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McMullan v. United States

United States District Court, W.D. Kentucky, Louisville Division

March 6, 2017

DUANE MCMULLAN, Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant.

          MEMORANDUM OPINION AND ORDER

          DAVID J. MALE, JUDGE UNITED STATES DISTRICT COURT

         Plaintiff Duane McMullan sustained heat-related injuries while working as a mail carrier for the United States Postal Service (USPS). (Docket No. 1-1, PagelD # 7; D.N. 7-1, PagelD # 32) McMullan alleges that his supervisor, Kevin Scott, failed to follow USPS policies and procedures for treating heat-related injuries when he did not call 911 or take McMullan to the hospital immediately. (D.N. 1-1, PagelD # 7-10) The United States was substituted for Scott under the Federal Employees Liability Reform and Tort Compensation Act. (D.N. 4, PagelD # 21 (citing 28 U.S.C. § 2679)) The United States then filed a motion to dismiss, asserting that the Court lacks subject matter jurisdiction because the Federal Employees Compensation Act (FECA) provides the exclusive remedy for McMullan's claims. (D.N. 7-1, PagelD # 35-37 (citing 5 U.S.C. § 8102(a))) After the parties briefed the issue, the United States filed a motion to strike McMullan's sur-reply. (D.N. 11) Because the Court finds that McMullan's claims fall under FECA and thus the Court lacks subject matter jurisdiction, the motion to dismiss will be granted. The motion to strike will be denied as moot.

         I. BACKGROUND

         On July 29, 2015, Plaintiff Duane McMullan was delivering mail on foot for USPS in Louisville, Kentucky. (D.N. 1-1, PagelD # 7; D.N. 7-1, PagelD # 32) A resident noticed that McMullan appeared to be suffering from heat-related symptoms and invited him inside her home to cool off. (D.N. 1-1, PagelD # 7) McMullan called his USPS supervisor, Kevin Scott, who allegedly told the resident not to take McMullan to the hospital or call 911. (Id., PagelD # 8) McMullan claims that Scott told the resident that he would send someone to pick up McMullan and take him to the hospital. (Id.) Approximately fifteen minutes later, Scott arrived to pick up McMullan. (Id.) McMullan claims that rather than immediately taking him to the hospital, Scott stopped at the office to pick up some paperwork. (Id., PagelD # 9) When they arrived at the office, Scott allegedly left McMullan in the van, rolled the windows down, and turned off the air conditioning. (Id., PagelD #10) According to McMullan, a co-worker saw him in the van and, seeing that he was disoriented and shaking, attended to McMullan while another employee called 911. (Id.) Paramedics arrived and took McMullan to the hospital. (Id., PagelD #11)

         McMullan filed suit against Scott in Jefferson County, Kentucky Circuit Court, alleging that Scott was negligent in his treatment of McMullan's injury. (Id., PagelD # 13) Scott removed the case to this Court. (D.N. 1) Following removal, Scott filed a notice seeking substitution of the United States as defendant pursuant to the Federal Employees Liability Reform and Tort Compensation Act. (D.N. 4, PagelD # 21 (citing 28 U.S.C. § 2679))

         Once substituted, the United States filed a motion to dismiss. (D.N. 7) The government argues that the Federal Employees Compensation Act (FECA) bars McMullan's claims because it provides "the exclusive remedy for job-related injuries sustained by federal workers" and thus the Court lacks subject matter jurisdiction over such claims. (D.N. 7-1, PagelD # 35-37 (citing 5 U.S.C. § 8102(a))) Additionally, the United States asserts that McMullan failed to exhaust his administrative remedies under the Federal Tort Claims Act (FTCA). (Id., PagelD # 37-39)

         In response, McMullan claims that "FECA does not bar tort lawsuits against co-employees when those employees are acting outside the scope of their employment." (D.N. 8, PagelD # 48 (citing Bates v. Harp, 573 F.2d 930 (6th Cir. 1978))) McMullan alleges that Scott was acting outside the scope of his employment because he violated USPS policies and procedures for addressing heat-related injuries. (Id., PagelD # 48-50)

         The United States asserts that the Attorney General's scope-of-employment certification filed in support of the Notice of Substitution (D.N. 4) is prima facie evidence that Scott was acting within the scope of his employment and McMullan has not produced sufficient evidence to prove otherwise. (D.N. 9, PagelD # 54)

         McMullan filed a sur-reply, again arguing that Scott acted outside the scope of his employment. (D.N. 10) The United States moved to strike the sur-reply on the grounds that McMullan did not seek leave of the Court before filing it. (D.N. 11) McMullan did not respond to the motion to strike.

         II. DISCUSSION

         A. Motion to Dismiss

         "Generally, if a federal employee sustains an injury 'while in performance of his duty, ' compensation provided through FECA is his exclusive remedy against the United States." Williamson v. United States, No. 5:12-CV-334-JMH, 2013 WL 4785689, at *2 (E.D. Ky. Sept. 5, 2013) (citing 5 U.S.C. § 8102(a); Wright v. United States, 717 F.2d 254, 256-57 (6th Cir. 1983)). If a claim falls under FECA or if "there is a substantial question of FECA coverage, " the Court lacks subject matter jurisdiction to consider the complaint. Wright, 717 F.2d at 257. The Supreme Court has explained that

FECA's exclusive-liability provision . . . 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. In enacting this provision, Congress adopted the principal compromise - the "quid pro quo" -commonly found in workers' compensation legislation: employees are guaranteed the right to receive immediate, fixed benefits, ...

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