FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SABELITA HAWKINS, an individual No. 19-35918
and resident of the State of
Washington, D.C. No.
Plaintiff-Appellant, 2:16-cv-00498-
JLR
v.
UNITED STATES OF AMERICA; OPINION
DEPARTMENT OF VETERANS
AFFAIRS; VA PUGET SOUND HEALTH
CARE SYSTEM; JOHN DOES, 1–10;
JANE DOES, 1–10,
Defendants-Appellees.
Appeal from the United States District Court
for the Western District of Washington
James L. Robart, District Judge, Presiding
Argued and Submitted June 8, 2021
Seattle, Washington
Filed September 28, 2021
Before: William A. Fletcher, Paul J. Watford, and
Daniel P. Collins, Circuit Judges.
Opinion by Judge Watford
2 HAWKINS V. UNITED STATES
SUMMARY *
Federal Tort Claims Act / Federal Employees’
Compensation Act
The panel reversed the district court’s judgment against
the plaintiff in her Federal Tort Claims Act (“FTCA”) action
alleging negligent medical care provided by Drs. Daniel
Doan and Carl Jensen at a hospital run by the Department of
Veterans Affairs (“VA”).
Plaintiff is a veteran of the U.S. Navy who suffered a
mental breakdown at work. She sought follow-up
psychiatric care at a VA hospital, where she allegedly
received negligent treatment from VA Drs. Doan and Jensen.
At the time she sought treatment, plaintiff was an employee
of the federal government, and she claimed her mental
breakdown in October 2011 was caused by years of
workplace bullying and harassment by her supervisor.
The Federal Employees’ Compensation Act (“FECA”)
establishes a workers’ compensation scheme that covers
most federal employees, and when an employee sustains an
injury covered by FECA, the exclusive remedy is to seek
compensation under FECA.
The panel held that the district court erred in dismissing
plaintiff’s FTCA action on the ground that it was barred by
the FECA. In this case, plaintiff was not suing the United
States for injuries caused by the workplace bullying and
harassment, but rather sought to recover damages for the
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
HAWKINS V. UNITED STATES 3
alleged malpractice of the individual doctors. The panel held
that Lance v. United States, 70 F.3d 1093, 1095 (9th Cir.
1995) (per curiam) (holding that “when Congress gave
federal employees the right to recover for an injury under
FECA, it took away their right to sue the government in tort
for medical malpractice arising out of the injury”), did not
control the outcome here because the injury for which
plaintiff sought medical treatment was not job-related.
Before filing this action, plaintiff pursued a claim for
benefits under FECA to recover compensation for the
workplace bullying and harassment. The agency that
administers FECA, the Office of Workers’ Compensation
Programs (OWCP), denied the claim, and concluded that
plaintiff’s injury was not sustained while in the performance
of duty, as required for recovery under FECA. The panel
concluded that under these facts, plaintiff could pursue her
claim for medical malpractice under the FTCA. Once the
OWCP concluded that plaintiff’s mental breakdown was
caused by events or circumstances outside the workplace,
she was free to seek recovery under the FTCA for alleged
malpractice of her VA doctors. The panel remanded for
further proceedings.
COUNSEL
Tuella O. Sykes (argued), Law Office of Tuella O. Sykes,
Seattle, Washington, for Plaintiff-Appellant.
Teal Luthy Miller (argued), Assistant United States
Attorney; Brian T. Moran, United States Attorney; United
States Attorney’s Office, Seattle, Washington; for
Defendants-Appellees.
4 HAWKINS V. UNITED STATES
OPINION
WATFORD, Circuit Judge:
Sabelita Hawkins is a veteran of the United States Navy
who suffered a mental breakdown at work in October 2011.
She was escorted from her workplace in handcuffs and
hospitalized for two days for observation. Shortly after her
release, she sought follow-up psychiatric care at a hospital
run by the Department of Veterans Affairs (VA). According
to Hawkins, the VA doctors who treated her, Drs. Daniel
Doan and Carl Jensen, negligently failed to prescribe
medication to address the severe insomnia and anxiety she
was experiencing, despite her complaints that the anti-
depressant she had been prescribed was not helping.
In December 2011, after getting little to no sleep for
several days, Hawkins suffered a “psychotic break” during
which she attacked and seriously wounded her mother with
a knife. Hawkins was criminally prosecuted for the attack
and spent a year in jail as a result of her conviction. She also
lost her job as a registered nurse and has been unable to
return to work. Hawkins alleges that the negligent medical
care provided by Drs. Doan and Jensen caused her to suffer
the December 2011 psychotic break.
After properly exhausting her administrative remedies,
Hawkins sued the United States under the Federal Tort
Claims Act (FTCA) for the alleged medical malpractice of
Drs. Doan and Jensen. The FTCA authorizes plaintiffs to
sue the United States for “personal injury or death caused by
the negligent or wrongful act or omission of any employee
of the Government while acting within the scope of his office
or employment, under circumstances where the United
States, if a private person, would be liable to the claimant in
accordance with the law of the place where the act or
HAWKINS V. UNITED STATES 5
omission occurred.” 28 U.S.C. § 1346(b)(1). The question
before us is whether Hawkins may sue under this provision.
If Hawkins had been a run-of-the-mill patient of
Drs. Doan and Jensen, this action would plainly have been
authorized under the FTCA. But two additional facts
complicate the analysis. At the time she sought treatment,
Hawkins was an employee of the federal government,
working as a registered nurse at the VA hospital in Seattle.
In addition, Hawkins claimed that her mental breakdown in
October 2011—the event that prompted her to seek medical
care from Drs. Doan and Jensen—was caused by years of
workplace bullying and harassment by her supervisor.
These facts complicate the analysis because they bring
into play another federal statute: the Federal Employees’
Compensation Act (FECA). FECA establishes a workers’
compensation scheme that covers most federal employees,
including in this instance Hawkins. See 5 U.S.C. § 8101(1)
(defining “employee”). With exceptions not relevant here,
FECA provides that the 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.”
§ 8102(a). When an employee sustains an injury covered by
FECA, her exclusive remedy is to seek compensation under
the Act; she may not sue the United States for damages under
any other provision of law, including the FTCA. § 8116(c).
As the Supreme Court has explained, FECA embodies “the
principal compromise . . . 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, 194 (1983). Thus, if Hawkins
6 HAWKINS V. UNITED STATES
had sued the United States under the FTCA to recover
damages for the workplace bullying and harassment she
allegedly endured, the district court would have been
required to dismiss the action as barred by FECA. See
Southwest Marine, Inc. v. Gizoni, 502 U.S. 81, 90 (1991);
Moe v. United States, 326 F.3d 1065, 1068 (9th Cir. 2003).
In this case, Hawkins is not suing the United States for
injuries caused by the workplace bullying and harassment.
She instead seeks to recover damages for the alleged medical
malpractice of Drs. Doan and Jensen. The government
argues that her malpractice claim is barred by FECA as well,
given our decision in Lance v. United States, 70 F.3d 1093
(9th Cir. 1995) (per curiam). The district court agreed, but
for the reasons that follow, we reach a different conclusion.
The plaintiff in Lance worked at a VA hospital and was
injured on the job. He received medical care for his injury
at the same VA hospital. He later filed an action under the
FTCA seeking damages for medical malpractice arising out
of the treatment he received. Id. at 1094–95. We held that
FECA barred his action. Relying on “traditional tort
causation principles,” we noted that “a plaintiff’s right to
recover for an injury generally includes the right to recover
for medical malpractice arising out of the injury.” Id. at 1095
(citing Restatement (Second) of Torts § 457 (1965)). Thus,
we concluded, “when Congress gave federal employees the
right to recover for an injury under FECA, it took away their
right to sue the government in tort for medical malpractice
arising out of the injury, as well as for the injury itself.” Id. 1
1
As authority for this rule, in addition to Lance, see Spinelli v. Goss,
446 F.3d 159, 161 (D.C. Cir. 2006); Noble v. United States, 216 F.3d
1229, 1235–36 (11th Cir. 2000); Votteler v. United States, 904 F.2d 128,
HAWKINS V. UNITED STATES 7
By its own terms, the rule we adopted in Lance applies
only when an employee seeks medical treatment for an
injury covered under FECA—that is, an injury “sustained
while in the performance of his duty.” 5 U.S.C. § 8102(a).
If the injury was not sustained while in the performance of
duty, but was instead caused by non-workplace-related
events, FECA’s exclusive-remedy provision does not apply.
For instance, if a federal employee broke his leg while on a
weekend hike, and the injury was negligently treated by a
federally employed doctor, the employee would not be
required (or permitted) to seek compensation under FECA
for injuries caused by the doctor’s malpractice. The
employee in that scenario would be situated no differently
from any other patient injured by the negligence of a
federally employed doctor, and would thus be free to sue the
United States for damages under the FTCA.
Our decision in Lance does not control the outcome here
because the injury for which Hawkins sought medical
treatment was not job-related. Before filing this action,
Hawkins pursued a claim for benefits under FECA to
recover compensation for the workplace bullying and
harassment mentioned above. The agency that administers
FECA, the Office of Workers’ Compensation Programs
(OWCP), denied her claim. The agency did not question that
Hawkins had sustained an injury that required medical care
from Drs. Doan and Jensen. But the OWCP found, after
reviewing the medical records and other evidence submitted
by Hawkins and her employer, that Hawkins had not
established that her injury was caused by workplace bullying
and harassment. In fact, the OWCP determined that the
workplace bullying and harassment alleged by Hawkins did
129–30 (2d Cir. 1990); McCall v. United States, 901 F.2d 548, 550–51
(6th Cir. 1990).
8 HAWKINS V. UNITED STATES
not occur. There is no suggestion in the record before us that
Hawkins pursued her FECA remedy half-heartedly or in bad
faith. Based on the evidence before it, the OWCP concluded
that Hawkins’s injury was not sustained while in the
performance of duty, as required for recovery under FECA.
On these facts, Hawkins may pursue her claim for
medical malpractice under the FTCA. To be sure, if the
OWCP had determined that the injury for which Hawkins
sought medical care was sustained during the course of her
employment, her FTCA action would have been barred by
FECA. See Lance, 70 F.3d at 1095. But once the agency
concluded that Hawkins’s October 2011 mental breakdown
was caused by events or circumstances outside the
workplace, she was free to seek recovery under the FTCA
for the alleged malpractice of her VA doctors—just as any
other patient who sought treatment for a non-workplace-
related injury would be.
The district court erred in dismissing Hawkins’s FTCA
action on the ground that it is barred by FECA. We reverse
the district court’s judgment and remand for further
proceedings.
REVERSED and REMANDED.