                     UNITED STATES DISTRICT COURT
                     FOR THE DISTRICT OF COLUMBIA

                                  )
VALERIE BARNES,                   )
                                  )
                  Plaintiff,      )
                                  )
          v.                      )
                                  )
UNITED STATES OF AMERICA,         ) Civil Action No. 15-2120 (EGS)
                                  )
                  Defendant.      )
                                  )

                          MEMORANDUM OPINION

I. Introduction

     On November 26, 2013, pro se plaintiff Valerie Barnes (“Ms.

Barnes”) was crossing the street when she was allegedly struck

by a vehicle driven by federal employee Craig Wasster. Ms.

Barnes brings suit against Mr. Wasster’s employer, the United

States of America (“the defendant” or “the government”), for

damages caused by his negligent driving pursuant to the Federal

Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346(b), 2671, et. seq.

Pending before the Court is the government’s motion to dismiss

for lack of subject matter jurisdiction. Def. Mot., ECF No. 16-1

(refiled). The Court has carefully considered the motion, the

response and replies thereto, the applicable law, and the entire

record herein.    For the reasons set forth below, the Court finds

that it lacks jurisdiction over Ms. Barnes’ claim. Her action is

DISMISSED in its entirety.


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       II. Background

      At the time of the collision, Ms. Barnes was employed as a

Global Markets Coordinator by the U.S. Department of Commerce.

OWCP Form, ECF No. 16-8. 1 On November 26, 2013 at about 2:50 pm, 2

Ms. Barnes was walking back to her office after picking up mail

from another federal building when she was hit by a car in the

crosswalk at 14th and D Streets Northwest. Compl. ¶5, ECF No. 1;

OWCP Form, ECF No. 16-8. According to Ms. Barnes, the driver,

Federal Protective Officer Craig Wasster, was “negligently and

carelessly operat[ing] his motor vehicle” at the time. Compl. ¶

5. Mr. Wasster reported that Ms. Barnes had walked into his

passenger-side mirror while he was stopped. Police Report 5, ECF

No. 16-6.

      As a result of the incident, Ms. Barnes was injured,

ultimately requiring hospitalization and extensive medical care.

Compl. ¶ 10, 11, ECF No. 1. Beyond medical costs, Ms. Barnes




1 In deciding whether to grant a motion to dismiss for lack of jurisdiction, a

court may consider materials outside the pleadings. Gulf Coast Mar. Supply v.
United States, 867 F.3d 123, 128 (D.C. Cir. 2017) (internal quotations and
citations omitted).
2 Ms. Barnes’ complaint states that she was in the crosswalk “at approximately

2:50 pm.” ¶ 5, ECF No. 1. However, her Workers’ Compensation Form states that
she was in the crosswalk at 11:45 am. See OWCP Form, ECF No. 16-8. Meanwhile,
the police report states that the incident happened at 2:50 pm. Police
Report, ECF No. 16-6. The Federal Protective Service, the driver’s employing
agency, also confirmed the incident happened at about 2:42 pm. FPS Report,
ECF No. 16-5. In her reply, Ms. Barnes stated that the later time is
accurate. Pl. Reply 2, ECF No. 12.

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reportedly lost some degree of earning capacity because she was

“rendered totally and partially incapacitated.” Id.

     On December 13, 2013, Ms. Barnes filed a “Notice of

Traumatic Injury and Claim for Continuation of Pay/Compensation”

with the U.S. Department of Labor, Office of Workers’

Compensation Programs (“OWCP”) pursuant to the Federal

Employees’ Compensation Act (“FECA”), 5 U.S.C. § 8101, et seq.

OWCP Form, ECF No. 16-8. On the form, Ms. Barnes indicated that

she was injured “in performance of duty” because she was picking

up mail from a “work area.” Id. She stated that she sustained a

shoulder bruise and neck, knee, and ankle sprains. Id. On

December 24, 2013, her claim was accepted for benefits related

to her “sprain of neck.” Id.

     On March 5, 2014, Ms. Barnes filed a FTCA claim against the

Federal Protective Service, Mr. Wasster’s employing agency. SF

95, ECF No. 16-3. On August 20, 2015, the agency denied Ms.

Barnes’ FTCA claim, stating that she is precluded from a FTCA

remedy because her FECA workers’ compensation claim was

accepted. FTCA Denial, ECF No. 16-4. On December 8, 2015, Ms.

Barnes filed this lawsuit.

     III. Standard of Review

     A “pro se complaint is entitled to liberal

construction.” Washington v. Geren, 675 F. Supp. 2d 26, 31

                                3
(D.D.C. 2009) (citing Haines v. Kerner, 404 U.S. 519, 520

(1972)). 3 However, “[a] federal district court may only hear a

claim over which it has subject-matter jurisdiction; therefore,

a Rule 12(b)(1) motion for dismissal is a threshold challenge to

a court's jurisdiction.” Gregorio v. Hoover, 238 F. Supp. 3d 37,

44 (D.D.C. 2017) (internal citation and quotation omitted). To

survive a Rule 12(b)(1) motion, the plaintiff bears the burden

of establishing that the court has jurisdiction by a

preponderance of the evidence. Lujan v. Defenders of Wildlife,

504 U.S. 555, 561 (1992). “Because Rule 12(b)(1) concerns a

court's ability to hear a particular claim, the court must

scrutinize the plaintiff's allegations more closely . . . than

it would under a motion to dismiss pursuant to Rule 12(b)(6).”

Schmidt v. U.S. Capitol Police Bd., 826 F. Supp. 2d 59, 65

(D.D.C. 2011)(internal citations omitted). In so doing, the

court must accept as true all of the factual allegations in the

complaint and draw all reasonable inferences in favor of the

plaintiff, but the court need not “accept inferences unsupported

by the facts alleged or legal conclusions that are cast as

factual allegations.” Rann v. Chao, 154 F. Supp. 2d 61, 64

(D.D.C. 2001). In reviewing a motion to dismiss pursuant

to Rule 12(b)(1), the court “may consider materials outside the


3 Ms. Barnes’ complaint was filed with the assistance of counsel, but Ms.

Barnes is now pro se and has been for most of this case. Thus, the Court will
construe her arguments liberally.

                                      4
pleadings” in determining whether it has jurisdiction to hear

the case. Jerome Stevens Pharm., Inc. v. FDA, 402 F.3d 1249,

1253 (D.C. Cir. 2005).

     IV. Analysis

     The government argues that the Court lacks subject matter

jurisdiction over Ms. Barnes’ FTCA claim because she was

approved for workers’ compensation benefits under FECA, an

exclusive statutory scheme that provides compensation to federal

employees injured on the job. Def. Mot. 4-6, ECF No. 16-1. In

other words, because the Department of Labor approved Ms.

Barnes’ workers’ compensation claim, the government argues that

the Court lacks jurisdiction over her FTCA claim. Id. at 6. In

response, Ms. Barnes argues that her workers’ compensation claim

should never have been approved because she was not performing

official duties at the time of the incident. Pl. Opp’n, ECF No.

12; Pl. Mot., ECF No. 14. She states that she inadvertently

listed the time of injury on the OWCP form as 11:30 am—the time

she usually picked up the mail. In fact, Ms. Barnes was actually

injured at 2:50 pm, when she was on leave. Id. Because the

incident occurred while she was technically on leave, it follows

that her claim should have been denied because she was not

injured while performing official duties. Additionally, Ms.

Barnes argues that the Court has jurisdiction over her FTCA

claim because most of her injuries were not covered by workers’

                                5
compensation; she was approved only for benefits related to her

sprained neck. Id. The government responds that any mistake made

is immaterial because the Secretary of Labor, through the OWCP,

determined that FECA applied and its decision is unreviewable—

whether right, wrong, or incomplete. Def. Reply 3, ECF No. 16-2.

     FECA provides that “the United States shall pay

compensation . . . 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(1). If the

Secretary of Labor determines that FECA applies because the

employee was “injured while engaged in the performance of their

official duties,” that employee is “entitled under FECA to

compensation for medical expenses, lost wages, and vocational

rehabilitation.” United States v. Lorenzetti, 467 U.S. 167, 169

(1984)(citing 5 U.S.C. §§ 8102-8107). This compensation scheme

is comprehensive and exclusive of any other liability. See 5

U.S.C. § 8116(c)(“[L]iability of the United States . . . is

exclusive and instead of all other liability . . . in a civil

action . . . or under a Federal tort liability statute.”); Chung

v. Chao, 518 F. Supp. 2d 270, 272 (D.D.C. 2007)(“[FECA]

establishes a comprehensive workers' compensation scheme under

which federal employees or their survivors receive compensation,

regardless of fault, for employment related injuries or

deaths.”). The Secretary of Labor’s decision to grant or deny a

                                6
workers’ compensation claim under FECA is “not subject to review

by another official of the United States or by a court . . .

.” 5 U.S.C. § 8128(b)(2); see also Sw. Marine, Inc. v.

Gizoni, 502 U.S. 81, 90 (1991).

     Here, the Secretary of Labor, via OWCP, determined that

FECA applied to Ms. Barnes’ claim. Therefore, because FECA’s

compensation scheme is exclusive and not subject to review, this

Court has no jurisdiction over her FTCA claim. Congress created

“an unambiguous and comprehensive provision barring any judicial

review of the Secretary of Labor's determination

of FECA coverage. Consequently, the courts have no jurisdiction

over FTCA claims where the Secretary determines that FECA

applies.” Sw. Marine, 502 U.S. at 90 (internal quotations and

citations omitted).

     The Court lacks jurisdiction even if the Secretary of Labor

incorrectly determined that FECA covered to Ms. Barnes’ claim.

In Spinelli v. Goss, the plaintiff argued that the court had

jurisdiction over his claim, regardless of his workers’

compensation award, because the Secretary of Labor’s

determination that his claim was covered by FECA was based on

“unsettled law.” 446 F.3d 159, 161 (D.C. Cir. 2006). The

plaintiff also argued that his claim was not barred because he

did not receive compensation for the full extent of his

injuries. Id. The United States Court of Appeals for the

                                  7
District of Columbia Circuit found that it was of “no moment”

whether coverage was unwarranted because “the Secretary’s

decision in this case settles the matter.” Id. It was also

“irrelevant” that the plaintiff had not received full

compensation for his injuries. Id. Ultimately, because the

plaintiff applied for and was granted benefits under FECA, “a

substitute” for a federal tort claim, the Court lacked

jurisdiction. Id. (quoting Balancio v. United States, 267 F.2d

135, 137 (2d Cir. 1959)). So here too.

      When Ms. Barnes submitted a workers’ compensation claim and

was approved as covered under FECA, she was “guaranteed the

right to receive immediate, fixed benefits, regardless of fault

and without the need for litigation, but in turn [she] los[t]

the right to sue the Government.” Lockheed Aircraft Corp. v.

United States, 460 U.S. 190, 194 (1983). The Secretary of Labor,

via the OWCP, accepted Ms. Barnes’ claim and provided medical

benefits for at least one of her conditions. As a result, she

lost the right to sue the government under the FTCA. Ms. Barnes’

exclusive remedy is the benefits awarded by the Secretary of

Labor pursuant to FECA. 4 Accordingly, this Court is without

jurisdiction to review the Secretary of Labor’s decision and

without jurisdiction to entertain Ms. Barnes’ FTCA claim.


4 Ms. Barnes could have appealed the compensation decision within thirty days

after the OWCP issued its decision. 5 U.S.C. § 8124(b). The record does not
establish whether Ms. Barnes pursued this appeal.

                                      8
     V. Conclusion

     Upon careful consideration of Ms. Barnes’ arguments and the

applicable law, defendant’s motion to dismiss is hereby GRANTED

for the aforementioned reasons. A separate Order accompanies

this Opinion.

     SO ORDERED.

Signed:   Emmet G. Sullivan
          United States District Judge
          January 3, 2018




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