Filed: May 18, 2005
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 2005 Decisions States Court of Appeals for the Third Circuit 5-18-2005 Izzo v. USA Precedential or Non-Precedential: Non-Precedential Docket No. 04-4418 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2005 Recommended Citation "Izzo v. USA" (2005). 2005 Decisions. Paper 1160. http://digitalcommons.law.villanova.edu/thirdcircuit_2005/1160 This decision is brought to you for free and open access by the Opinions of the United States C
Summary: Opinions of the United 2005 Decisions States Court of Appeals for the Third Circuit 5-18-2005 Izzo v. USA Precedential or Non-Precedential: Non-Precedential Docket No. 04-4418 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2005 Recommended Citation "Izzo v. USA" (2005). 2005 Decisions. Paper 1160. http://digitalcommons.law.villanova.edu/thirdcircuit_2005/1160 This decision is brought to you for free and open access by the Opinions of the United States Co..
More
Opinions of the United
2005 Decisions States Court of Appeals
for the Third Circuit
5-18-2005
Izzo v. USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 04-4418
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2005
Recommended Citation
"Izzo v. USA" (2005). 2005 Decisions. Paper 1160.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/1160
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2005 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
________________
No. 04-4418
________________
VICTOR A. IZZO,
Appellant
v.
U.S. GOVERNMENT
________________
On Appeal From the United States District Court
For the Middle District of Pennsylvania
(D.C. Civ. No. 03-cv-01478)
District Judge: Honorable A. Richard Caputo
________________
Submitted Under Third Circuit LAR 34.1(a)
May 10, 2005
Before: RENDELL, AMBRO and FUENTES, Circuit Judges
(Filed: May 18, 2005)
________________
OPINION
________________
PER CURIAM
Victor Izzo, a pro se litigant, appeals an order of the United States District Court
for the Middle District of Pennsylvania dismissing his complaint. Izzo contends that the
District Court abused its discretion in setting aside a default judgment against the United
States and in dismissing his complaint for lack of subject matter jurisdiction. Finding no
error, we will affirm.
I.
Because the parties are familiar with the relevant facts, which are undisputed, we
need only discuss them summarily. Izzo’s son, Brandon Izzo, was employed by the
United States Army Corp of Engineers at the Beltsville Dam in Franklin Township,
Pennsylvania. On May 23, 1994, the Army Corp used a pump that emitted carbon
monoxide in a manhole near the dam. On the following morning, a supervisor directed
Brandon to enter the manhole. Based upon the presence of carbon monoxide still
remaining in the manhole, Brandon died.
Izzo filed a compensation claim with the United States Department of Labor.
Subsequently, the Department of Labor sent a letter to Izzo explaining the benefits that he
was entitled to pursuant to the Federal Employee Compensation Act (“FECA”), and
disbursed benefits in the amount of $1000 for burial expenses and administrative costs.
Izzo filed an administrative claim with the Department of the Army, which was denied.
Izzo then filed the present action, seeking damages against the United States of America
for claims of defamation, violation of his civil rights, and wrongful death. After the
United States failed to respond to the complaint, Izzo filed a motion for a default
judgment, which the District Court entered. Once the United States became aware of the
default judgment, it filed a motion to set aside the default. The District Court granted the
motion, finding that Izzo did not properly effectuate service of process. In addition, it
found that Izzo was not prejudiced by the minor delay, the United States has meritorious
-2-
defenses, and the United States did not act in bad faith. The United States then filed a
motion to dismiss the complaint, contending, inter alia, that the District Court lacked
subject matter jurisdiction.
The District Court found that it lacked jurisdiction over Izzo’s defamation and civil
rights claims, as they are barred by the doctrine of sovereign immunity. In addition, the
court found that it lacked jurisdiction over the wrongful death claim pursuant to FECA.
Thus, the District Court granted the United States’ motion to dismiss pursuant to Federal
Rule of Civil Procedure 12(b)(1). This appeal followed.
II.
We have jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary review
over the District Court’s dismissal under Rule 12(b)(1) for lack of subject matter
jurisdiction. In re Kaiser Group Intern. Inc., 399 F.3d 558, 561 (3d Cir. 2005).
Absent a waiver, the doctrine of sovereign immunity “not only protects the United
States from liability, it deprives a court of subject matter jurisdiction over claims against
the United States.” Richards v. United States, 176 F.3d 652, 654 (3d Cir. 1999).
Defamation is not included in the list of actions for which the United States has waived
immunity under the Federal Tort Claims Act (“FTCA”). See 28 U.S.C. §§ 1346(b),
2680(h). Therefore, the defamation claim was properly dismissed. In addition, the
United States Supreme Court has noted that the FTCA waiver of sovereign immunity
extends to claims cognizable under § 1346(b). See FDIC v. Meyer,
510 U.S. 471, 475-77
(1994). Civil rights claims, however, are not cognizable under that section.
Id. at 478
-3-
(holding that state, rather than federal, law must be the source of claims cognizable under
§ 1346(b)). Accordingly, the District Court properly dismissed Izzo’s civil rights claim,
as well.
FECA is intended to be the exclusive remedy available to the families of a federal
employee injured in the performance of duty. See 5 U.S.C. § 8116(c); Lockheed Aircraft
Corp. v. United States, 460 U.S. 190, 193-95 (1983). Izzo contends that because his son
was not trained in the task he was performing on the day he died, his death did not occur
within the scope of his employment, and thus FECA is inapplicable. See App. Brief at
13.
The determination of whether the decedent’s death falls within the scope of FECA
is entrusted exclusively to the Secretary of Labor. Heilman v. United States, 731 F.2d
1104, 1109-10 (3d Cir. 1984). Moreover, this determination is barred from judicial
review. 5 U.S.C. § 8128(b);
Heilman, 731 F.2d at 1109. Because, as the District Court
properly explained, the Secretary of Labor has determined that Brandon Izzo’s death fell
within the scope of FECA, the District Court lacked subject matter jurisdiction over
Izzo’s wrongful death claim. See
Heilman, 731 F.2d at 1110-11.
Finally, because the District Court identified good cause to set aside the default
judgment, it did not abuse its discretion in doing so. See United States v. $55,518.05 in
U.S. Currency, 728 F.2d 192, 195 (3d Cir. 1984).
III.
For the foregoing reasons, we will affirm the District Court’s judgment.
-4-
