Opinion
Civil Action No. 3:97-CV-0159-P
February 13, 2002
MEMORANDUM OPINION AND ORDER
Presently before the Court are the following:
1. Defendant's Motion to Dismiss and Brief in Support, filed October 1, 2001;
2. Plaintiff's Brief and Reply to Defendant's Motion to Dismiss, filed October 26, 2001; and
3. Defendant's Reply to Plaintiff's Response to Defendant's Motion to Dismiss and Brief in Support, filed November 1, 2001.
For the reasons stated below, and after a thorough review of the evidence, the pleadings, the parties' briefs, and the applicable law, the Court finds that Defendant's Motion to Dismiss should be GRANTED.
BACKGROUND
Plaintiffs Gwenda Brown and Lewis Brown filed their Original Petition in this case on January 24, 1997. The United States of America, defendant in this action, filed a Motion to Dismiss or in the Alternative for Summary Judgment on April 25, 1997. This Court issued a Memorandum Opinion and Order on July 29, 1997 (the "July 1997 Order") dismissing some claims originally pled by Plaintiff's, allowing one of the claims to remain, and conditionally denying the motion to dismiss on Plaintiff's' loss of consortium claim, provided Plaintiff's could amend the complaint and state an actionable claim. In response to the July 1997 Order, Plaintiff's filed an Amended Complaint on August 18, 1997.
On September 29, 1997, Defendant filed a Partial Motion to Dismiss Plaintiffs' Amended Complaint or Alternatively for Summary Judgment. On June 3, 1998, this Court issued a Memorandum Opinion and Order ("June 1998 Order") dismissing all claims re-pled by Plaintiff's in their amended complaint which had been previously dismissed, dismissing plaintiff Lewis Brown's claim for loss of consortium, but denying dismissal as to plaintiff Gwenda Brown's (hereinafter "Plaintiff" or "Brown") claim of intentional infliction of emotional distress.
On March 22, 1999, Defendant filed another Motion to Dismiss or for Summary Judgment at to this remaining claim. As grounds for this motion, the United States asserted that this Court lacked subject matter jurisdiction over Plaintiff's intentional infliction of emotional distress claim because it fell under the Federal Employees Compensation Act ("FECA"), 5 U.S.C. § 8101 et seq., which is an exclusive remedy and precludes jurisdiction over tort claims for employment related injuries. The Court granted Defendant's Motion on July 1, 1999 ("July 1999 Order"), finding that there was a "substantial question" of FECA coverage. See Mem. Op. Order 7/1/99 at 7. As such, the Court also stayed Plaintiff's action pending a determination by the Secretary of Labor as to whether Ms. Brown's claims were covered by FECA. See Id.
On April 3, 2001, the U.S. Department of Labor's Employees Compensation Appeals Board ("ECAB") issued its final decision as to Plaintiff's claims. In ruling to uphold the decision by the Office of Workers' Compensation Programs ("OWCP") not to reopen Plaintiff's case, the ECAB found Plaintiff's claims against the United States were barred because she did not timely file them within the relevant three-year limitations period. See In the Matter of Gwenda Brown and Dep't of the Treasury, Internal Revenue Service, Dallas, TX, Docket No. 00-1431 (Dep't of Labor Apr. 3, 2001).
On July 10, 2001, Plaintiff moved this Court to lift the stay imposed by the July 1999 Order, and for reinstatement of this cause. In response, the United States did not oppose the reopening of this case, but stated that the issue of preclusion of Plaintiff's tort claim by the FECA statutory provisions still remained following ECAB's decision. See Def.'s Resp. Pl.'s Mot. to Lift Stay at 2. Thereafter, on August 15, 2001, the Court granted Plaintiff's motion and reinstated this case.
On October 1, 2002, Defendant filed a Motion to Dismiss pursuant to Rule 12(b)(1) on grounds that this Court continued to lack subject matter jurisdiction over Plaintiff's claims under FECA. See Def.'s Mot. to Dismiss at 1, 3-4. This matter is now presently before the Court.
DISCUSSION
A. LEGAL STANDARD
A complaint must be dismissed if the Court lacks subject matter jurisdiction over the plaintiffs claim. FED. R. Civ. P. 12(b)(1), 12(h)(3). More importantly, the burden of establishing subject matter jurisdiction rests on the plaintiff as the party invoking jurisdiction. Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377 (1991).
A district court has the power to decide a Rule 12(b)(1) motion to dismiss "on any one of three separate bases: (1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts." Barrera-Montenegro v. United States, 74 F.3d 657, 659 (5th Cir. 1996) (quoting Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir.), cert. denied, 454 U.S. 897 (1981)). The Fifth Circuit recognizes a distinction between a "facial" attack and a "factual" attack upon a complaint under Rule 12(b)(1). See Patterson v. Weinberger, 644 F.2d 521, 523 (5th Cir. 1981). If a defendant files a Rule 12(b)(1) motion, the attack is presumptively facial and the Court need look only to the sufficiency of the allegations in the complaint, which are presumed to be true. See Patterson, 644 F.2d at 523. If, on the other hand, the defendant supports the motion with affidavits, testimony, or other evidentiary materials, then the attack is factual and the burden shifts to the plaintiff to prove subject matter jurisdiction by a preponderance of the evidence by also submitting facts through some evidentiary method. See Patterson, 644 F.2d at 523. Regardless, a motion to dismiss for lack of subject matter jurisdiction should be granted only if it appears certain that the plaintiff cannot prove any set of facts in support of his or her claim that would entitle him or her to relief. Home Builders Ass'n of Mississippi, Inc. v. City of Madison, Miss., 143 F.3d 1006, 1010 (5th Cir. 1998).
B. PLAINTIFF'S REMAINING CLAIM
The Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2671, et seq., is a limited waiver of sovereign immunity and provides that, subject to certain exceptions, "the United States shall be liable, respecting the provisions of this title relating to tort claims, in the same manner and to the same extent as a private individual under like circumstances." 28 U.S.C. § 2674 (2001). In essence, the FTCA provides a limited waiver of sovereign immunity of the United States for negligent or wrongful acts of governmental employees. Insurance Co. of N. America v. United States Postal Service, 675 F.2d 756, 757-758 (5th Cir. 1982). As previously stated by the Court in its July 1997 Order, a cause of action for the intentional infliction of emotional distress is not exempted from the scope of the FTCA. See Mem. Op. Order 7/29/97 at 5.
A substitute for FTCA tort suits, the FECA establishes a program of workmen's compensation for federal employees injured in the performance of his or her duties. See Eure v. United States Postal Service, 711 F. Supp. 1365, 1373 (S.D. Miss. 1989). Specifically, the FECA requires the United States to pay compensation "for the disability or death of an employee resulting from personal injury sustained while in the performance of his duty. . . ." 5 U.S.C. § 8102(a) (2001) (emphasis added). The statute further provides that the liability of the Unites States "is exclusive and instead of all other liability of the United States . . . to the employee." 5 U.S.C. § 8116(c). The Secretary of Labor is vested with the power to "administer, and decide all questions arising under" the FECA and his action in denying or granting compensation is final and conclusive and may not be reviewed by a court of law. Bailey v. United States, Through the Dep't of the Army, 451 F.2d 963, 965 (5th Cir. 1971) (citing 5 U.S.C. § 8128(b)(1), (2) and § 8145).
An injured employee may not bring an action against the United States under FTCA when there is a substantial question as to whether or not the injury occurred in the performance of the employee's duty." Avasthi v. United States, 608 F.2d 1059, 1060 (5th Cir. 1979) (citing Bailey, 451 F.2d at 965). That is, the employee must first seek and be denied relief under FECA before the court can entertain his action, unless his injuries do not present any substantial question of compensability under that act. See Id. A substantial question exists unless it is certain that the Secretary of Labor would find no coverage under FECA. White v. United States, 143 F.3d 232, 234 (5th Cir. 1998).
In its July 1999 Order in this case, the Court found that the Fifth Circuit had not directly ruled on whether emotional distress was considered an injury covered under FECA, and there was a current split in the case law. See Mem. Op. Order 7/1/99 at 5. More specifically, this Court found that while some courts had held emotional distress was covered under FECA, other courts had found that it was not. Id.; compare McDaniel v. United States, 970 F.2d 194, 197-198 (6th Cir. 1992) (finding that FECA preempted employees claim for emotional distress); Burke v. United States, 644 F. Supp. 566, 567-568 (E.D. La. 1986) (holding that FECA covers claims for intentional infliction of emotional distress); Eure, 711 F. Supp. at 1372-1373 (S.D. Miss. 1989) (court referred the question whether damages for emotional distress fell within FECA to Secretary); Williams v. United States, 565 F. Supp. 59, 60-61 (N.D. Miss. 1983) (court found that there is at least a question as to whether FECA covers emotional distress); with Deford v. Secretary of Labor, 700 F.2d 281, 290 (6th Cir. 1983) (finding that FECA does not cover emotional distress); Gergick v. Austin, 764 F. Supp. 580, 581 (W.D. Mo. 1991) (finding that personal "injury" as defined by FECA does not encompass claim based on emotional injury such as mental distress). Therefore, under the facts of the instant case, arising from plaintiff Brown's employment with the IRS, the Court held that there was a "substantial question" of FECA coverage and stayed the case pending a determination by the Secretary of Labor. See Mem. Op. Order 7/1/99 at 6-7.
Among her allegations, Plaintiff complained that (1) a government witness tampered with or altered evidence relating to Brown's criminal prosecution for embezzlement from her employer; (2) that a government employee during Plaintiff's reinstatement hearing insisted that she was guilty of embezzling despite the fact that she had been acquitted; and (3) that the IRS management confronted her and threatened that she would regret returning to work. See Mem. Op. Order 7/1/99 at 6.
Nevertheless, in its decision of April 3, 2001, the ECAB did not reach the issue of whether Plaintiff's claims of intentional infliction of emotional distress were covered under the FECA; instead, it dismissed her claims as untimely for failure to file within the relevant three-year limitations period. See In the Matter of Gwenda Brown and Dep't of the Treasury, Internal Revenue Service, Dallas, TX, Docket No. 00-1431 (Dep't of Labor Apr. 3, 2001). The circumstances of this case are very similar to those presented to the Fifth Circuit in Bennet v. Barnett, 210 F.3d 272 (5th Cir. 2000). In that case, the plaintiff had filed a claim for emotional distress based on alleged on-the job harassment by her co-workers. Bennet, 210 F.3d at 277. The Secretary of Labor, however, denied the claim, not because of lack of coverage under the FECA, but for plaintiffs lack of proof as to this harassment. Id. Therefore, by ruling on the sufficiency of the evidence, the Fifth Circuit understood this to mean that the Secretary thought coverage existed, and thus, the district court did not have jurisdiction to try the plaintiffs claim. Id. Similarly here, while Brown submitted her claim to the ECAB, it was not denied because of lack of coverage for her intentional infliction of emotional distress claim under the FECA, but was denied because it was deemed untimely filed.
Moreover, the Court in Bennet expressly rejected the argument that no "substantial question" of FECA coverage can exist for "dignity torts" that did not result in physical injury to plaintiff. Instead, the Court ruled that, had the Secretary of Labor agreed with this view, the Secretary would have dismissed the claim for lack of coverage and not on the merits. See Id., 210 F.3d at 277 n. 7. Therefore, as the Fifth Circuit has yet to answer whether a plaintiffs claims of emotional distress are within the coverage of the FECA, a "substantial question" continues to exist in this area for the Secretary of Labor's determination. See Id., 210 F.3d at 277. As such, since this Court has already found that a "substantial question" of FECA coverage exists with regards to plaintiff Brown's claims for intentional infliction of emotion distress, see July 1999 Order, unless and until the Secretary of Labor determines that her claims are not covered by the FECA, this Court lacks subject matter jurisdiction as to this claim. See Id.; see also Lewis v. Cisneros, No. CIV. A. 94-3267, 1995 WL 33662 at *1-2 (E.D. La. Jan. 27, 1995) (rejecting plaintiffs bald assertion that her claims for intentional infliction of emotion distress did not present a "substantial question" of FECA coverage based solely on fact that Department of Labor's Compensation Order made no explicit finding that FECA applied and holding that district court lacked jurisdiction because the Department expressly denied plaintiffs claims for lack of evidence, not for jurisdictional flaws); Burke, 644 F. Supp. at 568 ("where there is at least a question as to whether the FECA covers intentional torts, an FTCA action is barred until the Secretary of Labor determines that there is no coverage").
CONCLUSION
In view of the foregoing, this Court finds that because a substantial question exists in this case as to FECA coverage of Plaintiff's intentional infliction of emotional distress claim, and because Plaintiff has failed to provide a decision from the Secretary of Labor that her claim is not covered by FECA, her tort action is preempted by FECA and must be dismissed since this Court lacks subject matter jurisdiction. Accordingly, the Court shall and hereby GRANTS Defendant's Motion to Dismiss.
SO ORDERED.