UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON

0 0 MICHAEL C. ORMSBY United States Attorney FRANK A. WILSON Assistant United States Attorney Post Office Box Spokane, WA 0- Telephone: (0) - GREGORY CHALLINOR and SHANDA JENNINGS, as Personal Representatives of the ESTATE OF TYLER CHALLINOR, deceased, vs. UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON Plaintiffs, THE UNITED STATES OF AMERICA, Defendant. I. INTRODUCTION NO. CV--0-EFS UNITED STATES OF AMERICA S MEMORANDUM IN SUPPORT OF MOTION TO DISMISS Tyler S. Challinor was a 0 year-old Job Corps student enrolled in the apprenticeship training program at the Fort Simcoe Job Corps Center in White Swan, Washington. Tyler Challinor was assigned to work as an apprentice at Yakama Forest Products, a sawmill operation owned by the Yakama Indian Nation located in White Swan, Washington. On January, 00, Tyler Challinor was working as a heavy machinery mechanic apprentice at the Yakama Forest Products Work-Based Learning site when a piece of machinery fell on him while repairing the forks of a front end loader. He died as a result of his injuries while being transported to a hospital by ambulance. Defendant United States brings this motion to dismiss pursuant to Federal Rule of Civil Procedure (b)() - Lack of Subject Matter Jurisdiction, as this Court does not have jurisdiction over the claims brought against the United States. MEMORANDUM IN SUPPORT OF MOTION TO DISMISS -

0 0 II. DISMISSAL STANDARD A court addressing a motion to dismiss for lack of subject matter jurisdiction pursuant to Rule (b)() is not restricted to the face of the pleadings. Robinson v. United States, F.d, (th Cir. 00); Land v. Dollar, 0 U.S., n., S.Ct. 00 (), overruled on other grounds, Larson v. Domestic & Foreign Commerce Corp., U.S., S.Ct. (). Rather, the court may consider declarations or other evidence to resolve factual questions bearing on the jurisdictional issue without converting the motion into one for summary judgment. Id. "Once challenged, the party asserting subject matter jurisdiction has the burden of proving its existence." Robinson, F.d at, citing Rattlesnake Coal v. E.P.A., 0 F.d 0, 0 n. (th Cir. 00); Thornhill Publishing Co., Inc. v. General Telephone and Elec. Corp., F.d 0, (th Cir. ) (there is no presumption of truthfulness of the plaintiff's allegations and the burden is on plaintiff to establish the court's jurisdiction). For the reasons set forth below Plaintiffs cannot meet that burden and the complaint should be dismissed for lack of subject matter jurisdiction. The Federal Employees Compensation Act (FECA) is the exclusive remedy for work related injuries. III. LEGAL ANALYSIS Federal courts are courts of limited jurisdiction. Mendoza v. Zirkle Fruit Co., 0 F.d, (th Cir. 00). As such, federal court are empowered to hear only those cases that are within the judicial power of the United States as defined by the U.S. Constitution, and those cases that have been authorized by Congress. Estate of Branson v. Commissioner of Internal Revenue Service, F.d 0, 0 (th Cir. 00). Because of these limitations, the party initiating a suit in federal court must affirmatively allege facts in the complaint to show that the federal court has jurisdiction to hear the case. Fifty Assocs. v. Prudential Ins. Co., F.d, (th Cir. 0). The presumption is that a federal court MEMORANDUM IN SUPPORT OF MOTION TO DISMISS -

0 0 does not have jurisdiction in a particular case unless it is affirmatively demonstrated in the complaint. Id. at 0. Federal courts generally lack the authority to consider and grant relief against the United States, unless Congress explicitly waives sovereign immunity. It is well settled that "[t]he United States, as sovereign, is immune from suit save as it consents to be sued." United States v. Mitchell, U.S., (0), quoting, United States v. Sherwood, U.S., (). When the United States has consented to suit in certain matters, the court's jurisdiction to entertain the suit is defined by the terms of the United States' consent. Ghandi v. Police Dept. of City of Detroit, F.d, (th Cir. ), quoting, United State v. Sherwood, U.S., (). Congress provided just such a limited waiver of sovereign immunity under the Federal Tort Claims Act (FTCA) for any claim founded on negligence of an employee of the United States. U.S.C. and ; United States v. Orleans, U.S. 0, (). However, the FTCA is only a limited waiver of sovereign immunity. "A waiver of sovereign immunity by the United States must be strictly construed and may not be extended by implication." Comes Flying v. United States, 0 F. Supp., 0 (D. S.D. ), citing, United States v. Nordic Village, Inc., 0 U.S. 0, S.Ct. 0 (). "The requirement that jurisdiction be established as a threshold matter springs from the nature and limits of the judicial power of the United States and is inflexible and without exception." Steel Co. v. Citizens for a Better Environment, U.S., -, S.Ct. 00 () (internal quotations omitted), citing Mansfield, C. & L.M.R. Co. v. Swan, U.S.,, S.Ct. 0 (). "Without jurisdiction the court cannot proceed at all in any cause. Jurisdiction is power to declare the law, and when it ceases to exist, the only function remaining to the court is that of announcing the fact and dismissing the cause." Id. at. As described below, the Court will see that the waiver of sovereign immunity as to the United States is limited and that the United States MEMORANDUM IN SUPPORT OF MOTION TO DISMISS -

0 0 has not waived sovereign immunity and the Court does not have subject matter jurisdiction over these claims. A. Relevant Facts By letter dated February, 0, Bryan G. Smith, attorney for Gregory Challinor and Shanda Jennings, parents of Tyler Challinor, presented an administrative claim on Standard Form, "Claim for Damage, Injury, or Death," dated February, 0, under the Federal Tort Claims Act (FTCA), U.S.C. et seq., to the U.S. Department of Interior, Bureau of Reclamation (Fort Simcoe Job Corps Center), requesting $,000,000.00 in damages for the wrongful death of Tyler Challinor for an accident that occurred on January, 00, while Tyler Challinor was working as a heavy machinery mechanic apprentice at the Yakama Forest Products work-based learning site. (Exhibit ). By letter dated March, 0, the FTCA claim was forwarded from the U.S. Department of Interior to the U.S. Department of Labor for determination. An identical SF- dated March, 0, was presented by the Estate to the U.S. Department of Labor. (Exhibit ). By letter dated, October, 0, the Estate's FTCA claims were denied by the DOL on the basis that a review of the evidence revealed no liability under the FTCA, as the death occurred in the performance of federal employee s duty so as to bring the claim within the coverage of the FECA. If an injury or death is covered under FECA, FECA is the exclusive remedy against the United States and recovery is precluded under the FTCA. (Exhibit ). The Department of Labor's Office of the Job Corps issued and paid a death gratuity payment in the amount of $0,000.00 to the Administrators of the Estate of Tyler Challinor in accordance with Section of Public Law 0-0, the Omnibus Consolidated Appropriations Act of (September 0, ). Section of the Act provides that a death gratuity is payable to the personal representative of any Federal employee who dies from an injury that was MEMORANDUM IN SUPPORT OF MOTION TO DISMISS -

0 0 sustained, on or After August, 0, in the line of duty. The Office of the Job Corps determined that the death of Tyler Challinor, a Job Corps student, met the requirement of Section of the Act since Job Corps students are considered civilian employees of a federal agency for purposes of death gratuity benefit laws. (Exhibit ). By Claim for Compensation by Parents, Brothers, Sisters, Grandparents or Grandchildren dated June, 00, Gregory Challinor, Tyler Challinor's father sought burial expenses in the amount of $,.0. (Exhibit ). By letter dated March, 0, the Office of Workers' Compensation Programs (OWCP) stated that Tyler Challinor's death apparently occurred in the performance of duty within the meaning of FECA and that he had no dependents that would be eligible for survivor benefits under the FECA. Citing U.S.C. 0 and (a), OWCP explained that Job Corps students are considered employees for purposes of FECA. OWCP advised that since a death gratuity had been paid at the full amount of $0,000.00, no additional amounts would be payable, including the $,.0 for burial expenses. OWCP requested any additional information on Tyler Challinor s death as well as any eligible dependents be submitted within 0 days. (Exhibit ). By decision dated July, 0, OWCP made a determination that Tyler Challinor's death is covered under FECA since he was fatally injured while in the performance of duty on January, 00, within the meaning of FECA. (Exhibit ). B. The Federal Employees Compensation Act FECA, the Federal Employees' Compensation Act, is the workers' compensation program for federal employees. Under FECA, "[t]he 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." U.S.C. 0(a). The program is administered by the Secretary of Labor, who may prescribe rules and regulations necessary for its administration and enforcement. MEMORANDUM IN SUPPORT OF MOTION TO DISMISS -

0 0 U.S.C. &. This authority is delegated to the Director of the Office of Workers' Compensation Programs (OWCP). See U.S.C. (); 0 C.F.R. 0.. Congress enacted FECA in order to provide immediate compensation to injured federal workers regardless of fault. Moe v. United States, F.d 0, 0 (th Cir. 00). In exchange, the federal employee loses the right to sue the United States. Id. Remedies under FECA are exclusive of all other remedies against the United States for a job-related death or injury. Figueroa v. United States, F.d 0, 0 (th Cir. ); Lance v. United States, 0 F.d 0, 0 (th Cir. ). If compensation is available under FECA, "all other statutory remedies arising under the same facts are preempted." Moe, F.d at 0. FECA's exclusive remedy for injured federal workers provides as follows: The liability of the United States or an instrumentality thereof under this subsection or any extension thereof with respect to the injury or death of an employee is exclusive and instead of all other liability of the United States or the instrumentality to the employee, his legal representative, spouse, dependents, next of kin, and any other person otherwise entitled to recover damages from the United States or the instrumentality because of the injury or death in a direct judicial proceeding, in a civil action, or in admiralty, or by an administrative or judicial proceeding under a workman's compensation statute or under a Federal tort liability statute.... U.S.C. (c). C. When FECA Applies, a District Court Lacks Jurisdiction Over an FTCA Claim Arising From the Same Facts The exclusive liability provision of the FECA was designed to protect the United States from suits such as those under the FTCA. Lockheed Aircraft Corp. v. United States, 0 U.S. 0, - (). Under FECA, once the Secretary of A dissatisfied claimant may obtain further administrative review of OWCP's claims determination by requesting reconsideration before the OWCP district office, a hearing before an OWCP hearing representative, or review by the Employees' Compensation Appeals Board (ECAB), whose decisions are final. U.S.C. (b),, ; 0 C.F.R. 0.00-. & Part 0. MEMORANDUM IN SUPPORT OF MOTION TO DISMISS -

0 0 Labor, or his designee, allows or denies payment of claim, that decision is "final and conclusive for all purposes and with respect to all questions of law and fact." U.S.C. (b)(). That decision is "not subject to review by another official of the United States or by a court by mandamus or otherwise." U.S.C. (b)(). Moreover, the Supreme Court has stated as follows: But FECA contains 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. Southwest Marine, Inc. v. Gizoni, 0 U.S., 0 ()(citations omitted). If a plaintiff sues the United States under the FTCA but has a colorable claim under FECA, a "federal court should dismiss any action arising under the same facts for lack of subject matter jurisdiction." Moe, F.d at 0; U.S.C. (c); Woodruff v. U.S. Dept of Labor, Office of Workers, F.d (th Cir. ) (Since Woodruff had been awarded FECA benefits, he was not entitled to pursue his FTCA claim); See also Spinelli v. Goss, F.d, 0- (D.C. Cir. 00). In the instant matter, Plaintiffs' FTCA claims should be dismissed for a lack of subject matter jurisdiction. Tyler Challinor, a Job Corps student, was fatally injured in the performance of duty within the meaning of the FECA. Pursuant to FECA, Job Corps students are considered civilian employees of the United States within the meaning of the term as defined in U.S.C. 0. See U.S.C. 0;. While away from the Center, a Job Corps student (enrollee) has the protection of the FECA if participating in an activity authorized by or under the direction and supervision of a Center Official. See FECA Procedure Manual -00()(c)(). As set forth in OWCP's July, 0 decision, Mr. Challinor died from injuries suffered while participating in authorized work-based learning activities while enrolled in the Job Corps. (Exhibit ). As such, his death occurred in the performance of duty under FECA. Id. Then OWCP made the determination that MEMORANDUM IN SUPPORT OF MOTION TO DISMISS -

0 0 Tyler Challinor's death was covered under FECA as he was fatally injured while in the performance of duty on January, 00, within the meaning of FECA. (Exhibit ). Once the OWCP determines that disability or death resulted from a work-related injury as defined by FECA, the employee is limited to the remedies authorized by FECA. Moe, F.d at 0-0; See also Hefner v. Chao, 00 WL (S.D. Cal.) slip copy, pages - (Civilian temporary federal employee pipefitter s injuries which were cognizable under FECA bars his FTCA action as a matter of law); Wilson-Sauls v. Curtis, et al, 00 WL (D. Or.) slip copy, page ( Courts have no jurisdiction over FTCA claims where the Secretary [of Labor] determines that FECA applies. ). Accordingly, since the Secretary of Labor determined that the Challinor's death was covered under FECA, (Declaration of Antonio Rios, Exhibit ), FECA is the exclusive remedy against the United States and Plaintiffs are barred from seeking tort damages under the FTCA. jurisdiction in this matter and the case must be dismissed. IV. CONCLUSION Therefore, the district court lacks For the foregoing reasons, the United States of America respectfully requests the Motion to Dismiss be granted and the complaint dismissed with prejudice. DATED this th day of December, 0. MICHAEL C. ORMSBY United States Attorney s/frank A. Wilson FRANK A. WILSON Assistant United States Attorney Attorney for Defendant United States Attorney s Office Post Office Box Spokane, Washington 0- (0) -(Tel) (0) -(Fax) USA-WAE-FWilsonECF@usdoj.gov This is true even if a particular type of damage or consequence the claimant suffered is not compensable under FECA. U.S.C. (c). MEMORANDUM IN SUPPORT OF MOTION TO DISMISS -

0 0 CERTIFICATE OF SERVICE I hereby certify that on December, 0, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following: Bryan G. Smith: Megan E. Hale: bsmith@tamakilaw.com mhale@tamakilaw.com and I hereby certify that I have mailed by United States Postal Service the document to the following non-cm/ecf participants: n/a s/frank A. Wilson FRANK A. WILSON Assistant United States Attorney Attorney for Defendant United States Attorney s Office Post Office Box Spokane, Washington 0- (0) -(Tel) (0) -(Fax) USA-WAE-FWilsonECF@usdoj.gov MEMORANDUM IN SUPPORT OF MOTION TO DISMISS -