Brown-Pacific-Maxon, Inc., 340 U.S. 504, 95 L. Ed. 483, 71 S. Ct. 470 (1951) (special zone of danger test applied to determine coverage by the Longshoreman's and Harbor Worker's Compensation Act).
In Dunn v. United States, 516 F. Supp. 1373 (E.D. Pa. 1981), plaintiff, a federal employee, filed an action under the Federal Tort Claims Act to recover damages for the humiliation and mental suffering allegedly the result of certain actions taken by law enforcement personnel of the United States. Plaintiff alleged that, while on duty at the United States Mint, he was accused of stealing, detained and interrogated by government employees. Prior to filing his claim under the Federal Torts Claim Act, plaintiff first filed a claim for benefits under FECA. Judge Pollak stayed the Federal Torts Claim Act action pending the resolution ...