Petition for Writ of Certiorari — Moe v. United States

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No.9 40 8 ul 18 2003

In The

Supreme Court of the Gnited States

é&

MARILYN MOE,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

PETITION FOR WRIT OF CERTIORARI

J. ADAM MOORE MARK E. Vovos

JUDSON R. MOORE Counsel of Record

217 N. 2nd Street 1309 West Dean Avenue

Yakima, WA 98901 Suite 100

Telephone (509) 575-0372 Spokane, WA 99201

Facsimile (509) 452-6771 Telephone (509) 326-5220

Facsimile (509) 326-5226

Attorneys for Petitioner

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED FOR REVIEW

Should the governing principles of Federal law regard-

ing the competition between the FTCA and the FECA

now be clarified, so that the locus of the injury or

wrong is unimportant, to the end that all claims ad-

vanced by federal civil servants injured in the work-

place are treated procedurally the same regardless of

in which Federal Circuit they arise?

When FTCA suits alleging injury to a federal em-

ployee are filed, and the Government asserts the af-

firmative defense of FECA exclusivity, by what

standard snould the Court, in ruling on a Motion to

Dismiss, determine whether the injury arose in the

“performance of duty”?

Is there a conflict among the Circuits regarding that

standard?

If a conflict exists, how should it be resolved so that a

uniform standard will prevail throughout the Cir-

cuits?

Should the chosen standard be:

a. The “Zone of Danger Test” (also known as Cutler’s

Rule) of the First, Fourth, Fifth and Sixth Circuits; or,

b. Reference of the determination of the “perform-*

ance of duty” issue to the Secretary of Labor, accord-

ing absolute deference to that agency’s determination,

and permitting a later FTCA lawsuit only in the event

of an administrative rejection, as in the Tenth Circuit;

or,

c. With respect to claims of emotional distress with-

out physical injury, allowing the FTCA suit to proceed

without regard to FECA exclusivity, as in the Ninth

Circuit?

QUESTIONS PRESENTED FOR REVIEW - Continued

Was the case of Sheehan v. United States, 896 F.2d

1168, amended by 917 F.2d 424 (9th Cir., 1990), which

permits an FTCA suit to proceed without regard to

FECA exclusivity where emotional harm occurs with-

out physical injury, wrongly decided by the Ninth Cir-

cuit, requiring that it be reversed?

In the opinion below, Moe v. United States, No. 02-

35198, the Ninth Circuit decided this case in a man-

ner that did not overrule Sheehan, supra, but sacri-

ficed the principle that “the initial wrong is the cause

of all that follows.” Should that Ninth Circuit opinion

also be reversed?

Should this Court overrule the opinion below, and

adopt as its “performance of duty” standard Cutler’s

Rule, limiting FECA coverage only to harm caused by

a federal employee’s regular or specially assigned

work duties or to requirements imposed by the em-

ployment?

Consistent with the sea-change in our social norms

regarding individual privacy and security in the face

of the terrorist threat, should this Court now conduct

a comprehensive examination of the procedures by

which victims of mass assault or terrorism seek com-

pensation for harm occurring at their federal work-

place?

om: Babin windiest Aad le Aho ve

iii

PARTIES TO THE PROCEEDINGS

The following is a list of all parties to the proceedings

in this case in the United States Court of Appeals for the

Ninth Circuit:

1. Marilyn Moe, Appellee-Petitioner

2. J. Adam Moore and Mark E. Vovos, Attorneys for

Appellee-Petitioner

United States of America, Appellant-Respondent

4. ROBERT D. McCALLUM, Jr.

Assistant Attorney General

MARK B. STERN

(202) 514-5089

JONATHAN H. LEVY

(202) 353-0169

Attorneys, Appellate-Respondent Staff,

Department of Justice

601 D Street, N.W.

Washington, D.C. 20530-0001

JAMES A. McDEVITT

United States Attorney

Eastern District of Washington

W. 920 Riverside

Suite 340

Spokane, WA 99210

(509) 353-2767

TABLE OF CONTENTS

| A Page

QUESTIONS PRESENTED FOR REVIEW.............. i

PARTIES TO THE PROCEEDINGG. ......................... ii

ST tictinicstnsecdcevevinniasnsndbainisiicasin iv

TAs OF AT CEE BID occ cscecencveecevessvescneveugoneevas vi

CFF TEE SEINE sncinscssanecontbsnsevedinnebiansssineabiieinte 1

STATEMENT OF JURISDICTION .........................04. 1

APPLICABLE STATUTES AND REGULATIONS.... 2

STAI. CF TEE CATE cc ccvcccscnscccvesssecsosnesevesens 5

ARGUMENT: REASONS FOR ALLOWANCE OF

GRRE ene sere sec ter en ee a oP OO 9

SEED viinsshaivvsnidsnsasinissiiciniissienimitinabapeaead pieiibaphhantith 30

APPENDIX

4/18/03 Opinion of the Ninth Circuit Court of

i ccensictninocatinsienictavesiavenaseigeaisemmuaaiaentcamiiiiaes App. 1-8

4/18/03 Order Vacating District Court Judgment

Ee I GI icctsttenitinsnintinseninttisicinenitoains App. 8-10

3/23/01 District Court’s Order Denying Motion to

ETI TEI siniccisctnneatiocinnciinneiinsinetniaaniens App. 11-20

12/01 Memorandum In Support of Parties’ Joint

Motion for Certification for Interlocutory Ap-

SITE ss ncceissosinseasiniehiadenicgiicliiactnaninsiahisaenlanbecaadiieaiamabisdiis App. 21-25

12/12/01 District Court Order of Certification for

BUREROOUROE TY TIDE oasivsisesinecicsessnascossccenteiniersnsnvens App. 26

6/5/03 Circuit Court Order Denying Motion for

SIN SINE HIIUDN oh sscsccasirenisnincesevncendeennessadeemmeinees App. 27

TABLE OF CONTENTS - Continued

Page

11/20/03 Declaration of E. Martin Walker Acting

Deputy Director Federal Employees’ Compensa-

tion Office of Workers’ Compensation Program,

United States Department of Labor.........:...... App. 28-36

7/24/95 Letter from Dr. Paul M.Wert, Ph.D.....App. 37-46

Additional Statutes and Regulations............... App. 47-56

TABLE OF AUTHORITIES

Page

CASES

Bailey v. United States, 267 F.2d 135 (2nd Cir.,

Be hsvcnscsnosinccesnnihiennttebintaniscdastebseeiianiliaiamaianasaniniiaa 11

Balancio v. United States, 267 F.2d 135 (2nd Cir.,

SE cscccccsunncssscnssntinsdeseaveninieinicidiaiemuahdaneabnaaiaaaaaal 17

Bennett v. Barnett, 210 F.3d 272 (5th Cir., 2000).............. 15

Brumley v. United States Dep't of Labor, 28 F.3d

746 (8th Cir., 1994), cert. denied, 513 U.S. 1082,

115 S. Ct. 734, 130 L. Ed. 2d 637 (1998)................ce000008 21

Bruni v. United States, 964 F.2d 76 (1st Cir., 1992)....11, 28

Cobia v. United States, 384 F.2d 711 (10th Cir.,

RIED sncincsnscaninysstviciacicanaeptisnnavibaboomnanamaaaaiaancaanaa 12

Consolidated Rail Corp. v. Gotshall, 512 U.S. 532,

114 S. Ct. 2396, 129 L. Ed. 2d 427 (1994)....................8 28

Czerkies v. United States Dep’t of Labor, 73 F.3d

1435 (7th Cir., 1996) (en banc)...............ccccccsssscsseeees 21, 22

DeFord v. Secretary of Labor, 700 F.2d 281 (6th

Cae,, LBBB) cccevccesse vidicebbsiiebitinieleiacamataiiauaaanaaeaaaadal 12, 14, 15

Farley v. United States, 162 F.3d 613 (10th Cir.,

IID sscciiinsasknneinnaciabnenisteusasaasaneetaaaiadaaanann in 12

Ford Motor Credit Co. v. Cenance, 452 U.S. 155,

101 S. Ct. 2239, 68 L. Ed. 2d 744 (1981)... 28

Gold v. United States, 387 F.2d 378 (3rd Cir., 1967)......... 18

Guidry v. Durkin, 834 F.2d 1465 (9th Cir., 1987)........ 12, 14

Hudiburgh v. United States, 626 F.2d 813 (10th

CA, SIF vxvxsnncssssserseceveinennssdumnanisnaenniienmnnienanaaail 12

aa ee ee eee eee eee

Vii

TABLE OF AUTHORITIES -— Continued

Page

Johnson v. Robison, 415 U.S. 361, 94 S. Ct. 1160, 39

Sees Es SE EL ETE ckichin ecbescannteineeenaiainaebenutsaienuetnl 21

Lance v. United States, 70 F.3d 1093 (9th Cir., 1995)....... 17

Lindahl v. Office of Personnel Management, 470

U.S. 768, 105 S. Ct. 1620, 84 L. Ed. 2d 405 (1991)........ 21

McCall v. United States, 901 F.2d 548 (6th Cir.,

SI isiccnicucichsnacaaneiiadepnianiaiebedebidahsnaudeiaabiisasmumabiaaseemmbentianiied 17

McCauley v. United States, 58 F.Supp. 2d 1232

(District Court of Kansas, 1999).................cccccessseeeeeeeees 12

McDaniel v. United States, 970 F.2d 194 (6th Cir.,

SII ainsatshccksieshusenidlscivaletionadautenionniicindlaideenalinsantaaniiahiaimaiesnds 14, 15

Paluca v. Secretary of Labor, 813 F.2d 524 (1st Cir.,

1987), cert. denied, 484 U.S. 943, 108 S. Ct. 328,

i: Be Te Ce Cee a Meinerciccnanretveteminnns 21, 22

Noble v. United States, 216 F.3d 1229 (11th Cir.,

Search cosoeseessieinieianalecincealn at iceesareasiaigrenbicadeaaleanlataiadaaenaiisaaaiide 17

Rodrigues v. Donovan, 769 F.2d 1344 (9th Cir.,

SITTIN ih: cites aniesesecisnsainsicason te eaiaiabiaicaenndassamanaiiaseiaaaialemeiantiiaial 21

Sanders v. United Statés, 387 F.2d 142 (5th Cir.,

STD chccivsitanitidiadahdbaiiniiasdaientiaiidceenatcaiiibinaithiieleidieaditatesibpipataidaaibisiiiels 17

Sheehan v. United States, 896 F.2d 1168, modified,

DET Fie GE CORR Cari, Bi iascccnscecnscesecesecsscvesecesess passim

Sigman v. United States, 208 F.3d 760, amended by,

BEE Fe Fe ee Rog eR cts cccnnsecetccennssescestsnenstiaveoscenee 8

Southwest Marine, Inc. v. Gizoni, 502 U.S. 81, 112

S. Ct. 486, 116 L. Ed. 2d 405 (1991) ................csccccsssseees 21

Swafford v. United States, 998 F.2d 837 (10th Cir.,

———

eee

TABLE OF AUTHORITIES -— Continued

Page

Tarver v. United States, 25 F.3d 900 (10th Cir., 1994)........ 12

Tippetts v. United States, 308 F.3d 1091 (10th Cir.,

STITT ccicietneduncnineieicanbaheciataeeipamaiealeiediabaiaal 11, 12, 15

Udall v. Tallman, 380 U.S. 1, 85 S. Ct. 792, 13

ee EN 28

Vander v. United States, 268 F.3d 661 (9th Cir.,

iia ici mechan tailed dala lehdainiahaniili 17

Wallace v. United States, 669 F.2d 947 (4th Cir.,

TIE ccackounsitvennenssineaneuesssssesmabeediasenediaaaiaianetaes 11, 29

Wilder v. United States, 873 F.2d 285 (11th Cir.,

TTI os ccncsniccidnaiieleieailnadinsiliapaiceniinstadiidaienimaenanaaaiaiidmmniaianiiil 17

Woodruff v. United States Dep’t of Labor, 954 F.2d

GOS (URtRe Clre.. IBBR)..cccccccccccccsscccesese insieeanianbianinaatidebiuaaiiinel 21

Wright v. United States, 717 F.2d 254 (6th Cir.,

STII i cecsstienncnennndehasiantuintinaiatianabieniimnimieiieilintianninintion 10, 29

Zenith Radio Corp. v. United States, 37 U.S. 443,

98 S. Ct. 2441, 57 L. Ed. 2d 337 (1978) ..........ccccccsssessees 28

STATUTES AND REGULATIONS

Federal Employees’ Compensation Act (FECA)

i re NET, UTI ici ccnidintinacicdeaaadimumenapisaabeaneaiebnenmunenedd 3, 22

BE i ctciuiasinienahiennudintnnenoninnaeiausicbiinninbae 29

Fe Oe a ccinsthiicirniisetcsacinncensiiessiesiiniaidatesehiiianladdlimapianamadaaned 2

BD Rett OF Ie =cdnscicccsssensetcscencinnnesnennenncdnnsnndmmmessonsensenents 18

Ir, SI cs ccini sccstesescetiesineanachanaisaehisaiaedabaaitaaaiioanmeed 3, 20

Ti Oe I cs vtcvncociscdennnnscutnseaninineavictnnsiamabisiianinnli 19

5 UB... § CUBR... coccccccecercccscccccoscocccvccssvenssvescesscoscsonsooooes 19

TABLE OF AUTHORITIES -— Continued

Page

B UP.B.O. 6 BEBB .cecerccccescccsccees -coccsecccvvccveveseeosessoonsseseneoes 20

UPC, 6 BIG oneececveccesescvecceesecccnscreccvccseecvcssessoconessones 4, 20

B UBC. 8 CIBBID) .<cccrccecccscsccccccecccosecccossssovcrsevescsessores 20, 21

B U.S.C. § 8145 ........cccccccccccrcccccccccccccccscveccscceeessccecesssossees 20

5 U.B.G. § BLED ...ccrecccccccscccccpersccccccccsccsccscsossnscsscsesessececees 20

Federal Tort Claims Act (FTCA)

In Re Cutler, 28 E.C.A.B. 125 (1976)..........:cccssseeeeeeees 26, 27

In Re Pake, Edgar L. 35 E.C.A.B. 1011 (1984).......:.sse0000 18

BB U.BL.C. &§ 1BBE1)..ccrccccccsscsscccccvscsssccccssccscsssssesssevesessoees 1

BB U.B.C. § UBD) .cccocccccscccvesevccvesscccccvesesccvcessccvesosveseseees 1

2B U.S.C. § 1BB1 ......cccrcccscovccccccscccsccccocccccssovevsccsessossesccoees 6

28 U.S.C. § 1846 ef 80g. ........cseccccccccccccccececccsesesssssesescees 5, 6

BB UBC. § BIDE) eoroceccvcccrvrccecococsesscesevssvoscesssessosseovseseccs 1

BB U.E.C. § BAO] cccccccccccccccccccccccsscocccccccsccsccesccsevcccsesoess 5,19

BO C.BR. § 1O.B...cccccccccceccsevcccccccccccoscccscscscsccescocssscssosceces 20

20 C.ER. § 10.100-10.101...............cccceeeeeeeeeseeeeeeeseeeeeeeees 19

20 C.B.R. § 10.607 ...ccccccsccccccccccscccvcccccccscccccovescevveececceesoees 20

20 C.B.R. § 10.618. .......cccccccccsccccccccccccccccccccesesccesesscsescosoce 20

20 C.F-R. § 10.625-10.626..............ccceceeseeeeeersesseeeeeeessserees 20

20 C.E.R. § 10.404. .....cccccccccccssccsccccccccccccccccccssccecsessssscccece 18

OTHER AUTHORITY

West’s Federal Administrative Practice, 4th ed. Vol.

1, § 1050, at p. 640 (2002)... eceeeeeeereeeeeeeeereseees 26-27

PE NE ee Tee en

OPINIONS BELOW

The opinion of the United States Court of Appeals for

the Ninth Circuit in case no. 02-35198 reversed the deci-

sion of the United States District Court for the Eastern

District of Washington, which had denied the Respondent’s

motion to dismiss for lack of subject matter jurisdiction

and subsequent motion for reconsideration. Thereafter, the

parties jointly agreed to submit this case to the Ninth

Circuit on interlocutory appeal, pursuant to 28 U.S.C.

§ 1292(b). That Court issued a published Opinion dated

April 18, 2003, reprinted here as Appendix 1-8. The ~

district court’s March 23, 2001 Order Denying Motion to

Dismiss, inter alia, and its December 12, 2001 Order

Certifying this case for Interlocutory Appeal, are printed

here as Appendix 11-20 and Appendix 26, respectively.

STATEMENT OF JURISDICTION

This Petition for a Writ of Certiorari seeks review of

the opinion of the United States Court of Appeals for the

Ninth Circuit entered on April 18, 2003, and regarding

which the Ninth Circuit Court of Appeals denied Peti-

tioner’s Motion for Rehearing en banc on June 5, 2003.

(App. 27).

Jurisdiction is invoked pursuant to 28 U.S.C.

§ 1254(1). The Petition for Certiorari is timely filed pursu-

ant to 28 U.S.C. § 2101(c).

APPLICABLE STATUTES AND REGULATIONS

1. The statutes applicable to this case are as follows:

Federal Employees’ Compensation Act (FECA)

General Rule

Compensation for disability or death of

employee

(a) The United States shall pay compensation as

specified by this subchapter for the disability

or death of an employee resulting from per-

sonal injury sustained while in the perform-

ance of his duty....

-5US.C. § 8102

Definitions

For the purpose of this subchapter —

(1)

(2)

(3)

(4)

“employee” means —

(A) a civil officer or employee in any

branch of the Government of the United

States, including an officer or employee of

an instrumentality wholly owned by the

United States;

(B)

(C)

(D)

(E)

Stik eh Dek Ss A deb

SE ee Te ee ee eae

(5) “injury” includes, in addition to injury by ac-

cident, a disease_ proximately caused by the em-

ployment, and damage to or destruction of

medical braces, artificial limbs, and other pros-

thetic devices which shall be replaced or re-

paired, and such time lost while such device or

appliance is being replaced or repaired; except

that eyeglasses and hearing aids would not be

replaced, repaired, or otherwise compensated for,

unless the damages or destruction is incident to

a personal injury requiring medical services;

-5 U.S.C. § 8101

—-_——

Limitation on right to receive compensation: FECA

Exclusivity

(a)

. (b)

strumentality thereof under this subchapter or

any extension thereof with respect to the injury

or death of an employee is exclusive and instead

of all other liability of the United States or the

instrumentality to the employee, his legal repre-

sentative, spouse, dependents, next of kin, and

any other person otherwise entitled to recover

damages ....

-5 U.S.C. § 8116

Review of Award: Finality of Administrative Deter-

mination

(a) The Secretary of Labor may review an

award for or against payment of compensation at

any time on his own motion or on application. _

The Secretary, in accordance with the facts found

or: review, may —

(1) end, decrease, or increase the compen-

sation previously awarded; or

(2) award compensation previously refused

or discontinued.

(b) The action of the Secretary or his designee

in allowing or denying a payment 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 review by another official

of the United States or by a court by man-

damus or otherwise.

Credit shall be allowed in the accounts of a certi-

fying or disbursing official for payments in accor-

dance with that action.

-—5US.C. § 8128

Federal Tort Claims Act (FTCA)

United States as defendant

(b)(1) Subject to the provisions of chapter 171 of

this title, the district courts, together with the

United States District Court for the District of

the Canal Zone and the District Court of the Vir-

gin Islands, shall have exclusive jurisdiction of

civil actions on claims against the United States,

for money damages, accruing on and after Janu-

ary 1, 1945, for injury or loss of property, or per-

sonal injury or death caused by the negligent or

wrongful act or omission of any employee of the

Government while acting within the scope of his

office or employment, under circumstances where

the United States, if a private person, would be

liable to the claimant in accordance with the law

of the place where the act or omission occurred.

(2)

— 28 U.S.C. § 1346

Time for commencing action against United States

(a) Except as provided by the Contract Disputes

Act of 1978, every civil action commenced against

the United States shall be barred unless the

complaint is filed within six years after the right

of action first accrues. The action of any person

under legal disability or beyond the seas at the

time the claim accrues may be commenced

within three years after the disability ceases.

(b) Atort claim against the United States shall

be forever barred unless it is presented in writ-

ing to the appropriate Federal agency within two

years after such claim accrues or unless action is

begun within six months after the date of mail-

ing, by certified or registered mail, of notice of fi-

nal denial of the claim by the agency to which it

was presented.

— 28 U.S.C. § 2401

STATEMENT OF THE CASE

Basis for Federal District Court Jurisdiction:

Petitioner, Marilyn Moe (“Moe”), brought suit against

Respondent, the United States of America, pursuant to

the Federal Tort Claims Act, 28 U.S.C. § 1346. et seq.

Jurisdiction in the United States District Court for the

Eastern District of Washington was alleged pursuant to 28

U.S.C. § 1331.

Facts Material to Consideration of the Questions

Presented:

Marilyn Moe was a civilian employee of the Airforce,

assigned to the family practice clinic at the Fairchild

Airforce Base, at Spokane, Washington. On June 20, 1994,

while working in her office near the pediatric clinic, an

announcement came over the public address system that a

gunman was in the building. What was happening was

absolutely senseless, violent and terrifying. Dean Mell-

berg, a separated airman, had recently been released from

a 90 day stay in a military psychiatric ward in Texas, his

Airforce career in ruins. He had been sent there from the

Fairchild AFB hospital by two doctors who had questioned

his mental stability and fitness for duty.

Mellberg had penetrated base security with a con-

cealed rifle that morning, intent on murdering those

doctors. He entered the clinic by stealth, and stalked and

killed the doctors in their second floor offices, one by one.

The first shot that rang out killed the psychologist and the

next killed the psychiatrist down the hall.

Marilyn Moe’s routine clerical duties that morning

were disrupted by two panicked hospital staff people who

came running through her area to the exit, declaring that

there was a gunman right behind them. Marilyn immedi-

ately followed, at a dead run, just as Mellberg pushed open

a fire door with his body, affording him a clear shot at

Marilyn. He aimed in her direction, and shot out the glass

window right beside the emergency doors through which

she was trying to escape. Certain that he was pursuing,

stalking, hunting her as his next victim, she ran across a

parking lot and dove into some bushes for cover. She lay

motionless, pretending to be dead, watching another

woman running, then falling, after having been shot. -

After shooting his doctors, Mellberg went on to kill

two more people, and wound twenty-three others; men,

women and children, most of them patients of the family

practice clinic. When he ran out of bullets, he was shot and

killed by a military policeman.

Marilyn Moe was not shot, but she was traumatized

and suffered post-traumatic stress disorder (PTSD) from

the incident. She was plagued by intrusive recollections of

what did happen and what else could have happened. She

began experiencing nightmares almost immediately, with

one or two nightmares a night. She would wake up crying,

fearful that an intruder was in her home. In recounting a

typical nightmare, she stated: “I can see his face, he’s in

dark clothing, he’s smiling and I’m in the room, the only

thing in the room, and I’m crouching in the corner looking

up at him ... [with] the barrel of the gun pointed at me.”

(App. 41).

Once, while she was grocery shopping, she thought

she heard a gun discharge and jumped under the vegeta-

ble counter, and hid there, crying, until she learned

someone had dropped a bottle of Coca-Cola.

She began leaving a hall light on at night, and always

planned an escape route from her bedroom before she was

able to go to sleep. When asleep, she experienced sleep

disturbance. Her PTSD aggravated her pre-existing

ulcerative colitis, requiring the removal of her colon.

The Government filed a letter from Dr. Paul Wert, a

psychologist, as part of the submissions on this Appeal

(App. 37-46). Dr. Wert’s letter, dated July 24, 1995, states

in part as follows:

In the months following the incident at Fairchild,

Marilyn experienced problems with ulcerative co-

litis, which was originally diagnosed 12 years

ago. Subsequent to June 20, 1994, she experi-

enced a serious “episode.” Within one month her

weight went from 126 pounds to 98 pounds. She

was hospitalized at Sacred Heart Medical Center

for one week. She was then sent home for four to

five days. The medication which was prescribed

was not effective, however, and in December of

1994 she underwent an ileostomy. She under-

went a recovery period in January. From March

through June of this year she also has experi-

enced considerable hair loss. The etiology of this

is unknown. In general, however, she felt it was

“all the stress, I was really under a lot of stress

there for six months.”

(App. 43-44).

Additional facts and a description of petitioner-appellee’s

legal theories, which survived the government’s 12(b)(6)

Motion, can be found at Sigman v. United States, 208 F.3d

760, amended by, 217 F.3d -785 (9th Cir., 2000), an earlier

appeal regarding the sovereign immunity defense raised

against all of the injured claimants. Following that appeal,

all cases were n diated and settled, with the exception of

the Moe claim.

Ms. Moe had joined the others in pursuing a FTCA

remedy. She relied upon the Ninth Circuit case of Sheehan

vu. United States, 896 F.2d 1168, modified, 917 F.2d 424

(9th Cir., 1990), which permitted FTCA lawsuits involving

mental distress suffered by civilian government employees

as a judicially created exception to FECA exclusivity.

Without overruling Sheehan v. United States, supra, the

Ninth Circuit has now ruled that Ms. Moe’s only recourse

was an administrative claim under the federal workman’s

compensation system, (herein referred to as FECA) be-

cause her emotional injuries mutated into physical inju-

ries, thus falling outside of Sheehan’s holding. (App. 4-7).

ARGUSENT: REASONS FOR

ALLOWANCE OF THE WRIT

There is irreconcilable conflict among the

Circuit Courts of Appeals regarding the availabil-

ity of procedural and jurisdictional remedies

available to federal employees claiming to have

suffered emotional harm at or near their place of

employment, injured by Governmental misfea-

sance. This conflict is of sufficient importance to

merit review by the Supreme Court.

The Circuits that have addressed the issue fall into

the following conflicting alignments:

1. The First, Fourth, Fifth and Sixth Circuit

Courts of Appeals have adopted the “Zone of

Danger” test to determine whether a worker

was injured “while in the performance of

duty.” The mere fact that the injury occurred

while the employee was on the premises of

his federal employer is not controlling;

rather, a risk analysis determines whether

the injuries were connected to the usual

and expected hazards of the particular job

performed. If they were, the employee must

proceed under the FECA, if not, a FTCA suit

can be maintained. The District Court per-

forms the analysis, and this test applies to

both physical and emotional harm.

2. There is a sharp division between those four

(4) Circuits, and the Tenth. In the Tenth Cir-

cuit, procedurally it is left to the Secretary of

Labor to determine whether an injury oc-

curred in the employee’s performance of

duty. The Fourth Circuit accords complete

deference to the administrative agency and

that determination is final with no opportu-

nity for judicial review. Only if the agency

first determines FECA has no applicability,

may a FTCA suit be advanced. This proce-

dure is followed in both physical and emo-

tional harm cases.

3. Isolated from the above Circuits, the Ninth

Circuit alone holds that emotional distress

claims with no physical injury need not be

mandatorily redressed under FECA as a

matter of law, permitting the FTCA suit to

proceed. No job risk or hazard analysis is

made, no deference is accorded to the admin-

istrative process in such cases, and FECA

exclusivity, as an affirmative defense, is not

available to the Government. This rule,

unique among all the Circuits, only applies

to emotional distress claims with no physical

injury.

The First, Fourth, Fifth, and Sixth Circuit Courts of

Appeals have adopted the “Zone of Danger” test to deter-

mine whether a worker was injured “while in the perform-

ance of duty.” See Wright v. United States, 717 F.2d 254,

258 (6th Cir., 1983); Wallace v. United States, 669 F.2d

947, 952 (4th Cir., 1982); Bruni v. United States, 964 F.2d

76, 79-80 (1st Cir., 1992); Bailey v. United States, 451 F.2d

963, 967 (5th Cir., 1971). This test looks to whether the

injury falls within the “Zone of Danger” created by the

work at issue. (See, infra, at pp. 28-29)

In sharp contrast, the Tenth Circuit Court of Appeals

has held that it is always left to the Secretary of Labor to

determine whether an injury occurred in the federal

employee’s performance of duty. Tippetts v. United States,

308 F.3d 1091, 1095 (10th Cir., 2002). In that case, a postal

employee was placed on administrative leave because the

postal service erroneously misread his military health

record concerning his history of depression (e.g., whether

his history included depression with psychotic features

should have been read without psychotic features). The

postal service concluded that he had not been candid when

he had filled out his jab application, and suspended him.

He was thereafter required to call in daily, but there was

never any work for him. After 3% months of this, he was

fired. He filed a FTCA lawsuit, alleging intentionai inflic-

tion of emotional harm and defamation. In holding that

District Court deference to the administrative determina-

tion of FECA coverage is absolute, the Tenth Circuit

stated:

[3] The Secretary must determine, as an

initial matter, whether a claim falls within the

purview of the FECA. Id. When a claim is pre-

sented to the court without having first been

submitted to the Secretary for a ruling on FECA

coverage, the court must permit the Secretary to

evaluate the claim if there is a substantial ques-

tion that FECA coverage exists. Farley, 162 F.3d

at 616. “A substantial question regarding [FECA]

coverage exists unless it is certain the Secretary

would not find coverage.” Id. at 615-16.

— Tippetts, supra, at 308

F.3d page 1094

See, also, the following Tenth Circuit cases: Farley uv.

United States, 162 F.3d 613 (10th Cir., 1998); Swafford v.

United States, 998 F.2d 837 (10th Cir., 1993); Cobia uv.

United States, 384 F.2d 711 (10th Cir., 1967); Tarver uv.

United States, 25 F.3d 900 (10th Cir., 1994); Hudiburgh v.

United States, 626 F.2d 813 (10th Cir., 1980). Consistent

with its rule of absolute deference to the Secretary of

Labor, the Tenth Circuit does not presume to articulate

the standard by which the Labor Department must carry

out its mandate.

Disengaged from all other Circuits, the Ninth Circuit

Court of Appeals stands alone in holding that emotional

distress claims without physical injury can be advanced

under the FTCA, bypassing FECA. It reached this conclu-

sion in Sheehan v. United States, 896 F.2d 1168, modified,

917 F.2d 424 (9th Cir, 1990), primarily relying upon

Guidry v. Durkin, 834 F.2d 1465 (9th Cir., 1987), and

DeFord v. Secretary of Labor, 700 F.2d 281, 290 (6th Cir.,

1983). The importance of the procedural issues raised by

this Petition should not be discounted. It is informative to

contrast the case of Alex McCauley with the case of Joan

Sheehan. In McCauley v. United States, 58 F. Supp. 2d

1232 (District Court of Kansas, 1999), the plaintiff had

been the resident agent in charge of the Oklahoma Field

office of ATF, located in the Murrah Building. Although in

the building when Mr. McVey’s terrorist act occurred, he

was not physically harmed. As he helped others escape in

the aftermath of the blast, he suffered extreme trauma

and stress. He went into therapy, and his ATF career was

ruined. He brought suit under the FTCA but was relegated

to apply under the FECA and the suit was stayed, based

upon Tenth Circuit law. That procedure would have been

very different in the Ninth Circuit.

Acts of murderous terrorism are by their very design

also meant to wreak havoc on the souls of the survivors

who, though uninjured physically, were close enough to be

traumatized. While one can hope the horrors of 9/11,

Oklahoma City, or Columbine-like assaults on federal

enclaves such as Fairchild AFB will never re-occur, the

hatred for our culture festering among our enemies,

whether foreign born or our own alienated citizens, is so

deep, so profound, that it may never die away. Mellberg’s

rampage was also an act of terror, although differing from

the attacks on the Twin Towers, the Pentagon and the

Murrah Building in scale (and in its predictability). This

Petition, if granted, will provide this Court with the

opportunity to correct the Circuits so that accidents of

geography hold no sway over the rights of injured federal

workers. These issues, unless decided now, will unhappily

be revisited by other victims of mass assault. The competi-

tion between FECA and the FTCA will continue. The lower

courts will not stop deciding the relative viability of these

competing compensatory regimes. Lawyers will continue

to assert new culpability devices to detour around the

FECA. And the schism among the Circuits will widen

unless this Court intercedes and endorses a uniform

procedure.

II.

It is the Ninth Circuit’s unique interpretation

that the Federal Employee’s Compensation Act

(“FECA”) does not apply to emotional distress

without physical injury and that such claims may

be pursued under the Federal Tort Claims Act.

A. This interpretation of the FECA was first

advanced by the Ninth Circuit in Sheehan v.

United States, 896 F.2d 1168, modified, 917

F.2d 424 (9th Cir., 1990). The Fifth, Sixth and

Tenth Circuit Courts of Appeals have rejected

Sheehan. The Ninth Circuit has so far de:

parted from the accepted and usual course of

judicial proceedings as to call for an exercise

of this Court’s supervisory power.

The Ninth Circuit Court of Appeals adheres to the

view that emotional distress claims without physical

injury can be advanced under the FTCA, skirting FECA,

as a matter of law. It reached this conclusion in Sheehan v.

United States, 896 F.2d 1168, modified, 917 F.2d 424 (Sth

Cir., 1990), primarily relying upon Guidry v. Durkin, 834

F.2d 1465 (9th Cir., 1987), and DeFord v. Secretary of

Labor, 700 F.2d 281,.290 (6th Cir., 1983). But Guidry was

a defamation case. And the Sixth Circuit subsequently

relegated the DeFord language relied upon by Sheehan to

“dictum” in McDaniel v. United States, 970 F.2d 194, 196

(6th Cir., 1992). Thus, the theoretical underpinnings of the

Sheehan opinion, never very strong to begin with, have

been significantly eroded. Yet, Sheehan remains the law of

the Ninth Circuit. Nothing at all in the FECA Statutes

summons or legitimizes this interpretation.

The Fifth, Sixth and Tenth Circuit Courts of Appeals

have, by implication or by express language, rejected the

Sheehan case. The Sixth Circuit has since labeled as

“dictum” the language in DeFord v. Secretary of Labor, 700

F.2d 281, 290 (6th Cir., 1983) relied upon in Sheehan by

the Ninth Circuit. McDaniel v. United States, 970 F.2d

194, 196 (6th Cir., 1992). See Swafford v. United States,

998 F.2d 837, 840 (10th Cir., 1993) (rejecting Sheehan and

explaining McDaniel’s limitation of DeFord). The Tenth

Circuit recently explicitly rejected Sheehan again in

Tippetts v. United States, 302 F.3d 1091, 1094-95 (10th

Cir., 2002), as did the Fifth Circuit in Bennett v. Barnett,

201 F.3d 272, 277 (5th Cir., 2000). Thus the Fifth, Sixth,

and Tenth Circuit Courts have refused to apply the Ninth

Circuit rule of per se District Court jurisdiction under the

FTCA for claims of emot.onal harm.

In an apparent attempt to salvage Sheehan, the Moe

opinion distinguished it on the shaky basis that Ms. Moe

ultimately experienced physical manifestations of her

emotional distress while the Sheehan plaintiff did not. Moe

opinion at App. pp. 4-6. The Ninth Circuit has not over-

ruled Sheehan and it remains the law of the largest

Circuit in the country.

B. The Ninth Circuit Opinion in the instant case

also merits an exercise of this Court’s super-

visory power based upon its departure from

the accepted and usual course of judicial pro-

ceedings for additional reasons. The Moe

opinion’s insistence that a worker with a

solely emotional injury - compensable under

the FTCA pursuant to Sheehan - is suddenly

relegated to the FECA if that emotional in-

jury later manifests any physical symptoms,

contradicts the common law principle that

“the initial wrong is the cause of all] that fol-

lows,” adopted in the FECA context by the .

Second, Third, Fifth, Sixth, and Eleventh

(and even the Ninth) Circuit Courts of Ap-

peals. Moreover, Moe’s claim mutation creates

a procedural nightmare for litigants as to

which statutory remedy to pursue at the out-

set of an emotional injury.

The Moe opinion’s holding at (Appendix 4-6) that a

government worker who suffers emotional injury that

causes a physical injury must proceed under the FECA —

while an otherwise identical government worker lacking

such an eventual physical injury may proceed under the

FTCA — conflicts with the legal principle that all damages

that result from an injury that is cognizable under a

particular compensation scheme remain within that

scheme and cannot shift to another. The Moe decision thus

conflicts with numerous opinions of other Circuit Courts of

Appeals and substantially affects rules of national applica-

tion in which there is an overriding need for national

uniformity.

Relying on the common law rule that “the initial

wrong is the cause of all that follows,” the Eleventh Circuit

. 17

recently explained that if the original injury is covered by

FECA, then its aggravation is also covered by FECA:

The aggravation of [the plaintiff’s] initial_inju—

ries, suffered while he was indubitably in per-

formance of his duty, should be regarded as

resulting from the initial injuries themselves. . . .

That is the rule at common-law when the claim

is for negligence; the initial wrong is the cause of

all that follows, even when there has intervened a

succeeding negligent act that produced the aggra-

vation. We interpret the Compensation Act as a

substitute for the whole of the claim that, but for

it, would have arisen under the Tort Claims Act.

Noble v. United States, 216 F.3d 1229, 1235-36 (11th Cir,

2000) (emphasis in original); quoting Wilder v. United

States, 873 F.2d 285, 288 (11th Cir, 1989) (sequelae of

original injury covered by FECA could not be compensated

under FTCA; quoting Balancio v. United States, 267 F.2d

135, 137 (2nd Cir., 1959) (Learned Hand, J. ) (same)). The

same should also hold true for those injuries originally

covered by the FTCA, such as Ms. Moe’s initial PTSD.

Regarding this well-established common law princi-

ple, Noble also relied upon Lance v. United States, 70 F.3d

1093, 1095 (9th Cir., 1995) (original injury covered by

FECA so aggravation by medical malpractice also covered

by FECA); McCall v. United States, 901 F.2d 548 (6th Cir.,

1990) (sequelae of original injury covered by FECA could

not be compensated under FTCA); and Sanders v. United

States, 387 F.2d 142 (5th Cir., 1967) (same). See also

Vander v. United States, 268 F.3d 661 (9th Cir., 2001)

(aggravation of original injury covered by federal inmate

compensation scheme could not be compensated under

FTCA); Gold v. United States, 387 F.2d 378 (3rd Cir., 1967)

(alleged medical malpractice in treatment of injuries

covered by FECA must also be compensated under FECA).

Thus the Ninth Circuit’s holding that Ms. Moe’s emotional

distress mutated from a FTCA claim to one under FECA

because her condition later developed physical manifesta-

tions conflicts with precedent of the Second, Third, Fifth,

Sixth, Eleventh, and even the Ninth Circuit Courts of

Appeals. It defies reason that Ms. Moe would be denied

access to the compensation scheme afforded Ms. Sheehan

merely because her emotional distress became worse than

Ms. Sheehan’s.’

Moreover, this holding of the Moe opinion opens a

procedural morass. According to Ninth Circuit precedent,

because Ms. Moe’s original harm involved emotional

distress only, she could properly advance it initially under

the FTCA. See Sheehan v. United States, 896 F.2d 1168,

modified, 917 F.2d 424 (9th Cir. 1990). But the Moe

opinion now holds that once emotional distress manifests

as any amount or type of physical symptom the worker

must abandon his or her FTCA claim in favor of the FECA.

As a practical matter, there is always the possibility that

emotional injuries will lead to physical ones. The panel

* The worsening of Ms. Moe’s condition will ironically result in a

denial of any compensation for permanent disability under the FECA.

Such disabilities are compensated according to statutory and regulatory

schedules found at 5 U.S.C. § 8107 and 20 C.F.R. § 10.404, respectively.

“Colon” and “ileum” are not found on either schedule. The Employees’

Compensation Appeals Board has held that there is no compensation

under FECA for injury to body parts not on these schedules. In Re

Edgar L. Pake, 35 E.C.A.B. 1011 (1984) (no compensation for “coronary

heart condition, myocardial infarction, and coronary artery disease”

because “heart” not on schedules).

decision below effectively requires every such plaintiff to

- either be prescient about the future course of recovery

when choosing whiether to advance the claim under the

FTCA or the FECA, or to start off pursuing both. Conflict-

ing time lines pose considerable problems in that regard,

particularly if the plaintiff chooses wrong in the first

place. Various scenarios emerge regarding these conflicts

when one compares 5 U.S.C. §§ 8119 and 8122 and 20

C.F.R. §§ 10.100-10.101 with 28 U.S.C. § 2401. Thus, Ms.

Moe submits the opinion below confronts practitioners and

litigants with a tangled skein of procedural choices to be

made only at their peril.

In summary, the common law principle that “the

initial wrong is the cause of all that follows” holds that the

aggravation of Ms. Moe’s ulcerative colitis and her subse-

quent ileostomy were causally linked to the initial emo-

tional injuries she suffered due to Dean Mellberg’s

rampage. They are part and parcel of her original injury,

and as such, are compensable just as the initial injury

would have been. The Moe opinion is thus at odds with the

previous holdings of a majority of the Circuit Courts of

Appeals and should be reversed on this issue as well.

Ii.

Under current law, the lower Federal Courts

recognize and fulfill a judicial oversight role,

subject to both Congressional and Constitutional

limitations. This case raises an important ques-

tion of Federal Law that should be settled by this

Court. Unless this Court accepts review and sets

forth a clear standard regarding “performance of

duty,” similarly situated litigants will continue to -

be treated differently in different parts of the

country.

The “door-closing statute,” 5 U.S.C. § 8128(b), pre-

cludes judicial review of FECA rulings by the Secretary of

Labor, where an injury has been administratively deter-

mined to be within coverage of the Act. The Secretary of

Labor is authorized to decide all questions arising under

the FECA, 5 U.S.C. § 8145, and to promulgate regulations

necessary to administer the Act, 5 U.S.C. § 8149. The

Secretary, in turn, has delegated his powers conferred

under §§ 8145 and 8149 to the Director of the Office of

Worker’s Compensation, (OWCP) who carries out the

FECA. 20 C.F-R. § 10.2. Pursuant to Congressional delega-

tion, the Secretary has created the Employee’s Compensa-

tion Appeals Board, or ECAB, to hear and finally —

determine appeals of decisions made by the OWCP. 5

U.S.C. § 8149; 20 C.F.R. § 10.625-10.626. An aggrieved

claimant can request a record review by OWCP (5 U.S.C.

§ 8124, 20 C.F.R. § 10.618); or request a reconsideration

within one year; (5 U.S.C. § 8128, 20 C.F.R. § 10.607); or,

within one year, file an Appeal with ECAB (20 C.FR.

§ 10.625-10.626).

There is no judicial review of the administrative

decisions under FECA. 5 U.S.C. §§ 8116, 8128(b):

The action of the Secretary or her designee

in allowing or denying a payment 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 review by another official

of the United States or by a court by man-

damus or otherwise.

-—5 U.S.C. § 8128(b)

This Court has upheld this preclusion of review

provision barring any judicial review of the administrative

determinations of FECA coverage. Lindahl v. Office of

Personnel Management, 470 U.S. 768, 779-780, 105 S. Ct.

1620, 84 L. Ed. 2d 405 (1991); Southwest Marine, Inc. v.

Gizoni, 502 U.S. -81, 90, 112 S. Ct. 486, 116 L. Ed. 2d 405

(1991). Opinions in the Seventh, Eighth, Eleventh and _

Ninth Circuits follow those teachings. Czerkies v. United

States Dep’t of Labor, 73 F.3d 1435 (7th Cir., 1996) (en

banc); Brumley v. United States Dep’t of Labor, 28 F.3d 746

(8th Cir., 1994), cert. denied, 513 U.S. 1082, 115 S. Ct. 734,

130 L. Ed. 2d 637 (1995); Woodruff v. United States Dep’t

of Labor, 954 F.2d 634 (11th Cir., 1992); Rodrigues uv.

Donovan, 769 F.2d 1344 (9th Cir., 1985).

A limited judicially created exception to § 8128(b) has

been recognized to address substantial Constitutional

claims that amount to more than benefits appeals dis-

guised as Constitutional deprivations. See Johnson uv.

Robison, 415 U.S. 361, 367, 94 S. Ct. 1160, 39 L. Ed. 2d

389 (1974); Czerkies, 73 F.3d at 1441-43; Rodrigues, 769

F.2d at 1348; Paluca v. Secretary of Labor, 813 F.2d 524,

526-27 (1st Cir.), cert. denied, 484 U.S. 943, 108 S. Ct. 328,

98 L. Ed. 2d 355 (1987). Thus, the Seventh Circuit has

held:

The circuits are in agreement: “door-closing stat-

utes do not, unless Congress expressly provides,

close the door to Constitutional claims, provided

that the claim is colorable and the claimant is

seeking only a new hearing or other process

rather than a circuit award of money by the dis-

trict court. One does not, of course, need a stat-

ute to close the doors of the court to claims that

are insubstantial, .. .”

— Czerkies v. United States Dep't

of Labor, supra 73 F.3d 1435 at

p. 1439; see, also, I aluca v. Sec-

retary of Labor, supra.

In addition to the review of substantial claims of

Constitutional deprivation, the lower Courts have been

called upon to rule upon FECA exclusivity when raised as

an affirmative defense by the Government, to defeat an

FTCA claim filed by a Governmental employee whose

claim bears some relationship to federal employment. The

Court must then determine whether the injury or disease

has arisen from the performance of duty. 5 U.S.C. §§ 8101,

8102. It is axiomatic that this judicial oversight role occur,

since a finding by the Secretary that the harm fell outside

of the performance of duty, hence outside of FECA, may

leave a claimant without any remedy at all, as notice and

limitations rules may bar a later untimely FTCA filing.

Some degree of judicial intervention is thus inevitable in

ruling upon the affirmative defense of FECA exclusivity

where raised by the Government. This Court should now

determine and settle an important question of federal law,

and define the standard by which “performance of duty”

issues are to be determined by the lower Courts.

IV.

Great deference should be accorded to the

longstanding administrative interpretation of the

Federal Employee’s Compensation Act (FECA) by

the Labor Department. Cutler’s Rule also known

as the “Zone of Danger Test,” has worked well in

the First, Fourth, Fifth and Sixth Circuits. The

time has come to make it uniform throughout the

United States. -

The District Court Judge in the case at bar was

presented by the Government with a Declaration and

attached memorandum submitted by E. Martin Walker in

support of the Motion to Dismiss based upon FECA exclu-

sivity. The Court reviewed this somewhat self-serving

pleading prepared in contemplation of this litigation, and

reasoned from it as follows:

The Government bases its claim that there is

substantial question as to FECA coverage on the

fact that sometime in 2000, Ms. Krawiec

requested the Acting Director for Federal Em-

ployees’ Compensation, Office of Workers’ Com-

pensation Programs, department of Labor to

review Ms. Moe’s Complaint and her administra-

tive claims to express an opinion as to whether

there is a significant possibility that Ms. Moe

may be covered under FECA for her injuries. On

November 20, 2000, E. Martin Walker, Acting

Deputy Director responded with an equivocal

opinion that there is such a significant possibility

stating that “if plaintiff submits medial evidence

based on a proper factual and medical back-

ground establishing that she has an emotional

condition or a physical condition that is caus-

ally related to factors of her federal

employment, she would be entitled to compen-

sation under the FECA.” (Emphasis added).

The remainder of the opinion letter indicates

that there is no possibility that Ms. Moe could

submit proper factual and medical background to

establish that her emotional condition is causally

related to factors of her federal employment. For

example, the letter states:

While the allegations of the complaint ap-

pear to indicate that plaintiff Marilyn Moe

was performing her work duties as a federal

employee at the time of Dean Mellberg’s

shooting rampage on June 20, 1994, this

alone does not compel a finding of cov-

erage under the FECA.

The letter continues:

When an employee experiences an emo-

tional reaction to her regular or special

assigned employment duties or to a re-

quirement imposed by the employment,

or has fear and anxiety regarding her

ability to carry out her duties, and the

medical evidence establishes that her dis-

ability resulted from an emotional reaction

to such situation, the disability is generally

regarded as due to an injury arising out of

and in the course of employment and comes

within the coverage of the FECA. On the

other hand, where the disability results

from an employee’s emotional reaction to

employment matters, but such matters

are not related to the employee’s regu-

lar or special assigned work duties or

requirements of the employment, the

disability is generally regarded as not

arising out of and in the course of em-

- ployment and does not fall within cov-

erage of the FECA.

Where the evidence demonstrates that the

employing agency neither erred nor

acted abusively in the administration

of personnel matters, coverage under

the Act is not afforded.

(Emphasis added).

There is nothing in this case to suggest

that the shooting spree of Mellberg had any-

thing at all to do with Plaintiff’s employ-

ment duties. Ms. Moe’s emotional distress is

- not related in any way to her work duties or

the requirement of her employment. Mell-

berg was not a supervisor or employee at

Fairchild, nor was he a patient. involving

Plaintiff’s duties from which her emotional

distress derived.

The opinion letter also states “assaults

arise out of employment either if the

risk of assault is increased because of

the nature or setting of the work, or if

the reason for the assault was a quarrel

having its origin in the work.” (Empha-

sis added.) Again, there is nothing in this

case to suggest that the risk of the Mellberg

shooting spree was increased because of the

nature or setting of Ms. Moe’s work or that

the reason for the shooting spree was a

quarrel having its origin in Ms. Moe’s work.

The letter-also states that “to establish

entitlement to compensation for disability

from work under the FECA, the claimant

must demonstrate that she has an emo-

tional condition causally related ts fac-

tors of her federal employment ...”

There is simply no evidence in this case that

Ms. Moe’s emotional condition as the result

of the Mellberg shooting spree was causally

related in any way to factors of her federal

employment. >

— District Court’s Order Denying

Motion to Dismiss, Inter alia

(App. 14-17). See also, Declara-

tion of E. Martin Walker and

his attached Memorandum

(App. 28-29 and 30-26).

Mr. Wailker’s submission was a restatement of Cutler’s

Rule, so-named for the decision regarding Lillian Cutler,

28 ECAB 125 (i976). That rule has become a benchmark

in the implementation of the FECA, and has achieved

hornbook status, which suggests its general and wide-

spread acceptance in the FECA setting:

§ 1050. Presentation of FECA Claim: The

Prima Facie Case - Performance of

Duty - Emotional Reactions to Work-

place Decisions

If a practitioner intends to assist FECA

claimants, he or she must be familiar with Cut-

ler’s Rule. The essentials of this rule are:

Workers’ compensation law does not apply to

each and every illness that is somehow re-

lated to an employee’s employment ...

Where the disability results from his emo-

tional reaction to his regular or specially as-

signed work duties or to a requirement

imposed by the employment, the disability

comes within the coverage of the Act.

— West’s Federal Administrative

Practice, 4th ed., Vol. 1, § 1050, at

p. 640 (2002), footnotes omitted.

Cutler’s Rule has defined the term “in the performance of

duty” for over twenty-five (25) years in the administrative

context relating to FECA coverage. The United States

Supreme Court accords great deference to the interpreta-

tion given to any statute by the officers directed to imple-

ment the law on a day to day basis:

[7-10] When faced with a problem of statutory

construction, this Court shows great deference to

the interpretation given the statute by the offi-

cers or agency charged with its administration.

“To sustain the Commission’s application of this

statutory term, we need not find that its con-

5 struction is the only reasonable one or even that

it is the result we would have reached had the

question arisen in the first instance in judicial

proceedings.” Unemployment Comm’n of Territory

of Alaska v. Aragon, 329 U.S. 143, 153, 67 S. Ct.

245, 250, 91 L. Ed. 136. See also e.g., Gray v.

Powell, 314 U.S. 402, 62 S. Ct. 326, 86 L. Ed.

301; Universal Battery Co. v. United States, 281

U.S. 580, 583, 50 S.Ct. 422, 74 L.Ed. 1051.

“Particularly is this respect due when the admin-

istrative practice at stake ‘involves a contempo-

raneous construction of a statute by the men

charged with the responsibility of setting its ma-

chinery in motion; of making the parts work effi-

ciently and smoothly while they are yet untried

and new.’” Power Reactor Development Co. v. In-

ternational Union of Electricians, 367 U.S. 396,

408, 81S. Ct. 1529, 1535, 6 L. Ed. 2d 924.

— Udall v. Tallman, 380 U.S. 1,

85 S. Ct. 792, quoting from 801,

13 L. Ed. 2d 616 (1965). Accord:

Zenith Radio Corp. v. United

States, 437 U.S. 443, 98 S. Ct.

2441, 2445, 57 L. Ed. 2d 337

(1978); Ford Motor Credit Co. v.

Cenance, 452 U.S. 155, 101

S. Ct. 2239, at 2241, 68

L. Ed. 2d 744 (1981).

The origins of the judicial standard upon which to decide

Motions to Dismiss FTCA lawsuits based upon the FECA

exclusivity defense, it is submitted, should trace back to

Cutler’s Rule. This Rule provides a workable, practical and

objective standard that should be made uniform through-

out all the Circuits. It has been called the “Zone of Dan-

ger” test, and has been adopted by and worked well in four

(4) federal Circuits.

The First, Fourth, Fifth, and Sixth Circuit Courts of

Appeals rely upon the “Zone of Danger” test to determine

whether a worker was injured in the performance of duty.’

* In this context, “Zone of Danger” is the functional equivalent of

Cutler’s Rule, and has an entirely different meaning than the same

term “Zone of Danger”, when it is employed in the FELA cases (Federal

Employer’s Liability Act). FELA applies to injuries to employees

resulting from negligence in the limited context of interstate railroads.

See, Consolidated Rail Corp. v. Gotshall, 512 U.S. 532, 114 S. Ct. 2396,

129 L. Ed. 2d 427 (1994). This contradictory use of the same term by

some Circuits regarding similar federal compensation regimes

(one fault-based, one no-fault) only promotes and fosters confusion.

(Continued on following page)

See Wright v. United States, 717 F.2d 254, 258 (6th Cir.,

1983); Wallace v. United States, 669 F.2d 947, 952 (4th

Cir., 1982); Bruni v. United States, 964 F.2d 76, 79-80 (1st

Cir., 1992); Bailey v. United States, 451 F.2d 963, 967 (5th

Cir., 1971). In Wright, the Sixth Circuit held there was no

FECA coverage because “. . . being injured by the negligent

application and use of a respirator is not an expected

consequence of being within the Special Zone of Danger

which surrounds secretarial positions at a Veterans

Administration hospital.” 717 F.2d at 258. In Bailey, the

worker’s injuries were not connected to the ‘... usual

hazards of laundry work” and were thus not covered by

FECA. 451 F.2d at 967. In Wallace, the Fourth Circuit, in

applying the “Special Zone of Danger” test, noted “. . . that

the mere fact that the injury occurred while the employee

was on the premises of his federal employer is not control-

ling.” 669 F.2d at 952. (This obviously contradicts the Moe

opinion’s holding that Ms. Moe was injured in the per-

formance of duty merely because her job placed her at the

location of the rampage. Moe opinion at App. 7.) Moreover,

being injured by a separated, vengeful, psychotic former

airman is not an expected consequence of being within a

Special Zone of Danger which surrounds secretarial

positions at an Airforce base hospital. Ms. Moe’s injuries

were not connected to the usual hazards of office work at a

hospital. In short, her PTSD and her ulcerative colitis,

both diseases, were not proximately caused by her em-

ployment. 5 U.S.C. § 8101(5).

Clarification and re-definition of the “Zone of Danger” test, to the end

that this contradiction is removed, provides yet another reason for the

Supreme Court to grant this Petition.

CONCLUSION

There is at present an irreconcilable conflict among the

Circuits. That conflict should be resolved so that only one

uniform standard by which to judge FECA exclusivity as an

affirmative defense in the FTCA context is applied through-

out the Circuits. Both the Ninth and the Tenth Circuits are

too extreme in their respective approaches. With regard to

FTCA liability for emotional harm without physical injury,

the Ninth Circuit’s holdings rejecting FECA exclusivity in

emotional injury cases clearly exceed Congressional intent.

Sheehan v. United States, should be overruled. That Circuit

also steps away from reason with the Moe opinion below, as

it violates both principle and precedent that the initial wrong

is the cause of all that follows. Cutler’s Rule should become

the measure by which to judge “performance of duty” in all

Federal Circuits. On the basis of Cutler’s Rule, petitioner

Moe’s injuries were not related to her usual or specially

assigned duties or to a requirement of her employment as a

clerical worker in a small, family practice clinic. The Ninth

Circuit should be overruled, and the case remanded to the

District Court of the Eastern District of Washington for

further proceedings under the FTCA.

For all of the above reasons, Petitioner Moe requests that

her Petition for a Writ of Certiorari be granted by this Court.

DATED this 18th day of July, 2003.

Respectfully submitted,

J. ADAM MOORE MARK E. Vovos

JUDSON R. MOORE Counsel of Record

217 North 2nd Street 1309 West Dean, Suite 100

Yakima, WA 98901 Spokane, WA 99201

Telephone (509) 575-0372 Telephone (509) 326-5220

Facsimile (509) 452-6771 Facsimile (509) 326-5226

Attorneys for Petitioner

App. 1

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MARILYN MOE, No. 02-35198

Plaintiff-Appellee, D.C. No.

9. CV-96-00348-JLQ

UNITED STATES OF AMERICA, OPINION

Defendant-Appellant.

~ Appeal from the United States District Court

for the Eastern District of Washington

Justin L. Quackenbush, Senior District J udge, Presiding

Argued and Submitted

February 14, 2003 — Seattle, Washington

Filed April 18, 2003

Before: Melvin Brunetti, Thomas G. Nelson, and

Johnnie B. Rawlinson, Circuit J udges.

Opinion by Judge Thomas G. Nelson

COUNSEL

Robert D. McCallum, Jr., Assistant Attorney General,

Washington, D.C., for the defendant-appellant.

J. Adam Moore, Yakima, Washington, for the plaintiff-

appellee.

OPINION

T.G. NELSON, Circuit Judge:

The Government appeals the district court’s denial of

its motion to dismiss for lack of subject matter jurisdiction

App. 2

in this Federal Tort Claims Act (“FTCA”) action. Because

we hold that psychological injury accompanied by physical

injury, regardless of the order in which they occur, is

within the scope of the Federal Employee’s Compensation

Act (“FECA”), the district court lacked jurisdiction over

Marilyn Moe’s claim. We vacate and remand to the district

court.

I. BACKGROUND

Moe, a federal employee, was an administrative

assistant at a medical facility on the Fairchild Air Force

Base. On June 20, 1994, Dean Melberg, a recently dis-

charged Air Force serviceman, went on a shooting ram-

page at the medical facility. He killed four people and

wounded twenty-three others before he was killed.

During the shooting, Moe ran from the facility, putting

herself into Melberg’s direct line of fire. Although Moe was

not shot, she suffered from Post-Traumatic Stress Disorder

(PTSD) from the shooting incident. Her PTSD aggravated

her preexisting ulcerative colitis, requiring the removal of

her colon.

Moe timely filed an administrative claim under the

FTCA. When her administrative claim was denied, she

filed suit in district court under the FTCA seeking dam-

ages for her physical and psychological injuries. The

Government moved.to dismiss for lack of subject matter

jurisdiction, claiming that FECA provided Moe’s exclusive

' remedies and preempted her FTCA claims. The district

court denied the motion, and we granted the Government’s

petition for an interlocutory appeal. ~

App. 3

II. ANALYSIS

We review de novo the district court’s refusal to

dismiss for lack of subject matter jurisdiction. We have

jurisdiction pursuant to 28 U.S.C. § 1292(b).

A. FECA Coverage

FECA requires the Government to “pay compensation

... for the disability or death of an employee resulting

from personal injury sustained while in the performance of

his duty.”’ To qualify, the employee must apply to the

Secretary of Labor.’ FECA’s exclusivity provision bars

recovery under the FTCA, providing that “[t]he liability of

the United States ... under this subchapter ... is exclu-

Sive and instead of all other liability of the United States

-.. to the employee ... and any other person otherwise

entitled to recover damages from the United States . es

under a Federal tort liability statute.”* In other words, if

compensation is available under FECA, all other statutory

remedies for claims arising under the same facts are

preempted.

FECA claims raise two questions: (1) is the injury

within the scope of FECA, and (2) is the plaintiff entitled

to compensation under the facts of her case.” The latter

question, if raised, must be deferred to, and answered by,

" United States v. Peninsula Communications, Inc., 287 F.3d 832,

836 (9th Cir. 2002).

* 5 U.S.C. § 8102(a) (2001).

* 5 U.S.C. § 8145.

* 5 U.S.C. § 8116(c).

* Figueroa v. United States, 7 F.3d 1405, 1407-08 (9th Cir. 1993).

App. 4

the Secretary of Labor.’ Scope, on the other hand, is a

question that must be answered by the federal courts,

because it is one of jurisdiction.’ If a plaintiff has a color-

able claim under FECA, the federal courts should dismiss

any action arising under the same facts for lack of subject

matter jurisdiction.° .

In this case, the parties dispute whether Moe’s type of

claim is covered under FECA. Thus, we must decide if

Moe’s injury is of the “type” covered by FECA.’ If it is,

FECA preempts Moe’s FTCA claims, and her case should

be dismissed for lack of jurisdiction.

B. Moe’s Injuries are Within the Scope of FECA

Two things are clear about the personal injuries FECA

covers: a claim for compensation must result from physical

injury” and emotional injury, “divorced from any claim of

physical harm,” is outside FECA’s scope.” This circuit has

not addressed whether psychological injury, which results

in physical injury, is within FECA’s scope. That is the

precise question before us, and we hold that it is.

* Id. at 1408.

” Sheehan v. United States, 896 F.2d 1168, 1174 (9th Cir. 1990).

* Figueroa, 7 F.3d at 1408.

* Id. (holding that in cases where FECA is an issue, the court must

determine whether the “type” of injury claimed is statutorily covered by

FECA, and anything beyond the question of scope, such as compensa-

tion, should be left to the Secretary of Labor to determine).

* Id.

" Sheehan, 896 F.2d at 1174.

App. 5

A plaintiff need only allege a colorable claim under

FECA for our courts to lose jurisdiction over an FTCA

action.” In Figueroa v. United States," the plaintiffs were

exposed to toxic chemicals, resulting in immediate and

potential future physical harm.“ Dismissing the case or

lack of jurisdiction, we acknowledged that FECA “contem-

plates coverage for a [physical] condition produced over a

long period of time by ‘stress’” and the “emotional distress

that results from the stress of being exposed .. . to a toxic

substance that could cause future physical harm.”” Thus,

FECA covers emotional distréss when it results from

physical injuries that FECA covers.

Moe argues that Figueroa’s holding requires physical

injuries to occur first, and that the emotional injuries are

covered when they arise from the physical injuries. We see

no reason for the chronological order of physical and

psychological injuries to impact FECA’s scope. Congress

designed FECA to provide immediate compensation to

federal employees, regardless of fault, eliminating the

need to litigate those claims. In return, employees lose

the right to sue the Government.” We would do nothing to

further this purpose by requiring physical injuries to occur

before FECA would cover a psychological injury. Therefore,

we hold that FECA covers psychological injuries when

” Figueroa, 7 F.3d at 1408.

* 7 F.3d 1405.

* Id. at 1407.

** Id. at 1408 (second emphasis in original).

"* Lockheed Aircraft Corp. v. United States, 460 U.S. 190, 193-94

(1983).

" Id.

App. 6

accompanied by physical injuries, regardless of the order

in which they occur.

In this case, Moe suffered from PTSD, a psychological

injury. As a result of her PTSD, Moe’s colitis condition was

aggravated to the point where her colon had to be re-

moved. This is clearly a physical injury that occurred

because of the shooting incident at her place of employ-

ment. Therefore, we hold that this is the “type” of injury

FECA covers, and Moe has alleged a colorable claim under

the act.

C. Moe’s Injuries Occurred While in the Performance

of Her Duties

Regardless of the type of Moe’s injuries, she would

have us conclude that her injuries did not occur while in

the performance of her duties because her injury did not

come at the hands of a coworker or from her assigned work

duties. This argument lacks merit. FECA provides com-

pensation to a federal employee for injuries “sustained

while in the performance of [her] duty.”” Neither the

statute nor caselaw requires that the employee’s job-

related duties or a coworker cause the injury.”

FECA’s plain language supports our conclusion. The

statute covers injuries that occur “while in the performance

* 5 U.S.C. § 8102(a).

* See Saltsman v. United States, 104 F.3d 787, 790 (6th Cir. 1997);

see also Reep v. United States, 557 F.2d 204, 208 (9th Cir. 1977) (holding

that FTCA action was properly dismissed because there was a substan-

tial question of FECA coverage when an off-duty police officer, on his

way to work, was struck by an enlisted man).

App. 7

of [one’s] duty.”” It neither limits the injuries to those that

occur at the hand of another federal employee, or from the

specific assigned duties.

In a factually analogous case from the Sixth Circuit,

Saltsman v. United States,” an employee at a military

base went on a shooting rampage, injuring and killing

federal employees.” The employees and the decedent

employees’ families filed actions under the FTCA.” The

Sixth Circuit dismissed the case for lack of subject matter

jurisdiction, holding that FECA provided the exclusive

remedy.” The fact that the employees were not engaged in

work tasks when they were injured did not affect the

court’s analysis.

Moe was at work when the shooting occurred. In fact,

she ran from her office into Melberg’s direct line of fire.

Although her employer did not require her to work in that

specific location, her job placed her in this situation. Thus,

we hold that Moe sustained her injuries while in the

performance of her duties.

D. The Government is Not Estopped from Arguing

Lack of Subject Matter Jurisdiction

After Moe’s FTCA administrative claim was denied,

the air force sent Moe a letter saying that she was now

* 5 U.S.C. § 8102(a).

* 104 F.3d 787 (6th Cir. 1997).

* Id. at 788.

* Id. at 788-89.

* Id. at 790.

App. 8

free to file suit in federal court. Relying on this letter, Moe

claims that the Government is estopped from arguing that

the court lacks jurisdiction to hear her claim under the

FTCA. This argument is also without merit. Jurisdiction is

at issue in all stages of a case.” Accordingly, the Govern-

ment is not estopped from questioning the court’s jurisdic-

tion.

III. CONCLUSION

Moe alleged a claim that was colorable under FECA

because she sustained emotional injuries that resulted in

physical injuries, while in the performance of her duties as

a federal employee. Because FECA provides Moe’s exclu-

sive remedy, the courts lack jurisdiction over her FTCA

claim. Jurisdiction is an issue at any stage of the proceed-

ings, and the Government was not estopped to assert its

jurisdictional argument. Accordingly, we vacate and

remand to the district court.

VACATED and REMANDED.

* Feb. R. Civ. P. 12(h)(3) (“Whenever it appears by suggestion of

the parties or otherwise that the court lacks jurisdiction of the subject

matter, the court shall dismiss the action.”); see also Joyce v. United

States, 474 F.2d 215, 219 (9th Cir. 1973) (per curiam) (vacating FTCA

claim for lack of jurisdiction, even though the jurisdictional issue was

not raised until after the trial began).

;

‘

JUDGMENT

oe oo ooo 68 OOOO OSS OSES SEES OSES EEE SESE EES ESSE SESS EH EESE SED ESSE EE ESESEEESEEESE SEH HE EEH HE EEHEEEEEEEES

UNITED STATES COURT OF APPEALS

FOR THE NINTH C{RCUIT

NO. 02-35198

CT/AG#: CV-96-00348-JLO

MARILYN MOE

Plaintiff-Appellee

UNITED STATES OF AMERICA

Defendant-Appellant

(Filed Jun. 20, 2003)

APPEAL FROM the United States District Court for

the Eastern District of Washington (Spokane).

THIS CAUSE came on to be heard on the Transcript

of the Record from the United States District Court for the

Eastern District of Washington (Spokane) and was duly

submitted.

ON CONSIDERATION WHEREOF, It is now here

ordered and adjudged by this Court, that the judgment of

the said District Court in this cause be, and hereby is

VACATED and REMANDED.

COSTS TAXED

Filed and entered April 18, 2003

App. 10

A TRUE COPY

ATTEST

CATHY CATTERSON

Clerk of Court

by: /s/ Ruben Talavera

Deputy Clerk

This certification does con-

stitute the mandate of the

court.

App. 11

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF WASHINGTON

MARILYN MOE, ) NO. CS-9 6-348-JLQ

Plaintiff, ‘ ORDER DENYING

- } MOTION TO DISMISS,

) INTER ALIA

UNITED STATES

OF AMERICA, } (Filed Mar. 26, 2001)

Defendant )

BEFORE THE COURT is Defendant’s Motion for

Leave to Cite Unpublished Employees’ Compensation

Appeals Board Opinions; and Defendant’s Second Motion

to Dismiss, heard telephonically on March 22, 2001. Debra’

L. Stephens appeared on behalf of Plaintiff. Margaret E.

Krawiec appeared on behalf of Defendant. Having re-

viewed the record, heard from counsel, and being fully

advised in this matter, It Is Hereby Ordered that

Defenaant’s Motion for Leave to Cite Unpublished Opin-

ions is Denied and Defendant’s Second Motion to Dismiss

is Denied for the following reasons.

1. Defendant’s Motion for Leave to Cite Unpub-

lished Opinion

Defendant seeks to cite unpublished Opinions of the

Employees’ Compensation Appeals Board in support of it’s

[sic] Second Motion to Dismiss. This request is entirely

contrary to both the Ninth Circuit Rule and the Eastern

District of Washington Local Rule. Ninth Circuit Rule 36-3

provides:

App. 12

Any disposition that is not an opinion or an order

designated for publication ... shall not be re-

garded as precedent and shall not be cited to

or by this Court or any district court of the

Ninth Circuit, either in briefs, oral argu-

ment, opinions, memoranda, or orders, ex-

cept when relevant under the doctrines of law of

the case, res judicata or collateral estoppel.

“The terms of Circuit Rule 36-3 must be strictly

followed.” Thomas v. Newton International Enterprises, 42

F.3d 1266, 1272 (9th Cir. 1994); In Re Burns, 974 F.2d

1064, 1068 (9th Cir. 1992).

Likewise, Eastern District of Washington Local Rule

7.1(g)(2) provides in pertinent part:

Unpublished decisions may not be cited, ex-

cept that (1) unpublished Ninth Circuit decisions

may be cited in accordance with Circuit Rule 36-

3, and (b) unpublished Eastern District of Wash-

ington decisions may be cited when relevant un-

der the doctrines of law of the case, res judicata,

or collateral estoppel. Decisions are ‘pub-

lished’ only when available or pending pub-

lication in official state or federal reports.

Decisions available only in looseleaf services, slip

opinion or electronic databases are not pub-

lished.

The Government does not even suggest that the

unpublished opinions it wishes to cite are relevant under

the doctrines of law of the case, res judicata or collateral

estoppel. Therefore, it is clear that under Ninth Circuit

law, the Government’s Motion for Leave to Cite Unpub-

lished Opinions must be and is Denied.

App. 13

2. Defendant’s Second Motion to Dismiss

A. Background

Marilyn Moe was working in her position as an

administrative assistant in the Family Practice unit at the

Fairchild Air Force Base Hospital on June 20, 1994 when

Dean Mellberg began shooting, and she ran from the

building placing her in Mellberg’s direct line of fire. Ms.

Moe was not physically injured, but has been diagnosed

with Post Traumatic Stress Disorder attributable to her

experience during the shooting incident, which subse-

quently produced objective physical symptoms, including

the worsening of pre-existing ulcerative colitus [sic],

resulting in an ileostomy.

On September 15, 1995, Ms. Moe timely filed her

administrative claim with the United States Air Force

identifying her injuries as “Post Trauma Stress Syndrome;

Internal Aggravation; and Removal of Colon. The United

States Air Force denied this claim on April, 1996, without

any reference to FECA, but which advised Ms. Moe that

she “may now file suit in an appropriate United States

District Court not later than six months after the date of

the mailing of this letter.” Ms. Moe timely filed this action

under the Federal Tort Claims Act (FTCA).

B. Discussion

The Government claims that Plaintiffs Complaint

should be dismissed because Plaintiffs exclusive remedies

are available through the Federal Employees Compensa-

tion Act (FECA), a federal workers compensation statute.

The Government contends that FECA expressly bars an

injured federal employee who may be eligible for FECA

benefits from proceeding under the FTCA until the Secretary

——————————

App. 14

of Labor is provided with the opportunity to make a

determination as to the employee’s FECA liability.

Ms. Moe claims that the injuries she suffered are not

work related injuries and are thus beyond the scope of

FECA; that Defendant should be estopped from making

such a claim; and that if the court finds the Government is

correct, this action should be stayed rather than dismissed

to allow Plaintiff the opportunity to file a claim under

FECA.

Before an action may be instituted under the FTCA, if

there is a substantial question as to whether an injured

federal employee’s injuries are covered under the FECA,

the injured employee must first seek and be denied relief

by the Secretary of Labor. If, on the other hand, there is no

substantial question as to FECA coverage, the injured

employee may commence an action under the FTCA. Reep

v. United States, 557 F.2d 204, 206 (9th Cir. 1977).

If a plaintiffs alleged injury is emotional distress

divorced from any claim of physical harm, her injuries are

not covered by FECA, and there is no substantial question

as to FECA coverage. Sheehan v. United States, 896 F.2d

1168 (9th Cir., 1990), modified at 917 F.2d 424; Bartlett v.

United States, 835 F. Supp. 1246 (E.D. WA, 1993). “FECA

compensates government employees only for physical

harm... Sheehan’s alleged injury — emotional distress — is

divorced from any claim of physical harm ... because a

claim for emotional distress is not covered by FECA,

FECA is not the employee’s exclusive remedy.” Sheehan,

896 F.2d at 1173. (Citations omitted).

The Government bases its claim that there is substan-

tial question as to FECA coverage on the fact that some-

time in 2000, Ms. Krawiec requested the Acting Director

App. 15

for Federal Employees’ Compensation, Office of Workers’

Compensation Programs, Department of Labor to review

Ms. Moe’s Complaint and her administrative claims to

express an opinion as to whether there is a significant

possibility that Ms. Moe may be covered under FECA for

her injuries. On November 20, 2000, E. Martin Walker,

Acting Deputy Director responded with an equivocal

opinion that there is such a significant possibility stating

that “if plaintiff submits medical evidence based on a

proper factual and medical background establishing that

she has an emotional condition or a physical condition

that is causally related to factors of her federal

employment, she would be entitled to compensation

under the FECA.” (Emphasis added).

The remainder of the opinion letter indicates that

there is no possibility that Ms. Moe could submit proper

factual and medical background to establish that her

emotional condition is causally related to factors of her

federal employment. For example, the letter states:

While the allegations of the complaint appear to

indicate that plaintiff Marilyn Moe was perform-

ing her work duties as a federal employee at the

time of Dean Mellberg’s shooting rampage on

June 20, 1994, this alone does not compel a

finding of coverage under the FECA.

The letter continues:

When an employee experiences an emotional

reaction to her regular or special assigned

employment duties or to a requirement im-

posed by the employment, or has fear and

anxiety regarding her ability to carry out

her duties, and the medical evidence establishes

that her disability resulted from an emotional

App. 16

reaction to such situation, the disability is gen-

erally regarded as due to an injury arising out of

and in the course of employment and comes

within the coverage of the FECA. On the other

hand, where the disability results from an em-

ployee’s emotional reaction to employment mat-

ters, but such matters are not related to the

employee’s regular or special assigned

work duties or requirements of the em-

ployment, the disability is generally re-

garded as not arising out of and in the

course of employment and does not fall

within coverage of the FECA.

Where the evidence demonstrates that the

employing agency neither erred nor acted

abusively in the administration of person-

nel matters, coverage under the Act is not

afforded.

(Emphasis added).

There is nothing in this case to suggest that the

shooting spree of Mellberg had anything at all to do with

Plaintiffs employment duties. Ms. Moe’s emotional dis-

tress is not related in any way to her work duties or the

requirement of her employment. Meliberg was not a

supervisor or employee at Fairchild, nor was he a patient

involving Plaintiffs duties from which her emotional

distress derived.

The opinion letter also states “assaults arise out of

employment either if the risk of assault is increased

because of the nature or setting of the work, or if

the reason for the assault was a quarrel having its

origin in the work.” (Emphasis added). Again, there is

nothing in this case to suggest that the risk of the Mell-

berg shooting spree was increased because of the nature or

App. 17

setting of Ms. Moe’s work or that the reason for the shoot-

ing spree was a quarrel having its origin in Ms. Moe’s

work.

The letter also states that “to establish entitlement to

compensation for disability from work under the FECA,

the claimant must demonstrate that she has an

emotional condition causally related to factors of

her federal employment ...” There is simply no evi-

dence in this case that Ms. Moe’s emotional condition as

the result of the Mellberg shooting spree was causally

related in any way to factors of her federal employment.

The Government relies on Reep, supra, and Saltzman

v. United States, 104 F.3d 787 (6th Cir. 1997).

In Reep, a civilian federal employee who had been

struck while crossing the street to go to work by an auto-

mobile operated by an enlisted serviceman brought an

action against the United States under the Federal Tort

Claims Act. Reep’s claimed injuries were all physical

injuries, there was no claim of emotional distress.

On its fact, the case of Saltzman v. United States, 104

F.3d 787 (6th Cir. 1997) seems very similar to this one. In

Saltzman a shooting attack by a worker at a military

base injured or killed co-workers. Representatives of de-

ceased workers and workers’ family members brought an

action against the United State [sic] pursuant to the Federal

Tort Claims Act. The district court dismissed the suit and

held that the FECA provides the exclusive remedy for

claims against the United States relating to work-place

injuries and wrongful death of federal employees. The

Sixth Circuit affirmed. The court found that the spouses

and children of the injured employees, who sought damages,

inter alia, for emotional distress and loss of consortium were

App. 18

covered under FECA because the claims sought damages

with respect to the injury or death of themselves or of a

loved one who was an employee. Here, Mr. Mellberg was

not an employee and Ms. Moe’s claimed injuries have

nothing to do with the with the [sic] physical injury of

herself or of physical injury or death of a loved one who

was an employee.

The Saltzman court distinguished Sheehan v. United

States, supra, 896 F.2d 1168 (9th Cir. 1990) because the

emotional distress claim in Sheehan was divorced from

any claim of physical harm, whereas the emotional dis-

tress claim in Saltzman stemmed from physical harm to

the plaintiffs or the plaintiffs’ loved ones on the job.

In Figueroa v. United States, 7 F.3d 1405 (9th Cir.

1993), the court distinguished between the two cases of

Reep and Sheehan, and clarified the reasoning between

those two holdings.

The court noted that there are two types of FECA

coverage questions. The first question is whether FECA

covers a particular type of injury. This is a question of the

scope of coverage, appropriate for the district court to

decide, as was the case in Sheehan.

The other type of coverage question is whether a

plaintiff is entitled to compensation under the facts of a

particular event. This question requires a determination of

such facts as “whether the injury ... occurred while the

employee was on the job... This is a question of coverage

in and of itself which is subject to Reep.

In Figueroa, government employees were injured

while cleaning up a toxic spill on a naval base in Guam,

who sued the Government under the Federal Tort Claims

App. 19

Act. The plaintiffs sought damages for both current and

potential physical injuries and for emotional distress

resulting from their fear they would develop cancer from

their exposure at some later date. The court held that the

claims were properly dismissed to allow the Secretary of

Labor to resolve the question of whether the plaintiffs’

claims were covered by the FECA:

In this instance, Plaintiffs’ claims are colorably

under the FECA. Plaintiffs’ alleged mental

distress injuries are tied to physical harm

both potential and actual. As a result of

their exposure to the PCBs, and after suf-

fering some medical problems, Plaintiffs are

concerned about developing cancer....

Moreover, the Department of Labor has deter-

mined that emotional distress may be con-

sidered a disability when it arises from a

worker’s emotional reaction to a require-

ment imposed by the employment.

Id. at 1407-08 (Emphasis added).

Here, to the contrary, it is Ms. Moe’s claim that as a

result of the shooting spree by Mellberg, who was not a

federal employee and which caused her no physical injury,

she suffered post traumatic stress disorder, which subse-

quently resulted in physical injury as well. Plaintiffs

alleged mental distress injuries did not result from a job

related duty, nor did it arise from her emotional reaction

to a requirement imposed by her employment. Mr. Mell-

berg was not a co-worker of Ms. Moe and neither Ms. Moe,

nor any of her loved ones was shot or received any physical

injury as a result of the shooting sprees.

App. 20

For the foregoing reasons, the court is satisfied that

Ms. Moe’s claims are not causally related to her work, and

therefore are beyond the scope of the FECA. Ms. Moe’s

alleged injury, emotional distress, and resulting physical

injuries are divorced from any claim of physical harm.

Because a claim for emotional distress is not covered by

FECA, FECA is not the employee’s exclusive remedy, and

Defendant’s Second Motion to Dismiss is Denied. There-

fore, the court need not address where the Government

should be estopped from claiming that Plaintiffs claim

[sic] are covered by FECA.

IT IS SO ORDERED. The Clerk is directed to enter

this Order and forward copies to counsel.

DATED this 23rd day of March, 2001

/s/ Justin L. Quackenbush

JUSTIN L. QUACKENBUSH

SENIOR UNITED STATES DISTRICT JUDGE

App. 21

MARK E. VOVOS, P.S.

West 1309 Dean Avenue

Delphi Building, Suite 100

Spokane, Washington 99201-2014

(509) 326-5220

ADAM MOORE

Law Offices of Adam Moore

217 North 2nd Street

Yakima, Washington 98901

(509) 575-0372

Attorneys for Plaintiff

MARGARET E. KRAWIEC

Trial Attorney

U.S. Department of Justice

Torts Branch, Civil Division

Post Office Box 888

Benjamin Franklin Station

Washington, D.C. 20044

(202) 616-4288

Attorney for United States

UNITED STATES DISTRICT COURT FOR THE

EASTERN DISTRICT OF WASHINGTON

MARILYN MOE, ) CIVIL ACTION NO.

Plaintiff, ) CS-96-0348-JLQ

) MEMORANDUM IN

v- ) | SUPPORT OF PARTIES’

UNITED STATES OF ? JOINT MOTION FOR

AMERICA, ) CERTIFICATION FOR

) INTERLOCUTORY

Defendant. ) APPEAL

This action is one of eighteen separate actions brought

against the United States pursuant to the Federal Tort

App. 22

Claims Act (FTCA), 28 U.S.C. §§ 1346(b), 2671, et seq.,

arising out of the shootings that took place at Fairchild Air

Force Base on June 20, 1994. The United States filed a

motion to dismiss Plaintiffs action on the ground that the

action is barred by the Federal Employees Compensation

Act (FECA) based upon its belief that FECA serves as

Plaintiffs exclusive remedy for the alleged injuries she

suffered as a result of the shooting. The Court denied this

motion on March 23, 2001.

With the exception of this case, all other cases were

settled at a Mediation conducted by United States Magis-

trate Judge Lonny Suko. Before engaging in Mediation,

the parties understood that the United States would not

engage in settlement discussions with Plaintiff Marilyn

Moe in light of the legal significance of the disputed FECA

issues. The parties now agree that a motion seeking

certification for interlocutory appeal of the Court’s Order

denying the United States’ Motion to Dismiss and the

United States’ Motion for Reconsideration or Certification

for Interlocutory Appeal should now be granted and

respectfully move for such certification for interlocutory

appeal.’ A proposed order is herewith submitted for the

convenience of the Court.

‘ In addition to this jointly submitted memorandum, the United

States also respectfully requests that the Court consider the reasons

already asserted in the United States’ Memorandum in Support of

United States’ Second Motion to Dismiss, the United States’ Reply Brief

in Support of Defendant United States’ Second Motion to Dismiss and

its Memorandum in Support of United States’ Motion for Reconsidera-

tion or Certification for Interlocutory Appeal.

App. 23

DISCUSSION

Pursuant to 28 U.S.C. § 1292<b), a district court may

certify for interlocutory appeal an order, not otherwise

appealable, (1) that involves a controlling question of law,

(2) as to which there is substantial ground for difference of

opinion, and (3) where an immediate appeal may materi-

ally advance the ultimate termination of the litigation. See

28 U.S.C. § 1292(b). An analysis of these three elements

supports this Court’s certification of its Order for inter-

locutory appeal.”

First, questions relating to subject matter jurisdiction

are considered controlling questions of law. See Ministry of

Defense of the Islamic Republic of Iran v. Gould, Inc., 969

F.2d 764, 768 (9th Cir. 1992). Accordingly, the finding by

this Court’s conclusion that Plaintiffs claim is not covered

by the FECA is a controlling question of law in this case.

Second, the United States contends that the Ninth

Circuit cases decided after Sheehan v. United States, 896

F.2d 1168 (9th Cir. 1990), have held that a claim of emo-

tional distress is a cognizable injury under FECA. See

Nichols v. Frank, 42 F.3d 503 (9th Cir. 1994) (deeming

plaintiffs post-traumatic stress disorder to be an injury

covered by FECA); Figueroa v. United States, 7 F.3d 1405

* "While the individual elements of the statutory criteria may be

examined separately for purposes of analysis and a decision may

occasionally find one or another of them lacking [ ], in practice the

courts treat the statutory criteria as a unitary requirement, and the

decisions granting and discussing interlocutory appeal under 28 U.S.C.

§ 1292(b) uniformally cite all three of the elements as being present in

any particular case.” 19 Moore’s Federal Practice 3D § 203.30-86

(Matthew Bender & Co., Inc. 1997).

App. 24

(9th Cir. 1993) (“FECA also contemplates coverage for a

condition of emotional distress that results from the stress

of being exposed in a discrete event to a toxic substance

that could cause future physical harm.”)

In contrast, Plaintiffs contend that as the Ninth

Circuit held in Figueroa v. United States, 7 F.3d 1405

(1993) and Sheehan v. United States, 896 F.2d 1168

(1990), as modified at 917 F.2d 424), if a plaintiffs injury

is emotional distress divorced from any claim of physical

harm that plaintiffs injuries ire not covered by FECA. See

also Bartlett v. United States, 835 F. Supp. 1236 (E.D.

Wash. 1993). Because there is substantial ground for these

differences of opinion regarding the controlling legal

standard, the parties agree that an appeal is appropriate

at this time.

Finally, reversal by the court of appeals would lead to

Plaintiffs claims being either dismissed or stayed in order

for the Secretary of Labor to make a determination as to

whether or not FECA applies. If the action is stayed and

the Secretary of Labor determines that FECA applies, this

FTCA action must be dismissed. On the other hand, final

affirmance and remand to the District Court with the

FECA issues decided in Plaintiffs favor would remove

what is now an impediment to the ultimate termination to

this litigation.*

* Plaintiff advances the additional argument that extraordinary

circumstances now exist that warrant reconsideration of prior contrary

orders. Fed. R. Civ. P. 60(b). Specifically, if the United States’ conten-

tions regarding FECA are ultimately sustained on appeal following a

trial, the cost to a lone plaintiff of that trial would be burdensome.

App. 25

CONCLUSION

For all of above reasons, instead of proceeding to trial

on this remaining Plaintiffs claim, and in the interest of

judicial economy, both parties agree that these issues

should be resolved on appeal at this time.

Respectfully submitted,

/s/ Mark E. Vovos

MARK E. VOVOS

/s/ Adam Moore 12-5-01

ADAM MOORE

Attorneys for Plaintiff

/s/ Marilyn Moe

MARILYN MOE

Plaintiff

/s/ Margaret E. Krawiec

MARGARET E. KRAWIEC

Attorney for United States

App. 26

UNITED STATES DISTRICT COURT FOR THE

EASTERN DISTRICT OF WASHINGTON

MARILYN MOE, ) CIVIL ACTION NO.

Plaintiff ! -CS-96-0348-JLQ

Vv. )

UNITED STATES OF ?

AMERICA,

Defendant. )

ORDER

(Filed Dec. 17, 2001)

The Court hereby certifies pursuant to 28 U.S.C.

§ 1292(b) that its Orders denying the United States’

Second Motion to Dismiss and the United States’ Motion

for Reconsideration or Certification for Interlocutory

Appeal involve a controlling question of law as to which

there is substantial ground for difference of opinion and

that an immediate appeal from the order may materially

advance the ultimate termination of the litigation.

Dated this 12th day of December, 2001.

/s/ Justin L. Quackenbush

United States

District Judge

| App. 27

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MARILYN MOE, No. 02-35198

Plaintiff- Appellee, D.C. No. CV-96-00348-JLQ

Eastern District of

V. Washington, Spokane

UNITED STATES OF ORDER

AMERICA, :

(Filed Jun. 5, 2003)

Defendant-Appellant.

Before: BRUNETTI, T.G. NELSON, and RAWLINSON,

Circuit Judges. 7

The panel has voted to deny Appellee’s petition for

panel rehearing. Judge T.G. Nelson and Judge

Rawlinson vote to deny the petition for rehearing en

banc and Judge Brunetti so recommends.

The full court has been advised of the petition for

rehearing en banc and no judge has requested a vote on

whether to rehear the matter en banc. Rule 35, Federal

Rules of Appellate Procedure.

The petition for rehearing and the petition for

rehearing en banc are DENIED.

App. 28

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF WASHINGTON

MARILYN MOE, )

wen )

Plaintiff, ) CIVIL ACTION NO.

v. CS-96-0348-JLQ

UNITED STATES OF

AMERICA,

Defendant. )

DECLARATION OF E. MARTIN WALKER

I, E. Martin Walker, do hereby state and declare that:

1. I am the Acting Deputy Director for Federal

Employees’ Compensation, Office of Workers’ Compensa-

tion Programs (OWCP), United States Department of

Labor, and as part of my duties and responsibilities, I

have been delegated the responsibility for administering

the Federal Employees’ Compensation Act (FECA), 5

U.S.C. §§ 8101 et seq.

2. I was provided and have reviewed a copy of the

complaint filed by plaintiff Marilyn Moe in the above-

captioned matter, and the administrative claim filed with

the Department of the Air Force prior to the filing of the

complaint.

3. I directed a search to be made of the records of

OWCP, which disclosed that no claim for compensation

pursuant to the FECA has been filed by plaintiff Marilyn

Moe with the OWCP based on the events of June 20, 1994,

when Dean Mellberg went on a shooting rampage at

Fairchild Air Force Base in Spokane, Washington.

App. 29

4. I was asked to render an opinion concerning the

question of whether the FECA would cover any injuries

sustained by plaintiff as a result of the events of June 20,

1994 at Fairchild Air Force Base.

5. I issued an opinion, a true and correct copy of

which is attached hereto as Exhibit A, which concluded

that “there is a significant possibility that a claim by

plaintiff Marilyn Moe for compensation for an emotional

condition and/or a physical condition as a result of the

events of June 20, 1994 at Fairchild Air Force Base would

be covered under the FECA.”

6. This opinion is based upon the assumption that all

factual statements in the documents provided to me are

true and that no additional facts material to a determina-

tion on FECA coverage in this matter exist.

I declare under the penalty of perjury that the forego-

ing is true and correct. Executed on November 20, 2000.

28 U.S.C. § 1746.

/s/ E. Martin Walker

E. MARTIN WALKER

Acting Deputy Director for

Federal Employees’

Compensation Office of

Workers’ Compensation

Programs United States

Department of Labor

App. 30

November 20, 2000

MEMORANDUM FOR: Margaret Krawiec, Esq.

Trial Attorney, United States

Department of Justice

FROM: E. Martin Walker

/s/ E. Martin Walker

Acting Deputy Director for

Federal Employees’

Compensation

SUBJECT: Marilyn Moe v. United States

Civil Action No.

CS-96-0348-JLQ (ED WA)

This is in response to your request for an opinion whether

any medical condition which developed as a result of the

events of June 20, 1994 when Dean Mellberg went on a

shooting rampage at Fairchild Air Force Base in Spokane,

Washington, would be covered under the Federal Employ-

ees’ Compensation Act (FECA). The opinion expressed

herein is based upon the facts alleged in plaintiffs com-

plaint filed in the above-referenced action, a copy of which

I have been provided and have reviewed. I have also

reviewed a copy of the administrative claim filed under the

Federal Tort Claims Act (FTCA) with the Department of

the Air Force. Actual adjudication of a claim presented

pursuant to the FECA based upon the events set forth in

the complaint and in the administrative claim (and its

attachments) may disclose different or additional facts

that substantially affect the ultimate determination of this

matter.

Upon review of the allegations of the complaint and the

administrative claim, I conclude that there is a significant

possibility that plaintiff may be covered under the FECA

7 — — ee ee

App. 31

for both an emotional condition and a physical condition

causally related to factors of her federal employment.’ The

complaint alleges that plaintiff “was employed as an

administrative assistant (clerk/typist) for Family Practice

at the [Fairchild Air Force] Base Hospital”; that on June

20, 1994 she “was working in the Family Practice office

when the shooting began and she ran from the building”;

and that “(w)hen she left the building, she was directly in

the line of fire from the shooting going on behind her.”

Complaint, pp. 4-5, q V. (N). The complaint alleges further

that, as a result of the events of June 20, 1994, plaintiff

“has incurred medical and psychological expenses, loss of

past and future earning capacity, and emotional distress

past and future.” Complaint, p. 12, 7 IX.” The complaint

also alleges that plaintiff filed an administrative claim

with the Department of the Air Force. Complaint, p. 12,

q XI. The administrative claim filed with the Department

of the Air Force describes plaintiffs injury as “post trauma

stress syndrome; internal aggravation; removal of colon.”

Documents attached to the administrative claim indicate

that plaintiff had problems with ulcerative colitis following

the events of June 20, 1994, and subsequently underwent

an ileostomy on December 6, 1994.

‘ ‘The fact that a claimant’s injury or disease is covered under the

FECA does not necessarily mean that the claimant will receive

compensation. To establish entitlement to compensation for disability

from work under the FECA, the claimant must demonstrate that she

has an emotional condition causally related to factors of her federal

employment, and must also show that this condition resulted in

disability from work.

? This section of the complaint refers to a different plaintiff; I have

assumed that this was a typographical error. In all other sections of the

complaint, the plaintiff is consistently identified as Marilyn Moe.

App. 32

While the allegations of the complaint appear to indicate

that plaintiff Marilyn Moe was performing her work duties

as a federal employee at the time of Dean Mellberg’s

shooting rampage on June 20, 1994, this alone does not

compel a finding of coverage under the FECA. The Em-

ployees’ Compensation Appeals Board (ECAB) has held

that workers’ compensation is not applicable to each and

every injury or illness that is somehow related to the

employment.

In Lillian Cutler, 28 ECAB 125 (1976), the ECAB dis-

cussed at length the principles applicable to alleged

employment-related emotional conditions and the distinc-

tions as to the type of employment situation giving rise to

an emotional condition which will be covered under the

FECA. When an employee experiences an emotional

reaction to her regular or special assigned employment

duties or to a requirement imposed by the employment, or

has fear and anxiety regarding her ability to carry out her

duties, and the medical evidence establishes that the

disability resulted from an emotional reaction to such

situation, the disability is generally regarded as due to an

injury arising out of and in the course of employment and

comes within the coverage of the FECA. On the other

hand, where the disability results from an employee’s

emotional reaction to employment matters, but such

matters are not related to the employee’s regular or

special assigned work duties or requirements of the

employment, the disability is generally regarded as not

arising out of and in the course of employment and does

not fall within the coverage of the FECA. (In Cutler, the

ECAB held that the claimant’s disability from her disap-

pointment in not receiving a promotion did not constitute

an injury sustained in the performance of duty.)

App. 33

Where the evidence demonstrates that the employing

agency has neither erred nor acted abusively in the ad-

ministration of personnel matters, coverage under the Act

is not afforded. Samuel F. Mangin, Jr., 42 ECAB 671

(1991); Richard J. Dube, 42 ECAB 916 (1991). The ECAB

has held that difficult relations with supervisors and

coworkers can constitute a factor of employment. Law-

rence C. Mar, 42 ECAB 723 (1991); Abe E. Scott, 45 ECAB

164 (1993).° In addition, the ECAB has held that emo-

tional reactions to stressful events that occur in the course

of employment activity can result in coverage under the

Act. For example, in Larry J. Thomas, 44 ECAB 291

(1992), the ECAB found that, where a rural letter carrier

came upon a young boy (approximately 14 years old) who

had apparently just committed suicide next to his mailbox,

this incident constituted a compensable factor of employ-

ment, and any emotional reaction to this incident would be

covered under the Act. Noting that the “requirement that

[Thomas] deliver the mail placed [Thomas] at the mailbox

where he discovered the suicide victim[,]” the ECAB found

that “since his employment placed him in the place of

injury, his injury is covered under the Act.” Larry J.

Thomas, 44 ECAB at 299.

Regarding assaults occurring in the workplace, in Syl-

vester Blaze, 37 ECAB 851, 853 (1986), the ECAB quotes

from professor Larson’s treatise on workers’ compensation

law as follows:

* It is also clear that intentional actions of supervisors and

coworkers can constitute compensable factors of employment under the

FECA. See Arlene F. Stidham, 46 ECAB 674 (1995).

App. 34

Assaults arise out of the employment either if

the risk of assault is increased because of the na-

ture or setting of the work, or if the reason for

the assault was a quarrel having its origin in the

work.

Similarly, where a postal employee sustained injuries in a

confrontation with a postal inspector, the ECAB found

that the claimed injuries were sustained in the perform-

ance of duty because the injuries would not have occurred

had the employee “not been misinformed by the SPO

{supervisory postal official] as to who was waiting in the

Postmaster’s office and the nature of his visit.” Robert J.

Eglinton, 40 ECAB 195, 200-201 (1988).

The complaint contains allegations of events to which

plaintiff Marilyn Moe was exposed at work on June 20,

1994 which, if established, could be considered factors of

employment under Cutler analysis. These include the

allegations in section V of the complaint regarding the

shooting rampage by Dean Mellberg on that date, and

include the allegation that when she ran out of the build-

ing, plaintiff was “directly in the line of fire from the

shooting going on behind her.” Complaint, pp. 4-5, V.

(N). If established as having occurred, these incidents

could constitute factors of employment under Cutler

analysis, and any emotional condition resulting from the

events of June 20, 1994 would be covered under the FECA.

In addition to coverage for emotional conditions, physical

conditions that result from employment-related exposure

to emotional stress are compensable under the Act. See

Charlet Garrett Smith, 47 ECAB 562, 564 (1996), in which

the ECAB held that once the work-connected character of

any condition is established, the “subsequent progression

of that condition remains compensable so long as the

App. 35

worsening is not shown to have been produced by an

independent nonindustrial cause.” In Smith, reversing an

OWCP decision denying compensation benefits for total

disability commencing September 11, 1992, the ECAB

found that the claimant’s treatment for symptoms of sleep

disturbance, nightmares, anxiety, depression, gastrointes-

tinal distress, and headaches following participation in a

July 15, 1992 training class “was the direct and natural

result of her employment-related post-traumatic stress

disorder.” Smith, 47 ECAB at 565; see also John T. Rus-

sell, II, 46 ECAB 536 (1995). In her administrative claim

filed with the Department of the Air Force, plaintiff

claimed that the removal of her colon was related to the

stress of the events of June 20, 1994. Should plaintiff

submit sufficient medical evidence to establish that the

removal of her colon was related to the stressful events of

June 20, 1994, such physical condition would be covered

under the Act.

Based on the foregoing discussion, and on the allegations

of the complaint, plaintiff Marilyn Moe might be able to

establish that she sustained an emotional condition (post-

traumatic stress syndrome) and/or a physical condition

(aggravation of ulcerative colitis, resulting in the surgical

removal of her colon) as a result of the events of June 20,

1994. If plaintiff submits medical evidence based on a

proper factual and medical background establishing either

that she has an emotional condition or a physical condition

that is causally related to factors of her federal employ-

ment, she would be entitled to compensation under the

FECA.

Based on the facts alleged in the complaint, absent some

contradictory information which has not been provided to

me, I conclude that there is a significant possibility that a

App. 36

claim by plaintiff Marilyn Moe for compensation for an

emotional condition and/or a physical condition as a result

of the events of June 20, 1994 at Fairchild Air Force Base

would be covered under the FECA.‘

* Section 8122(a) of the FECA (5 U.S.C. § 8122(a)) provides a three-

year time limitation for filing a timely claim. In addition, 5 U.S.C.

§ 8122(aX(1) provides an exception to the three-year time limitation

where the immediate superior had actual knowledge of the injury or

death within 30 days. This actual knowledge must be sufficient “to put

the immediate superior reasonably on notice of an on-the-job injury or

death[.]” In a case of latent disability, 5 U.S.C. § 8122(b) provides that

“the time for filing claim does not begin to run until the employee has a

compensable disability and is aware, or by the exercise of reasonable

diligence should have been aware, of the causal relationship of the

compensable disability to his employment.”

App. 37

Paul M. Wert, Ph.D.

Clinical Psychology

July 24, 1995

Mr. Mark Vovos,

Attorney at Law

1309 West Dean

Spokane, WA 99201

Re: Moe, Marilyn

Dear Mr. Vovos:

Following a referral from your office, as well as from the

office of Yakima attorney Adam Moore, Marilyn Moe (DOB

10/08/52) was seen for the purpose of psychological as-

sessment. Marilyn was first interviewed face-to-face on

June 14, 1995, with a second face-to-face interview con-

ducted on June 22, 1995. As you know, Marilyn Moe was

working at the hospital at Fairchild AFB outside of Spo-

kane o [sic] June 20, 1994. It was on this day that Dean

Nellberg was involved in a “shooting spree” at the hospital

which resulted in death and injury to some of those pre-

sent. Although Marilyn Moe was not physically injured at

the time of the shooting, it is my understanding that there

is concern on your part, as well as on the part of other

involved parties, that Marilyn has suffered psychological

and emotional problems associated with her proximity to

and involvement in the incident.

In addition to face-to-face interviewing on the dates

outlined above, on June 22, 1995 Marilyn Moe was also

administered an objective personality inventory, the

Minnesota Multiphasic Personality Inventory-2 (MMPI-2).

In way of briefly recounting Marilyn’s past history, she

reported that she was born in Midland, Michigan on

October 8, 1952. She was born to Robert and Mildred Moe.

App. 38

Marilyn is the third of five children born to her parents.

Her oldest sister, Linda, is 47 years of age and is a

teacher's aide. Her next oldest sister, Carol, is 46 years of

age and js a school bus driver. Marilyn’s brother, James, is

44 years of age and is a master plumber. Marilyn’s

younger sister, Mary, is 42 years of age and is employed as

a phlebotomist. All of Marilyn’s siblings live in the state of

Michigan, with the exception of Mary, who lives in Ari-

zona.

Marilyn was raised in an intact family. She describes her

family as being “very close and supportive.” Her father

worked for the Dow Corning corporation for a number of

years, most often as a forklift driver. Marilyn’s mother did

not work outside of the home until her later years when

she worked as a bus driver. Both parents are now retired.

According to Marilyn, her mother was the primary disci-

plinarian in the family. She stated that her mother would

use “grounding” and occasionally spank Marilyn in her

younger years with a ping pong paddle. Concerning the

spankings, however, Marilyn stated “they were appropri-

ate.” According to Marilyn, she experienced a few years

during her teens when her relationship with her mother

was “rocky.” She stated, however, that as an adult she has

been very close to both parents and is close to her siblings

as well.

Marilyn attended Bullock Creek Elementary School in

Midland from kindergarten through the 6th grade. She

stated that she enjoyed school and remarked “I had a Jot of

friends.” She was typically a B student. Marilyn later

attended Bullock Creek High School. She attended this

school from the 7th grade through part of the 12th grade.

According to Marilyn, she did well in high school until she

App. 39

was part way through her last year. Prior to that time, she

enjoyed sports and was well-adjusted socially. Part way

through her 12th grade year in school, however, she began

drinking alcohol and in fact was drinking quite heavily.

Part way through the year, Marilyn and three other

individuals hitchhiked to the San Diego, California area.

Once in San Diego, Marilyn obtained a part-time job and

attended school at night in order to receive her high school

degree. Marilyn remained in San Diego for one year. At

that time, she returned to Midland because she stated she

“missed my family.” Once back in Midland, however,

Marilyn stated that she began “partying.” In August of

1972, however, she enlisted in the U.S. Army. She re-

mained for eight years. During that time she was initially

stationed in Louisiana and later in Texas. During her last

four years in the service, she was stationed in Germany.

Just prior to going to Germany, at age 21 she married Roy

Samuel. Roy Samuel traveled with Marilyn to Germany.

According to Marilyn, however, her rapid advancement in

rank was somewhat threatening to her husband and they

divorced in 1978. By that time they were living in the

state of Texas.

Following her divorce from Roy Samuel, Marilyn met a

man by the name of Francisco Martinez. Marilyn and

Francisco were married in late 1978. In April of 1979

Francisco was killed in a motorcycle accident. It was

around this same time that Marilyn was discharged from

the Army. At the time of her discharge, she was on the

promotion list for E-7.

Following the death of her second husband, Marilyn went

to Kansas City, Missouri where friends were living. She

remained there for one year. During this time, she was

App. 40

working for the U.S. Postal Service. After living in Kansas

City for one year, she moved to Los Alamedos, California.

She obtained a civil service job with an Army Reserve

unit. She was involved in clerical work. This was in 1980.

During this time, Marilyn was living with a Major in the

Army. She moved with this man briefly to Niagara Falls,

New York, but returned to California when he received

orders to go to Panama.

While attending an academy at March AFB, Marilyn met

Mike Hicks. They began dating and Marilyn came to

Spokane with Mike Hicks in August of 1991. Mike Hicks,

who was in the Air Force, had recently divorced his wife.

Mike’s daughter, along with Marilyn, moved into a home

at Clear Lake. In January of 1995, Mike Hicks received

orders for a transfer to Grand Forks AFB, North Dakota.

According to Marilyn, Mike has four years left to retire.

Since arriving in Spokane, Marilyn obtained a civil service

job at Fairchild AFB. She is anticipating that she will

obtain a similar position once she is settled in North

Dakota. According to Marilyn, she has two years left

before she will have 20 years in with the civil service.

According to Marilyn, on June 20, 1994 she was working

in the family practice clinic in the hospital at Fairchild

AFB. Marilyn’s office was by the pediatrics clinic. Accord-

ing to Marilyn, there was apparently an announcement

about a gunman in the building, but Marilyn could not

hear the announcement in her office. She stated that two

staff people came running through, however, and told her

there was a gunman right behind them. They proceeded

out of the building. According to Marilyn, she began

running for an exit. Apparently, Dean Mellberg pushed in

a fire door with his body and, while pointing his weapon in

App. 41

Marilyn’s direction, shot out a glass window right next to

emergency doors through which Marilyn was exiting. She

recalls being afraid that Mellberg was behind her and

following her. She stated that she ran across a parking lot

and dove into bushes for cover. It was while lying flat on

the ground that she realized Dean Mellberg had not in fact

followed her out. While lying in the bushes, Marilyn could

see a woman running, who then fell after being shot.

After joining other people outside, Marilyn was taken to

an old ambulance maintenance building. She felt unsafe in

the building, as there was only one door and a small

window. She was concerned that there would be no avenue

of escape should the gunman come into the facility. She

stated that she was shaking, crying, and added “my

imagination was going crazy.”

Subsequent to June 20, 1994, Marilyn stated that she

almost immediately began experiencing intrusive recollec-

tions of “what else could have happened.” She stated “I

was very fortunate and should have been shot.” She began

experiencing nightmares almost immediately, with one or

two nightmares per night. She stated that she would wake

up crying, fearful that someone would be in their home.

According to Marilyn, she now has nightmares every week

to two weeks, of which the content is associated with the

incident. In asking to specifically recount one of her

nightmares, she stated “I can see his face, he’s in dark

clothing, he’s smiling and I’m in the room, the only thing

in the room, and I’m crouching in the corner looking up at

him.” She stated that in the dream the weapon does not

discharge, but that there is “just the barrel of the gun

pointed at me.”

App. 42

In addition to the intrusive recollections and recurrent

dreams, Marilyn also at various times has felt as if the

incident, or something similar, were recurring. She cited,

for example, that she was in a grocery store not long after

the incident occurred. She thought she heard a gun dis-

charge and jumped under the vegetable counter. She later

learned that someone had dropped a bottle of Coca-Cola.

She stated that Mike Hicks found her under the vegetable

counter crying. She stated that since the time of the

incident, she has been unable to read about or watch

shows on television which have violence. She stated that

previous to the incident, she would watch such shows as

“911.” She stated, however, that she will not do so now.

She also stated that the week previous to our June 22,

1995 appointment she traveled to Michigan in order to

attend the funeral of a cousin. Once there, however, she

realized that she could not do so. She stated “I wasn’t

thinking about Sharon (her cousin) in the casket, but as

being out in the field.”

Marilyn appears to make a clear effort to avoid situations

which might remind her of the incident at Fairchild. She

stated “everything I do all day long, I think about where

I’m going to be, what I’m going to do.” She stated that she

avoids crowds altogether. She stated that the week previ-

ous to our last appointment she was in the airport at

Chicago and was very reluctant to board an airplane, as

she felt there was a “strange” individual who was also

getting on. Marilyn stated that prior to the incident she

was participating in aerobics classes, but is unable to do so

now as a result of her fear of being in groups. She also

feels that she is not as social as she was previously. She

stated “I get to my home and feel secure.” She added “I

used to be very sociable.” According to Marilyn, she also

App. 43

feels that she is more angry, irritable, and prone to de-

pression than she was previous to June 20, 1995. She

stated “I'll start crying and I’m not sure why.” She stated

that anything around the topic of death is difficult for her

to talk about.

According to Marilyn, she initially experienced significant

sleep disturbance. She stated that more recently she will

experience initial sleep disturbance, most frequently when

she is alone. She also stated, however, that she needs to

leave a hall light on and always plans an escape from her

bedroom. According to Marilyn, she feels she has become

increasingly irritable at times subsequent to the Fairchild

incident. She stated that she experiences problems with

concentration at times while working. She is clearly

hypervigilant. She has exaggerated startle responses to

noises which resemble a discharge of a weapon, such as

the incident previously mentioned at the store, and when

these incidents occur she clearly experiences physiologic

reactivity. She tries to avoid restaurants, grocery stores,

and malls, but when she cannot do so she experiences

accelerated heart rate when in these situations. She stated

that she “goes in and out fast.”

On the Tuesday night prior to our last appointment,

Marilyn watched a television show commemorating the

one year anniversary of the incident at Fairchild. She

stated that the following night she could not leave her

bedroom without Mike Hicks accompanying her. She

stated that when she attempted to do so, she would “see a

dark figure with a gun.” She stated “I couldn’t even feel

safe in my own house.”

In the months following the incident at Fairchild, Marilyn

experienced problems with ulcerative colitis, which was

App. 44

originally diagnosed 12 years ago. Subsequent to June 20,

1994, she experienced a serious “episode.” Within one

month, her weight went from 126 pounds to 98 pounds.

She was hospitalized at Sacred Heart Medical Center for

one week. She was then sent home for four to five days.

The medication which was prescribed was not effective,

however, and in December of 1994 she underwent an

ileostomy. She underwent a recovery period in January.

From March through June of this year she also has ex-

perienced considerable hair loss. The etiology of this is

unknown. In general, however, she felt it was “all the

stress, I was really under a lot of stress there for six

months.”

Although Marilyn experienced problems as a result of

alcohol abuse during her earlier years, she terminated her

use of alcohol in 1982. At that time, she involved herself in

a 14 day inpatient treatment program in Orange County,

California. According to Marilyn, “I knew it was time to

get some help.” Marilyn has been entirely abstinent from

alcohol since that time. She stated that her mate, Mike

Hicks, drinks alcohol only occasionally.

As mentioned previously, Marilyn Moe was administered

an objective personality inventory, the Minnesota Multi-

phasic Personality Inventory-2 (MMPI-2). The interpretive

information which follows should be viewed as only one

source of hypotheses about the individual being evaluated.

No decisions should be based solely on the information

contained in this report. This material should be inte-

grated with all other sources of information in reaching

professional decisions about this individual.

The obtained MMPI-2 was valid. The client clearly at-

tempted to answer test questions in an open and honest

App. 45

fashion. The validity scores indicate, however, that the

individual is openly acknowledging significant psychologi-

cal distress at this time. Individuals with similar scores on

the validity scales may feel that they have somewhat

limited personal resources to deal with existing problems.

Concerning configural clinical scale interpretation, indi-

viduals with similar codetypes are oftentimes experiencing

physical ailments. Their medical problems may at times be

exhibited with some degree of agitation. Such individuals

are likely to be described at times as irritable and may be

difficult to interact with. Interpersonal relationships of

individuals with similar codetypes are oftentimes charac-

terized by conflict concerning the acceptance of assistance

versus dependency. However, they see their home life as

being essentially pleasant. Women with similar codetypes

are not always interested in stereotypic female activities.

They may have interests that would closely more approach

stereotypic masculine activities, such as an enjoyment of

sports, outdoor activities, etc.

In way of summation, Marilyn Moe presented as an

intelligent and hard-working individual. Although she has

had problems with alcohol dependency and abuse, she has

throughout the majority of her adult life functioned

responsibly and pro-socially. Subsequent to the incident at

Fairchild AFB on June 20, 1994, Marilyn has experienced

clear symptoms compatible with a diagnosis of Post

Traumatic Stress Disorder. She has experienced a number

of symptoms compatible with a diagnosis of PTSD as de-

scribed above. In addition to clear PTSD symptoms, she has

also experienced an exacerbation of a previously diagnosed

condition of ulcerative colitis. This exacerbation is most

probably a result of the stress Marilyn has experienced

subsequent to June 20, 1994. Marilyn’s Post Traumatic

App. 46

Stress Disorder symptomology, along with increased

medical problems, can be directly attributable to sequelae

subsequent to the incident at Fairchild AFB on June 20,

1994.

Concerning recommendations, it may be helpful for

Marilyn to seek psychological and/or psychiatric help in

order to reduce the severity and intensity of her symp-

toms. Perhaps such help would be available at the Grand

Forks AFB in North Dakota or in that vicinity.

I hope that this information will be of some help to you in

the management of this case. Thank you for referring

Marilyn Moe for assessment. Please feel free to call or

write if I can be of further assistance.

Diagnosis

AxisI — 303.90 Alcohol dependence, by history,

currently in remission

309.81 Post Traumatic Stress Disorder, acute

onset

Axis II — No diagnosis

I am duly licensed as a clinical psychologist in the state of

Washington to practice psychology. I testify and affirm

that the statements in this report are accurate and true to

the best of my knowledge.

Sincerely,

/s/ Paul M. Wert, Ph.D.

Paul M. Wert, Ph.D.

Licensed Psychologist

PMW:tmn

App. 47

ADDITIONAL FECA STATUTES

AND REGULATIONS CITED IN THE PETITION

Compensation schedule

(a) If there is permanent disability involving

the loss, or loss of use, of a member or function of

the body or involving disfigurement, the em-

ployee is entitled to basic compensation for the

disability, as provided by the schedule in subsec-

tion (c) of this section, at the rate of 66 2/3 per-

cent of his monthly pay ...

(1)

(2)

(3)

(b)

(1)

(2)

(1) Through (12) lists arms, legs, hands,

feet, eyes, thumbs, toes, and fingers lost,

and weeks of compensation.

(22) For permanent loss or loss of use of

any other important external or internal or-

gan of the body as determined by the Secre-

tary, proper and equitable compensation not

to exceed 312 weeks compensation for each

organ so determined shall be paid in addi-

tion to any other compensation payable un-

der this schedule.

—5 U.S.C. § 8107

App. 48

Notice of injury or death

An employee injured in the performance of his duty, or

someone on his behalf, shall give notice thereof. Notice of a

death believed to be related to the employment shall be

given by an eligible beneficiary specified in section 8133 of

this title, or someone on his behalf. A notice of injury or

death shall —

(a) be given within 30 days after the injury or

death;

(b) be given to the immediate superior of the

employee by personal delivery or by depositing it

in the mail properly stamped and addressed;

(d) state the name and address of the employee;

(e) state the year, month, day, and hour when

and the particular locality where the injury or

death occurred;

(f) state the cause and nature of the injury, or,

in the case of death, the employment factors be-

lieved to be the cause; and

(g) be signed by and contain the address of the

individual giving the notice.

-5 U.S.C. § 8119

Time for making claim

(a) An original claim for compensation for dis-

ability or death must be filed within 3 years after

the injury or death. Compensation for disability

or death, including medical care in disability

App. 49

cases, may not be allowed if claim is not filed

within that time unless—

(1) the immediate superior had actual

knowledge of the injury or death within 30

days. The knowledge must be such to put

the immediate superior reasonably on notice

of an on-the-job injury or death; or

(2) written notice of injury or deaths speci-

fied in section 8119 of this title was given

within 30 days.

(b) In acase of latent disability, the time for fil-

ing claim does not begin to run until the em-

ployee has a compensable disability and is

aware, or by the exercise of reasonable diligence

should have been aware, of the causal relation-

ship of the compensable disability to his em-

ployment. In such a case, the time for giving

notice of injury begins to run when the employee

is aware, or by the exercise of reasonable dili-

gence should have been aware, that his condition

is causally related to his employment, whether or

not there is a compensable disability.

cause of injury will satisfy the time requirements

for a death claim based on the same injury.

(d) The time limitations in subsections (a) and

(b) of this section do not—

(1) begin to run against a minor until he

reaches 21 years of age or has had a legal

representative appointed; or

(2) run against an incompetent individual

while he is incompetent and has no duly ap-

pointed legal representative; or

App. 50

(3) run against any individual whose fail-

ure to comply is excused by the Secretary on

the ground that such notice could not be

given because of exceptional circumstances.

~5 U.S.C. § 8122

Findings and award; hearings

(a) The secretary of Labor shall determine and

make a finding of facts and make an award for or

against payment of compensation under this

subchapter after—

(1) considering the claim presented by the

beneficiary and the report furnished by the

immediate superior; and

(2) completing such investigation as he

considers necessary.

(b)(1) Before review under section 8128(a) of

this title, a claimant for compensation not sat-

isfied with a decision of the Secretary under

subsection (a) of this section is entitled, on re-

quest made within 30 days after the date of the

issuance of the decision, to a hearing on his claim

before a representative of the Secretary. At the

hearing, the claimant is entitled to present evi-

dence in further support of his claim. Within 30

days after the hearing ends, the Secretary shall

notify the claimant in writing of his further deci-

sion and any modifications of the award he may

make and of the basis of his decision.

~5 U.S.C. § 8124

App. 51

What rules govern the administration of the FECA

and this chapter?

In accordance with 5 U.S.C. 8145 and Secretary’s

Order 5-96, the responsibility for administering the FECA,

except for 5 U.S.C. 8149 as it pertains to the Employee’

Compensation Appeals Board, has been delegated to the

Assistant Secretary for Employment Standards. The

Assistant Secretary, in turn, has delegated the Authority

and responsibility for administering the FECA to the

Director of the Office of Workers’ Compensation Programs

(OWCP). Except as otherwise provided by law, the Direc-

tor, OWCP and his or her designees have the exclusive

authority to administer, interpret and enforce the provi-

sions of the Act.

— 20 C.F.R. § 10.1

What do the rules contain?

This part 10 sets forth the regulations governing

administration of all claims filed under the FECA, except

to the extent specified in certain particular provisions. Its

provisions are intended to assist persons seeking compen-

sation benefits under the FECA, as well as personnel in

the various Federal agencies and the Department of Labor

who process claims filed under the FECA or who perform

administrative functions with respect to the FECA. This

part 10 applies to part 25 of this chapter except as modi-

fied by part 25. The various subparts of the part contain

the following:

— 20 C.F.R. § 10.2

App. 52

How and when is a notice of traumatic injury filed?

(a)

(b)

(1) If the claim is not filed within three years,

compensation may still be allowed if notice of in-

jury was given within 30 days or the employer

had actual knowledge of the injury or death

within 30 days after occurrence. This knowledge

may consist of written records or verbal notifica-

tion. An entry into an employee’s medical record

may also satisfy this requirement if it is suffi-

cient to place the employer on notice of a possible

work-related injury or disease.

(2) OWCP may excuse failure to comply

with the three-year time requirement be-

cause of truly exceptional circumstances (for

example, being held prisoner of war).

(3)

(c)

— 20 C.E.R. 10.100

How and when is a notice of occupational disease

filed?

(a)

(b) For occupational diseases sustained as a re-

sult of exposure to injurious work factors that oc-

curs on or after September 7, 1974, a notice of

occupational disease must be filed within three

years of the onset of the condition. (The form con-

tains the necessary words of claim.) The

requirements for timely filing are described in §

10.100(b)(1) through (3).

App. 53

time for filing claim does not begin to run until

the employee has a compensable disability and is

aware, or reasonably should have been aware, of

the causal relationship between the disability

and the employment (see 5 U.S.C. 8122(b)).

— 20 C.F.R. 10.101

When and how is compersation for a schedule

impairment paid?

Compensation is provided for specified periods of time

for the permanent loss or loss of use of certain member,

organs and functions of the body. Such loss or loss of use is

known as permanent impairment. Compensation for

proportionate periods of time is payable for partial loss or

loss of use of each member, organ or function. OWCP

evaluates the degree of impairment to schedule members,

organs and functions as defined in 5 U.S.C. 8107 according

to the standards set forth in the specified (by OWCP)

edition of the American Medical Association’s Guides to

the Evaluation of Permanent Impairment.

(a) 5 U.S.C. 8107(c) provides a list of schedule

members. Pursuant to the authority provided by

5 U.S.C. 8107 (cX22), the Secretary has added

the following organs to the compensation sched-

ule for injuries that were sustained on or after

September 7, 1974:

Members listed are:

Breast (one)... .

Kidney (one)... .

Larynx....

App. 54

Lung (one). ...

Testicle (one)... .

Ovary (one). . .-

Uterus/cervix and vulva/vagina. ...

(b)

_ fe)

(1)

(2)

(d)

- 20 C.F.R. 10.404

What is the time limit for requesting reconsidera-

tion?

(a) An application for reconsideration must be

sent within one year of the date of the OWCP de-

cision for which review is sought. If submitted by

mail, the application will be deemed timely if

postmarked by the U.S. Posta) Service within the

time period allowed. If there is no such post-

mark, or it is not legible, other evidence such as

(but not limited to) certified mail receipts, certifi-

cate of service, and affidavits, may be used to es-

tablish the mailing date.

(b)

(c)

— 20 C.F.R. 10.607

sia err ee Se Oe lr ae —

App. 55

How is a review of the written record conducted?

(a) The hearing representative will review the

official record and any additional evidence sub-

mitted by the claimant and by the agency. The

hearing representative may also conduct what-

ever investigation is deemed necessary. New evi-

dence and arguments are to be submitted at any

time up to the time specified by OWCP, but they

should be submitted as soon as possible to avoid

delaying the hearing process.

— 20 C.F.R. 10.618

REVIEW BY THE EMPLOYEE’

COMPENSATION APPEALS BOARD (ECAB)

What kinds of decisions may be appealed?

Only final decisions of OWCP may be ap-

pealed to the ECAB. However, certain types of fi-

nal decisions, described in this part as not

subject to further review, cannot be appealed to

the ECAB. Decisions that are not appealable to

the ECAB include: Decisions concerning the

amounts payable for medical services, decisions

concerning exclusion and reinstatement of medi-

cal providers, decisions by the Director to review

an award on his or her own motion, and denials

of subpoenas independent of the appeal of the

underlying decision. In appeals before the ECAB,

attorneys from the Office of the Solicitor of Labor

shall represent OWCP.

— 20 C.F.R. 10.625

App. 56

Who has jurisdiction of cases on appeal to the

ECAB?

While a case is on appeal to the ECAB,

OWCP has no jurisdiction over the claim with re-

spect to issues which directly relate to the issue

or issues on appeal. The OWCP continues to ad-

minister the claim and retains jurisdiction over

issues unrelated to the issue or issues on appeal

and issues which arise after the appeal as a re-

sult of ongoing administration of the case. Such

issues would include, for example, the ability to

terminate benefits where an individual returns

to work while an appeal is pending at the ECAB.

— 20 C.F.R. 10.626

aed

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.