Williamson v. USA

Filing 28

MEMORANDUM OPINION & ORDER: Defendant's 25 Motion Amend the Court's Order to include 28 U.S.C. § 1292(b) certification is, DENIED. Defendant SHALL answer Amended Complaint within 20 days of the entry of this Order. Signed by Judge Joseph M. Hood on 2/3/2014. (STC)cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION at LEXINGTON

GARY EDWARD WILLIAMSON,
Plaintiff,
v.
UNITED STATES OF AMERICA,
Defendant.

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Civil Case No.
5:12-cv-334-JMH
MEMORANDUM OPINION & ORDER

***
This matter is before the Court upon the United States’
Motion to Amend this Court’s prior order, dated September 5,
2013, to include certification under 28 U.S.C. § 1292(b) and
stay proceedings in district court.

[DE 25].

Plaintiff has

responded [DE 26], and the United States has filed a Reply [DE
27].

Thus, this matter is now ripe for review.

For the reasons

which follow, Defendant’s motion will be denied.
I.
Plaintiff Gary Edward Williamson was awarded compensation
under the Federal Employee’s Compensation Act (FECA) as a result
of injuring his foot and ankle in the performance of his duty as
a USPS employee in March, 2010.1

[DE 14-2 at 2].

As a veteran,

he was eligible for, and received, treatment at the Veterans

1

For a full discussion of the facts, please refer to
this Court’s prior Memorandum Opinion and Order [DE 19].

Administration Medical Center (VAMC) in Lexington, Kentucky.
the

current

Federal

litigation,

Tort

Claims

Williamson

Act

(FTCA)

seeks

for

the

damages

under

VAMC’s

failure

In
the
to

diagnose and properly treat his work-related injury, as well as
exacerbation of a pre-existing condition which is, allegedly,
unrelated to any work injury.

[DE 1-1].

Generally, if a federal employee sustains an injury “while
in the performance of his duty,” compensation provided through
FECA

is

his

exclusive

remedy

against

the

United

States.

5

U.S.C. § 8102(a); see Wright v. United States, 717 F.2d 254,
256—57 (6th Cir. 1983).

Defendant initially filed a motion to

dismiss on the basis that FECA provided Williamson’s exclusive
remedy

for

his

injury.

Wright,

717

F.2d

at

257

(citation

omitted)(“Injuries which are compensable under the FECA . . .
cannot be compensated under other federal remedial statutes such
as the Federal Tort Claims Act.”).
Opinion

and

Defendant’s

Order
motion,

[DE

19],

finding

dated
that

This Court’s Memorandum
September

the

Sixth

5,

2013,

denied

Circuit’s

narrow

exception, known as the “dual capacity doctrine,” would apply to
allow Williamson’s FTCA claim to go forward, despite his prior
recovery under FECA. Under the dual capacity doctrine, “[a]n
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
2

unrelated

to

his

status

as

employer that by established standards the law recognizes it as
a separate legal person.” Wright, 717 F.2d at 259 (quoting 2A
Larson, Workmen’s Compensation Law § 72.81 (1982)).
Defendant now requests that this Court amend its Memorandum
Opinion and Order [DE 19] to include a certification under 28
U.S.C. § 1292(b) to allow for interlocutory appeal.
reasons

stated

below,

the

Court

will

deny

the

For the

request

for

certification.
II.
A matter is appropriate for certification for interlocutory
appeal where the issue involved is “a controlling question of
law as to which there is substantial ground for difference of
opinion

and

that

an

immediate

appeal

from

the

order

may

materially advance the ultimate termination of the litigation.”
28 U.S.C. § 1292(b).

The United States argues that these

factors are present in the issue addressed by this Court’s prior
Memorandum Opinion and Order.

While this Court agrees that the

issue of whether Williamson may maintain an FTCA claim where he
received benefits under FECA is a controlling question of law,
the

current

precedent

is

clear

and,

thus,

there

is

not

a

substantial ground for difference of opinion.
A substantial ground for difference of opinion may be shown
where

“(1)

the

question

is

difficult,

novel

and

either

a

question on which there is little precedent or one whose correct
3

resolution is not substantially guided by previous decisions;
(2) the question is difficult and of first impression; (3) a
difference of opinion exists within the controlling circuit; or
(4)

the

circuits

are

split

on

the

question.”

Miedzianowski, 735 F.3d 383, 384 (6th Cir. 2013).

In

re

This is not a

matter of first impression, nor is there a difference of opinion
within the Sixth Circuit on this issue.

Most importantly, there

is guiding precedent in this circuit upon which this Court may,
and did, rely.

Arguments that this Court applied existing law

incorrectly or that the law should be changed may be addressed
upon

appeal

at

the

conclusion

of

this

matter,

but

are

not

appropriate grounds for certification.
The essence of the United States argument is that, if given
the

chance

on

interlocutory

change the current law.

appeal,

the

Sixth

Circuit

would

The United States cites to criticism of

the Sixth Circuit’s approach, see Wilder v. United States, 873
F.2d 285, 289 (11th Cir. 1989), however, Defendant’s suspicion
that the judges of the Sixth Circuit might, or should, change
the law of the circuit is not an appropriate basis for this
Court to certify an opinion for interlocutory appeal.

While

this Court’s prior Opinion acknowledged that other circuits have
declined to adopt the dual capacity doctrine and other courts’
opinions

have

mused

that

the

Sixth

4

Circuit

might

alter

its

approach in the future2, the Sixth Circuit’s prior decisions
provided sufficient guidance for this Court’s analysis of the
issue.

This Court has applied the dual capacity doctrine to the

facts of this case and there is not a “substantial ground for
difference of opinion.”
Accordingly, and for the foregoing reasons,
IT IS ORDERED that the Defendant’s Motion Amend the Court’s
Order to include 28 U.S.C. § 1292(b) certification [DE 25], be,
and the same hereby is, DENIED.
IT

IS

FURTHER

ORDERED

that

Defendant

SHALL

answer

the

Amended Complaint within 20 days of the entry of this Order.
This the 3rd day of February, 2014.

2

See Soltysiak v. United States, No. 90C6775, 1991 WL
55750, at *2 (N.D. Ill. Apr. 8, 1991) (citing McCall as
authority that the existence of FECA coverage precludes a
separate tort action); see also Elman v. United States, 173 F.3d
486, 490—91 (3d Cir. 1999) (suggesting “the Sixth Circuit may
have become disenchanted with the dual capacity doctrine.”).
5