                                                                           FILED
                           NOT FOR PUBLICATION                              DEC 21 2009

                                                                       MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



ROBIN R. WILSON-SAULS,                           No. 08-36037

             Plaintiff - Appellant,              D.C. No. 3:07-cv-00163-AC

  v.
                                                 MEMORANDUM *
MICHELLE D. CURTIS; LEROY B.
HAINS; RONALD R. HARTLING;
DAVID E. HOLLIDAY, Ltc.; BONNIE
ANN LAZOR; UNITED STATES OF
AMERICA,

             Defendants - Appellees.



                    Appeal from the United States District Court
                             for the District of Oregon
                    John V. Acosta, Magistrate Judge, Presiding

                          Submitted December 11, 2009 **
                                 Portland, Oregon

Before: FARRIS, D.W. NELSON and BERZON, Circuit Judges.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
            The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
      Plaintiff Robin R. Wilson-Sauls appeals the district court’s dismissal of her

complaint. We affirm.

      The district court correctly held that it did not have jurisdiction over Wilson-

Sauls’s action under the Federal Tort Claims Act (FTCA). The Department of

Labor had already awarded compensation under the Federal Employees’

Compensation Act (FECA) for claims arising from the same facts. When FECA

applies, it is an exclusive remedy, see Moe v. United States, 326 F.3d 1065, 1068

(9th Cir. 2003), and a determination by the Secretary of Labor that FECA applies is

generally unreviewable by the courts, see 5 U.S.C. § 8128(b); Staacke v. U.S. Sec’y

of Labor, 841 F.2d 278, 281 (9th Cir. 1988).

      We have recognized “two narrow exceptions” to FECA’s “absolute

jurisdictional bar”: “[c]ourts retain jurisdiction to consider constitutional

challenges or claims for violation of a clear statutory mandate or prohibition.”

Markham v. United States, 434 F.3d 1185, 1187 (9th Cir. 2006). Wilson-Sauls

does not argue that either exception applies. She contends she did not waive her

tort claim by accepting benefits under FECA because she did not initially apply for

FECA benefits; instead, her employer applied on her behalf. But FECA does not

provide for an election of remedies. If Wilson-Sauls had brought her tort claim in

a district court before applying for FECA benefits, the court would have had to


                                                                                      2
dismiss the action for lack of subject matter jurisdiction because she had a

colorable claim under FECA. See Moe, 326 F.3d at 1068. Moreover, Wilson-

Sauls did later submit a claim for compensation under FECA, for which she was

awarded benefits. Thus, the district court was required to dismiss Wilson-Sauls’s

FTCA claim for lack of subject matter jurisdiction.

      Wilson-Sauls contends that dismissal of her FTCA claim violated

substantive due process because it deprived her of a potentially substantial

recovery. That argument fails, as Wilson-Sauls did not have a vested property

right in her FTCA claim. “We have squarely held that although a cause of action is

a ‘species of property, a party’s property right in any cause of action does not vest

until a final unreviewable judgment is obtained.’” Lyon v. Agusta S.P.A., 252 F.3d

1078, 1086 (9th Cir. 2001) (quoting Grimesy v. Huff, 876 F.2d 738, 743-44 (9th

Cir. 1989)).

      Finally, Wilson-Sauls’s argument that FECA violates article I, section 10, of

the Oregon Constitution is meritless. If the Oregon Constitution actually

conflicted with FECA, FECA would prevail by operation of the Supremacy Clause

of the U.S. Constitution. See Young v. Coloma-Agaran, 340 F.3d 1053, 1055-57

(9th Cir. 2003).

      AFFIRMED.


                                                                                        3
