IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 91-1547
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MERRILL BENTON,
Plaintiff-Appellant,
v.
UNITED STATES OF AMERICA and
THE UNITED STATES POSTAL SERVICE,
Defendants-Appellees.
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Appeal from the United States District Court
for the Southern District of Mississippi
_________________________________________________________________
(February 12, 1992)
Before POLITZ, Chief Judge, and KING and EMILIO M. GARZA, Circuit
Judges.
PER CURIAM:
Merrill Benton appeals the district court's grant of the
Government's motion to dismiss her complaint pursuant to Federal
Rule of Civil Procedure 12(b)(1) and (6). She contends that the
district court erred in concluding that (1) the exclusive remedy
provision of the Federal Employees Compensation Act barred her
recovery under the Federal Tort Claims Act for personal injuries,
and (2) the exclusive remedy provision of the Federal Tort Claims
Act barred her claim against the United States Postal Service.
For the reasons set forth below, we affirm the district court's
dismissal of the claim.
I.
On October 14, 1987, Benton was an employee of a federal
magistrate with offices in the U.S. Postal Service Building in
Biloxi, Mississippi. While on her way to lunch, she slipped and
fell on a stairway in that building, causing severe injury to her
back. On October 10, 1989, Benton filed an administrative claim
for her injuries under the Federal Employees Compensation Act
("FECA"). Her FECA benefits paid her employee compensation and
all of her medical expenses during her disability period.
After exhausting her administrative remedies, Benton filed
the complaint at issue on June 18, 1990, alleging that the
stairwell that she fell on was negligently maintained, and
seeking damages under the Federal Tort Claims Act ("FTCA") for
pain and suffering, future earnings, and general loss of
enjoyment of life. She brought the action against the Postal
Service, as both a co-employee and owner of the Postal Service
Building, and against the United States as a substitute defendant
for the Postal Service. In response, the defendants moved to
dismiss, arguing that the exclusive remedy provision of the FTCA
barred her claim against the Postal Service, and the exclusive
remedy provision of the FECA barred her personal injury claim
against the United States. The district court agreed that the
Postal Service was not a proper party to the suit, and that 28
U.S.C. § 2679(b)(1) precluded her claim against the United States
as substitute defendant for an unnamed co-employee.
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Consequently, the district court dismissed Benton's claims with
prejudice.
Benton challenges this dismissal on three grounds: (1) the
FECA exclusive remedy provision does not bar her claim under the
FTCA for injuries not compensable under the FECA; (2) the FECA
does not bar her claim against the United States because the
Postal Service was not her employer; and (3) the FECA's
prohibition against judicial review of the Secretary of Labor's
decisions to award individual benefits, 5 U.S.C. § 8128(b),
violates the Due Process Clause of the Fifth Amendment. We
address each of these challenges in turn.
II.
We review a dismissal pursuant to Federal Rule of Civil
Procedure 12(b)(6) under the same standard used by the district
court: a claim may not be dismissed unless it appears certain
that the plaintiff cannot prove any set of facts in support of
her claim which would entitle her to relief. Conley v. Gibson,
355 U.S. 41, 45-46 (1957). We employ the same standard in
reviewing dismissals for lack of subject matter jurisdiction
under Rule 12(b)(1). Hospital Bldg. Co. v. Rex Hosp. Trustees,
425 U.S. 738, 742 n.1 (1976). So, taking Benton's factual
allegations as true for the purposes of this appeal, we
independently review her claims to determine whether the district
court correctly dismissed it under Rule 12(b)(1) and (6).
First, Benton argues that because she did not receive
compensation under the FECA for the injuries claimed in the
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instant suit, the FECA exclusive remedy provision, 5 U.S.C. §
8116(c), does not bar her claim. This provision states:
The liability of the United States or an
instrumentality thereon . . . with respect to
the injury or death of an employee is
exclusive and instead of all other liability
of the United States or the instrumentality
to the employee, his legal representative,
spouse, dependents, next of kin, and any
other person otherwise entitled to recover
damages from the United States or
instrumentality because of the disability or
death in a direct judicial proceeding, in a
civil action, or in admiralty, or by an
administrative or judicial proceeding under a
workmen's compensation statute or under a
Federal tort liability statute. . . .
5 U.S.C. § 8116(c). In Grijalva v. United States, 781 F.2d 472
(5th Cir.), cert. denied, 479 U.S. 822 (1986), we held that this
provision bars an individual who has received an award of
compensation benefits under the FECA from suing the United States
for that injury under the FTCA. Id. at 474. Moreover, we found
that it also barred the claimant's daughter from recovering
damages for loss of her mother's support and services. Id. at
475. The FECA benefits received by the claimant were not
intended to compensate the daughter for any personal loss
resulting from her mother's injuries.1 Nonetheless, we adopted
the reasoning of the Sixth Circuit in Woerth v. United States,
714 F.2d 648, 650 (6th Cir. 1983), that the proper inquiry is
"whether the claim is 'with respect to the injury or death of an
1
Grijalva received disability compensation, reimbursement
of medical expenses, and continuation of her salary during her
disability. See Grijalva v. United States, 781 F.2d 472, 473
(5th Cir.), cert. denied, 479 U.S. 822 (1986).
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employee.'" 781 F.2d at 475; see also Sheehan v. United States,
896 F.2d 1168 (9th Cir. 1990) (reversing dismissal of an FTCA
claim based on negligent infliction of emotional distress not
compensated under the FECA because it was "divorced from any
claim of physical injury"). We agree with the district court
that the exclusive remedy provision of the FECA bars Benton's
claim for pain and suffering, future earnings, and general loss
of enjoyment of life -- injuries which derived from her physical
injury for which she was already compensated under the FECA.
Second, Benton contends that the FECA exclusive remedy
provision does not bar her suit against the United States in its
capacity as substitute defendant for the negligence of the Postal
Service, a co-employee. Benton relies on our holding in Allman
v. Hanley, 302 F.2d 559 (5th Cir. 1962), to support this
contention. In Allman, we held that absent specific statutory
command, workers' compensation statutes are not construed to
abrogate the common law rights of employees to bring negligence
suits against their fellow employees. Id. at 563. Accordingly,
we allowed the plaintiff's negligence action against a fellow
government employee to proceed notwithstanding the FECA. As the
district court observed, the Federal Employees Liability Reform
and Tort Compensation Act of 1988, codified at 28 U.S.C. §
2679(b)(1), precludes Benton from obtaining the same result.
This provision provides:
The remedy against the United States provided
by sections 1346(b) and 2672 of this title
for injury . . . arising or resulting from
the negligent or wrongful act or omission of
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any employee of the Government while acting
in the scope of his office or employment is
exclusive of any other civil action or
proceeding for monetary damages by reason of
the same subject matter against the employee
whose act or omission gave rise to the claim.
. . .
28 U.S.C. § 2679(b)(1). Because this specific statutory command
prohibits Benton's claim against the United States as substitute
defendant for an unnamed co-employee,2 we agree with the district
court that the claim should be dismissed.
Finally, Benton challenges the constitutionality of the
FECA's prohibition against judicial review of decisions
concerning the award of payments under the Act, 5 U.S.C. §
8128(b). She contends that this provision allows the Secretary
of Labor to put an arbitrary cap on the amount of coverage
available to a federal employee. Moreover, she asserts that
access to the FTCA is essential to ensure that federal employees
receive full compensation for their work-related injuries.
It is well settled that "Congress has the power, through a
'clear command of the statute,' to preclude review of policy
decisions. . . ." Paluca v. Secretary of Labor, 813 F.2d 524,
527 (1st Cir.) (quoting Barlow v. Collins, 397 U.S. 159, 167
(1970)), cert. denied, 484 U.S. 943 (1987); see also Rodrigues v.
Donovan, 769 F.2d 1344 (9th Cir. 1985) ("The structure of the
FECA and the language of section 8128(b) convince us that
2
See Noga v. United States, 411 F.2d 943 (9th Cir.), cert.
denied, 396 U.S. 841 (1969) (dismissing FTCA suit in which United
States was technical defendant in place of negligent federal
driver because Federal Drivers Act, 28 U.S.C. § 2679 (b)-(e)
(1964), rendered government employee driver immune from suit).
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Congress's intent was that the courts not be burdened by a flood
of small claims challenging the merits of compensation decisions,
. . . and that the Secretary should be left free to make the
policy choices associated with disability decisions.") (citations
omitted). A statute may prohibit review of adjudications made in
conformity with policy decisions, so long as it does not prohibit
review of constitutional questions. See Paluca, 813 F.2d at 526,
527 (confirming validity of § 8128(b)'s bar of judicial review
because it refers to statutory, and not constitutional, action)
(citing Johnson v. Robison, 415 U.S. 361, 366 (1974)). Because §
8128(b) prohibits review only of compensations decisions wholly
within the discretion of the Secretary of Labor, we find that
Benton's challenge lacks merit.
Benton also suggests that the exclusive remedy provision of
the FECA deprives federal employees of their equal protection and
due process rights because only federal employees are barred from
suing under the FTCA when they are injured by negligent acts of
the government. However, the FECA bar applies only to those
claims arising out of injuries incurred in the scope of
employment. The government has a legitimate reason for
maintaining a federal worker's compensation program in this
manner. In Gill v. United States, 641 F.2d 195 (5th Cir. 1981),
we observed that the FECA program is akin to state workers'
compensation programs. In Gill, we recognized that "[t]he heart
of the system is an implicit bargain: employees are granted surer
and more immediate relief in return for foregoing more expensive
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rewards outside the system." Id. at 197. Benton's
constitutional challenge provides no convincing reason for us to
question the legitimacy of the purpose underlying the FECA
program, as expressed in Gill. Therefore, we find this claim
without merit.
III.
For the foregoing reasons, we AFFIRM the district court's
dismissal of Benton's claim with prejudice.
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