On Appeal from the United States District Court for the Eastern District District of Pennsylvania, D.C. Civil No. 85-1163.
Sloviter, Becker, Circuit Judges, and Fisher, District Judge.*fn*
This appeal presents the question whether a government employee who is alleged to have been injured as the result of the government's negligent maintenance of its property can, where the injury has been determined by the appropriate agency to have arisen "out of the performance of his duty," nonetheless successfully sue the government under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671-2680 (FTCA), by invoking the so-called "dual capacity" doctrine. For the reasons that follow, we determine that, under the circumstances of this case, he cannot.
The plaintiff, Christian C. Schmid, Jr., is a civilian employee in the Aviation Supply Office (ASO) of the Navy Department, who played on a softball team operated by the Compound Employees Recreation Association, which was funded in part by the government. The team played on one of three softball fields within the ASO compound. Access to the compound was restricted to authorized personnel, and use of the fields was controlled by the Command Support Activities Office. Although most of the team members were fellow government employees, a specified number of non-employee participants could play on any one team. (See Appellant's Br. at 5.)
Plaintiff was injured while playing first base during a game on the evening of June 14, 1982, when he stepped into a rut in the field and fell, fracturing his left humerus. On January 20, 1983, he filed a claim for benefits under the Federal Employees Compensation Act, 5 U.S.C. § 8101 (FECA), with the Philadelphia Office of Workers' Compensation Program (OWCP). The claim was supplemented on February 9, 1983 by a physician's report. On January 4, 1984, the OWCP ruled that the injury was not compensable under FECA because it was not sustained during work hours. Plaintiff appealed to the Branch of Hearings and Review in Washington, D.C. On November 29, 1984, that office vacated the OWCP's decision on the ground that there was not enough evidence in the record to determine whether the injury was sustained in the performance of duty. The Branch of Hearings and Review remanded the case to the Philadelphia OWCP to obtain further evidence regarding this question.
On March 5, 1985 plaintiff instituted this tort suit in the Eastern District of Pennsylvania, seeking damages under FTCA. On April 9, 1985, the Philadelphia OWCP reversed itself, finding that the injury did, in fact, arise out of "the performance of his duty," 5 U.S.C. § 8102(a), so that it was compensable under FECA.
Shortly thereafter, the district court granted summary judgment in the government's favor, 645 F. Supp. 480, applying the rule that employees who receive FECA benefits may not sue for damages under the FTCA. See 5 U.S.C. § 8116(c), which provides that, when benefits are available under FECA, "all other liability of the United States" is precluded, whether "under a workmen's compensation statute or under a federal tort liability statute." Id.
Plaintiff appeals, arguing that the FECA bar should not be applied here. He makes two arguments.
First, plaintiff contends that the government's initial decision denying him FECA benefits should allow him to proceed to federal court; he suggests that the initial decision was reversed only because he filed this action, and that the reversal should not divest this court of the power to award him FTCA damages. We reject this argument. First, it rests on an inaccurate characterization of the facts. The OWCP's initial decision was vacated and remanded before plaintiff filed this case. Moreover, no principle of estoppel prevents the government from correcting its own decisions by an intra-agency appeals process; indeed, preventing the government from so correcting its own errors would ...