Fiaseu v. United States

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8 UNITED STATES DISTRICT COURT

9 SOUTHERN DISTRICT OF CALIFORNIA

10 PASE FIASEU and RODOLFO Case No.: 3:22-cv-00752-GPC-BLM

MARTINEZ,

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ORDER GRANTING MOTION TO

Plaintiffs,

12 DISMISS

v.

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[ECF No. 5]

UNITED STATES OF AMERICA,

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Defendant.

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17 Before the Court is a Motion to Dismiss Plaintiffs Pase Fiaseu’s and Rodolfo

18 Martinez’s operative First Amended Complaint (“FAC” or “Complaint”), filed by

19 Defendant United States of America. (ECF 5.) Mr. Fiaseu and Mr. Martinez have filed

20 their response in opposition to the motion to dismiss, (ECF 9), and the United States has

21 replied, (ECF 11). The Court held oral arguments on November 18, 2022. For the reasons

22 set forth below, the Court GRANTS the United States’ motion to dismiss for lack of

23 jurisdiction under Federal Rule of Civil Procedure 12(b)(1).

24 I. BACKGROUND

25 Plaintiffs Pase Fiaseu and Rodolfo Martinez are seeking damages, costs, and

26 attorney’s fees against Defendant United States for events taking place between October

27 2020 and May 2021 which they allege resulted in loss of consortium and the negligent

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1 infliction of emotional distress. (FAC ¶¶ 11-19.) They allege that their spouses—both

2 employed at the Chula Vista Veterans Affairs (“VA”) Clinic—were notified in May 2021

3 that they had been secretly recorded on video while using the unisex restroom at the VA

4 Clinic. (FAC ¶¶ 8-9, 11-12.) Dr. Vincent Tran, a doctor at the VA Clinic, allegedly “placed

5 or installed [the] video recording device” in the unisex bathroom around October 2020.

6 (FAC ¶ 11.) According to the United States, “Tran is now being prosecuted by the San

7 Diego County District Attorney’s Office for his crimes.” (ECF 5 at 8.) Both spouses

8 applied for and received workers’ compensation benefits under the Federal Employees’

9 Compensation Act (“FECA”). (ECF 5 at 10; ECF 5-1 at 2-4; ECF 5-2 at 2-4.)

10 Mr. Fiaseu and Mr. Martinez allege that this “egregious violation” of their spouses’

11 privacy “caused each [spouse] to suffer severe emotional distress, anxiety, embarrassment,

12 worry, fear, and frustration,” as well as “irreparable harm to their marital relationships with

13 the respective Plaintiffs.” (FAC ¶ 15.) In turn, Mr. Fiaseu and Mr. Martinez allege that

14 they “suffered and continue to suffer loss of conjugal society, comfort, affection, and

15 companionship with their respective spouses.” (FAC ¶¶ 15, 19.) Their Complaint can also

16 be read to allege that the above-described events caused the plaintiffs to suffer negligent

17 infliction of emotional distress. (See FAC ¶¶ 15, 32.)

18 Mr. Fiaseu and Mr. Martinez seek to recover damages under a theory of negligence.

19 They assert that the VA Clinic had a “duty to maintain, as its facilities, a safe and healthy

20 environment for its employees,” (FAC ¶¶ 18, 23); that it “failed to take all reasonable

21 precautions to protect the female employees . . . and their families by failing to inspect the

22 unisex restroom . . . for video recording devices,” (FAC ¶¶ 17, 24); and that the VA Clinic’s

23 actions and omissions were a substantial factor and legal cause of Mr. Fiaseu’s and Mr.

24 Martinez’s injuries, (FAC ¶¶ 25-26, 19). They further allege that the VA Clinic “knew or

25 should have known that having unisex restrooms with no option to have ‘female only’

26 restrooms posed an unreasonable risk of harm to female employees . . . and their families”

27 because a similar incident occurred at the Mission Valley VA Clinic. (FAC ¶ 16.)

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1 The United States argues that the Complaint must be dismissed because the Court

2 lacks subject matter jurisdiction and the Complaint fails to state a claim upon which relief

3 can be granted. (ECF 5.)

4 II. LEGAL STANDARD

5 The federal court possesses only that power authorized by the Constitution or a

6 statute. See Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541 (1986). A district

7 court has federal question jurisdiction in “all civil actions arising under the Constitution,

8 laws, or treaties of the United States.” 28 U.S.C. § 1331. Federal question jurisdiction

9 exists only when a federal question is presented on the face of the plaintiff’s well-pleaded

10 complaint. Aetna Health Inc. v. Davila, 542 U.S. 200, 207 (2004); Caterpillar, Inc. v.

11 Williams, 482 U.S. 386, 392 (1987). Once a defendant moves to dismiss for lack of subject

12 matter jurisdiction, the burden shifts to the plaintiff to prove that jurisdiction exists. Sopcak

13 v. N. Mountain Helicopter Serv., 52 F.3d 817, 818 (9th Cir. 1995).

14 “Sovereign immunity is jurisdictional in nature. Indeed, the ‘terms of [the United

15 States’] consent to be sued in any court define that court’s jurisdiction to entertain the

16 suit.’ ” F.D.I.C. v. Meyer, 510 U.S. 471, 475 (1994) (alteration in original) (quoting United

17 States v. Sherwood, 312 U.S. 584, 586 (1941)). FECA allows for federal employees to

18 obtain workers’ compensation benefits. (See ECF 5 at 12; ECF 9 at 7.) 5 U.S.C. §§ 8101-

19 93 (2016). It instructs the United States to compensate federal employees “for injuries

20 sustained during the performance of their duties.” Figueroa v. United States, 7 F.3d 1405,

21 1407 (9th Cir. 1993); see 5 U.S.C. § 8102(a). Its “exclusivity provision bars recovery

22 under the [Federal Tort Claims Act (“FTCA”)],” proscribing “all other liability of the

23 United States . . . to the employee[,] . . . [spouse,] and any other person otherwise entitled

24 to recover damages from the United States . . . under a Federal tort liability statute.” Moe

25 v. United States, 326 F.3d 1065, 1068 (9th Cir. 2003) (quoting 5 U.S.C. § 8116(c)). FECA

26 operates as a type of compromise: It “provide[s] immediate compensation to federal

27 employees, regardless of fault, eliminating the need to litigate those claims. In return,

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1 employees lose the right to sue the Government.” Id. at 1069 (citation omitted); see also

2 Lockheed Aircraft Corp. v. United States, 460 U.S. 190, 193-94 (1983) (discussing FECA’s

3 exclusive liability provision).

4 III. DISCUSSION

5 The United States argues that the Complaint should be dismissed on three grounds.

6 First, “because Plaintiffs’ spouses already received workers’ compensation benefits for

7 their injuries under” FECA, which offers an exclusive remedy and explicitly bars Mr.

8 Fiaseu’s and Mr. Martinez’s recovery. (ECF 5 at 8.1) Second, because “the alleged acts

9 of negligence fall squarely within the discretionary function exception to the United States’

10 limited waiver of liability in the [FTCA].” (Id.) And third, because Mr. Fiaseu and Mr.

11 Martinez failed to allege necessary elements in their claim of negligence. (Id.)

12 The United States argues that Mr. Fiaseu’s and Mr. Martinez’s claims should be

13 dismissed for lack of subject matter jurisdiction because they are preempted by FECA.

14 (ECF 5 at 12-15.) It reasons that (1) the United States may not be sued without its consent;

15 (2) recovering under FECA was an exclusive remedy available to Mr. Fiaseu and

16 Mr. Martinez and their spouses; (3) decisions by the Secretary of Labor as to the scope of

17 FECA coverage are not reviewable in federal court; (4) Mr. Fiaseu’s and Mr. Martinez’s

18 claims arise from their spouses’ workplace injuries; and (5) FECA accordingly preempts

19 the Complaint. (Id.) The United States points to opinions from several circuit courts

20 supporting its argument that FECA bars the loss of consortium claim at issue. (Id. at 13 &

21 n.4.) It also emphasizes that “to establish a consortium claim in California requires proving

22 as an element ‘a tortious injury to the plaintiff’s spouse.’ ” (Id. at 13 n.3 (quoting Hahn v.

23 Mirda, 147 Cal. App. 4th 740, 746 n.2 (2007)).)

24 Mr. Fiaseu and Mr. Martinez respond that their claims for negligence are not barred

25 by FECA’s exclusivity provision. (ECF 9 at 7-14.) They concede that “FECA’s

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1 exclusivity provision . . . limits any additional claims made by the ‘employee, his legal

2 representative, spouse, dependents, next of kin, and any other person otherwise entitled to

3 recover damages from the United States . . . because of the injury.’ ” (Id. at 7 (second

4 omission in original) (quoting 5 U.S.C. § 8116(c)).) But they contend the provision is

5 inapposite here because they are seeking to remedy their own personal injuries distinct

6 from those of their spouses, even though their injuries arise from their spouses’ workplace

7 injuries. (Id.) Mr. Fiaseu and Mr. Martinez explained further at the motion hearing that

8 they interpreted caselaw from the Sixth Circuit to stand for the proposition that loss of

9 consortium claims are non-derivative and belong to the non-employee spouse.

10 A. Loss Of Consortium

11 Mr. Fiaseu and Mr. Martinez are seeking a loss of consortium as a part of their

12 negligence claim. (See FAC ¶ 15 (“The trauma suffered by [the wives] caused irreparable

13 harm to their marital relationships with the respective Plaintiffs. As such, Plaintiffs each

14 suffered and continue to suffer loss of conjugal society, comfort, affection, and

15 companionship with their respective spouses.”) Plaintiffs take pains to distinguish their

16 claims for loss of consortium from those that were dismissed by the Ninth Circuit in other

17 cases. First they point to Posegate v. United States, in which the Ninth Circuit affirmed

18 the dismissal of a husband and wife’s complaint for damages, including those arising from

19 the wife’s loss of consortium, after the federal employee husband suffered a workplace

20 injury. 288 F.2d 11 (9th Cir. 1961). Mr. Fiaseu and Mr. Martinez argue that Posegate is

21 distinguishable because the husband and wife brought their claims together2 and the bulk

22 of the opinion addresses why the husband’s recovery was barred after he had already

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2 As the United States points out in reply, whether spouses bring claims together or separately cannot be

26 “the ultimate loophole that cancels the United States’ sovereign immunity.” (ECF 11 at 4.) Mr. Fiaseu

and Mr. Martinez implicitly acknowledge this reality when they recognize that the Ninth Circuit

27 affirmed the dismissal of the wife’s claim independently from that of the husband. (ECF 9 at 8 (quoting

Posegate, 288 F.2d at 14).)

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1 recovered under FECA, whereas “only one sentence dismiss[ed] the loss of consortium

2 claim.” (ECF 9 at 8.) What Mr. Fiaseu and Mr. Martinez fail to note, however, is that the

3 entirety of the opinion’s analysis—constituting less than two pages in the federal

4 reporter—is within the context of both spouses’ claims. See Posegate, 288 F.2d at 13

5 (discussing United States’ arguments as to “either of the appellants” and comparing wife’s

6 loss of consortium claim to that of wife in another case through lengthy block quote). In

7 other words, the wife’s loss of consortium claim failed for the same reason her husband’s

8 claim failed: compensation under FECA was the exclusive remedy for them both. See id.

9 at 13-14.

10 Next, Mr. Fiaseu and Mr. Martinez attempt to distinguish Thol v. United States, 218

11 F.2d 12 (9th Cir. 1954). There, the Ninth Circuit affirmed that FECA was the exclusive

12 remedy for a non-dependent parent upon his federal employee son’s death. Though true

13 that neither Mr. Fiaseu nor Mr. Martinez “can receive survivor benefits since their spouses

14 did not die from the government’s [alleged] negligence,” (ECF 9 at 9), Thol’s holding does

15 not apply to such narrow circumstances: “In unmistakable language [FECA] precludes

16 resort to a suit in damages against the United States for injury to or death of an employee

17 by anyone who might in the absence of the statute have been entitled to maintain an action

18 for such injury or death.” 218 F.2d at 13 (emphasis added). Other circuit courts have

19 reached the same result. See, e.g., Underwood v. United States, 207 F.2d 862 (10th Cir.

20 1953) (affirming that non-dependent surviving spouse of federal employee could not

21 recover damages for alleged negligence by United States’ employee under FTCA; FECA

22 precluded that remedy); Swafford v. United States, 998 F.2d 837 (10th Cir. 1993)

23 (affirming FECA offers exclusive remedy for husband’s loss of consortium claims when

24 wife suffered injuries from sexual harassment at federal workplace); Saltsman v. United

25 States, 104 F.3d 787 (6th Cir. 1997) (affirming FECA preempted FTCA claims from

26 spouses alleging wrongful death, negligent infliction of emotional distress, and loss of

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1 consortium due to injury or death of their federal employee spouses). To the extent that

2 Plaintiffs are seeking a loss of consortium, settled caselaw is clear and forecloses this claim.

3 B. Emotional Distress

4 Mr. Fiaseu and Mr. Martinez also allege that they have suffered emotional distress

5 as a result of “learning that their spouses had been surreptitiously video recorded.” (ECF

6 No. 4 at ¶¶ 32-33.) This claim relies on the holding in Woerth v. United States, 714 F.2d

7 648, 649 (6th Cir. 1983), in which the Sixth Circuit reversed the district court’s grant of

8 summary judgment of a negligence claim brought by the husband of a federal employee

9 awarded benefits under FECA. The wife had contracted hepatitis in her role as a nurse at

10 a VA hospital resulting from the “hospital’s failure to follow its own prophylactic

11 procedures.” Id. Thereafter, the husband contracted hepatitis from the wife. Id. The wife

12 received FECA benefits for her injuries, but her husband’s “claims were administratively

13 denied” and so he sued under the FTCA. Id. After considering whether the husband’s

14 claim arose “with respect to the injury or death of an employee,” the Sixth Circuit

15 concluded that his cause of action was “based upon his own personal injury, not a right of

16 ‘husband and wife.’ ” Id. at 650 (quoting Smither & Co. v. Coles, 242 F.2d 220, 225 (D.C.

17 Cir. 1957)). FECA thus did not bar the husband “from attempting to establish his claim

18 under the FTCA.” Id.

19 Woerth has been approvingly cited in cases involving a non-employee spouse

20 seeking recovery for harm resulting from contracting a communicable illness from an

21 employee spouse.3 Woerth has not been extended to an emotional distress claim by any

22 court and given the overlap between emotional distress and loss of consortium, there does

23 not appear to be a logical means to distinguish the two. Further, as explained by California

24 courts when discussing comparable claims in the context of California’s workers’

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27 3 The Ninth Circuit has not had occasion to follow the Woerth decision or to consider whether an

emotional distress claim by a non-employee is permitted under the FECA.

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1 compensation act, what makes a claim derivative is that “[i]t simply would not have existed

2 in the absence of injury to the employee.” Snyder v. Michael’s Stores, Inc., 16 Cal. 4th

3 991, 998 (1997). The elements of these derivative causes of action reflect that “it is legally

4 impossible to state a cause of action for such claims without alleging a disabling or lethal

5 injury to another person.” See’s Candies, Inc. v. Superior Court, 73 Cal. App. 5th 66, 86

6 (2021).

7 Mr. Fiaseu and Mr. Martinez argue that they, similarly, can recover for negligent

8 infliction of emotional distress and loss of consortium because they “are not seeking

9 damages ‘with respect to’ their spouses’ injuries,” but have causes of action independent

10 from their wives’ injuries. (ECF 9 at 10.) In this case, the Complaint and Opposition to

11 the United States’ Motion to Dismiss clearly couch their cause of action as arising from

12 their wives’ injuries and the impacts those injuries had on their “rights” as spouses. (FAC

13 ¶ 32 (“Upon learning that their spouses had been surreptitiously video recorded, Plaintiffs

14 suffered serious emotional distress and continue to do so.”); ECF 9 at 10 (“Pase and

15 Rodolfo experienced their own independent depression, anxiety, mental anguish, and

16 emotional distress over the intimate violation and exposure of their spouses.”).) Plaintiffs’

17 emotional distress claims logically depend on showing harm to their spouses. The

18 allegation that they both “felt and continue to feel embarrassed and humiliated as they were

19 unable to protect their wives from the VA’s negligence” is derived from the injury to their

20 employee spouses. (ECF 9 at 10.) Close inspection of the claims reveals their injuries are

21 inextricably linked to the invasion of their spouses’ privacy rights. Meanwhile, in Woerth,

22 the husband’s claim was based upon the hepatitis that he separately contracted from his

23 wife. The symptoms and treatment in Woerth were sufficiently independent from the harm

24 to the spouse that the claims were not preempted by the FECA. See 714 F.2d at 649-50.

25 Dismissal is warranted because Mr. Fiaseu’s and Mr. Martinez’s causes of action

26 plainly seek “to recover damages suffered precisely because the . . . injury of a given

27 employee has impaired the special relationship between that employee and his or her

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1 spouse or dependent.” See Saltsman, 104 F.3d at 790-91 (distinguishing and dismissing

2 loss of consortium and negligent infliction of emotional distress claims from those in

3 Woerth).

4 FECA is the exclusive remedy for federal employees and their spouses for legal

5 injuries arising from workplace death and injuries. Though this result may seem unjust to

6 Mr. Fiaseu and Mr. Martinez, (see ECF 9 at 13-14), this is an essential part of the

7 compromise envisioned by FECA as interpreted by the Ninth Circuit and United States

8 Supreme Court. See Lockheed Aircraft Corp. v. United States, 460 U.S. 190, 193-94

9 (1983); Moe v. United States, 326 F.3d 1065, 1069 (9th Cir. 2003). Mr. Fiaseu’s and Mr.

10 Martinez’s spouses were protected by FECA and their applications for FECA benefits were

11 granted. (ECF 5-1 at 4; ECF 5-2 at 4.) FECA’s exclusivity principle accordingly

12 preempted any liability the United States may have faced for Mr. Fiaseu’s and Mr.

13 Martinez’s claims for loss of consortium or negligent infliction of emotion distress under

14 the FTCA. See 5 U.S.C. § 8116(c); Posegate, 288 F.2d at 13-14. “Plaintiffs cannot avoid

15 the exclusive and limited nature of relief under FECA by labeling their various damages as

16 an array of different claims to which defendant is subject, some covered by FECA and

17 some not.” Saltsman, 104 F.3d at 790. The United States has not waived sovereign

18 immunity in this instance, and the Court lacks subject matter jurisdiction over Mr. Fiaseu’s

19 and Mr. Martinez’s cause of action. See F.D.I.C., 510 U.S. at 475.

20 The Court GRANTS the United States’ motion to dismiss for lack of subject matter

21 jurisdiction. Although the Court entertains doubts that the pleading deficiency can be

22 cured, the Court is not prepared to say it is impossible to do so and thus grants Mr. Fiaseu

23 and Mr. Martinez leave to amend their complaint. See Cook, Perkiss and Liehe, Inc. v. N.

24 Cal. Collection Serv. Inc., 911 F.2d 242, 247 (9th Cir. 1990) (“We have held that in

25 dismissals for failure to state a claim, a district court should grant leave to amend even if

26 no request to amend the pleading was made, unless it determines that the pleading could

27 not possibly be cured by the allegation of other facts.”(emphasis added)).

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l Because the Court concludes that the Complaint must be dismissed for lack of

2 subject matter jurisdiction, the Court does not address the remaining arguments raised by

3 || the United States.

4 ||IV. CONCLUSION

5 The Court GRANTS the United States’ motion to dismiss the Complaint for lack of

6 subject matter jurisdiction with leave to amend. Any amended Complaint must be filed

7 || within 30 days of the date of this Order.

8 IT IS SO ORDERED.

9 Dated: December 15, 2022 2 sale OH

10 Hon. Gonzalo P. Curiel

11 United States District Judge

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3:22-cv-00752-GPC-BLM