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


5-18-2005

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Precedential or Non-Precedential: Non-Precedential

Docket No. 04-4418




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"Izzo v. USA" (2005). 2005 Decisions. Paper 1160.
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                                                                  NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                ________________

                                       No. 04-4418
                                    ________________

                                    VICTOR A. IZZO,
                                              Appellant

                                              v.

                                   U.S. GOVERNMENT
                                    ________________

                     On Appeal From the United States District Court
                         For the Middle District of Pennsylvania
                               (D.C. Civ. No. 03-cv-01478)
                      District Judge: Honorable A. Richard Caputo
                                   ________________

                       Submitted Under Third Circuit LAR 34.1(a)
                                    May 10, 2005

              Before: RENDELL, AMBRO and FUENTES, Circuit Judges

                                   (Filed: May 18, 2005)
                                    ________________

                                        OPINION
                                    ________________

PER CURIAM

       Victor Izzo, a pro se litigant, appeals an order of the United States District Court

for the Middle District of Pennsylvania dismissing his complaint. Izzo contends that the

District Court abused its discretion in setting aside a default judgment against the United

States and in dismissing his complaint for lack of subject matter jurisdiction. Finding no
error, we will affirm.

                                             I.

       Because the parties are familiar with the relevant facts, which are undisputed, we

need only discuss them summarily. Izzo’s son, Brandon Izzo, was employed by the

United States Army Corp of Engineers at the Beltsville Dam in Franklin Township,

Pennsylvania. On May 23, 1994, the Army Corp used a pump that emitted carbon

monoxide in a manhole near the dam. On the following morning, a supervisor directed

Brandon to enter the manhole. Based upon the presence of carbon monoxide still

remaining in the manhole, Brandon died.

       Izzo filed a compensation claim with the United States Department of Labor.

Subsequently, the Department of Labor sent a letter to Izzo explaining the benefits that he

was entitled to pursuant to the Federal Employee Compensation Act (“FECA”), and

disbursed benefits in the amount of $1000 for burial expenses and administrative costs.

Izzo filed an administrative claim with the Department of the Army, which was denied.

Izzo then filed the present action, seeking damages against the United States of America

for claims of defamation, violation of his civil rights, and wrongful death. After the

United States failed to respond to the complaint, Izzo filed a motion for a default

judgment, which the District Court entered. Once the United States became aware of the

default judgment, it filed a motion to set aside the default. The District Court granted the

motion, finding that Izzo did not properly effectuate service of process. In addition, it

found that Izzo was not prejudiced by the minor delay, the United States has meritorious

                                             -2-
defenses, and the United States did not act in bad faith. The United States then filed a

motion to dismiss the complaint, contending, inter alia, that the District Court lacked

subject matter jurisdiction.

       The District Court found that it lacked jurisdiction over Izzo’s defamation and civil

rights claims, as they are barred by the doctrine of sovereign immunity. In addition, the

court found that it lacked jurisdiction over the wrongful death claim pursuant to FECA.

Thus, the District Court granted the United States’ motion to dismiss pursuant to Federal

Rule of Civil Procedure 12(b)(1). This appeal followed.

                                              II.

       We have jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary review

over the District Court’s dismissal under Rule 12(b)(1) for lack of subject matter

jurisdiction. In re Kaiser Group Intern. Inc., 399 F.3d 558, 561 (3d Cir. 2005).

       Absent a waiver, the doctrine of sovereign immunity “not only protects the United

States from liability, it deprives a court of subject matter jurisdiction over claims against

the United States.” Richards v. United States, 176 F.3d 652, 654 (3d Cir. 1999).

Defamation is not included in the list of actions for which the United States has waived

immunity under the Federal Tort Claims Act (“FTCA”). See 28 U.S.C. §§ 1346(b),

2680(h). Therefore, the defamation claim was properly dismissed. In addition, the

United States Supreme Court has noted that the FTCA waiver of sovereign immunity

extends to claims cognizable under § 1346(b). See FDIC v. Meyer, 510 U.S. 471, 475-77

(1994). Civil rights claims, however, are not cognizable under that section. Id. at 478

                                              -3-
(holding that state, rather than federal, law must be the source of claims cognizable under

§ 1346(b)). Accordingly, the District Court properly dismissed Izzo’s civil rights claim,

as well.

       FECA is intended to be the exclusive remedy available to the families of a federal

employee injured in the performance of duty. See 5 U.S.C. § 8116(c); Lockheed Aircraft

Corp. v. United States, 460 U.S. 190, 193-95 (1983). Izzo contends that because his son

was not trained in the task he was performing on the day he died, his death did not occur

within the scope of his employment, and thus FECA is inapplicable. See App. Brief at

13.

       The determination of whether the decedent’s death falls within the scope of FECA

is entrusted exclusively to the Secretary of Labor. Heilman v. United States, 731 F.2d

1104, 1109-10 (3d Cir. 1984). Moreover, this determination is barred from judicial

review. 5 U.S.C. § 8128(b); Heilman, 731 F.2d at 1109. Because, as the District Court

properly explained, the Secretary of Labor has determined that Brandon Izzo’s death fell

within the scope of FECA, the District Court lacked subject matter jurisdiction over

Izzo’s wrongful death claim. See Heilman, 731 F.2d at 1110-11.

       Finally, because the District Court identified good cause to set aside the default

judgment, it did not abuse its discretion in doing so. See United States v. $55,518.05 in

U.S. Currency, 728 F.2d 192, 195 (3d Cir. 1984).

                                            III.

       For the foregoing reasons, we will affirm the District Court’s judgment.

                                             -4-
