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Frushon v. United States Dep't of Labor

September 5, 2006

JOSEPH FRUSHON AND DIANE FRUSHON, HIS WIFE, PLAINTIFFS,
v.
UNITED STATES DEPARTMENT OF LABOR, DEFENDANT.



The opinion of the court was delivered by: Judge Caputo

MEMORANDUM

Presently before the Court is Defendant United States Department of Labor's Motion to Dismiss (Doc. 10-1) pursuant to Federal Rule of Civil Procedure 12(b)(1).For reasons set forth below, the Court will deny the motion without prejudice. Because the Secretary of Labor has not yet determined whether Plaintiffs' claims are covered by the Federal Employee Compensation Act, the Court cannot determine that it has subject matter jurisdiction. Therefore, the case will be stayed pending the Secretary's determination of coverage.

BACKGROUND

Plaintiff Joseph Frushon (Frushon), an employee of the Social Security Administration (SSA), was injured by a fall which resulted from his pulling the cage off of a SSA vehicle at the Wilkes-Barre Post Office on May 22, 2003. (Doc. 1, ¶ 6, Doc. 17, p. 3.) Six days after the fall, Frushon visited a physician who authorized a back brace in order to help Frushon recover from his injuries. (Doc. 1, ¶¶ 14, 15.) The Defendant Department of Labor allegedly denied this request.(Doc. 1, ¶ 16.) The treating physician made a second request for a back brace for Frushon on June 2, 2003, and was again allegedly denied by Defendant. (Doc. 1, ¶ 17.) The back brace was later approved by the Department of Labor in mid-July of 2003. (Doc. 1, ¶ 21.) The delay in issuing the back brace for Frushon allegedly caused the Plaintiff to suffer permanent damage to his back, and Plaintiff also alleges other medical problems resulting therefrom, e.g., a heart condition. (Doc. 1, ¶¶ 24, 25.) An affidavit supplied by Defendant's employee familiar with this matter disputes some of the factual averments made by Plaintiffs in their complaint, specifically the dates on which Defendant responded to Frushon's correspondences, and the content of those letters. (Doc. 13.)

On May 23, 2005, Plaintiffs filed the civil action complaint claiming negligence and loss of consortium. (Doc. 1.) On February 2, 2006, Defendant Department of Labor filed the present Motion to Dismiss for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1). (Doc. 10-1.) This motion is fully briefed and ripe for disposition.

LEGAL STANDARD

Federal Rule of Civil Procedure 12(b)(1) provides for dismissal of an action where the court lacks jurisdiction over the subject matter of that action. FED.R.CIV.P. 12(b)(1). A defendant may challenge the existence of subject matter jurisdiction in two fashions. See Mortensen v. First Fed. Sav. and Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977).

Where a defendant attacks the complaint as deficient on its face, the Court must assume that "the allegations contained in the complaint are true." Id. However, when the motion to dismiss attacks the existence of subject matter jurisdiction in fact, no presumptive truthfulness attaches to the allegation included in the plaintiff's complaint. Carpet Group Int'l v. Oriental Rug Imps. Ass'n, Inc., 227 F. 3d 62, 69 (3d Cir. 2000) (quoting Mortensen, 549 F.2d at 891). Thus, the Court may weigh all of the available evidence to satisfy itself that subject matter jurisdiction indeed exists. Id. It is important to note also that the existence of disputed material facts will not preclude the Court from evaluating the jurisdictional allegations set forth in the complaint. Gould Elecs., Inc. v. United States, 220 F.3d 169, 176 (3d Cir. 2000).

When subject matter jurisdiction is challenged under Rule 12(b)(1), the plaintiff will bear the burden of persuasion to show that jurisdiction does in fact exist. See Kehr Packages, Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1409 (3d Cir.1991) (quoting Mortensen, 549 F.2d at 891).

In the instant matter, Defendant has asserted a factual attack on the jurisdictional allegations set forth in Plaintiff's complaint. (Doc. 10-1). Consequently, the Court need not presume the truthfulness of the allegations set forth therein. Moreover, it is proper for the Court to consider all relevant evidence submitted by the parties.

DISCUSSION

1. Exclusivity of Federal Employee Compensation Act

Congress enacted the Federal Employees' Compensation Act (FECA), 5 U.S.C. § 8101 et seq., to provide an exclusive and comprehensive worker's compensation scheme to federal employees for injuries that are "sustained while in the performance of [their] duty." 5 U.S.C. § 8102(a). The FECA is a federal employee's exclusive remedy for onthe-job injuries. 5 U.S.C. § 8116(c).

The FECA was designed to protect the Government from suits under statutes, such as the Federal Tort Claims Act (FTCA), that had been enacted to waive the Government's sovereign immunity. The Supreme Court explained Congress's purpose in enacting ยง 8116(c) in Lockheed ...


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