                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                               ________________

                                      No. 18-2478
                                   ________________

                                 RANDALL L. SPADE,
                                         Appellant

                                             v.

                            UNITED STATES OF AMERICA

                     On Appeal from the United States District Court
                         for the Middle District of Pennsylvania
                              (D.C. Civ. No. 4-15-cv-02513)
                      District Judge: Honorable Matthew W. Brann
                      ____________________________________

                      Submitted under Third Circuit L.A.R. 34.1(a)
                                  on March 22, 2019

               Before: SHWARTZ, KRAUSE and BIBAS, Circuit Judges

                             (Opinion filed: March 26, 2019)



                                        OPINION *




       *
        This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.

                                             1
KRAUSE, Circuit Judge.

       Randall Spade, a correctional officer, appeals the District Court’s order dismissing

with prejudice his suit under the Federal Tort Claims Act (FTCA) alleging that he

suffered extreme anguish after the Department of Justice accidentally disclosed highly

personal information about him to an inmate in response to a Freedom of Information Act

(FOIA) request. For the following reasons, we will vacate the District Court’s dismissal

and remand with instructions for it to obtain a determination from the Department of

Labor on whether the Federal Employees’ Compensation Act (FECA) would cover

Spade’s claim. If FECA does not bar Spade’s claim, the District Court shall consider the

impact of Dittman v. UPMC, 196 A.3d 1036 (Pa. 2018).

I.     Background

       Spade works as a correctional officer at the United States Penitentiary in

Lewisburg. He alleges that the Department of Justice confused the redacted and

unredacted copies of his personnel file, providing the unredacted copy—which included

his social security number, date of birth, home address, and work history—to an inmate

in response to a FOIA request. As word spread among the inmates, several threatened to

use the information gleaned from his personnel file to harm him and his family.

       Spade complied with the FTCA’s exhaustion requirement before filing suit in the

Middle District of Pennsylvania, alleging one count of negligence. The District Court

dismissed his suit with prejudice because Spade “ha[d] not pointed to any Pennsylvania

authority creating liability for the negligent handling or disclosure of personal

                                              2
information.” App. 5. Because the Government’s liability under the FTCA does not

extend beyond that of a similarly situated private party, see 28 U.S.C. § 2674, the District

Court concluded that Spade lacked a cognizable claim. This timely appeal followed. See

Fed. R. App. P. 4(a)(1)(B).

II.    Discussion 1

       After the District Court issued its opinion, the Pennsylvania Supreme Court

decided Dittman v. UPMC, 196 A.3d 1036 (Pa. 2018), which held that an employer owes

a duty to exercise reasonable care “in collecting and storing [e]mployees’ data on its

computer systems.” Id. at 1047. Dittman further held that the economic-loss doctrine did

not bar the employees’ suit, alleging that their employer’s inadequate safeguards for

storing their personal information caused a data breach. Id. at 1055-56.

       We alerted the parties to Dittman and requested they file letter briefs addressing

the decision. Along with its response, the Government—expressing regret for its

“substantial delay” in raising the issue—submitted a motion for a limited remand to

obtain a determination from the Department of Labor on whether Spade’s claim falls

under FECA. Remand Mot. at 2. Spade has not responded to the Government’s motion.

       FECA, the federal workers’ compensation statute, precludes any federal employee

from bringing suit for “personal injury sustained while in the performance of his duty.”


       1
         We have jurisdiction under 28 U.S.C. § 1291 over the District Court’s dismissal
of Spade’s claim with prejudice. If FECA does not completely bar Spade’s claim, the
District Court would have jurisdiction under 28 U.S.C. § 1346(b)(1).


                                             3
5 U.S.C. §§ 8102, 8116(c); see Lockheed Aircraft Corp. v. United States, 460 U.S. 190,

194 (1983). We have characterized FECA’s bar on personal injury suits as jurisdictional,

see Heilman v. United States, 731 F.2d 1104, 1109 (3d Cir. 1984); see also Sw. Marine,

Inc. v. Gizoni, 502 U.S. 81, 90 (1991), and a court cannot entertain a claim if a

“substantial question” exists over FECA’s coverage of that claim until the Secretary of

Labor resolves FECA’s applicability, DiPippa v. United States, 687 F.2d 14, 16 (3d Cir.

1982). A substantial question exists unless we can be “certain that (the Secretary of

Labor) would find no coverage.” Id. (citation omitted). In its remand motion, the

Government cites decisions from the Secretary confirming that Spade’s claim presents a

substantial question of FECA eligibility, 2 so we must remand this case for the District

Court to obtain a determination of FECA coverage from the Department of Labor. To

avoid prejudicing Spade, the District Court should stay Spade’s suit pending the

Secretary’s decision. See DiPippa, 687 F.2d at 20.

       While we grant the Government’s motion, we do not accept its proposal to grant

only a limited remand. If FECA does not entirely bar Spade’s claim, the District Court is

well-equipped to determine in the first instance whether Dittman alters its analysis.

III.   Conclusion


       2
         See, e.g., In re Price, Docket No. 05-689, 2006 WL 2032274, at *3 (Dep’t of
Labor Apr. 13, 2006) (concluding that storing an employee’s “personnel records in a
shared file on its intranet that was accessible by other employees” qualifies as a
“compensable employment factor”); In re Davis, 50 E.C.A.B. 450, 460 (Dep’t of Labor
July 8, 1999) (determining that releasing an employee’s EEOC and personnel file to a
nongovernmental organization constituted a “compensable employment factor”).

                                             4
       For the aforementioned reasons, we will vacate the District Court’s order and

remand for further proceedings. 3 The District Court shall take appropriate action to

secure a determination from the Department of Labor as to whether FECA would cover

all or part of Spade’s claim. If FECA does not bar Spade’s claim, the District Court shall

consider the impact of Dittman on this case.




       3
         Consistent with this disposition, the Government’s motion to remand, filed on
March 1, 2019, is granted in part and denied in part. This Court will not retain
jurisdiction over this case.

                                               5
