CHARLES J. SIRAGUSA, District Judge.
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 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.
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:
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, 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:
(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 a container of empty mail sacks.
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."
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.
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.
(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.
Plaintiff further accused USPS of "maliciously" attempting to have him "removed from his position" with "fabricated" allegations.
On August 8, 2013, USPS denied the FTCA administrative claim, for at least two reasons.
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 commenced this action pursuant to the FTCA, seeking $20 million in damages. The Complaint's "Preliminary Statement" indicates, in pertinent part:
(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."
(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 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";
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,
Docket No. [#6-2].
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."
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.'"
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.
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:
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 employee. However, the Secretary of Labor, by OWCP, has already determined that Plaintiff's injury is covered by FECA,
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 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"
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."
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, 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.
Defendants' motion to dismiss for lack of subject-matter jurisdiction [#6] is granted and this action is dismissed with prejudice.
SO ORDERED.
