Lill v. United States of America et al
Filing
16
-CLERK TO FOLLOW UP-DECISION AND ORDER granting 6 Motion to Dismiss. Defendants motion to dismiss for lack of subject-matter jurisdiction [#6] is granted and this action is dismissed with prejudice. Signed by Hon. Charles J. Siragusa on 3/3/15. (KAP)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
__________________________________________
JEFFREY LILL, JR.,
Plaintiff,
DECISION AND ORDER
-vs14-CV-6422 CJS
UNITED STATES OF AMERICA, et al.,
Defendants.
__________________________________________
APPEARANCES
For the Plaintiff:
Dennis A. Clary, Esq.
755 Center Street
P.O. Box 1044
Lewiston, NY 14092
Tel.: (716) 754-2819
For the Defendant:
William Gillen Powers, Esq.
U.S. Department of Justice
Civil Division, Environmental Torts Branch
1331 Pennsylvania Avenue, NW
Washington, DC 20004
Tel: (202) 616-9386
INTRODUCTION
This is an action brought pursuant to the Federal Tort Claims Act (“FTCA”) by a
former employee of the United States Postal Service (“USPS”) who maintains that he was
injured by being exposed to a piece of mail containing toxic material. Now before the Court
1
is Defendants’ motion (Docket No. [#6]) to dismiss the action for lack of subject-matter
jurisdiction. More specifically, Defendants contend that Plaintiff’s sole remedy lies under
the Federal Employees’ Compensation Act (“FECA”), pursuant to which he is already
receiving benefits. The application is granted.
BACKGROUND
Unless otherwise noted, the following facts are taken from Plaintiff’s Complaint [#1]
and the documents submitted in connection with the motion to dismiss. On February 4,
2011, Plaintiff was working as a supervisor for the USPS in Orlando, Florida, when a
subordinate informed him of a strong odor emanating from a mail bag. Plaintiff and USPS
disagree as to what happened next.
Plaintiff maintains that he investigated and discovered that a package, possibly
bearing a return address from Yemen, was leaking a foul-smelling brown liquid. Moreover,
In his FECA claim Plaintiff went into more detail explaining:
The top of the box had cracked open and he saw inside 2/3 light colored
(whitish) canisters or jugs (maybe plastic) with wire/tubes connecting them.
On the outside of the box he noticed a return address written in RED ink.
Part of the address was written in Arabic (or another language using different
letters/characters than ours). However, Yemen was written in our alphabet.
The “to” address was written in BLACK ink. It was addressed to a 328
(Orlando) zip code and the last digits were ???. There was no customs
tag/bill of lading, bar code, postage stamp on the package.
Docket No. [#6-5] at p. 5. In any event, Plaintiff claims that he transported the item to a
“hazmat area,” in the course of which he touched the leaking substance and breathed its
fumes.
USPS, on the other hand, denies that any spill or leaking package was discovered
on February 4, 2011. Instead, USPS maintains that a chemical spill occurred two days
earlier, on February 2, 2011, and was cleaned up. USPS further maintains that, at most,
2
on February 4, 2011, Plaintiff smelled residue from the earlier spill.
What is undisputed is that before Plaintiff left work on February 4, 2011, he sent an
email to his supervisor, Cynthia Hickman (“Hickman”), about the incident. The email, which
was sent on February 4, 2011 at 8:18 p.m., states as follows:
Subject: Possible Hazmat/Small Apps
CynthiaAt approximately 1840 hrs, employee Paz Oquendo came to me to report a
strong odor on S2 of the small apps [Automated Package Processing
System]1 in the belly. [According to Plaintiff, the “belly” is the interior area of
a large conveyor-belt APPS machine]
I immediately cleared the area of employees (sent to breakroom) and took
the gpc [general purpose container]2 of empty sacks outside to the Haz-Mat
shed. The odor is strong and isolated to the back of the belly of the small
apps. I then assisted TME’s in opening all doors on the APPS side of the
building, front and back. MDO Cynthia Hickman was also notified during this
time period. A portable fan is currently being used to assist in airing out the
area as it is still lingering in this area. No employees are currently working
in this area. T3 has been notified (MDO - Carlos Santos).
Jeff Lill
(emphasis added). The striking feature of this email, in the Court’s view, is the absolute
lack of any mention of a leaking package, let alone one from Yemen with cannisters or jugs
connected by wires or tubing. Instead, Plaintiff’s statement indicates only that he moved
1
According to the USPS website’s List of Acronyms/Abbreviations, “APPS” is an
abbreviation for “Automated Package Processing System.” See,
http://about.usps.com/publications/pub32/pub32_acn.htm
2
According to the USPS website’s List of Acronyms/Abbreviations, “GPC” is an
abbreviation for “general purpose container.” See,
http://about.usps.com/publications/pub32/pub32_acn.htm
3
a container of empty mail sacks.3 Plaintiff, though, in his Complaint in this action, which
did not attach a copy of his email, implies that his email specifically notified Hickman about
a leaking package.4
Of course, since the email did not mention a leaking package from Yemen with
cannisters or jugs connected by wires or tubing, or any package at all, it also did not
request that any such package be retained or analyzed. Nevertheless, Plaintiff now faults
USPS for not retaining and testing the alleged package which, he maintains, was probably
disposed of by a USPS supervisor on or about February 4, 2011. On this point, Plaintiff
suggests that by failing to retain the alleged package, USPS violated its own protocols, and
“destroyed the evidence.”5
In any event, after February 4, 2011, Plaintiff claims that he began experiencing flulike symptoms, and that by June 2011, he became unable to work due to those symptoms,
as well as to an unrelated injury to his back. Plaintiff maintains that his medical condition,
which he says is “highly suggestive of organophosphate poisoning,” resulted from his
exposure to the alleged leaking substance, though he admits that is just an “educated
guess” inasmuch as the alleged toxic substance was never analyzed.6 With respect to his
condition, it is true that at least one of Plaintiff’s doctors believes that his present illness
must be related to his alleged exposure on February 4, 2011. However, her opinion in this
regard is based solely upon information provided to her by Plaintiff.
3
This discrepancy is frankly unfathomable to the Court. In the post 9/11 world in which we
live, it strains the bounds of credulity to accept that Plaintiff would not have immediately reported
to his supervisor that the package at issue came from Yemen and contained what could
reasonably surmised to be some kind of bomb.
4
See, e.g., Complaint at ¶ ¶ 8, 10.
5
Pl. Memo of Law [#11] at p. 4.
6
Complaint ¶ 19.
4
On January 25, 2012, Plaintiff filed an application for FECA workers compensation
benefits with the U.S. Department of Labor’s Office of Workers’ Compensation Programs
(“OWCP”), claiming that he had suffered a work-related injury to his back, as well as a
work-related injury due to chemical exposure. However, OWCP denied the claim, without
prejudice to him submitting a new claim, in part because Plaintiff had purportedly used the
wrong application form.
In April, 2012, the U.S. Office of Personnel Management (“OPM”) approved Plaintiff
for non-work-related disability retirement.
On August 22, 2012, Plaintiff re-filed his chemical-exposure claim with OWCP, using
the correct form, claiming that he had been exposed to a leaking package on February 4,
2011. Plaintiff also submitted brief factual statements, from three witnesses, executed
approximately ten months after the alleged incident.
However, by response dated September 18, 2012, USPS opposed the FECA
application, and disputed Plaintiff’s version of events.7 More specifically, USPS indicated
that its investigation had found no evidence of a leaking package on February 4, 2011.
Further, USPS indicated that Plaintiff’s email on February 4, 2011 was inconsistent with
his claim of having been exposed to a leaking package. In responding, USPS stated to
OWCP as follows, in pertinent part:
Review of Postal Service records and multiple inquiries at both the Area and
District levels has confirmed that there was no hazardous spill on February
4, 2011 at the Orlando MF Annex. Rather, on the evening of February 4,
2011, an employee working in the small Apps area reported an odor to the
Supervisor. The odor was emanating from empty equipment which had
apparently come in contact with a package that had leaked on February 2,
2011. These items were immediately isolated and placed in the Spill and
Leak Area waiting disposal. The odor disappeared once this empty
7
Docket No. [#6-5] at p. 11.
5
equipment was removed. No employee injuries were reported and Mr. Lill’s
contemporaneous report was that he only moved empty sacks. Again, there
was no spill and no leaking package on February 4, 2011 at the Orlando MP
Annex.
***
Employee’s original statement via email on February 4, 2011 was that there
was a strong odor near the belly of the small Apps machine and that he
moved empty sacks outside. The Postal Service agrees with this account.
The employee did not alleged dealing with a leaking package or any injury
related to February 4, 2011 until almost 8 months later. Further, Mr. Lill’s
February 4th email statement differs materially from both the statement he
attached to his injury claim and from the signed witness statements he
submitted.
(Docket No. [#6-5] at p. 11) (emphasis added).
On or about January 30, 2013, while his FECA application was pending, Plaintiff
filed an FTCA administrative claim seeking $20 million in damages.8 In support of the
application, Plaintiff repeated his claim that he removed a leaking package, bearing a
reference to Yemen, from the USPS facility. Plaintiff further accused USPS of lying by
denying that such an event had occurred on February 4, 2011. Additionally, Plaintiff
accused USPS of “maliciously” injuring him, and of “deliberately, sabotag[ing] [his] Federal
workers’ compensation claim by denying the incident and destroying the package.”9
Plaintiff further accused USPS of “maliciously” attempting to have him “removed
from his position” with “fabricated” allegations.10
As to that assertion, Plaintiff was
apparently referring to USPS’s contention that Plaintiff submitted a fraudulent medical
statement in connection with a request for medical leave in August 2011.
8
Docket No. [#6-13].
9
Docket No. [#6-13] at pp. 10, 11.
10
Docket No. [#6-13] at p. 12.
6
Plaintiff
apparently admits that the statement from his doctor was fabricated, but claims that he had
nothing to do with the statement being submitted to USPS.11 In fact, Plaintiff accuses his
supervisor, Hickman, of fabricating the note from his doctor, in order to later accuse
Plaintiff of submitting the fabricated note.12
In any event, as part of his FTCA
administrative claim, Plaintiff acknowledged that ordinarily such a claim would be barred
by FECA, though he suggested that he was somehow exempted from FECA’s jurisdictional
bar due to USPS’s alleged malfeasance.13
On August 8, 2013, USPS denied the FTCA administrative claim, for at least two
reasons.14 First, USPS reiterated that Plaintiff was fabricating the alleged spill on February
4, 2011. Second, USPS indicated that even assuming that Plaintiff suffered a work-related
injury as he claimed, his exclusive remedy was under FECA, not the FTCA.
With regard to Plaintiff’s FECA claim, on August 22, 2013, and despite USPS’s
objection, OWCP accepted Plaintiff’s claim, finding that he had been exposed to a viral
substance while at work on February 4, 2011. On August 12, 2014, OWCP amended its
earlier finding to indicate that Plaintiff’s work-related injury was due to exposure to an
organophosphate substance.
Despite having been approved for FECA benefits, on July 25, 2014, Plaintiff
11
Docket No. [#6-13] at pp. 5, 13.
12
Docket No. [#6-13] at pp. 13-14 (“[I]t was necessary for Ms. Hickman to attempt to
discredit him and deflect attention from her own earlier malfeasance by fabricating the excuse
herself.”) (emphasis in original); see also, id. (“It is senseless to assume that Mr. Lill had anything
to do with the preparation of this excuse as he had in fact never seen it until he received the
notification of his proposed removal; the only logical inference is that Ms. Hickman created the
excuse herself and attempted to blame it on Lill.”). To be clear on this point, Plaintiff contends
that, as part of a scheme to cover her own alleged wrongdoing, i.e., mishandling the alleged toxic
spill, and to have him fired, Hickman created a letter from Plaintiff’s doctor, containing false
information, with the intention of then accusing Plaintiff of having submitted the false medical
statement, in order to have him fired.
13
Docket No. [#6-13] at p. 11.
14
Docket No. [#6-14].
7
commenced this action pursuant to the FTCA, seeking $20 million in damages. The
Complaint’s “Preliminary Statement” indicates, in pertinent part:
Plaintiff is claiming damages by Defendant United States of America
because of the negligence by the United States Postal Service (“USPS”) in
handling a package containing a toxic substance to which Plaintiff was
exposed while a USPS employee.
(emphasis added). Later in the Complaint, though, Plaintiff clarifies that he does not
believe that USPS’s negligence proximately caused him to be exposed to the toxin, but that
USPS’s “subsequent negligence” “was the cause of the severe exacerbation which
followed.”15 This cryptic statement is apparently clarified later in the Complaint, where
Plaintiff states:
Defendant USPS violated its protocols for handling hazardous materials in
that it did not adequately document the event of February 4, 2011, did not
identify the package or its contents to which Plaintiff was exposed and, in
fact, destroyed or disposed of said package without any record having been
made of its existence. Because of Defendants’ negligence in its handling of
this incident, it was impossible for medical personnel treating Plaintiff to
ascertain what he was exposed to and properly treat him.16
(emphasis added). The Complaint purports to assert two distinct causes of action. The
first cause of action alleges that USPS was negligent in failing to retain or analyze the
alleged package, which has resulted in a failure to identify the toxin to which Plaintiff was
exposed, which has prevented him from receiving appropriate medical treatment. The
second cause of action alleges that USPS’s “negligence in the handling of the package
following Plaintiff’s exposure and its subsequent disingenuous refusal to admit that the
incident ever took place” resulted in a two-year delay in Plaintiff being approved for FECA
15
Complaint at ¶ 13.
16
Complaint at ¶ ¶ 17-18.
8
benefits, and caused him emotional distress.
Similar to his
FTCA administrative claim, the Complaint in this action also
references the fact that an FTCA action is jurisdictionally barred where the subject injury
is covered by FECA, but suggests that his case is somehow excepted from that rule.
Specifically, the Complaint contends that “FECA is not a bar to FTCA jurisdiction” for two
reasons: 1) “the FECA claim that was accepted does not pertain to the incident of February
4, 2011";17 and 2) the USPS’s alleged negligence was “not the proximate cause of the toxic
exposure, but was the cause of the severe exacerbation which followed.”
On September 26, 2014, Defendants filed the subject motion to dismiss, pursuant
to Fed. R. Civ. P. 12(b)(1), on the grounds that this Court lacks jurisdiction over an FTCA
claim where, as here, the injury is covered by FECA. In support of the application,
Defendants submit an affidavit from the Deputy Director of OWCP, Julia Tritz (“Tritz”),
indicating that on August 22, 2013, OWCP approved Plaintiff’s claim for work-related
traumatic injury, occurring on February 4, 2011, due to exposure to a chemical spill. Tritz
further indicates that between November 19, 2011 and August 31, 2014, Plaintiff received
disability benefits from OPM, and that on August 29, 2014, he elected to instead receive
benefits under FECA, after which,
by letter dated September 10, 2014, Plaintiff was notified [by OWCP] that he
will receive a check for disability in the amount of $18,050.23 for the period
November 19, 2011 to May 31, 2013 (the gross amount of $81,666.55 minus
the amount reimbursed to OPM for $63,616.32) [as well as] another check
for $60,440.61 for the period June 1, 2013 to August 31, 2014 [and would
henceforth] be receiving regular disability compensation payments.
Docket No. [#6-2].
17
As the factual recitation above shows, this assertion is clearly incorrect. It is OWCP, and
not USPS, which determines FECA coverage, and while USPS denied that a spill occurred on
February 4, 2011, OWCP found otherwise. Consequently, there is no legitimate basis for this
factual assertion in the Complaint.
9
On November 21, 2014, Plaintiff filed a four-page memorandum of law [#11] in
opposition to Defendants’ motion. Plaintiff acknowledges that the current state of the law
requires the Court to grant Defendants’ motion to dismiss. On this point, Plaintiff admits:
“It is regrettably to be acknowledged that the pertinent case law in general supports
Defendants’ position.”18 Plaintiff insists, though, that the “unique circumstances” of this
case require the Court to create a new rule of law: “[H]owever, the unique circumstances
of this case make it one of first impression and serious demand judicial scrutiny.”19 That
is, Plaintiff maintains that this Court should unilaterally create an exception to the wellestablished jurisdictional rules pertaining to FECA and FTCA, based upon USPS’s alleged
wrongdoing in denying that he was injured on February 4, 2011, and its subsequent alleged
conspiracy with OWCP to cover-up the matter:
It seems patently clear that Mr. Lill’s compensation claim was finally
established, not because of a genuine belief by USPS and OWCP that he
had a compensable injury, but to avoid the scrutiny, possible embarrassment
and much higher cost to defend should a court be able to examine the
possibility that a toxic package from a known hostile country was admitted
to a postal facility in the United States and a worker was seriously injured
and the agency then covered up the incident and denied it ever occurred.
This certainly cannot be the purpose for which FECA exclusivity was
intended, and the cynical attempt of Defendants to avoid judicial scrutiny by
the shield of a compensation claim is unconscionable. At the very least, Mr.
Lill maintains that it is incumbent on the Court to examine the suspicious
circumstances under which Mr. Lill’s case was finally assigned to the
[OWCP],20 which appears to have been for the sole purpose of precluding
any judicial examination of the events surrounding his exposure and injury.
18
Memo of Law [#11] at p. 3.
19
Memo of Law [#11] at p. 3.
20
This assertion by Plaintiff misstates what happened. That is, he suggests that USPS
caused his claim to be “assigned to” OWCP. In fact, the only reason that OWCP is involved here
is because Plaintiff filed a FECA claim, and OWCP is the agency that administers such claims.
USPS had nothing to do with that.
10
***
As stated, this is unfortunately a case of first impression and I cannot site
[sic] any pertinent case law to guide the Court,21 as this level of duplicity by
the government appears to be unprecedented.
Pl. Memo of Law [#11] at pp. 3-4.
On December 16, 2014, Defendants filed a reply memo of law [#13] replete with
citations to relevant, binding legal authority supporting their position that this Court lacks
subject-matter jurisdiction. Defendants also respond to Plaintiff’s arguments by stating that
“subject-matter jurisdiction cannot be manufactured simply because Plaintiff claims ‘judicial
scrutiny’ is needed to examine an alleged ‘coverup.’”22
On February 26, 2015, counsel for the parties appeared before the undersigned for
oral argument, at which time the Court took Plaintiff’s counsel to task both for his decision
to file this action and for his comments to the media about the case which appeared in the
Rochester Democrat & Chronicle newspaper on the morning of oral argument.
DISCUSSION
The standard to be applied on a motion to dismiss for lack of subject-matter
jurisdiction, pursuant to Rule 12(b)(1) is well settled:
A case is properly dismissed for lack of subject matter jurisdiction under Rule
12(b)(1) when the district court lacks the statutory or constitutional power to
adjudicate it. In resolving a motion to dismiss for lack of subject matter
jurisdiction under Rule 12(b)(1), a district court, as it did here, may refer to
evidence outside the pleadings. A plaintiff asserting subject matter
jurisdiction has the burden of proving by a preponderance of the evidence
that it exists.
21
Indeed, Plaintiff’s memo of law is devoid of citation to any form of legal authority,
preferring instead to rely on a reference to the novel “Catch-22" by Joseph Heller. See, Memo of
Law [#11] at p. 3, n. 2.
22
Reply Memo [#13] at p. 3.
11
Makarova v. U.S., 201 F.3d 110, 113 (2d Cir.2000) (Citations omitted).
Plaintiff is attempting to sue the United States of America, which, of course, enjoys
sovereign immunity from being sued, except insofar as it may consent to be sued.
Moreover, even in situations in which the United States consents to be sued, a court’s
jurisdiction is limited by the terms of the Government’s consent. See, Hercules Inc. v. U.S.,
516 U.S. 417, 422, 116 S.Ct. 981, 985 (1996) (“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.”) (citations and internal
quotation marks omitted). In other words, the United States decides when and how it can
be sued.
On this point, it is well-settled that the United States has established FECA, and not
the FTCA, as the exclusive remedy for federal employees who suffer work-related injuries.
See, 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,
including Postal Service employees, within the scope of their employment. When the tort
victim is also a federal employee, however, work-related injuries are compensable only
under the FECA.”) (emphasis added, citations omitted). Accordingly, “[b]ecause the FECA
is an ‘exclusive’ remedy, it deprives federal courts of subject-matter jurisdiction to
adjudicate claims brought under the FTCA for workplace injuries that are covered by the
FECA.” Mathirampuzha v. Potter, 548 F.3d at 81 (citation omitted). Moreover, it is well
settled “that where there is a substantial question of FECA 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.” Id.
In the instant case, Plaintiff is nevertheless attempting to sue under the FTCA to
recover money damages for a work-related injury that occurred while he was a federal
12
employee. However, the Secretary of Labor, by OWCP, has already determined that
Plaintiff’s injury is covered by FECA,23 and the Court has no authority to review that
determination, even if Plaintiff urged the Court to do so, which he has not done. See,
Mathirampuzha v. Potter, 548 F.3d at 81 (“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. § 8145, and federal courts are barred from exercising judicial review
over such decisions, id. § 8128(b).”) (internal quotation marks omitted).24
Undeterred by this, Plaintiff contends that this Court ought to create an exception
to this clear jurisdictional bar, since, in his opinion, USPS acted improperly. Plaintiff insists
that this is a case of first impression that warrants something akin to an “employer
misconduct” exception. However, the Court disagrees. In this regard, Plaintiff’s argument
is similar to the argument that intentional torts should be excluded from FECA’s
jurisdictional bar, because it is wrong to commit intentional torts. However, that argument
is clearly incorrect, since even lawsuits for work-related injuries that are caused by
intentional torts are subject to FECA’s jurisdictional bar. See, e.g., Gomez v. Warden of
Otisville Correctional Facility, No. 99 Civ. 9954(AGS), 2000 WL 1480478 at *3 (S.D.N.Y.
Sep. 29, 2000) (observing that FECA provides the exclusive remedy for work-related
injuries, including injuries caused by intentional torts).
Furthermore, even if the Court believed, which it does not, that it could conjure such
an exception to Congress’ clear jurisdictional bar in certain particularly-egregious cases of
23
The determination of whether FECA applies is made by the Secretary of Labor, not the USPS.
The Secretary of Labor has found that Plaintiff was injured by exposure to the package. The fact that the
USPS disputes Plaintiff’s version of events is really irrelevant to the jurisdictional issue that is before the
Court.
24
The Second Circuit has mentioned that “several appellate courts have held that an implicit and
narrow exception to the bar on judicial review [of the Secretary of Labor’s determination] exists for claims
that the agency exceeded the scope of its delegated authority or violated a clear statutory mandate.”
Mathirampuzha v. Potter, 548 F.3d at 83.
13
government misconduct concerning the evaluation of an employee’s FECA claim, it is far
from clear that the Government acted in a manner that would warrant such treatment in the
instant case. Most notably, USPS correctly observes that Plaintiff’s email to Hickman on
February 4, 2011, written minutes after the alleged contamination, stated only that he
handled empty mail sacks that were emitting a bad odor, without any mention of a leaking
package from Yemen. At oral argument, even Plaintiff’s attorney conceded that such fact
was puzzling. Such fact alone would be sufficient to explain USPS’s skepticism toward
Plaintiff’s workers’ compensation claim, and additionally, is consistent with USPS’s theory
that any odor which Plaintiff smelled was mere residue from an earlier spill. Consequently,
although OWCP accepted Plaintiff’s version of events, the Court cannot say, from the
limited record before it, that USPS’s contrary position was unreasonable, let alone
fraudulent or malicious.
On the other hand, Plaintiff’s allegations of a fraudulent cover up by multiple federal
agencies, while perhaps appealing to conspiracy theorists, strike the Court as being
irresponsible and disingenuous. In this regard, the Court will cite two examples, although
there are others. First, Plaintiff repeatedly implies that USPS had no excuse for failing to
retain and analyze the alleged leaking package, since he told Hickman about the package
in his email on February 4, 2011. However, as already discussed, Plaintiff’s email to
Hickman said nothing about a package, and his suggestion is therefore disingenuous.
Beyond that, Plaintiff seems to attribute clairvoyant abilities to USPS, inasmuch as his
theory is that USPS “disappeared”25 the leaking package “under cover of darkness,”26 at
25
This is a term that Plaintiff claims to have appropriated from Joseph Heller’s novel
“Catch 22.”
26
See, FTCA Complaint, Docket No. [#6-13] at p. 16. (“[F]or reasons one can only guess
at, the agency chose to cover up the incident, remove under cover of darkness, the offending
material, deny the existence of the material or the incident, even in the face of numerous
witnesses, and then go so far as to attempt to accuse an innocent, seriously ill worker or
14
a time when he was not yet ill, so that it could deny, in the event that he ever filed a FECA
or FTCA claim, that the alleged toxic spill ever occurred. That theory is simply not
plausible.
Second, Plaintiff alleges that USPS conspired with, and essentially controlled the
activities of, OWCP, a separate federal agency, in order to cover up USPS’s alleged
wrongdoing. In support of his position, Plaintiff states: “By telling OWCP to create a
compensation claim for Mr. Lill thirty months after the fact and only after having received
his FTCA claim, USPS act[ed] in the cynical hope that this claim can be swept under the
carpet.”27 (emphasis added). However, with regard to this theory, apart from the fact that
Plaintiff has provided no basis to believe either that USPS controls OWCP’s actions or that
USPS ever changed its position that Plaintiff’s illness is not work-related, one must wonder
why, if it was USPS’s intent to “hush up” the incident and avoid an FTCA claim, it opposed
Plaintiff’s FECA claim in the first place? Why did not USPS simply agree that the injury
was work-related, and thereby ensure that no FTCA claim could ever be brought? Plaintiff
provides no explanation, and this inter-agency conspiracy aspect of Plaintiff’s claim is
therefore also implausible.
With regard to this discussion of Plaintiff’s claims and theories, the Court is aware
that some of its comments herein or made during oral argument may be seen as
questioning Plaintiff’s truthfulness. The Court wishes to clarify that its comments are not
meant to impugn the character of Mr. Lill, for whom the Court has only sympathy, or his
attorney. Nor is the Court resolving issues of fact or credibility. Rather, the Court’s intent
is to point out, with regard to Plaintiff’s legal argument, that while one may disagree with
USPS’s position, one ought to be able to recognize that there is at least an arguable basis,
fabricating information in an attempt to remove him for fraud.”).
27
Pl. Memo of Law [#11] at p. 4.
15
if not a very good basis, for USPS’s continued skepticism toward Plaintiff’s claim. More
specifically, Plaintiff’s failure to mention a package in his February 4, 2011, email would
present a formidable obstacle to the success of his claim, even if an employer’s
misconduct could create jurisdiction for an FTCA claim, which it cannot.
Lastly, during oral argument Plaintiff’s counsel raised the adequacy, or rather, the
inadequacy of FECA benefits, and indicated that OWCP had denied many of Mr. Lill’s
requests for medical payments. In simple terms, Plaintiff contends that FECA benefits are
not a monetarily adequate remedy for someone with his medical condition. However, to
the extent that Plaintiff argues that this fact enables the Court to disregard FECA’s
exclusivity provision and proceed in the absence of jurisdiction, he is mistaken. The Court
sympathizes with Mr. Lill’s situation, although the when, how, and where of his condition
are subject to debate. In any event, the solution to that problem lies with Congress or the
Department of Labor, not with this Court. To request otherwise is to suggest that this Court
abdicate its sworn responsibility to follow the law as it exists and instead legislate from the
bench.
CONCLUSION
Defendants’ motion to dismiss for lack of subject-matter jurisdiction [#6] is granted
and this action is dismissed with prejudice.
SO ORDERED.
Dated:
Rochester, New York
March 3, 2015
ENTER:
/s/ Charles J. Siragusa
CHARLES J. SIRAGUSA
United States District Judge
16
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?