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GRICHENKO v. USPS

October 21, 1981

Frederick GRICHENKO, Plaintiff,
v.
UNITED STATES POSTAL SERVICE; United States of America; Charles Borrmann; Anthony M. Murello; Joseph L. Moder; John P. Criado; James Fox; and Sam S. Presser, Defendants



The opinion of the court was delivered by: PLATT

MEMORANDUM & ORDER

I

 This case involves two claims by the plaintiff, Frederick Grichenko, for an eye injury allegedly sustained at his place of employment as a result of the negligence of the defendants and for injuries resulting from their intentional failure timely to process his claim for compensation under the Federal Employees' Compensation Act (FECA or the Act), 5 U.S.C. § 8101 et seq. (1976).

 The action was originally commenced in December, 1980 against the United States Postal Service (Postal Service) and the United States of America (United States). Plaintiff asserted jurisdiction under 39 U.S.C. § 409 and 28 U.S.C. § 1346. These defendants moved to dismiss for lack of subject matter jurisdiction and failure to state a claim upon which relief could be granted. Plaintiff subsequently served an amended complaint adding the individually named defendants, Borrmann, Murello, Moder, Criado, Fox and Presser, all employees of the Postal Service. He further asserted the federal question jurisdiction of this Court based upon defendants' deprivation of his right to due process under the Fifth Amendment.

 The Postal Service and United States renewed their motion to dismiss for lack of subject matter jurisdiction and failure to state a claim upon which relief could be granted. By order of this Court dated April 8, 1981, their motion was granted.

 The six individually named defendants now seek to dismiss this action on those same grounds or alternatively, to be granted summary judgment. For the reasons set forth below, plaintiff's negligence claim is dismissed for lack of subject matter jurisdiction. Said defendants' motion is denied, however, as to plaintiff's three due process claims.

 Frederick Grichenko is a former United States Postal Service employee. He alleges that on January 7, 1978, while working at the Hicksville Post Office Annex, an unidentified object or particle flew into his eye, causing pain and blurred vision. He claims he immediately reported the incident to his supervisors, defendants Borrman and Moder, and that they failed to advise him to file an injury claim. Grichenko washed out his eye but, without seeking medical attention, returned to work. On March 31, 1978, when his eye problem had failed to abate he consulted an opthamologist who diagnosed a detached retina. In April, 1978, Grichenko, with the assistance of defendants Presser and Criado, filed a disability claim under FECA. He was then told to wait at home. Subsequent inquiries as to the status of his claim were to no avail. On at least one occasion Grichenko claims defendant Fox told him "we are going to fight you."

 Grichenko remained home using his available sick leave and vacation time. He eventually found himself without either disability payments or salary. From July 19, 1979, until October 26, 1979, he was hospitalized for what was diagnosed as post traumatic depression related to his inability to work, his inability to see properly, and his inability to obtain a determination on his disability claim.

 Subsequent to his release from the hospital in October, 1979, Grichenko communicated with the Department of Labor, Office of Workers' Compensation Programs (OWCP), to determine the status of his claim. On January 30, 1980, he was notified by the OWCP that no disability claim had ever been filed by the Postal Service regarding the January, 1978 incident. Further inquiries to defendants at the Postal Service yielded conflicting answers as to whether the claim had been forwarded by them to the OWCP.

 In June, 1980, Grichenko filed a notice of claim with the Postal Service regarding this suit. Within a month, he received his first response from the OWCP denying his claim on the basis that he had not made a timely application. Despite this finding, the OWCP considered the admittedly stale claim and rejected it on the additional ground that Grichenko's evidence was insufficient to establish that the eye injury was sustained in the performance of his duties or due to conditions of his employment. This determination was reconsidered by the Department of Labor (DOL) at Grichenko's request. In October, 1980, his claim was again disallowed on the insufficience of evidence grounds. Grichenko then proceeded with this suit.

 II

 Grichenko's first claim is for damages resulting from defendants' negligent failure to remove dust and particles from the air, failure to provide or require safety glasses and failure to provide adequate first aid.

 As was noted above, this suit was originally instituted against the United States. Jurisdiction for the negligence action was arguably predicated upon the Federal Tort Claims Act. We dismissed the United States as a party because plaintiff's exclusive remedy against the United States concerning those alleged acts of negligence is the Federal Employees' Compensation Act, 5 U.S.C. § 8116 (1976). See Gill v. United States, 641 F.2d 195 (5th Cir. 1981); Levine v. United States, 478 F. Supp. 1389 (D.Mass.1979). *fn1" The assertion of this same claim against the individually named defendants requires an independent source of subject matter jurisdiction. It is clear that "(t)here is no general statutory jurisdiction over actions against federal officers, employees and agencies." McQueary v. Laird, 449 F.2d 608, 610 (10th Cir. 1971); 14 Wright, Miller & Cooper, Federal Practice & Procedure § 3655 ...


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