[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 94-2259
RALPH J. MILLER,
Plaintiff, Appellant,
v.
UNITED STATES OF AMERICA, ET AL.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Martin F. Loughlin, Senior U.S. District Judge]
Before
Torruella, Chief Judge,
Selya and Boudin, Circuit Judges.
Ralph J. Miller on brief pro se.
Paul M. Gagnon, United States Attorney, and Gretchen Leah Witt,
Assistant United States Attorney, Chief Civil Division, on brief for
appellees.
July 24, 1995
Per Curiam. Pro se plaintiff Ralph Miller, a
former postal employee, filed this action under the Federal
Tort Claims Act (FTCA) to recover workers' compensation
benefits that the Department of Labor's Office of Workers'
Compensation Programs (OWCP) denied him under the Federal
Employees Compensation Act (FECA), 5 U.S.C. 8101 et seq. He
appeals a district court order that dismissed this action on
the ground that Miller's claim is preempted by the FECA. We
affirm the dismissal, but we prefer to rest our decision on
the ground that Miller failed to satisfy the presentment
requirements of the FTCA, 28 U.S.C. 2401(b).
I.
We begin with the relevant facts. Miller was employed
by the United States Postal Service from approximately 1981
to 1992. On March 12, 1990, Miller filed a workers'
compensation claim that alleged that he was suffering from
depression as a result of the way his postmaster treated
him.1 The OWCP denied Miller's claim on the ground that
Miller failed to submit sufficient medical evidence to prove
that his condition was caused by his employment. While
Miller appealed this decision, he subsequently failed to
appear at the hearing that the OWCP scheduled. Thereafter,
Miller filed an administrative FTCA claim for "work-
1. Miller claimed that he first became aware that his
depression was related to his employment on February 12,
1989.
aggravated mental depression" with the Assistant General
Counsel for the Postal Service. That claim sought damages
equal to the amount that Miller claimed was due him in
workers' compensation benefits. Thus, Miller filed an
administrative claim under the FTCA to recover the workers'
compensation benefits that the OWCP had denied him under the
FECA. After more than six months passed without action by
the Postal Service, Miller commenced this civil action under
the FTCA.2
The government filed a motion to dismiss pursuant to
Fed. R. Civ. P. 12(b)(1) and 12(b)(6), or, in the
alternative, for summary judgment.3 It argued that the
district court lacked subject matter jurisdiction because
Miller's FTCA suit was simply an attempt to redress the
OWCP's denial of Miller's workers' compensation claim and
judicial review of the OWCP's decision was prohibited by 5
U.S.C. 8128(b).4 Relying on McDaniel v. United States, 970
2. 28 U.S.C. 2675(a) provides that the failure of an agency
to make a final disposition of an administrative FTCA claim
within 6 months after it is filed shall be deemed a final
denial sufficient to authorize the filing of a FTCA suit
against the United States.
3. Miller's original complaint named the Postal Service, the
Department of Labor, and the OWCP as defendants. He later
amended his complaint to substitute the United States (i.e.,
"the government") for the other named defendants.
4. 5 U.S.C. 8128(b) provides, in relevant part, that:
The action of the Secretary or his
designee in allowing or denying a payment
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F.2d 194, 197 (6th Cir. 1992)(per curiam), the government
further argued that the district court lacked subject matter
jurisdiction despite the fact that Miller's FECA claim had
been denied.5
Miller opposed the government's motion. He argued that
the FECA does not cover emotional injuries such as those he
sustained as a result of his postmaster's campaign of
harassment against him.6 The district court concluded that
the FECA does not encompass claims for emotional distress and
denied the government's motion. The court based its decision
on the FECA's definition of injury in 5 U.S.C. 8101(5)(which
does not specifically refer to mental or emotional injuries),
Sheehan v. United States, 896 F.2d 1168, amended, 917 F.2d
under this subchapter is -
(1) final and conclusive for all purposes
and with respect to all questions of law
and fact; and
(2) not subject to judicial review by
another official of the United States or
by a court by mandamus or otherwise.
5. McDaniel held that where it was clear that the Secretary
of Labor viewed the plaintiff's emotional distress claim as
cognizable under the FECA, the FECA barred the plaintiff's
FTCA suit for intentional and negligent infliction of
emotional distress even though the plaintiff had not been
awarded FECA benefits.
6. Miller thus implied that his federal tort claim was based
on the theory that his postmaster had subjected him to the
intentional infliction of emotional distress. Miller also
suggested that the OWCP had intentionally inflicted emotional
distress upon him by denying his workers'compensation claim.
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424 (9th Cir. 1990)(holding that 5 U.S.C. 8128(b) did not
preclude district court from determining what types of
injuries were covered by the FECA and that the FECA did not
cover emotional distress claims) and numerous other cases.7
The government petitioned to take an interlocutory
appeal from the district court's order, but this court denied
that petition. Limited discovery followed.8 The government
then filed a second motion to dismiss which asked the
district court to reconsider its previous ruling in the light
of recent decisions that had recognized the FECA's preclusive
effect in cases involving emotional injuries.9 The
7. See, e.g., Guidry v. Durkin, 834 F.2d 1465, 1471-72 (9th
Cir. 1987); Gergick v. Austin, 764 F. Supp. 580, 581-82 (W.D.
Mo. 1991); Underwood v. United States Postal Service, 742 F.
Supp. 968 (M.D. Tenn. 1990); Metz v. United States, 723 F.
Supp. 1133, 1136 (D. Md. 1989); Newman v. Legal Services
Corporation, 628 F. Supp. 535, 543 (D.D.C. 1986); Sullivan v.
United States, 428 F. Supp. 79, 81 (E.D. Wis. 1977); Mason v.
District of Columbia, 395 A.2d 399 (D.C. 1978).
8. We note that Miller's motion to amend his complaint to
specifically allege that the government intentionally
inflicted emotional distress on him when it denied his
workers' compensation claim was denied on the ground that
such an amendment would be futile since Miller had failed to
present this claim to the appropriate federal agencies in his
administrative FTCA claim.
9. The government relied on Tarver v. United States, 25 F.3d
900 (10th Cir. 1994); Figueroa v. United States, 7 F.3d 1405
(9th Cir. 1993), cert. denied, 114 S. Ct. 1537 (1994);
Swafford v. United States, 998 F.2d 837 (10th Cir. 1993);
Jones v. Tennessee Valley Authority, 948 F.2d 258 (6th Cir.
1991); Klescewski v. United States, 843 F. Supp. 543 (D.S.D.
1993); Castro v. United States, 757 F. Supp. 1149, 1151 (W.D.
Wash. 1991); and Cardwell v. United States, 1992 WESTLAW
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government also argued that Miller's suit was barred by the
Civil Service Reform Act (CSRA) and the FTCA's presentment
requirement. After Miller filed an opposition, the district
court reversed its previous ruling and granted the
government's motion to dismiss. Relying on McDaniel, supra,
inter alia, the court held that Miller's FTCA suit for the
intentional infliction of emotional distress was preempted by
the FECA and that any other claims that might be read into
Miller's complaint were barred by the CSRA.10 This appeal
followed.
II.
We review the district court's dismissal for lack of
subject matter jurisdiction de novo, mindful that Miller, as
the party invoking federal jurisdiction, has the burden of
proving its existence. See Murphy v. United States, 45 F.3d
520, 522 (1st Cir.), cert. denied, 63 U.S.L.W. 3800 (U.S.
June 19, 1995). He has failed to do so. Miller stresses on
appeal that he seeks to recover for the intentional
infliction of emotional distress in the handling of his
workers' compensation claim. But it is clear that Miller
368495 (E.D. Pa. Dec. 4, 1992), aff'd, 6 F.3d 778 (3d Cir.
1993)(Table), as well as numerous decisions of the Employment
Compensation Appeals Board (ECAB) which indicated that the
FECA can provide relief for claims of emotional or mental
injury.
10. The court did not reach the government's arguments that
Miller failed to satisfy the FTCA's presentment requirements.
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never presented this claim to either the Postal Service or
the OWCP within two years of the denial of his FECA claim.
Rather, Miller's administrative FTCA claim focused on the
mental injuries he allegedly suffered as a result of his work
place atmosphere. Miller did not allege or describe anything
approaching outrageous conduct in the handling of his
workers' compensation claim. It is well settled that a
plaintiff's FTCA claim will be "forever barred" absent the
filing of a timely administrative claim with the appropriate
federal agency. See, e.g., Gonzalez-Bernal v. United States,
907 F.2d 246, 248 (1st Cir. 1990). As Miller failed to file
a timely administrative FTCA claim for the intentional
infliction of emotional distress in the handling of his
workers' compensation case, this claim is forever barred.
Miller does not press on appeal the alternative basis
for relief that he argued below, i.e., that he suffered the
intentional infliction of emotional distress as a result of
his former postmaster's conduct. Accordingly, this claim has
been waived. See United States v. Zannino, 895 F.2d 1, 17
(1st Cir.), cert. denied, 494 U.S. 1092 (1990). Even if it
were otherwise, this claim also fails for the lack of timely
presentment. It is undisputed that Miller first became aware
that his depression was work-related on February 12, 1989.
He therefore had two years from that date, or until February
12, 1991, to file his administrative FTCA for the intentional
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infliction of emotional distress by his former postmaster.
Miller did not file such a claim until October 8, 1991. As
the administrative FTCA claim was filed too late, this claim
is also barred.
We note that whether the FECA covers emotional injuries
and, even if it does, whether Miller's FTCA action is barred
despite the fact that he was not paid FECA benefits, are
novel issues in this circuit. We recognize that cases such
as McDaniel, Tarver, and Cardwell, supra, support affirmative
answers to both questions. On the other hand, there is a
considerable body of caselaw which indicates that the FECA
does not apply to emotional injuries. See Sheehan and n. 7,
supra. We find it unnecessary to take a position on these
important issues - which have not been well briefed by
Miller.11 It is apparent that Miller's suit is barred
under the FTCA. We are free to affirm on any independently
sufficient ground made manifest by the record. See, e.g.,
Garside v. Osco Drug, Inc., 895 F.2d 46, 49 (1st Cir. 1990).
In view of our disposition, we need not address the
government's contentions that the CSRA also bars Miller's
11. Rather, Miller argues that Martin v. Travelers Ins. Co.,
497 F.2d 329 (1st Cir. 1979), authorizes him to sue under the
FTCA for the bad faith processing of his workers'
compensation claim, and that Burke v. United States, 644 F.
Supp. 566 (E.D. La. 1986), also authorizes him to maintain
this suit because he was denied FECA benefits. Neither case
stands for the proposition for which Miller cites it.
Moreover, the language that Miller purports to quote from
Martin appears nowhere in that case.
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claims. Accordingly, the judgment of the district court is
affirmed.
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