Shuford v. United States of America
OPINION & ORDER re 13 Motion to Dismiss for Lack of Jurisdiction. SO ORDERED that deft's motion is granted to the extent that this case is administratively closed with leave to reopen within thirty (30) days of a determination by the Secretary or his designee that plaintiff's claims are not covered by the FECA The Clerk of the Court shall close this case. Ordered by Judge Sandra J. Feuerstein on 8/21/2014. (Florio, Lisa)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
JANE E. MEISSE SHUFORD,
OPINION & ORDER
-againstUNITED STATES OF AMERICA,
FEUERSTEIN, District Judge:
IN CLERK'S OFFICE
U S DISTRICT COURT E D N y
AUG 2 1 2.014
LONG ISLAND oFFICE
On or about November 14,2013, plaintiff Jane E. Meisse Shuford ("plaintiff') filed a
complaint against the United States of America ("the government") pursuant to the Federal Tort
Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b) and 2671-2681, seeking to recover damages for
negligence and medical malpractice. The government now moves pursuant to Ru1e 12(b)(1) of
the Federal Rules of Civil Procedure to dismiss this action for lack of subject matter jurisdiction.
For the reasons set forth below, defendant's motion is granted to the extent set forth herein.
At all relevant times, plaintiff was employed as a nurse practitioner at the United States
Department of Veterans Administration Medical Center ("VAMC") in Northport, New York. On
September 19, 2012, while plaintiff was outdoors on VAMC's premises during a lunch break,
The following facts are taken from the complaint and the parties' submissions and are
assumed to be true for purposes of this motion only. They are undisputed, unless otherwise
indicated, and do not constitute findings of fact by the Court.
she was stung two (2) times by a bee, as a result of which she suffered an allergic reaction.
Plaintiff alleges, inter alia, that while being treated by the VAMC emergency room ("ER") staff,
Diane Sweeney, a nurse, "injected 1: 1000 ml epinephrine by needle directly into [her]
bloodstream[,]" (Complaint ["Compl."], ~ 6), as a result of which she "experienced a burning
sensation throughout her entire body, from head to toe, excruciating pain from head to toe,
excruciating chest pain, and involuntary movements of the head, hands, feet and other parts of
her torso[,] [and]
* * * was unable to breathe, had rapidly dropping blood pressure and her pulse
could not be palpated and a code alarm was sounded." (Id.) Plaintiff alleges that she "suffered
injuries to her heart muscle, was and remains vaso-constricted[;]
and difficulty focusing[;]
* * * was in shock, had vertigo
* * * was sent to the intensive care where her vital signs fluctuated
* * * [and] has been psychologically traumatized and remains unable to work."
(Compl., ~ 8).
Standard of Review
"Federal courts are courts oflimitedjurisdiction," Gunn v. Minton,- U.S.-, 133 S. Ct.
1059, 1064, 185 L. Ed. 2d 72 (2013) (quoting Kokkonen v. Guardian Life Ins. Co. of Americ!!,
511 U.S. 375,377, 114 S. Ct. 1673, 128 L. Ed. 2d 391 (1994)); see also Mims v. Arrow
Financial Services. LLC,- U.S.-, 132 S. Ct. 740, 747, 181 L. Ed. 2d 881 (2012), and may not
preside over cases absent subject matter jurisdiction. See Exxon Mobil Com. v. Allapattah
Services. Inc., 545 U.S. 546, 552, 125 S. Ct. 2611, 162 L. Ed. 2d 502 (2005) (holding that federal
courts may not exercise jurisdiction absent a statutory basis); Kokkonen, 511 U.S. at 377, 114 S.
Ct. 1673 (holding that federal courts "possess only that power authorized by Constitution and
statute * * *.") Lack of subject matter jurisdiction cannot be waived or forfeited and may be
raised at any time by a party or by the court sua sponte. See Gonzalez v. Thaler,- U.S.-, 132
S. Ct. 641,648, 181 L. Ed. 2d 619 (2012); see also Sebelius v. Auburn Regional Medical Center,
-U.S.-, 133 S. Ct. 817, 824, 184 L. Ed. 2d 627 (2013) ("Objections to a tribunal's
jurisdiction can be raised at any time, even by a party that once conceded the tribunal's subjectmatter jurisdiction over the controversy."); Henderson ex rei. Henderson v. Shinseki,- U.S.-,
131 S. Ct. 1197, 1202, 179 L. Ed. 2d 159 (20ll)("[F]ederal courts have an independent
obligation to ensure that they do not exceed the scope of their jurisdiction, and therefore they
must raise and decide jurisdictional questions that the parties either overlook or elect not to press.
• * * Objections to subject-matter jurisdiction* • • may be raised at any time.") If a court lacks
subject matter jurisdiction, it must dismiss the action. See Fed. R. Civ. P. 12(h)(3); Arbaugh v.
Y & H Corn., 546 U.S. 500, 514, 126 S. Ct. 1235, 163 L. Ed. 2d 1097 (2006); Durant. Nichols.
Houston. Hodgson & Cortese-Costa. P.C. v. Dupont, 565 F.3d 56, 62-3 (2d Cir. 2009).
"The United States, as sovereign, is immune from suit save as it consents to be sued ...
and the terms of its consent to be sued in any court define that court's jurisdiction to entertain the
suit." Hercules Inc. v. United States, 516 U.S. 417,422-23, 116 S. Ct. 981, 134 L. Ed. 2d 47
(1996) (quotations, brackets and citation omitted); see also ArnBase Corn. v. United
F.3d 109, 118 (2d Cir. 2013)(accord). "The FTCA * * *was designed primarily to remove the
sovereign immunity of the United States from suits in tort[,]" Levin v. United
133 S. Ct. 1224, 1228, 185 L. Ed. 2d 343 (2013) (quotations and citation omitted), and "gives
federal district courts exclusive jurisdiction over claims against the United States for '• • •
personal injury or death caused by the negligent or wrongful act or omission' of federal
employees acting within the scope of their employment." Id. (quoting 28 U.S.C. § 1346(b)(lf);
see also Mathirampuzha v. Potter, 548 F.3d 70, 80 (2d Cir. 2008) ("The FTCA waives the
sovereign immunity of the United States for certain torts committed by federal employees • • •
within the scope of their employment."); Celestine v. Mount Vernon Neighborhood Health
Center, 403 F.3d 76, 80 (2d Cir. 2005) ("The FTCA waives the United States's sovereign
immunity for certain classes of torts claims and provides that the federal district courts shall have
exclusive jurisdiction over damages claims against 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."' (quoting 28 U.S.C. § 1346(b)(I))).
Specifically, the FTCA waives the United States's sovereign immunity for,inter alia, medical
malpractice claims based upon negligence. See Levin,- U.S.-, 133 S. Ct. at 1231 ("[M]edical
malpractice claims may be based on negligence, in which case the FTCA's waiver of the
Government's sovereign immunity is not in doubt.")
"When the tort victim is also a federal employee, however, work-related injuries are
compensable only under FECA [the Federal Employees' Compensation Act ("FECA"), 5 U.S.C.
Section 1346(b)(I) provides, in relevant part: "Subject to the provisions of chapter 171 of
this title, the district courts, • • • shall have exclusive jurisdiction of civil actions on claims against
the United States, for money damages, • * • 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 omission
§ 8101, et seq.]." Mathirampuzh!!, 548 F.3d at 80; see 5 U.S.C. § 8116(c)3 ; Hightower v. United
States. 205 F. Supp. 2d 146, 151 (S.D.N.Y. 2002) ("FECA provides the exclusive remedy against
the federal government for work-related injuries sustained by federal employees.");Doe v. United
States, 914 F. Supp. 945, 948-49 (W.D.N.Y. 1996) (accord). "As the Supreme Court has
FECA's exclusive liability provision... was designed to protect the
Government from suits under statutes, such as the Federal Tort
Claims Act, that have 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
Mathirampuzh!!, at 80-81 (quoting Lockheed Aircraft Com. v. United State§, 460 U.S. 190, 19394, 103 S. Ct. 1033, 74 L. Ed. 2d 911 (1983)).
"Congress has vested the Secretary of Labor or her delegate with exclusive authority to
'administer and decide all questions arising under' the FECA, 5 U.S. C. § 8145rJ, and federal
courts are barred from exercising judicial review over such decisions, id. § 8128(b)."
Section 8116( c) provides, in pertinent part: "The liability of the United States * * * under
this subchapter * * * with respect to the injury or death of an employee is exclusive and instead of
all other liability of the United States* * *to the employee* * *,in a civil action* * *under a
Federal tort liability statute."
Section 8145 provides: "The Secretary of Labor shall administer, and decide all questions
arising under, this subchapter. He may- (I) appoint employees to administer this subchapter; and
(2) delegate to any employee of the Department of Labor any of the powers conferred on him by
Section 8128(b) provides: "The action of the Secretary or his designee in allowing or
denying a payment under this subchapter is-- (I) 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."
Matbirampuzh!!, 548 F .3d at 81; see also Hightower, 205 F. Supp. 2d at 152 ("The Secretary of
Labor has the sole discretion to decide whether a particular injury is compensable under FECA."
(quotations and citation omitted)). "Because the FECA is an 'exclusive' remedy, id. § 8116(c), it
deprives federal courts of subject-matter jurisdiction to adjudicate claims brought under the
FTCA for workplace injuries that are covered by the FECA." Mathirampuzh!!, 548 F .3d at 81;
see also Hightower, 205 F. Supp. 2d at 150 ("Where FECA applies, federal courts have no
jurisdiction to entertain FTCA claims asserted by an injured federal employee[.]")
"[W]here there is a substantial question ofFECA coverage-indeed, unless it is certain that
the FECA does not cover the type of claim at issue-the district court may not entertain the FTCA
claim." Mathirampuzh!!, 548 F.3d at 81. "If there is a substantial question ofFECA coverage,
only the Secretary of Labor or her delegate may decide whether the FECA applies." Id.; see also
Hightower, 205 F. Supp. 2d at 152 ("[W]hen there is a substantial question of FECA coverage,
for example, whether an injury occurred while in the performance of duty, district courts will stay
their proceedings pending a decision by the Secretary of Labor.") "If the Secretary determines
that the plaintiffs claim is fundamentally outside the scope of the FECA, then the claim may
proceed under the FTCA in district court." Mathirampuzh!!, 548 F.3d at 81 "Conversely, 'the
courts have no jurisdiction over FTCA claims where the Secretary determines that FECA
applies."' Id. at 81-82 (quoting Southwest Marine. Inc. v. Gizoni, 502 U.S. 81, 90, 112 S. Ct.
486, 116 L. Ed. 2d 405 ( 1991 )). In sum, Congress, in enacting the FECA, limited its waiver of
sovereign immunity in the FTCA by vesting exclusive jurisdiction over certain tort claims by
federal employees against their employer in the Secretary of Labor. See Mathirampuzh!!, 548
F.3d at 82 ("Congress may limit its waiver of sovereign immunity by vesting exclusive
jurisdiction over certain claims against the government in administrative agencies."); Coffey v.
United States, 939 F. Supp. 185, 189 (E.D.N.Y. 1996) ("The United States retains its immunity
from tort actions brought by federal employees for work related injuries through the exclusive
liability provisions of the [FECA]."); Scalia v. United States, 475 F. Supp. 1040, 1042 (S.D.N.Y.
1979) ("One significant limitation [of the FTCA' s waiver of sovereign immunity] is contained in
FECA which expressly states that any illness or injury for which compensation is provided by
FECA may not be the subject of a suit under the [FTCA].") Since "liability under the FECA is
exclusive, [federal court] subject-matter jurisdiction ends where FECA coverage begins."
Mathirampuzh!!, 548 F .3d at 82; see also Doe, 914 F. Supp. at 949 ("Where FECA applies, the
federal courts have no jurisdiction to entertain FTCA claims asserted by injured parties.")
Nonetheless, "the mere existence of a substantial question ofFECA coverage" does not
necessarily deprive a federal court "of subject-matter jurisdiction over FTCA claims."
Mathirampuzh!!, 548 F.3d at 83. "FECA liability is exclusive, 5 U.S. C. § 8116(c), but the FTCA
is an unambiguous waiver of sovereign immunity where the FECA does not apply." Id.
"Therefore, although district courts must permit the Secretary of Labor to determine whether the
FECA applies whenever an FTCA claims raises a substantial question of FECA coverage, the
courts do not immediately lose subject-matter jurisdiction over the case." Id. District courts
retain subject matter jurisdiction over the cause until the Secretary makes a determination that
FECA applies. See ill. ("The courts have no jurisdiction over FTCA claims where the Secretary
determines that FECA applies.
* * * Even in situations where the district court deems it highly
unlikely that the claim falls outside the scope ofthe FECA, subject-matter jurisdiction over the
case remains with the court until the Secretary has made that determination." (quotations,
brackets, emphasis and citation omitted)).
Substantial Question ofFECA Coverage
Unless it is clear that the FECA does not cover plaintiffs claims, there is a substantial
question ofFECA coverage. See,~ Coffey. 939 F. Supp. at 190 ("In order to avoid sending the
case to the Secretary of Labor, [courts] must essentially decide as a matter oflaw that, viewing all
of the circumstances, the Secretary could not find FECA coverage ofthe claim.
* * * [A]
substantial question of FECA coverage exists unless it is certain that the Secretary of Labor
would find no coverage." (quotations, brackets and citations omitted)); Doe, 914 F. Supp. at 949
("Only where the Secretary has made no decision, and there is no substantial question as to the
applicability of FECA, should the court render a judgment.
* * * A substantial question exists
unless it is certain that the Secretary would not find coverage." (quotations, emphasis and
citations omitted)); D'Angelo v. United State~ 588 F. Supp. 9, 11 (W.D.N.Y. 1983) (accord).
With exceptions not relevant here, FECA provides compensation for personal injuries
sustained by a federal employee "while in the performance of his duty." 5 U.S.C. § 8102.
"[C]ourts have consistently read the phrase 'in the performance of his*
* * duty' to mean
'arising out of or in the course ofemployment."'Taber v. Maine, 67 F.3d 1029, 1050 n. 21 (2d
Cir. 1995). Decisions from the Employees' Compensation Appeals Boar
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