Miller v. United States ( 1995 )


Menu:
  • USCA1 Opinion


    [NOT FOR PUBLICATION]
    UNITED STATES COURT OF APPEALS
    FOR THE FIRST CIRCUIT
    


    ____________________


    No. 94-2259

    RALPH J. MILLER,

    Plaintiff, Appellant,

    v.

    UNITED STATES OF AMERICA, ET AL.,

    Defendants, Appellees.


    ____________________

    APPEAL FROM THE UNITED STATES DISTRICT COURT

    FOR THE DISTRICT OF NEW HAMPSHIRE

    [Hon. Martin F. Loughlin, Senior U.S. District Judge] ___________________________

    ____________________

    Before

    Torruella, Chief Judge, ___________
    Selya and Boudin, Circuit Judges. ______________

    ____________________

    Ralph J. Miller on brief pro se. _______________
    Paul M. Gagnon, United States Attorney, and Gretchen Leah Witt, _______________ ___________________
    Assistant United States Attorney, Chief Civil Division, on brief for
    appellees.


    ____________________

    July 24, 1995
    ____________________





















    Per Curiam. Pro se plaintiff Ralph Miller, a ___________ ___ __

    former postal employee, filed this action under the Federal

    Tort Claims Act (FTCA) to recover workers' compensation

    benefits that the Department of Labor's Office of Workers'

    Compensation Programs (OWCP) denied him under the Federal

    Employees Compensation Act (FECA), 5 U.S.C. 8101 et seq. He __ ____

    appeals a district court order that dismissed this action on

    the ground that Miller's claim is preempted by the FECA. We

    affirm the dismissal, but we prefer to rest our decision on

    the ground that Miller failed to satisfy the presentment

    requirements of the FTCA, 28 U.S.C. 2401(b).

    I.

    We begin with the relevant facts. Miller was employed

    by the United States Postal Service from approximately 1981

    to 1992. On March 12, 1990, Miller filed a workers'

    compensation claim that alleged that he was suffering from

    depression as a result of the way his postmaster treated

    him.1 The OWCP denied Miller's claim on the ground that

    Miller failed to submit sufficient medical evidence to prove

    that his condition was caused by his employment. While

    Miller appealed this decision, he subsequently failed to

    appear at the hearing that the OWCP scheduled. Thereafter,

    Miller filed an administrative FTCA claim for "work-



    ____________________

    1. Miller claimed that he first became aware that his
    depression was related to his employment on February 12,
    1989.













    aggravated mental depression" with the Assistant General

    Counsel for the Postal Service. That claim sought damages

    equal to the amount that Miller claimed was due him in

    workers' compensation benefits. Thus, Miller filed an

    administrative claim under the FTCA to recover the workers'

    compensation benefits that the OWCP had denied him under the

    FECA. After more than six months passed without action by

    the Postal Service, Miller commenced this civil action under

    the FTCA.2

    The government filed a motion to dismiss pursuant to

    Fed. R. Civ. P. 12(b)(1) and 12(b)(6), or, in the

    alternative, for summary judgment.3 It argued that the

    district court lacked subject matter jurisdiction because

    Miller's FTCA suit was simply an attempt to redress the

    OWCP's denial of Miller's workers' compensation claim and

    judicial review of the OWCP's decision was prohibited by 5

    U.S.C. 8128(b).4 Relying on McDaniel v. United States, 970 ________ _____________

    ____________________

    2. 28 U.S.C. 2675(a) provides that the failure of an agency
    to make a final disposition of an administrative FTCA claim
    within 6 months after it is filed shall be deemed a final
    denial sufficient to authorize the filing of a FTCA suit
    against the United States.

    3. Miller's original complaint named the Postal Service, the
    Department of Labor, and the OWCP as defendants. He later
    amended his complaint to substitute the United States (i.e.,
    "the government") for the other named defendants.

    4. 5 U.S.C. 8128(b) provides, in relevant part, that:

    The action of the Secretary or his
    designee in allowing or denying a payment

    -3-













    F.2d 194, 197 (6th Cir. 1992)(per curiam), the government

    further argued that the district court lacked subject matter

    jurisdiction despite the fact that Miller's FECA claim had

    been denied.5

    Miller opposed the government's motion. He argued that

    the FECA does not cover emotional injuries such as those he

    sustained as a result of his postmaster's campaign of

    harassment against him.6 The district court concluded that

    the FECA does not encompass claims for emotional distress and

    denied the government's motion. The court based its decision

    on the FECA's definition of injury in 5 U.S.C. 8101(5)(which

    does not specifically refer to mental or emotional injuries),

    Sheehan v. United States, 896 F.2d 1168, amended, 917 F.2d _______ _____________ _______


    ____________________

    under this subchapter is -

    (1) final and conclusive for all purposes
    and with respect to all questions of law
    and fact; and

    (2) not subject to judicial review by
    another official of the United States or
    by a court by mandamus or otherwise.

    5. McDaniel held that where it was clear that the Secretary ________
    of Labor viewed the plaintiff's emotional distress claim as
    cognizable under the FECA, the FECA barred the plaintiff's
    FTCA suit for intentional and negligent infliction of
    emotional distress even though the plaintiff had not been
    awarded FECA benefits.

    6. Miller thus implied that his federal tort claim was based
    on the theory that his postmaster had subjected him to the
    intentional infliction of emotional distress. Miller also
    suggested that the OWCP had intentionally inflicted emotional
    distress upon him by denying his workers'compensation claim.

    -4-













    424 (9th Cir. 1990)(holding that 5 U.S.C. 8128(b) did not

    preclude district court from determining what types of

    injuries were covered by the FECA and that the FECA did not

    cover emotional distress claims) and numerous other cases.7



    The government petitioned to take an interlocutory

    appeal from the district court's order, but this court denied

    that petition. Limited discovery followed.8 The government

    then filed a second motion to dismiss which asked the

    district court to reconsider its previous ruling in the light

    of recent decisions that had recognized the FECA's preclusive

    effect in cases involving emotional injuries.9 The

    ____________________

    7. See, e.g., Guidry v. Durkin, 834 F.2d 1465, 1471-72 (9th ___ ____ ______ ______
    Cir. 1987); Gergick v. Austin, 764 F. Supp. 580, 581-82 (W.D. _______ ______
    Mo. 1991); Underwood v. United States Postal Service, 742 F. _________ ____________________________
    Supp. 968 (M.D. Tenn. 1990); Metz v. United States, 723 F. ____ _____________
    Supp. 1133, 1136 (D. Md. 1989); Newman v. Legal Services ______ ______________
    Corporation, 628 F. Supp. 535, 543 (D.D.C. 1986); Sullivan v. ___________ ________
    United States, 428 F. Supp. 79, 81 (E.D. Wis. 1977); Mason v. _____________ _____
    District of Columbia, 395 A.2d 399 (D.C. 1978). ____________________

    8. We note that Miller's motion to amend his complaint to
    specifically allege that the government intentionally
    inflicted emotional distress on him when it denied his
    workers' compensation claim was denied on the ground that
    such an amendment would be futile since Miller had failed to
    present this claim to the appropriate federal agencies in his
    administrative FTCA claim.

    9. The government relied on Tarver v. United States, 25 F.3d ______ _____________
    900 (10th Cir. 1994); Figueroa v. United States, 7 F.3d 1405 ________ _____________
    (9th Cir. 1993), cert. denied, 114 S. Ct. 1537 (1994); _____ ______
    Swafford v. United States, 998 F.2d 837 (10th Cir. 1993); ________ _____________
    Jones v. Tennessee Valley Authority, 948 F.2d 258 (6th Cir. _____ ___________________________
    1991); Klescewski v. United States, 843 F. Supp. 543 (D.S.D. __________ _____________
    1993); Castro v. United States, 757 F. Supp. 1149, 1151 (W.D. ______ _____________
    Wash. 1991); and Cardwell v. United States, 1992 WESTLAW ________ ______________

    -5-













    government also argued that Miller's suit was barred by the

    Civil Service Reform Act (CSRA) and the FTCA's presentment

    requirement. After Miller filed an opposition, the district

    court reversed its previous ruling and granted the

    government's motion to dismiss. Relying on McDaniel, supra, ________ _____

    inter alia, the court held that Miller's FTCA suit for the _____ ____

    intentional infliction of emotional distress was preempted by

    the FECA and that any other claims that might be read into

    Miller's complaint were barred by the CSRA.10 This appeal

    followed.

    II.

    We review the district court's dismissal for lack of

    subject matter jurisdiction de novo, mindful that Miller, as __ ____

    the party invoking federal jurisdiction, has the burden of

    proving its existence. See Murphy v. United States, 45 F.3d ___ ______ _____________

    520, 522 (1st Cir.), cert. denied, 63 U.S.L.W. 3800 (U.S. _____ ______

    June 19, 1995). He has failed to do so. Miller stresses on

    appeal that he seeks to recover for the intentional

    infliction of emotional distress in the handling of his

    workers' compensation claim. But it is clear that Miller

    ____________________

    368495 (E.D. Pa. Dec. 4, 1992), aff'd, 6 F.3d 778 (3d Cir. _____
    1993)(Table), as well as numerous decisions of the Employment
    Compensation Appeals Board (ECAB) which indicated that the
    FECA can provide relief for claims of emotional or mental
    injury.

    10. The court did not reach the government's arguments that
    Miller failed to satisfy the FTCA's presentment requirements.


    -6-













    never presented this claim to either the Postal Service or

    the OWCP within two years of the denial of his FECA claim.

    Rather, Miller's administrative FTCA claim focused on the

    mental injuries he allegedly suffered as a result of his work

    place atmosphere. Miller did not allege or describe anything

    approaching outrageous conduct in the handling of his

    workers' compensation claim. It is well settled that a

    plaintiff's FTCA claim will be "forever barred" absent the

    filing of a timely administrative claim with the appropriate

    federal agency. See, e.g., Gonzalez-Bernal v. United States, ___ ____ _______________ _____________

    907 F.2d 246, 248 (1st Cir. 1990). As Miller failed to file

    a timely administrative FTCA claim for the intentional

    infliction of emotional distress in the handling of his

    workers' compensation case, this claim is forever barred.

    Miller does not press on appeal the alternative basis

    for relief that he argued below, i.e., that he suffered the

    intentional infliction of emotional distress as a result of

    his former postmaster's conduct. Accordingly, this claim has

    been waived. See United States v. Zannino, 895 F.2d 1, 17 ___ _____________ _______

    (1st Cir.), cert. denied, 494 U.S. 1092 (1990). Even if it _____ ______

    were otherwise, this claim also fails for the lack of timely

    presentment. It is undisputed that Miller first became aware

    that his depression was work-related on February 12, 1989.

    He therefore had two years from that date, or until February

    12, 1991, to file his administrative FTCA for the intentional



    -7-













    infliction of emotional distress by his former postmaster.

    Miller did not file such a claim until October 8, 1991. As

    the administrative FTCA claim was filed too late, this claim

    is also barred.

    We note that whether the FECA covers emotional injuries

    and, even if it does, whether Miller's FTCA action is barred

    despite the fact that he was not paid FECA benefits, are

    novel issues in this circuit. We recognize that cases such

    as McDaniel, Tarver, and Cardwell, supra, support affirmative ________ ______ ________ _____

    answers to both questions. On the other hand, there is a

    considerable body of caselaw which indicates that the FECA

    does not apply to emotional injuries. See Sheehan and n. 7, ___ _______

    supra. We find it unnecessary to take a position on these _____

    important issues - which have not been well briefed by

    Miller.11 It is apparent that Miller's suit is barred

    under the FTCA. We are free to affirm on any independently

    sufficient ground made manifest by the record. See, e.g., ___ ____

    Garside v. Osco Drug, Inc., 895 F.2d 46, 49 (1st Cir. 1990). _______ _______________

    In view of our disposition, we need not address the

    government's contentions that the CSRA also bars Miller's

    ____________________

    11. Rather, Miller argues that Martin v. Travelers Ins. Co., ______ __________________
    497 F.2d 329 (1st Cir. 1979), authorizes him to sue under the
    FTCA for the bad faith processing of his workers'
    compensation claim, and that Burke v. United States, 644 F. _____ _____________
    Supp. 566 (E.D. La. 1986), also authorizes him to maintain
    this suit because he was denied FECA benefits. Neither case
    stands for the proposition for which Miller cites it.
    Moreover, the language that Miller purports to quote from
    Martin appears nowhere in that case. ______

    -8-













    claims. Accordingly, the judgment of the district court is

    affirmed. _________

















































    -9-