IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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No. 91-1547

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MERRILL BENTON,

Plaintiff-Appellant,

v.

UNITED STATES OF AMERICA and

THE UNITED STATES POSTAL SERVICE,

Defendants-Appellees.

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Appeal from the United States District Court

for the Southern District of Mississippi

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(February 12, 1992)

Before POLITZ, Chief Judge, and KING and EMILIO M. GARZA, Circuit

Judges.

PER CURIAM:

Merrill Benton appeals the district court's grant of the

Government's motion to dismiss her complaint pursuant to Federal

Rule of Civil Procedure 12(b)(1) and (6). She contends that the

district court erred in concluding that (1) the exclusive remedy

provision of the Federal Employees Compensation Act barred her

recovery under the Federal Tort Claims Act for personal injuries,

and (2) the exclusive remedy provision of the Federal Tort Claims

Act barred her claim against the United States Postal Service. 

For the reasons set forth below, we affirm the district court's

dismissal of the claim.
2

I.

On October 14, 1987, Benton was an employee of a federal

magistrate with offices in the U.S. Postal Service Building in

Biloxi, Mississippi. While on her way to lunch, she slipped and

fell on a stairway in that building, causing severe injury to her

back. On October 10, 1989, Benton filed an administrative claim

for her injuries under the Federal Employees Compensation Act

("FECA"). Her FECA benefits paid her employee compensation and

all of her medical expenses during her disability period. 

After exhausting her administrative remedies, Benton filed

the complaint at issue on June 18, 1990, alleging that the

stairwell that she fell on was negligently maintained, and

seeking damages under the Federal Tort Claims Act ("FTCA") for

pain and suffering, future earnings, and general loss of

enjoyment of life. She brought the action against the Postal

Service, as both a co-employee and owner of the Postal Service

Building, and against the United States as a substitute defendant

for the Postal Service. In response, the defendants moved to

dismiss, arguing that the exclusive remedy provision of the FTCA

barred her claim against the Postal Service, and the exclusive

remedy provision of the FECA barred her personal injury claim

against the United States. The district court agreed that the

Postal Service was not a proper party to the suit, and that 28

U.S.C. § 2679(b)(1) precluded her claim against the United States

as substitute defendant for an unnamed co-employee. 
3

Consequently, the district court dismissed Benton's claims with

prejudice. 

Benton challenges this dismissal on three grounds: (1) the

FECA exclusive remedy provision does not bar her claim under the

FTCA for injuries not compensable under the FECA; (2) the FECA

does not bar her claim against the United States because the

Postal Service was not her employer; and (3) the FECA's

prohibition against judicial review of the Secretary of Labor's

decisions to award individual benefits, 5 U.S.C. § 8128(b),

violates the Due Process Clause of the Fifth Amendment. We

address each of these challenges in turn.

II.

We review a dismissal pursuant to Federal Rule of Civil

Procedure 12(b)(6) under the same standard used by the district

court: a claim may not be dismissed unless it appears certain

that the plaintiff cannot prove any set of facts in support of

her claim which would entitle her to relief. Conley v. Gibson,

355 U.S. 41, 45-46 (1957). We employ the same standard in

reviewing dismissals for lack of subject matter jurisdiction

under Rule 12(b)(1). Hospital Bldg. Co. v. Rex Hosp. Trustees,

425 U.S. 738, 742 n.1 (1976). So, taking Benton's factual

allegations as true for the purposes of this appeal, we

independently review her claims to determine whether the district

court correctly dismissed it under Rule 12(b)(1) and (6). 

First, Benton argues that because she did not receive

compensation under the FECA for the injuries claimed in the
 

1 Grijalva received disability compensation, reimbursement

of medical expenses, and continuation of her salary during her

disability. See Grijalva v. United States, 781 F.2d 472, 473

(5th Cir.), cert. denied, 479 U.S. 822 (1986). 

4

instant suit, the FECA exclusive remedy provision, 5 U.S.C. §

8116(c), does not bar her claim. This provision states:

The liability of the United States or an

instrumentality thereon . . . 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

instrumentality because of the disability or

death in a direct judicial proceeding, in a

civil action, or in admiralty, or by an

administrative or judicial proceeding under a

workmen's compensation statute or under a

Federal tort liability statute. . . .

5 U.S.C. § 8116(c). In Grijalva v. United States, 781 F.2d 472

(5th Cir.), cert. denied, 479 U.S. 822 (1986), we held that this

provision bars an individual who has received an award of

compensation benefits under the FECA from suing the United States

for that injury under the FTCA. Id. at 474. Moreover, we found

that it also barred the claimant's daughter from recovering

damages for loss of her mother's support and services. Id. at

475. The FECA benefits received by the claimant were not

intended to compensate the daughter for any personal loss

resulting from her mother's injuries.1 Nonetheless, we adopted

the reasoning of the Sixth Circuit in Woerth v. United States,

714 F.2d 648, 650 (6th Cir. 1983), that the proper inquiry is

"whether the claim is 'with respect to the injury or death of an
5

employee.'" 781 F.2d at 475; see also Sheehan v. United States,

896 F.2d 1168 (9th Cir. 1990) (reversing dismissal of an FTCA

claim based on negligent infliction of emotional distress not

compensated under the FECA because it was "divorced from any

claim of physical injury"). We agree with the district court

that the exclusive remedy provision of the FECA bars Benton's

claim for pain and suffering, future earnings, and general loss

of enjoyment of life -- injuries which derived from her physical

injury for which she was already compensated under the FECA. 

Second, Benton contends that the FECA exclusive remedy

provision does not bar her suit against the United States in its

capacity as substitute defendant for the negligence of the Postal

Service, a co-employee. Benton relies on our holding in Allman

v. Hanley, 302 F.2d 559 (5th Cir. 1962), to support this

contention. In Allman, we held that absent specific statutory

command, workers' compensation statutes are not construed to

abrogate the common law rights of employees to bring negligence

suits against their fellow employees. Id. at 563. Accordingly,

we allowed the plaintiff's negligence action against a fellow

government employee to proceed notwithstanding the FECA. As the

district court observed, the Federal Employees Liability Reform

and Tort Compensation Act of 1988, codified at 28 U.S.C. §

2679(b)(1), precludes Benton from obtaining the same result. 

This provision provides:

The remedy against the United States provided

by sections 1346(b) and 2672 of this title

for injury . . . arising or resulting from

the negligent or wrongful act or omission of
 

2 See Noga v. United States, 411 F.2d 943 (9th Cir.), cert.

denied, 396 U.S. 841 (1969) (dismissing FTCA suit in which United

States was technical defendant in place of negligent federal

driver because Federal Drivers Act, 28 U.S.C. § 2679 (b)-(e)

(1964), rendered government employee driver immune from suit).

6

any employee of the Government while acting

in the scope of his office or employment is

exclusive of any other civil action or

proceeding for monetary damages by reason of

the same subject matter against the employee

whose act or omission gave rise to the claim.

. . .

28 U.S.C. § 2679(b)(1). Because this specific statutory command

prohibits Benton's claim against the United States as substitute

defendant for an unnamed co-employee,2 we agree with the district

court that the claim should be dismissed. 

Finally, Benton challenges the constitutionality of the

FECA's prohibition against judicial review of decisions

concerning the award of payments under the Act, 5 U.S.C. §

8128(b). She contends that this provision allows the Secretary

of Labor to put an arbitrary cap on the amount of coverage

available to a federal employee. Moreover, she asserts that

access to the FTCA is essential to ensure that federal employees

receive full compensation for their work-related injuries. 

It is well settled that "Congress has the power, through a

'clear command of the statute,' to preclude review of policy

decisions. . . ." Paluca v. Secretary of Labor, 813 F.2d 524,

527 (1st Cir.) (quoting Barlow v. Collins, 397 U.S. 159, 167

(1970)), cert. denied, 484 U.S. 943 (1987); see also Rodrigues v.

Donovan, 769 F.2d 1344 (9th Cir. 1985) ("The structure of the

FECA and the language of section 8128(b) convince us that
7

Congress's intent was that the courts not be burdened by a flood

of small claims challenging the merits of compensation decisions,

. . . and that the Secretary should be left free to make the

policy choices associated with disability decisions.") (citations

omitted). A statute may prohibit review of adjudications made in

conformity with policy decisions, so long as it does not prohibit

review of constitutional questions. See Paluca, 813 F.2d at 526,

527 (confirming validity of § 8128(b)'s bar of judicial review

because it refers to statutory, and not constitutional, action)

(citing Johnson v. Robison, 415 U.S. 361, 366 (1974)). Because §

8128(b) prohibits review only of compensations decisions wholly

within the discretion of the Secretary of Labor, we find that

Benton's challenge lacks merit.

Benton also suggests that the exclusive remedy provision of

the FECA deprives federal employees of their equal protection and

due process rights because only federal employees are barred from

suing under the FTCA when they are injured by negligent acts of

the government. However, the FECA bar applies only to those

claims arising out of injuries incurred in the scope of

employment. The government has a legitimate reason for

maintaining a federal worker's compensation program in this

manner. In Gill v. United States, 641 F.2d 195 (5th Cir. 1981),

we observed that the FECA program is akin to state workers'

compensation programs. In Gill, we recognized that "[t]he heart

of the system is an implicit bargain: employees are granted surer

and more immediate relief in return for foregoing more expensive
8

rewards outside the system." Id. at 197. Benton's

constitutional challenge provides no convincing reason for us to

question the legitimacy of the purpose underlying the FECA

program, as expressed in Gill. Therefore, we find this claim

without merit.

III.

For the foregoing reasons, we AFFIRM the district court's

dismissal of Benton's claim with prejudice.