Joshua Porter v. United States ( 2018 )

FILED
NOT FOR PUBLICATION
AUG 29 2018
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSHUA PORTER, No. 17-15235
Plaintiff-Appellant, D.C. No.
2:16-cv-00633-APG-CWH
v.
UNITED STATES OF AMERICA, MEMORANDUM*
Defendant-Appellee.
Appeal from the United States District Court
for the District of Nevada
Andrew P. Gordon, District Judge, Presiding
Argued and Submitted August 8, 2018
Pasadena, California
Before: GRABER, WARDLAW, and CHRISTEN, Circuit Judges.
Plaintiff Joshua Porter appeals the district court’s dismissal, for lack of
subject matter jurisdiction, of his claim under the Federal Tort Claims Act
("FTCA"). Reviewing de novo, Chen v. Allstate Ins. Co., 819 F.3d 1136, 1141
(9th Cir. 2016), we reverse and remand.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
The Federal Employees’ Compensation Act ("FECA") provides the
exclusive remedy against the United States, 5 U.S.C. § 8116(c), to a federal
employee who is injured "while in the performance of his dut[ies]," id. § 8102(a).
"A plaintiff need only allege a colorable claim under FECA for our courts to lose
jurisdiction over an FTCA action." Moe v. United States, 326 F.3d 1065, 1068
(9th Cir. 2003). But the federal courts have jurisdiction to determine whether, as a
matter of law, a FECA claim is colorable. Figueroa v. United States, 7 F.3d 1405,
1408 (9th Cir. 1993). To the extent that the district court misunderstood the scope
of its jurisdiction, the court erred.
Here, there is no evidence that Plaintiff was injured while in the performance
of his duties. Whether or not he was on some sort of on-call status, the claim form
in the record unequivocally states that Plaintiff was not injured in the performance
of his duties but was, instead, "in a non duty status at his residence." There is no
contrary evidence, so there is no colorable claim under FECA. Therefore, as a
matter of law, FECA does not apply, and the federal courts have jurisdiction over
this FTCA claim.
REVERSED and REMANDED for further proceedings.
2