                                                             NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                _____________

                                  No. 08-3170
                                 _____________

                                 PHILIP BURG;
                                 ELLEN BURG,
                                     Appellants

                                        v.

UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES; JAMES
J. MAIORANO, ACTING AS A SUPERVISORY AUDITOR, U.S. DEPARTMENT OF
HEALTH AND HUMAN SERVICES, OFFICE OF INSPECTOR GENERAL, OFFICE
    OF AUDIT SERVICES, REGION III; EUGENE G. BERTI, JR., ACTING AS A
    SUPERVISORY AUDITOR, U.S. DEPARTMENT OF HEALTH AND HUMAN
 SERVICES, OFFICE OF INSPECTOR GENERAL, OFFICE OF AUDIT SERVICES,
   REGION III; UNITED STATES DEPARTMENT OF LABOR; UNITED STATES
                  OFFICE OF PERSONNEL MANAGEMENT

                   Appeal from the United States District Court
                      for the Eastern District of Pennsylvania
                              (Civ. No. 2-07-cv-02992)
                  District Judge: Hon. Thomas N. O’Neill, Junior

                 Submitted Pursuant to Third Circuit LAR 34.1(a)
                                 May 27, 2010

  Before: McKEE, Chief Judge, RENDELL, Circuit Judge, and STAPLETON, Senior
                                  Circuit Judge
                          (Opinion filed : July 21, 2010)




                                    OPINION


McKEE, Chief Judge.
       Philip Burg appeals the district court’s dismissal of his amended complaint

alleging violation of the Family Medical Leave Act, breach of contract, intentional

infliction of emotional distress, negligent infliction of emotional distress, harassment,

hostile work environment, and discrimination.1 The district court dismissed Burg’s

breach of contract claim pursuant to Federal Rule of Civil Procedure 12(b)(6) and

dismissed all other claims pursuant to Federal Rule of Civil Procedure 12(h)(3) for lack

of subject matter jurisdiction. For the reasons that follow, we will affirm in part, and

vacate and remand in part.2

                                                 I

       We write primarily for the parties who are familiar with the factual and procedural

history of this case and therefore need only recite as much of the underlying dispute as is

helpful to our discussion.

       Philip Burg was a senior auditor in the Philadelphia Office of Inspector General

(“OIG”), United States Department of Health and Human Services until taking disability

retirement in February of 2004. In his amended complaint, he alleged several types of

mistreatment while working at OIG. As a result, he sued the Department of Health and

Human Services, Department of Labor, Office of Personnel Management, and two of his

supervisors at OIG (James J. Maiorano and Eugene G. Berti, Jr.). Defendants responded


       1
          Although the caption of this case lists Ellen Burg as an appellant, she is not mentioned
in the statement of issues on appeal and her claims are not addressed in the appeal.
       2
         Burg argues that even if his amended complaint was deficient, the district court should
have let him amend. We see no need to address this argument because the district court did
allow Burg to amend his initial complaint.
with a motion to dismiss all counts pursuant to Federal Rule of Civil Procedure 12(b)(6),

or in the alternative for summary judgment pursuant to Federal Rule of Civil Procedure

56.   The district court granted defendants’ motion to dismiss Burg’s breach of contract

claim and dismissed the rest of Burg’s claims pursuant to Federal Rule of Civil Procedure

12(h)(3) for lack of subject matter jurisdiction. This appeal followed.3

                                              II

       At the outset, it is important to note the distinction between a dismissal based on

lack of subject matter jurisdiction pursuant to Fed. R. Civ. P. 12(h)(3), and a dismissal for

failure to state a claim pursuant to Rule 12(b)(6). “In a Rule 12(b)(6) motion, the court

evaluates the merits of the claims by accepting all allegations in the complaint as true,

viewing them in the light most favorable to the plaintiffs, and determining whether they

state a claim as a matter of law.” Gould Electronics Inc. v. United States, 220 F.3d 169,

178 (3d Cir. 2000). In contrast, a dismissal based on lack of subject matter jurisdiction

goes to “the trial court's . . . very power to hear the case.” Mortensen v. First Federal

Sav. and Loan Ass’n, 549 F.2d 884, 891 (3d Cir. 1977). “[N]o presumptive truthfulness

attaches to plaintiff's allegations, and the existence of disputed material facts will not

preclude the trial court from evaluating for itself the merits of jurisdictional claims.” Id.


       3
         The district court had jurisdiction under 28 U.S.C. § 1331. We have appellate
jurisdiction pursuant to 28 U.S.C. § 1291. “When reviewing an order dismissing a claim
for lack of subject matter jurisdiction, we exercise plenary review over legal conclusions
and review findings of fact for clear error.” White-Squire v. United States Postal Service,
592 F.3d 453, 456 (3d Cir. 2010). We exercise plenary review over a district court’s
order granting a motion to dismiss for failure to state a claim. Jones v. ABN Amro
Mortgage Group, Inc., 606 F.3d 119, 123 (3d Cir. 2010).
                                            III

       In his breach of contract claim, Burg seeks damages in excess of $75,000.00

against the federal government as his former employer. Under the “Tucker Act,” a

federal employee may sue the United States on either an express or implied contract. 28

U.S.C. § 1346(a)(2); 28 U.S.C. § 1491(a)(1). Both jurisdictional provisions are identical,

with the exception that 28 U.S.C. § 1346(a)(2) gives the district courts concurrent

jurisdiction with the Court of Claims over all civil actions or claims seeking damages of

$10,000.00 or less; whereas, 28 U.S.C. § 1491 gives the Court of Claims sole jurisdiction

for claims over $10,000.00. Army and Air Force Exch. Serv. v. Sheehan, 456 U.S. 728,

734 n.5 (1982).

       The district court dismissed the breach of contract claim on its merits, pursuant to

Rule 12(b)(6). However, the district court clearly lacked subject matter jurisdiction over

this claim because Burg sought damages in excess of $75,000.00. Therefore, the claim

fell within the sole jurisdiction of the Court of Claims, and should have been dismissed

pursuant to Rule 12(h)(3). Nevertheless, the court was clearly correct in dismissing the

contract claim and we will affirm that dismissal. See Johnson v. Orr, 776 F.2d 75, 83 n. 7

(3d Cir. 1985) (“an appellate court may affirm a result reached by the district court on

reasons that differ so long as the record supports the judgment”).

                                            IV

       The district court dismissed Burg’s Family Medical Leave Act (“FMLA”) claim
for lack of subject matter jurisdiction. As a federal employee, Title II of the FMLA

governs Burg’s claim. 5 U.S.C. § 6381 et seq.4 Although Title I of the FMLA expressly

provides a private right of action, 29 U.S.C. § 2617(a)(2), Title II does not. “[T]he

absence of an express waiver of the government’s sovereign immunity in Title II of the

FMLA bars private suits for violations of its provisions.” Russell v. United States Dept.

of the Army, 191 F. 3d 1016, 1019 (9th Cir. 1999); see also Mann v. Haigh, 120 F.3d 34,

37 (4th Cir. 1997). Accordingly, we will affirm the district court’s dismissal of Burg’s

FMLA claim.

                                                    V

       The district court also dismissed Burg’s claims of intentional infliction of

emotional distress and negligent infliction of emotional distress for lack of subject matter

jurisdiction. The Federal Employees Compensation Act (“FECA”) provides federal

employees with a comprehensive remedy for injuries “sustained while in the performance

of [their] duty.” 5 U.S.C. § 8102(a). FECA is the exclusive remedy for federal

employees seeking compensation for covered injuries.5 5 U.S.C. § 8116(c). “[I]f a claim

is covered under FECA, then the federal courts have no subject matter jurisdiction to

entertain the action, since the United States has not otherwise waived its sovereign

immunity to suit.” Heilman v. United States, 731 F.2d 1104, 1109 (3d Cir. 1984). As

long as “there is a ‘substantial question’ regarding FECA coverage, the federal courts will

       4
         Title I governs leave for private employees and federal employees not covered by Title
II. 29 U.S.C. § 2601 et seq.
       5
           There is an exception to this subsection, but it is inapplicable to the present case.
not entertain a claim.” Id. at 1110. “A ‘substantial question’ exists unless it is certain

that the Secretary would find no coverage.” Id. The decision of the Secretary of Labor

on a FECA claim “is final, and review of any kind by a court is absolutely barred.” Id. at

1109 (citing 5 U.S.C. § 8128(b)(2)).

       Because Burg had filed a FECA claim that was eventually denied on its merits by

the Employees Compensation Appeals Board, the district court held that it did not have

jurisdiction to review the Secretary’s decision that FECA applied to Burg’s claims of

intentional infliction of emotional distress and negligent infliction of emotional distress.

Although Burg’s complaint stated that he filed a FECA claim that was denied on the

merits, it is unclear from his complaint whether his FECA claim included his claims of

intentional infliction of emotional distress and negligent infliction of emotional distress.

       However, even if Burg never asserted these claims, a substantial question of FECA

coverage would exist as to Burg’s claims of intentional infliction of emotional distress

and negligent infliction of emotional distress. It is clear that the district court lacked

subject matter jurisdiction over Burg’s claims for emotional distress whether or not he

raised those FECA claims in his complaint. If the claims were part of Burg’s FECA

claim, the district court lacked jurisdiction to review the adverse determination of the

Secretary of Labor. If these claims were not part of his FECA claim, the district court

lacked jurisdiction to consider these claims because there exists a substantial question of

FECA coverage. Accordingly, we will affirm the district court’s dismissal of Burg’s

claims of intentional infliction of emotional distress and negligent infliction of emotional
distress.

                                             VI

       Lastly, we address Burg’s claims of harassment, hostile work environment, and

discrimination pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et

seq., and the Rehabilitation Act, 29 U.S.C. § 791. “It is a basic tenet of administrative

law that a plaintiff must exhaust all required administrative remedies before bringing a

claim for judicial relief.” Robinson v. Dalton, 107 F.3d 1018, 1020 (3d Cir. 1997).

Exhaustion of administrative remedies is thus a prerequisite for suit under Title VII. Id.

at 1020-21. It is also a prerequisite for suit under the Rehabilitation Act. Spence v.

Straw, 54 F.3d 196, 201 (3d Cir. 1995). “Failure to exhaust is ‘in the nature of statutes of

limitation’ and ‘do[es] not affect the District Court’s subject matter jurisdiction.’”

Anjelino v. New York Times Co., 200 F.3d 73, 87 (3d Cir. 1999) (quoting Hornsby v.

United States Postal Serv., 787 F.2d 87, 89 (3d Cir. 1986)).

       The district court dismissed Burg’s Title VII and Rehabilitation Act claims for lack

of subject matter jurisdiction because it believed that Burg failed to exhaust his

administrative remedies. Dismissal for lack of subject matter jurisdiction was improper

because exhaustion is not a jurisdictional bar. See Zipes v. Trans World Airlines, 455

U.S. 385, 393 (1982). Inasmuch as the court erred in dismissing for lack of subject matter

jurisdiction, we will vacate the district court’s dismissal of Burg’s Title VII and

Rehabilitation Act claims and remand for further proceedings consistent with this
opinion.6

                                                 VII

       Accordingly, we will affirm the judgment of the district court dismissing Burg’s

claims for breach of contract, violation of the Family Medical Leave Act, intentional

infliction of emotional distress, and negligent infliction of emotional distress. We will

vacate the district court’s dismissal of Burg’s claims under Title VII and the

Rehabilitation Act and remand for further proceedings consistent with this opinion.




       6
         In their motion to dismiss, or in the alternative for summary judgment, defendants
affirmatively raised the defense that Burg failed to exhaust administrative remedies. “Failure to
exhaust administrative remedies is an affirmative defense that must be pled and proven by the
defendant. In appropriate cases, failure to exhaust may be raised as the basis for a motion to
dismiss.” Brown v. Croak, 312 F.3d 109, 111 (3d Cir. 2002) (citation omitted).
        In considering a motion to dismiss, “we are required to accept as true all of the allegations
in the complaint and all reasonable inferences that can be drawn therefrom, and view them in the
light most favorable to the plaintiff.” Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d
Cir. 1997). In his amended complaint, Burg alleged that he filed a discrimination complaint with
the Equal Employment Opportunity Office on February 6, 2004 and that the EEOC dismissed his
complaint on July 12, 2004. On this record, it appears that Burg’s pleading is minimally
sufficient to survive a motion to dismiss. We decline to affirm the dismissal of Burg’s complaint
pursuant to Rule 12(b)(6). The district court did not reach the summary judgment exhaustion
issue, and the parties have not briefed it before us. The district court is, of course, free to address
it on remand.
