                     IN THE UNITED STATES COURT OF APPEALS

                                 FOR THE FIFTH CIRCUIT



                                        No. 02-10892
                                      Summary Calendar



       STANLEY M. SCHWARTZ,

                                                           Plaintiff-Appellant,

                                             versus

       OCCUPATIONAL SAFETY AND HEALTH
       REVIEW COMMISSION; UNITED STATES
       DEPARTMENT OF LABOR; UNITED STATES
       OF AMERICA,

                                                           Defendants-Appellees.


                   Appeal from the United States District Court for
                           the Northern District of Texas
                            (USDC No. 3:01-CV-479-M)
           _______________________________________________________
                                 January 14, 2003


Before REAVLEY, SMITH and STEWART , Circuit Judges.

PER CURIAM:*

       Stanley M. Schwartz appeals the district court’s dismissal without prejudice


       *
        Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR. R.
47.5.4.
of his Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 2671 et seq., suit against the

United States Department of Labor (“DOL”), the Occupational Safety and Health

Review Commission (“the Commission”), and the United States. Schwartz,

formerly employed by the Commission as an Administrative Law Judge (“ALJ”),

claims that the intentional conduct of employees of the DOL and the Commission

during the spring and summer of 1999 caused him severe emotional distress. The

district court dismissed Schwartz’s suit as preempted by the Federal Employees’

Compensation Act (“FECA”), 5 U.S.C. § 8101 et seq. We affirm for the following

reasons:

1.    The FECA provides an exclusive remedy for a federal employee’s personal

      injuries “sustained while in the performance of his duty.” 5 U.S.C. §

      8102(a); White v. United States, 143 F.3d 232, 234 (5th Cir. 1998). Federal

      district courts only have subject matter jurisdiction over disputes between the

      United States and one of its employees regarding the personal injury of the

      employee if it is certain that the Secretary of Labor would find no FECA

      coverage. See White, 143 F.3d at 234. If there is a substantial question

      regarding whether the injury is compensable under FECA, the suit must be

      stayed or dismissed to allow the employee to pursue his claims under the

      FECA. Id.

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2.   When an employee’s emotional disability results from his emotional reaction

     to his regularly or specially assigned work duties, or to a requirement

     imposed by the employment, the disability comes within the coverage of the

     FECA. Lillian Cutler, 28 Empl. Comp. App. Bd. 125, 129-30 (1976),

     available at 1976 WL 5251. An employee’s emotional reaction to

     administrative actions or personnel matters taken by the employing

     establishment is not covered under the Act, as such matters pertain to

     procedures and requirements of the employer and do not bear a direct relation

     to the work required of the employee. Sandra Davis, 50 Empl. Comp. App.

     Bd. 450, 459 (1999), available at 1999 WL 1483986, citing Richard J. Dube,

     42 Empl. Comp. App. Bd. 916 (1991). However, if the factual circumstances

     surrounding the administrative or personnel action established error or abuse

     by the employing establishment, the disability is compensable under the

     FECA. Id.

3.   Schwartz claims his emotional distress resulted from the manner in which he

     was assigned cases. As an ALJ for the Commission, it was his duty to hear

     and adjudicate disputes between the DOL and OSHA violators assigned to

     his docket. There is accordingly a substantial question whether Schwartz’s

     emotional reaction to the manner in which he was assigned cases occurred in

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       the performance of his duties as an ALJ.

4.     Schwartz further claims his emotional distress resulted from the

       Commission’s treatment of him with respect to reimbursement for travel and

       relocation expenses and the charging of annual leave. Schwartz’s complaint

       alleged he was treated differently from other similarly situated employees.

       Although these are personnel matters because they do not bear a direct

       relation to the work of an ALJ, see Davis, 1999 WL 1483986, at *8, the

       factual allegations of Schwartz’s complaint and the record created during the

       limited discovery allowed by the district court suggest error or abuse by the

       Commission. Thus, a substantial question exists regarding whether

       Schwartz’s injuries are compensable under the FECA.

5.     Schwartz also claims his emotional distress resulted from an investigation of

       his activities as an ALJ prompted by allegedly improper contact between the

       DOL and the Commission.1 Investigations that do not involve an employee’s

       regularly or specially assigned duties are administrative matters, and do not

       constitute compensable employment factors absent a showing of error or


       1
         According to Schwartz, counsel for the DOL’s OSHA litigation office in Dallas
circulated an e-mail to his co-workers requesting that they inform him when Schwartz required
attorneys to read settlements into the record. The e-mail also claimed Schwartz was “creating
some very unusual orders [that] need to be considered carefully.” R. 11-12. Schwartz contends
this e-mail was prompted by contact between Commission management and DOL employees.

                                               4
     abuse. Otis R. Myles, No. 02-307 (E.C.A.B. 2002), available at 2002 WL

     1999389, at *3. On the facts alleged by Schwartz, the DOL and the

     Commission sought to investigate his conduct as an ALJ, and thus the

     investigation involved Schwartz’s regularly assigned duties. Additionally,

     Schwartz alleges the contact between the DOL and the Commission was

     improper, which raises a substantial question regarding whether there was

     error or abuse. Given these circumstances, we cannot say it is certain that

     Schwartz’s injuries are not compensable under the FECA.

6.   Actions which the employee characterizes as harassment or retaliation may

     constitute factors of employment giving rise to coverage under the FECA if

     the claim of harassment or retaliation is supported by probative and reliable

     evidence. Davis, 1999 WL 1483986, at *5. To the extent that Schwartz

     characterizes the actions of the Commission as retaliation for promotion of a

     plan to reopen the Commission’s Dallas office, the actions may give rise to

     FECA liability.

7.   Lastly, Deborah B. Sanford, Director of Federal Employees’ Compensation,

     Office of Workers’ Compensation Programs for the DOL, rendered an

     opinion in this litigation concluding that Schwartz’s injuries may be covered

     by the FECA. R. 61-66. After a thorough review of Employee

                                        5
    Compensation Appeals Board decisions and the complaint, Sanford

    concluded that Schwartz’s injuries may be compensable under FECA. We

    find her opinion persuasive. There is a substantial question regarding whether

    Schwartz’s claim of intentional infliction of emotional distress is covered by

    FECA.

AFFIRMED.




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