Hawkins v. United States of America et al

Filing 42

ORDER granting Government's 36 Motion to Dismiss for Lack of Subject Matter Jurisdiction; dismissing this case with prejudice. Signed by Judge James L. Robart. (SWT)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 8 9 10 SABELITA HAWKINS, CASE NO. C16-0498JLR Plaintiff, 11 v. 12 13 UNITED STATES OF AMERICA, et al., 14 ORDER GRANTING MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION Defendants. 15 I. INTRODUCTION 16 Before the court is Defendant United States of America’s (“the Government”) 1 17 motion to dismiss for lack of subject matter jurisdiction. (Mot. (Dkt. # 36).) Plaintiff 18 19 20 21 22 1 In its July 31, 2017, order on the Government’s prior motion to dismiss, the court dismissed with prejudice Defendants Department of Veterans Affairs (“VA”), VA Puget Sound Health Care System, John Does 1-10, and Jane Does 1-10 because the Government is the only proper defendant in a Federal Tort Claims Act (“FTCA”) action. (See 7/31/17 Order (Dkt. # 23) at 1-2 n.1 (citing Lance v. United States, 70 F.3d 1093, 1094 (9th Cir. 1995); Kennedy v. United States Postal Serv., 145 F.3d 1077, 1078 (9th Cir. 1998); Heine v. Vilsack, No. 1:12-CV-01992-AWI-SMS, 2014 WL 7447619, at *2 (E.D. Cal. Dec. 31, 2014)).) Although the ORDER - 1 1 Sabelita Hawkins opposes the Government’s motion. (Resp. (Dkt. # 38).) The court has 2 considered the Government’s motion, the parties’ submissions in support of and in 3 opposition to the motion, the relevant portions of the record, and the applicable law. 4 Being fully advised, 2 the court GRANTS the Government’s motion for the reasons set 5 forth below. 6 7 II. A. 8 9 BACKGROUND Factual History This matter arises from a mental health breakdown that Ms. Hawkins allegedly suffered as a result of workplace bullying at the VA hospital at which she worked. (See 10 Compl. (Dkt. # 1) ¶ 4.3-4.4; Claim (Dkt. # 1-1) at 4.) Ms. Hawkins alleges that on 11 October 22, 2011, she suffered a psychotic episode at work resulting from three years of 12 workplace bullying and a failed meeting to address that bullying. (Compl. ¶¶ 4.4-4.5; 13 Claim at 4.) After this psychotic episode, Ms. Hawkins was admitted to 14 Swedish-Edmonds Hospital for observation on October 22, 2011. (Id. ¶ 4.5.) After her 15 release, Ms. Hawkins followed up with resident physician Daniel Doan at the Veterans 16 Hospital Women’s Clinic on October 26, 2011. (Compl. ¶ 4.6.) Ms. Hawkins told Dr. 17 Doan that she was experiencing insomnia, anxiety, depression, and difficulty 18 // 19 20 21 Ninth Circuit vacated the court’s July 31, 2017, judgment at the Government’s request (see Dkt. ## 30, 31), the court reiterates its conclusion that the Government is the only proper defendant in an FTCA claim and dismisses with prejudice the VA, VA Puget Sound Health Care System, John Does 1-10, and Jane Does 1-10. 2 22 Neither party requests oral argument, and the court concludes that oral argument is unnecessary. See Local Rules W.D. Wash. LCR 7(b)(4). ORDER - 2 1 concentrating that interfered with her daily activities. (Id. ¶ 4.7; see also Claim at 4 2 (stating that Ms. Hawkins informed Dr. Doan she was suffering “worsening insomnia, 3 extreme anxiety, severe depression, difficulty concentrating[,] and nervousness”).) Ms. 4 Hawkins allegedly requested that Dr. Doan prescribe lorazepam, but Dr. Doan allegedly 5 declined that request due to that medication’s habit-forming characteristics. (Compl. 6 ¶ 4.7.) Dr. Doan instead prescribed Zoloft for Ms. Hawkins’s anxiety and depression. 7 (Id. ¶ 4.8.) Ms. Hawkins further alleges that Dr. Doan recommended she avoid drugs and 8 alcohol and “follow up with her outside Bellevue Counselor.” (Id. ¶ 4.9.) Despite Dr. 9 Doan’s recommendations, Ms. Hawkins asserts that her anxiety and insomnia worsened. 10 11 (Id.) On November 16, 2011, Ms. Hawkins followed up with Dr. Doan and complained 12 that the medication Dr. Doan had prescribed was not working. (Id. ¶ 4.10.) Dr. Doan 13 allegedly told Ms. Hawkins that she had not given Zoloft enough time to effectively 14 work. (Id.) Later that month, on November 30, 2011, Dr. Carl Jensen evaluated Ms. 15 Hawkins to determine whether she could return to work. (Id. ¶ 4.11.) According to Ms. 16 Hawkins, Dr. Jensen diagnosed her with post-traumatic stress disorder (“PTSD”) during 17 that evaluation and did not prescribe any additional medication for Ms. Hawkins’s 18 anxiety and insomnia. (Id. ¶ 4.12.) 19 Ms. Hawkins alleges that she further deteriorated in December 2011 after 20 prolonged sleeplessness over two to three days. (Id. ¶ 4.13.) Due to the lack of sleep, 21 Ms. Hawkins alleges that on December 15, 2011, she became psychotic again. (Id.) 22 During this episode, she attacked her mother and was arrested. (Id.; Claim at 4.) ORDER - 3 1 B. Procedural History 2 1. Administrative Claims 3 Ms. Hawkins filed two relevant administrative claims: (1) an FTCA claim to the 4 VA for the doctors’ alleged malpractice in treating Ms. Hawkins after the workplace 5 psychotic episode (see Claim at 2, 4-5); and (2) a claim under the Federal Employees 6 Compensation Act (“FECA”), 5 U.S.C. § 8101 et seq., for the PTSD, psychotic disorder, 7 and depression that Ms. Hawkins alleges she suffered at work as a result of workplace 8 bullying (see Sykes Decl. (Dkt. # 40) ¶ 4, Ex. B (“FECA Claim”) at 1-2). 9 Ms. Hawkins filed her FTCA claim with the VA on October 24, 2013. (See Claim 10 at 2.) The VA denied that claim on April 18, 2014, concluding that “there was no 11 negligent or wrongful act on the part of an employee of the [VA] acting within the scope 12 of his or her employment.” (Denial (Dkt. # 1-2) at 2).) On October 1, 2014, Ms. 13 Hawkins requested that the VA reconsider its denial. (Recons. (Dkt. # 1-3) at 2-4.) 14 Ms. Hawkins’s FECA claim proceeded at a much slower pace. Ms. Hawkins filed 15 that claim on October 23, 2014. (See 7/25/17 Johnson Decl. (Dkt. # 20) ¶ 3, Ex. E 16 (“Hawkins Dep.”) at 75:23-79:12 (stating that Ms. Hawkins filed her FECA claim with 17 the VA on October 23, 2014); FECA Claim at 2 (identifying received date of October 23, 18 2014).) Although Ms. Hawkins filed her FECA claim in October 2014, the Department 19 of Labor Office of Workers’ Compensation Program (“OWCP”) did not begin processing 20 Ms. Hawkins’s claim until October 2017. 3 (See 6/21/19 Johnson Decl. (Dkt. # 37) ¶ 2, 21 3 22 The Government alleges that this delay occurred because Ms. Hawkins incorrectly filed her FECA claim with the VA instead of the Department of Labor. (See Mot. at 2 n.2.) During ORDER - 4 1 Ex. A (“Notice of Decision”) at 1 (stating that the Department of Labor sent Ms. 2 Hawkins a notice of claim deficiencies on October 4, 2017).) On April 27, 2018, the 3 OWCP issued a Notice of Decision denying Ms. Hawkins’s claim. (See Notice of 4 Decision.) The OWCP stated that it had considered evidence submitted by Ms. Hawkins 5 and concluded that “the evidence does not establish that you were injured in the 6 performance of a duty as required for coverage under [FECA].” (See id. at 2-4.) The 7 OWCP found that there was insufficient evidence to establish workplace bullying or any 8 error or abusive action by the VA in administering the meeting to address Ms. Hawkins’s 9 claims of bullying. (See id. at 3-5.) As such, Ms. Hawkins had failed to establish “that 10 [she] sustained an emotional condition that arose during the course of employment and 11 within the scope of compensable work factors as defined by the FECA.” (Id. at 5.) The 12 Government alleges that Ms. Hawkins did not exercise her right to appeal the OWCP’s 13 decision, and Ms. Hawkins does not dispute that claim. (See Mot. at 4; Resp. at 1-4.) 14 2. Federal Court Litigation 15 On April 6, 2016, after Ms. Hawkins’s administrative FTCA claim had been 16 denied, but while her administrative FECA claim remained pending, Ms. Hawkins filed 17 this lawsuit. (See Dkt.) She brings an FTCA claim on theories of negligence, medical 18 malpractice, corporate negligence, and violation of Washington’s Vulnerable Adult 19 Protection Act, RCW 74.34. (Compl. ¶¶ 5.1-5.32.) Ms. Hawkins seeks damages of 20 $1,500,000.00 for “serious personal injuries, pain and suffering[,] and mental anguish.” 21 22 her deposition, Ms. Hawkins acknowledged that she initially filed this claim with the VA. (See Hawkins Dep. at 77:19-78:9, 79:13-23.) ORDER - 5 1 (Id. ¶¶ 6.1-6.2.) Ms. Hawkins also seeks special damages, including out-of-pocket costs, 2 medical costs, lost income, loss of household services, and other special damages in an 3 amount to be proven at trial. (Id. ¶ 6.3.) Ms. Hawkins contends that the Government is 4 liable for negligence in her treatment and the supervision of her treatment because the 5 treatments Drs. Doan and Jensen prescribed did not work, the doctors did not suggest any 6 treatment for insomnia, and the doctors’ care fell below that of a reasonably prudent 7 physician. (See id. ¶¶ 4.15-4.22.) 8 9 On July 31, 2017, the court concluded that it lacked subject matter jurisdiction over this case because Ms. Hawkins’s injuries gave rise to a colorable claim under FECA, 10 which meant that her FTCA claims were preempted. (See 7/31/17 Order at 7-12.) The 11 court recognized that, where a court determines that FECA may deprive it of jurisdiction, 12 the proper course is to stay the case pending a determination by the Secretary of Labor on 13 the plaintiff’s FECA claim. (See id. at 12-13.) Despite that general rule, however, the 14 court reasoned that a stay pending a decision from the Secretary of Labor would be 15 inappropriate because Ms. Hawkins’s complaint was time-barred. (See id. at 13-16.) 16 Thus, the court dismissed Ms. Hawkins’s case without prejudice. (See id.) 17 On August 30, 2017, Ms. Hawkins appealed the court’s order dismissing her case. 18 (Notice of Appeal (Dkt. # 25).) While that appeal was pending, the OWCP issued its 19 notice of decision denying Ms. Hawkins’s FECA claim. (See Notice of Decision.) After 20 the OWCP’s decision, the Government moved to voluntarily remand this case and vacate 21 the court’s judgment dismissing Ms. Hawkins’s action so that it could file the current 22 motion to dismiss for lack of subject matter jurisdiction. (See JSR (Dkt. # 34) at 1-2.) ORDER - 6 1 The Court of Appeals for the Ninth Circuit granted the Government’s unopposed motion 2 and remanded this case with instructions to vacate. (See 2/26/19 Order (Dkt. # 31).) 3 The Government now requests that the court dismiss this case for lack of subject 4 matter jurisdiction based on the OWCP’s decision denying Ms. Hawkins’s FECA claim. 5 (See Mot. at 5-10.) Specifically, the Government alleges that the OWCP determined that 6 Ms. Hawkins’s claim alleged the type of injuries covered by FECA, which means this 7 court lacks jurisdiction over Ms. Hawkins’s FTCA claims. (See id.) The court now 8 addresses the Government’s motion. 9 III. 10 A. 11 ANALYSIS Legal Standard A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1) tests 12 the court’s subject matter jurisdiction. See Safe Air for Everyone v. Meyer, 373 F.3d 13 1035, 1039 (9th Cir. 2004); see also Oregon v. Legal Servs. Corp., 552 F.3d 965, 969 14 (9th Cir. 2009) (“An objection that a federal court lacks subject matter jurisdiction may 15 be raised at any time.”). “When a motion to dismiss attacks subject-matter jurisdiction 16 under Rule 12(b)(1) on the face of the complaint, the court assumes the factual 17 allegations in the complaint are true and draws all reasonable inferences in the plaintiff’s 18 favor.” City of L.A. v. JPMorgan Chase & Co., 22 F. Supp. 3d 1047, 1052 (C.D. Cal. 19 2014). A defendant may also mount a factual challenge, which the court resolves by 20 considering extrinsic evidence. See Wolfe v. Strankman, 392 F.3d 358, 362 (9th Cir. 21 2004). When a party raises the question of subject matter jurisdiction by factual motion, 22 // ORDER - 7 1 the plaintiff bears the burden of establishing the court’s jurisdiction by “furnish[ing] 2 affidavits or other evidence.” Meyer, 373 F.3d at 1039. 3 B. 4 The Government’s Motion The sole issue presented by the Government’s motion is whether Ms. Hawkins’s 5 complaint pleads injuries that are preempted by FECA. (See Mot. at 5-10.) Subject to 6 certain exceptions not relevant here, FECA provides “compensation . . . for the disability 7 or death of an employee resulting from personal injury sustained while in the 8 performance of his [or her] duty.” 5 U.S.C. § 8102(a). FECA is the exclusive remedy for 9 a federal employee’s injury on the job. See id. § 8116(c) (“The liability of the United 10 States . . . under this subchapter . . . is exclusive and instead of all other liability . . . .”). 11 Thus, where a plaintiff’s injury is “of the ‘type’ covered by FECA,” FECA preempts all 12 other statutory remedies arising under the same facts—including FTCA claims like the 13 ones pleaded by Ms. Hawkins. See Moe v. United States, 326 F.3d 1065, 1068 (9th Cir. 14 2003) (“FECA’s exclusivity provision bars recovery under the FTCA . . . .”). Whether 15 the injury falls within FECA’s scope “is a question that must be answered by the federal 16 courts, because it is one of jurisdiction.” Id. If FECA applies, “the federal courts should 17 dismiss any action arising under the same facts for lack of subject matter jurisdiction.” 18 Id.; Figueroa v. United States, 7 F.3d 1405, 1407-08 (9th Cir. 1993). 19 The court already concluded that it lacked subject matter jurisdiction over this 20 action because “Ms. Hawkins’s FTCA claim colorably falls within FECA’s scope.” 21 (7/31/17 Order at 10.) Specifically, the court determined that Ms. Hawkins alleged that 22 she suffered a physical injury—“emotional distress coupled with her extreme ORDER - 8 1 sleeplessness”—that arose as a result of three years of workplace harassment and a 2 psychotic episode that took place at work, and that these allegations were sufficient to 3 raise a “colorable” FECA claim. (See id. at 9-10.) In reaching that conclusion, the court 4 addressed and rejected two arguments that Ms. Hawkins offered in support of her 5 contention that FECA did not preempt her FTCA claims: “(1) the workplace incident 6 exacerbated symptoms [Ms. Hawkins] experienced ‘some 15 years earlier,’ and (2) [Ms. 7 Hawkins’s] treating physicians subsequently caused the injuries upon which her [FTCA] 8 claim is based.” (See id. at 10-12.) The court rejected these arguments because FECA 9 applies to existing injuries exacerbated by a workplace event and to claims of medical 10 malpractice arising from the treatment of a workplace injury. (See id.) Ultimately, the 11 court held that “Ms. Hawkins’s injuries—even if they stem from earlier injuries or result 12 from the alleged medical malpractice—give rise to a colorable FECA claim, divesting the 13 court of jurisdiction over her FTCA claim.” (Id. at 12.) 14 At the time of the court’s prior order, the OWCP had not yet addressed Ms. 15 Hawkins’s FECA claim. (Compare Notice of Decision (dated April 27, 2018) with 16 7/31/17 Order.) The court noted that where there is a “substantial question regarding 17 FECA coverage,” courts should stay an action pending a determination by the Secretary 18 of Labor on the FECA claim instead of dismissing for lack of jurisdiction. 4 (See 7/31/17 19 // 20 21 22 4 Although the court recognized that other courts had taken this approach to FECA preemption claims, the court ultimately determined that a stay was pointless in this case because Ms. Hawkins’s claims were time-barred. (See 7/31/17 Order at 13-16.) The Government no longer asserts that this case is time-barred. (See generally Mot.) As such, that issue is no longer before the court. ORDER - 9 1 Order at 12-13.) Now that the OWCP has issued its decision, there is no longer a 2 substantial question regarding FECA coverage. The OWCP concluded, as the court did, 3 that Ms. Hawkins’s claims were FECA claims. (See Notice of Decision at 2-5.) 4 Although the court is confident in this conclusion, the court notes that the 5 OWCP’s decision is not a model of clarity on this issue. The first line of the OWCP’s 6 decision states: “Your claim for compensation is denied because the evidence does not 7 establish that you were injured in the performance of duty as required for coverage under 8 [FECA].” (Id. at 1.) At first glance, that topline conclusion suggests that the OWCP 9 found that Ms. Hawkins’s claims were not, in fact, “covered” by FECA. However, the 10 remainder of the decision makes clear that the OWCP reviewed the evidence submitted 11 by Ms. Hawkins, determined that she raised the type of claims covered by FECA, but 12 denied her claim because she lacked evidence to support her allegations. (See id. at 3-5.) 13 For example, in response to Ms. Hawkins’s claim that she was injured as a result of her 14 co-worker’s failure to attend the mediation, the OWCP noted that “coverage will be 15 afforded [under FECA]” for injuries caused by “error or abuse on the part of the 16 employing establishment” in handling administrative matters like employment 17 mediations. (See id. at 4.) But the OWCP concluded that “[t]he evidence does not 18 establish that the employing agency erred or acted abusively when the other employee 19 failed to show for the mediation.” (Id.) Similarly, in response to Ms. Hawkins’s claims 20 of harassment by her supervisor, the court noted that “actions of an employee’s 21 supervisor which the employee characterizes as harassment may constitute a factor of 22 employment giving rise to coverage under [FECA],” but found that Ms. Hawkins’s ORDER - 10 1 harassment allegations were not supported by “any independent evidence.” (Id. at 4-5.) 2 As this analysis from the OWCP shows, the OWCP determined that Ms. Hawkins alleged 3 FECA claims, but failed to substantiate those claims. (See id. at 3-5.) In other words, as 4 the OWCP more precisely concluded, “[Ms. Hawkins’s] case is denied (not because an 5 emotional condition sustained in performance of duty would not be covered) but rather 6 because the evidence is insufficient to establish that a medical condition arose during the 7 course of employment and within the scope of compensable work factors.” (Id. at 3.) 8 FECA preemption applies in cases like Ms. Hawkins’s case where the Department 9 of Labor determines that the claimant alleged a claim of workplace injury but failed to 10 support that claim with sufficient evidence on the merits. See, e.g., Bennett v. Barnett, 11 210 F.3d 272, 277 (5th Cir. 2000) (“While Bennett submitted her claim, it was not denied 12 because of lack of coverage under the FECA, but for lack of proof. By ruling on the 13 sufficiency of the evidence, the Secretary thought coverage existed. Thus, the district 14 court did not have jurisdiction to try the claim.”); Smith v. Nicholson, 287 F. App’x 402, 15 404 (5th Cir. 2008) (holding that where the Secretary of Labor denied a workplace injury 16 claim “not for lack of coverage under FECA, but for insufficiency of proof,” that denial 17 was “fatal to [the plaintiff’s] federal court action”); Gonzalez v. United States, No. 18 12CV5408LDHRLM, 2016 WL 11468593, at *3 (E.D.N.Y. Aug. 31, 2016) (“[T]he 19 OWCP denied Plaintiff’s administrative complaint for insufficient evidence. Such a 20 denial was a determination on the merits, and, therefore, the OWCP determined that 21 Plaintiff’s claim was within the FECA’s coverage. Accordingly, this Court is deprived of 22 subject matter jurisdiction to adjudicate this claim.”); Borden v. United States, No. ORDER - 11 1 3:10CV374TSL-MTP, 2011 WL 4060227, at *2 (S.D. Miss. Aug. 26, 2011) (concluding 2 that “[the Secretary of Labor’s] dismissal for lack of sufficient proof of a compensable 3 injury was a dismissal on the merits, and ‘is fatal to his federal court action.’” (citing 4 Smith, 287 F. App’x at 404)); Scott v. U.S. Postal Serv., No. CIV A 05-0002 RWR, 2006 5 WL 2787832, at *4 (D.D.C. Sept. 26, 2006), aff’d, 258 F. App’x 333 (D.C. Cir. 2007) 6 (“[E]ven though Scott was ultimately denied compensation under FECA [by the 7 Employees Compensation Appeals Board (“ECAB”)] based on a lack of competent 8 medical evidence, that is immaterial to the issue of the Court’s jurisdiction.”); Keller v. 9 Dalton, No. 95-CV-0712, 1996 WL 36893, at *3 (E.D. Pa. Jan. 29, 1996) (holding that 10 the court lacked jurisdiction over claims where the OWCP “found that FECA’s coverage 11 extended to Plaintiff, [but] ruled that the evidence before it was insufficient to support the 12 ‘alleged mistreatment’ of Plaintiff”); Lewis v. Cisneros, No. CIV. A. 94-3267, 1995 WL 13 33662, at *2 (E.D. La. Jan. 27, 1995) (dismissing case for lack of jurisdiction because 14 “[t]he Order [from the Department of Labor] expressly denies plaintiff’s claims for lack 15 of evidence, not for jurisdictional flaws”); Cardwell v. United States, No. CIV. A. 92- 16 0107, 1992 WL 368495, at *3 (E.D. Pa. Dec. 3, 1992), aff’d, 6 F.3d 778 (3d Cir. 1993) 17 (inferring that the ECAB determined “that plaintiff’s claim is cognizable under the 18 FECA” because the ECAB “ruled on the merits of plaintiff’s FECA claim). 19 This rule makes good sense, and the court adopts it here. Even though the Ninth 20 Circuit has not yet explicitly adopted this rule, it has held that the FECA preemption 21 inquiry should focus on whether the plaintiff’s injury is “of the ‘type’ covered by FECA.” 22 See Moe, 326 F.3d at 1068. That guidance is in step with the rule articulated in the cases ORDER - 12 1 cited above that FECA preemption applies where a plaintiff alleges a workplace injury 2 but fails to prove those allegations on the merits. If a plaintiff comes to federal court with 3 allegations that are “of the type” that fall under FECA, the court lacks jurisdiction and 4 must dismiss so that the Department of Labor can adjudicate the claim. See id. That the 5 plaintiff may ultimately fail to prove his or her allegations and obtain compensation in the 6 Department of Labor proceeding does not mean that the plaintiff can escape FECA’s 7 preemptive grasp and file tort claims based on the same workplace injury in federal court. 8 See Smith, 287 F. App’x at 404 (“If the Secretary concludes that a claim is governed by 9 FECA, the courts have no jurisdiction either to review that determination or to consider 10 the underlying claim. This is true whether or not the Secretary ultimately allows benefits 11 under FECA.”). 12 Here, the OWCP determined that Ms. Hawkins’s allegations were “of the type” 13 covered by FECA, but that her allegations were insufficient because Ms. Hawkins did not 14 provide enough evidence to support them. (See Notice of Decision at 2-5.) The court has 15 no jurisdiction to review that decision. See 5 U.S.C. § 8128(b); see also Smith, 287 F. 16 App’x at 404 (“If the Secretary concludes that a claim is governed by FECA, the courts 17 have no jurisdiction either to review that determination or to consider the underlying 18 claim.”). Thus, the court lacks subject matter jurisdiction over Ms. Hawkins’s FTCA 19 claims, and the court GRANTS the Government’s motion. 5 The court therefore 20 5 21 22 Even if the court could review the OWCP’s decision and consider the merits of the arguments submitted by Ms. Hawkins, doing so would not change the outcome of this case. Ms. Hawkins made three arguments in support of her claim that her injuries do not fall under FECA: (1) that her “mental decompensation” is not an injury covered by FECA; (2) that her FTCA ORDER - 13 1 DISMISSES Ms. Hawkins’s case against the Government WITH PREJUDICE and 2 without leave to amend. 6 3 4 IV. CONCLUSION For the foregoing reasons, the court GRANTS the Government’s motion (Dkt. 5 # 36) and DISMISSES this case WITH PREJUDICE. 6 Dated this 30th day of September, 2019. 7 8 A 9 JAMES L. ROBART United States District Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 malpractice claims are factually separate from her FECA claims; and (3) her injuries were pre-existing and, as such, not covered by FECA. (See Resp. at 6-10.) The court rejected each of these arguments in its prior order (see 7/31/17 Order at 7-12) and would do so again here if it had authority to do so. 6 Dismissal without leave to amend is appropriate only when the court is satisfied that the deficiencies in the complaint could not possibly be cured by amendment. Jackson v. Carey, 353 F.3d 750, 758 (9th Cir. 2003) (citing Chang v. Chen, 80 F.3d 1293, 1296 (9th Cir. 1996)); Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000). Here, no amendment can get around FECA’s preemptive reach. See Cervantes v. Countrywide Home Loans, Inc., 656 F.3d 1034, 1041 (9th Cir. 2011) (explaining that dismissal without leave to amend is proper when amendment would be futile). Accordingly, the court dismisses Ms. Hawkins’s complaint without leave to amend. ORDER - 14

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