In the

United States Court of Appeals

For the Seventh Circuit ____________________ 

No. 21-1966 

DAVID BOURKE, 

Plaintiff-Appellant, 

v.

UNITED STATES OF AMERICA, 

Defendant-Appellee. 

____________________ 

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 20 C 4427 — Jorge L. Alonso, Judge. 

____________________ 

ARGUED NOVEMBER 29, 2021 — DECIDED FEBRUARY 2, 2022 

____________________ 

Before EASTERBROOK, SCUDDER, and ST. EVE, Circuit Judges. 

EASTERBROOK, Circuit Judge. David Bourke was exposed to 

fumes during his employment with the Veterans Administration. He received treatment at a VA hospital and contends that 

medical malpractice there caused him serious injuries. After 

he sought compensation from two sources—(1) the Department of Labor (under the Federal Employees Compensation 

Act) for on-the-job injuries and any consequences of those 
2 No. 21-1966 

injuries, and (2) the United States (under the Federal Tort 

Claims Act) for medical malpractice—each body pointed to 

the other as the right source of relief. The Department of Labor processed Bourke’s claim but found that he had not 

shown that his asserted injuries had been caused either directly or indirectly by exposure to fumes, and the VA (handling the FTCA claim) concluded that, once Bourke applied 

to the Department of Labor, all other sources of relief were 

precluded.

Having got the runaround, Bourke turned to the judiciary 

under the Tort Claims Act. He now accepts the Department of 

Labor’s conclusion that conditions at work did not cause the 

medical issues for which he was treated by the VA, and he

contends that he is entitled to relief under the FTCA for medical malpractice. The district court rejected his complaint on 

the ground that the Federal Employees Compensation Act offers his sole avenue of relief. 2021 U.S. Dist. LEXIS 96045 (N.D. 

Ill. May 20, 2021). Once the Department of Labor adjudicates 

a claim, the judge held, the applicant must accept the result 

because the Compensation Act forecloses other sources of relief, see 5 U.S.C. §8116(c), and 5 U.S.C. §8128(b)(2) blocks judicial review of the Department’s decisions.

But Bourke is not seeking judicial review of the Department of Labor’s decision. He accepts its conclusion that fumes

in his workplace did not cause the conditions for which he 

was treated by the VA. Bourke once argued otherwise but 

now treats the Department’s decision as gospel. Someone 

who loses before the Department can’t contest that outcome

in court—but Bourke insists that a loser may pursue other 

remedies that are compatible with the Department’s views. 

The United States, however, defends the district court’s 
No. 21-1966 3 

conclusion that, once the Department of Labor accepts a claim 

for resolution, the claimant has forfeited any other potential 

remedy.

By that standard, if a federal employee wrongly thought 

that he had been poisoned at work, and that belief led him to 

cross the road to seek medical care, he could not sue a Postal 

Service driver who negligently hit him or a robber who relieved him of his wallet after he was disabled by the careening

postal van. That seems an extravagant outcome to attribute to 

the exclusivity clause in §8116(c), which says no more than 

that “[t]he liability of the United States ... under this subchapter ... is exclusive and instead of all other liability”.

Liability “under this subchapter” is exclusive, but how far 

does this extend? “[T]his subchapter” refers to Subchapter I 

of Chapter 81 of Title 5—in other words, to 5 U.S.C. §§ 8101–

52. Subchapter I covers on-the-job injuries suffered by federal 

employees. See 5 U.S.C. §8102(a). If an injury comes within 

Subchapter I, then consequential losses also are covered. 

Courts have concluded that the United States is liable when 

an on-the-job injury is treated negligently at a hospital, magnifying the job-related loss. See Baker v. Barber, 673 F.2d 147, 

150 (6th Cir. 1982); Balancio v. United States, 267 F.2d 135, 137 

(2d Cir. 1959). Cf. 5 U.S.C. §8101(3), (5). And when an injury

comes within the Federal Employees Compensation Act, the 

employee cannot turn to other sources of damages. The district court relied on these cases when ruling against Bourke. 

The flaw in that approach, however, is the Department of Labor’s finding that Bourke was not injured on the job, and thus 

was not treated by the VA for a condition that arose out of his 

employment. That finding took Bourke’s claim for medical 

malpractice at the VA outside the scope of Subchapter I. 
4 No. 21-1966 

According to the United States, §8116(c) precludes liability 

under the FTCA whenever the Department of Labor “accepts” a claim for adjudication, no matter what the Department does next. Yet the statute does not say this. It links exclusivity to “liability of the United States ... under this subchapter”. If the Department concludes that the United States 

is not liable “under this subchapter” because the claimant’s 

injury does not stem from the job, then “this subchapter”

drops out. And that’s what the Department concluded about

Bourke: he was exposed to fumes on the job but not injured 

by them. We have not found any language in Subchapter I 

supporting the proposition that any adjudication by the Department of Labor knocks out every source of compensation

for injuries unrelated to federal employment. Baker and Balancio hold that consequential damages are compensable under 

the Federal Employees Compensation Act, but they do not 

hold that losses that can’t be traced to on-the-job injuries are 

covered by this Act.

We’ve already given one example: an employee who 

crosses the street while healthy and is hit by a van. Here’s another. A federal employee smells an odor at work and goes 

home. Instead of resting in an easy chair until his workday 

would have ended, he takes a bicycle ride, falls, and breaks 

his arm. He then reports to a VA hospital, where his arm is 

amputated by a surgeon who should have set the broken bone 

instead. The Department of Labor concludes that nothing was 

wrong at the workplace (the smell came from Limburger 

cheese in someone else’s lunch) so that the employee did not 

suffer an injury within the scope of the Federal Employees 

Compensation Act. The Department’s finding would take the 

situation outside Subchapter I and permit the employee to sue 

for medical malpractice under the Tort Claims Act. 
No. 21-1966 5 

Any other approach allows ambiguity to defeat liability. 

Consider Bourke’s situation (as Bourke describes it). Fumes at 

work sickened him and led him to seek medical care, which 

made his condition worse. On that understanding, the United 

States bears responsibility, for it operated both the workplace 

and the VA hospital. But it is unclear whether the fumes or the 

request for medical care led to compensable injuries. Each 

agency blames the other—and, even though one or the other 

must be responsible, the United States escapes all liability because it is impossible to be sure just where the causal chain

began. The language of the Federal Employees Compensation

Act does not command such an outcome. Once the Department of Labor declares that on-the-job loss did not occur, Subchapter I falls out and the employee can try elsewhere.

The United States asks us to affirm on an alternative 

ground: the statute of repose for tort claims in Illinois. The 

FTCA sets two time limits: an administrative claim no later 

than two years after the injury and a suit no more than six 

months after the agency mails its decision on the administrative claim. 28 U.S.C. §2401(b). Bourke met these two deadlines, but the United States nonetheless maintains that his suit 

is too late, because Illinois sets a four-year outer bound for all 

tort actions against physicians or hospitals. 735 ILCS §5/13-

212(a). That time expired while the VA had Bourke’s administrative claim under consideration. According to the United 

States, the fact that FTCA liability generally tracks state law 

means that state time limits apply in addition to the time limits in §2401(b). That proposition finds support in Augutis v. 

United States, 732 F.3d 749, 753 (7th Cir. 2013), which Bourke 

has not asked us to revisit. But he does ask us to remand without reaching the subject. He observes, correctly, that his suit 

was dismissed on the pleadings, which need not anticipate 
6 No. 21-1966 

and refute affirmative defenses such as statutes of limitations 

and repose. What’s more, Bourke insists, Illinois would not 

start the four-year period until his course of treatment at the 

VA had been completed. We do not address any of these matters; they are for the district court in the first instance.

One final comment. The district judge dismissed Bourke’s 

complaint for want of jurisdiction, apparently under Fed. R. 

Civ. P. 12(b)(1). Yet federal courts have jurisdiction over suits 

under the Federal Tort Claims Act. They do lack jurisdiction 

of suits under the Federal Employees Compensation Act, 

where the administrative decision is conclusive, but this suit 

rests on the FTCA. The Supreme Court deems some aspects 

of the Tort Claims Act to be jurisdictional, but even then it has 

concluded that the FTCA’s waiver of sovereign immunity

merges with the claim’s substance and that a decision therefore should be treated as one on the merits. See Brownback v. 

King, 141 S. Ct. 740, 749 (2021). Bourke may or may not prevail 

in the end, but a federal district court is authorized to decide 

whether he has a good claim under the FTCA or instead the 

United States has a good defense. Only if Bourke loses under 

the statute could a court properly say that immunity bars the 

suit—and then, as Brownback holds, the decision would be

both on the merits and for lack of jurisdiction.

The judgment is vacated, and the case is remanded for 

proceedings consistent with this opinion.