UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
) JAMES BENSON WHITAKER, ) ) Plaintiff, ) ) v. ) Civil Action No. 22-cv-01414 (CKK) ) UNITED STATES, ) ) Defendant. ) )
MEMORANDUM OPINION
Plaintiff James Benson Whitaker, proceeding pro se, sues the United States for damages
and equitable relief under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346, 2672. See
Compl. ECF No. 1, at 4, 6. 1 Currently before the Court is Defendant’s Motion to Dismiss, or
alternatively, for Summary Judgment, ECF No. 14, including its Memorandum in Support (“Def.
Mem.”), ECF No. 14-4. In response, Plaintiff filed an Opposition (“Pl. Opp’n”), ECF No. 16, to
which Defendant filed a Reply (“Def. Reply”), ECF No. 17. For the reasons discussed below, the
Motion to Dismiss will be granted and this case will be dismissed without prejudice pursuant to
Federal Rule 12(b)(1).
I. BACKGROUND
1 The Court relies on the ECF-generated page numbers in citing to Plaintiff’s Complaint.
1 Plaintiff is a former Foreign Service Officer for United States Agency for International
Development (“USAID”). See Compl. at 7. During his first overseas tour in 2010, Plaintiff
received a massage while on temporary duty assignment in Tajikistan. Id. He asserts that,
during the massage, he became the victim of a sexual assault. See id. More specifically, he
alleges that the masseuse touched him inappropriately and propositioned him, upon which he
immediately “ended the massage, declining the offer.” Id.
Approximately a decade later, on June 12, 2020, Plaintiff was undergoing “security
clearance review” through USAID’s Office of Security, and during an interview with USAID
official, Daniel Dorminey, he disclosed the massage incident in Tajikistan. Id.; see Pl. Opp’n Ex.
A (Pl.’s Security Investigation Stmt., dated 6/18/22), ECF No. 16-1, at 3–4. He also disclosed
previous struggles with gambling and resulting debts. See Pl. Opp’n Ex. A at 2–3. Plaintiff
indicates that Dorminey submitted his investigation report on July 7, 2020. See Compl. at 8.
On July 14, 2020, Plaintiff received a Notice of Security Clearance Suspension from the
Office of Security, stating that “[d]uring the investigation, additional potentially disqualifying
information was developed, which is a security concern[,]” more specifically, Plaintiff’s
“delinquent debt and gambling.” Id. at 8. According to Plaintiff, “[t]here was no mention of sexual
misconduct in the Notice of Security Clearance Suspension or that sexual misconduct would be
investigated.” Id. Plaintiff was placed on paid administrative leave, pending the outcome of the
Office of Security’s investigation into his gambling and debt. See id. at 7; Pl. Opp’n Ex. B, ECF
No. 16-2, (Notice of Administrative Leave, dated 7/14/20).
2 On August 7, 2020, and “[s]eparate from the security investigation [into his debt and
gambling],” Nicholas Gottlieb, USAID’s Director of Employee and Labor Relations, notified
Plaintiff by email that he “was being investigated for potential employee misconduct, specifically,
that he paid for nudge massages.” Compl. at 7; see Pl. Opp’n Ex. C (Notice and Response Emails,
dated 8/7/20–8/8/20), ECF No. 16-3, at 2–3. Plaintiff responded to Gottlieb by email the following
day, “denying that he had ever paid for sex acts and complain[ing] that if a woman experienced
what [he] had . . . it would clearly be considered sexual assault.” Compl. at 7; see Pl. Opp’n Ex. C
at 1–2.
On September 3, 2020, Plaintiff received a Notice of Proposed Separation, executed by
Bob Leavitt, USAID’s Chief Human Capital Officer. Compl. at 7; see Pl. Opp’n Ex. D, ECF No.
16-4 (Notice of Separation, dated 9/3/20). It listed the massage incident in Tajikistan as support
for the charge of “Conduct Unbecoming a Foreign Service Officer.” See id. In addition, the Notice
stated that Plaintiff did not have “the potential for rehabilitation” because he allegedly failed to
acknowledge “responsibility or remorse for [his] actions” and instead “paint[ed] [himself] as the
victim.” See id.
Plaintiff alleges that these charges negatively impacted his mental health, and as a result,
on September 21, 2020, his therapist recommended that he go to the emergency room for suicide
prevention. See Compl. at 7–8. After, from September 25, 2020, to October 23, 2020, he received
treatment for depression through a partial hospitalization program. During this time, and due to
his depression, Plaintiff applied for (1) Social Security disability benefits and, (2) disability
retirement benefits through the Foreign Service Pension System. See id. On October 16, 2020,
he submitted a formal Response to his Notice of Proposed Separation, in which he described the
3 impact that the alleged sexual assault had on his mental health. See id. at 7–8; Pl.’s Opp’n Ex. F
(Response to Notice of Proposed Separation, dated 10/16/20), ECF No. 16-6.
On December 1, 2020, the Office of Security apparently emailed Plaintiff with a report
documenting the results of its investigation into the massage incident in Tajikistan but declining
to classify the event as sexual assault. See id. at 8. The Office ultimately concluded that, even
though Plaintiff “did not accept the offer for sexual services[,]” his receipt of nude massages
nonetheless reflected “poorly on his judgment and reason.” See id.
Later that same month, Plaintiff was notified by the Department of State’s Office of
Medical Services that he qualified for permanent disability retirement based on his chronic
depression, and it was determined that his “disability is caused by disease, not due to vicious habits,
intemperance, or willful conduct[.]” See id.; Pl.’s Opp’n Ex. G (State Dep’t Disability
Determination, dated 12/17/20), ECF No. 16-7, at 1.
Before filing this lawsuit, Plaintiff submitted a “Standard Form 95” to Deputy General
Counsel at USAID, who acknowledged receipt of the tort claim on August 12, 2021. See Compl.
at 9. Although Plaintiff apparently did not receive USAID’s Final Decision, see id., it was issued
on February 3, 2022, denying Plaintiff’s FTCA claim for substantially similar reasons to those
raised in Defendant’s pending dispositive Motion, see Def. Mem. at 3 n.1; Def. Mem. Ex. 2
(USAID Final Decision, dated 2/3/2022), ECF No. 14-3. Notably, Plaintiff never filed a workers’
compensation claim with the Office of Workers’ Compensation Programs (“OCWP”). See Def.
Mem. Ex. 1, First Declaration from Penelope E. Schultz (“Schultz Decl. I”), ECF No. 14-2, ¶ 3.
4 Plaintiff then filed this lawsuit on May 6, 2022, alleging intentional infliction of emotional
distress (“IIED”), contending that USAID had a duty to recognize that the massage incident in
Tajikistan was a sexual assault, and to investigate it accordingly. See Compl. at 9. Plaintiff further
alleges that Defendant “committed error and abuse in its investigation,” by making reckless,
outrageous, and defamatory statements about his conduct, judgment, and character, and engaged
in victim-blaming, causing him to suffer from continued depression, and ultimately costing him
his job. See id. at 4, 6, 9. He demands $3,463,481 in lost salary, expungement of his security and
personnel files as to Leavitt’s findings, and that USAID consult with experts from the Rape, Abuse
& Incest National Network (“RAINN”) to train its human resource and security personnel. See id.
at 4.
II. STANDARD OF REVIEW
Motion to Dismiss for Lack of Subject Matter Jurisdiction 2
“Article III of the Constitution prescribes that ‘[f]ederal courts are courts of limited subject-
matter jurisdiction’ and ‘ha[ve] the power to decide only those cases over which Congress grants
jurisdiction.’ ” Bronner v. Duggan, 962 F.3d 596, 602 (D.C. Cir. 2020) (alterations in original)
(quoting Al-Zahrani v. Rodriguez, 669 F.3d 315, 317 (D.C. Cir. 2012)); see Gunn v. Minton, 568
U.S. 251, 256 (2013) (“ ‘Federal courts are courts of limited jurisdiction,’ possessing ‘only that
power authorized by Constitution and statute.’ ”) (quoting Kokkonen v. Guardian Life Ins. Co. of
Am., 511 U.S. 375, 377 (1994)). Federal courts have an obligation to ensure that they do not
exceed the scope of their jurisdiction. See Henderson v. Shinseki, 562 U.S. 428, 434 (2011).
2 Defendant also moves to dismiss for failure to state a claim pursuant to Federal Rule 12(b)(1), see Def. Mem. at 1, 5–6, 10–14, and alternatively moves for summary judgment pursuant to Federal Rule 56, see id. at 1, 9, 6–7, 14. However, due to the resolution of this matter pursuant to Federal Rule 12(b)(1), the Court does not need, and cannot, reach these alternative arguments.
5 Absent subject-matter jurisdiction over a case, a court must dismiss it. See Arbaugh v. Y & H
Corp., 546 U.S. 500, 506–07 (2006) (citing Kontrick v. Ryan, 540 U.S. 443, 455 (2004)); Fed. R.
Civ. P. 12(h)(3).
To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(1), the plaintiff
bears the burden of demonstrating a court’s subject-matter jurisdiction over the claim at issue.
Arpaio v. Obama, 797 F.3d 11, 19 (D.C. Cir. 2015), cert. denied, 577 U.S. 1103 (2016); see also
Hertz Corp. v. Friend, 559 U.S. 77, 96–97 (2010); Thomson v. Gaskill, 315 U.S. 442, 446 (1942).
When considering a motion to dismiss under Rule 12(b)(1), a court must accept as true all
uncontroverted material factual allegations contained in the complaint and “‘construe the
complaint liberally, granting plaintiff the benefit of all inferences that can be derived from the facts
alleged’ and upon such facts determine jurisdictional questions.” Am. Nat’l Ins. Co. v. FDIC, 642
F.3d 1137, 1139 (D.C. Cir. 2011) (quoting Thomas v. Principi, 394 F.3d 970, 972 (D.C. Cir. 2005);
Barr v. Clinton, 370 F.3d 1196, 1199 (D.C. Cir. 2004)). A court need not accept inferences drawn
by the plaintiff, however, if those inferences are unsupported by facts alleged in the complaint or
amount merely to legal conclusions. See Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002).
When reviewing a challenge pursuant to Rule 12(b)(1), a court may consider documents
outside the pleadings to assure itself that it has jurisdiction. See Land v. Dollar, 330 U.S. 731, 735
n.4 (1947); Haase v. Sessions, 835 F.2d 902, 906 (D.C. Cir. 1987). By considering documents
outside the pleadings when reviewing a motion to dismiss pursuant to Rule 12(b)(1), a court does
not convert the motion into one for summary judgment; “the plain language of Rule 12(b) permits
only a 12(b)(6) motion to be converted into a motion for summary judgment” when documents
extraneous to the pleadings are considered by a court. Haase, 835 F.2d at 905.
III. DISCUSSION
6 Defendant argues, see Def. Mem. at 8–10, that the Court lacks subject matter jurisdiction
over Plaintiff’s FTCA claims because they are prohibited by the “exclusive-remedy provision” of
the Federal Employees’ Compensation Act (“FECA”), 5 U.S.C. § 8101 et seq., and the Court
agrees.
To begin, “[i]t has long been established . . . that the United States, as sovereign, ‘is immune
from suit save as it consents to be sued . . . and the terms of its consent to be sued in any court
define that court’s jurisdiction to entertain the suit.’ ” U.S. v. Testan, 424 U.S. 392, 399 (1976)
(quoting U.S. v. Sherwood, 312 U.S. 584, 586 (1941)). “Because ‘[s]overeign immunity is
jurisdictional in nature,’ a plaintiff’s identification of a valid waiver is critical to establishing a
federal court’s subject-matter jurisdiction over FTCA claims.” Id. (quoting FDIC v. Meyer, 510
U.S. 471, 475 (1994) (other citation omitted)). Absent an explicit waiver “in a specific context, a
federal court must dismiss claims against the United States.” Manning v. Esper, No. 12-1802,
2019 WL 281278, at *7 (D.D.C. Jan. 22, 2019) (citing Clark v. Wells Fargo Bank, 585 F. App’x
817, 819-21 (3d Cir. Sept. 22, 2014)), appeal dismissed, No. 19-5078, 2019 WL 4745367 (D.C.
Cir. June 25, 2019); Meyer, 510 U.S. at 475 (same). The FTCA waives the sovereign immunity
of the United States for certain torts. See Harbury v. Hayden, 522 F.3d 413, 416 (D.C. Cir. 2008),
cert. denied, 555 U.S. 881 (2008). “That limited waiver is nevertheless curtailed by certain
statutory and common law regimes.” Manning, 2019 WL 281278, at *7 (collecting cases). Here,
the competing “statutory regime” at issue is the FECA, which presents clear jurisdictional
limitations to invoking the FTCA. See id. at 17–19.
Under the FECA, any “civil officer or employee in any branch of the Government of the
United States,” 5 U.S.C. § 8101(1)(A), is entitled to compensation where the “disability or death
of an employee result[s] from personal injury sustained while in the performance of his duty,” id.
7 § 8102(a), and the Secretary of Labor administers and decides all questions arising therefrom, see
id. § 8145. Consequently, when a federal employee makes an injury claim, he “must bring [his]
claim to the Secretary of Labor in lieu of filing a claim in federal court.” Sullivan v. United States,
No. 05-1418, 2006 WL 8451987, at *3 (D.D.C. June 22, 2006). “The Secretary then determines
whether the injury was sustained in the performance of the employee’s duties and whether the
employee is eligible for relief regardless of fault.” Id. (citing 5 U.S.C. §§ 8102(a), 8124, 8146);
see Zellars v. United States, No. 05-1670, 2006 WL 1050673, at *3 (D.D.C. Apr. 20, 2006) (citing
5 U.S.C. § 8145 and finding that “[t]he ultimate determination of th[ese] question[s], . . . like all
questions arising under the FECA, is committed to the Secretary of Labor.”).
An employee covered by the FECA is also bound by its exclusive-remedy provision:
The liability of the United States or an instrumentality 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 representative, spouse, dependents, next of kin, and any other person otherwise entitled to recover damages from the United States or the instrumentality because of the injury or death in a direct judicial proceeding, in a civil action, or in admiralty, or by an administrative or judicial proceeding under a workmen’s compensation statute or under a Federal tort liability statute[.]
5 U.S.C. § 8116(c). “By offering fixed compensation in lieu of litigation rights, FECA ‘was
designed to protect the Government from suits under statutes, such as the Federal Tort Claims Act,
that had been enacted to waive the Government’s sovereign immunity.’ ” Manning, 2019 WL
281278, at *17 (quoting Lockheed Aircraft Corp. v. United States, 460 U.S. 190, 193–94 (1983)).
“It is well established that ‘the United States’ liability for work-related injuries under FECA is
exclusive.’ ” Id. at *17 (quoting U.S. v. Lorenzetti, 467 U.S. 167, 169 (1984); citing 5 U.S.C. §
8116(c)).
8 “[W]here there is a substantial question of FECA coverage—indeed, unless it is certain
that the FECA does not cover the type of claim at issue—the district court may not entertain the
FTCA claim . . . [and] only the Secretary of Labor . . . may decide whether FECA applies.” Klugel
v. United States, No. 06-01886, 2009 WL 10692972, at *1 (D.D.C. Aug. 18, 2009) (quoting
Mathirampuzha v. Potter, 548 F.3d 70, 81 (2d Cir. 2008)). Only “[i]f the Secretary determines
that the plaintiff's claim is fundamentally outside the scope of the FECA,” can that plaintiff attempt
to bring a claim in District court. See id. (quoting Mathirampuzha, 548 F.3d at 81; citing Daniels-
Lumley v. United States, 306 F.2d 769, 771 (D.C. Cir. 1962) (“unless plaintiff's injuries were
clearly not compensable under the F.E.C.A . . . we believe that the Secretary of Labor must be
given the primary opportunity to rule on the applicability of the Act to this case.”)).
Here, such a substantial question exists, and it suggests that the FECA is indeed applicable
to Plaintiff’s claims. Defendant has submitted two Declarations from Penelope E. Schultz, the
Assistant Branch Chief for the Branch of Regulations and Procedures for OWCP at the Department
of Labor, attesting that the Secretary of Labor has reviewed Plaintiff’s claims in this matter and
has determined that it is substantially likely that they are covered by the FECA. See Schultz Decl.
I ¶¶ 1–6; Def. Reply Ex. 1 (Second Declaration from Penelope E. Schultz) (“Schultz Decl. II”),
ECF No. 17-1, ¶¶ 1–7. Her attestations are supported by a detailed legal Memorandum, see id. at
Attach. A (“Coverage Memo”), analyzing the “substantial likelihood of coverage for Mr.
Whitaker’s emotional condition under FECA[,]” id. at 3. The Secretary has concluded that the
FECA “routinely covers emotional conditions that relate to an individual’s federal employment
factors[,]” more specifically, Plaintiff’s alleged emotional injury suffered as result of an alleged
flawed USAID investigation into the incident in Tajikistan. See id. at 2–3.
9 Despite these assurances, Plaintiff raises doubts that that the FECA applies to his claims.
See Compl. at 6; Pl. Opp’n at 5–8. 3 First, he contends that he cannot be considered an “employee”
in the performance of his duties, see 5 U.S.C. § 8101(1)(A), because he was “on leave” when the
“extreme and outrageous statements were recklessly and intentionally communicated by the
Defendant[,]” see Pl. Opp’n at 5 (citing Pl. Opp’n Ex. B). But, at that time, Plaintiff had been
temporarily placed on administrative leave with pay, and he was required to “remain available by
telephone and email during [his] normal duty hours.” See Pl. Opp’n Ex. B at 1. Moreover, Schultz,
on behalf of the Secretary of Labor, specifically reviewed this issue, and determined that his
administrative leave status does not alter the substantial likelihood that FECA coverage extends to
his claims. See Schultz Decl. II ¶¶ 4–5. Schultz attests that Plaintiff’s leave status is irrelevant
because “[t]he statements that led to Plaintiff’s injuries were made in relation to the USAID’s
investigation into [Plaintiff’s] conduct, and as those statements suggest error or abuse in Plaintiff’s
personnel action, there is a substantial likelihood that [Plaintiff] would be considered in the
performance of duty for purposes of FECA.” See id. ¶ 5.
And even if Defendant was somehow mistaken in this regard, it is “of no moment because”
the Secretary’s position “settles the matter.” See Barnes v. United States, 285 F. Supp. 3d 78, 81–
82 (D.D.C. 2018) (deferring to the Secretary’s decision to extend FECA coverage to the plaintiff’s
injuries sustained while she was on leave) (relying on Spinelli v. Goss, 446 F.3d 159, 161 (D.C.
Cir. 2006)), aff’d, No. 18-5054, 2018 WL 5115528 (D.C. Cir. Sept. 19, 2018); Manning, 2019 WL
281278, at *18 (finding that the Secretary, and not the court, must determine whether the plaintiffs’
“injuries occurred in the course of duty” for purposes of qualifying under the FECA); Sullivan,
2006 WL 8451987, at *3 (collecting cases and holding that “courts should not resolve the question
3 The Court relies on the ECF-generated page numbers in citing to Plaintiff’s Opposition.
10 of whether a particular injury was sustained in the performance of an employee's duties, instead
finding that such responsibility lies exclusively with the Secretary[.]”).
Second, Plaintiff contends that he faces an uphill battle because his FECA eligibility is
predicated on alleged emotional damages caused by error or abuse in an agency investigation, “a
rarely granted exception.” See Pl. Opp’n at 5. But, once again, the ultimate determination of “all
questions arising under the FECA is committed to the Secretary of Labor[,]” Zellars, 2006 WL
1050673, at *3, and Plaintiff overlooks the fact that the Secretary has already reviewed all of the
alleged circumstances and found that there is a substantial likelihood that the FECA applies,
precisely because of this exception, see Schultz Decl. II ¶ 6; Coverage Memo at 2–3 (citing agency
cases supporting FECA coverage where internal investigations allegedly caused an employee
emotional harm, even when those investigations were unrelated to the employee’s regular or
specialty assigned duties, so long as the agency allegedly committed error or abuse).
Third, and similarly, Plaintiff is uncertain that his claims can meet the FECA’s “burden of
proof” because of their purported atypical nature–i.e., premised on the emotional fallout of an
agency investigation. See Pl. Opp’n at 7–8. Plaintiff, however, prematurely assumes the validity
of Defendant’s 12(b)(6) arguments, see Def. Mem. at 10–14, and he confuses the minimal pleading
standards required to raise an IIED claim in federal court with the burden of proving that claim,
the latter of which he has not yet been asked to do. Moreover, he conflates the burden of proof as
required by this Court with the burden of proof applicable to FECA proceedings, which is not the
same. Compare Elhusseini v. Compass Grp. USA, Inc., 578 F. Supp. 2d 6, 15–16, 22–24 (D.D.C.
2008) (explaining a plaintiff’s burden of proving an IIED claim), with 20 CFR §§ 10.115–10.121
(listing the requirements for evidence and burden of proof for an administrative FECA claim).
11 And, importantly, the potential merits of Plaintiff’s claims, and whether those claims fall
within FECA’s scope, are determinations that are definitively outside of this Court’s purview. See
Daniels-Lumley, 306 F.2d at 771 n.3 (determining that “there is a serious question as to whether
the plaintiff is outside the scope of [FECA], and a decision by the Secretary of Labor that her
injuries were not covered . . . is a condition precedent to the continued prosecution of this suit”);
Spinelli, 285 F. Supp. 3d at 161 (finding that, even where, and particularly where, a claim under
the FECA is based on “unsettled law,” or the plaintiff’s right to receive compensation is equivocal,
the court is without jurisdiction, and the Secretary alone must render an opinion); Barnes, 285 F.
Supp. 3d at 82 (same); Kalil v. Johanns, 407 F. Supp. 2d 94, 100 (D.D.C. 2005) (same); see also
Manning, 2019 WL 281278, at *18 (holding that “this Court need not, and should not, decide
whether . . . federal civilian Plaintiffs are entitled to recover under FECA.”); Scott v. USPS, No.
05-0002, 2006 WL 2787832, at *4 (D.D.C. Sept. 26, 2006) (finding that “the sole responsibility
for deciding whether FECA applies lies with the Secretary of Labor[.]”) (citing Southwest Marine,
Inc. v. Gizoni, 502 U.S. 81, 90 (1991)), aff’d, 258 Fed. Appx. 333 (D.C. Cir. 2007).
Put differently, “[w]hen there is ambiguity regarding whatever claims are covered by the
FECA, the Secretary of Labor must determine if it applies.” Zellars v. United States, 578 F. Supp.
2d 1, 5 (D.D.C. 2008) (also noting that “the case law is split as to whether injuries that are non-
physical in nature are covered under the [FECA] such as the claim of intentional infliction of
emotional distress” and is thus a decision reserved for the Secretary); Jones v. United States, 318
F. Supp. 3d 15, 20–21 (D.D.C. 2018) (collecting cases and noting that “the D.C. Circuit has not
yet determined whether FECA covers intentional infliction of emotional distress[,]” and that other
Circuits and courts in this District are split, therefore, “[u]nfortunately for [the plaintiff], under
Circuit precedent, the uncertainty surrounding whether his IIED claim falls within the scope of
12 FECA works to his disadvantage . . . [because the] lack of binding authority” only contributes to
the “substantial question” regarding coverage, and that question can only be answered by the
Secretary) (citations and internal quotation marks omitted); Davis v. United States, 973 F. Supp.
2d 23, 28 n.4 (D.D.C. 2014) (finding same and also noting that 5 U.S.C. § 8116(c) “does not seem
to distinguish IIED from other intentional torts on its face[.]”) (relying on Kalil, 407 F. Supp. 2d
at 100).
Fourth, Plaintiff is concerned that the Secretary based its coverage determination solely on
the instant Complaint and Opposition, instead of a full administrative record, particularly due to
Schultz’s caveat that “actual adjudication of the claim could present additional facts that could
impact the coverage decision.” See Pl. Opp’n at 7, 15–16 (quoting Coverage Memo at 3).
However, because Plaintiff declined to pursue his administrative remedies with the OWCP,
Defendant has no other option but to review the information available in this lawsuit. In such
situations, it is routine for the Secretary to review a plaintiff’s submissions in a federal lawsuit in
determining the likelihood of FECA coverage. See, e.g., Zellars, 2006 WL 1050673, at *1–*3
(dismissing case pursuant to Rule 12(b)(1) where the plaintiff “failed to secure a decision from the
Secretary of Labor,” and the Secretary then determined that FECA coverage likely extended to the
plaintiff’s claims based on its analysis of the court submissions); Jones, 318 F. Supp. 3d at 19–21
(same); Kalil, 407 F. Supp. at 99–100 (same); Manning, 2019 WL 281278, at *19 (same); Zellars,
578 F. Supp. 2d at 5–6 (explaining that so much an inference that a plaintiff is alleging injuries
resulting in a disability possibly covered by the FECA is enough to warrant dismissal for want of
subject matter jurisdiction); see also 5 U.S.C. § 8128(a) (empowering the Secretary to, at any time,
review a claim for or against a payment of compensation to an employee) (emphasis added).
13 Finally, Plaintiff alternatively requests that the Court stay these proceedings while the
Secretary of Labor assesses his FECA claim. See Pl. Opp’n at 8. In support, he cites, see id. at 9,
to Bourke v. United States, No. 20-4427, 2022 WL 17668492, at *4–*5 (N.D. Ill. Dec. 14, 2022),
where the trial court found that it was without enough information to determine if the plaintiff’s
FTCA claim fell within an exception to a state statute of repose. In dicta, that court noted that it
“retained subject-matter jurisdiction over” the plaintiff’s FTCA claim while his FECA claim––
which had, notably, already been waged with the Secretary of Labor before filing suit––“was
pending before the Secretary.” See id. at *1, *3.
As highlighted by Defendant, Bourke’s “reasoning is neither controlling, nor the bright line
practice in this district.” Def. Reply at 7. While “at least some out-of-circuit authority suggests
that a stay of proceedings is appropriate to give the Secretary an opportunity to evaluate the
claims[,]” in contrast, “precedent in this jurisdiction . . . favors dismissal when FECA does, or
may, apply.” Manning, 2019 WL 281278, at *19 (collecting cases and dismissing FTCA––
including emotional distress––claims without prejudice where the plaintiff failed to “pursue any
as-yet unpursued administrative remedies [under the FECA].”); see also, e.g., Daniels-Lumley,
306 F.2d at 770–72 (affirming dismissal without prejudice where the plaintiff had not taken
opportunities to pursue administrative remedy under FECA with the Secretary of Labor); Jones,
318 F. Supp. 3d at 19–21 (dismissing FTCA (IIED) claims pursuant to Rule 12(b)(1) due to the
FECA’s exclusive remedy provision, where plaintiff had failed to present a FECA claim to the
Secretary of Labor); Kalil, 407 F. Supp. 2d at 100 (same, but without prejudice); Davis, 973 F.
Supp. at 28 (dismissing FTCA claims pursuant to Rule 12(b)(1) due to FECA’s exclusive remedy
provision, where plaintiff had failed to present a FECA claim to the Secretary of Labor); Zellars,
2006 WL 1050673, at *2–*3 (same).
14 The Court acknowledges that, in previous select circumstances, courts in this District––
including this Court––have elected to stay an FTCA case while the plaintiff’s FECA claim was
administratively resolved, but those cases are distinguishable to the instant matter because they
often presented timeliness concerns arising from the FTCA’s statute of limitations, which, at that
time, was interpreted as jurisdictional. See, e.g., Sullivan, 2006 WL 8451987, at *5 (finding that
the plaintiff’s FTCA claims should be stayed while he administratively exhausted his FECA claim
to safeguard against the running of the then-jurisdictional two-year statute of limitations set forth
in 28 U.S.C. § 2401(b)); see also Spannaus v. Dep’t of Justice, 824 F.2d 52, 55 (D.C. Cir. 1987)
(previously holding that § 2401 was jurisdictional and not subject to equitable tolling). But after
those cases were decided, both the Supreme Court and the D.C. Circuit concluded that the FTCA’s
statute of limitations is, to the contrary, non-jurisdictional, see U.S. v. Kwai Fun Wong, 575 U.S.
402, 407 (2015); Jackson v. Modly, 949 F.3d 763, 778 (D.C. Cir. 2020) (overruling Spannaus and
its progeny and formally adopting the holding in Kwai), cert. denied sub nom., 141 S.Ct. 875
(2020). It is also notable that, here, Plaintiff has already timely administratively exhausted his
FTCA with USAID’s Deputy General Counsel, see Compl. at 9; Def. Mem. at 3 n.1; Def. Mem.
Ex. 2, satisfying his presentment requirement, see 28 U.S.C. § 2401(b); see also Manning, 2019
WL 281278, at *5 (finding that, in dismissing the plaintiff’s FTCA claims due to the FECA’s
exclusive remedy provision, the court “need not reach the issue of tolling the FTCA’s statute of
limitations, an issue which is now regarded as non-jurisdictional under Kwai Fun Wong.”) (citing
Kwai Fun Wong, 575 U.S. at 419–20).
Similarly, Plaintiff also relies, see Pl. Opp’n at 9–12, on Mathirampuzha, 548 F. 3d at 84,
in which the Second Circuit encouraged courts in its jurisdiction to consider staying an FTCA
matter until the Secretary of Labor determined the scope of FECA coverage, particularly where
15 the statute’s applicability to the claim is uncertain, see id. at 84–85. However, once again, this
recommendation was derived from concern over the then-jurisdictional statute of limitations,
particularly because that plaintiff had yet to present any administrative FTCA claim to the agency,
and because the Secretary had already determined that his administrative FECA claim was
untimely and unlikely to be covered. See id. at 84–85. But, as discussed above, the applicable
statute of limitations is no longer jurisdictional; indeed, § 2401(b) exists “to encourage the prompt
presentation of claims” against the federal government; it does not exist as an avenue for the
government to engage in procedural legal maneuvering. See U.S. v. Kubrick, 444 U.S. 111, 117
(1979). Here, Plaintiff has unequivocally provided Defendant with prompt notice, and he has
diligently pursued his legal rights, alleviating concern over the statute of limitations. So long as
Plaintiff continues to act with such diligence, given the particulars here, a future statute of
limitations defense as to his FTCA claim would be in bad faith.
Furthermore, the Secretary has assured Plaintiff that, even after reviewing all his noted
concerns, the FECA will likely extend to his claims. See Schultz Decl. I ¶¶ 1–6; Schultz Decl. II
¶¶ 1–7; Coverage Memo at 1–3; see also Scott, 2006 WL 2787832, at *4 (finding that when the
Secretary confirms coverage under the FECA, it is then “the employee's only route to
compensation for that injury. Any other interpretation of the statute would render the exclusivity
provision meaningless.”). Considering all of the extant circumstances, Plaintiff’s request for a
stay is denied. See Fed. R. Civ. P. 12(h)(3) (“If the court determines at any time that it lacks
subject-matter jurisdiction, the court must dismiss the action.”) (emphasis added).
After review of all of the arguments presented, and the full record in this case, the Court
finds that Plaintiff's failure to present his claim to the Secretary of Labor, or his doubts about doing
same, does not allow him to sidestep the FECA’s exclusive-remedy provision and alternatively
16 pursue his claims under the FTCA in this Court. Plaintiff may later attempt refile his FTCA claims
if he “can prove that the Secretary of Labor has decided that their compensation claims are outside
the scope of FECA.” See Manning, 2019 WL 281278, at *14.
IV. CONCLUSION
For the foregoing reasons, Defendant’s Motion to Dismiss, ECF No. 14, is granted, and
this case is dismissed without prejudice pursuant to Federal Rule 12(b)(1). An Order consistent
with this Memorandum Opinion will be issued contemporaneously.
____/s/______________________ COLLEEN KOLLAR-KOTELLY Date: August 4, 2023 United States District Judge