Opinion
No. CV-20-00027-TUC-RCC (DTF)
06-29-2020
Maria Laguna, Plaintiff, v. United States of America, Defendant.
REPORT AND RECOMMENDATION
Before the Court is Defendant's Motion to Dismiss for Lack of Subject Matter Jurisdiction (Motion) brought pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure. (Doc. 8.) The Motion is fully briefed. (Docs. 16, 19.) This matter has been referred to the undersigned United Magistrate Judge for report and recommendation. (Doc. 15.) As more fully set forth below it is recommended that the district court, after its independent review, deny the Motion.
Factual Allegations
Plaintiff Maria Laguna (Laguna) was hired by the United States Border Patrol, Department of Homeland Security in 1997. (Doc. 1 at 3, ¶ 8.) At the time of the events alleged in the complaint, Laguna was an Enforcement Analysis Specialist. Id. at ¶ 9. At all relevant times, Mark Middleton (Middleton) was Laguna's second line supervisor. Id. at ¶¶ 10, 11.
Laguna alleges that on March 3, 2017, while Laguna was walking in front of Middleton at work, Middleton punched her with a hard hand-fisted jab to her left neck and upper back area. Id. at ¶ 12. Laguna suffered severe damage to the muscles, tendons and spinal cord of her neck and shoulder. Id. at ¶ 13. As a result, Laguna underwent cervical spine surgery on June 15, 2018. Id. at ¶ 14.
On November 9, 2018, Laguna's doctor advised her that she had cervical degenerative disease that became symptomatic as a result of the assault by Middleton and that the need for surgery was directly related to the assault she sustained while at work on March 3, 2017. Id. at ¶ 15. As a result of the trauma Laguna sustained, she has developed post-traumatic stress disorder (PTSD) and it is a challenge for her to live with her injuries. Id. at ¶¶ 16, 17.
Legal Standard
The United States as sovereign is immune from suit except insofar as it has consented to be sued, and the terms of its consent define the district court's jurisdiction. See United States v. Mitchell, 445 U.S. 535, 538 (1980) (citation omitted). It is presumed that a claim lies outside the court's limited jurisdiction and the party asserting jurisdiction has the burden to establish it. See Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994).
"A motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1) may attack either the allegations of the complaint as insufficient to confer upon the court subject matter jurisdiction, or the existence of subject matter jurisdiction in fact." Renteria v. United States, 452 F. Supp. 2d 910, 919 (D. Ariz. 2006) (citing Thornhill Publ'g Co. v. Gen. Tel. & Elecs. Corp., 594 F.2d 730, 733 (9th Cir. 1979)). "Where the jurisdictional issue is separable from the merits of the case, the [court] may consider the evidence presented with respect to the jurisdictional issue and rule on that issue, resolving factual disputes if necessary." Thornhill, 594 F.2d at 733; see also Autery v. United States, 424 F.3d 944, 956 (9th Cir. 2005) ("With a 12(b)(1) motion, a court may weigh the evidence to determine whether it has jurisdiction.").
Defendant's Motion
Laguna is suing the United States, her employer, under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671 et seq., for Middleton's alleged conduct. (Doc. 1 at 1, ¶ 1.) Defendant seeks dismissal on the grounds that the Federal Employees' Compensation Act (FECA), 5 U.S.C. § 8102(a), is the exclusive remedy for Laguna's alleged injuries. (Doc. 8 at 1.) Laguna claims that her action is not barred by FECA because, although she is a federal employee who sustained injury while at work, Middleton's assault was an act of discrimination on the basis of her female gender. (Doc. 16 at 3.) Accordingly, Laguna contends that Middleton's actions are an intentional tort that takes her claim out of FECA's scope. Id. at 3-4. Defendant argues that alleged willful misconduct on the part of the accused employee is not excepted from FECA. (Doc. 19 at 2-3.)
Analysis
The Federal Tort Claims Act (FTCA) confers exclusive jurisdiction upon district courts over civil actions for money damages caused by a government employee's negligent or wrongful act or omission within the scope of his employment under circumstances where the United States, if it were a private person, would be liable to the claimant in accordance with the law where the act or omission occurred. 28 U.S.C. § 1346(b).
The Federal Employees' Compensation Act provides:
The United States shall pay as compensation as specified by this subchapter for the disability or death of an employee resulting from personal injury sustained while in the performance of his duty, unless the injury or death is -
(1) caused by willful misconduct of the employee;5 U.S.C. § 8102(a). "To qualify, the employee must apply to the Secretary of Labor." Moe v. United States, 326 F.3d 1065, 1068 (9 Cir. 2003), citing 5 U.S.C. § 8145. "FECA's exclusivity provision bars recovery under the FTCA, providing that '[t]he liability of the United States ... under this subchapter ... is exclusive and instead of all other liability of the United States ... to the employee ... and any other person otherwise entitled to recover damages from the United States ... under a Federal tort liability statute.'" Id. (quoting 5 U.S.C. § 8116(c)).
(2) caused by the employee's intention to bring about the injury or death of himself or of another; or
(3) proximately caused by the intoxication of the injured employee.
The decision of the Secretary of Labor allowing or denying payment on a FECA claim is not subject to judicial review in the federal courts. 5 U.S.C. § 8128(b)(2); Southwest Marine, Inc. v. Gizoni, 112 S.Ct. 486, 493 (1991) ("FECA contains an unambiguous and comprehensive provision barring any judicial review of the Secretary's determination of FECA coverage.... Consequently, the courts have no jurisdiction over FTCA claims where the Secretary of Labor determines that FECA applies." (quotations omitted)); see also Sheehan v. United States, 896 F.2d 1168, 1173 (9th Cir.), amended, 917 F.2d 424 (9th Cir.1990).
The issue raised by Defendant's Motion is whether Laguna's claim of intentional discrimination in the form of a physical assault by Middleton is covered by FECA and thus preempts her FTCA claim. In deciding the issue this Court has considered Exhibit A to Laguna's opposition to Defendant's Motion. See Doc. 16-1 at 1-4. See also, Thornhill, 594 F.2d at 733. ("Where the jurisdictional issue is separable from the merits of the case, the [court] may consider the evidence presented with respect to the jurisdictional issue and rule on that issue, resolving factual disputes if necessary.")
"There are two sorts of FECA coverage questions." Figueroa, 7 F.3d at 1407. "The first question is whether FECA covers a particular type of injury." Id. "This is a question of 'the scope of coverage.'" Id. (quoting Sheehan, 896 F.2d at 1174). "The second question is whether a plaintiff is entitled to compensation under the facts of a particular event. Id. (emphasis in original). "[W]hen a claim arguably falls under FECA, the question of coverage should be resolved by the Secretary [of Labor]." Id. at 1408 (citing Reep v. United States, 557 F.2d 204 (9 Cir. 1997)). A plaintiff need only allege a colorable claim under FECA for the district court to lose jurisdiction over an FTCA action. See Figueroa v. United States, 7 F.3d 1405, 1408 (1993).
Laguna and Middleton are both federal employees. (Doc. 1 at ¶¶ 4, 5.) Laguna alleges her injuries occurred while she was working on March 3, 2017, when Middleton assaulted her. Id. at 12-15. Laguna's Complaint alleges a colorable claim under FECA.
Relying upon Sheehan, supra, Laguna argues that her FTCA claim is not preempted by FECA because "the acts committed by Mark Middleton were intentional discrimination against Ms. Laguna and FECA does not cover injuries resulting from intentional discrimination." (Doc. 16 at 4.) In Sheehan, the plaintiff army civilian employee at the Presidio in San Francisco, sued her employer under the FTCA alleging that her supervisor, Clifton Hunt (Hunt), subjected her to unwanted sexual advances and that Hunt attempted to fire her when she complained. Sheehan alleged Hunt's conduct was intentional and caused her humiliation and emotional distress. Defendant United States argued that FECA was Sheehan's exclusive remedy for emotional distress. The Ninth Circuit disagreed holding that the district court had jurisdiction to hear Sheehan's FTCA claim because a claim for only emotional distress is not cognizable under FECA. 896 F.2d at 1174.
Here, Laguna's claim is not solely a claim for emotional distress. Laguna alleges that she suffered emotional distress as well as physical injuries resulting from the alleged assault. Laguna's claim does not fall squarely within Sheehan.
Laguna's claim of physical injury as a result of an alleged assault while working states a colorable claim within the scope of FECA.
Laguna also relies upon language in DeFord v. Sec. of Labor, 700 F.2d 281 (6 Cir. 1983), a case Sheehan relied upon. DeFord, however, was not a FECA case. The United State Court of Appeals for the Sixth Circuit discussed FECA in response to the government's objection to the district court affording the plaintiff a remedy (administrative leave) that was not permitted by FECA. Id. at 290-91. The plaintiff in DeFord sought and obtained relief under the Energy Reorganization Act and the Secretary of Labor "strenuously argue[d] that the FECA ha[d] no application[.]" Id. at 291. While the court of appeals discussed FECA, its discussion is appropriately treated as dicta based upon its holding that "no substantial question regarding FECA coverage is present here." Id. at 291.
Laguna also argues that the exemptions listed in FECA take her claim out of its scope. (Doc. 16 a 5.) Laguna contends that Congress specifically exempted from FECA's coverage "willful misconduct of the employee" contending that "the employee" in her case is Middleton. Id. Defendant argues to the contrary asserting that by adding the article "the" to "the employee" clearly indicates that Congress is referencing the employee seeking compensation and not any employee of the federal government. (Doc. 19 at 2.)
In Moe v. United States, 326 F.3d 1065, 1067 (9 Cir. 2003), the plaintiff, a federal employee, was an administrative assistant at a medical facility on the Fairchild Air Force Base. A recently discharged Air Force serviceman went on a shooting rampage at the medical facility killing four people and wounding twenty-three others before he was killed. Id. The plaintiff was not shot but suffered from Post-Traumatic Stress Disorder (PTSD) as a result of the shooting incident. Id. Her PTSD aggravated her preexisting ulcerative colitis requiring removal of her colon. Id. The Ninth Circuit held that the plaintiff's psychological injury which resulted in a physical injury was within the scope of FECA. Id. at 1068. negligence.").
In Moe, the cause of the plaintiff's injuries was a shooting rampage, an intentional act that was not excepted from FECA coverage. But, as argued by the government, FECA's exemptions seem to make the most sense when read to exclude intentional acts on the part of the injured employee, rather than an accused employee. However, as pointed out by Laguna, Congress could have more clearly indicated its intent to exclude intentional conduct only on the part of an injured employee by including the language "the injured employee" in subparts (1) and (2) as Congress did in subpart (3). See 5 U.S.C. § 8102(a)(1)-(3).
This Court determines that while Laguna's claim is colorable under FECA there is a question of coverage that must be determined by the Secretary of Labor.
Laguna requests that if the district court determines that the question of coverage must be determined by the Secretary of Labor, her case be stayed and held in abeyance so that she can file a FECA claim with the Secretary of Labor and receive a determination from the secretary regarding coverage. (Doc. 16 at 5-6.) The government objects to Laguna's request asserting that FECA bars judicial review of the Secretary of Labor's determination. (Doc. 19 at 3.)
This Court agrees with the government that FECA bars juridical review of the Secretary of Labor's determination. 5 U.S.C. § 8128(b)(2). However, if the Secretary of Labor determines that Laguna's claim is not covered by FECA because Middleton's conduct was intentional conduct motivated by discriminatory animus, then she is free to pursue her claim under the FTCA. In other words, she is free to resume litigating her complaint. Because of this, this Court recommends the district court hold this case in abeyance pending a FECA coverage determination by the Secretary of Labor. See, e.g., Jorgenson v. United States, 2004 WL 3267262, at *8 (N.D. Cal. 2004) (collecting cases staying proceedings pending a FECA coverage decision by the Secretary of Labor where a substantial question of coverage exists).
Recommendation
This Court recommends that Defendant's Motion (Doc. 8) be denied, and this case be held in abeyance pending a coverage decision by the Secretary of Labor.
Pursuant to Federal Rule of Civil Procedure 72(b)(2), any party may serve and file written objections within fourteen days of being served with a copy of the Report and Recommendation. A party may respond to the other party's objections within fourteen days. No reply brief shall be filed on objections unless leave is granted by the district court. If objections are not timely filed, they may be deemed waived. If objections are filed, the parties should use the following case number: 4:20-cv-27-RCC.
Dated this 29th day of June, 2020.
/s/_________
Honorable D. Thomas Ferraro
United States Magistrate Judge