United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 3, 2006 Decided May 5, 2006
No. 05-5270
GIANPAOLO SPINELLI,
APPELLEE
v.
PORTER J. GOSS, DIRECTOR OF THE CENTRAL INTELLIGENCE
AGENCY, ET AL.,
APPELLANTS
Appeal from the United States District Court
for the District of Columbia
(No. 00cv00408)
Jonathan H. Levy, Attorney, U.S. Department of Justice,
argued the cause for appellants. With him on the briefs were
Peter D. Keisler, Assistant Attorney General, Kenneth L.
Wainstein, U.S. Attorney, and Mark B. Stern, Attorney.
Roy W. Krieger argued the cause for appellee. With him on
the brief was Mark S. Zaid.
Before: RANDOLPH and TATEL, Circuit Judges, and
WILLIAMS, Senior Circuit Judge.
Opinion for the court filed by Circuit Judge RANDOLPH.
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RANDOLPH, Circuit Judge: This is an interlocutory appeal
from a district court order denying a motion to dismiss portions
of a complaint. The complaint alleged as follows. While on an
overseas assignment for the Central Intelligence Agency in
1993, Gianpaolo Spinelli suffered multiple gunshot wounds. He
received treatment at an Army hospital abroad and further
treatment upon his return to the United States. He then began
working for the CIA at a different foreign location. Three years
later Spinelli returned to the United States. A psychologist
diagnosed him as suffering from post-traumatic stress disorder
or “PTSD.” After a year of psychotherapy with a CIA-approved
private psychologist, Spinelli switched to a psychologist of his
own choosing, at whose urging he retired from the CIA in 1998.
Spinelli had filed a timely claim for his initial injuries with
the Department of Labor under the Federal Employees’
Compensation Act (FECA), 5 U.S.C. §§ 8101-8193, as a result
of which the federal government paid for his medical expenses
and awarded him $343,192.22 as compensation for his injuries.*
After he was diagnosed with PTSD, the government expanded
his FECA claim to include his treatment for this condition.
Spinelli filed an administrative claim under the Federal Tort
Claims Act, see 28 U.S.C. § 2672, seeking additional
compensation. The CIA denied the claim in December 1999.
Spinelli sued the CIA and its Director. He sought damages
for the psychological injury stemming from the shooting and for
*
A declaration by the Deputy Director for Federal Employees
Compensation provided the details concerning the Department of
Labor’s treatment of Spinelli’s claim and the Secretary’s inclusion of
his PTSD claim under FECA. This declaration was properly before
the court on a motion to dismiss for lack of subject-matter jurisdiction.
See Jerome Stevens Pharms., Inc. v. FDA, 402 F.3d 1249, 1253 (D.C.
Cir. 2005).
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the CIA’s allegedly negligent treatment of him, which he
claimed aggravated his emotional disorder. The complaint
rested on several statutes, only two of which are the subject of
this appeal: the Tort Claims Act and the Rehabilitation Act, 29
U.S.C. §§ 701-796l. The government moved to dismiss both of
these claims, the Tort Claims Act claim on the ground that
FECA provides the exclusive remedy for work-related injuries,
and the Rehabilitation Act claim on the ground that Spinelli
failed to exhaust his administrative remedy. After denying the
motion, the district court granted the government’s motion for
certification of an interlocutory appeal without identifying “in
writing” – as the statute requires – the “controlling question[s]
of law as to which there is substantial ground for difference of
opinion” and without stating why “an immediate appeal from
the order may materially advance the ultimate termination of the
litigation,” 28 U.S.C. § 1292(b). A motions panel of this court
nevertheless accepted the unopposed appeal because it could
“discern the district court’s intentions.” Spinelli v. Goss, No.
05-8004 (D.C. Cir. May 6, 2005) (order approving interlocutory
appeal) (citing Sargent v. Paine Webber Jackson & Curtis, Inc.,
882 F.2d 529, 531 (D.C. Cir. 1989)).
The district court should have dismissed both of Spinelli’s
claims. As to the Tort Claims Act claim, the Supreme Court
held in Southwest Marine, Inc. v. Gizoni, 502 U.S. 81 (1991),
that “FECA contains an ‘unambiguous and comprehensive’
provision barring any judicial review of the Secretary of Labor’s
determination of FECA coverage. Consequently, the courts
have no jurisdiction over [Tort Claims Act] claims where the
Secretary determines that FECA applies.” Id. at 90 (quoting
Lindahl v. Office of Pers. Mgmt., 470 U.S. 768, 780 & n.13
(1985)). Here, the Secretary determined that Spinelli’s PTSD
claim was covered by FECA. It is of no moment whether, as
Spinelli argues, “the state of the law concerning FECA coverage
for emotional and psychological injuries sustained by Federal
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employees remains unsettled.” Br. for Appellee 5. The
Secretary’s decision in this case settles the matter. That decision
is “final and conclusive for all purposes with respect to all
questions of law and fact” and “not subject to review . . . by a
court.” 5 U.S.C. § 8128(b)(1), (2). It is also irrelevant that, as
Spinelli alleges, he has received no compensation for his PTSD.
He has received reimbursement for the medical expenses
relating to his PTSD because the Secretary determined that
FECA covered his condition. That determination is the
conclusive consideration.
Relying on Wright v. United States, 717 F.2d 254 (6th Cir.
1983), Spinelli tries to distinguish the injury underlying his Tort
Claims Act claim from the job-related injury for which the
Secretary awarded FECA benefits on the basis of the “dual
capacity doctrine.” Id. at 259. In Wright, the Sixth Circuit
suggested that if the employer provides negligent treatment for
a work-related injury, a worker’s compensation program will not
bar the employee from recovering for the aggravated injury in
a tort action against the employer. Id.; see also Richard A.
Epstein, The Historical Origins and Economic Structure of
Workers’ Compensation Law, 16 GA. L. REV. 775, 809-13
(1982) (criticizing the doctrine’s expansion). The theory rests
on the idea that the employee receives treatment as a patient, not
as an employee, and that the employer, in providing treatment,
acts in a different capacity than as an employer. Wright, 717
F.2d at 259-60. Other circuits have rejected Wright’s dual-
capacity theory. See Elman v. United States, 173 F.3d 486, 490-
92 (3d Cir. 1999); Lance v. United States, 70 F.3d 1093, 1095
(9th Cir. 1995) (per curiam); Votteler v. United States, 904 F.2d
128, 130-31 (2d Cir. 1990); Wilder v. United States, 873 F.2d
285, 289 (11th Cir. 1989) (per curiam); Vilanova v. United
States, 851 F.2d 1, 7 & n.24 (1st Cir. 1988). The Sixth Circuit
itself now holds that FECA bars employees from suing under the
Tort Claims Act for “additional injuries caused by negligent
5
treatment of the first injury.” McCall v. United States, 901 F.2d
548, 550 (6th Cir. 1990); see id. at 551. This result follows from
the language of 5 U.S.C. § 8116(c) and from traditional tort
theory. Section 8116(c) states that FECA provides the exclusive
“liability of the United States . . . because of the injury.”
Negligence or malpractice liability “arising out of an injury is
liability ‘because of the injury.’” Lance, 70 F.3d at 1095
(quoting § 8116(c)). At common law, “the initial wrong is the
cause of all that follows, even when there has intervened a
succeeding negligent act that produced the aggravation.”
Balancio v. United States, 267 F.2d 135, 137 (2d Cir. 1959) (L.
Hand, J.). FECA, Judge Hand ruled in Balancio, was “a
substitute for the whole of the claim that, but for it, would have
arisen under the Tort Claims Act.” Id. It follows that the
district court lacked jurisdiction over Spinelli’s Tort Claims Act
claim.
The district court also should have dismissed Spinelli’s
Rehabilitation Act claim for lack of jurisdiction on the ground
that he failed to exhaust his administrative remedy. The Act
limits judicial review to employees “aggrieved by the final
disposition” of their administrative “complaint,” 29 U.S.C.
§ 794a(a)(1); see Taylor v. Small, 350 F.3d 1286, 1292 (D.C.
Cir. 2003); Judd v. Billington, 863 F.2d 103, 105 (D.C. Cir.
1988), thereby mandating administrative exhaustion. Spinelli
never filed an administrative complaint. He says it would have
been futile to do so because the CIA did not provide him and his
counsel with his medical records. But a court may “not read
futility or other exceptions into statutory exhaustion
requirements where Congress has provided otherwise.” Booth
v. Churner, 532 U.S. 731, 741 n.6 (2001) (citing McCarthy v.
Madigan, 503 U.S. 140, 144 (1992)). Such “jurisdictional
exhaustion,” as we have called it, may not be excused.
Avocados Plus Inc. v. Veneman, 370 F.3d 1243, 1247 (D.C. Cir.
2004) (internal quotation marks omitted). Here jurisdiction
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depended on the “final disposition of [an administrative]
complaint.” 29 U.S.C. § 794a(a)(1). Since there was no
administrative complaint and thus no final disposition of one,
the district court lacked jurisdiction.
The case is remanded so that the district court may enter an
order dismissing Spinelli’s claims under the Tort Claims Act
and the Rehabilitation Act.
So ordered.