The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
PERRY FRANCIS LARTIGUE CIVIL ACTION
VERSUS NO. 23-7234
UNITED STATES OF AMERICA on behalf of the SECTION: “G”(5)
UNITED STATES ARMY CORPS OF ENGINEERS
ORDER AND REASONS
Before the Court is the United States of America on behalf of the United States Army Corps
of Engineers’ (“the Government”) Motion to Stay.1 The Government requests a stay pending a
final determination of Plaintiff Perry Francis Lartigue’s (“Plaintiff”) claim by the U.S. Department
of Labor (“DOL”). Pursuant to Local Rule 7.5, Plaintiff’s opposition to the instant motion was to
be filed on or before April 9, 2024. To date, Plaintiff has not filed an opposition to the motion. As
such, the motion shall be deemed unopposed. This Court has authority to grant a motion as
unopposed, although it not required to do so.2 For the reasons discussed in more detail below, this
Court finds that a stay of the proceedings is appropriate. Accordingly, having considered the
motion, the memorandum in support, the record, and the applicable law, the Court grants the
motion.
I. Background
Plaintiff was employed as a Jones Act seaman from 1969 until 2006 aboard vessels owned
and operated by the United States Army Corps of Engineers in the state of Louisiana and elsewhere
1 Rec. Doc. 7.
2 Edward H. Bohlin Co. v. Banning Co., 6 F.3d 350, 356 (5th Cir. 1993).
in the United States.3 Plaintiff served as a deck hand, bin tender, quarter master, drag tender, rigger,
and vessel captain throughout his employment with the Government.4 Plaintiff alleges that while
working upon these vessels owned by the Government, he was exposed on numerous occasions to
benzene, methylethyl, ketone, asbestos, red lead, creosote, zinc, and coal tar, among other
chemicals.5 Plaintiff alleges that exposure to said chemicals is a proximate cause of his injuries as
defined by the Jones Act.6 Plaintiff contends that he was a resident of Louisiana during the period
of exposure to said chemicals.7 Plaintiff asserts that he was diagnosed with Hodgkin B Cell
Lymphoma and Chronic Lymphocytic Leukemia in December of 2022 as a direct result of his
exposure to the aforementioned chemicals.8
On December 8, 2023, Plaintiff filed suit against the Government alleging negligence and
unseaworthiness.9 On March 4, 2024, the Government filed the instant motion.10 The motion was
set for submission on April 17, 2024. Plaintiff has not filed an opposition to the motion.
II. The Government’s Arguments in Support of the Motion
The Government asserts that the allegations in the Complaint form a basis for admiralty
jurisdiction which may invoke potential waivers of sovereign immunity under the Suits in
3 Rec. Doc. 1 at 2.
4 Id.
5 Id.
6 Id.
7 Id.
8 Id. at 3.
9 Rec. Doc. 1.
10 Rec. Doc. 7.
Admiralty Act (“SAA”)11 and the Public Vessels Act (“PVA”).12 The Government contends that
while the PVA and SAA waive the Government’s sovereign immunity, neither act provides a cause
of action against the United States.13 The Government submits that the United States has waived
sovereign immunity for claims that could be brought against a private party, with exemptions and
limitations of liability that would be available to a private party also being available to the United
States.14
The Government argues that this case should be stayed because there is a question of
coverage pursuant to the Federal Employees’ Compensation Act (“FECA”).15 The Government
contends that seamen employed by the Maritime Administration are covered by the Clarification
Act16 and may pursue a claim against the United States only after they have satisfied the
administrative claim requirement.17 The Government avers that the ability of seamen employed
by companies that own and operate commercial ships on behalf of the United States depends on
the type of charter agreement between the United States and the company.18 The Government
asserts that civilian seamen employed by federal agencies other than the Maritime Administration
may have FECA coverage for illnesses and injuries sustained during the course of work, in which
case they would not be entitled to pursue claims under the Jones Act or General Maritime Law.19
11 46 U.S.C. §§30901–30918.
12 46 U.S.C. §§ 31101–13.
13 Rec. Doc. 7-1 at 4.
14 Id.
15 Id. at 4.
16 50 U.S.C. § 4701.
17 Rec. Doc. 7-1 at 5.
18 Id. at 6.
19 Id.
The Government argues that Plaintiff was a civilian employee of the Corps when the alleged
injuries occurred, and thus, Plaintiff falls within the category of seamen covered by FECA and
may not bring claims under the Jones Act or General Maritime Law.20
The Government contends that there is a substantial question as to whether Plaintiff’s
illness is covered by the FECA.21 The Government asserts that courts have found that there is a
substantial question of FECA coverage in similar cases.22 The Government avers that this matter
presents a substantial question of FECA coverage that this Court cannot resolve.23 The
Government argues that this case should be stayed pending the determination of FECA coverage
by the Secretary of Labor.24 The Government contends that since Plaintiff has not submitted a
claim to the Office of Workers’ Compensation Programs (“OWCP”), a stay is appropriate in order
to eliminate the possibility that Plaintiff’s claim would be time-barred if the Department of Labor
finds no FECA coverage for the alleged injuries after the applicable statute of limitations had run.25
The Government requests that this case be stayed to give Plaintiff an opportunity to submit his
claim to the Department of Labor for adjudication if he so chooses.26
III. Legal Standard
FECA provides compensation for a federal employee’s personal injuries “sustained while
in the performance of his duty.”27 For injuries within its coverage, FECA’s remedy is exclusive of
20 Id.
21 Id. at 8.
22 Id.
23 Id. at 9.
24 Id.
25 Id.
26 Id. at 10.
27 5 U.S.C. § 8102(a).
any other remedy.28 Like workers’ compensation statutes generally, “[FECA] is intended to serve
as a substitute rather than a supplement for the tort suit.”29 FECA vests with the Secretary of Labor
the power to “administer, and decide all questions arising under [FECA],”30 and the Secretary’s
action in allowing or denying an award under FECA is final and conclusive and not subject to
review by a federal court.31
Federal courts’ jurisdiction with regard to FECA is limited to determining if a substantial
question of coverage under FECA exists.32 A substantial question exists unless it is certain that the
Secretary of Labor would find no coverage under FECA.33 Thus, “[t]o avoid sending the case to
the Secretary of Labor, [courts] must essentially decide as a matter of law that, viewing all of the
circumstances, the Secretary could not find FECA coverage of [Plaintiff’s] claim.”34 A federal
court cannot deny the Secretary the opportunity to decide the question of coverage unless the court
is “certain that he would find no coverage.”35 Only if a court is certain that the Secretary of Labor
would conclude that the employee’s injuries do not present a substantial question of coverage
under FECA may the court entertain the employee’s claim without the employee first submitting
the claim to the Secretary of Labor.36
28 5 U.S.C. § 8116(c).
29 Bailey v. United States, 451 F.2d 963, 965 (5th Cir.1971), receded by White v. United States, 143 F.3d
232 (5th Cir. 1998).
30 5 U.S.C. § 8145.
31 5 U.S.C. § 8128(b).
32 See Concordia v. United States Postal Serv., 581 F.2d 439, 442 (5th Cir. 1978); Bailey, 451 F.2d at 967.
33 See Concordia, 581 F.2d at 442.
34 Id.
35 Id. at 443.
36 Bailey, 451 F.2d at 965.
IV. Analysis
FECA establishes a program of workers’ compensation for federal employees which
provides a more efficient and less expensive recovery than a tort suit. It was intended as a substitute
for, rather than a supplement to, a tort suit. Therefore, it is the exclusive remedy for injuries falling
within its coverage.37 FECA provides in pertinent part that:
The liability of the United States . . . with respect to the injury or death of an
employee is exclusive and instead of all other liability of the United States ... to the
employee . . . because of the injury or death in a direct judicial proceeding, in a civil
action, or . . . under a Federal tort liability statute.38
Thus, it is clear that if FECA provides coverage for the injuries complained of in this suit, the
Secretary’s award of compensation would bar Plaintiff from bringing this action.39
The Court’s task here is to determine whether a substantial question of coverage exists. A
substantial question of FECA coverage exists unless it is “certain that the Secretary of Labor would
find no coverage under FECA.”40 The threshold requirement for determining FECA coverage is
that the injuries alleged must be sustained “while in the performance of [the employee’s] duty.”41
Only the Secretary of Labor or his designee may determine the scope of the FECA coverage.42 It
37 See id.
38 5 U.S.C. § 8116(c).
39 Dallas v. United States, 678 Fed. App’x. 212, 214 (5th Cir. 2017) (FECA is the exclusive remedy available
to a civilian vessel captain injured during his employment by the Corps); see also Johansen v. United States, 343 U.S.
427, 441 (1952) (“the Federal Employees’ Compensation Act is the exclusive remedy for civilian seamen on public
vessels.”).
40 White v. United States, 143 F.3d 232 at 234 (5th Cir. 1998) (citing Concordia, 581 F.2d at 442).
41 Id.
42 5 U.S.C. § 8128(b).
is undisputed that Plaintiff’s injuries were sustained while in the performance of his duty as an
employee of the Government.
The term “injury” under FECA is defined as including “in addition to injury by accident, a
disease proximately caused by the employment. . . .”43 Plaintiff alleges that as a direct result of
exposure to certain chemicals during his employment with the Government, he was diagnosed with
Hodgkin B Cell Lymphoma and Chronic Lymphocytic Leukemia in December of 2022.44 As such,
Plaintiff’s alleged injuries are potentially covered by the FECA.
The Court is unable to conclude that FECA would not compensate Plaintiff for his alleged
injuries. For these reasons, the Court finds that a substantial question of FECA coverage exists. If
there is a substantial question of FECA coverage, a plaintiff cannot pursue a tort action unless he
first obtains a determination from the Secretary that FECA does not apply.45 As such, the Court
finds it appropriate to stay this litigation until the Secretary of the Department of Labor has made
a determination regarding FECA coverage.
43 5 U.S.C. § 8101(5).
44 Rec. Doc. 1.
45 Smith v. Nicholson, 287 Fed. App’x. 402, 404 (5th Cir. 2008) (citing Bennett v. Barnett, 210 F.3d 272,
277 (5th Cir. 2000)).
V. Conclusion
For the reasons stated herein, the Court finds that a stay of the proceedings pending a
determination of Plaintiff's claims by the Department of Labor is appropriate.
Accordingly,
IT IS HEREBY ORDERED that the Government’s motion is GRANTED.
IT IS FURTHER ORDERED that the above-captioned matter is STAYED AND
ADMINISTRATIVELY CLOSED pending a determination of Plaintiffs claims by the
Department of Labor.
IT IS FURTHER ORDERED that the parties shall notify the Court immediately upon a
determination of this issue by the appropriate authority.
NEW ORLEANS, LOUISIANA, this □□□ day of May, 2024.
NANNETTE JOLIVETTE BROWN
CHIEF JUDGE
UNITED STATES DISTRICT COURT