904 F2d 711 Walker v. Secretary Navy L 71

904 F.2d 711

Unpublished Disposition

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

Willie Hugh WALKER, Jr., Plaintiff-Appellant,
SECRETARY Of the NAVY, et al.; Puget Sound Naval Shipyard;
Robert L. Dotson, in his capacity as Group Superintendent
for Shop 71; Gordon B. Owens, in his capacity as General
Foreman for Shop 71; Orval Dean, M.D., in his capacity as
Doctor for the Base Dispensary, Defendants-Appellees.

No. 89-35150.

United States Court of Appeals, Ninth Circuit.

Submitted June 4, 1990.*
Decided June 12, 1990.


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The appellant, Willie Hugh Walker, Jr., appeals pro se the district court's dismissal of his claim under the Federal Tort Claims Act (the FTCA), 28 U.S.C. Sec. 1346(b) and Secs. 2671-2680 (1982 & Supp. V. 1987). The district court dismissed the action, finding that Walker's exclusive remedies were under the Federal Employees Compensation Act (FECA), 5 U.S.C. Secs. 8101-8193 (1988). The court also found that under section 8128(b) of FECA, there is no judicial review of decisions made by the Secretary of Labor.1 Consequently, the district court dismissed the complaint as lacking arguable substance in law under 28 U.S.C. Sec. 1915(d) (1982).2


Walker's amended complaint alleged that the Navy committed medical malpractice and negligence by forcing Walker, a sandblaster, to work in environmentally hazardous conditions that brought on eczema, eye problems, asthma, an allergy, and mental distress. Walker alleged he filed administrative claims under FECA for only three of the five medical conditions.


On appeal, in addition to his claims of medical malpractice and negligence, Walker argues that his constitutional rights of equal protection and freedom of expression were violated.



The exclusivity provision of FECA, 5 U.S.C. Sec. 116(c), requires that injuries to federal employees allegedly sustained during work-related activities must be compensated under the FECA program administered by the Secretary of Labor. David v. United States, 820 F.2d 1038, 1043 (9th Cir.1987). We have held that a plaintiff must file an administrative claim for FECA benefits before commencing a tort action under the FTCA unless it is clear the injuries are not covered under FECA. Id. at 1043-44 (citing Reep v. United States, 557 F.2d 204, 208 (9th Cir.1977)).


Administrative claims were filed for only three of Walker's five alleged medical problems. Walker does not argue his claims are not covered under FECA, and we do not find it clear that his complaints are not compensable under FECA. Therefore, we affirm the district court's dismissal of the two claims for which administrative claims were not filed.


Of the three remaining alleged injuries for which administrative claims were filed, Walker does not appeal the claim related to the allergy (No. A14-187726). The claim regarding Walker's eye problem (No. A14-200577) was denied on January 11, 1984, for failure to sustain the claimant's burden of proof that the medical problem was work-related. Walker was notified of his appeal rights, but he failed to pursue them.

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Section 8128(b) of FECA precludes judicial review of an action of the Secretary " 'in allowing or denying a payment.' " Rodrigues v. Donovan, 769 F.2d 1344, 1347 (9th Cir.1985) (quoting section 8128(b)). The district court correctly found it lacked jurisdiction over the claims that were denied: this would be an impermissible review of the merits of the Secretary's decision. Id. at 1347-48.


After the amended complaint was filed, the final administrative claim for asthma (No. A14-230830) was also denied. Appellant's Opening Brief at 22. Neither the district court nor this court has jurisdiction to review this denial for the reasons previously given. Further, once it is determined that an injury is within the scope of FECA coverage, the employee may not bring a federal tort claim action for that injury, even if FECA does not provide compensation for the injury. Posegate v. United States, 288 F.2d 11 (9th Cir.), cert. denied, 368 U.S. 832 (1961).


The Equal Protection and Free Expression Arguments


Walker alleged no constitutional violations in his amended complaint. Instead, he stated tangentially that race discrimination prompted a recommendation that Walker work away from the area where the alleged problem occurred.3


In a motion for reconsideration, Walker argued that the district court had jurisdiction to review whether the policies and practices allegedly exercised by the Navy violated the Constitution. For the first time, he claimed his rights of free expression and equal protection were violated, "owing to the due process clause." The district court denied the motion. That decision was correct for several reasons.


First, we have held that the refusal to consider issues not raised until a motion for reconsideration is not an abuse of a district court's discretion. Northwest Acceptance Corp. v. Lynnwood Equip., Inc., 841 F.2d 918, 925-26 (9th Cir.1988). We have also observed that "[t]here can be no 'reconsideration' of an issue which has not previously been considered." Wagner v. United States, 374 F.2d 86, 87 (9th Cir.1967). We stated that if a party desires to make a contention not previously advanced, "he should have done so by a separate motion and not by one which, by its definition, embraced contentions already advanced and correctly rejected." Id. This observation is particularly apt where Walker successfully moved twice to amend his complaint, but never moved to amend it to add the allegations of a constitutional violation.


Second, a mere allegation of a constitutional violation is not sufficient to avoid the effect of the finality provision of section 8128(b). Rodrigues, 769 F.2d at 1348. Nothing in the record indicates that Walker was not provided with due process. See id. Certainly, no facts are alleged to show a violation of Walker's first amendment rights. A fair reading of the entire amended complaint is that the basis of Walker's action is his medical condition from working in hazardous environmental conditions. His arguments on reconsideration regarding equal protection and free expression are nothing more than an attempt to create jurisdiction where none would otherwise exist. See id.


Third, and most important, the Supreme Court has held that Title VII is the exclusive remedy for claims of discrimination in the federal government for claims that are cognizable under Title VII. Brown v. General Serv. Admin., 425 U.S. 820, 835 (1976); Kotarski v. Cooper, 799 F.2d 1342, 1345 (9th Cir.1986), vacated and remanded on other grounds, 487 U.S. 1212 (1988); after remand, 866 F.2d 311 (9th Cir.1989). Race discrimination is cognizable under Title VII. 42 U.S.C. Sec. 2000e-2(a) (1982). Therefore, Walker may not bring claims of racial discrimination under the FTCA.4


On appeal, Walker renews the argument that his constitutional rights were violated. For the reasons stated above, we need not consider the issue. The district court properly determined that Walker's complaint lacked arguable substance in the law.




The panel unanimously finds this case suitable for submission on the record and briefs and without oral argument. Fed.R.App.P. 34(a) and Ninth Circuit Rule 34-4


This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3


With respect to review of awards, section 8128(b) states:

The action of the Secretary or his designee in allowing or denying a payment under this subchapter is--

(1) final and conclusive for all purposes and with respect to all questions of law and fact, and

(2) not subject to review by another official of the United States or by a court by mandamus or otherwise.


Walker was also a pro se in forma pauperis litigant before the district court. He was denied appointment of counsel by the district court and by this court in an order filed on February 2, 1990, by Judges Thompson and Fernandez


In a long paragraph describing hazardous working conditions, Walker's alleged resultant medical problems, and visits to the Navy and his own doctor for medical care, Walker states:

On June 14, 1983, the plaintiff started seeing a Mental Health Doctor, whose name is Gary Tobin, of Group Health Cooperative. He started seeing Mr. Tobin because of racial attacks by white co-workers, and abuse by the defendant. Mr. Tobin recommended that the plaintiff work away from area that initial stress was experience, at least until the issue of racial discrimination is resolved. The defendant refused the recommendation, and negligently placed the plaintiff in the same work environment.


The government informs us that Walker filed two claims for race discrimination under Title VII with the Equal Opportunity Employment Commission and a claim with the Merit Systems Protection Board as a result of the incidents he alludes to in the amended complaint. According to the government, all the claims have been denied. Appellee's Brief at 4 n. 2