In a memorandum in support of its motion to dismiss, the defendant argues (1) that the Secretary of Labor has accepted a FECA claim for Ms. Doe's alleged injuries, (2) that the Secretary's determination that FECA is applicable is conclusive, and not reviewable by this court, (3) that FECA provides the exclusive remedy for the plaintiffs' alleged injuries, including the injuries of emotional distress and loss of consortium, and (4) that this court accordingly lacks jurisdiction to consider the plaintiffs' FTCA claims. Item 12, pp. 5-13.
The plaintiffs argue, in response, that this court has jurisdiction, under the Administrative Procedure Act, 5 U.S.C. § 701 et seq., to review the Secretary of Labor's determination that Ms. Doe's claim for emotional distress is covered by FECA. They maintain that the Secretary's determination was arbitrary and capricious, for two reasons, (1) because FECA covers only federal employees, and Jane Doe was not a federal employee at the time in question,
and (2) because claims for emotional distress are not covered by FECA Item 15, pp. 4-12. They also argue that the exclusivity provisions of FECA cannot bar Jane Doe's breach of contract claim, id. at 9, or her claim based on wrongful disclosure of confidential information. Id. at 12-13. The defendant has filed a reply brief. Item 17. Oral argument was held on February 2, 1996.
At the outset, the court wishes to observe that this is a most disturbing case. First of all it is extraordinary, and appalling, that during the course of a training assignment at a federal government hospital, a student with no experience whatever of drawing blood from patients should be directed to obtain blood from an individual known to be infected with HIV. Second, it is perturbing that at the time of the incident, the student concerned had not executed an appointment letter formally establishing her status at the facility. And finally, it is most troubling that immediately following the incident, government officials hastily obtained the student's signature on an appointment letter, and, in her absence, initiated a FECA claim on her behalf.
The government's motion to dismiss, however, presents a narrow issue -- whether or not the court has jurisdiction to consider the plaintiffs' FTCA claims. Our starting point must be to acknowledge that FECA provides the exclusive remedy against the federal government for work-related injuries sustained by federal employees. 5 U.S.C. § 8116(c).
See Lance v. United States, 70 F.3d 1093, 1095 (9th Cir. 1995); Votteler v. United States, 904 F.2d 128, 130 (2d Cir.), cert. denied, 498 U.S. 1000, 112 L. Ed. 2d 567, 111 S. Ct. 560 (1990). Where FECA applies, the federal courts have no jurisdiction to entertain FTCA claims asserted by injured parties. Id..
Decisions by the Secretary of Labor allowing or denying the payment of awards under FECA are final and conclusive, and are not subject to judicial review. 5 U.S.C. § 8128(b).
Where the Secretary has determined that FECA is applicable, therefore, actions under FTCA are precluded. Swafford v. United States, 998 F.2d 837, 839-41 (10th Cir. 1993); McDaniel v. United States, 970 F.2d 194, 196-98 (6th Cir. 1992); Grijalva v. United States, 781 F.2d 472, 474 (5th Cir.), cert. denied, 479 U.S. 822, 93 L. Ed. 2d 42, 107 S. Ct. 89 (1986).
In cases in which there has been no decision by the Secretary concerning FECA coverage, but there is a substantial question as to whether FECA may apply, the proper course for the district court is to stay proceedings pending a final determination by the Secretary. Figueroa v. United States, 7 F.3d 1405, 1408 (9th Cir. 1993), cert. denied, U.S. , 114 S. Ct. 1537 (1994); McDaniel v. United States, 970 F.2d at 198; Bruni v. United States, 964 F.2d 76, 78-80 (1st Cir. 1992). Only where the Secretary has made no decision, and there is no substantial question as to the applicability of FECA, should the court render a judgment. Id. "A substantial question exists unless it is certain that the Secretary would not find coverage." Bruni v. United States, 964 F.2d at 79.
In the present case, the government maintains that on January 15, 1991, the Secretary of Labor, through the OWCP, accepted a claim for FECA coverage of Ms. Doe's needle-stick injury of November 28, 1990, and that according to OWCP District Director Jonathan G. Lawrence, Ms. Doe is entitled to all benefits available under FECA. Item 12, p. 9. Because the Secretary has determined that FECA coverage applies to Ms. Doe's injury, it argues, the exclusive remedy provision of FECA bars the plaintiffs' FTCA claims, and this action should be dismissed Id at 10.
The plaintiffs contend that this court should disregard the declaration of OWCP District Director Lawrence, upon which the government relies. Item 15, p. 5. They maintain that the declaration:
lacks foundational merit and was written by Mr. Lawrence solely to accompany the Government's summary judgment motion ...