Horton v. United States , 144 F. App'x 931 ( 2005 )

Opinions of the United
2005 Decisions States Court of Appeals
for the Third Circuit
8-8-2005
Horton v. USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 04-3608
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"Horton v. USA" (2005). 2005 Decisions. Paper 724.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
NO. 04-3608
________________
JOHN D. HORTON,
Appellant
v.
UNITED STATES OF AMERICA
____________________________________
On Appeal From the United States District Court
For the District of New Jersey
(D.C. Civ. No. 04-cv-01334)
District Judge: Honorable Jerome B. Simandle
____________________________________
Submitted Under Third Circuit LAR 34.1(a)
August 5, 2005
Before: SLOVITER, BARRY and FISHER, Circuit Judges.
(Filed August 8, 2005)
_______________________
OPINION
_______________________
PER CURIAM
John D. Horton appeals from the District Court’s order granting the United States’
motion to dismiss for lack of subject matter jurisdiction. For the following reasons, we
will affirm.
Horton was hired as a librarian in the Morale, Welfare and Recreation Services
Division Library at the Ft. Belvoir military base in Virginia. According to affidavits
submitted by the United States, on his first day of employment, Horton was released from
initial processing as a new employee to obtain necessary passes and identification
associated with his employment. Horton went to the Ft. Belvoir Privately Owned Vehicle
Registration Office to apply for a privately owned vehicle registration decal (Department
of Defense Form 2220), which was required in order for an employee to drive a private
vehicle onto the base. While at the registration office, Horton allegedly caused a
disturbance when it was revealed that he had been barred from entering a United States
Air Force Base. As a result, he was detained by military police for thirty minutes. Horton
filed a complaint alleging violations of the Federal Tort Claims Act (“FTCA”) for assault,
false arrest, false imprisonment and negligent infliction of emotional distress. The United
States filed a motion to dismiss for lack of subject matter jurisdiction pursuant to Fed. R.
Civ. P. 12(b)(1), which was granted. Horton filed a timely appeal.
We have jurisdiction pursuant to 28 U.S.C. § 1291. Our review is plenary. See
Gould Elecs. Inc. v. United States, 220 F.3d 169, 176 (3d Cir. 2000). In reviewing a
factual attack on the District Court’s subject matter jurisdiction, the Court may consider
evidence outside the pleadings. See Mortensen v. First Fed. Savings & Loan Ass’n, 549
F.2d 884, 891 (3d Cir. 1977). The burden is on Horton to prove jurisdiction. See Kehr
Packages, Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1409 (3d Cir. 1991).
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The Federal Employees Compensation Action (“FECA”) provides an exclusive
and comprehensive worker’s compensation scheme to federal employees for injuries that
are “sustained while in the performance of [their] duty.” 5 U.S.C. § 8102(a). If a claim is
covered by the FECA, a federal court lacks subject matter jurisdiction to entertain the
claim. 5 U.S.C. § 8128(b); see also Heilman v. United States, 731 F.2d 1104, 1110 (3d
Cir. 1984); DiPippa v. United States, 687 F.2d 14, 17 (3d Cir. 1982). Our jurisdiction “is
limited to determining if a substantial question of coverage under FECA exists.” White v.
United States, 143 F.3d 232, 234 (5th Cir. 1998). A substantial question exists unless it is
“‘certain that [the Secretary of Labor] would find no coverage.’” DiPippa, 687 F.2d at 16(citation omitted).
The District Court concluded that it lacked subject matter jurisdiction because
there was a substantial question of FECA coverage. We agree. Horton argues that his
claim is not covered by FECA because he was on his lunch break when he went to the
registration office to obtain a vehicle decal. However, it is not necessary that the
employee be engaged in an activity of benefit to his employer. Bruni v. United States,
964 F.2d 76, 79-80 (1st Cir. 1992) (citations omitted). A substantial question of FECA
coverage has been found when the injury occurred on a military base where the plaintiff is
employed, even though the employee was on a lunch break or en route home from work.
See Woodruff v. United States, 954 F.2d 634, 638 (11th Cir. 1992); White, 143 F.3d at
238. The Employees’ Compensation Appeals Board has accepted jurisdiction under
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FECA in cases where an employee was injured during his lunch break or en route to
work. See Woodruff, 954 F.2d at 638; In re Ross, 42 E.C.A.B. 371 (1991). Thus, Horton
must first seek relief under the FECA. If the Secretary determines that Horton cannot
proceed under the FECA, he may pursue his FTCA claim in the District Court, assuming
his action is timely commenced after the mailing of the notice of final denial of his claim
by the Secretary. See 28 U.S.C. § 2401(b).
For the foregoing reasons, we will affirm the order of the District Court.
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