United States District Court, District of Columbia
G. Sullivan United States District Judge.
November 26, 2013, pro se plaintiff Valerie Barnes
(“Ms. Barnes”) was crossing the street when she
was allegedly struck by a vehicle driven by federal employee
Craig Wasster. Ms. Barnes brings suit against Mr.
Wasster's employer, the United States of America
(“the defendant” or “the
government”), for damages caused by his negligent
driving pursuant to the Federal Tort Claims Act
(“FTCA”), 28 U.S.C. §§ 1346(b), 2671,
et. seq. Pending before the Court is the
government's motion to dismiss for lack of subject matter
jurisdiction. Def. Mot., ECF No. 16-1 (refiled). The Court
has carefully considered the motion, the response and replies
thereto, the applicable law, and the entire record herein.
For the reasons set forth below, the Court finds that it
lacks jurisdiction over Ms. Barnes' claim. Her action is
DISMISSED in its entirety.
time of the collision, Ms. Barnes was employed as a Global
Markets Coordinator by the U.S. Department of Commerce. OWCP
Form, ECF No. 16-8. On November 26, 2013 at about 2:50 pm,
Barnes was walking back to her office after picking up mail
from another federal building when she was hit by a car in
the crosswalk at 14th and D Streets Northwest. Compl.
¶5, ECF No. 1; OWCP Form, ECF No. 16-8. According to Ms.
Barnes, the driver, Federal Protective Officer Craig Wasster,
was “negligently and carelessly operat[ing] his motor
vehicle” at the time. Compl. ¶ 5. Mr. Wasster
reported that Ms. Barnes had walked into his passenger-side
mirror while he was stopped. Police Report 5, ECF No. 16-6.
result of the incident, Ms. Barnes was injured, ultimately
requiring hospitalization and extensive medical care. Compl.
¶ 10, 11, ECF No. 1. Beyond medical costs, Ms. Barnes
reportedly lost some degree of earning capacity because she
was “rendered totally and partially
December 13, 2013, Ms. Barnes filed a “Notice of
Traumatic Injury and Claim for Continuation of
Pay/Compensation” with the U.S. Department of Labor,
Office of Workers' Compensation Programs
(“OWCP”) pursuant to the Federal Employees'
Compensation Act (“FECA”), 5 U.S.C. § 8101,
et seq. OWCP Form, ECF No. 16-8. On the form, Ms.
Barnes indicated that she was injured “in performance
of duty” because she was picking up mail from a
“work area.” Id. She stated that she
sustained a shoulder bruise and neck, knee, and ankle
sprains. Id. On December 24, 2013, her claim was
accepted for benefits related to her “sprain of
March 5, 2014, Ms. Barnes filed a FTCA claim against the
Federal Protective Service, Mr. Wasster's employing
agency. SF 95, ECF No. 16-3. On August 20, 2015, the agency
denied Ms. Barnes' FTCA claim, stating that she is
precluded from a FTCA remedy because her FECA workers'
compensation claim was accepted. FTCA Denial, ECF No. 16-4.
On December 8, 2015, Ms. Barnes filed this lawsuit.
Standard of Review
“pro se complaint is entitled to liberal
construction.” Washington v. Geren, 675
F.Supp.2d 26, 31 (D.D.C. 2009) (citing Haines v.
Kerner, 404 U.S. 519, 520 (1972)). However,
“[a] federal district court may only hear a claim over
which it has subject-matter jurisdiction; therefore, a Rule
12(b)(1) motion for dismissal is a threshold challenge to a
court's jurisdiction.” Gregorio v. Hoover,
238 F.Supp.3d 37, 44 (D.D.C. 2017) (internal citation and
quotation omitted). To survive a Rule 12(b)(1) motion, the
plaintiff bears the burden of establishing that the court has
jurisdiction by a preponderance of the evidence. Lujan v.
Defenders of Wildlife, 504 U.S. 555, 561 (1992).
“Because Rule 12(b)(1) concerns a court's ability
to hear a particular claim, the court must scrutinize the
plaintiff's allegations more closely . . . than it would
under a motion to dismiss pursuant to Rule 12(b)(6).”
Schmidt v. U.S. Capitol Police Bd., 826 F.Supp.2d
59, 65 (D.D.C. 2011)(internal citations omitted). In so
doing, the court must accept as true all of the factual
allegations in the complaint and draw all reasonable
inferences in favor of the plaintiff, but the court need not
“accept inferences unsupported by the facts alleged or
legal conclusions that are cast as factual
allegations.” Rann v. Chao, 154 F.Supp.2d 61,
64 (D.D.C. 2001). In reviewing a motion to dismiss pursuant
to Rule 12(b)(1), the court “may consider materials
outside the pleadings” in determining whether it has
jurisdiction to hear the case. Jerome Stevens Pharm.,
Inc. v. FDA, 402 F.3d 1249, 1253 (D.C. Cir. 2005).
government argues that the Court lacks subject matter
jurisdiction over Ms. Barnes' FTCA claim because she was
approved for workers' compensation benefits under FECA,
an exclusive statutory scheme that provides compensation to
federal employees injured on the job. Def. Mot. 4-6, ECF No.
16-1. In other words, because the Department of Labor
approved Ms. Barnes' workers' compensation claim, the
government argues that the Court lacks jurisdiction over her
FTCA claim. Id. at 6. In response, Ms. Barnes argues
that her workers' compensation claim should never have
been approved because she was not performing official duties
at the time of the incident. Pl. Opp'n, ECF No. 12; Pl.
Mot., ECF No. 14. She states that she inadvertently listed
the time of injury on the OWCP form as 11:30 am-the time she
usually picked up the mail. In fact, Ms. Barnes was actually
injured at 2:50 pm, when she was on leave. Id.
Because the incident occurred while she was technically on
leave, it follows that her claim should have been denied
because she was not injured while performing official duties.
Additionally, Ms. Barnes argues that the Court has
jurisdiction over her FTCA claim because most of her injuries
were not covered by workers' compensation; she was
approved only for benefits related to her sprained neck.
Id. The government responds that any mistake made is
immaterial because the Secretary of Labor, through the OWCP,
determined that FECA applied and its decision is
unreviewable- whether right, wrong, or incomplete. Def. Reply
3, ECF No. 16-2.
provides that “the United States shall pay compensation
. . . for the disability or death of an employee resulting
from personal injury sustained while in the performance of
his duty . . . .” 5 U.S.C. § 8102(1). If the
Secretary of Labor determines that FECA applies because the
employee was “injured while engaged in the performance
of their official duties, ” that employee is
“entitled under FECA to compensation for medical
expenses, lost wages, and vocational rehabilitation.”
United States v. Lorenzetti, 467 U.S. 167, 169
(1984)(citing 5 U.S.C. §§ 8102-8107). This
compensation scheme is comprehensive and exclusive of any
other liability. See 5 U.S.C. §
8116(c)(“[L]iability of the United States . . . is
exclusive and instead of all other liability . . . in a civil
action . . . or under a Federal tort liability
statute.”); Chung v. Chao, 518 F.Supp.2d 270,
272 (D.D.C. 2007)(“[FECA] establishes a comprehensive
workers' compensation scheme under which federal
employees or their survivors receive compensation, regardless
of fault, for employment related injuries or deaths.”).
The Secretary of Labor's decision to grant or deny a
workers' compensation claim under FECA is “not
subject to review by another official of the United States or
by a court . . . .” 5 U.S.C. § 8128(b)(2); see
also Sw. Marine, Inc. v. Gizoni, 502 U.S. 81, 90 (1991).
the Secretary of Labor, via OWCP, determined that FECA
applied to Ms. Barnes' claim. Therefore, because
FECA's compensation scheme is exclusive and not subject
to review, this Court has no jurisdiction over her FTCA
claim. Congress created “an unambiguous and
comprehensive provision barring any judicial review of the
Secretary of Labor's determination of FECA coverage.
Consequently, the courts have no jurisdiction over FTCA