# Saunders v. U.S. Department of Veterans Affairs

> District Court, E.D. Louisiana · October 30, 2020

URL: https://www.frixlaw.com/law-library/cases/10186053

## Case

- **Court:** District Court, E.D. Louisiana
- **Decided:** October 30, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10186053

## How later opinions describe it (automated extraction)

- finding that an employee’s transmittal of an allegedly defamatory letter was within the scope of employment under Louisiana law because the letter was sent on official letterhead and signed in the employee’s official capacity
- finding that plaintiffs did not attack FECA determination in subsequent suit where right to receive FECA benefits and amount of benefits were not at issue

## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

RALPH SAUNDERS CIVIL ACTION

VERSUS NO. 19-11482

ROBERT WILKIE, SECRETARY, U.S. SECTION “R” (5)
DEPT. OF VETERANS AFFAIRS, ET
AL.

ORDER AND REASONS

Defendants, in three motions, move to dismiss plaintiff’s tort claims,1
breach of contract claim,2 and Title VII claims3 for lack of subject matter
jurisdiction. First, the Court finds that it lacks subject matter jurisdiction
over the tort claims and grants defendants’ motion. Second, the Court finds
that it lacks subject matter jurisdiction over the breach of contract claim and
transfers it to the United States Court of Federal Claims. Finally, the Court
concludes that it has subject matter jurisdiction over plaintiff’s Title VII
claims and denies defendants’ motion.

1 R. Doc. 47.
2 R. Doc. 50.
3 R. Doc. 55.
I. BACKGROUND

Plaintiff, Ralph Saunders, was an employee at the New Orleans office
of the Department of Veterans’ Affairs (“VA”) until 2005. Plaintiff alleges
that he is “a fair skinned, light brown, Creole, African American, currently
age 64, male,” who worked as a housekeeper and painter for the VA.4 He
allegedly suffered an on-the-job injury that led to disability retirement in

May 2005.5
While employed at the VA, plaintiff brought several equal employment
opportunity (“EEO”) complaints. In October 2005, plaintiff signed a

settlement agreement with the VA to resolve seven such claims.6 The
agreement was finalized on November 9, 2005.7 As part of the settlement,
Saunders withdrew all of his claims and agreed that he would not apply for
future work with the VA.8 Among other terms, the VA agreed to pay

$240,000.9 Saunders retained his right to file a claim for workers’
compensation.10

4 Id. at 15-16, ¶ VIII.
5 R. Doc. 1 at 16, ¶ VIII.
6 Id. at 17, ¶ X; R. Doc. 55-5 at 1.
7 R. Doc. 1 at 17, ¶ X; R. Doc. 55-5 at 4.
8 R. Doc. 50-4 at 1, ¶ 1.1.
9 Id. at ¶ 2.1.
10 Id. at 1, ¶ 1.3.
From June 2005 until December 2017, plaintiff received a disability
annuity from the U.S. Office of Personnel Management (“OPM”).11 In 2017,

Saunders began to inquire about alternate disability benefits.12 On
December 5, 2017, the Department of Labor’s (“DOL”) Office of Workers’
Compensation Programs (“OWCP”) informed plaintiff that he would begin
to receive benefits under the Federal Employees’ Compensation Act

(“FECA”) in lieu of the OPM annuity.13 These FECA benefits, plaintiff claims,
pay a significantly higher rate.14 The OWCP made the payment of FECA
benefits retroactive to the date plaintiff’s OPM annuity began.15

Plaintiff’s complaint is primarily based on allegations that defendants
intentionally transmitted false information to OPM and FECA investigators,
which prevented him from receiving the higher FECA benefits earlier.16
Specifically, plaintiff alleges that defendants at the VA incorrectly told FECA

and OPM investigators that he was not “retired-disabled” but had “resigned”
or “resigned in lieu of termination.”17 According to Saunders, this prevented
him from receiving the higher-value FECA benefits between 2005 and

11 R. Doc. 1 at 12, ¶ II.
12 Id.; see also R. Doc. 55-6 at 1.
13 R. Doc. 55-6 at 1.
14 R. Doc. 1 at 12, ¶ II.
15 R. Doc. 55-6 at 1.
16 R. Doc. 1 at 12, ¶ II.
17 Id. at 13, ¶ III.
2017.18 He alleges that these actions were discriminatory, based on his race,
sex, and age, and were in retaliation for the EEO complaints he brought

before his 2005 retirement.19
Based on these allegations, plaintiff brought a new EEO complaint to
the VA’s Office of Resolution Management (“ORM”) on January 23, 2018.20
The ORM dismissed the complaint21 and, on appeal, the EEOC affirmed.22

This suit followed.23 In this Court, Saunders sued the VA and three groups
of individual defendants: (1) high-level administrators of the VA, Robert
Wilkie, the Secretary, and Jeffrey Reeder, chief counsel at the ORM;

(2) employees at the VA’s New Orleans office, Cassandra Holiday, Jeanette
Butler, Debbie Richard, Linda Cosey, Anthony Smith, and William Insley
(collectively the “local VA defendants”); and (3) employees of the EEOC,
Janet Dhillon and Carlton Hadden.24 He brings tort claims, a claim that the

VA breached the 2005 settlement agreement, and claims for Title VII
discrimination and retaliation. The defendants ask the Court to dismiss
these claims for lack of jurisdiction.

18 Id. at 13, ¶ III.
19 Id. at 13, 18 ¶¶ III, XI.
20 R. Doc. 55-6 at 7.
21 Id. at 10.
22 R. Doc. 55-7 at 4.
23 See R. Doc. 1.
24 The Court previously dismissed the EEOC defendants. R. Doc. 51.
II. LEGAL STANDARD

Federal Rule of Civil Procedure 12(b)(1) governs challenges to the
Court’s subject matter jurisdiction. “A case is properly dismissed for lack of
subject matter jurisdiction when the court lacks the statutory or
constitutional power to adjudicate the case.” Home Builders Ass’n of Miss.,
Inc. v. City of Madison, 143 F.3d 1006, 1010 (5th Cir. 1998) (quoting Nowak

v. Ironworkers Local 6 Pension Fund, 81 F.3d 1182, 1187 (2d Cir. 1996)).
Because a 12(b)(1) motion is jurisdictional, the Court considers such a
motion “before addressing any attack on the merits,” see In re FEMA Trailer

Formaldehyde Prod. Liab. Litig. (Miss. Plaintiffs), 668 F.3d 281, 286 (5th
Cir. 2012), in order to “prevent[] a court without jurisdiction from
prematurely dismissing a case with prejudice.” Id. at 286-87 (quoting
Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001)).

In assessing a challenge to its subject matter jurisdiction, the Court
“may dismiss . . . on any one of three different bases: (1) the complaint alone;
(2) the complaint supplemented by undisputed facts in the record; or (3) the
complaint supplemented by undisputed facts plus the court’s resolution of

disputed facts.” Clark v. Tarrant Cty., 798 F.2d 736, 741 (5th Cir. 1986)
(citing Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir. 1981)).
Furthermore, plaintiff has the burden of demonstrating that subject matter
jurisdiction exists. See Celestine v. TransWood, Inc., 467 F. App’x 317, 318
(5th Cir. 2012) (per curiam) (citing Ramming, 281 F.3d at 161).

III. DISCUSSION

A. State Law Tort Claims Against Individual Defendants
First, the United States moves, under 28 U.S.C. § 2679(d)(1), to
substitute itself as the proper party-defendant for the tort claims alleged
against the individual defendants, to dismiss the tort claims against the
individual defendants as a result of the substitution, and to dismiss the

claims against the United States under Federal Rule of Civil Procedure
12(b)(1) for failure to exhaust administrative remedies.25
1. Substitution and Dismissal of the Individual Defendants
The Government argues that, in light of its certification that the

individual defendants were acting within the scope of their federal
employment, the United States must be substituted as a party, and the Court
must dismiss the individual defendants.26
Under the Westfall Act, an FTCA action against the Government is the

exclusive remedy “for injury or loss of property, or personal injury or death

25 R. Doc. 47.
26 R. Doc. 47-2 at 3-4.
arising or resulting from the negligent or wrongful act or omission of any
employee of the Government while acting within the scope of his office or

employment . . . .” 28 U.S.C. § 2679(b)(1). Any other action for money
damages “arising out of or relating to the same subject matter against the
employee . . . is precluded without regard to when the act or omission
occurred.” Id.

In an action under the FTCA, if the Attorney General or his designee
certifies that an employee was acting within the scope of his employment at
the time of the plaintiff's injury, the action “shall be deemed an action against

the United States . . . , and the United States shall be substituted as the party
defendant.” 28 U.S.C. § 2679(d)(1). In this case, the civil chief of the United
States Attorney’s Office for the Eastern District of Louisiana certified that the
defendants were acting within the scope of their employment at the time of

the conduct alleged in the complaint.27 See 28 C.F.R. 15.4(a) and Justice
Manual § 4-5.630.
Although a certification that an employee’s conduct was within the
scope of his employment is subject to de novo judicial review, Palmer v.

Flaggman, 93 F.3d 196, 198-99 (5th Cir. 1996); Garcia v. United States, 62
F.3d 126, 127 (5th Cir. 1995) (en banc) (citing Gutierrez de Martinez v.

27 R. Doc. 47-3 at 1.
Lamagno, 515 U.S. 417, 420 (1995)), the plaintiff bears the burden of
demonstrating that the employee’s conduct was not within the scope of

employment. Bolton v. United States, 946 F.3d 256, 260 (5th Cir. 2019)
(quoting Williams v. United States, 71 F.3d 502, 506 (5th Cir. 1995)). To
rebut the Government’s certification, plaintiff must allege “specific facts that,
taken as true, would establish that the defendant’s actions exceeded the

scope of his employment.” Id. (quoting Jacobs v. Vrobel, 724 F.3d 217, 220
(D.C. Cir. 2013)). Plaintiff has no right to even “limited discovery,” absent
allegations sufficient to rebut the Government’s certification. Id.

Plaintiff concedes that defendants Wilkie and Reeder were acting
within the scope of their employment when the alleged tortious acts
occurred.28 But, he maintains that the local VA defendants committed
tortious acts outside the scope of their federal employment.29 He argues that

the Court should set aside the United States’ certification under the Westfall
act and allow the tort claims to proceed against these individuals.
Whether a federal employee acted within the scope of his employment
is determined by the law of the state in which the allegedly tortious conduct

28 R. Doc. 62 at 2. Plaintiff also concedes that defendants Janet Dhillon
and Carlton Hadden were acting within the scope of their employment.
The Court has already dismissed these defendants. See R. Doc. 51.
29 Id.
occurred. White v. United States, 419 F. App'x 439, 442 (5th Cir. 2011). In
Louisiana, an employee’s tortious conduct occurs within the scope of his

employment if it is “so closely connected in time, place, and causation to his
employment-duties as to be regarded a risk of harm fairly attributable to the
employer’s business, as compared with conduct motivated by purely
personal considerations entirely extraneous to the employer’s interests.”

LeBrane v. Lewis, 292 So.2d 216, 218-19 (La. 1974). To determine whether
a tortious act occurred within the scope of employment, Louisiana courts
consider whether the act: (1) was primarily employment rooted; (2) was

reasonably incidental to the performance of the employee’s duties; (3)
occurred on the employer’s premises; and (4) occurred during the hours of
employment. La Day v. Catalyst Tech., Inc., 302 F.3d 474, 484 (5th Cir.
2002) (citing Baumeister v. Plunkett, 673 So.2d 994, 996-97 (La. 1996)). All

four of the factors need not be met in every case. White, 419 F. App’x at 442.
Moreover, “that the predominant motive of the servant is to benefit himself
or a third person does not prevent the act from being within the scope of
employment.” Baumeister, 673 So.2d at 999 (quoting Ermert v. Hartford

Ins. Co., 559 So.2d 467, 476-77 (La. 1990)) (emphasis added). As long as
“the purpose of serving the master’s business actuates the servant to any
appreciable extent, the master is subject to liability if the act is otherwise
within the service.” Id. (emphasis added).

Here, plaintiff alleges that the local VA defendants committed the torts
of defamation and intentional infliction of emotional distress when they
transmitted false information to OPM and FECA investigators about the
reason for his termination.30 The Court finds that, even accepting plaintiff’s

allegations as true, all four of the scope-of-employment factors are satisfied.
Cf. Montez v. Dep’t of Navy, 392 F.3d 147, 150 (5th Cir. 2004) (holding that
the district court should not “resolve[] disputed facts dispositive of both

subject matter jurisdiction and the merits of an FTCA claim on a 12(b)(1)
motion”). First, when the local VA defendants allegedly told OPM and FECA
administrators that plaintiff resigned in lieu of termination31—even if that
information was false—the conduct was “employment rooted.” See White,

419 F. App’x at 442 (finding that an employee’s transmittal of an allegedly
defamatory letter was within the scope of employment under Louisiana law
because the letter was sent on official letterhead and signed in the employee’s
official capacity). Second, that conduct was “reasonably incidental” to the

performance of the local VA defendants’ duties to inform investigators about

30 R. Doc. 1 at 12, 29, ¶¶ II, XXVI.
31 Id.; R. Doc. 62 at 7.
the reason that plaintiff’s employment ended. See id.; LeBrane, 292 So.2d
at 218 (finding that a fight was “reasonably incidental to the performance of

[a] supervisor’s duties” to fire an employee). Third and fourth, plaintiff has
not alleged that the actions took place outside of the VA or working hours.
Even if the local VA defendants’ “predominant motive” was retaliatory,
their actions were “actuated” to an “appreciable extent” by the purpose of

serving the VA—here, by transmitting information about the reasons for the
end of plaintiff’s employment. Baumeister, 673 So.2d at 999; White, 419 F.
App’x at 443 (finding that, even if some ulterior motives existed, an action is

within the scope of employment if the employee is motivated “at least to an
appreciable extent” by serving the employer). Plaintiff does not contest that
the local VA defendants were required to transmit this information, just the
accuracy of the information. Accordingly, the Court finds that the local VA

defendants acted in the scope of their employment at the VA when they
transmitted the allegedly false information about the reasons for plaintiff’s
termination.
Plaintiff has failed to rebut the United States’ Westfall certification and

is not entitled even to limited discovery. See Bolton, 946 F.3d at 261.
Accordingly, the United States is substituted as party for the individual
defendants, and the individual defendants must be dismissed. See
Rodriguez v. Sarabyn, 129 F.3d 760, 764 (“If the individual defendants are
found to have been acting in the scope of their employment, the United States

is automatically substituted for the defendants, who are then dismissed from
the action pursuant to the [Westfall Act.]”).
2. Failure to Exhaust Administrative Remedies
After substitution, an action subject to the Westfall Act proceeds as an

action against the United States under the FTCA and is subject to the FTCA’s
“limitations and exceptions.” 28 U.S.C. § 2679(d)(4). Under the FTCA, “[a]n
action shall not be instituted upon a claim against the United States . . .

unless the claimant shall have first presented the claim to the appropriate
Federal agency and his claim shall have been finally denied by the agency in
writing.” 28 U.S.C. § 2675(a). This “requirement is a prerequisite to suit
under the FTCA.” Life Partners Inc. v. United States, 650 F.3d 1026, 1030

(5th Cir. 2011). Saunders has not presented his tort claims to any federal
agency. Because Saunders has not satisfied the FTCA’s “jurisdictional
prerequisite,” this Court must dismiss these claims for lack of subject matter
jurisdiction. See Barnes v. Gittel, 650 F. App’x 236, 240 (5th Cir. 2016)

(citing Barber v. United States, 642 F. App’x. 411, 413, (5th Cir. 2016)).
When a district court dismisses a claim for lack of subject-matter
jurisdiction under Federal Rule of Civil Procedure 12(b)(1), it must do so
without prejudice. See Cox, Cox, Filo, Camel & Wilson, L.L.C. v. Sasol North
America, Inc., 544 F. App’x 455, 456-57 (5th Cir. 2013) (finding dismissal

with prejudice under Rule 12(b)(1) improper because this is “to disclaim
jurisdiction and then exercise it”). Consequently, the Court dismisses
plaintiff’s tort claims without prejudice for lack of subject matter
jurisdiction.

B. Breach of Contract Claims
The VA moves under Rule 12(b)(1) to dismiss plaintiff’s breach of
contract claims for lack of subject matter jurisdiction. The VA argues that,

under the Tucker Act, 28 U.S.C. § 1491(a)(1), subject matter jurisdiction lies
exclusively in the Court of Federal Claims.32 Plaintiff asks the Court to
exercise supplemental jurisdiction under 28 U.S.C. § 1367(a).33
The Tucker Act provides that “[t]he United States Court of Federal

Claims shall have jurisdiction to render judgment upon any claim against the
United States founded . . . upon any express or implied contract with the
United States, or for liquidated or unliquidated damages in cases not
sounding in tort.” 28 U.S.C. § 1491. The Little Tucker Act, 28 U.S.C.

§ 1346(a), confers exclusive jurisdiction upon the Court of Federal Claims for

32 R. Doc. 50-2 at 3.
33 R. Doc. 63 at 13.
breach of contract claims against the United States, where the amount in
controversy exceeds $10,000. See 28 U.S.C. § 1346(a).

With the Tucker Act, the United States waived its sovereign immunity
for claims under 28 U.S.C. §§ 1346(a)(2) and 1491(a). Wilkerson v. United
States, 67 F.3d 112, 118-119 (5th Cir. 1995). In Wilkerson, the Fifth Circuit
strictly construed this waiver and found that the Court of Claims has

exclusive jurisdiction over Tucker Act claims exceeding $10,000. Id.
(quoting Ware v. United States, 626 F.2d 1278, 1287 (5th Cir. 1980)).
Consequently, the Fifth Circuit has “consistently refused to allow district

courts to adjudicate issues which belong solely to the Court of Claims, even
though some other statute conferring jurisdiction would otherwise allow
the district court to hear the case.” Id. (emphasis added); see also Amoco
Prod. Co. v. Hodel, 815 F.2d 352, 359-60 (5th Cir. 1987) (“[I]f we find that

this suit falls within the exclusive jurisdiction of the Claims Court under the
Tucker Act, our inquiry will be at an end . . . .”).
To determine whether Saunders’ breach of contract claim falls within
the exclusive jurisdiction of the Court of Federal Claims, the Court asks

whether the claim (1) sounds in breach of contract, (2) is against the United
States and (3) whether the amount in controversy exceeds $10,000. See
Refaei v. McHugh, 624 F. App’x 142, 148 (5th Cir. 2015) (“Under the Tucker
Act, the Court of Federal Claims has exclusive jurisdiction over claims
sounding in breach of contract against the United States that

exceed$10,000.”). Here, Saunders’ claim—that the VA breached his
settlement agreement—on its face, “sounds in breach of contract.” See
Patterson v. Spellings, 249 Fed. App’x 993, 998 (5th Cir. 2007) (finding that
the Court of Claims has exclusive jurisdiction over plaintiff’s “single cause of

action for breach of the settlement agreement”); Charles v. McHugh, 613 F.
App’x 330, 333-34 (5th Cir. 2015) (collecting cases). Next, Saunders asserts
his breach of contract claim against the Department of Veterans’ Affairs,

which is the United States for purposes of the Tucker Act. See Amoco Prod.
Co., 815 F.2d at 359 (holding that an action is against the United States where
it is “against a federal agency . . . and any monetary judgment recovered
would expend itself on the public treasury”). Finally, Saunders’ prayer for

damages, his allegations that the amount in controversy in the suit exceeds
$75,000, and his failure to deny the VA’s assertion that the claim exceeds
$10,000, establish that the amount in controversy exceeds $10,000. See
Chichakli v. Szubin, 546 F.3d 315, 317 (5th Cir. 2008) (considering plaintiff's

allegations, the circumstances of the case, and “[plaintiff's] failure to dispute
the Government's allegation that [its] claim is excess of $10,ooo” to find that
the amount in controversy exceeds $10,000). Saunders breach of contract
claim clearly falls within the exclusive jurisdiction of the Court of Federal
Claims.

Plaintiff argues that the Court may exercise supplemental jurisdiction
under 28 U.S.C. § 1367.34 But, as the Fifth Circuit held in Wilkerson, a
district court does not have jurisdiction under § 1367 to hear a Tucker Act
claim because, “there is no waiver [of sovereign immunity] except to have the

claims heard in the Court of Claims.” 67 F.3d at 119. As the court explained,
“the doctrine of pendant jurisdiction cannot be used to waive the United
States’ sovereign immunity unless Congress specifically allows it.” Id. at 119

n.13. But see Patterson, 249 F. App’x at 996 n.4 (“[W]e have no occasion to
consider . . . [whether] a district court properly having jurisdiction over a
Title VII claim could exercise ancillary jurisdiction over a breach of
settlement claim.”). Plaintiff also argues that the Court should exercise

supplemental jurisdiction in the interests of judicial efficiency because he
brings his breach of contract claim with other claims.35 Plaintiff seeks to
distinguish his case from authority the Government relies on, arguing that
his complaint involves multiple alleged violations, and the Government’s

cases involve only a single claim for breach of contract.36 These arguments

34 R. Doc. 63 at 13.
35 Id. at 15.
36 Id.
are unavailing. The Wilkerson court made clear that a district court lacks
jurisdiction to hear Tucker Act claims if there is no independent waiver of

sovereign immunity to allow these claims to be heard in federal district court.
67 F.3d at 118-19; see also Charles, 613 F. App’x at 334 (“Other circuits have
similarly concluded that the government’s waiver of sovereign immunity for
Title VII claims does not extend to contract claims regarding settlement

agreements.” (citing Taylor v. Geithner, 703 F.3d 328, 335 (6th Cir. 2013);
Frahm v. United States, 492 F.3d 258, 262 (4th Cir. 2007); Lindstrom v.
United States, 510 F.3d 1191, 1195 (10th Cir. 2007)). Further, the Fifth

Circuit has found that a district court lacks jurisdiction over a Tucker Act
claim even where it has jurisdiction over Title VII discrimination claims. See
Rafaei, 624 F. App’x at 147-49. In Rafaei, the plaintiff brought a breach of
contract claim along with discrimination claims under Title VII and the Age

Discrimination in Employment Act (“ADEA”). Id. at 145. The district court
dismissed the breach of contract claim with prejudice, concluding that the
claim was preempted. Id. Regarding the discrimination claims, the district
court granted summary judgment, dismissing the claims on the merits. Id.

On appeal, the Fifth Circuit affirmed the district court’s decision to dismiss
the discrimination claim on summary judgment but reversed on the breach
of contract claim. Id. at 147-49. It held that the district court lacked
jurisdiction over the breach of contract claim, reversed the dismissal on the
merits, and remanded with instructions to transfer the claim to the Court of

Federal Claims. Id. at 149. A similar result is warranted here.
Under 28 U.S.C. § 1631, “[w]henever a . . . court finds that there is a
want of jurisdiction, the court shall, if it is in the interest of justice, transfer
such action . . . to any other such court in which the action . . . could have

been brought at the time it was filed or noticed . . . .” The Court may therefore
transfer plaintiff’s breach of contract claim to the Court of Federal Claims,
since it finds that the Court of Claims has exclusive jurisdiction over

plaintiff’s breach of contract claim. For the reasons discussed above, the
Court finds that this requirement is satisfied. See Dabney v. United States,
No. 17-1144, 2018 WL 3235658, at *5 (Fed. Cl. July 3, 2018) (“The Federal
Circuit has held ‘that Tucker Act jurisdiction may be exercised in a suit

alleging breach of a Title VII settlement agreement.’” (quoting Holmes v.
United States, 657 F.3d 1303, 1312 (Fed. Cir. 2011)).
For the foregoing reasons, the Court grants defendant’s motion and
orders the claim for breach of contract transferred to the Court of Federal

Claims.
C. Title VII Claims
The VA also moves under Rule 12(b)(1) to dismiss plaintiff’s Title VII

claims for lack of subject matter jurisdiction. It argues that the Title VII
claims constitute “collateral attacks” on the DOL’s determinations under
FECA.37 The VA contends that these determinations are precluded from
judicial review under 5 U.S.C. § 8128(b).38

FECA provides the exclusive remedy for personal injuries a federal
employee sustains in the performance of his duties. See 5 U.S.C. §§ 8102(a),
8116(c); see White v. United States, 143 F.3d 232, 234 (5th Cir. 1998) (“For

injuries within its coverage, FECA’s remedy is exclusive of any other
remedy.”). The Secretary of Labor has authority to “administer and decide
all questions arising under [FECA].” 5 U.S.C. § 8145. This authority has been
delegated to the Director of the OWCP. 20 C.F.R. § 10.1. Actions that allow

or deny FECA awards are “final and conclusive and not subject to review by
a court of law.” White, 143 F.3d at 234 (citing 5 U.S.C. § 8128(b)). Thus,
when the OWCP makes a determination under FECA, the Court lacks
authority to review the decision.

37 R. Doc. 55-2 at 6.
38 Id.
But, as the Third Circuit found in Miller v. Bolger, 802 F.2d 660, 667
(3d Cir. 1986), FECA and Title VII provide separate remedies for “distinct

types of injuries.” Consequently, FECA does not bar federal employees from
suing their employers under anti-discrimination laws. Id. Numerous courts
have followed Miller. See Morris v. Roche, 182 F. Supp. 2d 1260, 1274 (M.D.
Ga. 2002) (collecting cases).

Nevertheless, in some circumstances, courts have found that Title VII
claims are impermissible collateral attacks on the DOL’s determinations.
For example, the district court in Almaguer v. White, held that the plaintiff’s

Title VII claims were “direct challenges to compensation decisions made
under FECA” and were barred as “collateral attacks” on the DOL’s
unreviewable decisions. No. 01-1103, 2002 WL 31396123, at *6 (W.D. Tex.
Sept. 13, 2002); see also Meester v. Runyon, 149 F.3d 855, 857 (8th Cir.

1998) (holding that “a frustrated FECA claimant cannot secure judicial
review of a FECA compensation decision” by bringing a claim under the
Rehabilitation Act “when the claim is predicated upon the same illness or
injury that gave rise to the Department of Labor’s initial decision.”). In

Almaguer, the plaintiff alleged that her employer conspired with the OWCP
to temporarily discontinue her workers’ compensation benefits. Almaguer,
2002 WL 31396123, at *4. In the court’s view, “the injuries for which plaintiff
seeks relief under Title VII . . . are derived solely from a compensation
decision made by the Secretary of Labor under FECA.” Id. (emphasis

added). The court found that FECA deprived it of jurisdiction because it
would be forced to review the DOL’s determination. Id. This Court does not
take issue with Almageur’s conclusion that a district court cannot review the
Secretary of Labor’s compensation decisions. Indeed, this is precisely what

FECA itself precludes. See 5 U.S.C. § 8128(b).
But, unlike the plaintiff in Almaguer, Saunders is not directly
challenging the OWCP’s compensation decision. In adjudicating Saunders’

Title VII claims, the Court need not review the FECA determinations. On
December 5, 2017, the OWCP informed plaintiff that he would receive FECA
benefits retroactively to June 1, 2005. Clearly, the OWCP concluded that
plaintiff was entitled to FECA benefits. Plaintiff is not challenging this

decision, nor is he challenging the amount or nature of the FECA award. See
Miller, 802 F.2d at 666 (finding that plaintiffs did not attack FECA
determination in subsequent suit where right to receive FECA benefits and
amount of benefits were not at issue).

Instead, Saunders’ Title VII claims are based on injuries resulting from
the allegedly discriminatory conduct of defendants. In particular, plaintiff
claims that defendants’ retaliation and discrimination caused the delay in his
receipt of FECA benefits, which cost him more than $75,000 and caused him
“untold mental stress, upset and damages.”39 These injuries are “distinct”

from the injury that led to his disability compensation. Id. at 667. Title VII,
not FECA, provides the remedy for injuries resulting from discrimination.
Id. at 663 (“Congress did not intend that recovery for tortious injury under
FECA should preclude Title VII remedies for discrimination.”).

Consequently, FECA does not preclude the Court from exercising
jurisdiction over plaintiff’s Title VII claims.
This discussion of jurisdiction does not mean that plaintiff has

adequately stated a claim for discrimination under Title VII on the merits.
The only issue here is whether the Court has jurisdiction to hear Title VII
claims. Because the Court has found that it has jurisdiction, defendants’
motion to dismiss under Rule 12(b)(1) must be denied.

39 R. Doc. 62 at 9-10.
IV. CONCLUSION
Accordingly, the Court GRANTS defendants’ motion to substitute the
United States as party and to dismiss plaintiffs tort claims. Plaintiffs tort
claims are DISMISSED WITHOUT PREJUDICE. The Court ORDERS
plaintiffs breach of contract claim transferred to the Court of Federal Claims.
Finally, the Court DENIES defendants’ motion to dismiss plaintiffs Title VII
claims.

New Orleans, Louisiana, this _30th__ day of October, 2020.

SARAH S. VANCE
UNITED STATES DISTRICT JUDGE

23

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10186053. Public record. Not legal advice.