                                                                            F I L E D
                                                                     United States Court of Appeals
                                                                             Tenth Circuit
                                      PUBLISH
                                                                              DEC 9 1998
                     UNITED STATES COURT OF APPEALS
                                                                         PATRICK FISHER
                                                                                 Clerk
                                 TENTH CIRCUIT
                            __________________________

 ANN FARLEY; DONNA L. RAMBO;
 CYNTHIA LEE SHANKLIN,

          Plaintiffs-Appellants,
                                                           No. 97-5152
 v.

 UNITED STATES OF AMERICA,

          Defendant-Appellee.


                    Appeal from the United States District Court
                      for the Northern District of Oklahoma
                             (D.Ct. No. 96-CV-863-CO)


Louis W. Bullock (Patricia W. Bullock and Michele T. Gehres with him on the
briefs) of Bullock & Bullock, Tulsa, Oklahoma, for Plaintiffs-Appellants.

Cathryn McClanahan (Stephen C. Lewis, United States Attorney, with her on the
brief), Assistant United States Attorney, Tulsa, Oklahoma, for Defendant-
Appellee.


Before BRORBY and MURPHY, Circuit Judges, and MARTEN, District Judge. *


BRORBY, Circuit Judge.


      *
        The Honorable J. Thomas Marten, United States District Judge for the District of
Kansas, sitting by designation.
       Plaintiffs-Appellants appeal from the district court order dismissing their

complaint pursuant to Fed. R. Civ. P. 12(b)(1) for lack of subject matter

jurisdiction. 1 Appellants filed this tort action pursuant to the Federal Tort Claims

Act, 28 U.S.C. §§ 1346(b)(1), 2671 - 2680, based on alleged retaliation and

outrageous conduct by their former employer, the United States Probation Office.

This court exercises jurisdiction pursuant to 28 U.S.C. § 1291, and we reverse and

remand with further instructions.



                                      I. Background

       Appellants are former employees of the United States Probation Office for

the Northern District of Oklahoma. They allege their former supervisor, Chief

Probation Officer Rod Baker, subjected them to various forms of sexual

discrimination during the course of their employment. As a result of these

actions, Appellants contend they suffered “severe emotional injury and financial

loss.” Because Appellants’ former positions are not within competitive federal

civil service, Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e -



       1
         Although Appellants’ argument addresses dismissal pursuant to Fed. R. Civ. P.
12(b)(6), the district court dismissed the action for lack of subject matter jurisdiction.
Thus, we review the district court’s order pursuant to Fed. R. Civ. P. 12(b)(1).


                                            -2-
2000e-17 is inapplicable. Instead, Appellants seek relief under the Federal Tort

Claims Act (“Tort Claims Act”), arguing the United States is vicariously liable

for Chief Baker’s actions. The district court granted the government’s motion to

dismiss on two jurisdictional grounds. First, the court examined the merits of

Appellants’ tort claims and determined it lacked jurisdiction because Appellants

failed to state a viable claim under the Tort Claims Act such that the United

States waived its sovereign immunity. Second, the court recognized the potential

applicability of the Federal Employees’ Compensation Act (“Compensation Act”)

and determined it lacked jurisdiction absent a determination by the Secretary of

Labor that the Compensation Act did not apply.



      Appellants raise two arguments on appeal: (1) the district court made

improper findings of fact and misapplied Oklahoma law in dismissing their tort

claims; and (2) the district court has subject matter jurisdiction over their claims

because no substantial question of Compensation Act applicability exists.

Because we find Appellants’ second argument to be determinative, we proceed

directly to that issue. We review the district court’s dismissal for lack of subject

matter jurisdiction pursuant to Rule 12(b)(1) de novo. Holt v. United States, 46

F.3d 1000, 1003 (10th Cir. 1995).




                                          -3-
           II. Applicability of the Federal Employees Compensation Act

       This case involves the relationship of two statutory schemes defining the

liability of the United States: the Tort Claims Act and the Compensation Act.

The Tort Claims Act waives sovereign immunity to allow suits against the United

States for damages arising from tortious acts of government employees. 28

U.S.C. § 1346(b). The Compensation Act, on the other hand, addresses work-

related injuries of federal employees. Specifically, the Compensation Act covers

claims “for the disability or death of an employee resulting from personal injury

sustained while in the performance of his duty.” 5 U.S.C. § 8102(a). An injury

occurs “in the performance of duty” if it arises out of and in the course of

employment. Tarver v. United States, 25 F.3d 900, 902 (10th Cir. 1994).



       The remedies provided by the Compensation Act are exclusive and “instead

of all other liability of the United States ... in a civil action ... or under a Federal

tort liability statute.” 2 5 U.S.C. § 8173. If the Compensation Act applies to a

particular injury, a tort action against the United States regarding those same

injuries is preempted and as such the courts lack jurisdiction to hear the case. See


       2
         As noted by the Supreme Court, the Compensation Act’s exclusivity 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.”
Lockheed Aircraft Corp. v. United States, 460 U.S. 190, 193-94 (1983).


                                            -4-
Southwest Marine, Inc. v. Gizoni, 502 U.S. 81, 90 (1991) (“[T]he courts have no

jurisdiction over FTCA claims where ... FECA applies.”); Swafford v. United

States, 998 F.2d 837, 839-40 (10th Cir. 1993). Thus, the district court has no

jurisdiction over Appellants’ Tort Claims Act action if the Compensation Act

covers their injuries.



      The Compensation Act vests the Secretary of Labor with power to resolve

any disputes regarding the scope of Compensation Act coverage. See 5 U.S.C.

§ 8145; Swafford, 998 F.2d at 839-40. The Secretary’s decision is final and not

subject to judicial review. 5 U.S.C. § 8128(b). If a plaintiff brings a Tort Claims

Act action in federal court and a substantial question regarding Compensation Act

coverage exists, “the court must stay its proceedings pending a final decision of

the Secretary of Labor regarding FECA coverage.” Tarver, 25 F.3d at 902-03.

See also Hudiburgh v. United States, 626 F.2d 813, 814 (10th Cir. 1980). A

substantial question regarding Compensation Act coverage exists unless it is

certain the Secretary would not find coverage. White v. United States, 143 F.3d

232, 234 (5th Cir. 1998) (“[T]o avoid sending the case to the Secretary of Labor,

we must essentially decide as a matter of law that ... the Secretary could not find

FECA coverage.” (internal quotation marks omitted)); Bruni v. United States, 964

F.2d 76, 79 (1st Cir. 1992).


                                         -5-
       The pivotal issue, then, is whether a substantial question regarding

Compensation Act coverage exists in this case. The district court concluded a

question exists, and we agree. As noted by the district court, Appellants allege

their emotional distress injuries “arose during the performance of their duties as

probation officers.” In addition, the Secretary of Labor has determined the

Compensation Act covers work-related emotional distress injuries in some

instances. See, e.g., Swafford, 998 F.2d at 840 (emotional distress resulting from

sexual harassment by coworker); McDaniel v. United States, 970 F.2d 194, 197

(6th Cir. 1992) (emotional distress resulting from harassment by supervisor);

Jones v. Tennessee Valley Author., 948 F.2d 258, 265 (6th Cir. 1991) (emotional

distress resulting from harassment and intimidation by supervisors). But see

DeFord v. Secretary of Labor, 700 F.2d 281, 290 (6th Cir. 1983) (holding that

Compensation Act does not appear to cover claims for mental distress). As a

result, we cannot conclude the Secretary could not find Compensation Act

coverage in this case. 3 Therefore, a substantial question as to coverage exists and


       3
         Appellants contend the Compensation Act does not apply to injuries resulting
from intentional torts. However, Compensation Act applicability turns on whether the
injury was suffered in the performance of the employee’s duty. 5 U.S.C. §8102(a).
Except for those exclusions noted in the statute, it does not matter whether the injury was
caused by an intentional or negligent act. 5 U.S.C. § 8102(a)(1)-(3); Heilman v. United
States, 731 F.2d 1104, 1111 n.6 (3d Cir. 1984) (“The fact that a tort is intentional
certainly does not preclude it from being suffered while in the performance of a public
employee’s duty. ).


                                            -6-
the Tort Claims Act action must be stayed pending a coverage determination by

the Secretary. 4 Id. at 902-03. If the Secretary determines the Compensation Act

applies, the district court lacks jurisdiction to hear the Tort Claims Act action and

it must be dismissed, regardless of whether Compensation Act benefits are

actually awarded. Id. at 903; Swafford, 998 F.2d at 841. Only if the Secretary

determines the Compensation Act does not apply, may Appellants’ action under

the Tort Claims Act proceed. Id.



                                     III. Abatement

       In its order, the district court acknowledged our holding in Tarver that a

court must stay proceedings where a substantial question regarding Compensation

Act coverage exists. Nonetheless, the district court chose to dismiss the action

rather than stay it. We believe the district court erred. Abatement is the most

appropriate course of action in a situation such as this. Tarver, 25 F.3d at 902-

03; Hudiburgh, 626 F.2d at 814. By staying the action, the district court avoids



       4
          Appellees argue a stay is not required because our holding in Swafford
conclusively establishes Compensation Act coverage of emotional distress injuries.
However, that case merely acknowledged the Secretary of Labor’s findings regarding that
particular plaintiff. Swafford, 998 F.2d at 841. As we emphasized in Swafford, “[t]he
Secretary of Labor, not the Tenth Circuit, has the final say as to the scope of FECA.” Id.
We are not inclined to predict the Secretary of Labor’s decision on the particular facts of
this case.


                                            -7-
running the Tort Claims Act statute of limitation and leaving plaintiffs

remediless. 5 Concordia v. United States Postal Service, 581 F.2d 439, 444 (5th

Cir. 1978).



       The district court also found Appellants failed to allege a viable tort claim

against the United States. Because the Compensation Act may ultimately supplant

Appellants’ Tort Claims Act action and deprive the district court of jurisdiction to

hear the case, the court’s evaluation of the tort claims was premature. See

Southwest Marine, 502 U.S. at 90; Ezekiel v. Michel, 66 F.3d 894, 898 (7th Cir.

1995) (noting the Compensation Act’s “judicial door-closing provision” may

deprive the district court of subject matter jurisdiction to hear a Tort Claims Act

action). We therefore express no opinion as to those findings. Accordingly, the

judgment of the district court is REVERSED, and the case is REMANDED to

the district court with directions to reinstate the Tort Claims Act suit and order it

held in abeyance pending Appellants’ pursuit of the claim under the

Compensation Act.



       5
          “A tort claim against the United States shall be forever barred unless it is
presented in writing to the appropriate Federal agency within two years after such claim
accrues or unless action is begun within six months after the date of mailing, by certified
or registered mail, of notice of final denial of the claim by the agency to which it was
presented.” 28 U.S.C. § 2401(b)


                                            -8-
