Opinion
NO: 3:17CV253-M-P
2021-03-25
ESTATE OF Pamela Kay WILLIAMS, Deceased, BY AND THROUGH Administrator, Cooper WILLIAMS, II. and Next Friend, Jeremy A. William, Plaintiffs v. Megan J. BRENNAN, Postmaster General and Chief Executive Officer of the U.S. Postal Service, and the U.S. Postal Service, Defendants
Philip Halbert Neilson, Philip Halbert Neilson Attorney at Law, Oxford, MS, Tommy Wayne Defer, Law Office of Tommy W. Defer, PLLC, Water Valley, MS, for Plaintiffs. Stuart Davis, Joseph Luke Benedict, U.S. Attorney'S Office, Oxford, MS, for Defendants.
Philip Halbert Neilson, Philip Halbert Neilson Attorney at Law, Oxford, MS, Tommy Wayne Defer, Law Office of Tommy W. Defer, PLLC, Water Valley, MS, for Plaintiffs.
Stuart Davis, Joseph Luke Benedict, U.S. Attorney'S Office, Oxford, MS, for Defendants.
ORDER
Michael P. Mills, UNITED STATES DISTRICT JUDGE
This cause comes before the court on the motion of defendant U.S. Postal Service ("USPS") to dismiss for lack of jurisdiction, pursuant to Fed. R. Civ. P. Rule 12(b)(1). Plaintiff Estate of Pamela Kay Williams has responded in opposition to the motion, and the court, having considered the memoranda and submissions of the parties, concludes that it is well taken and should be granted.
This is a Federal Tort Claims Act ("FTCA") case with a tragic fact pattern and an unusual procedural history. Pamela Kay Williams was a mail carrier for the USPS in Pope, Mississippi. [Docket 1, ¶ 7]. Ms. Williams separated from her husband, Cooper Clemons Williams, on June 12, 2016, and, less than two weeks later, she received an Emergency Protection Order against her husband, based on alleged threats to kill her. [Id. at ¶ 10].
Ms. Williams notified her supervisors at USPS of the protective order and requested that she not be required to deliver mail to her estranged husband's residence. [Id. at ¶ 14.] USPS denied the request. [Id. at ¶15]. Ms. Williams filed for divorce on October 27, 2016, and she told the USPS that if her husband saw her delivering mail to his house then he would kill her. [Id. at ¶17.] Again the USPS denied Ms. Williams’ request for a route reassignment. [Id. at ¶ 18]. While Ms. Williams delivered mail in Cooper Williams’ neighborhood on December 23, 2016, he shot and killed her and then shot and killed himself. [Id. at ¶ 20, 21]. Plaintiff filed the instant action on December 18, 2017, seeking recovery under the FTCA for Ms. Williams’ death. Plaintiff only filed this action after the Office of Workers’ Compensation Programs (OWCP) had initially determined that her claims were not compensable under the Federal Employees Compensation Act ("FECA"). FECA is the federal version of workers’ compensation benefits, and, like its state counterpart, it includes an exclusive remedy provision precluding subsequent lawsuits after an award of benefits. 5 U.S.C. § 8116(c). On March 4, 2019, this court denied defendant's motion to dismiss, in an order in which it expressed considerable sympathy for plaintiff's FTCA claims. [Slip op. at 6]. Soon afterwards, this case took an unusual procedural turn.
In the fall of 2019, the OWCP, citing newly discovered evidence developed during discovery in this case, reconsidered, on its own motion, its previous denial of FECA benefits and initiated a process for the awarding of statutory benefits to plaintiff. The OWCP requested that plaintiff submit any evidence of statutory FECA beneficiaries, along with evidence of any funeral expenses, but plaintiff only submitted information regarding her funeral expenses. [Exhibit 7 at 1]. Based on this submission, the OWCP issued an order on February 6, 2020 awarding plaintiff $800 for funeral expenses, but, citing her failure to submit any evidence of statutory FECA beneficiaries, awarded no additional damages. [Award of compensation at 3]. Plaintiff appealed the OWCP's decision, but the award of damages was affirmed, and she concedes that she has exhausted her administrative remedies in this regard. [Response to motion to dismiss at 3].
Defendant presently seeks dismissal for lack of jurisdiction, on the basis of the award of FECA benefits in this case. It is well settled that FECA is the exclusive remedy against the United States for a federal employee who sustained damages because of work-related injuries within the scope of FECA's coverage. 5 U.S.C. § 8116(c). Indeed, Congress has unambiguously provided that liability under FECA "is exclusive and instead of all other liability ... to the employee [and her family]." 5 U.S.C. § 8116(c). With this authority in mind, this court turns to the motion to dismiss.
In the court's view, the central fact of this motion is that the government has submitted extensive authority indicating that it lacks jurisdiction following the award of $800 in FECA benefits in this case, and plaintiff has offered no authority suggesting otherwise. In its brief, the government writes that:
FECA provides compensation for a federal employee's personal injuries sustained while in the performance of his duty. 5 U.S.C. § 8101, et seq. ; White v. United States , 143 F.3d 232, 234 (5th Cir. 1998) (quoting 5 U.S.C. § 8102(a) ); Benton v. United States , 960 F.2d 19, 22 (5th Cir. 1992) (explaining that FECA applies only to "claims arising out of injuries incurred in the scope of [federal] employment"); Gill v. United States , 641 F.2d 195, 197 (5th Cir. 1981) (noting that FECA establishes a program "similar in structure and policy to state workers’ compensation programs"). The Supreme Court has recognized that FECA's exclusive liability provision was adopted by Congress as a "quid pro quo" compromise commonly found in workers’ compensation legislation where employees are guaranteed the right to receive immediate, fixed benefits, regardless of fault and without the need for litigation but, in return, lose the right to sue the Government. Lockheed Aircraft Corp. v. United States , 460 U.S. 190, 193-194 (1983) (citations omitted). Courts have upheld this well-settled provision that "where other federal policies, express or
implied, preclude what would otherwise be a potential cause of action, no action against the government may stand." In re All Maine Asbestos Litig. , 772 F.2d 1023, 1029 (1st Cir. 1985) (citing Johansen v. United States , 343 U.S. 427, 436-40 (1952) ; Laird v. Nelms , 406 U.S. 797, 802-03, 92 S.Ct. 1899, 32 L.Ed.2d 499 (1972) ).
[Motion to dismiss at 6].
This court's own review of Fifth Circuit authority confirms that FECA's exclusive remedy provision has been consistently applied in this circuit, so much so that few plaintiffs appear to even try to get past it. In the rare occasions where they attempt to do so, the Fifth Circuit has duly applied FECA's exclusive remedy provision. See, e.g. Dallas v. United States , 678 F. App'x 212, 213 (5th Cir. 2017). In a 1993 decision, for example, the Fifth Circuit affirmed a district court's dismissal for lack of jurisdiction following the awarding of FECA benefits, writing that:
To the extent that Carreon seeks to recover damages for his injuries from the accident, his suit is barred by the exclusive remedy provision of the FECA. Carreon requested and received compensation under the FECA for the injury he sustained in the 1981 accident. The FECA provides for the payment of compensation to employees of the United States who, subject to certain exceptions, are disabled in the performance of duty. 28 U.S.C. § 8102. Receiving compensation under FECA limits the employee's right to pursue certain other avenues for obtaining compensation. * * * Accordingly, Carreon is barred from recovering damages for injuries sustained in the accident because he has already been compensated under the FECA.
Carreon v. Siegler , 12 F.3d 1099 (5th Cir. 1993).
Once again, plaintiff offers this court no authority casting doubt upon this very clear precedent, instead emphasizing the very limited nature of the FECA benefits which were awarded in this case. However, she offers this court no authority suggesting that FECA's exclusive remedy provision is any less operative in a case in which the benefits awarded are small. In this court's view, this essentially ends the matter as a question of law, and it could reasonably conclude its order here and simply dismiss this case for lack of jurisdiction.
Nevertheless, given the unique procedural circumstances of this case, this court determined to take a closer look at the OWCP's actions in this case, even if it lacks jurisdiction to do anything about them. This court admits that it initially regarded the OWCP's actions in re-opening this case and awarding minor FECA benefits with considerable skepticism, since this served to deprive it of jurisdiction in a case where it had previously expressed considerable sympathy for plaintiff's claims.
Objectively speaking, however, this court concludes that the OWCP appears to have had good legal reasons for re-opening its consideration of plaintiff's claims and for making the very minor financial award which it did. There is no question regarding the OWCP's legal authority to reconsider its earlier denial of benefits on its own motion, since federal law provides that:
(a) The Secretary of Labor may review an award for or against payment of compensation at any time on his own motion or on application. The Secretary, in accordance with the facts found on review, may--
(1) end, decrease, or increase the compensation previously awarded; or
(2) award compensation previously refused or discontinued.
5 U.S.C.A. § 8128. Defendant argues that this statute clearly authorized the Secretary of Labor, acting through the OWCP, to reconsider its earlier denial of benefits on its own motion, and plaintiff offers no arguments to the contrary.
In the court's view, the government has submitted a reasonable explanation for the OWCP's decision to re-open its consideration of plaintiff's claim for FECA benefits, namely that discovery in this case revealed evidence of an administrative error by the post office which had not been submitted to the agency originally. Specifically, the government writes that:
During discovery in the FTCA lawsuit, plaintiffs produced a recorded telephone conversation on July 19, 2019 and a protective order on July 23, 2019. Although plaintiffs had the recorded telephone conversation and the protective order at the time they filed the FECA claim, this evidence was not submitted to the USPS or OWCP in support of the FECA claim.
The recorded telephone conversation is between a current USPS rural route carrier that worked with Ms. Williams and one of Ms. Williams’ daughters-in-law. The conversation indicates that Ms. Williams allegedly notified her USPS Postmaster of an in-effect protective order against her husband and asked to be re-routed as her present delivery route passed her husband's home. This was the first evidence offered to support plaintiffs’ negligence theory against the USPS. ...
After receiving the recorded telephone conversation and protective order that was in effect at the time of the shooting, counsel for the United States returned to again meet with the retired Postmaster who was responsible for supervising the Pope, Mississippi Post Office and Ms. Williams at the time of the shooting. The retired Postmaster's memory was refreshed, and she then recalled a conversation with Ms. Williams about the protective order. The retired Postmaster explained that she did not take the protective order seriously at the time because she knew that Ms. Williams left, then returned to her husband, six or seven times over the years.
[Motion to dismiss at 3].
Importantly, plaintiff herself concedes that the retired postmaster's deposition testimony was important new evidence of unreasonable conduct by the USPS, writing that:
Depositions of Keicia Bedford, former Postmaster of Panola County, and Lori Adams, postal worker, on October 4, 2019, uncovered new information that supports a claim for gross negligence and constitutional claims and liability by the United States of America, and Keicia Bedford, the direct supervisor of Pamela Kay Williams.
[Response to motion to dismiss at 2]. In the court's view, it is very difficult for plaintiff to argue that the OWCP erred in re-opening the case when she herself admits that crucial evidence regarding the negligence of post office administrators was only developed in the course of this lawsuit and that the OWCP was not able to consider this evidence in its original ruling. It appears to this court that, if the OWCP lacked the discretion to reopen cases based upon newly-discovered information, then plaintiffs could deliberately seek to circumvent FECA's limited benefits scheme by only presenting limited evidence before the OWCP, obtain a ruling that FECA did not apply, and then file a FTCA action in which they presented their full evidence. It is only logical that OWCP would have the right to adjust its rulings to account for newly-discovered evidence, and this court can discern no reason why this should be deemed improper.
In its motion to dismiss, the government argues that this new evidence of negligence by Bedford was crucial, since it altered the OWCP's original conclusion that Williams’ death was the result of a personal dispute and not negligence by her supervisors. Specifically, the government writes that:
Under FECA, an attack or death resulting from strictly personal animus is normally not covered under FECA, even if such attack or death occurs during working hours. However, if there is evidence that a USPS supervisor's decision contributed to the attack or death and that supervisor's decision was made in error or was an abuse of discretion, the consequences of such error would be covered under FECA. Here, USPS’ administrative decision to continue Ms. Williams on her route was in error.
[Motion to dismiss at 3].
This court must reiterate at this juncture that it is not an appellate court over the OWCP, and it would therefore lack jurisdiction to take any corrective action even if it believed that this agency lacked any basis whatsoever for reconsidering its original denial of benefits. As such, this court's observations and beliefs regarding the OWCP's motivations are of little, if any, practical significance. Nevertheless, this court simply notes for the record that, since plaintiff herself agrees that new evidence of negligence was produced in discovery in this case which was not presented to the OWCP originally, this provides a reasonable explanation for that agency to have decided to reconsider its original decision that this case involved a purely personal attack which did not give rise to liability under FECA.
This court now turns to the OWCP's decision to award only $800 in FECA benefits. This court regards this as a shockingly low award, but a closer review of the record and of the law suggests that the ultimate blame in this context lies with Congress, and not the OWCP. Indeed, it appears that plaintiff herself realized early in the OWCP proceedings that significant FECA benefits would not be available, since, as noted previously, she never responded to the agency's request for information regarding the existence of statutory heirs.
In a November 12, 2019 letter, the OWCP specifically asked plaintiff to submit the names of any heirs of Ms. Williams who were entitled to statutory FECA death benefits. Specifically, the OWCP asked plaintiff as follows:
The case file is at present unclear as to whether Ms. Williams had any dependents who would be eligible for survivor benefits under 5 U.S.C. § 1933 and further whether the estate incurred funeral expenses for which benefits would be payable. The estate is further requested to provide any relevant information as to the above within 30 days of the date of this letter.
[Exhibit 7 at 1]. In its order awarding benefits, the OWCP wrote that, in responding to this request for information, plaintiff provided information regarding funeral expenses but submitted no information regarding the existence of any statutorily-defined dependents. Specifically, the OWCP wrote that:
By notice dated November 12, 2019, a preliminary determination was made to the effect that Ms. Williams death was covered under FECA and afforded the Estate 30 days to submit any response and/or evidence. In response, we received a funeral contract dated December 28, 2016 from Wells Funeral Home in Batesville, Mississippi. ... We received no evidence regarding eligible dependents as defined under
5 U.S.C. § 8133, therefore, no benefits are payable under this provision of the Act.
[Award of compensation at 3]. Thus, plaintiff submitted no evidence of dependents eligible for FECA benefits, and OWCP clearly could not award dependent benefits when no attempt was made to prove eligibility for them.
This court cannot be certain regarding the reasons behind plaintiff's failure to submit any information regarding statutory FECA beneficiaries, but it appears that the most likely explanation is that both of Ms. Williams’ sons were over the age of eighteen at the time of her death. As explained by the Department of Labor's website, 5 U.S.C. § 8133 provides for FECA death benefits to the children of the deceased, but those benefits generally only last until the child has reached the age of eighteen:
In response to an e-mail query from this court's staff, counsel for both parties confirmed that both sons were well over the age of 18 at the time of Ms. Williams’ death.
If a child or children are eligible for benefits, the widow or widower is entitled to 45 percent of the pay and each child is entitled to 15 percent. If children are the sole survivors, 40 percent is paid for the first child and 15 percent for each additional child, to be shared equally. ... Awards to children ... terminate at the age of 18, unless the dependent is incapable of self-support, or continues to be a full-time student at an accredited institution, until he or she reaches the age of 23, or has completed four years of education beyond the high school level.
See https://www.dol.gov/agencies/owcp/dfec/regs/compliance/ca-11.
In the court's view, a compensation scheme which generally leaves children over the age of eighteen with no FECA benefits for the death of a parent is a harsh one indeed. That is the scheme enacted by Congress, however, and this fact greatly undercuts plaintiff's argument that the $800 award in this case represents an injustice which this court should seek to rectify by recognizing some sort of equitable cause of action. Once again, plaintiff offers this court no authority whatsoever suggesting that any such cause of action has ever been held to exist, and the government has overwhelming authority suggesting that it lacks jurisdiction to even consider creating one.
Legal precedent aside, the fact that the award in this case appears to be the one contemplated by Congress suggests that this case falls under one of the remnants of federal sovereign immunity, which can be quite harsh in their application. Indeed, this court notes that, for most of this nation's history, there was no tort recovery available against the U.S. Government at all. Congress partially rectified this injustice as to federal workers through the enactment of FECA in 1916, and it did so in other tort contexts in the FTCA in 1946. As can be seen from the language of 5 U.S.C. § 8133, however, the waiver of federal sovereign immunity in FECA is a limited one, and, as this case demonstrates, this fact can give rise to serious injustices. This court believes that Congress would be well advised to consider addressing FECA's rather arbitrary compensation scheme for children, which seems to assume that a child over the age of 18 has suffered no compensable loss for the death of a parent. This court has no authority to rectify this situation itself, however.
In her brief, plaintiff does not point out any actual errors made by the OWCP in awarding FECA benefits, and it is difficult to see how she could. Obviously, plaintiff does not dispute that the decision to keep Ms. Williams on a postal route serving her ex-husband was negligent and unreasonable, to the contrary, she makes the same argument in this case. The Award of Compensation notes that the USPS eventually agreed that it had acted negligently, leading to the re-opening of the case:
By letter dated September 30, 2019, the U.S. Postal Service asked the FECA claim be reopened on the basis they acted negligently, contributing to the death of Ms. Williams.
[Award of compensation at 2]. In its Award of Compensation, the OWCP noted that, while work assignments are normally considered discretionary decisions not covered by FECA, an exception exists when "the supervisor's assignment of work was unreasonable." [Award of compensation at 1, citing Richard J. Dube , 42 ECAB 915, 920 (1991).]
In this case, plaintiff herself has argued (and this court has agreed) that the decision to keep Ms. Williams on the postal route serving her ex-husband was unreasonable and that it should not be considered a discretionary function under the FTCA. Thus, the factual findings which led the OWCP to award FECA benefits are essentially identical to those which plaintiff has advanced in this case and with which this court has agreed. Obviously, this makes it next to impossible for plaintiff to dispute these factual findings, and she has not even attempted to do so. Plaintiff likewise offers no argument that the OWCP failed to correctly apply FECA law in this case, and, at any rate, the proper time and place to make such arguments would have been in an appeal of the OWCP's ruling, not before this court. Once again, plaintiff admits that she has exhausted her administrative remedies in this regard.
This court notes parenthetically that it previously agreed with plaintiff's evaluation of the facts of this case, when it appeared that it had jurisdiction over it. Indeed, in its March 4, 2019 order denying the government's motion to dismiss plaintiff's FTCA claim, this court wrote that:
It is not at all clear to this court what public policy consideration required that Pamela, and Pamela alone, be the employee who had to drive each day by the house of the man who had threatened to kill her, and defendant's arguments shed no light on this issue. In the absence of any stated justification, it seems likely that the decision not to adjust Pamela's route was a question of simple neglect rather than of any malice on the part of USPS managers. If simple inertia and inaction were, in fact, the reasons for this decision, then this would not strike this court as implicating matters of public policy. It is the job of any supervisor to determine which of his employees is best suited to perform a particular task, and supervisors are paid by the taxpayers to do this job. Thus, even assuming that modifying plaintiff's route would have required some degree of time and effort on the part of her supervisor[s], this court can discern no public policy implications arising from this fact. Moreover, if this court were to assume that Pamela's supervisors simply underestimated the threat posed by her ex-husband (despite her direct warnings), then that likewise would not appear to constitute a "public policy" decision, but rather a question of simple negligence.
[op. at 476–47].
It should thus be apparent that this court was quite sympathetic to plaintiff's claims in its previous order, and it remains so today. At the same time, this court can see very little daylight between its own evaluation of the facts of this case, stated above, and those which the OWCP eventually reached in its order awarding benefits. It appears to this court that the fundamental unfairness in this case lies with Congress’ decision to recognize very limited benefits to adult children of deceased federal workers, but it has no authority or even jurisdiction to address this seeming blind spot in FECA's compensation scheme. Moreover, this court reiterates that plaintiff did not even respond to the OWCP's request for proof regarding FECA beneficiaries, and she can not reasonably object to the outcome of a benefits process in which she largely failed to participate.
This court notes that plaintiff has previously argued that it should recognize a Bivens cause of action against her supervisor Bedford, and it will briefly reiterate its position on this issue. In a March 4, 2019 order denying defendant's motion to dismiss, this court indicated that it did not view this as a Bivens case, [op. at 474] and it would be anomalous if it were to change this decision based on the amount of FECA benefits awarded in this case. In a June 11, 2020 order, this court discussed its views in this context in greater detail, noting that Bivens actions have been recognized in only three specific contexts and that no new additional contexts have been recognized by the U.S. Supreme Court for over three decades. Specifically, this court wrote that:
In seeking to assert a Bivens action against Bedford, plaintiff is flying into strong legal headwinds on two different fronts. First, plaintiff would presumably need to allege a violation of the Fourteenth Amendment's substantive due process clause in any claim against Bedford, and the U.S. Supreme Court has been exceedingly reluctant to recognize civil claims in this context. See, e.g. Collins v. City of Harker Heights, Tex. , 503 U.S. 115, 125, 112 S. Ct. 1061, 1068, 117 L. Ed. 2d 261 (1992) ("As a general matter, the Court has always been reluctant to expand the concept of substantive due process because guideposts for responsible decisionmaking in this unchartered area are scarce and open-ended.")
Second, even assuming plaintiff were deemed to have asserted a valid constitutional claim against Bedford, her chosen procedural vehicle for asserting such a claim is in rather strong disfavor at the U.S. Supreme Court. Indeed, the Supreme Court wrote in a 2017 decision that "[g]iven the notable change in the Court's approach to recognizing implied causes of action [it] has made clear that expanding the Bivens remedy is now a ‘disfavored’ judicial activity." Ziglar v. Abbasi , [––– U.S. ––––] 137 S. Ct. 1843, 1857, 198 L. Ed. 2d 290 (2017). The Supreme Court has implied a damages remedy under the U.S. Constitution in only three contexts: (1) Fourth Amendment unreasonable search and seizure in Bivens [v. Six Unknown Named Agents of Federal Bureau of Narcotics] , 403 U.S. [388] 396-97 [91 S.Ct. 1999, 29 L.Ed.2d 619 (1971)] ; (2) Fifth Amendment gender discrimination in Davis v. Passman , 442 U.S. 228, 248-49 [99 S.Ct. 2264, 60 L.Ed.2d 846] (1979) ; and (3) Eighth Amendment deliberate indifference to serious medical needs in Carlson v. Green , 446 U.S. 14, 19 [100 S.Ct. 1468, 64 L.Ed.2d 15] (1980). "These three cases – Bivens , Davis , and Carlson – represent the only instances in which the Court has approved of an implied damages remedy under the Constitution itself." Ziglar , 137 S. Ct. at 1855.
This case does not bear any factual resemblance to Bivens , Davis , or Carlson , and it thus seems clear that plaintiff is seeking to amend her complaint to assert a disfavored substantive due process claim in the context of a disfavored attempt to extend the Bivens procedural device. This court directs that, if plaintiff chooses to refile her motion to amend, she provide arguments and authority indicating why, in spite of this fact, her
claim against Bedford has potential merit.
[June 11, 2020 order at 2-3].
In light of the foregoing authority, it is something of an understatement to say that Bivens actions represent a disfavored cause of action in the eyes of the U.S. Supreme Court; it seems more accurate to say that the scope of the remedy has been essentially frozen in place for over three decades. As quoted above, the U.S. Supreme Court has been similarly reluctant to recognize substantive due process claims in additional civil contexts, and it strikes this court that the chances that the Supreme Court would agree with a decision to recognize a Bivens -based substantive due process claim is vanishingly small.
In responding to the motion to dismiss, plaintiff has not renewed her request to assert a Bivens claim, and she has thus not responded to this court's directive that she explain why this case should represent the first context in which a new Bivens cause of action has been recognized in over thirty years. This court therefore can only assume that she has no compelling arguments to offer in this context, even assuming that she has not abandoned her request to assert a Bivens claim altogether. Recognizing a new Bivens cause of action would be a truly extraordinary remedy, and plaintiff has not even attempted to do the heavy lifting needed to persuade this court that such is advisable. This failure to offer any sort of detailed rationale for recognizing a new Bivens cause of action is, standing alone, sufficient to deny plaintiff's request.
In the court's view, the fact that the award in this case arises from the application of FECA statutes which have been in effect since 1916 makes it seem even more unlikely that a new Bivens cause of action would be recognized in this context. Indeed, it can be inferred that, since FECA was first enacted, there have been many adult children of federal employees who have been denied meaningful FECA benefits following the death of their parent, and plaintiff has nevertheless failed to offer a single decision which authorizes this court to recognize a Bivens , constitutional, or any other, cause of action to rectify this unfairness.
Plaintiff cites no authority suggesting that "constitutional" claims are somehow excluded from § 8116(c) ’s exclusion of "all other liability." Moreover, unlike with tort claims authorized by the FTCA, "[i]t is well-settled that the United States has not waived its sovereign immunity as to constitutional tort claims for money damages." Spinale v. U.S. Dep't of Agric. , 621 F. Supp. 2d 112, 120 (S.D.N.Y. 2009). In Bivens , the Supreme Court inferred the existence of constitutional claims against federal employees , but, as discussed above, it has only recognized such claims in very limited contexts, none of which applies here.
In enacting FECA, Congress replaced the previous scheme of complete sovereign immunity with a benefits scheme which seems quite stingy in many respects, but this court lacks any authority to expand upon those benefits. This court can see very little, if any, ambiguity in FECA's provision that recovery under the Act "is exclusive and instead of all other liability," see 5 U.S.C. § 8116(c), and it is undisputed that plaintiff obtained some FECA recovery in this case, small though it may have been. This court is one of limited jurisdiction, and it only has authority to do justice in cases over which it has jurisdiction. Plaintiff offers this court no authority suggesting that it has such jurisdiction, and the motion to dismiss will therefore, reluctantly, be granted.
It is therefore ordered that defendant's motion to dismiss is GRANTED . A separate judgment will be entered this date, pursuant to Fed. R. Civ. P. 58.