IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

DAVID BOURKE, )

)

Plaintiff, )

) No. 20 C 4427

v. )

) Judge Jorge L. Alonso

UNITED STATES OF AMERICA, )

)

Defendant. )

MEMORANDUM OPINION AND ORDER

Defendant moves for dismissal of Plaintiff’s complaint under Federal Rules of Civil 

Procedure12(b)(1) and 12(b)(6) on the basis that: (1) this Court lacks subject-matter jurisdiction 

because Plaintiff’s claim is subject to the Federal Employees Compensation Act (“FECA”) and 

is therefore within the exclusive jurisdiction of the Department of Labor, and (2) Plaintiff’s 

claims are time-barred under Illinois’ four-year statute of repose . For the reasons set forth 

below, the motion is granted and Plaintiff’s complaint is dismissed pursuant to Fed. R. Civ. 

12(b)(1).

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I. BACKGROUND

At the time relevant to his complaint, Plaintiff was employed as a reproduction operator 

by the Department of Veterans Affairs in Hines, Illinois. [Dkt. 7-2 at pg. 2]. Plaintiff filed the 

current action alleging medical malpractice against the Defendant under the Federal Tort Claims 

Act (hereafter “FTCA”), 28 U.S.C. § 2674. [Dkt. 1]. Prior to initiating this proceeding, Plaintiff 

pursued two administrative claims, which included: (1) a claim to the Department of Labor under 

1 Because the Court concludes that it lacks subject-matter jurisdiction and dismisses this action pursuant 

to Fed. R. Civ. P. 12(b)(1), the Court declines to consider Defendant’s alternative argument based on the 

Illinois statute of repose and Fed. R. Civ. P. 12(b)(6).
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the FECA and (2) a claim to the Department of Veterans Affairs under the FTCA. [Id. at ¶5; Dkt. 

7-2 at pgs. 17-28]. 

A. The Department of Veterans Affairs.

On September 2, 2016, Plaintiff submitted a claim to the U.S. Department of Veterans

Affairs (hereafter “VA”) detailing the basis for his claim, the nature of his injury, and his 

hospital treatment. [Dkt. 7-2 at pgs. 25-28].2 Plaintiff stated that on September 3, 2014 and 

September 11, 2014, he was exposed to hazardous chemicals and toxic fumes through the HVAC 

system from a VA-hired roofing contractor. [Id. at pg. 27]. According to Plaintiff’s statement, 

the roofing contractor was repairing and resurfacing the roof of a building, which exposed 

Plaintiff and several other employees to fumes. Id. Plaintiff stated that as a result of these fumes,

he was ill for several days and was hospitalized. Id. Plaintiff had a biopsy on his left lung, 

suffered from severe intestinal pain, and acquired an infection during his hospital stay. Id.

Plaintiff claimed that as a result of this exposure and the subsequent medical treatment, he 

developed steroid-induced osteoporosis; a fracture of his thoracic vertebrae; compressional back 

fractures due to calcium loss from medication; degenerative spine; vertebrae fractures; various 

bulging discs; advanced stenosis of nerves and spinal cord; and a left inguinal hernia that was 

surgically repaired on August 22, 2016. Id.

2 The Court may look beyond the factual allegations in the complaint and consider any evidence that has 

been submitted on the issue of subject-matter jurisdiction in order to determine whether such jurisdiction 

exists. Capitol Leasing Co. v. F.D.I.C., 999 F.2d 188, 191 (7th Cir. 1993). Accordingly, the facts in these

sections are taken from the Complaint, as well as documents appended to Plaintiff’s and Defendant’s 

briefs. These documents consist of the Department of Labor Decision of the Hearing Representative [Dkt.

7-2 at pgs. 2-5], Appellant David Bourke’s Brief in Support of Appeal [Dkt. 7-2 at pgs. 6-15], the 

Department of Labor’s Decision and Order dated August 30, 2018 [Dkt. 7-2 at pgs. 17-22; Dkt. 9 at pgs. 

13-18], Plaintiff’s Form 95 [Dkt. 7-2 at pgs. 25-28], U.S. Department of Veteran Affairs letter to Plaintiff 

dated January 30, 2017 [Dkt. 7-2 at pgs. 30-31], and U.S. Department of Veteran Affairs letter to Plaintiff 

dated January 31, 2020 [Dkt. 7-2 at pgs. 33].
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On January 30, 2017, the VA sent a letter to Plaintiff stating that the office had completed 

its investigation into his claim and concluded that his claimed injuries occurred during his 

employment with the VA. [Dkt. 72-2 at pg. 30-31]. The letter further stated that during a 

telephone call with the Plaintiff, he stated that his claim was also for malpractice against the VA 

providers. Id. The letter informed Plaintiff that his claim was denied because the claim was 

governed by the FECA, not the FTCA, and advised him that he may file a request for 

reconsideration. Id. Plaintiff submitted a request for reconsideration of the VA’s decision, which 

was denied on January 31, 2020 on the same basis. [Dkt. 7-2 at pg. 33].

B. The Department of Labor.

In addition to his VA claim, Plaintiff submitted a claim for multiple conditions premised 

on the same basis as his other administrative claim: exposure to toxic fumes on September 3 and 

11, 2014. [Dkt. 7-2 at pg. 2]. Plaintiff sought compensation under the FECA for permanent and 

chronic back pain, degenerative disc disease, steroid-induced osteoporosis with fracture, steroidinduced testicular hypofunction, infectious colitis, enteritis and gastritis, blood poisoning, sleep 

apnea and rheumatic disorders of both mitral and tricuspid valves. Id. The Department of Labor 

exercised jurisdiction over the claim and denied it on January 11, 2018 on the basis that “the 

medical evidence did not establish that the claimant’s medical conditions were causally related to 

his workplace exposure.” [Dkt. 7-2 at pgs. 2-5]. Thereafter, Plaintiff, through counsel, requested 

a telephonic hearing, which was granted and held on June 26, 2018. [Dkt. 9 at pg. 16]. On 

August 30, 2018, the Department of Labor affirmed its denial on the basis that the Plaintiff had 

not discharged his burden of proof to establish that his injuries were causally connected to his 

exposure of fumes. [Dkt. 7-2 at pgs. 2-5].
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On January 8, 2019, Plaintiff filed a timely appeal from the Department of Labor’s merits 

decision on August 30, 2018. [Dkt. 7-2 at pgs. 6-15; Dkt. 9 at pg. 13]. In his brief submitted to 

the Department of Labor, Plaintiff argued that his conditions were related to the exposure of 

toxic fumes, detailing with specificity the occurrences on September 3, 2014 and September 11, 

2014. [Dkt. 7-2 at pgs. 6-15]. In addition, Plaintiff laid out his subsequent medical treatment by 

VA providers and the complications he experienced. Id. Plaintiff argued that his initial 

conditions, as well as the subsequent complications, all began with his work-related exposure to 

toxic fumes, and that without that exposure Plaintiff would never have had a biopsy that led to an 

infection, hernia, or his misdiagnosed sarcoidosis and subsequent skeletal degeneration. Id.

On January 27, 2020, in a written “Decision and Order”, the Department of Labor again 

denied Plaintiff’s claim. [Dkt. 9 at pgs. 13-18]. The Department’s order stated that it had 

jurisdiction over the merits of the claim, but that Plaintiff had not met his burden of proof to 

establish that his lung conditions were causally related to the accepted factors of his federal 

employment. Id. In reaching this decision, the appeals board reviewed 288 medical reports that 

Plaintiff submitted to describe his diagnosed conditions, and board concluded that none of them 

contained a narrative medical opinion regarding the cause of Plaintiff’s diagnosed conditions. Id.

Accordingly, the appeals board denied Plaintiff’s claim, but advised him that he could submit 

new evidence or argument with a written request for reconsideration within one-year of that 

decision. Id.

Plaintiff filed the instant case on July 28, 2020, which seeks compensation for alleged 

medical malpractice that Plaintiff claims he received at the Hines Veteran Affairs Hospital after 

he averred that he had been injured by the exposure to toxic fumes. [Dkt. 1 at ¶10]. Now, 
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however, Plaintiff contends he was mistaken about the cause of his initial injuries, and that these 

injuries were not caused by his exposure to toxic fumes. [Dkt. 9].

II. LEGAL STANDARD

When ruling on a motion to dismiss for lack of subject matter jurisdiction under Fed. R. 

Civ. P. 12(b)(1), the Court must accept as true all well-pleaded factual allegations and draw 

reasonable inferences in favor of the plaintiff. Rueth v. EPA, 13 F.3d 227, 229 (7th Cir. 1993). 

The Court may, however, properly look beyond the jurisdictional allegations of the complaint 

and review any evidence that has been submitted on the issue to determine whether subject 

matter jurisdiction exists. Capitol Leasing Co., 999 F.2d at 191 (per curiam) (quoting Grafon 

Corp. v. Hausermann, 602 F.2d 781, 783 (7th Cir. 1979)).

III. DISCUSSION

A. The Federal Employees Compensation Act.

The Federal Employees Compensation Act is the exclusive remedy for a federal 

employee’s injury on the job. See 5 U.S.C. § 8116(c) (“The liability of the United States . . . 

under this subchapter. . . is exclusive and instead of all other liability . . ..”). It provides

“compensation . . . for the disability or death of an employee resulting from personal injury 

sustained while in the performance of his [or her] duty . . ..” 5 U.S.C. § 8102(a). “When a federal 

employee’s injury falls within the scope of the FECA, its administrative process controls and the 

employee may not sue the government under the Federal Tort Claims Act, 28 U.S.C. § 1346(b), 

seeking damages for the injuries.” Fuqua v. United States Postal Service, 956 F.3d 961, 964 (7th 

Cir. 2020). “The Secretary of Labor has exclusive authority to administer FECA claims and to 

decide questions arising under that Act, including whether a claim is covered.” Id. (citing 5 

U.S.C. § 8145). And the Secretary’s decision to allow or deny payment under the FECA is “not 
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subject to review by another official of the United States or by a court by mandamus or 

otherwise.” 5 U.S.C. § 8128(b)(2). 

The FECA statute “contains an ‘unambiguous and comprehensive’ provision barring any 

judicial review of the Secretary of Labor’s determination of FECA coverage. Consequently, the 

courts have no jurisdiction over FTCA claims where the Secretary determines that FECA 

applies.” Fuqua, 956 F.3d at 964 (quoting Southwest Marine, Inc. v. Gizoni, 502 U.S. 81, 90

(1991)). Because the Secretary of Labor has the sole authority to determine whether the FECA 

applies, the courts’ role is limited to determining whether a “substantial question” of coverage 

exists under the FECA. Id. But unless it is clear that the FECA does not cover a plaintiff’s claim, 

or unless the Secretary concludes that the claim is not covered by FECA, then a substantial 

question of coverage exists and courts are precluded from reviewing the claim. Id.; see also 

Shuford v. United States, 2014 U.S. Dist. LEXIS 117603, 2014 WL 4199408, at *4 (E.D.N.Y. 

2014). This bar extends to situations where the Secretary of Labor exercises jurisdiction over a 

claim but determines that the injury is not compensable under the FECA. Id. Additionally, 

although the Seventh Circuit has not explicitly stated whether the FECA’s exclusivity extends to 

claims of malpractice stemming from treatment of an FECA-covered injury, this principle is 

well-established in other circuits. See Baker v. Barber, 673 F.2d 147, 150 (6th Cir.1982); 

Balancio v. U.S., 267 F.2d 135, 137 (2d Cir. 1959); see also Soltysiak v. United States, 1991 U.S. 

Dist. LEXIS 4434, 1991 WL 55750, at *4 (N.D. Ill. 1991). Accordingly, there is no reason to 

believe the Seventh Circuit would break with this well-established principle. 

Under this framework, the record demonstrates that a substantial question of coverage 

exists under the FECA, and that the Department of Labor exercised jurisdiction over Plaintiff’s 

claim. For starters, the decisions from the Department, at both the hearing representative and 
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appeals board stage, affirms that it exercised jurisdiction over the merits of Plaintiff’s claim. 

[Dkt. 7-2 at pg. 17]. That determination regarding the exercise of jurisdiction is not subject to 

review by the Court. Fuqua, 956 F.3d at 964.

What’s more, the Department of Labor considered Plaintiff’s claim on the merits and 

only denied it on the basis that Plaintiff failed to prove the connection between his diagnosed 

conditions and his initial injury, not that Plaintiff had not suffered a workplace injury. [Dkt. 7-2 

at pgs. 2-5; Dkt. 9 at pgs. 13-18]. The substantial coverage question was thus answered in this 

case when the Department exercised jurisdiction over the claim, even though it eventually denied 

the claim on the merits. A denial of a claim based on a lack of proof does not equate to a finding 

that the claim is not covered under the FECA. See Smith v. Nicholson, 287 F. App’x 402, 404 

(5th Cir. 2008) (holding that where the Secretary of Labor denied a workplace injury claim “not 

for lack of coverage under FECA, but for insufficiency of proof,” that denial was “fatal to [the 

plaintiff’s] federal court action”); Bennett v. Barnett, 210 F.3d 272, 277 (5th Cir. 2000) (“While 

Bennett submitted her claim, it was not denied because of lack of coverage under the FECA, but 

for lack of proof. By ruling on the sufficiency of the evidence, the Secretary thought coverage 

existed. Thus, the district court did not have jurisdiction to try the claim.”); Gonzalez v. United 

States, Case No. 12-cv-5408, 2016 U.S. Dist. LEXIS 196584, 2016 WL 11468593, at *3 

(E.D.N.Y. 2016) (“[T]he OWCP denied Plaintiff’s administrative complaint for insufficient 

evidence. Such a denial was a determination on the merits, and, therefore, the OWCP determined 

that Plaintiff's claim was within the FECA’s coverage. Accordingly, this Court is deprived of 

subject matter jurisdiction to adjudicate this claim.”); Borden v. United States, Case No. 

3:10CV374TSL–MTP, 2011 U.S. Dist. LEXIS 96279, 2011 WL 4060227, at *2 (S.D. Miss. 

2011) (concluding that “[the Secretary of Labor’s] dismissal for lack of sufficient proof of a 
8

compensable injury was a dismissal on the merits, and ‘is fatal to his federal court action’”)

(citing Smith v. Nicholson, 287 F. App’x 402, 404 (5th Cir. 2008)); Scott v. U.S. Postal Serv., 

Case No. 05-0002, 2006 U.S. Dist. LEXIS 68963, 2006 WL 2787832, at *4 (D.D.C. 2006), aff’d, 

258 F. App’x 333 (D.C. Cir. 2007) (“And even though Scott was ultimately denied compensation 

under FECA based on a lack of competent medical evidence, that is immaterial to the issue of the 

Court’s jurisdiction.”); Keller v. Dalton, Case No. 95–CV–0712, 1996 U.S. Dist. LEXIS 842, 

1996 WL 36893, at *3 (E.D. Pa. 1996) (holding that the court lacked jurisdiction over claims 

where the OWCP “found that FECA’s coverage extended to Plaintiff, [but] ruled that the 

evidence before it was insufficient to support the ‘alleged mistreatment’ of Plaintiff”); Lewis v. 

Cisneros, Case No. 94–3267, 1995 U.S. Dist. LEXIS 1284, 1995 WL 33662, at *2 (E.D. La. Jan. 

27, 1995) (dismissing case for lack of jurisdiction because “[t]he Order [from the Department of 

Labor] expressly denies plaintiff’s claims for lack of evidence, not for jurisdictional flaws”); 

Cardwell v. United States, Case No. 92–0107, 1992 U.S. Dist. LEXIS 18571, 1992 WL 368495, 

at *3 (E.D. Pa. Dec. 3, 1992), aff’d, 6 F.3d 778 (3d Cir. 1993) (inferring that the Secretary of 

Labor determined “that plaintiff’s claim is cognizable under the FECA” because the Department 

of Labor “ruled on the merits of plaintiff’s FECA claim”). Therefore, because the Department of 

Labor affirmatively exercised jurisdiction over Plaintiff’s claim, this Court is deprived of 

jurisdiction over either Plaintiff’s exposure-related claim or the subsequent treatment thereafter.

Moreover, Plaintiff’s attempt to distinguish Fuqua v. U.S. Postal Service is not 

persuasive. To be sure, Fuqua involved a claim for emotional distress and not a claim for 

medical malpractice, but the general principles identified in that case apply with equal force here. 

More specifically, Fuqua supports that the FECA bars judicial review of the Secretary of Labor’s 

determination of FECA coverage, even where the Secretary ultimately determines that the 
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employee is not entitled to any benefits. Fuqua, 956 F.3d at 964. And since Fuqua is one of the 

few Seventh Circuit decisions providing guidance on FECA’s barring provision, and is one of 

the more recent opinions on the topic, it provides the best guidance here.

In addition, the difficulty with accepting Plaintiff’s position—i.e., that he was mistaken 

about the cause of his initial injury—is that it relies entirely on hindsight and is not based on the 

considerations at the time that he sought treatment at a governmental facility. For comparison, in 

Scalia v. United States, the district court held that the sole remedy against the United States for 

injuries sustained by a federal employee alleging medical malpractice, which occurred while the 

employee was being treated by the Public Health Service, are those under the FECA, even if the 

treatment is claimed to have been mistakenly provided for an illness which, if properly 

diagnosed, would not have been covered by the FECA. 475 F. Supp. 1040, 1043 (S.D.N.Y. 

1979). In that case, the plaintiff sued the United States on the basis that his medical providers 

committed malpractice when they failed to diagnose a cancerous condition while providing 

treatment to him for a lower back strain injury that was believed to be work-related. Id. at 1041-

1042. Similar to the present case, the plaintiff argued that his condition was not, in fact, workrelated and therefore “the Government’s erroneous initial belief that his malady was work-related 

should not [have] estop[ped the] plaintiffs from seeking a remedy which they [believed would]

be more generous to them.” Id. at 1043. In ruling that the plaintiff’s exclusive remedy was the 

FECA, the court noted that the plaintiff’s argument inappropriately relied on hindsight, and that 

such a position would create a perverse incentive for the government to adopt more restrictive 

practices for providing medical treatment to employees claiming to be injured at work. Id.

The Court finds the analysis in Scalia persuasive and adopts it here. With respect to 

Plaintiff’s malpractice claim, the proper analytical starting point is the belief at the time the 
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treatment was provided, which, based on the proceedings before the Department of Labor, was 

that the medical treatment was being provided in response to Plaintiff’s allegations that he was 

injured as a result of his exposure to toxic fumes. Indeed, the Plaintiff consistently alleged in 

those proceedings that his injuries were the result of his work-related exposure to toxic chemicals 

and fumes. Thus, because the medical treatment was provided in response to an injury that was 

regarded as a FECA-covered injury, any malpractice claim that arose out of that treatment would 

also be covered by the FECA. To hold otherwise would frustrate both the practical and 

comprehensive functions of the FECA. See Vottler v. United States, 904 F.2d 128, 130 (2nd Cir. 

1990).

B. The Dual-Capacity Doctrine.

Lastly, the Court briefly addresses the applicability of the dual-capacity doctrine, which, 

although not invoked by name, could be considered implicitly acknowledged by the parties’

citation to Wright v. United States, 717 F.2d 254, 278 (6th Cir. 1983). The dual-capacity doctrine 

states that an employer becomes liable to a tort suit if it “‘possesses a second persona so 

completely independent from and unrelated to [its][] status as employer that by established 

standards the law recognizes it as a separate legal person.’” Wright, 717 F.2d at 259. In other 

words, the dual-capacity doctrine permits a tort action under the FTCA, outside the Department 

of Labor, where the government’s medical treatment is provided primarily in the capacity of a 

doctor-patient relationship rather than within the employer-employee relationship. Id.

This doctrine does not apply here. First, the dual-capacity doctrine is not recognized by 

the Seventh Circuit, and most other circuits have criticized or outright rejected its application. 

See Spinelli v. Goss, 446 F.3d 159, 161 (D.C. Cir. 2006); Elman v. United States, 173 F.3d 486, 

490-92 (3d Cir. 1999); Vottler, 904 F.2d at 130; Wilder v. United States, 873 F.2d 285, 289 (11th 
11

Cir. 1989) (per curiam); Vilanova v. United States, 851 F.2d 1, 7 n.24 (1st Cir. 1988), cert. 

denied, 488 U.S. 1016, 109 (1989); Schmid v. United States, 826 F.2d 227, 229-30 (3d Cir.

1987). In fact, the Sixth Circuit itself, which is the only circuit to ever adopt the dual-capacity 

doctrine, effectively abandoned and overruled the dual-capacity doctrine line of reasoning in 

later cases. See Williamson v. United States, 862 F. 3d 577, 581-83 (6th Cir. 2017) (“By using 

Wright’s primary holding and declining to rely on the dual-capacity doctrine, we effectively held 

in McCall that Wright is correct for its primary holding and not because of its alternative 

reasoning.[] McCall therefore significantly undermines the precedential value of Wright’s 

alternative holding, and thus the entire dual-capacity doctrine, as it applies to FECA”); McCall v. 

United States, 901 F.2d 548, 551-52 (6th Cir. 1990). 

Second, even assuming that this doctrine was recognized within this circuit, the medical 

treatment in this case was not independent and unrelated to Plaintiff’s employment; rather, it was 

provided in reaction to Plaintiff’s assertions that he was injured as a result of exposure to toxic 

fumes. As such, the treatment provided did not transform the Defendant’s relationship with the 

Plaintiff from employer-employee to doctor-patient. Accordingly, the dual-capacity doctrine 

would not apply here even if it remained good law. 

IV. CONCLUSION

For the foregoing reasons, the Court grants Defendant’s motion [6] and dismisses this 

action pursuant to Fed. R. Civ. P. 12(b)(1) without prejudice. See Murray v. Consenco, Inc., 467 

F.3d 602, 605 (7th Cir. 2006) (“A court that lacks subject matter jurisdiction cannot dismiss a 

case with prejudice”).
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SO ORDERED. ENTERED: March 20, 2021

_____________________________ 

HON. JORGE ALONSO

United States District Judge