Miller v. United States

Opinion

USCA1 Opinion

                                [NOT FOR PUBLICATION]
                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT


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No. 94-2259



                                   RALPH J. MILLER,



                                Plaintiff, Appellant,



                                          v.



                          UNITED STATES OF AMERICA, ET AL.,



                                Defendants, Appellees.


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                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                          FOR THE DISTRICT OF NEW HAMPSHIRE



                [Hon. Martin F. Loughlin, Senior  U.S. District Judge]
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                                 ____________________



                                        Before



                                Torruella, Chief Judge,
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                          Selya and Boudin, Circuit Judges.
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                                 ____________________



            Ralph J. Miller on brief pro se.
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            Paul M.  Gagnon, United  States Attorney, and Gretchen  Leah Witt,
            _______________                               ___________________

        Assistant United  States Attorney, Chief Civil Division,  on brief for

        appellees.


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                                    July 24, 1995

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Per  Curiam.    Pro se  plaintiff  Ralph  Miller, a
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            former postal employee,  filed this action under  the Federal



            Tort  Claims  Act  (FTCA)  to  recover workers'  compensation



            benefits  that the Department  of Labor's Office  of Workers'



            Compensation Programs  (OWCP) denied  him  under the  Federal



            Employees Compensation Act (FECA), 5 U.S.C.  8101 et seq.  He
                                                              __ ____



            appeals a district court order that dismissed  this action on



            the ground that Miller's claim is  preempted by the FECA.  We



            affirm the dismissal,  but we prefer to rest  our decision on



            the  ground that  Miller failed  to  satisfy the  presentment



            requirements of the FTCA, 28 U.S.C.  2401(b).



                                          I.



                 We begin with  the relevant facts.   Miller was employed



            by the United  States Postal Service from  approximately 1981



            to  1992.  On   March  12,  1990,  Miller  filed  a  workers'



            compensation  claim that alleged  that he was  suffering from



            depression as  a result  of the  way  his postmaster  treated



            him.1   The  OWCP denied  Miller's claim  on the  ground that



            Miller  failed to submit sufficient medical evidence to prove



            that  his condition  was  caused by  his  employment.   While



            Miller  appealed this  decision,  he  subsequently failed  to



            appear at the  hearing that the OWCP  scheduled.  Thereafter,



            Miller  filed  an   administrative  FTCA  claim  for   "work-


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            1.  Miller  claimed that  he  first  became  aware  that  his

            depression  was related  to his  employment  on February  12,

            1989.



aggravated  mental  depression"  with the  Assistant  General



            Counsel for  the Postal Service.   That claim  sought damages



            equal  to the  amount  that  Miller claimed  was  due him  in



            workers'  compensation  benefits.    Thus,  Miller  filed  an



            administrative claim under  the FTCA to recover  the workers'



            compensation benefits that  the OWCP had denied him under the



            FECA.   After more than  six months passed without  action by



            the  Postal Service, Miller commenced this civil action under



            the FTCA.2   



                 The government  filed a  motion to  dismiss pursuant  to



            Fed.  R.   Civ.  P.  12(b)(1)   and  12(b)(6),  or,   in  the



            alternative,  for  summary  judgment.3   It  argued  that the



            district  court lacked  subject  matter jurisdiction  because



            Miller's  FTCA suit  was  simply an  attempt  to redress  the



            OWCP's  denial of  Miller's workers'  compensation claim  and



            judicial  review of the  OWCP's decision was  prohibited by 5



            U.S.C.  8128(b).4   Relying on McDaniel v. United States, 970
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            2.  28 U.S.C.  2675(a) provides that the failure of an agency

            to  make a final disposition of  an administrative FTCA claim

            within 6  months after  it is filed  shall be deemed  a final

            denial  sufficient to  authorize the  filing of  a  FTCA suit

            against the United States. 



            3.  Miller's original complaint named the Postal Service, the

            Department  of Labor,  and the  OWCP as defendants.  He later

            amended  his complaint to substitute the United States (i.e.,

            "the government") for the other named defendants.



            4.  5 U.S.C.  8128(b) provides, in relevant part, that:



                      The  action  of  the  Secretary  or   his

                      designee in allowing or denying a payment



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F.2d 194,  197 (6th  Cir. 1992)(per  curiam), the  government



            further  argued that the district court lacked subject matter



            jurisdiction  despite the fact  that Miller's FECA  claim had



            been denied.5    



                 Miller  opposed the government's motion.  He argued that



            the FECA does  not cover emotional injuries such  as those he



            sustained  as  a  result  of  his  postmaster's  campaign  of



            harassment against him.6   The district court  concluded that



            the FECA does not encompass claims for emotional distress and



            denied the government's motion.  The court based its decision



            on the FECA's definition of injury in 5 U.S.C.  8101(5)(which



            does not specifically refer to mental or emotional injuries),



            Sheehan v.  United States, 896  F.2d 1168, amended,  917 F.2d
            _______     _____________                  _______


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                      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  judicial review  by

                      another official of the  United States or

                      by a court by mandamus or otherwise.



            5.  McDaniel held that  where it was clear that the Secretary
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            of Labor viewed  the plaintiff's emotional distress  claim as

            cognizable  under the FECA,  the FECA barred  the plaintiff's

            FTCA  suit  for  intentional  and  negligent   infliction  of

            emotional distress  even though  the plaintiff  had not  been

            awarded FECA benefits.



            6.  Miller thus implied that his federal tort claim was based

            on the  theory that his  postmaster had subjected him  to the

            intentional  infliction  of emotional  distress.  Miller also

            suggested that the OWCP had intentionally inflicted emotional

            distress upon him by denying his workers'compensation claim. 



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424  (9th Cir. 1990)(holding  that 5 U.S.C.   8128(b) did not



            preclude  district  court  from  determining  what  types  of



            injuries were covered by the  FECA and that the FECA did  not



            cover  emotional distress claims) and numerous other cases.7 


The  government  petitioned  to  take  an  interlocutory



            appeal from the district court's order, but this court denied



            that  petition.  Limited discovery followed.8  The government



            then  filed  a  second  motion  to dismiss  which  asked  the



            district court to reconsider its previous ruling in the light



            of recent decisions that had recognized the FECA's preclusive



            effect   in  cases   involving  emotional  injuries.9     The



                                
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            7.  See, e.g., Guidry v. Durkin,  834 F.2d 1465, 1471-72 (9th
                ___  ____  ______    ______

            Cir. 1987); Gergick v. Austin, 764 F. Supp. 580, 581-82 (W.D.
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            Mo. 1991); Underwood v. United States Postal Service,  742 F.
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            Supp. 968  (M.D. Tenn. 1990);  Metz v. United States,  723 F.
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            Supp.  1133, 1136  (D. Md.  1989); Newman  v.  Legal Services
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            Corporation, 628 F. Supp. 535, 543 (D.D.C. 1986); Sullivan v.
            ___________                                       ________

            United States, 428 F. Supp. 79, 81 (E.D. Wis. 1977); Mason v.
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            District of Columbia, 395 A.2d 399 (D.C. 1978).    
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            8.   We note  that Miller's motion to amend  his complaint to

            specifically   allege  that   the  government   intentionally

            inflicted  emotional distress  on  him  when  it  denied  his

            workers' compensation  claim was  denied on  the ground  that

            such an amendment would be  futile since Miller had failed to

            present this claim to the appropriate federal agencies in his

            administrative FTCA claim.  



            9.  The government relied on Tarver v. United States, 25 F.3d
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            900 (10th Cir. 1994); Figueroa  v. United States, 7 F.3d 1405
                                  ________     _____________

            (9th  Cir.  1993),  cert. denied,  114  S.  Ct. 1537  (1994);
                                _____ ______

            Swafford v.  United States, 998  F.2d 837  (10th Cir.  1993);
            ________     _____________

            Jones v. Tennessee  Valley Authority, 948 F.2d 258  (6th Cir.
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            1991); Klescewski v.  United States, 843 F. Supp. 543 (D.S.D.
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            1993); Castro v. United States, 757 F. Supp. 1149, 1151 (W.D.
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            Wash.  1991); and  Cardwell v.  United  States, 1992  WESTLAW
                               ________     ______________



                                         -5-



government also argued  that Miller's suit was barred  by the



            Civil  Service Reform Act  (CSRA) and the  FTCA's presentment



            requirement.   After Miller filed an opposition, the district



            court   reversed  its   previous   ruling  and   granted  the



            government's  motion to dismiss.  Relying on McDaniel, supra,
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            inter alia,  the court held  that Miller's FTCA suit  for the
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            intentional infliction of emotional distress was preempted by



            the FECA  and that any other  claims that might be  read into



            Miller's complaint were  barred by the  CSRA.10  This  appeal



            followed.



                                         II.



                   We review the  district court's dismissal for  lack of



            subject  matter jurisdiction de novo, mindful that Miller, as
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            the  party invoking federal  jurisdiction, has the  burden of



            proving its existence.  See  Murphy v. United States, 45 F.3d
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            520,  522 (1st Cir.),  cert. denied,  63 U.S.L.W.  3800 (U.S.
                                   _____ ______



            June  19, 1995).  He has failed to do so.  Miller stresses on



            appeal  that  he   seeks  to  recover  for   the  intentional



            infliction  of  emotional  distress in  the  handling  of his



            workers' compensation  claim.   But it  is clear  that Miller



                                
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            368495 (E.D. Pa. Dec.  4, 1992), aff'd,  6 F.3d 778 (3d  Cir.
                                             _____

            1993)(Table), as well as numerous decisions of the Employment

            Compensation Appeals  Board (ECAB) which  indicated that  the

            FECA can provide  relief for  claims of  emotional or  mental

            injury.  



            10.  The  court did not reach the government's arguments that

            Miller failed to satisfy the FTCA's presentment requirements.


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never  presented this claim  to either the  Postal Service or



            the OWCP within two  years of the denial  of his FECA  claim.



            Rather, Miller's  administrative  FTCA claim  focused on  the



            mental injuries he allegedly suffered as a result of his work



            place atmosphere.  Miller did not allege or describe anything



            approaching  outrageous   conduct  in  the  handling  of  his



            workers' compensation  claim.   It  is  well settled  that  a



            plaintiff's  FTCA claim will  be "forever barred"  absent the



            filing  of a timely administrative claim with the appropriate



            federal agency. See, e.g., Gonzalez-Bernal v.  United States,
                            ___  ____  _______________     _____________



            907 F.2d 246,  248 (1st Cir. 1990).  As Miller failed to file



            a  timely  administrative  FTCA  claim  for  the  intentional



            infliction  of  emotional  distress in  the  handling  of his



            workers' compensation case, this claim is forever barred.



                 Miller  does not press  on appeal the  alternative basis



            for relief that  he argued below, i.e., that  he suffered the



            intentional infliction of  emotional distress as a  result of



            his former postmaster's conduct.  Accordingly, this claim has



            been waived.   See United States  v. Zannino, 895 F.2d  1, 17
                           ___ _____________     _______



            (1st Cir.),  cert. denied, 494 U.S. 1092  (1990).  Even if it
                         _____ ______



            were otherwise, this claim also  fails for the lack of timely



            presentment.  It is undisputed that Miller first became aware



            that  his depression was  work-related on February  12, 1989.



            He therefore had two years  from that date, or until February



            12, 1991, to file his administrative FTCA for the intentional


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infliction of  emotional distress  by his  former postmaster.



            Miller did not file such a  claim until October 8, 1991.   As



            the administrative FTCA claim was filed too late, this  claim



            is also barred.



                 We  note that whether the FECA covers emotional injuries



            and, even if it does,  whether Miller's FTCA action is barred



            despite  the fact  that he  was not  paid FECA  benefits, are



            novel issues in  this circuit.  We recognize  that cases such



            as McDaniel, Tarver, and Cardwell, supra, support affirmative
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            answers to  both questions.   On the  other hand, there  is a



            considerable  body of caselaw  which indicates that  the FECA



            does not apply to emotional injuries.  See Sheehan and n.  7,
                                                   ___ _______



            supra.  We find  it unnecessary to take  a position on  these
            _____



            important issues  -  which  have  not been  well  briefed  by



            Miller.11   It  is  apparent that  Miller's  suit  is  barred



            under the FTCA.   We are free to affirm  on any independently



            sufficient ground  made manifest by  the record.   See, e.g.,
                                                               ___  ____



            Garside v.  Osco Drug, Inc., 895 F.2d 46, 49 (1st Cir. 1990).
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            In   view  of  our  disposition,  we  need  not  address  the



            government's  contentions that  the CSRA  also  bars Miller's



                                
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            11.  Rather, Miller argues that Martin v. Travelers Ins. Co.,
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            497 F.2d 329 (1st Cir. 1979), authorizes him to sue under the

            FTCA  for   the  bad   faith  processing   of  his   workers'

            compensation claim, and that  Burke v. United States,  644 F.
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            Supp. 566  (E.D. La. 1986),  also authorizes him  to maintain

            this suit because he was  denied FECA benefits.  Neither case

            stands  for  the  proposition  for  which  Miller  cites  it.

            Moreover, the  language that  Miller purports  to quote  from

            Martin appears nowhere in that case.   
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claims.  Accordingly,  the judgment of the district  court is



            affirmed.  
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