Benton v. U.S. ( 1992 )


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  •                IN THE UNITED STATES COURT OF APPEALS
    
                           FOR THE FIFTH CIRCUIT
    
                           _____________________
    
                                No. 91-1547
    
                           _____________________
    
    
              MERRILL BENTON,
    
                                   Plaintiff-Appellant,
    
              v.
    
              UNITED STATES OF AMERICA and
              THE UNITED STATES POSTAL SERVICE,
    
                                   Defendants-Appellees.
    
    _________________________________________________________________
    
               Appeal from the United States District Court
                 for the Southern District of Mississippi
    _________________________________________________________________
                            (February 12, 1992)
    
    Before POLITZ, Chief Judge, and KING and EMILIO M. GARZA, Circuit
    Judges.
    
    PER CURIAM:
    
         Merrill Benton appeals the district court's grant of the
    
    Government's motion to dismiss her complaint pursuant to Federal
    
    Rule of Civil Procedure 12(b)(1) and (6).   She contends that the
    
    district court erred in concluding that (1) the exclusive remedy
    
    provision of the Federal Employees Compensation Act barred her
    
    recovery under the Federal Tort Claims Act for personal injuries,
    
    and (2) the exclusive remedy provision of the Federal Tort Claims
    
    Act barred her claim against the United States Postal Service.
    
    For the reasons set forth below, we affirm the district court's
    
    dismissal of the claim.
                                    I.
    
         On October 14, 1987, Benton was an employee of a federal
    
    magistrate with offices in the U.S. Postal Service Building in
    
    Biloxi, Mississippi.   While on her way to lunch, she slipped and
    
    fell on a stairway in that building, causing severe injury to her
    
    back.   On October 10, 1989, Benton filed an administrative claim
    
    for her injuries under the Federal Employees Compensation Act
    
    ("FECA").   Her FECA benefits paid her employee compensation and
    
    all of her medical expenses during her disability period.
    
         After exhausting her administrative remedies, Benton filed
    
    the complaint at issue on June 18, 1990, alleging that the
    
    stairwell that she fell on was negligently maintained, and
    
    seeking damages under the Federal Tort Claims Act ("FTCA") for
    
    pain and suffering, future earnings, and general loss of
    
    enjoyment of life.   She brought the action against the Postal
    
    Service, as both a co-employee and owner of the Postal Service
    
    Building, and against the United States as a substitute defendant
    
    for the Postal Service.   In response, the defendants moved to
    
    dismiss, arguing that the exclusive remedy provision of the FTCA
    
    barred her claim against the Postal Service, and the exclusive
    
    remedy provision of the FECA barred her personal injury claim
    
    against the United States.   The district court agreed that the
    
    Postal Service was not a proper party to the suit, and that 28
    
    U.S.C. § 2679(b)(1) precluded her claim against the United States
    
    as substitute defendant for an unnamed co-employee.
    
    
    
    
                                     2
    Consequently, the district court dismissed Benton's claims with
    
    prejudice.
    
         Benton challenges this dismissal on three grounds: (1) the
    
    FECA exclusive remedy provision does not bar her claim under the
    
    FTCA for injuries not compensable under the FECA; (2) the FECA
    
    does not bar her claim against the United States because the
    
    Postal Service was not her employer; and (3) the FECA's
    
    prohibition against judicial review of the Secretary of Labor's
    
    decisions to award individual benefits, 5 U.S.C. § 8128(b),
    
    violates the Due Process Clause of the Fifth Amendment.   We
    
    address each of these challenges in turn.
    
                                    II.
    
         We review a dismissal pursuant to Federal Rule of Civil
    
    Procedure 12(b)(6) under the same standard used by the district
    
    court: a claim may not be dismissed unless it appears certain
    
    that the plaintiff cannot prove any set of facts in support of
    
    her claim which would entitle her to relief.   Conley v. Gibson,
    
    
    355 U.S. 41
    , 45-46 (1957).   We employ the same standard in
    
    reviewing dismissals for lack of subject matter jurisdiction
    
    under Rule 12(b)(1).   Hospital Bldg. Co. v. Rex Hosp. Trustees,
    
    
    425 U.S. 738
    , 742 n.1 (1976).   So, taking Benton's factual
    
    allegations as true for the purposes of this appeal, we
    
    independently review her claims to determine whether the district
    
    court correctly dismissed it under Rule 12(b)(1) and (6).
    
         First, Benton argues that because she did not receive
    
    compensation under the FECA for the injuries claimed in the
    
    
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    instant suit, the FECA exclusive remedy provision, 5 U.S.C. §
    
    8116(c), does not bar her claim.         This provision states:
    
                   The liability of the United States or an
                   instrumentality thereon . . . with respect to
                   the injury or death of an employee is
                   exclusive and instead of all other liability
                   of the United States or the instrumentality
                   to the employee, his legal representative,
                   spouse, dependents, next of kin, and any
                   other person otherwise entitled to recover
                   damages from the United States or
                   instrumentality because of the disability or
                   death in a direct judicial proceeding, in a
                   civil action, or in admiralty, or by an
                   administrative or judicial proceeding under a
                   workmen's compensation statute or under a
                   Federal tort liability statute. . . .
    
    5 U.S.C. § 8116(c).       In Grijalva v. United States, 
    781 F.2d 472
    
    (5th Cir.), cert. denied, 
    479 U.S. 822
     (1986), we held that this
    
    provision bars an individual who has received an award of
    
    compensation benefits under the FECA from suing the United States
    
    for that injury under the FTCA.          Id. at 474.   Moreover, we found
    
    that it also barred the claimant's daughter from recovering
    
    damages for loss of her mother's support and services.            Id. at
    
    475.       The FECA benefits received by the claimant were not
    
    intended to compensate the daughter for any personal loss
    
    resulting from her mother's injuries.1         Nonetheless, we adopted
    
    the reasoning of the Sixth Circuit in Woerth v. United States,
    
    
    714 F.2d 648
    , 650 (6th Cir. 1983), that the proper inquiry is
    
    "whether the claim is 'with respect to the injury or death of an
    
    
           1
           Grijalva received disability compensation, reimbursement
    of medical expenses, and continuation of her salary during her
    disability. See Grijalva v. United States, 
    781 F.2d 472
    , 473
    (5th Cir.), cert. denied, 
    479 U.S. 822
     (1986).
    
                                         4
    employee.'"   781 F.2d at 475; see also Sheehan v. United States,
    
    
    896 F.2d 1168
     (9th Cir. 1990) (reversing dismissal of an FTCA
    
    claim based on negligent infliction of emotional distress not
    
    compensated under the FECA because it was "divorced from any
    
    claim of physical injury").   We agree with the district court
    
    that the exclusive remedy provision of the FECA bars Benton's
    
    claim for pain and suffering, future earnings, and general loss
    
    of enjoyment of life -- injuries which derived from her physical
    
    injury for which she was already compensated under the FECA.
    
         Second, Benton contends that the FECA exclusive remedy
    
    provision does not bar her suit against the United States in its
    
    capacity as substitute defendant for the negligence of the Postal
    
    Service, a co-employee.    Benton relies on our holding in Allman
    
    v. Hanley, 
    302 F.2d 559
     (5th Cir. 1962), to support this
    
    contention.   In Allman, we held that absent specific statutory
    
    command, workers' compensation statutes are not construed to
    
    abrogate the common law rights of employees to bring negligence
    
    suits against their fellow employees.    Id. at 563.   Accordingly,
    
    we allowed the plaintiff's negligence action against a fellow
    
    government employee to proceed notwithstanding the FECA.    As the
    
    district court observed, the Federal Employees Liability Reform
    
    and Tort Compensation Act of 1988, codified at 28 U.S.C. §
    
    2679(b)(1), precludes Benton from obtaining the same result.
    
    This provision provides:
    
              The remedy against the United States provided
              by sections 1346(b) and 2672 of this title
              for injury . . . arising or resulting from
              the negligent or wrongful act or omission of
    
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               any employee of the Government while acting
               in the scope of his office or employment is
               exclusive of any other civil action or
               proceeding for monetary damages by reason of
               the same subject matter against the employee
               whose act or omission gave rise to the claim.
               . . .
    
    28 U.S.C. § 2679(b)(1).    Because this specific statutory command
    
    prohibits Benton's claim against the United States as substitute
    
    defendant for an unnamed co-employee,2 we agree with the district
    
    court that the claim should be dismissed.
    
         Finally, Benton challenges the constitutionality of the
    
    FECA's prohibition against judicial review of decisions
    
    concerning the award of payments under the Act, 5 U.S.C. §
    
    8128(b).   She contends that this provision allows the Secretary
    
    of Labor to put an arbitrary cap on the amount of coverage
    
    available to a federal employee.       Moreover, she asserts that
    
    access to the FTCA is essential to ensure that federal employees
    
    receive full compensation for their work-related injuries.
    
         It is well settled that "Congress has the power, through a
    
    'clear command of the statute,' to preclude review of policy
    
    decisions. . . ."   Paluca v. Secretary of Labor, 
    813 F.2d 524
    ,
    
    527 (1st Cir.) (quoting Barlow v. Collins, 
    397 U.S. 159
    , 167
    
    (1970)), cert. denied, 
    484 U.S. 943
     (1987); see also Rodrigues v.
    
    Donovan, 
    769 F.2d 1344
     (9th Cir. 1985) ("The structure of the
    
    FECA and the language of section 8128(b) convince us that
    
         2
           See Noga v. United States, 
    411 F.2d 943
     (9th Cir.), cert.
    denied, 
    396 U.S. 841
     (1969) (dismissing FTCA suit in which United
    States was technical defendant in place of negligent federal
    driver because Federal Drivers Act, 28 U.S.C. § 2679 (b)-(e)
    (1964), rendered government employee driver immune from suit).
    
                                       6
    Congress's intent was that the courts not be burdened by a flood
    
    of small claims challenging the merits of compensation decisions,
    
    . . . and that the Secretary should be left free to make the
    
    policy choices associated with disability decisions.") (citations
    
    omitted).   A statute may prohibit review of adjudications made in
    
    conformity with policy decisions, so long as it does not prohibit
    
    review of constitutional questions.   See Paluca, 813 F.2d at 526,
    
    527 (confirming validity of § 8128(b)'s bar of judicial review
    
    because it refers to statutory, and not constitutional, action)
    
    (citing Johnson v. Robison, 
    415 U.S. 361
    , 366 (1974)).     Because §
    
    8128(b) prohibits review only of compensations decisions wholly
    
    within the discretion of the Secretary of Labor, we find that
    
    Benton's challenge lacks merit.
    
         Benton also suggests that the exclusive remedy provision of
    
    the FECA deprives federal employees of their equal protection and
    
    due process rights because only federal employees are barred from
    
    suing under the FTCA when they are injured by negligent acts of
    
    the government.   However, the FECA bar applies only to those
    
    claims arising out of injuries incurred in the scope of
    
    employment.   The government has a legitimate reason for
    
    maintaining a federal worker's compensation program in this
    
    manner.   In Gill v. United States, 
    641 F.2d 195
     (5th Cir. 1981),
    
    we observed that the FECA program is akin to state workers'
    
    compensation programs.   In Gill, we recognized that "[t]he heart
    
    of the system is an implicit bargain: employees are granted surer
    
    and more immediate relief in return for foregoing more expensive
    
    
                                      7
    rewards outside the system."   Id. at 197.    Benton's
    
    constitutional challenge provides no convincing reason for us to
    
    question the legitimacy of the purpose underlying the FECA
    
    program, as expressed in Gill.    Therefore, we find this claim
    
    without merit.
    
                                     III.
    
         For the foregoing reasons, we AFFIRM the district court's
    
    dismissal of Benton's claim with prejudice.
    
    
    
    
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