7 F.3d 1405 (9th Cir. 1993), 92-15914, Figueroa v. United States

Docket Nº:92-15914, 92-16602.
Citation:7 F.3d 1405
Party Name:Eladio T. FIGUEROA, et al., Plaintiffs-Appellees, v. UNITED STATES of America, A.D. Loizeaux, G.E. Monroe, T.J. Johnson, et al., Defendants-Appellants. Eladio T. FIGUEROA, Leo A. Abilo; Bartolome E. Abuan, Romeo A. Acejo, et al., Plaintiffs-Appellants, v. UNITED STATES of America, et al., Defendants-Appellees.
Case Date:October 19, 1993
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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7 F.3d 1405 (9th Cir. 1993)

Eladio T. FIGUEROA, et al., Plaintiffs-Appellees,


UNITED STATES of America, A.D. Loizeaux, G.E. Monroe, T.J.

Johnson, et al., Defendants-Appellants.

Eladio T. FIGUEROA, Leo A. Abilo; Bartolome E. Abuan, Romeo

A. Acejo, et al., Plaintiffs-Appellants,


UNITED STATES of America, et al., Defendants-Appellees.

Nos. 92-15914, 92-16602.

United States Court of Appeals, Ninth Circuit

October 19, 1993

Argued and Submitted July 15, 1993.

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Edward R. Coulson, Bennet A. McConaughy, Joseph E. Delaney, Foster, Pepper & Shefelman, Seattle, WA, for plaintiffs-appellants/plaintiffs-appellees.

Stuart M. Gerson, Asst. Atty. Gen., Frederick A. Black, U.S. Atty., Barbara L. Herwig, Richard Montague, Attys., Civ. Div., U.S. Dept. of Justice, Washington, DC, for defendants-appellants.

Stuart M. Gerson, Asst. Atty. Gen., Frederick A. Black, U.S. Atty., J. Patrick Glynn, Director, JoAnn J. Bordeaux, Deputy Director, Paul M. Honigberg, Judith N. Macaluso, Torts Branch, Civ. Div., U.S. Dept. of Justice, Washington, DC, for defendant-appellee U.S.

Appeal from the United States District Court for the District of Guam.

Before: WALLACE, Chief Judge, and D.W. NELSON and O'SCANNLAIN, Circuit Judges.

D.W. NELSON, Circuit Judge:

In May of 1987, an electrical transformer ruptured at the Piti Power Plant on the United States Naval Base in Guam, releasing a variety of toxic chemicals. Subsequently, 251 federal employees who were at the plant at the time of the accident filed suit against the United States and twelve individuals who supervised the toxic spill clean-up. Plaintiffs brought five causes of action against the United States under the Federal Tort Claims Act, 28 U.S.C. §§ 2671-80 ("FTCA"). Their Sixth cause of action was directed at the individual Defendants and alleged a substantive due process claim for tortious conduct. All Plaintiffs' claims stemmed from their allegations that Defendants were negligent or grossly negligent: 1) in ordering Plaintiffs to clean-up the polychlorinated biphenyls chemicals and to return to work without advising them about appropriate protective measures or securing the area; and 2) in not providing proper medical care immediately after the explosion. Plaintiffs sought damages for current and potential future physical injuries and for emotional distress resulting from their fear that they would develop cancer at some future date.

The government moved to dismiss all claims against it on the ground that these claims were preempted by the Federal Employees' Compensation Act, 5 U.S.C. § 8101 et seq. ("FECA"). The individual Defendants moved for dismissal of the constitutional tort claim on the ground of qualified immunity. The district court granted the government's motion based on its judgment that the FECA coverage question should be resolved by the Secretary of Labor ("Secretary"). The district court denied the individual Defendants' motion. All parties timely appeal.


I. FECA Preemption

Under FECA, federal employees are compensated for injuries sustained during the performance of their duties. The remedies provided under FECA are exclusive of all other remedies against the United States for job-related injury or death. 5 U.S.C. § 8116(c).

There are two sorts of FECA coverage questions. The first question is whether FECA covers a particular type of injury. This is a question of "the scope of coverage." Sheehan v. United States, 896 F.2d 1168, 1174 (9th Cir.), modified, 917 F.2d 424 (9th Cir.1990). The second question is whether a plaintiff is entitled to compensation under the facts of a particular event. This question requires a determination of such facts as " 'whether the injury ... occurred while the employee was on the job.' " Id. (quoting

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Griffin v. United States, 703 F.2d 321, 322 (8th Cir.1983). This is a question of "coverage in and of itself." Id. (internal quotations omitted).

In this case, the district court dismissed Plaintiffs' FTCA claim on the ground that there was a question of FECA preemption concerning Plaintiffs' alleged injuries which should be resolved by the Secretary of Labor. Plaintiffs appeal from this dismissal, arguing that under Sheehan this is a question of scope of coverage and the district court was therefore required to resolve the question itself. Defendant counters that this case is more akin to Reep v. United States, 557 F.2d 204 (9th Cir.1977), under which the district court correctly deferred the question of coverage to the Secretary. Id. at 207-208.

Sheehan held that when there is a question about the scope of FECA coverage, this question should be resolved by the district court and Reep's instruction to defer coverage questions to the Secretary "does not apply." 896 F.2d at 1174 (internal quotations omitted). Rather, Reep only applies when there are questions about whether a particular factual circumstance falls under FECA. Id. In Sheehan, however, the plaintiff's claim was not colorable under FECA as a matter of law. Sheehan's holding regarding who should resolve a FECA scope of coverage question rested upon this court's judgment that the alleged emotional distress was "divorced from any claim of physical harm." Id. Thus Sheehan stands only for the proposition that when a plaintiff has failed to allege a colorable claim under FECA as a matter of law, the district court should render a judgment. We do not read Sheehan as altering the general rule that when a claim arguably falls under FECA, the question of coverage should be resolved by the Secretary. See Reep, 557 F.2d at 207.

In this instance, Plaintiffs' claims are colorably under FECA. Plaintiffs' alleged mental distress injuries are tied to physical harm, both potential and actual. As a result of their exposure to the PCBs, and after suffering some medical problems, Plaintiffs are concerned about developing cancer. Under FECA, an occupational disease or illness includes:

a condition produced in the work environment over a period longer than a single work day ... by such factors as ... continued or repeated stress or strain; or exposure to hazardous elements such as, but not limited to, toxins, poisons, fumes ... or repeated conditions ... of the work environment.

20 C.F.R. § 10.5(a)(16). FECA thus contemplates coverage for a condition produced over a long period of time by "stress" or as a result of being exposed to a "toxic" substance that may cause future harm. Arguably, mental distress is a form of stress. It takes only a small step to conclude that FECA also contemplates coverage for a condition of emotional distress that results from the stress of being exposed in a discrete event to a toxic substance that could cause future physical harm.

Moreover, the Department of Labor has determined that emotional distress may be considered a disability when it arises "from [a worker's] emotional reaction to ... a requirement imposed by the employment." In re Lillian Cutler & Dept. of Labor, 28 Dig. & Dec.Empl.Comp.App.Bd. 125 (1979); Castro v. United States, 757 F.Supp. 1149, 1151 (W.D.Wash.1991) (observing that FECA covered emotional distress claims that arose from a "reaction to ... regular or specially assigned work duties"); Burke v. United States, 644 F.Supp. 566, 568 (E.D.La.1986) (discussing Assistant Administrator of Labor's official affirmative response to whether job-related mental distress fell under FECA) (emphasis supplied). Accordingly, the district court properly dismissed plaintiffs' FTCA claims in order to allow the Secretary to resolve the question of whether or not the claims are covered by FECA.

II. Qualified Immunity

Ordinarily, the denial of a 12(b)(6) motion is not a reviewable final order; it is only when a question of immunity is involved that we use the collateral order doctrine to exercise jurisdiction. We review the district court's denial of a 12(b)(6) motion de novo. Fresno Rifle and Pistol Club, Inc. v. Van De Kamp, 965 F.2d 723, 725 (9th Cir.1992). We

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assume the truth of the complaint's well-pleaded factual allegations and construe them in the light most favorable to the plaintiff. Oscar v. University Students Coop. Ass'n, 965 F.2d 783, 785 (9th Cir.), cert. denied, --- U.S. ----, 113 S.Ct. 655, 121 L.Ed.2d 581 (1992). A 12(b)(6) motion should not be granted "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957).

The twelve individual Defendants argue that the district court erred in denying their motion to dismiss since the Plaintiffs' constitutional claim is not cognizable under the due process clause. In the alternative, Defendants argue that they are entitled to qualified immunity. We need only deal with the latter challenge.

"[G]overnment officials performing discretionary functions, generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). In order to proceed in their suit against the individual Defendants, Plaintiffs must have alleged a violation of a right that was clearly established in 1987 at the time of the accident. Siegert v. Gilley, 500 U.S. 226, ----, 111 S.Ct. 1789, 1793, 114 L.Ed.2d 277 (1991); Anderson v. Creighton, 483 U.S. 635, 639-40, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987). In addition, the contours of that right "must be sufficiently clear that a reasonable official would understand that what he is doing violates that right." Anderson, 483 U.S. at 640, 107 S.Ct. at 3039.

Defendants argue that Plaintiffs' substantive due process claim is essentially a claim...

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