United States of America, Appellant, v. Fernando S. Forfari, Appellee, 268 F.2d 29 (9th Cir. 1959)

The United States here appeals from a judgment of the District Court awarding Fernando S. Forfari damages in the amount of $12,673.26. Forfari's action was based on provisions of the Federal Tort Claims Act (28 U.S.C. 1346(b)).¹  Jurisdiction in this court rests on 28 U. S.C. § 1291.

The accident giving rise to the suit occurred on November 21, 1951, in the Commissioned Officers' Mess at Mare Island Naval Shipyard, Vallejo, California. Forfari, a chef, sustained personal injuries when he slipped and fell down a flight of stairs which led from the kitchen to the employees' washroom in the Officers' Mess. The District Court found that the injuries were proximately caused by the negligence of the United States in certain particulars not here relevant.

The Government attacks this judgment by contending: (1) that Forfari was an employee of the United States and is therefore barred from bringing an action under the Federal Tort Claims Act, and/or (2) that Forfari, as an employee of a non-appropriated fund instrumentality of the United States, is precluded from bringing this action because of his recovery under the California Workmen's Compensation Act, West's Ann.Labor Code, § 3201 et seq.

We agree with the contentions of the appellant.

Forfari, a civilian, was employed by the Mare Island Cafeteria System. The Cafeteria System was organized and operated under Navy Civilian Personnel Instruction 66,²  for the purpose of supplying food to Naval Yard personnel. As a contract concessionaire, the Cafeteria System also provided food services to the Commissioned Officers' Mess at the Naval Shipyard. The Cafeteria System is operated as a non-profit corporation, managed by a civilian, and governed by a civilian board of directors. The Board of Directors reports to the Industrial Relations Officer, a naval officer, and its members are appointed by the naval officer commanding the shipyard.

Activities such as the Mare Island Cafeteria System are characterized as non-appropriated fund instrumentalities of the United States. It is settled law that such activities are integral parts of the Government's military services. Standard Oil Co. of California v. Johnson, 1942, 316 U.S. 481, 62 S. Ct. 1168, 86 L. Ed. 1611, held that Army post exchanges were arms of the federal government and as integral parts of the War Department partook of its immunity under the federal Constitution and statutes. Nimro v. Davis, 1953, 92 U.S.App.D.C. 293, 204 F.2d 734, certiorari denied 346 U.S. 901, 74 S. Ct. 229, 98 L. Ed. 401, held that Naval food services established under NCPI 66³  serve the same purpose as Army post exchanges, perform a governmental function, and are arms of the United States.

Appellee concedes that the Cafeteria System is a federal instrumentality, but denies that this makes him a federal employee. Appellee, for this proposition, relies on Faleni v. United States, D.C.N. Y.1949, 125 F. Supp. 630.⁴ 

We are not in agreement with the Faleni case.⁵  Faleni was decided in 1949. In June of 1952, Congress enacted (66 Stat. 138) 5 U.S.C.A. § 150k,⁶  which expressly exempted civilian employees of non-appropriated fund activities from the operation of the Civil Service Commission and the provisions of the Federal Employees Compensation Act, 5 U.S. C.A. § 751 et seq. The legislative history of this Act⁷  clearly shows that the Act was passed to allay the doubts raised by the Standard Oil case, supra, as to whether or not the various Civil Service laws and regulations were applicable to civilian employees of non-appropriated fund activities. The Civil Service Commission believed that as a result of the Standard Oil case "it was necessary to consider persons employed in these activities as federal employees and subject to the usual personnel laws."⁸ 

The Department of Defense did not believe these employees should be included within the federal civil service. The Department of Defense pointed up the administrative difficulties that would result if all such employees (many of whom were employed and released daily) were subject to its laws. Thus, 5 U.S. C.A. § 150k was enacted, providing that civilian employees in Forfari's status "shall not be held and considered as employees of the United States for the purposes of any laws administered by the Civil Service Commission or the provisions of the Federal Employees' Compensation Act * * *." [Emphasis added.]

In addition to specifically exempting these employees from civil service regulation and federal employee compensation benefits, § 150k-1 of the Act required the non-appropriated fund activities to provide the employees with workmen's compensation and employer's liability insurance.⁹  House Report No. 1995 stated that the Act thus assured the employees that "their present benefits provided through private insurance for workmen's compensation and employers' liability will be continued."

Thus 5 U.S.C.A. §§ 150k and 150k-1 serve these two purposes: (1) to render inapplicable civil service control over such employees (because of the administrative difficulties), and (2) to place the financial burden of compensation insurance for such employees on the nonappropriated fund activities rather than on the federal government. Section 150k, however, expressly provided that the status of these non-appropriated fund activities as federal instrumentalities should not be affected.

Forfari's accident occurred on November 21, 1951, some seven months prior to the passage of §§ 150k and k-1. However, as indicated in the legislative history, it was the practice of the exchanges, food services, and the like, to provide the workmen's compensation that the June, 1952, act later made mandatory. The Mare Island Cafeteria System did provide Forfari with such benefits. It is conceded that the California State Fund Insurance Company has awarded Forfari $4,085.76 for the injuries sustained by reason of his fall.

We believe that it is reasonable to say that, if in 1951 the Mare Island Cafeteria System had not provided its employees with workmen's compensation for injuries incurred by them in the scope of their employment, such injuries would have been compensable under the Federal Employees' Compensation Act, and that it took the passage of § 150k in 1952 to remove employees such as Forfari from the protection afforded by the Federal Employees' Compensation Act.

It was not until 150k-1 was amended in 1958 that the protection afforded by that statute was expressly made the exclusive remedy of those within its scope. Yet, when the entire statutory system of remedies provided by the federal government for its employees is viewed in perspective, it is clear that such injuries are, and always have been, beyond the purview of the Tort Claims Act. "* * * the test established by the Tort Claims Act for determining the United States' liability is whether a private person would be responsible for similar negligence under the laws of the State where the acts occurred." Rayonier, Inc. v. United States, 1957, 352 U.S. 315, 77 S. Ct. 374, 376, 1 L. Ed. 2d 354.

Under the California law, of course, this on-the-job injury would be compensable under workmen's compensation and unless the employer failed to carry such insurance, the injured employee could not bring an action in tort against his employer. West's Ann.California Labor Code, § 3601. Duprey v. Shane, 1952, 39 Cal. 2d 781, 249 P.2d 8.

The states have enacted their workmen's compensation schemes and made the remedies provided therein exclusive for industrial accidents. The federal statutory scheme, though providing various remedies for its various classifications of employees, is of the same import. Thus, Feres v. United States, 1950, 340 U.S. 135, 71 S. Ct. 153, 158, 95 L. Ed. 152, in holding that the government was not liable under the Tort Claims Act for injuries to military personnel sustained while on active duty, said: "This Court, in deciding claims for wrongs incident to service under the Tort Claims Act, cannot escape attributing some bearing upon it to enactments by Congress which provide systems of simple, certain, and uniform compensation for injuries or death of those in the armed services."

In Johansen v. United States, 1952, 343 U.S. 427,¹⁰  72 S. Ct. 849, 853, 96 L. Ed. 1051, the Court held a civilian employee of the United States on a "public vessel" was precluded from seeking recovery under the Public Vessels Act, 46 U.S.C.A. § 781 et seq. The Federal Employees Compensation Act was his exclusive remedy. The Court said that it must "attempt to fit the Public Vessels Act, as intelligently and fairly as possible, `into the entire statutory system of remedies against the Government to make a workable, consistent and equitable whole.'¹¹ "

A recent case, decided by the District of Columbia Circuit, is particularly worthy of note: Aubrey v. United States, 1958, 103 U.S.App.D.C. 65, 254 F.2d 768, 772. In Aubrey, despite a pretrial stipulation that the plaintiff, a civilian employee of an officers' mess, was not a federal employee, the Court held that he was precluded from maintaining a Tort Claims action. The Court of Appeals said:

"We conclude that Aubrey is precluded from maintaining this suit under the Tort Claims Act by the principle set forth in Feres and Johansen that the Act was not intended to grant the right to sue the Government to one who has been provided another remedy against its own instrumentality by the Government through a system `of simple, certain, and uniform compensation for injuries or death.' The compensation system provided for plaintiff Aubrey must, like the Tort Claims Act, `be construed to fit, so far as will comport with its words, into the entire statutory system of remedies against the Government to make a workable, consistent and equitable whole'."

While Aubrey's injuries were sustained after the passage of the 1952 Act (5 U.S.C.A. §§ 150k, k-1) and Forfari's injuries were sustained shortly before that Act, we do not believe that that fact is decisive of this appeal. The 1952 Act (150k, k-1) on the one hand denied such employees a remedy under F.E.C.A. and on the other hand required the civilian instrumentalities to provide workmen's compensation. The Act neither altered the status of Forfari's employment, nor affected the nature of his accident. This was a "scope of employment" type injury — compensable under workmen's compensation in virtually every state in the Union, and under F.E. C.A. for federal employees. The fact that at the time of this injury the financial obligations as between the federal government and the civilian instrumentality of the government had not been clearly delineated, does not transform this compensable industrial accident into an action under the Tort Claims Act.

We hold that Forfari was at the time of his injury a federal employee and that he is precluded from bringing an action under the Tort Claims Act.

The judgment of the District Court is reversed.