# Petition for Writ of Certiorari — Moe v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_1852%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2003 - **Citation:** 540 U.S. 877 ## Text No.9 40 8 ul 18 2003 In The Supreme Court of the Gnited States é& Vv MARILYN MOE, Petitioner, vs. UNITED STATES OF AMERICA, Respondent. @ Vv On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Ninth Circuit & Vv PETITION FOR WRIT OF CERTIORARI @e Vv 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 i 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? ii QUESTIONS PRESENTED FOR REVIEW - Continued 6. 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 iv 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 Vv 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 vi 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 ix TABLE OF AUTHORITIES -— Continued Page B UP.B.O. 6 BEBB .cecerccccescccsccees -coccsecccvvccveveseeosessoonsseseneoes 20 UPC, 6 BIG oneececveccesescvecceesecccnscreccvccseecvcssessoconessones 4, 20 B UBC. 8 CIBBID) . — 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 ... 27 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 28 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) ee 29 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. 30 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 v. UNITED STATES OF AMERICA Defendant-Appellant el (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. 7 i 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