United States Court of Appeals
For the First Circuit
No. 06-1711
STEPHEN GILL; MICHELLE GILL,
Plaintiffs, Appellants,
v.
UNITED STATES OF AMERICA,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Mark L. Wolf, U.S. District Judge]
Before
Boudin, Chief Judge,
Selya and Lynch, Circuit Judges.
Wendy Sibbison on brief for appellants.
Jonathan H. Levy, Attorney, Appellate Staff, Civil Division,
Peter D. Keisler, Assistant Attorney General, Michael J. Sullivan,
United States Attorney, and Mark B. Stern, Attorney, Appellate
Staff, Civil Division, on brief for appellee.
December 1, 2006
LYNCH, Circuit Judge. This case involves an effort to
evade the presentment and exclusive jurisdiction provisions of the
Federal Employees Compensation Act (FECA), 5 U.S.C. §§ 8121, 8128,
and bring suit directly in federal court under the Federal Tort
Claims Act (FTCA), 28 U.S.C. §§ 1346(b), 2671-2680. Adhering to
this court's earlier decision in Bruni v. United States, 964 F.2d
76 (1st Cir. 1992), we affirm the district court's dismissal of the
FTCA claims.
I.
In 2002, Stephen Gill, an attorney, moved his family to
Florida to work for the United States Navy as a civilian attorney-
advisor for what he understood would be a two-year period.
Instead, he was given a series of short-term jobs and extensions,
starting only forty-five days into the job. The job ended in
January 2003, less than a year after it began. Gill and his wife
in February 2004 filed claims under the FTCA with the Navy,
alleging that they had suffered emotional distress but no physical
injuries. The Navy responded that Gill needed instead to file a
claim with the Secretary of Labor under the federal workers'
compensation act, FECA. He refused to do so1 and, after the six-
month FTCA waiting period, the Gills brought suit in district court
for negligent and intentional infliction of emotional distress and
1
The record indicates that Gill failed to file a FECA
claim within the three-year period provided by 5 U.S.C. § 8122(a).
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loss of consortium, service, and marital society, seeking over $1
million in damages.
Relying on our decision in Bruni, the district court
dismissed the action. On appeal, the Gills make two arguments
attempting to distinguish Bruni. First, they argue that Gill was
an independent contractor and not a federal employee for FECA
purposes, and that this issue of status is for the court to
determine. Their second argument is that the FTCA is the
appropriate vehicle for claims for emotional damages absent
physical injuries. We reject both arguments.
II.
We review de novo the district court's ultimate legal
conclusion on a motion to dismiss for lack of jurisdiction.
Valentin v. Hosp. Bella Vista, 254 F.3d 358, 365 (1st Cir. 2001).
We review for clear error the district court's findings of fact and
its conclusions regarding mixed questions of law and fact. Id.
FECA is a federal workers' compensation scheme designed
to provide redress for work-related injuries. The Act provides
that "[t]he United States shall pay 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."2 5 U.S.C. § 8102(a).
2
There are exceptions to coverage if the injury or death
is "(1) caused by willful misconduct of the employee; (2) caused by
the employee's intention to bring about the injury or death of
-3-
Liability under FECA is "exclusive and instead of all
other liability of the United States . . . to the employee, his
legal representative, spouse, dependents, next of kin, and any
other person otherwise entitled to recover damages." Id.
§ 8116(c). The Act specifically excludes liability "under a
Federal tort liability statute." Id. As the Supreme Court has
explained:
FECA's exclusive liability provision . . . was
designed to protect the Government from suits
under statutes, such as the Federal Tort
Claims Act, that had been enacted to waive the
Government's sovereign immunity. In enacting
this provision, Congress adopted the principal
compromise -- the "quid pro quo" -- commonly
found in workers' compensation legislation:
employees are guaranteed the right to receive
immediate, fixed benefits, regardless of fault
and without need for litigation, but in return
they lose the right to sue the Government.
Lockheed Aircraft Corp. v. United States, 460 U.S. 190, 193-94
(1983).
Most importantly, the Act provides that "[t]he Secretary
of Labor shall administer, and decide all questions arising under,
[FECA]." 5 U.S.C. § 8145 (emphasis added). Further, the Act
states that
[t]he action of the Secretary or his designee
in allowing or denying a payment under this
subchapter is --
himself or of another; or (3) proximately caused by the
intoxication of the injured employee." 5 U.S.C. § 8102(a).
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(1) final and conclusive for all purposes and
with respect to all questions of law and fact;
and
(2) not subject to review by another official
of the United States or by a court by mandamus
or otherwise.
Id. § 8128(b) (emphasis added). "FECA contains an 'unambiguous and
comprehensive' provision barring any judicial review of the
Secretary of Labor's determination of FECA coverage." Sw. Marine,
Inc. v. Gizoni, 502 U.S. 81, 90 (1991) (quoting Lindahl v. Office
of Pers. Mgmt., 470 U.S. 768, 780 & n.13 (1985)).
Accordingly, in Bruni this court held that a federal
employee who brings tort claims against the United States "must
first seek and be denied relief under the FECA unless his/her
injuries do not present a substantial question of compensability
under [FECA]." 964 F.2d at 79. We held that "[a] substantial
question exists unless it is certain that the Secretary would not
find coverage." Id. We also stated that "[i]n determining . . .
whether there is a substantial question of compensability under
FECA, we must consider the totality of the circumstances." Id.
The Gills argue that Bruni is not concerned with either
the question whether a plaintiff is a federal employee or the
question whether a particular type of injury is compensable under
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FECA, and that these are questions for the courts, not the
Secretary of Labor, to decide.3
In Bruni, there was no dispute whether the injured party
had been a federal employee or an independent contractor; rather,
the question was whether the injury was sustained while in the
performance of the job. Id. at 79. Similarly, there was no issue
in Bruni as to whether emotional distress claims are covered by
FECA. Id. But these distinctions between Bruni and the instant
case do not make any difference to the jurisdictional inquiry. The
nature of the coverage determination made by the Secretary does not
matter. The test when the injured party fails to seek relief under
FECA is the same: whether "it is certain that the Secretary would
not find coverage." Id.
With respect to their emotional distress argument, the
Gills rely on Sheehan v. United States, 896 F.2d 1168 (9th Cir.),
modified on other grounds, 917 F.2d 424 (9th Cir. 1990), to support
3
The Gills argue that employment status is not a
jurisdictional requirement for FTCA claims, and thus the district
court should have resolved this issue in their favor under Rule
12(b)(6). This argument has no merit. Gill's status as either a
federal employee or an independent contractor is pertinent to
whether it is certain the Secretary would find coverage under FECA.
This, in turn, relates to whether or not the district court had
subject matter jurisdiction over the Gills' FTCA claims. The
government's motion to dismiss was properly considered under Rule
12(b)(1). See Muniz-Rivera v. United States, 326 F.3d 8, 11 (1st
Cir. 2003); see also Deniz v. Municipality of Guaynabo, 285 F.3d
142, 149 (1st Cir. 2002) ("When a court is confronted with motions
to dismiss under both Rules 12(b)(1) and 12(b)(6), it ordinarily
ought to decide the former before broaching the latter.").
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a distinction between questions concerning "coverage in and of
itself"4 and questions concerning FECA's "scope of coverage." Id.
at 1174. The Gills argue that whether a claim is within the scope
of FECA is a question that must be answered by federal courts,
because it is one of jurisdiction. The Gills suggest that scope of
coverage questions must be answered by federal courts regardless of
whether there is a substantial question of FECA coverage.
First, Sheehan is inapposite. In Sheehan, the Secretary
of Labor had already concluded that Sheehan's non-physical injuries
were covered by FECA.5 Id. at 1173. That case, unlike this one,
did not concern whether a claim must be presented first to the
Secretary.
Second, even if Sheehan stood for the proposition that a
court, instead of the Secretary of Labor, may make an initial
determination of uncertain coverage questions, we would reject
Sheehan. That reasoning is inconsistent with both Bruni and the
4
The Ninth Circuit noted that questions concerning
"coverage in and of itself" address issues such as whether an
injury occurred while an employee was at work and whether an injury
occurred while plaintiff was an employee. Sheehan, 917 F.2d at
424.
5
The Ninth Circuit nonetheless ruled that the Act
authorizes compensation only for physical harm, and not for
"emotional distress . . . divorced from any claim of physical
harm." Sheehan, 896 F.2d at 1174. The court stated that because
Sheehan's type of claim was not within FECA's scope of coverage,
FECA was not her exclusive remedy, and the district court should
not have dismissed Sheehan's FTCA claim for negligent infliction of
emotional distress. Id. at 1173-74.
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statutory assignment of these questions to the Secretary. Bruni
did not parse different types of coverage questions for the
Secretary, and its logic prohibits such parsing. Federal courts
have subject matter jurisdiction over federal tort claims only when
"it is certain that the Secretary would not find coverage [under
the Act]." Bruni, 964 F.2d at 79. Further, the Ninth Circuit
appears to have rejected the Gills' reading of Sheehan. In a later
case, the court confined Sheehan to cases where the plaintiff's
claim "was not colorable under FECA as a matter of law." Figueroa
v. United States, 7 F.3d 1405, 1408 (9th Cir. 1993).
Bruni accords with the rule in other circuits. Every
circuit addressing the issue has held that federal courts lack
jurisdiction to decide uncertain questions of FECA coverage. Those
questions are left to the Secretary. See Tippetts v. United
States, 308 F.3d 1091, 1094 (10th Cir. 2002) (holding that where
there is a substantial question of coverage, the district court
lacks jurisdiction pending a determination by the Secretary); Noble
v. United States, 216 F.3d 1229, 1235 (11th Cir. 2000) (noting that
FTCA action cannot be considered when there is a substantial
question as to FECA coverage); White v. United States, 143 F.3d
232, 234 (5th Cir. 1998) ("Only if we are certain that the
Secretary of Labor would conclude that the employee's injuries do
not present a substantial question of coverage under FECA may we
entertain the employee's FTCA claim without the employee first
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submitting the claim to the Secretary of Labor."); Figueroa, 7 F.3d
at 1408 (stating that Sheehan did not alter "the general rule that
when a claim arguably falls under FECA, the question of coverage
should be resolved by the Secretary"); Heilman v. United States,
731 F.2d 1104, 1110 (3d Cir. 1984) (stating that "where there is a
'substantial question' regarding FECA coverage, the federal courts
will not entertain a claim"); Wallace v. United States, 669 F.2d
947, 951-52 (4th Cir. 1982) (adopting a rule that FTCA action
cannot be filed unless plaintiff's injuries are "'clearly not
compensable' under FECA").
On the record in this case, it is not certain that the
Secretary would find that Gill was not a federal employee but was
an independent contractor.6 Second, it is not certain that the
Secretary would deny Gill's claim for emotional distress damages on
the ground that such damages are unavailable under FECA.7
The United States submitted a declaration and memorandum
of the Deputy Director for Federal Employees' Compensation, who had
6
Plaintiffs did not argue that Gill was an independent
contractor before the district court, but make this argument on
appeal. The argument is waived, see Grenier v. Cyanamid Plastics,
Inc., 70 F.3d 667, 678 (1st Cir. 1995), and, in any event, must
first be presented to the Secretary of Labor.
7
To the extent Ninth Circuit law may state that claims of
emotional distress unaccompanied by physical injury do not present
a substantial question of compensability under FECA, see Moe v.
United States, 326 F.3d 1065, 1068 & n.11 (9th Cir. 2003);
Figueroa, 7 F.3d at 1408; Sheehan, 896 F.2d at 1174, we note that
this position is contrary to the great weight of authority
discussed hereafter in this decision.
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responsibility for administering FECA, stating that he had reviewed
the Gills' complaint and had concluded, assuming that all factual
statements in the complaint were true, that there was "a
significant possibility of coverage under the FECA for an emotional
condition sustained by . . . Gill allegedly related to actions of
the Department of the Navy . . . with respect to his position . . .
during the period February 2002 through January 2003." The Deputy
Director cited numerous decisions by the Employees' Compensation
Appeals Board to explain how he arrived at his conclusion.
On the second point, the federal courts do not have FTCA
jurisdiction over plaintiffs' emotional distress claims because it
is not certain the Secretary would find that FECA denies coverage
for such claims. Indeed, the Gills concede that the Secretary of
Labor has construed FECA to encompass work-related emotional
distress, without regard to physical injury. See, e.g., In re
Harris, 42 Empl. Comp. App. Bd. 923, 928 (1991); In re Cutler, 28
Empl. Comp. App. Bd. 125, 129-30 (1976); see also Spinelli v. Goss,
446 F.3d 159, 160-61 (D.C. Cir. 2006) (stating that the Secretary's
decision that FECA covered plaintiff's emotional and psychological
injuries "settles the matter," and holding that dismissal was
appropriate); Bennett v. Barnett, 210 F.3d 272, 277 (5th Cir. 2000)
(noting that the Secretary took the position that plaintiff's
emotional distress claim was covered by FECA, and holding that the
district court did not have jurisdiction to decide FTCA claim for
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the same injury); Farley v. United States, 162 F.3d 613, 616 (10th
Cir. 1998) (concluding that there was a substantial question of
compensability under FECA based on the recognition that the
Secretary has in some instances found FECA coverage for emotional
distress claims); McDaniel v. United States, 970 F.2d 194, 195, 197
(6th Cir. 1992) (acknowledging the Secretary's determination that
FECA covered plaintiff's "disabling emotional condition," and
affirming dismissal of FTCA action for lack of jurisdiction).
We affirm the district court's dismissal of plaintiffs'
FTCA action for lack of subject matter jurisdiction. Costs are
awarded to the United States.
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Gill v. United States
Court: Court of Appeals for the First Circuit
Date filed: 2006-12-01
Citations: 471 F.3d 204
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