
USCA1 Opinion

	




                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 94-2259                                   RALPH J. MILLER,                                Plaintiff, Appellant,                                          v.                          UNITED STATES OF AMERICA, ET AL.,                                Defendants, Appellees.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF NEW HAMPSHIRE                [Hon. Martin F. Loughlin, Senior  U.S. District Judge]                                          ___________________________                                 ____________________                                        Before                                Torruella, Chief Judge,                                           ___________                          Selya and Boudin, Circuit Judges.                                            ______________                                 ____________________            Ralph J. Miller on brief pro se.            _______________            Paul M.  Gagnon, United  States Attorney, and Gretchen  Leah Witt,            _______________                               ___________________        Assistant United  States Attorney, Chief Civil Division,  on brief for        appellees.                                 ____________________                                    July 24, 1995                                 ____________________                      Per  Curiam.    Pro se  plaintiff  Ralph  Miller, a                      ___________     ___ __            former postal employee,  filed this action under  the Federal            Tort  Claims  Act  (FTCA)  to  recover workers'  compensation            benefits  that the Department  of Labor's Office  of Workers'            Compensation Programs  (OWCP) denied  him  under the  Federal            Employees Compensation Act (FECA), 5 U.S.C.  8101 et seq.  He                                                              __ ____            appeals a district court order that dismissed  this action on            the ground that Miller's claim is  preempted by the FECA.  We            affirm the dismissal,  but we prefer to rest  our decision on            the  ground that  Miller failed  to  satisfy the  presentment            requirements of the FTCA, 28 U.S.C.  2401(b).                                          I.                 We begin with  the relevant facts.   Miller was employed            by the United  States Postal Service from  approximately 1981            to  1992.  On   March  12,  1990,  Miller  filed  a  workers'            compensation  claim that alleged  that he was  suffering from            depression as  a result  of the  way  his postmaster  treated            him.1   The  OWCP denied  Miller's claim  on the  ground that            Miller  failed to submit sufficient medical evidence to prove            that  his condition  was  caused by  his  employment.   While            Miller  appealed this  decision,  he  subsequently failed  to            appear at the  hearing that the OWCP  scheduled.  Thereafter,            Miller  filed  an   administrative  FTCA  claim  for   "work-                                            ____________________            1.  Miller  claimed that  he  first  became  aware  that  his            depression  was related  to his  employment  on February  12,            1989.            aggravated  mental  depression"  with the  Assistant  General            Counsel for  the Postal Service.   That claim  sought damages            equal  to the  amount  that  Miller claimed  was  due him  in            workers'  compensation  benefits.    Thus,  Miller  filed  an            administrative claim under  the FTCA to recover  the workers'            compensation benefits that  the OWCP had denied him under the            FECA.   After more than  six months passed without  action by            the  Postal Service, Miller commenced this civil action under            the FTCA.2                    The government  filed a  motion to  dismiss pursuant  to            Fed.  R.   Civ.  P.  12(b)(1)   and  12(b)(6),  or,   in  the            alternative,  for  summary  judgment.3   It  argued  that the            district  court lacked  subject  matter jurisdiction  because            Miller's  FTCA suit  was  simply an  attempt  to redress  the            OWCP's  denial of  Miller's workers'  compensation claim  and            judicial  review of the  OWCP's decision was  prohibited by 5            U.S.C.  8128(b).4   Relying on McDaniel v. United States, 970                                           ________    _____________                                            ____________________            2.  28 U.S.C.  2675(a) provides that the failure of an agency            to  make a final disposition of  an administrative FTCA claim            within 6  months after  it is filed  shall be deemed  a final            denial  sufficient to  authorize the  filing of  a  FTCA suit            against the United States.             3.  Miller's original complaint named the Postal Service, the            Department  of Labor,  and the  OWCP as defendants.  He later            amended  his complaint to substitute the United States (i.e.,            "the government") for the other named defendants.            4.  5 U.S.C.  8128(b) provides, in relevant part, that:                      The  action  of  the  Secretary  or   his                      designee in allowing or denying a payment                                         -3-            F.2d 194,  197 (6th  Cir. 1992)(per  curiam), the  government            further  argued that the district court lacked subject matter            jurisdiction  despite the fact  that Miller's FECA  claim had            been denied.5                     Miller  opposed the government's motion.  He argued that            the FECA does  not cover emotional injuries such  as those he            sustained  as  a  result  of  his  postmaster's  campaign  of            harassment against him.6   The district court  concluded that            the FECA does not encompass claims for emotional distress and            denied the government's motion.  The court based its decision            on the FECA's definition of injury in 5 U.S.C.  8101(5)(which            does not specifically refer to mental or emotional injuries),            Sheehan v.  United States, 896  F.2d 1168, amended,  917 F.2d            _______     _____________                  _______                                            ____________________                      under this subchapter is -                      (1) final and conclusive for all purposes                      and  with respect to all questions of law                      and fact; and                      (2)  not subject  to  judicial review  by                      another official of the  United States or                      by a court by mandamus or otherwise.            5.  McDaniel held that  where it was clear that the Secretary                ________            of Labor viewed  the plaintiff's emotional distress  claim as            cognizable  under the FECA,  the FECA barred  the plaintiff's            FTCA  suit  for  intentional  and  negligent   infliction  of            emotional distress  even though  the plaintiff  had not  been            awarded FECA benefits.            6.  Miller thus implied that his federal tort claim was based            on the  theory that his  postmaster had subjected him  to the            intentional  infliction  of emotional  distress.  Miller also            suggested that the OWCP had intentionally inflicted emotional            distress upon him by denying his workers'compensation claim.                                          -4-            424  (9th Cir. 1990)(holding  that 5 U.S.C.   8128(b) did not            preclude  district  court  from  determining  what  types  of            injuries were covered by the  FECA and that the FECA did  not            cover  emotional distress claims) and numerous other cases.7                  The  government  petitioned  to  take  an  interlocutory            appeal from the district court's order, but this court denied            that  petition.  Limited discovery followed.8  The government            then  filed  a  second  motion  to dismiss  which  asked  the            district court to reconsider its previous ruling in the light            of recent decisions that had recognized the FECA's preclusive            effect   in  cases   involving  emotional  injuries.9     The                                            ____________________            7.  See, e.g., Guidry v. Durkin,  834 F.2d 1465, 1471-72 (9th                ___  ____  ______    ______            Cir. 1987); Gergick v. Austin, 764 F. Supp. 580, 581-82 (W.D.                        _______    ______            Mo. 1991); Underwood v. United States Postal Service,  742 F.                       _________    ____________________________            Supp. 968  (M.D. Tenn. 1990);  Metz v. United States,  723 F.                                           ____    _____________            Supp.  1133, 1136  (D. Md.  1989); Newman  v.  Legal Services                                               ______      ______________            Corporation, 628 F. Supp. 535, 543 (D.D.C. 1986); Sullivan v.            ___________                                       ________            United States, 428 F. Supp. 79, 81 (E.D. Wis. 1977); Mason v.            _____________                                        _____            District of Columbia, 395 A.2d 399 (D.C. 1978).                ____________________            8.   We note  that Miller's motion to amend  his complaint to            specifically   allege  that   the  government   intentionally            inflicted  emotional distress  on  him  when  it  denied  his            workers' compensation  claim was  denied on  the ground  that            such an amendment would be  futile since Miller had failed to            present this claim to the appropriate federal agencies in his            administrative FTCA claim.              9.  The government relied on Tarver v. United States, 25 F.3d                                         ______    _____________            900 (10th Cir. 1994); Figueroa  v. United States, 7 F.3d 1405                                  ________     _____________            (9th  Cir.  1993),  cert. denied,  114  S.  Ct. 1537  (1994);                                _____ ______            Swafford v.  United States, 998  F.2d 837  (10th Cir.  1993);            ________     _____________            Jones v. Tennessee  Valley Authority, 948 F.2d 258  (6th Cir.            _____    ___________________________            1991); Klescewski v.  United States, 843 F. Supp. 543 (D.S.D.                   __________     _____________            1993); Castro v. United States, 757 F. Supp. 1149, 1151 (W.D.                   ______    _____________            Wash.  1991); and  Cardwell v.  United  States, 1992  WESTLAW                               ________     ______________                                         -5-            government also argued  that Miller's suit was barred  by the            Civil  Service Reform Act  (CSRA) and the  FTCA's presentment            requirement.   After Miller filed an opposition, the district            court   reversed  its   previous   ruling  and   granted  the            government's  motion to dismiss.  Relying on McDaniel, supra,                                                         ________  _____            inter alia,  the court held  that Miller's FTCA suit  for the            _____ ____            intentional infliction of emotional distress was preempted by            the FECA  and that any other  claims that might be  read into            Miller's complaint were  barred by the  CSRA.10  This  appeal            followed.                                         II.                   We review the  district court's dismissal for  lack of            subject  matter jurisdiction de novo, mindful that Miller, as                                         __ ____            the  party invoking federal  jurisdiction, has the  burden of            proving its existence.  See  Murphy v. United States, 45 F.3d                                    ___  ______    _____________            520,  522 (1st Cir.),  cert. denied,  63 U.S.L.W.  3800 (U.S.                                   _____ ______            June  19, 1995).  He has failed to do so.  Miller stresses on            appeal  that  he   seeks  to  recover  for   the  intentional            infliction  of  emotional  distress in  the  handling  of his            workers' compensation  claim.   But it  is clear  that Miller                                            ____________________            368495 (E.D. Pa. Dec.  4, 1992), aff'd,  6 F.3d 778 (3d  Cir.                                             _____            1993)(Table), as well as numerous decisions of the Employment            Compensation Appeals  Board (ECAB) which  indicated that  the            FECA can provide  relief for  claims of  emotional or  mental            injury.              10.  The  court did not reach the government's arguments that            Miller failed to satisfy the FTCA's presentment requirements.                                         -6-            never  presented this claim  to either the  Postal Service or            the OWCP within two  years of the denial  of his FECA  claim.            Rather, Miller's  administrative  FTCA claim  focused on  the            mental injuries he allegedly suffered as a result of his work            place atmosphere.  Miller did not allege or describe anything            approaching  outrageous   conduct  in  the  handling  of  his            workers' compensation  claim.   It  is  well settled  that  a            plaintiff's  FTCA claim will  be "forever barred"  absent the            filing  of a timely administrative claim with the appropriate            federal agency. See, e.g., Gonzalez-Bernal v.  United States,                            ___  ____  _______________     _____________            907 F.2d 246,  248 (1st Cir. 1990).  As Miller failed to file            a  timely  administrative  FTCA  claim  for  the  intentional            infliction  of  emotional  distress in  the  handling  of his            workers' compensation case, this claim is forever barred.                 Miller  does not press  on appeal the  alternative basis            for relief that  he argued below, i.e., that  he suffered the            intentional infliction of  emotional distress as a  result of            his former postmaster's conduct.  Accordingly, this claim has            been waived.   See United States  v. Zannino, 895 F.2d  1, 17                           ___ _____________     _______            (1st Cir.),  cert. denied, 494 U.S. 1092  (1990).  Even if it                         _____ ______            were otherwise, this claim also  fails for the lack of timely            presentment.  It is undisputed that Miller first became aware            that  his depression was  work-related on February  12, 1989.            He therefore had two years  from that date, or until February            12, 1991, to file his administrative FTCA for the intentional                                         -7-            infliction of  emotional distress  by his  former postmaster.            Miller did not file such a  claim until October 8, 1991.   As            the administrative FTCA claim was filed too late, this  claim            is also barred.                 We  note that whether the FECA covers emotional injuries            and, even if it does,  whether Miller's FTCA action is barred            despite  the fact  that he  was not  paid FECA  benefits, are            novel issues in  this circuit.  We recognize  that cases such            as McDaniel, Tarver, and Cardwell, supra, support affirmative               ________  ______      ________  _____            answers to  both questions.   On the  other hand, there  is a            considerable  body of caselaw  which indicates that  the FECA            does not apply to emotional injuries.  See Sheehan and n.  7,                                                   ___ _______            supra.  We find  it unnecessary to take  a position on  these            _____            important issues  -  which  have  not been  well  briefed  by            Miller.11   It  is  apparent that  Miller's  suit  is  barred            under the FTCA.   We are free to affirm  on any independently            sufficient ground  made manifest by  the record.   See, e.g.,                                                               ___  ____            Garside v.  Osco Drug, Inc., 895 F.2d 46, 49 (1st Cir. 1990).            _______     _______________            In   view  of  our  disposition,  we  need  not  address  the            government's  contentions that  the CSRA  also  bars Miller's                                            ____________________            11.  Rather, Miller argues that Martin v. Travelers Ins. Co.,                                            ______    __________________            497 F.2d 329 (1st Cir. 1979), authorizes him to sue under the            FTCA  for   the  bad   faith  processing   of  his   workers'            compensation claim, and that  Burke v. United States,  644 F.                                          _____    _____________            Supp. 566  (E.D. La. 1986),  also authorizes him  to maintain            this suit because he was  denied FECA benefits.  Neither case            stands  for  the  proposition  for  which  Miller  cites  it.            Moreover, the  language that  Miller purports  to quote  from            Martin appears nowhere in that case.               ______                                         -8-            claims.  Accordingly,  the judgment of the district  court is            affirmed.              _________                                                        -9-
