OZEROVA v. UNITED STATES OF AMERICA
OPINION. Signed by Judge William H. Walls on 11/2/2016. (seb)
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
UNITED STATES Of AMERICA.
Civ. No. 2:1 2-cv-069 12 (WHW) (CLW)
Walls, Senior District Judge
Defendant United States of America moves to dismiss an dismiss an action brought under
the federal Tort Claims Act (“FTCA”) by a federal employee, Plaintiff Olga Ozerova, for lack of
subject matter jurisdiction. Decided without oral argument under Fed. R. Civ. P. 78, the Court
finds that it lacks subject matter jurisdiction over this action and dismisses the Complaint.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff Olga Olzerova, a citizen of the State of New Jersey, was, at all relevant times, an
employee of the United States Postal Service. Compi., ECF No. 1
11. Defendant United
States of America oversees the United States Postal Service, a federal agency with a branch in
Edison, New Jersey where Plaintiff was employed. Id.
On March 21, 2011, at approximately 11:00 pm, Plaintiff tripped over an unpainted and
unmarked ramp in the parking lot of the United States Postal Service facility in Edison, New
She asserts that her trip and fall was a direct result of poor lighting and
conditions in the parking lot of the Postal Service facility. Id.
¶ 14. At the time of the accident,
Plaintiffs complaint incorrectly notes the location of the U.S. Postal Service facility as
Piscataway, New Jersey, it is in fact located in Edison, New Jersey.
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Plaintiff was employed as a mail handler at the Edison, New Jersey Postal Service facility.
Honkisz Deci., ECF No. 22-2
¶ 3. As part of her mail handling duties, she was required to pick
up mail from collection boxes located in front of the facility using a Postal Service issued key.
On the day of the incident, Plaintiff was scheduled to work from 2:00 pm to 10:30 pm.
¶ 3. Postal Service records show that she completed her shift at
10:32 pm. Id.
30, 2012, the Postal Service received a Notice of Claim on Standard Form 95 alleging that
Plaintiff Ozerova had tripped and fallen over a defective ramp at the Edison Postal Office facility
on March 21, 2012 at approximately 11pm. Id.
following the alleged trip and fall, the Plaintiff was absent from work on unscheduled
¶ 6. During this time, Plaintiffs husband appeared at the Edison, New Jersey Postal
Office facility with paperwork regarding Plaintiffs trip and fall. Plaintiffs husband stated that
Plaintiff had returned to the Postal Office facility after completing her shift in order to return the
Postal Service issued key she had forgotten to return during her shift. It was during this return
visit that the alleged injury occurred. Id.
Plaintiff filed this action on November 7, 2012. Compi., ECF No. 1. On August 13, 2013
this Court stayed discovery in this case, pending a decision by the Secretary of Labor, Office of
Workers Compensation Programs (“OWCP”), as to whether the federal Employees’
Compensation Act (“FECA”) applies to the Plaintiffs claim. Order, ECF No. 14. On June 27,
2014, OWCP issued a Notice of Decision denying Plaintiffs claim for workers’ compensation
on the basis of their finding that the claimed incident occurred after the Plaintiff had left work.
Notice of Decision, ECF No. 22-2 at 10. On May 31, 2016, OWCP issued a second Notice of
Decision, superseding its earlier decision of June 27, 2014. Id. at 18. OWCP’s second Notice of
Decision found that Plaintiff was engaged in “the performance of duty at the time of the
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employment incident” and that the incident had occurred on the property of the Employing
Agency [the U.S. Postal Service]. Therefore, any injury resulting from the March 21, 2012
incident would be covered under FECA. Id. at 21. Plaintiffs claim was nevertheless denied by
OWCP, because Plaintiff had failed to provide sufficient evidence to establish a sustained injury
as defined by the FECA. Id. at 22.
On August 4, 2016, the United States of America filed this motion, asking the Court to
dismiss the complaint for lack of subject matter jurisdiction under Fed. R. Civ. P. 12(b)(1).
Notice of Mot., ECF No. 22. Plaintiff declined to file an opposition to the United States’ motion.
STANDARD OF REVIEW
The Court may grant a motion to dismiss for lack of subject matter jurisdiction pursuant
to Fed. R. Civ. P. 1 2(b)( 1) based on the legal insufficiency of a claim. Kehr Packages, Inc. v.
fidelcor, Inc., 926 f.2d 1406, 1408 (3d Cir. 1991). Where a 12(b)(l) motion is predicated upon
the assertion that jurisdiction is improper because the facts of the case do not support the asserted
jurisdiction, it is considered to be a factual challenge. Constitution Party ofPa. v. Aichele, 757 F.
3d 347, 358 (3d Cir. 2014). In a factual challenge to the Court’s subject matter jurisdiction, no
presumption of truthfulness attaches to the allegations in the complaint and the Court may
consider matters outside the pleadings such as affidavits and other material properly before the
court. Anjetino v. New York Times Co., 200 f.3d 73, $7 (3d Cir. 1999). In such a challenge to the
Court’s subject matter jurisdiction, “the Court is free to weigh the evidence and satisfy itself
whether it has the power to hear the case.” Carpet Group Intern. v. Oriental Rug Importers
Ass’n, Inc., 227 f.3d 62,69 (3d Cir. 2000) (citing Mortensen v. firstFederal Savings & Loan
Ass ‘n, 549 F.2d 884, 891 (3d Cir. 1977)). “[T]he existence of disputed material facts will not
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preclude the trial court from evaluating for itself the merits ofjurisdictional claims. Moreover,
the plaintiff will have the burden of proof that jurisdiction does in fact exist.” Mortensen, 549
F.2d at 891. The plaintiff must not only demonstrate that a controversy existed at the time it filed
suit but that it continues to exist throughout the litigation. Lusardi v. Xerox Corp., 975 f.2d 964,
974 (3d Cir. 1992).
When plaintiffs fail to file an opposition to a motion to dismiss, the Court must address
the unopposed motion to dismiss on its merits. Wiggins v. String, No. 12-3 176, 2013 WL
1222676, at *2 (D.N.J. Mar. 25, 2013). To decline to analyze the merits of a motion to dismiss
simply because it is unopposed would be to impermissibly sanction plaintiffs for their failure to
respond. Stackhouse v. Mazurkiewicz, 951 F. 2d 29, 30 (3d Cir. 1991).
1. FE CA is Plaintiffs Exclusive Remedy
The Federal Employees Compensation Act provides compensation for the disability of any
federal employee resulting from personal injuries sustained in the performance of duty. 5 U.S.C.
§ 8102(a). The liability of the United States under FECA is exclusive and instead of all other
liability in an judicial proceeding or civil action. 5 U.S.C.
§ 8116(c). When FECA applies to a
workplace injury, it functions as the employee’s exclusive remedy, precluding any other liability
of the United States. Elman v. United States, 173 F. 3d 486, 489 (3d Cir. 1999). Consequently,
an employee who is eligible for FECA benefits may not bring suit against his or her employer for
damages under the FTCA. Id. The Secretary of Labor exercises plenary and exclusive authority
in deciding all matters arising under FECA and their decisions regarding coverage are
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“absolutely immune from judicial review.”DiPippa v. United States, 687 F. 2d 14, 17 (3d Cir.
The Secretary of Labor, through the OWCP, has exercised their authority over the present
matter, and has made the determination that FECA covers any injuries arising out of the March
21, 2012 incident. See Notice of Decision, ECF No. 22-2 at 22. This determination is not subject
to review by this Court. Because FECA applies to the Plaintiffs accident, it is her exclusive
remedy. FECA’s exclusivity provision prohibits Plaintiff from bringing this action against the
United States under the FTCA. This Court lacks subject matter jurisdiction and is required to
dismiss this action under Fed. R. Civ. P. 12(h)(3).
FECA’s exclusive remedy provision prohibits this Court from exercising subject matter
jurisdiction over this action. Defendant United States of America’s motion to dismiss for lack of
subject matter jurisdiction is granted. An appropriate order follows.
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