IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 02-10892 Summary Calendar

STANLEY M. SCHWARTZ,

Plaintiff-Appellant,

versus

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION; UNITED STATES DEPARTMENT OF LABOR; UNITED STATES OF AMERICA,

Defendants-Appellees.

Appeal from the United States District Court for the Northern District of Texas (USDC No. 3:01-CV-479-M) _______________________________________________________ January 14, 2003

Before REAVLEY, SMITH and STEWART , Circuit Judges.

PER CURIAM:*

Stanley M. Schwartz appeals the district court’s dismissal without prejudice

* Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. of his Federal Tort Claims Act (“FTCA”),

et seq., suit against the

United States Department of Labor (“DOL”), the Occupational Safety and Health

Review Commission (“the Commission”), and the United States. Schwartz,

formerly employed by the Commission as an Administrative Law Judge (“ALJ”),

claims that the intentional conduct of employees of the DOL and the Commission

during the spring and summer of 1999 caused him severe emotional distress. The

district court dismissed Schwartz’s suit as preempted by the Federal Employees’

Compensation Act (“FECA”),

et seq. We affirm for the following

reasons:

1. The FECA provides an exclusive remedy for a federal employee’s personal

injuries “sustained while in the performance of his duty.”

(a); White v. United States,

(5th Cir. 1998). Federal

district courts only have subject matter jurisdiction over disputes between the

United States and one of its employees regarding the personal injury of the

employee if it is certain that the Secretary of Labor would find no FECA

coverage. See White,

. If there is a substantial question

regarding whether the injury is compensable under FECA, the suit must be

stayed or dismissed to allow the employee to pursue his claims under the

FECA.

2 2. When an employee’s emotional disability results from his emotional reaction

to his regularly or specially assigned work duties, or to a requirement

imposed by the employment, the disability comes within the coverage of the

FECA. Lillian Cutler, 28 Empl. Comp. App. Bd. 125, 129-30 (1976),

available at

. An employee’s emotional reaction to

administrative actions or personnel matters taken by the employing

establishment is not covered under the Act, as such matters pertain to

procedures and requirements of the employer and do not bear a direct relation

to the work required of the employee. Sandra Davis, 50 Empl. Comp. App.

Bd. 450, 459 (1999), available at

, citing Richard J. Dube,

42 Empl. Comp. App. Bd. 916 (1991). However, if the factual circumstances

surrounding the administrative or personnel action established error or abuse

by the employing establishment, the disability is compensable under the

FECA.

. Schwartz claims his emotional distress resulted from the manner in which he

was assigned cases. As an ALJ for the Commission, it was his duty to hear

and adjudicate disputes between the DOL and OSHA violators assigned to

his docket. There is accordingly a substantial question whether Schwartz’s

emotional reaction to the manner in which he was assigned cases occurred in

3 the performance of his duties as an ALJ.

4. Schwartz further claims his emotional distress resulted from the

Commission’s treatment of him with respect to reimbursement for travel and

relocation expenses and the charging of annual leave. Schwartz’s complaint

alleged he was treated differently from other similarly situated employees.

Although these are personnel matters because they do not bear a direct

relation to the work of an ALJ, see Davis,

, at *8, the

factual allegations of Schwartz’s complaint and the record created during the

limited discovery allowed by the district court suggest error or abuse by the

Commission. Thus, a substantial question exists regarding whether

Schwartz’s injuries are compensable under the FECA.

5. Schwartz also claims his emotional distress resulted from an investigation of

his activities as an ALJ prompted by allegedly improper contact between the

DOL and the Commission.1 Investigations that do not involve an employee’s

regularly or specially assigned duties are administrative matters, and do not

constitute compensable employment factors absent a showing of error or

1 According to Schwartz, counsel for the DOL’s OSHA litigation office in Dallas circulated an e-mail to his co-workers requesting that they inform him when Schwartz required attorneys to read settlements into the record. The e-mail also claimed Schwartz was “creating some very unusual orders [that] need to be considered carefully.” R. 11-12. Schwartz contends this e-mail was prompted by contact between Commission management and DOL employees.

4 abuse. Otis R. Myles, No. 02-307 (E.C.A.B. 2002), available at

, at *3. On the facts alleged by Schwartz, the DOL and the

Commission sought to investigate his conduct as an ALJ, and thus the

investigation involved Schwartz’s regularly assigned duties. Additionally,

Schwartz alleges the contact between the DOL and the Commission was

improper, which raises a substantial question regarding whether there was

error or abuse. Given these circumstances, we cannot say it is certain that

Schwartz’s injuries are not compensable under the FECA.

6. Actions which the employee characterizes as harassment or retaliation may

constitute factors of employment giving rise to coverage under the FECA if

the claim of harassment or retaliation is supported by probative and reliable

evidence. Davis,

, at *5. To the extent that Schwartz

characterizes the actions of the Commission as retaliation for promotion of a

plan to reopen the Commission’s Dallas office, the actions may give rise to

FECA liability.

7. Lastly, Deborah B. Sanford, Director of Federal Employees’ Compensation,

Office of Workers’ Compensation Programs for the DOL, rendered an

opinion in this litigation concluding that Schwartz’s injuries may be covered

by the FECA. R. 61-66. After a thorough review of Employee

5 Compensation Appeals Board decisions and the complaint, Sanford

concluded that Schwartz’s injuries may be compensable under FECA. We

find her opinion persuasive. There is a substantial question regarding whether

Schwartz’s claim of intentional infliction of emotional distress is covered by

FECA.

AFFIRMED.

6