                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-8-2005

Horton v. USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-3608




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                                                               NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                      NO. 04-3608
                                   ________________

                                   JOHN D. HORTON,

                                            Appellant

                                              v.

                           UNITED STATES OF AMERICA
                      ____________________________________

                    On Appeal From the United States District Court
                              For the District of New Jersey
                               (D.C. Civ. No. 04-cv-01334)
                     District Judge: Honorable Jerome B. Simandle
                     ____________________________________

                       Submitted Under Third Circuit LAR 34.1(a)
                                   August 5, 2005

               Before: SLOVITER, BARRY and FISHER, Circuit Judges.

                                  (Filed August 8, 2005)

                               _______________________

                                      OPINION
                               _______________________

PER CURIAM

       John D. Horton appeals from the District Court’s order granting the United States’

motion to dismiss for lack of subject matter jurisdiction. For the following reasons, we

will affirm.
       Horton was hired as a librarian in the Morale, Welfare and Recreation Services

Division Library at the Ft. Belvoir military base in Virginia. According to affidavits

submitted by the United States, on his first day of employment, Horton was released from

initial processing as a new employee to obtain necessary passes and identification

associated with his employment. Horton went to the Ft. Belvoir Privately Owned Vehicle

Registration Office to apply for a privately owned vehicle registration decal (Department

of Defense Form 2220), which was required in order for an employee to drive a private

vehicle onto the base. While at the registration office, Horton allegedly caused a

disturbance when it was revealed that he had been barred from entering a United States

Air Force Base. As a result, he was detained by military police for thirty minutes. Horton

filed a complaint alleging violations of the Federal Tort Claims Act (“FTCA”) for assault,

false arrest, false imprisonment and negligent infliction of emotional distress. The United

States filed a motion to dismiss for lack of subject matter jurisdiction pursuant to Fed. R.

Civ. P. 12(b)(1), which was granted. Horton filed a timely appeal.

       We have jurisdiction pursuant to 28 U.S.C. § 1291. Our review is plenary. See

Gould Elecs. Inc. v. United States, 220 F.3d 169, 176 (3d Cir. 2000). In reviewing a

factual attack on the District Court’s subject matter jurisdiction, the Court may consider

evidence outside the pleadings. See Mortensen v. First Fed. Savings & Loan Ass’n, 549

F.2d 884, 891 (3d Cir. 1977). The burden is on Horton to prove jurisdiction. See Kehr

Packages, Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1409 (3d Cir. 1991).



                                              2
       The Federal Employees Compensation Action (“FECA”) provides 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). If a claim is

covered by the FECA, a federal court lacks subject matter jurisdiction to entertain the

claim. 5 U.S.C. § 8128(b); see also Heilman v. United States, 731 F.2d 1104, 1110 (3d

Cir. 1984); DiPippa v. United States, 687 F.2d 14, 17 (3d Cir. 1982). Our jurisdiction “is

limited to determining if a substantial question of coverage under FECA exists.” White v.

United States, 143 F.3d 232, 234 (5th Cir. 1998). A substantial question exists unless it is

“‘certain that [the Secretary of Labor] would find no coverage.’” DiPippa, 687 F.2d at 16

(citation omitted).

       The District Court concluded that it lacked subject matter jurisdiction because

there was a substantial question of FECA coverage. We agree. Horton argues that his

claim is not covered by FECA because he was on his lunch break when he went to the

registration office to obtain a vehicle decal. However, it is not necessary that the

employee be engaged in an activity of benefit to his employer. Bruni v. United States,

964 F.2d 76, 79-80 (1st Cir. 1992) (citations omitted). A substantial question of FECA

coverage has been found when the injury occurred on a military base where the plaintiff is

employed, even though the employee was on a lunch break or en route home from work.

See Woodruff v. United States, 954 F.2d 634, 638 (11th Cir. 1992); White, 143 F.3d at

238. The Employees’ Compensation Appeals Board has accepted jurisdiction under



                                              3
FECA in cases where an employee was injured during his lunch break or en route to

work. See Woodruff, 954 F.2d at 638; In re Ross, 42 E.C.A.B. 371 (1991). Thus, Horton

must first seek relief under the FECA. If the Secretary determines that Horton cannot

proceed under the FECA, he may pursue his FTCA claim in the District Court, assuming

his action is timely commenced after the mailing of the notice of final denial of his claim

by the Secretary. See 28 U.S.C. § 2401(b).

       For the foregoing reasons, we will affirm the order of the District Court.




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