UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

SABELITA HAWKINS, an individual No. 19-35918 and resident of the State of Washington, D.C. No. Plaintiff-Appellant, 2:16-cv-00498- JLR v. UNITED STATES OF AMERICA; OPINION DEPARTMENT OF VETERANS AFFAIRS; VA PUGET SOUND HEALTH CARE SYSTEM; JOHN DOES, 1–10; JANE DOES, 1–10, Defendants-Appellees.

Appeal from the United States District Court for the Western District of Washington James L. Robart, District Judge, Presiding

Argued and Submitted June 8, 2021 Seattle, Washington

Filed September 28, 2021

Before: William A. Fletcher, Paul J. Watford, and Daniel P. Collins, Circuit Judges.

Opinion by Judge Watford 2 HAWKINS V. UNITED STATES

SUMMARY *

Federal Tort Claims Act / Federal Employees’ Compensation Act

The panel reversed the district court’s judgment against the plaintiff in her Federal Tort Claims Act (“FTCA”) action alleging negligent medical care provided by Drs. Daniel Doan and Carl Jensen at a hospital run by the Department of Veterans Affairs (“VA”).

Plaintiff is a veteran of the U.S. Navy who suffered a mental breakdown at work. She sought follow-up psychiatric care at a VA hospital, where she allegedly received negligent treatment from VA Drs. Doan and Jensen. At the time she sought treatment, plaintiff was an employee of the federal government, and she claimed her mental breakdown in October 2011 was caused by years of workplace bullying and harassment by her supervisor.

The Federal Employees’ Compensation Act (“FECA”) establishes a workers’ compensation scheme that covers most federal employees, and when an employee sustains an injury covered by FECA, the exclusive remedy is to seek compensation under FECA.

The panel held that the district court erred in dismissing plaintiff’s FTCA action on the ground that it was barred by the FECA. In this case, plaintiff was not suing the United States for injuries caused by the workplace bullying and harassment, but rather sought to recover damages for the

* This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. HAWKINS V. UNITED STATES 3 alleged malpractice of the individual doctors. The panel held that Lance v. United States, 70 F.3d 1093, 1095 (9th Cir. 1995) (per curiam) (holding that “when Congress gave federal employees the right to recover for an injury under FECA, it took away their right to sue the government in tort for medical malpractice arising out of the injury”), did not control the outcome here because the injury for which plaintiff sought medical treatment was not job-related. Before filing this action, plaintiff pursued a claim for benefits under FECA to recover compensation for the workplace bullying and harassment. The agency that administers FECA, the Office of Workers’ Compensation Programs (OWCP), denied the claim, and concluded that plaintiff’s injury was not sustained while in the performance of duty, as required for recovery under FECA. The panel concluded that under these facts, plaintiff could pursue her claim for medical malpractice under the FTCA. Once the OWCP concluded that plaintiff’s mental breakdown was caused by events or circumstances outside the workplace, she was free to seek recovery under the FTCA for alleged malpractice of her VA doctors. The panel remanded for further proceedings.

COUNSEL Tuella O. Sykes (argued), Law Office of Tuella O. Sykes, Seattle, Washington, for Plaintiff-Appellant. Teal Luthy Miller (argued), Assistant United States Attorney; Brian T. Moran, United States A