Opinion
Civil Action No. 00-0336-RV-S
February 17, 2001
ORDER
Presently before the court is the government's "Motion to Dismiss Pursuant to Fed.R.Civ.P. 12(b)(1)" (Doc. 13), in which the government moves to dismiss the complaint against it on the grounds that this court lacks jurisdiction to hear both claims at this time. Plaintiff Roger Young's First Amended Complaint (Doc. 12) alleges two causes of action. Plaintiff's first claim is a medical negligence claim under the Federal Tort Claims Act ("FTCA"), in which he claims that federal employees failed to detect prostate cancer during three separate employment physicals in 1995, 1996, and 1997. Plaintiff's second claim alleges improper calculations regarding his accrued retirement benefits. For the reasons put forth below, the government's motion to dismiss is due to be granted.
In addition to the defendant's motion, and the plaintiff's first amended complaint (Doc. 12), the court has considered "Plaintiffs' Response to Defendant's Rule 12(b)(1) Motion to Dismiss" (Doc. 16).
I. MOTION TO DISMISS STANDARD
A court may dismiss a complaint only where it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations. See Wright v. Newsome, 795 F.2d 964, 967 (11th Cir. 1986). The court must accept as true all well-pleaded factual allegations and must view them in the light most favorable to the nonmoving party. See GJR Investments, Inc. v. County of Escambia, 132 F.3d 1359, 1367 (11th Cir. 1998).
II. BACKGROUND
The court notes that since government's motion to dismiss is pursuant to Fed.R.Civ.P. 12(b)(1) rather than 12(b)(6), the court need not treat it as a motion for summary judgment in order to consider factual evidence outside of the pleadings. Further, the plaintiff has not contested the accuracy of any of the factual evidence which has been put forth by the government in support of its motion to dismiss.
The plaintiff performed military service for the United States from June 12, 1963 to November 16, 1976. Plaintiff was employed as a police officer for the United States Navy from November 29, 1993 until December 15, 1997. As part of his employment, plaintiff was required to undergo annual physical examinations. Three such physical examinations were conducted on March 7, 1995, June 20, 1996, and June 9, 1997, by doctors working for the Pascagoula Naval Station, Medical Branch. In July of 1997, plaintiff went to the Pensacola Naval Hospital for hypertension. At this time, blood tests were conducted which revealed a high "PSA" level, ultimately leading to a finding that plaintiff had prostate cancer. Plaintiff contends that as a result of the untimely diagnosis of his condition, he has suffered physical injury and emotional distress.
During his employment by the United States Navy, plaintiff was advised that he should pay $1,799.86 in order to receive twelve years and six months credit for his military service towards his retirement credit. Plaintiff paid this amount in 1995, in order to attain these benefits. Plaintiff maintains that not only did he not receive any additional benefits from this payment, but a recalculation of his retirement benefits resulted in a loss of credit. While the exact allegations and nature of plaintiff's second claim are not entirely clear, he ultimately maintains that he has not received the retirement credit to which he is due.
III. DISCUSSION
A. Plaintiff's First Claim — FTCA Medical Negligence/Malpractice
The government maintains that the court lacks jurisdiction over the plaintiff's FTCA claim, because the exclusive remedy for his alleged injury is under the Federal Employees Compensation Act ("FECA"). 5 U.S.C. § 8101, et seq.
Plaintiff recognizes the implications of FECA on his FTCA claim, and requests in the alternative in both his First Amended Complaint and his Response to the government's Motion to Dismiss, that this court stay this claim pending a determination by the Secretary of Labor.
FECA was enacted to provide benefits to federal employees injured or killed in the course of performing their duties. See 5 U.S.C. § 8102(a). FECA was amended by Congress in 1949 expressly to provide that it is a federal employee's exclusive remedy against the federal government for on-the-job injuries. See 5 U.S.C. § 8116(c);Noble v. United States, 216 F.3d 1229, 1234 (11th Cir. 2000). Specifically, FECA provides that:
[t]he liability of the United States . . . under this subchapter . . . with respect to the injury . . . of an employee is exclusive and instead of all other liability of the United States . . . to the employee . . . [or] any other person otherwise entitled to recover damages from the United States . . . because of the injury . . . 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).
Title 5, U.S.C. § 8116(c) 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." Lockheed Aircraft Corp. v. United States, 460 U.S. 190, 193-94 (1983). "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."Id. at 194.
The Secretary of Labor is authorized to administer and decide all questions arising under FECA. See 5 U.S.C. § 8145, 8149. Additionally, "an injured employee may not bring an action against the United States under FTCA when there is a `substantial question as to whether or not the injury occurred in the performance of the employee's duty'" so as to bring it within the coverage of FECA. Avasthi v. United States, 608 F.2d 1059, 1060 (quoting Bailey v. United States, 451 F.2d 963, 965 (5th Cir. 1971)). Where a federal employee brings an action against the government in a district court and there is a substantial question as to whether FECA provides the employee's exclusive remedy for the alleged injury, the district court must hold the action in abeyance pending a coverage determination by the Secretary. See Noble, 216 F.3d at 1235. In fact, to avoid having to send a case to the Secretary of Labor for a determination under FECA, the district court must find as a matter of law that, viewing all of the circumstances, the Secretary could not find FECA coverage of the alleged injury. See id. at 1235 (citation omitted).
If the Secretary finds that there is no FECA coverage for the alleged injury, a plaintiff is then free to proceed under the FTCA. See id. However, if the Secretary determines that the injury is within FECA's coverage, then a federal court generally lacks jurisdiction to review the Secretary's decision to award or deny compensation for the injury. See 5 U.S.C. § 8128(b).
The statutory test for FECA coverage is whether or not the employee was injured "while in the performance of his duty." 5 U.S.C. § 8102(a). Therefore, this court must determine whether the injury which plaintiff has suffered arose from the performance of his employment duties. Here, the injury that the plaintiff has allegedly received was not the prostate cancer itself, but the failure of the government employed doctors to diagnose it during any of the three annual physical exams performed on the plaintiff from 1995 to 1997.
As the government has pointed out, there are two analogous district court cases also involving alleged failures to diagnose medical conditions during annual employment medical examinations. See Daniels v. United States, 916 F. Supp. 1125 (D. Kan. 1996); Soltysiak v. United States, No. 90 C 6775, 1991 WL 55750 (N.D. Ill. April 8, 1991). Both of these courts found that as a result of the mandatory nature of the physical examinations, the alleged misdiagnoses did arise from the plaintiff's performance of a duty. See id. Here, the physical examinations which give rise to plaintiff's negligence claim were required as part of his continued employment pursuant to 5 C.F.R. § 339.301. Therefore, this court cannot find as a matter of law that the Secretary of Labor could not find this to be a colorable claim for FECA coverage viewing all of the circumstances. See Noble, 216 F.3d at 1235. Therefore, the court must stay this plaintiff's first claim pending a decision from the Secretary of Labor regarding coverage under FECA. See id.
B. Plaintiff's Second Claim — FERS Retirement Credits
The government asserts that this court also lacks jurisdiction over plaintiff's second claim. The government argues that claims for civil service retirement benefits can only be brought in the United States Court of Appeals for the Federal Circuit after administrative review by the Office of Personnel Management ("OPM") and the Merit System Protection Board ("MSPB").
Retirement benefits for federal employees are determined pursuant to either the Civil Service Retirement System ("CSRS"), 5 U.S.C. § 8331-8351, or the Federal Employees' Retirement System ("FERS"), 5 U.S.C. § 8401-8479. Both systems create a three-tiered review process for resolving claims relating to retirement benefits. See Ayrault v. Pena, 60 F.3d 346, 348 (7th Cir. 1995). First, the OPM has been designated to administer the CSRS and FERS, and to adjudicate all claims arising under the retirement system. See 5 U.S.C. § 8347(a)-(b), 8461(b)-(c). Second, administrative actions and orders from the OPM which affect "the rights or interests of an individual," are appealable to the MSPB. See 5 U.S.C. § 8347(d)(1), § 8461(e)(1). Third, except in discrimination cases, an employee who seeks to challenge a final order or decision of the MSPB can file a petition for review in the United States Court of Appeals for the Federal Circuit, which has exclusive jurisdiction over such appeals. See 5 U.S.C. § 7703(b)(1); 28 U.S.C. § 1295(a)(9); Lindahl v. Office of Personnel Management, 470 U.S. 768, 774 (1985) (finding that "the Federal Circuit now has exclusive jurisdiction `of an appeal from a final order or final decision' of the Board pursuant to, inter alia, 5 U.S.C. § 7703(b)(1), 28 U.S.C. § 1295(a)(9)"); United States v. Fausto, 484 U.S. 439 (1988).
The United States Supreme Court has explained that "[a] leading purpose of the [Civil Service Reform Act] was to replace the haphazard arrangements for administrative and judicial review of personnel action."Fausto, 484 U.S. at 444. The CSRA "replaced the patchwork system with an integrated scheme of administrative and judicial review, designed to balance the legitimate interests of the various categories of federal employees with the needs of sound and efficient administration." Id. at 445.
While it is not entirely clear whether plaintiff is seeking a refund of his military deposit, or a greater inclusion of his military service in the computation of his FERS annuity, or both, it is clear that this is an action for retirement I disability benefits under FERS. While there is contradictory evidence put forth by both parties regarding whether or not plaintiff's claims have been exhausted administratively, it is of no consequence, because judicial review of federal personnel actions of this type is vested exclusively in the Federal Circuit. See 5 U.S.C. § 7703(b)(1); 28 U.S.C. § 1295(a)(9); Lindahl v. Office of Personnel Management, 470 U.S. at 774. Therefore this court lacks jurisdiction over the plaintiff's second claim.
V. CONCLUSION
For the foregoing reasons, it is ORDERED that the government's "Motion to Dismiss Pursuant to Fed.R.Civ.P." (Doc. 13) is GRANTED. Plaintiff's first claim of medical negligence/malpractice under the FTCA is hereby STAYED until the plaintiff has exhausted administrative procedures for remedy under the Federal Employees Compensation Act. Plaintiff's second claim for retirement benefits is DISMISSED WITHOUT PREJUDICE for lack of jurisdiction pursuant to Fed.R.Civ.P. 12(b)(1). The CLERK is DIRECTED to CLOSE THIS CASE FOR STATISTICAL PURPOSES ONLY.