1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

MARIA C. LOPEZ, Plaintiff ,

v. UNITED STATES OF AMERICA, et al. , Defendants

. Case No. 1:23-cv-03538 (ACR)

MEMORANDUM OPINION AND ORDER Plaintiff Maria C. Lopez is a longtime re gistered nurse for the U.S. Department of Veterans Affairs (VA). On November 13, 2020, a patient attacked her, causing her to suffer muscle strains, nerve damage, and chronic pain. Dkt. 1 at 1-2. She sued the United States, the VA, and the Secretary of Veterans Affa irs under the Federal Tort Claims Act, 28 U.S.C. § 2674, for failing to warn her about th e patient’s violent te ndencies and provide her with a bodyguard. Defendants ask the Court to dism iss the case on various grounds. See generally Dkt. 10 (motion to dismiss for lack of subject matt er jurisdiction and improper venue); Dkt. 15 (supplemental motion to dismiss for failure to file within the statute of limitations ). They argue that the Court lacks subject-matter jurisdiction un der Federal Rule of Ci vil Procedure 12(b)(1), that venue is improper under Rule 12(b)(3), and that Plaintiff ha s failed to state a claim under Rule 12(b)(6). Id.2 The Court agrees that it lacks subjec t-matter jurisdiction and therefore GRANTS Defendants’ motion to dismiss unde r Rule 12(b)(1). The Court DENIES as moot Defendants’ alternative arguments under Rules 12(b)(3) and 12(b)(6). 1
I. FACTUAL AND PROCED URAL BACKGROUND Plaintiff, a registered nurse for the VA, alle ges that a patient att acked her on November 13, 2020, while she was on duty. Dkt. 1 at 1. The at tack caused her serious injuries, including muscle strains, nerve damage, and chronic pain. Id. at 2. On December 1, 2020, Plaintiff filed a Federal Employees’ Compensation Act, 5 U.S.C. § 8101 et seq , (FECA) claim with the Office of Wo rkers’ Compensation Programs (OWCP). Dkt. 10-1 (Ex. 1) at 3. On December 18, 2020, and September 2, 2021, the OWCP accepted most of Plaintiff’s claim and paid he r $2,108.04 to cover related medical costs. Id. at 3. On February 27, 2024, the OWCP sought more informat ion about the back in jury that Plaintiff claimed also resulted from the attack. 2 Id. at 2. Plaintiff next filed an ad ministrative claim unde r the Federal Torts Claims Act (FTCA), which the VA received on November 15, 2022. Dkt. 10- 2 (Ex. 2) at 1. Plaintiff alleged that the hospital was negligent in not warning her of th e danger her attacker posed and in not providing her with a security guard for her protection. Id. at 2. On May 18, 2023, the VA denied the administrative claim, stating that her earlier claims under the FE CA precluded her FTCA claims.

1 The Court denies Defendants’ alternative argumen ts as moot “because absent jurisdiction the court lacks the authority to deci de the case on any other grounds.” Am. Farm Bureau v. EPA , 121 F. Supp. 2d 84, 91 (D.D.C. 2000).

2 The Court does not have additional information about the status of this request or the OWCP investigation.3 Id. at 1. The VA also highlighted that Plaintiff fi led the FTCA claim outside the two-year statute of limitations period. Id. On November 27, 2023, Plaintiff brought this suit under the Federal Tort Claims Act. Dkt. 1 at 1. On March 29, 2024, Defendants move d to dismiss for lack of subject-matter jurisdiction under Rule 12(b)(1) and for improper venue under Rule 12(b)(3). Dkt. 10. On June 26, 2024, Defendants filed a supplementary motion for dismissal for failure to file within the statute of limitations under Rule 12(b)(6). Dkt. 15.
II. LEGAL STANDARD The plaintiff bears the burden of es tablishing subject-matter jurisdiction. See Lujan v. Defenders of Wildlife , 504 U.S. 555, 561 (1992). When deci ding a motion to dismiss under Rule 12(b)(1), the Court may consider “the complain t standing alone”; altern atively, it may consider the “complaint supplemented by undisputed facts eviden ced in the record.” Herbert v. Nat’l Acad. of Sciences , 974 F.2d 192, 197 (D.C. Cir. 1992).
III. ANALYSIS “[T]he United States, as sovere ign, ‘is immune from suit save as it consents to be sued.’” United States v. Testan , 424 U.S. 392, 399 (1976) (quoting United States v. Sherwood , 312 U.S. 584, 586 (1941)). The terms of that consen t “define th[e] cour t’s jurisdiction.” Sherwood , 312 U.S. at 586. Plaintiff sues under the FTCA, in which the United States has waived sovereign immunity for certain torts. See Manning v. Esper , No. 12-1802, 2019 WL 281278, at *7 (D.D.C. Jan. 22, 2019). And she bears the burd en of establishing that her cla im fits within that waiver. Whitaker v. United States , No. 22-1414, 2023 WL 4999324, at *3 (D.D.C. Aug. 4, 2023) (citing FDIC v. Meyer , 510 U.S. 471, 475 (1994)).4 Before addressing the FTCA further, a disc ussion of the FECA—the statute under which Plaintiff received compensation from the OWCP—i s warranted. The FECA provides a workers’ compensation-like remedy scheme for federal em ployees to receive comp ensation for injuries suffered while in the performance of their duties. See 5 U.S.C. § 8102(a). Relevant here, a federal employee cannot bring a FE CA claim in federal court. Sullivan v. United States , No. 05- 1418, 2006 WL 8451987, at *3 (D.D.C. June 22, 2006). In stead, she must bring a claim to the Secretary of Labor who—acting through the OWCP—m akes the “ultimate de termination” of her FECA claim. Zellars v. United States , No. 05-1670, 2006 WL 1050673, at *3 (D.D.C. Apr. 20, 2006); 5 U.S.C. § 8145; 20 C.F.R. § 10.1. The FECA contains a “well established” ex clusive-remedy provision, 5 U.S.C. § 8116(c). Manning , 2019 WL 281278, at *17. In exchange for “o ffering fixed compensation in lieu of litigation rights,” the FECA “p rotect[s] the Government from su its under statutes, such as the Federal Tort Claims Act, that had been enacted to waive the Government’s sovereign immunity.” Id. (quoting Lockheed Aircraft Corp. v. United States , 460 U.S. 190, 193-94 (1983)) (cleaned up). Thus, a government employee covered by th e FECA cannot bring suit under the FTCA. See Spinelli v. Goss , 446 F.3d 159 (D.C. Cir. 2006). And a government employee can proceed on an FTCA claim in federal court only if the Secr etary of Labor has first found that the FECA did not cover her injuries. See Daniels-Lumley v. United States , 306 F.2d 769, 771 n.3 (D.C. Cir. 1962). Plaintiff’s claim founders because it falls squa rely within the coverage of the FECA and thus outside the FTCA’s immunity waiver. Dkt. 10 -1 (Ex. 1) at 3. Plaintiff is a federal employee who seeks compensation for injuries she incurred at the VA. Dkt. 1 at 1. She filed a FECA compensation form with the OWCP, the OWCP dete rmined that the FECA covered her injuries,5 and the OWCP provided her with compensation. See Dkt. 10-1 (Ex. 1 at 1-2). Because Plaintiff’s injuries ar e compensable—indeed, have alrea dy been compensated—under the FECA, Plaintiff is barred from suing under the FTCA. Plaintiff tries to circumvent the FECA’s exclusivity framework by claiming emotional injuries, but this effort fails. See Dkt. 11 at 4. To be sure, “the state of the law concerning FECA coverage for emotional and psyc hological injuries sustained by federal employees remains unsettled.” Spinelli , 446 F.3d at 161 (cleaned up). But this is “of no matter.” Id. Once the Secretary of Labor determines th at the FECA applies to an empl oyee’s claim, that “settles the matter,” and exclusivity attaches. Id. Plaintiff’s claim for compensa tion for her back injury re mains pending, but “a decision by the Secretary of Labor that her injuries were not covered . . . is a c ondition precedent to the continued prosecution” of her suit. Daniels-Lumley , 306 F.2d at 771 n.3. Because Plaintiff’s pending back injury stems from th e same attack as those the S ecretary of Labor has already found the FECA covers, the Court dismis ses the case instead of staying it. See Whitaker , 2023 WL 4999324, at *5 (dismissing claim fo r additional injuries because “the Secretary has already . . . found that there is a substantia l likelihood that the FECA applies” to the incident in question).6 IV. CONCLUSION AND ORDER Because the FECA’s exclusive -remedy provision bars Plaintiff from seeking relief under the FTCA, this Court does not have subj ect-matter jurisdiction over her claim. For these reasons, the Court hereby:
GRANTS Defendants’ Motion to Dismiss, Dkt. 10;
DENIES Defendants’ Supplemental Motion to Dismiss, Dkt. 15, as moot;
DISMISSES Plaintiff’s Complaint, Dkt. 1, a nd this case without prejudice; and
DIRECTS the Clerk of Court to close this case.
SO ORDERED

. This is a final appealable Order. See Fed. R. App. P. 4(a).

Date: October 8, 2024 _________________________ ANA C. REYES United States District Judge