FILED U.S. COURT OF APPEALS ELEVENTH CIRCUIT JUNE 29 2000 THOMAS K. KAHN CLERK

* Honorable Arthur L. Alarcón, U.S. Circuit Judge for the Ninth Circuit, sitting by designation. [PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

_________________________ No. 99-14328

_________________________ D.C. Docket No. 97-02493-CV-BU-M OTTIE R. NOBLE, Plaintiff-Appellant,

versus UNITED STATES OF AMERICA, Defendant-Appellee.

________________________ Appeal from the United States District Court for the for the Northern District of Alabama

________________________ (June 29, 2000) Before BIRCH and BARKETT and ALARCÓN * , Circuit Judges. ALARCÓN, Circuit Judge:2 Ottie Noble (“Noble”) appeals from anorder dismissing his complaint and entering summary judgment in favor of th e United States in an action brought under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671 et seq. , (“FTCA”). We have jurisdiction over this appeal under 28 U.S.C . § 1291. Because there was a substantial question as to whether the Federal Em ployees’ Compensation Act, 5 U.S.C. § 8101 et seq. , (“FECA”) covered the alleged injuryand because the Secretary of Labor (“Secretary”) determined that the alleged losses fell withinthe coverage of FECA but were uncompensable th ereunder, we affirm.
I Noble was a painting supervisor with the Federal Bureau of Prisons. He was injured on the job during a mandatory sel f-defense training session at the Federal Correctional Institution in Talladega, Al abama, on January 27, 1994. Dr. James White, a neurosurgeon, examined Noble on February 14, 1994. Dr. White noted in his examination report that Noble had expe rienced neck and arm pain subsequent to his injury. Noble continued to experience neck and arm pain in the ensuing months. Noble saw Dr. White again on May 9, 1994. On that date, Noble discontinued reporting for work.3 On May 18, 1994, Noble filed with th e Department of Labor’s Office of Workers’ Compensation Programs (“OWCP”) a claim for continuing compensation on account of disability. On Dr. White’s recommendation, Nobl e underwent a cervical myelogram test on May 18, 1994. On June 6, 1994, Dr . White recommended that Noble undergo surgery. Dr. White subsequently subm itted a report to the OWCP in which he recommended surgery to treat Noble’s condition, which he diagnosed as “cervical strain” and “cervical HNP.” The OWCP notified Noble on June 21, 1994, that it had scheduled an appointment for him to be examined by Dr. Matthew Berchuck, an orthopaedic surgeon, on July 12, 1994, in order to obtain a second opinion regarding Noble’s request for OWCP authorization of FECA funding for the surgery. Upon examining Noble and his medical records, which included the results of the May 18, 1994, cervical myelogram test, Dr. Berchuck conc luded that additional testing was necessary in order to determine whether surgery was warranted. In a letter to Noble date d August 15, 1994, the OWCP informed him that it had determined him eligible to receive FECA compensation in the amount of 75% of his weekly rate of pay, or $527.40 per week.4 On January 30, 1995, the OWCP notif ied Noble that it had scheduled an appointment with Dr. Richard Rex Harris, anorthopaedic surgeon, for another opinion regarding Noble’s request for authorization of surgery. Dr. Harris examined Noble on February 16, 1995. In his February 21, 1995, report to the OWCP, Dr. Harris stated that Noble would need to undergo a dditional testing before he could determine whether surgery was warranted. On April 10, 1995, the OWCP authorizedDr. Harris to perform the additional testing he deemed necessary. Noble dec lined to undergo the additional testing. Noble was examined by Dr. J. Finley McRae, a neurosurgeon, on May 3, 1995. Noble consented to have Dr. McRae conduc t additional testi ng. After Noble underwent the additional testing on May 15, 1995, Dr. McRae did not recommend
surgery. Noble then arranged on his own to see Dr . Terry Andrade, a neurosurgeon. On June 15, 1995, Dr. Andrade examined Noble and his medical records. He “strongly recommend[ed]” surgery. A July 6, 1995, letter from a facility manager with the Federal Bureau of Prisons advised Noble that he had initia ted proceedings to bring about Noble’s removal from his position. He cited two r easons for taking this action: (1) Noble’s failure to provide the updated medical documentation required to support his5 continuing absence from work; and (2) Noble’s physical inability to perform the duties of his position. In the letter, th e facility manager described the mechanism through which Noble could respond to the rem oval proceeding and also noted that the removal would occur no sooner than thirty days from the date Noble received the letter. Although the date of Noble’s removal is unclear in the record before us, it is undisputed that Noble lost his job. Dr. Andrade provided his findings and recommendation to the OWCP in reports dated July 13, 1995, and Oc tober 26, 1995. The OWCP authorized surgery on January 3, 1996. Dr. Andrade performed the procedure on January 26, 1996. Noble continued to experience neck a nd arm pain after the surgery. On September 18, 1997, Noble filed a complaint pursuant to the FTCA in which he sought to recover $250,000 for the pr olonging of his pain and the loss of his job that he alleged resulted from the OWC P’s tortious delay in authorizing his surgery. On December 4, 1997, the United States filed a motion to dismiss the complaint pursuant to Federal Rule of Ci vil Procedure 12(b)(1) and (6). On March 19, 1998, the district court found there was a substantial question as to FECA coverage of the alleged in jury, ordered the FTCA action held in abeyance, and directed Noble to file a claim with th e OWCP seeking additional compensation under6 FECA for the prolonged pain and job loss that allegedly resu lted from the OWCP’s delay in authorizing surgery. An October 19, 1998, memorandum from senior claims examiner Jennifer Valdivieso to the Director of the OWCP set forth the following rationale for the OWCP’s denial of Noble’s request for additional compensation under FECA: Since all compensation payments and work related medical expenses have been paid, and will continue to be paid, Mr. Noble is not entitled to any further payments a bove and beyond that from this office. Section 8116(c) provides for exclusiveness of remedy with regard to work related injuries and deaths. This section provides that the benefits provided by the Act constitute the ex clusive remedy against the United States for employment related injuries or deaths. The injury or death of an employee gives rise to no right to recover damages from the United States exclusive of the Act. It is regrettable if Mr. Noble ha s suffered more because of his not obtaining surgical relief however, our office has paid all benefits possible to Mr. Noble consistent with the provisions of the Federal Employees’ Compensation Act; theref ore, the following conclusion is reached. Mr. Noble’s claim for monetary paymen t, based on his allegation that the office’s delay in authorizing funding of his surgery precipitated physical pain and suffering, loss of income, loss of employment, loss of retirement benefits and loss of quality of life, is hereby denied as there is no provision for such payments under the Federal Employees’ Compensation Act. At the insistence of the district court, Nobl e requested a review of this determination by an OWCP hearing representative. Af ter reviewing the written record, hearing7 representative Jacqueline Neugent affirmedthe earlier decision in a July 19, 1999, letter to Noble: Since all compensation payments and work related medical expenses have been paid and will continue to be paid (for the accepted work related conditions) the claimant is not entitled to any additional payments above that which has been approved. His request for reimbursement due to pain and suffering, loss of income, loss of employment, loss of retirement benefits, and loss of quality of life must be denied as there is no provision under the Act for such payments. After receiving a copy of this denial of Nobl e’s claim, the district court was satisfied that the Secretary had finally determined that the OWCP’s delay in authorizing surgery and Noble’s prolonged pain and loss of his job fe ll within the coverage of FECA but were not compensable under the statute’s limited remedies. On September 23, 1999, the district cour t dismissed Noble’s complaint for lack of subject matter jurisdiction. On Oct ober 21, 1999, Noble filed a timely notice of appeal.
II Noble contends that the district court erred in dismissing his claims and entering judgment for the United States because he ha d a viable FTCA claim against the United States for the prolonging of his pain and the loss of his job that resulted from the OWCP’s delay in authorizi ng surgery. We review de novo the order dismissing Noble’s complaint for lack of subject matter jurisdiction and the entry of summary8 judgment for the United States. See Woodruff v. United States Dep’t of Labor, Office of Workers Compensation Program , 954 F.2d 634, 636 (11th Cir. 1992). In 1916, Congress enacted FECA to provide benefits to federal employees injured or killed in the course of performing their duties. See 5 U.S.C. § 8102(a). The benefits available under FECA are primar ily medical expense reimbursement and disability compensation that represents a per centage of the claimant’s salary prior to his injury. See §§ 8103-07. Congress amended FE CA in 1949 expressly to provide that FECA is the federal employee’s excl usive remedy against the federal government for on-the-job injuries. See § 8116(c). FECA provides that [t]he liability of the United States . . . under this subchapter . . . with respect to the injury . . . of an employee is exclusive and instead of all other liability of the United States . . . to the employee . . . [or] any other person otherwise entitled to recover damages from the United States . . . because of the injury . . . in a di rect judicial proceeding, in a civil action, or in admiralty, or by an ad ministrative or judicial proceeding under a workmen's compensation statut e or under a Federal tort liability statute. 5 U.S.C. § 8116(c). Section 8116(c) was “des igned to protect the Government from suits under statutes, such as the Federal To rt Claims Act, thathad been enacted to waive the Government’s sovereign immunity .” Lockheed Aircraft Corp. v. United
States , 460 U.S. 190, 193-94 (1983). “In enacti ng this provision, Congress adopted the principal compromise–the ‘quid pro quo ’–commonly found in workers’ compensation legislation: employees are guaranteed the right to receive immediate,9 fixed benefits, regardless of fault and without need for litigation, but in return they lose the right to sue the Government.” Id. at 194. The Secretary is authorized to administ er and decide all questions arising under
FECA. See 5 U.S.C. §§ 8145, 8149. Under the au thority granted in § 8145(2), the Secretary has delegated respons ibility for administering FECA to the Director of the
OWCP. See Woodruff , 954 F.2d at 637. Once the OWCP determines that a disability or death resulted from a work-related injury as defined by FECA, the claimant is limited to the remedies authorized by FECA, even if a particular type of damage or consequence the claimant suffered is not compensable under FECA. See United States v. Lorenzetti , 467 U.S. 167, 169 (1984) (“Because the United States’ liability for work-related injuries under FECA is exclusive, see § 8116(c), respondent cannot recover from the United States for losses such as pain and suffering that are not compensated under FECA.”); see also Avasthi v. United States , 608 F.2d 1059, 1060- 61 (5th Cir. 1979) (where a federal employ ee’s injuries occurred in the course of performing his duties, holding that he wa s not entitled to elect coverage under the FTCA rather than FECA even though proceeding under the FTCA offered the possibility of a more comprehensive remedy). It is undisputed in this case that Noble’ s initial on-the-job injury fell within the coverage of FECA and that the exclusiv e-liability provision of FECA would bar an10 FTCA claim by Noble to recover damages for that injury. Noble maintains, however, that he is not seeking to recover under th e FTCA for his initial on-the-job injury, but rather for a different injury: the OWCP’s delay in authorizing surgery, which allegedly resulted in Noble suffering prol onged pain and the loss of his job. By characterizing the OWCP’s delay in authoriz ing surgery as a separate injury from his initial on-the-job injury, Noble seeks to s ituate his uncompensated losses outside the coverage of FECA in order to be ab le to proceed with his FTCA claim.
III “[A]n injured employee may not bring anaction against the United States under FTCA when there is a ‘substantial question as to whether or not the injury occurred in the performance of the empl oyee’s duty’” so as to bri ng it within the coverage of FECA. Avasthi , 608 F.2d at 1060 (quoting Bailey v. United States , 451 F.2d 963, 965 (5th Cir. 1971)). Where a federal employee brings an action against the United States and there is a substantial question as to whether FECA provides the employee’s exclusive remedy for the alleged injury, the district court must do what the district court did in the instant case: hold th e action in abeyance pending a coverage determination by the Secretary. See Concordia v. United States Postal Serv. , 581 F.2d 439, 442-44 (5th Cir. 1978). A substantial ques tion of coverage exis ts unless the court11 determines “as a matter of law that, view ing all of the circumstances, the Secretary could not find FECA coverage of” the alleged injury. Id. at 442. If the Secretary finds no FECAcoverage of the allege d injury, the plaintiff is then free to proceed under the FTCA. See id. at 444. If the Secretary determines the injury falls within FECA’s coverage, the fe deral courts generallylack jurisdiction to review the Secretary’s decision to award or deny compensation for the injury. See 5 U.S.C. § 8128(b) (“The action of the Secretary or his desi gnee in allowing or denying a payment under this subchapter is (1) fina l and conclusive for all purposes and with respect to all question of law and fact; and (2) not subject to review by another official of the United States or by a court by mandamus or otherwise.”); see also Woodruff , 954 F.2d at 639. This court has held that § 8128(b) does not deprive a federal court of jurisdiction to review a charge that the Secretary violated the Constitution or a “clear statutory mandate or prohibition.” Id. Noble, however, made no such argument in the district court or in his brief on appeal. A long line of cases has held that the exclusive-liability provision of FECA precludes an FTCA action by a federal em ployee for damages resulting from medical malpractice by a government doctor treating an on-the-job injury. See Sanders v. United States , 387 F.2d 142, 143 (5th Cir. 1967) (per curiam); see also Lance v. United States , 70 F.3d 1093, 1095 (9th Cir. 1995); McCall v. United States , 901 F.2d12 548, 550-51 (6th Cir. 1990) (collecti ng cases); Wilder v. United States , 873 F.2d 285, 288 (11th Cir. 1989) (same). The exclusive- liability provision of FECA states that, when it comes to federal employees injured on the job, liability fo r FECA benefits is the only “liability of the United St ates . . . because of the injury .” 5 U.S.C. § 8116(c) (emphasis added). In Wilder , this court found the following to be a “persuasive” rationale for the rule that liability for me dical malpractice of a government doctor in treating an on-the-job injury is liability because of the injury: [T]he aggravation of [the plaintiff's] initial injuries, suffered while he was indubitably in performance of his duty, should be regarded as resulting from the initial injuries themse lves. . . . [T]hat is the rule at common-law when the claim is for negligence; the initial wrong is the cause of all that follows, even wh en there has intervened a succeeding negligent act that produced the aggravation . We interpret the Compensation Act as a substitute for th e whole of the claim that, but for it, would have arisen under the Tort Claims Act. 873 F.2d at 288 (quoting Bal ancio v. United States , 267 F.2d 135, 137 (2nd Cir. 1959)) (emphasis added); see also Lance , 70 F.3d at 1095 (“As a matter of textual interpretation, there’s a strong argument th at liability based on medical malpractice arising out of an injury is liability ‘becau se of the injury.’” (quoting § 8116(c)). This rationale is even more persuasive in the context of the instant case. Like a government doctor whose intervening malp ractice increases or prolongs pain or other damages associated with an on-the- job injury, the intervening delay by the OWCP in processing Noble’s request for au thorization of surgery does not break the1 We express no opinion regarding the propriety of the OWCP’s handling of Noble’s request for authorization of surgery.

13 causal connection between Noble’s initial on-th e-job injury and the pain and job loss Noble suffered while awaiting authorization for surgical treatment of that injury. Indeed, the acts or omissions of the OWCP would be even less likely to break the causal connection than would the malpractice of a doctor. At worst, the OWCP failed to act in a manner that may have curtaile d the damages precipita ted by Noble’s initial injury. 1 The OWCP’s acts or omissions did not increase the damages precipitated by the initial injury, as a doctor’s malpractice well might. We therefore conclude that the districtcourt did not err in determining that there was a substantial question as to FECAcoverage of Noble’ s alleged injury and that the coverage determination by the Secretary was therefore necessary before Noble’s FTCA claims could proceed. See Wilder , 873 F.2d at 287-88 (“We are satisfied, and so hold, that the aggravati on of [the FTCA plaintiff’s] work-related injuries through the alleged malpractice of treating medical personnel presents a substantial question of coverage unde r the [Longshore and Harbor Workers’ Compensation Act, a statutory scheme thatincludes an exclusive-liability provision “identical in all material respects” to § 8116( c) of FECA].”). The district court did not err in ruling that it lacked jurisdiction to re view the Secretary’s determination that the14 OWCP’s delay in authorizing surgery and the job loss and prolonged pain Noble suffered while he waited fell within FECA’s coverage but were uncompensable under the statute’s limited remedies. The order dismissing Noble’s complaint and entering summary judgment for the United States is AFFIRMED.