Shuford v. United States of America

Filing 21

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,
Plaintiff,

OPINION & ORDER
13-CV-6303 (SJF)(AKT)

-againstUNITED STATES OF AMERICA,
Defendant.

--------------------------------------------------------------){
FEUERSTEIN, District Judge:

FILED
IN CLERK'S OFFICE
U S DISTRICT COURT E D N y

*

AUG 2 1 2.014

*

LONG ISLAND oFFICE
I.

Introduction
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.

II.

Background'
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,

1

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[;]
uncontrollably[;]

* * * 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).

III.

Discussion
A.

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.

2

;

;

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).

B.

TheFTCA

"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

State~

731

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

3

State~- U.S.

-,

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.

2

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
occurred."

4

'
§ 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
explained:
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
the Government."
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)[5]."

3

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."
4

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
this subchapter."
5

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."
5

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.

6

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)).

7

a.

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<f ("ECAB")
consistently hold that "[a]rising out of the employment' tests the causal connection between the

6

The Secretary of Labor delegated the authority to administer programs under FECA to the
Director of the Office of Workers' Compensation Programs ("OWCP"), "except 5 U.S.C. § 8149 as
it pertains to the [ECAB]." 20 C.F.R. § 1.2. Section 8149 provides, in relevant part, that the rules
and regulations prescribed by the Secretary of Labor for the administration and enforcement of
FECA "shall provide for an Employees' Compensation Appeals Board of three individuals
designated or appointed by the Secretary with authority to hear and, subject to applicable law and
the rules and regulations of the Secretary, make final decisions on appeals taken from
determinations and awards with respect to claims of employees." The ECAB "has jurisdiction to
consider and decide appeals from final decisions of OWCP in any case arising under the FECA."
20 C.F.R. § 501.2(c).
8

employment and the injury; 'arising in the course of employment' relates to the time, place and
work activity involved." In re Paylor, 57 E.C.A.B. 568, 2006 WL 1993587 (E.C.A.B. 2006); see
also In re Knispel, 56 E.C.A.B. 639,642,2005 WL 6108980 (E.C.A.B. 2005);In re Greene, 52
E.C.A.B. 367,368,2001 WL 913091 (E.C.A.B. 200l);In re Minter, 52 E.C.A.B. 127, 129,2000
WL 1880051 (E.C.A.B. 2000); In re Battist!!, 50 E.C.A.B. 343, 345, 1999 WL 1483965
(E.C.A.B. 1999); In re Jackson, 49 E.C.A.B. 486,488, 1998 WL 1296907 (E.C.A.B. 1998).

1.

Arising in the Course of Employment

"To arise in the course of employment, an injury must occur: (1) at a time when the
employee may reasonably be said to be engaged in his master's business; (2) at a place where he
may reasonably be expected to be in connection with his employment; and [sic] (3) while he was
reasonably fulfilling the duties of his employment or engaged in doing something incidental
thereto; and (4) when it is the result of a risk involved in the employment or the risk is incidental
to the employment or to the conditions under which the employment is performed." In re
Knispel, 56 E.C.A.B. at 642; see also In re Greene, 52 E.C.A.B. at 368; In re BattisiD, 50
E.C.A.B. at 345; In re Jackson, 49 E.C.A.B. at 488; In re Lyon!l, 49 E.C.A.B. 295,295, 1998 WL
1295927 (E.C.A.B. 1998); In re Howell, 48 E.C.A.B. 414,416, 1997 WL 1432810 (E.C.A.B.
1997). Although, under FECA, "an injury sustained by an employee having fixed hours and
place of work while going to or coming from work is generally not compensable because it does
not occur in the performance of duty[,]" In re Knispel, 56 E.C.A.B. at 642, an "exception almost
universally recognized is the premises rule: an employee going to or coming from work before or
after working hours or at lunch, while on the premises of the employer, is compensable." Id. at
642-43 (emphasis added); see also In re Battisill, 50 E.C.A.B. at 345 (holding that the ECAB
9

"has accepted the general rule of workers' compensation law that, as to employees having fixed
hours and places of work, injuries occurring on the premises of the employing establishment,
while the employee is going to or from work, before or after working hours, orat lunch time, are
compensable." (emphasis added)); In re Jackson, 49 E.C.A.B. at 488-89 (accord). Moreover,
"work-connected activity goes beyond the direct services performed for the employer and
includes at least some ministration to the personal comfort and human wants of the employee."
In re Greene, 52 E.C.A.B. at 369; ~also In re Debski, 44 E.C.A.B. 381, 1993 WL 796158, at*
6 (E.C.A.B. 1993) (accord). "Activities encompassing personal acts for the employee's comfort,
health, convenience and relaxation; eating meals, lunches and snacks on the premises, including
established coffee breaks; and the employee's presence on the premises for a reasonable time
before or after specific working hours, are reasonably incidental to employment and are,
therefore, in the course of employment." In re Greene, 52 E.C.A.B. at 369 (emphasis added); see
also In re Debski, 1993 WL 796158, at * 6 (accord). "Even if the activity cannot be said in any
sense to advance the employer's interest, it may still be in the course of employment if, in view of
the nature of the employment environment, the characteristics of human nature, and the customs
or practices of the particular employment, the activity is in fact an inherent part of the conditions
ofthat employment." In re Debski, 1993 WL 796158, at* 6.
"With regard to recreational or social activities, the [ECAB] has held that such activities
arise in the course of employment when: (1) They occur on the premises during a lunch or
recreational period as a regular incident of the employment; or (2) The employer, by expressly or
impliedly requiring participation, or by making the activity part of the service of the employee,
brings the activity within the orbit of employment; or (3) The employer derives substantial direct
benefit from the activity beyond the intangible value of improvement in employee health and
10

morale that is common to all kinds of recreation and social life." In re Paylor, 57 E.C.A.B. at 571
(quotations and citation omitted);~ also In re Minter, 52 E.C.A.B. at 129-30; In re Pico, 46
E.C.A.B. 750,751, 1995 WL 944350 (E.C.A.B. 1995);In re Daniel, 46 E.C.A.B. 203,205, 1994
WL 932072 (E.C.A.B. 1994). "[T]hese are distinct criteria*** [and] three independent links ..
. by which recreation can be tied to the employment and if one is found the absence of the others
is not fatal." In re Minter, 52 E.C.A.B. at 130; ~also In re Daniel, 46 E.C.A.B. at 206.
"Accordingly, when an employee is injured in a recreational activity, he or she must meet one of
these three tests to establish performance of duty." In re Daniel, 46 E.C.A.B. at 206.

ii.

Arising out of Employment

A finding that an injury arose in the course of employment "alone is insufficient to
establish entitlement to benefits for compensability [under the FECA]." In re Knispel, 56
E.C.A.B. at 642; see also In re Battist!!, 50 E.C.A.B. at 345; In re Howell, 48 E.C.A.B. at 416.
"The concomitant requirement o[f] an injury 'arising out of the employment' must be shown and
this encompasses not only the work setting, but also a causal concept that the employment caused
the injury[,]" In re Knispel, 56 E.C.A.B. at 642; see also In re Battis!!!, 50 E.C.A.B. at 345
("'Arising out of employment' requires that a factor of employment caused the injury");In re
Richard, 49 E.C.A.B. 337, 339-40 1998 WL 1295980 (E.C.A.B. 1998)(accord), i.e., that the
injury "resulted from some risk incidental to the employment." In re Jackson, 49 E.C.A.B. at
489; ~also In re Howell, 48 E.C.A.B. at 416. "In order for an injury to be considered as arising
out of the employment, the facts of the case must show that substantial employer benefit is
derived or an employment requirement gave rise to the injury." In re Knispel, 56 E.C.A.B. at
But see In re
642; ~also In re Jackson, 49 E.C.A.B. at 489; In re Lyon§. 49 E.C.A.B. at 298. - - - 11

Henderson, 46 E.C.A.B. 441,444, 1995 WL 944372 (E.C.A.B. 1995) ("Although the incident
here occurred on the employment premises, it did not occur during the regular work shift during a
lunch or recreation period as a regular incident of employment. Some substantial employer
benefit or an employer requirement must be shown, therefore, in order to consider the activity
involved here arising out of the employment."); In re RedmonQ, 45 E.C.A.B. 298, 303, 1994 WL
911238 (E.C.A.B. 1994) (accord).

iii.

Medical Malpractice

"[W]here a federal employee's injury is sustained 'while in the performance of his duty,'
5 U.S.C. § 8102, subsequent aggravation of the injury caused by medical malpractice is
compensable under FECA

* * *."

Votte1er v. United States, 904 F.2d 128, 129-30 (2d Cir.

1990); see also Scalia, 475 F. Supp. at 1042 (holding that FECA "coverage clearly extends to
situations in which an initial work-related injury is aggravated by negligence or medical
malpractice of a physician or other government employee [who] provided treatment or care under
FECA.")
Since plaintiff's initial injury, i.e., her allergic reaction to the bee stings, occurred during
her lunch break upon the premises of her employer as a regular incident of her employment, and
she received treatment in the VAMC ER due to her employment activities there, which allegedly
aggravated her injury as a result of the ER staff's purported negligence or medical malpractice,
her tort claims against the government raise a substantial question of FECA coverage "and the
Secretary of Labor must be afforded an opportunity to determine the plaintiff's rights under the
[FECA]." Coffey, 939 F. Supp. at 190. Nonetheless, since the Secretary of Labor has not yet
determined that plaintiff's claims are covered by the FECA, "the event that would have divested
12

[this] [C]ourt of jurisdiction," Mathirampuzh!!, 548 F.3d at 84, has not occurred. Therefore, it
would be premature to dismiss this action for lack of subject matter jurisdiction at this juncture.
Accordingly, the government's motion is granted only 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'. See,~ id.

("The proper course was • •

* to stay the proceedings, hold the claim in abeyance, or otherwise

maintain the case on the court's inactive docket so that the plaintiff could ftle a FECA claim and
await a determination by the Secretary regarding FECA coverage.")

III.

Conclusion
For the reasons set forth above, defendant'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.

SO ORDERED.

s/ Sandra J. Feuerstein
Sandra J. Feuerstein
United States District Judge
Dated: August 21, 2014
Central Islip, New York

7
•

•

Sin~e, as set forth herein, any determination by the Secretary or his designee that

pl~mt1~f's claJ~s .are covered by the FECA will divest this Court of subject matter jurisdiction over

this action, plamtJff should not seek leave to reopen this case in the event that that is the Secretary's
determination.
13