UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
____________
No. 96-50810
____________
KENNETH WHITE,
Plaintiff - Appellee,
versus
UNITED STATES OF AMERICA,
Defendant - Appellant.
Appeal from the United States District Court
For the Western District of Texas
June 23, 1998
Before KING, EMILIO M. GARZA, and DEMOSS, Circuit Judges.
EMILIO M. GARZA, Circuit Judge:
The United States appeals from the district court’s denial of
it motion to stay pending a decision by the Secretary of Labor on
the determination of Federal Employees’ Compensation Act (“FECA”)
coverage and of its subsequent motion for reconsideration on the
same issue. Because a substantial question of FECA coverage
exists, we reverse the district court’s denial of the government’s
motion to stay, vacate the subsequently entered judgment, and
remand to the district court with instructions to stay the case
pending the Secretary’s determination of FECA coverage.
I
Kenneth White is a civilian employee of the Department of the
Army at the White Sands Missile Range in New Mexico. White was
driving home from work on a street within the military installation
when a government vehicle driven by a military policeman struck his
car. White sustained personal injuries and damage to his car as a
result of the accident.
White filed a Federal Torts Claims Act (“FTCA”) lawsuit
against the United States in the El Paso Division of the Western
District of Texas. The government filed a motion to stay the
proceedings pending a decision by the Secretary of Labor on the
issue of FECA coverage. The district court denied the government’s
motion as well as a subsequent motion for reconsideration. Several
months later, the parties stipulated to entry of judgment, pursuant
to which the government conceded liability, and the parties agreed
to the amount of damages for White’s personal injuries and the
property damage to White’s automobile. The parties further agreed,
however, that the district court’s entry of final judgment would be
without prejudice to the government’s right to appeal (1) the issue
of whether FECA deprives the district court of subject matter
jurisdiction of the FTCA claim and (2) the district court’s orders
denying the government’s two motions. Following the district
court’s entry of final judgment, the government timely appealed.
II
The government contends on appeal that the district court
erred in holding that no substantial question of FECA coverage
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exists as to the injuries White sustained.1 This is a question of
law that we review de novo. See Concordia v. United States Postal
Serv., 581 F.2d 439, 442 (5th Cir. 1978).
FECA provides compensation for a federal employee’s personal
injuries “sustained while in the performance of his duty.” 5
U.S.C. § 8102(a). For injuries within its coverage, FECA’s remedy
is exclusive of any other remedy, including the FTCA. 5 U.S.C.
8116(c). Like workers’ compensation statutes generally, “[FECA] is
intended to serve as a substitute rather than a supplement for the
tort suit.” Bailey v. United States, 451 F.2d 963, 965 (5th Cir.
1971). FECA vests with the Secretary of Labor the power to
“administer, and decide all questions arising under [FECA],” 5
U.S.C. § 8145, and the Secretary’s action in allowing or denying an
award under FECA is final and conclusive and not subject to review
by a court of law, 5 U.S.C. § 8128(b).
Our jurisdiction with regard to FECA is limited to determining
if a substantial question of coverage under FECA exists. See
Concordia, 581 F.2d at 442; Bailey, 451 F.2d at 967. A substantial
question exists unless it is certain that the Secretary of Labor
would find no coverage under FECA. See Concordia, 581 F.2d at 442.
Thus, “[t]o avoid sending the case to the Secretary of Labor, we
must essentially decide as a matter of law that, viewing all of the
circumstances, the Secretary could not find FECA coverage of
1
We need not address White’s property damages on appeal
because, as the government concedes, FECA does not cover these
property damages. See 5 U.S.C. § 8102; Anneliese Ross, 42 E.C.A.B.
371, 372 (1991).
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[White’s] claim.” Id. We cannot deny the Secretary the
opportunity to decide the question of coverage “unless we are
certain that he would find no coverage.” Id. Only if we are
certain that the Secretary of Labor would conclude that the
employee’s injuries do not present a substantial question of
coverage under FECA may we entertain the employee’s FTCA claim
without the employee first submitting the claim to the Secretary of
Labor.2 Bailey, 451 F.2d at 965. Accordingly, our task here is to
determine whether a substantial question of coverage exists.
A
The parties dispute whether White’s injuries were “sustained
while in the performance of his duty” and, therefore, whether there
is a substantial question of coverage. The government contends
that because the Secretary of Labor has found coverage in cases
factually similar to White’s, we cannot be certain that the
Secretary could not find coverage here. White, on the other hand,
argues that the circumstances of his accident are factually
indistinguishable from those in Bailey, in which we held that there
was not a substantial question of coverage. Therefore, under our
own circuit law, he argues, no substantial question of coverage can
exist.
At the center of the parties’ dispute is the application of
the “premises rule,” which provides that an employee’s injuries are
compensable when sustained on the employer’s premises while the
2
If a plaintiff’s case is submitted to the Secretary, and
the Secretary finds no FECA coverage, the plaintiff is free to
proceed under the FTCA. See Concordia, 581 F.2d at 444.
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employee is going to or from work. See Bailey, 451 F.2d at 965-66;
1 ARTHUR LARSON & LEX K. LARSON, LARSON’S WORKERS’ COMPENSATION LAW § 15.00
(1997). As support for its argument that the Secretary would
likely find that White’s injuries were sustained in the performance
of duty, the government cites two ECAB decisions, Gordon R.
Woodruff, No. 89-390, 1989 WL 221872 (Empl. Comp. App. Bd. 1989),
and Anneliese Ross, 42 E.C.A.B. 371 (1991), in which the Secretary,
applying the premises rule, found coverage for injuries sustained
by employees while the employees were driving on the employer’s
premises and going either to or from work. In Ross, Anneliese
Ross, a civilian military employee, was injured while she was
driving to work on a road within the military reservation, and a
military vehicle hit her car. Ross, 42 E.C.A.B. at 371.
Similarly, Gordon Woodruff, also a civilian employee on a military
base, was injured in a car accident caused by a government vehicle
while he was driving on the roads in the military reservation
returning from lunch after his regular lunch break. Woodruff, 1989
WL 221872, at *1. In both cases, the Board found that the
employee’s injury was covered under FECA, citing the premises rule
as the reason the employee’s injuries were sustained in the
performance of duty. Ross, 42 E.C.A.B. at 373; Woodruff, 1989 WL
221872, at *1. Noting that it had interpreted the phrase
“sustained in the performance of duty” “to be the equivalent of the
commonly found prerequisite in worker’s compensation law of
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‘arising out of and in the course of employment,’”3 the Board set
out the connection between the premises rule and the requirement
that the employee’s injury occur in the scope of employment:
Under [FECA] an injury sustained by [an] employee, having
fixed hours and place of work, while going to or coming
from work is generally not compensable because it does
not occur in the performance of duty. This is in accord
with the weight of authority under workmen’s compensation
statutes that such injuries do not occur in the course of
employment. However, many exceptions to the rule have
been declared by courts and workmen’s compensation
agencies. One such exception, almost universally
recognized, is the premises rule: an employee driving to
and from work is covered under workmen’s compensation
while on the premises of the employer.
Ross, 42 E.C.A.B. at 373-74; see also 1 LARSON & LARSON, supra, §
15.10 (noting that the premises rule has been adopted by the courts
with a “surprising degree of unanimity”). As the Board explained
in Ross, being on the employer’s premises because one is reporting
to work is a reason related to employment. Ross, 42 E.C.A.B. at
374; see also Woodruff, 1989 WL 221872, at *2 (reasoning that
because employees “must travel the roads of the employing
establishment when going to or coming from work,” their traveling
on the internal roads of the employer’s establishment serves to
benefit their employer and is an integral part of their employment,
3
The Board expanded on the meaning of the phrase “course
of employment”:
In the compensation field, to occur in the course of
employment, in general, an injury must occur (1) at a
time when the employee may reasonably be said to be
engaged in his or her master’s business; (2) at a place
where he or she may reasonably be expected to be in
connection with the employment; and (3) while he or she
was reasonably fulfilling the duties of his or her
employment or engaged in doing something incidental
thereto.
Ross, 42 E.C.A.B. at 373 (citations omitted).
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and, therefore, any injuries sustained in those circumstances are
in the performance of their duties).4
For his part, White contends that we must follow our decision
in Bailey, in which we rejected the automatic application of the
premises rule, instead holding that the location of the accident is
only one of the factors to be considered in determining whether a
substantial question of coverage exists. In Bailey, the plaintiff,
Barbara Bailey, a civilian employee in the army laundry, was
injured when her car was struck from behind by a military pickup
transporting equipment for use on the rifle range. Bailey, 451
F.2d at 965. At the time of the accident, Bailey was traveling
home, in her private automobile, on the military reservation’s
roads. The government argued that because Bailey’s injuries
occurred on the employer’s premises while she was returning home
from work, “there [wa]s a very real possibility that the Secretary
of Labor would compensate” her. Id. Rejecting such a rigid
interpretation of the premises rule, we found the better approach
to be “examining the issue in light of all relevant factors,
including the premises on which the injury took place.” Id. at 966
(citing United States v. Browning, 359 F.2d 937, 940 (10th Cir.
1966)). Holding that “the location of the collision . . . was of
4
As the ECAB has recognized, the term “premises” is not
synonymous with “property” in workers’ compensation law. Woodruff,
1989 WL 221872, at *2. For property to be considered part of the
employer’s premises, “there must exist a close[] nexus between the
Federal property on which an injury occurs and the use made and
benefit received by the employing establishment from that
particular piece of Federal property.” Id. The key, therefore, is
the “use made” or “benefit received” by the employer from the
particular piece of property on which the injury occurs.
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small import and no substantial question of FECA coverage [was]
raised by the fortuitous circumstance that the street was owned by
the federal government,” we allowed the plaintiff to maintain her
FTCA claim.5 Id. at 967.
White claims that his case is distinguishable from Woodruff
and Ross for two reasons. First, he argues that the ECAB found
FECA coverage in those cases because the injured employee was
required to travel the particular road on which the accident
occurred; thus, because White was not required to use the specific
road on which his accident occurred and instead had the option of
taking a different route, his injury was not related to his
employment. Second, he contends that, unlike Woodruff and Ross, he
was no longer conducting the business of his employer when the
accident occurred because he had already left his worksite. In
support of these arguments, White quotes the following language
from Woodruff:
[E]mployees such as appellant must travel the roads of
the employing establishment when going to or coming from
work, both before and after working hours, and during
lunchtime; the use made and benefit received by the
5
In reaching this result, we took into consideration the
two factors that might raise a substantial question of coverage:
(1) that Bailey was injured while returning home from her job and
(2) that she was injured on a public street owned by her employer.
Noting that FECA coverage does not apply solely because an employee
is injured on the way home from work, we stated that the
government’s case turned on the amount of significance we accorded
the location of the accident. Because she was traveling home on a
street apparently open to all persons authorized to be on the base,
was not under the supervision of her employer, and the driving of
her car was not an activity connected to the usual activities of
laundry work, we concluded that the street traveled by Bailey was
not a “zone of special danger” incident to her laundry employment.
Id. at 967-68.
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employing establishment from this particular piece of
property is that employees arrive and leave the employing
establishment, and conduct the business of the employing
establishment, through the use of this property.
Woodruff, 1989 WL 221872, at *3 (emphasis supplied by White).
White’s reliance on this passage is, however, misplaced. The ECAB
in fact ruled that neither the particular road on which Woodruff
traveled nor the personal nature of Woodruff’s trip was relevant.
See id. at *2-3; Gordon R. Woodruff, No. 89-390 (order on petition
for rehearing) (Empl. Comp. App. Bd. Oct. 26, 1989). Instead, the
Board concluded that these internal roads were an integral and
necessary component of the employing establishment’s business))the
employing establishment (i.e., the military) used and benefitted
from the roads because the employees used them to travel on and off
the military reservation on their way to and from work. See
Woodruff, 1989 WL 221872, at *3.6
6
White also attempts to distinguish the ECAB cases cited
by the government by noting that the ECAB has recognized that
injuries sustained by an employee on the employer’s premises are
not compensable when “the employee’s presence on the employer’s
premises at the time of the injury was for the employee’s personal
convenience rather than being related to their employment.” Ross,
42 E.C.A.B. at 374. White, however, takes this statement out of
context. In fact, in making this statement, the Board was
explaining why Ross’ traveling to and from work on her employer’s
premises was related to her employment and was contrasting cases in
which the employee was on the employer’s premises for personal,
nonemployment-related reasons. See Ross, 42 E.C.A.B. at 374
(citing Joann Curtiss, 38 E.C.A.B. 122, 125-26 (1986) (finding no
coverage for employee injured when she stopped after working hours
at a hospital that was also on the employer’s premises to fill a
prescription for her sister); Nona J. Noel, 36 E.C.A.B. 329, 331-32
(1984) (finding no coverage for employee who arrived to work an
hour and a half early to eat breakfast at the noncommissioned
officers club, where her injury occurred); Donald C. Huebler, 28
E.C.A.B. 17, 22-24 (1976) (finding no coverage for employee injured
in baseball game after work where employing establishment did not
sponsor or exercise control over the baseball league); Thelma B.
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Despite White’s attempts to distinguish Ross and Woodruff, we
find his case to be factually similar to the ECAB’s Woodruff and
Ross cases as well as this court’s decision in Bailey. In all
three cases, a civilian employee traveling on an internal road of
a military reservation sustained personal injuries in a motor
vehicle accident caused by another federal employee. Furthermore,
Bailey and the ECAB cases employ a similar analysis of whether the
employee’s injury is sustained in the performance of duty: both
ask whether there is sufficient nexus between the injury and the
employment to sustain FECA coverage of the employee’s injuries, and
both assign some weight to the premises rule in their analysis.
Bailey, 451 F.2d at 966-67; Ross, 42 E.C.A.B. at 373-74. The cases
diverge, however, when determining how much weight to accord the
fact that the employee was traveling to or from work on the
employer’s premises.
Bailey can be reconciled with these ECAB decisions, the
government suggests, because our role is limited to determining
whether the Secretary would find coverage, and, in adhering to that
limit, we must consider the Secretary’s relevant past decisions.
The government contends that if we take into consideration ECAB
decisions such as Woodruff and Ross, we cannot be certain that the
Secretary of Labor would not find coverage in the instant case.
The government explains that Bailey reached a different result
because the Bailey court did not have the benefit of ECAB decisions
Barenkamp, 5 E.C.A.B. 228, 229-30 (1952) (finding no coverage for
employee injured while hunting squirrels on employer’s premises
after work)).
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such as Woodruff and Ross, which make clear how the Secretary
weighs the location of the employee’s accident in determining
coverage. Now that the Secretary has clarified FECA’s application
to circumstances similar to White’s, the government argues, we
cannot be certain that the Secretary would deny FECA coverage to
White.
We find the government’s arguments persuasive. In Concordia,
we defined the limits of our jurisdiction: we are to send the case
to the Secretary unless we are certain that the Secretary could not
find coverage of White’s claim. Concordia, 581 F.2d at 442-43. As
we did in Concordia, therefore, we should look to decisions of the
Secretary to determine whether a substantial question of coverage
exists here. Id. at 441 (examining ECAB cases cited by government
and finding that although the cases were not totally analogous,
they provided at least an arguable basis for the Secretary’s
finding coverage).
We have explained the basis of this deferential standard:
because FECA precludes judicial review of the Secretary’s action in
allowing or denying payment, “[i]t stands to reason . . . that if
we cannot correct what we deem to be errors in the Secretary’s
determination, we should not be able to deny him the opportunity to
make such decisions unless we are certain that he would find no
coverage.” Id. at 443. Congress has conferred on the Secretary
the exclusive authority to administer FECA, 5 U.S.C. § 8145, to
decide all questions arising under FECA, id., and to prescribe all
rules and regulations necessary to administer and enforce FECA, 5
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U.S.C. § 8149. In structuring FECA to confer this exclusive and
broad authority on the Secretary of Labor, Congress made clear its
intention that FECA be interpreted and applied uniformly. See,
e.g., H.R. Rep. No. 105-446, at 2 (1998) (“The Federal Employees’
Compensation Act . . . is a comprehensive workers’ compensation law
for federal employees that is designed to provide uniform coverage
for work-related injuries or deaths.”). As we stated previously,
our role here is limited to determining whether a substantial
question of coverage exists. We are not to determine whether
White’s injuries are compensable under FECA))that is a decision
Congress left for the Secretary to make. Moreover, looking to the
decisions of the Secretary to determine whether a substantial
question of coverage exists and sending the case to the Secretary
if we find such a question are the most effective ways of carrying
out Congress’s intent. See Woodruff v. United States Dep’t of
Labor, Office of Workers Compensation Program, 954 F.2d 634, 640
(11th Cir. 1992) (explaining that because Congress has entrusted
the Department of Labor with administering the FECA, “a court would
give deference to the Secretary’s interpretation of FECA even
without the statutory preclusion of judicial review.”) (citing
Federal Election Comm’n v. Democratic Senatorial Campaign Comm.,
454 U.S. 27, 102 S. Ct. 38, 70 L. Ed. 2d 23 (1981)); see also
Texports Stevedores Co. v. Director, Office of Workers’
Compensation Programs, 931 F.2d 331, 333 (5th Cir. 1991)
(“According to the Supreme Court, ‘[c]onsiderable weight should be
accorded to an executive department’s construction of a statutory
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scheme it is entrusted to administer.’”) (quoting Chevron, U.S.A.,
Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 844,
104 S. Ct. 2778, 2782, 81 L. Ed. 2d 694 (1984)). If we were to
decide that no coverage exists here solely because of Bailey and
without regard to relevant decisions by the Secretary, we would be
abridging the authority Congress expressly granted to the Secretary
to determine FECA coverage as well as defeating Congress’s intent
that FECA be uniformly interpreted and applied. Without
consideration of the intervening decisions of the Secretary, we
would also be allowing two independent bodies of FECA law to
develop))with the result that an employee’s FECA coverage may
differ depending on whether the employee first brought his case in
federal court or to the Secretary. Bailey does not, and indeed
cannot, stand for the proposition that no FECA coverage exists even
when the Secretary’s past decisions provide at least an arguable
basis that the Secretary would find coverage of White’s injuries.
Furthermore, as the government asserts, the Board did clarify
after Bailey that coverage may be afforded under facts similar to
those in Bailey. See Ross, 42 E.C.A.B. at 374-75; Woodruff, 1989
WL 221872 at *3-4. In fact, in Ross, the Secretary rejected Ross’
argument that the Secretary should follow Bailey, explaining that
Bailey failed to recognize that “injuries sustained by employees on
the employer’s premises while going to or from work are compensable
under the FECA.” Ross, 42 E.C.A.B. at 375 (citing Alvina B.
Piller, 7 E.C.A.B. 444 (1955); Raymond F. Brennan, 14 E.C.A.B. 249
(1963)). We recognize that Board cases preceding Bailey invoked
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the premises rule, see, e.g., Brennan, 14 E.C.A.B. at 249-50
(finding coverage where employee slipped and fell in parking lot
that employer contracted for employees’ exclusive use, even though
parking lot partially extended into public street), but, unlike
Woodruff and Ross, those cases did not involve facts similar to
those in Bailey.
We therefore hold that the Secretary should be presented with
this case. ECAB decisions since Bailey, such as Woodruff and Ross,
provide a substantial question that the Secretary could find
coverage in the instant case. In Concordia, although we did not
find any ECAB cases presenting facts identical to that case, we
sent the case to the Secretary because we could not be “absolutely
sure of what action the Secretary would take.” Id. at 442. Here,
the government cites ECAB cases that are even more analogous to
White’s case than the cases the government cited in Concordia for
that employee’s case. Thus, because we cannot be assured that the
Secretary would deny White FECA benefits, see Concordia, 581 F.2d
at 443, we hold that the district court erred in denying the
government’s motion for stay.7 We reiterate, however, that we are
7
White endeavors to distinguish Concordia by pointing to
the “fact” that he was injured twenty miles from where he worked
whereas the employee in Concordia was injured occurred in front of
the employee’s building. The government responds that because this
factual assertion is not supported by affidavit or otherwise in the
record, we cannot properly consider it on appeal. See In re GHR
Corp. v. Crispin, 791 F.2d 1200, 1201 (5th Cir. 1986) (noting that
“this court is barred from considering filings outside the record
on appeal”). We previously denied plaintiffs’ motion to supplement
the record on this very point of fact. See White v. United States,
No. 96-50810 (5th Cir. July 16, 1997) (order). Moreover, even
assuming arguendo that this fact were adequately supported by the
record, White has failed to show why this fact would warrant a
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not deciding whether White’s injuries are covered under FECA, nor
are we deciding the scope of FECA. Our decision today is a limited
one: we conclude only that a substantial question of coverage
exists under FECA as to whether White’s injuries were sustained in
the performance of his duties. The final determination of FECA
coverage for White’s injuries lies with the Secretary of Labor.8
different conclusion than the one we reach here. Although the
distance traveled by White before the accident may be a dispositive
factor for the Secretary, we cannot conclude based on Concordia or
the Secretary’s prior decisions that this factor eliminates the
substantial question of coverage that exists. See Concordia, 581
F.2d at 443 (“[A]lthough the Secretary may quite conceivably rule
that [the employee’s] injury does not fall within the scope of
FECA, the facts raise a question that must initially be referred to
agency determination.”). Thus, as we decided in Concordia, “it
would be unwise for us to prevent the Secretary from even
considering the case.” Id. at 443.
8
White presents two reasons why we should nevertheless
affirm the district court’s decision. First, as he states in his
brief,
this court should consider the U.S.A.’s position as a
violation of a clear federal statutory mandate, and
affirm the district court’s judgment. A federal court
may exercise jurisdiction over a decision of the
Secretary of Labor concerning FECA when the Secretary
violates a clear statutory mandate or prohibition. . .
. Therefore, this court should affirm the district
court’s FTCA judgment because the Government has shown
its willingness to violate a clear statutory mandate.
Because, at this point, the Secretary has not rendered a decision
that we could consider as violating a clear statutory mandate, we
reject this contention. White also alleges that he has been
deprived of an FTCA cause of action, a species of property, without
due process of law. We have, however, previously upheld the FTCA’s
exclusive remedy provision to a similar constitutional challenge.
See Benton v. United States, 960 F.2d 19, 22-23 (5th Cir. 1992)
(holding that FECA’s exclusive remedy provision did not deprive
injured federal employee of equal protection and due process
rights, even though employee’s FTCA suit was barred, because “the
FECA bar applies only to those claims arising out of injuries
incurred in the scope of employment” and “[t]he government has a
legitimate reason for maintaining a federal workers’ compensation
program in this manner”). Moreover, in making this argument, White
again assumes the occurrence of an event that has not occurred,
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III
For the foregoing reasons, we hold that the district court
erred in denying the government’s motion to hold the case in
abeyance pending the determination of FECA coverage by the
Secretary of Labor.9 See Concordia, 581 F.2d at 444 (advocating
this procedure, as opposed to dismissal, to avoid the running of
the statute of limitations for the FTCA, 28 U.S.C. § 2401(b), and
leaving White with no remedy). If, after remand, White presents
his claim to the Secretary, and the Secretary determines that FECA
provides White’s remedy, then White must pursue the claim
accordingly. If, however, the Secretary finds no FECA coverage,
White will be able to pursue his claim under the FTCA, in which
case the district court is free to reinstate the judgment. See id.
Accordingly, we REVERSE the district court’s denial of the
government’s motion to stay, VACATE the subsequently entered
judgment, and REMAND to the district court with instructions to
stay the case pending the Secretary’s determination of FECA
coverage.
namely, the final determination of FECA coverage of his claim.
Unless and until the Secretary determines that White’s claim falls
within FECA’s coverage, White has not been deprived of an FTCA
claim. We therefore also find White’s due process claim to be
meritless.
9
In reaching this decision, we have not considered the
opinion letter of Thomas M. Markey, Director for Federal Employees’
Compensation, Office of Workers’ Compensation Programs, which the
government submitted below in connection with its motion for
reconsideration.
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