David Bourke v. United States of America

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 21-1966
DAVID BOURKE,
Plaintiff-Appellant,
v.
U NITED S TATES OF A MERICA,
Defendant-Appellee.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 20 C 4427 — Jorge L. Alonso, Judge.
____________________
A RGUED NOVEMBER 29, 2021 — DECIDED F EBRUARY 2, 2022
____________________
Before EASTERBROOK, S CUDDER , and S T. EVE, Circuit Judges.
EASTERBROOK, Circuit Judge. David Bourke was exposed to
fumes during his employment with the Veterans Administra-
tion. He received treatment at a VA hospital and contends that
medical malpractice there caused him serious injuries. After
he sought compensation from two sources—(1) the Depart-
ment of Labor (under the Federal Employees Compensation
Act) for on-the-job injuries and any consequences of those

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2 No. 21-1966
injuries, and (2) the United States (under the Federal Tort
Claims Act) for medical malpractice—each body pointed to
the other as the right source of relief. The Department of La-
bor processed Bourke’s claim but found that he had not
shown that his asserted injuries had been caused either di-
rectly or indirectly by exposure to fumes, and the VA (han-
dling the FTCA claim) concluded that, once Bourke applied
to the Department of Labor, all other sources of relief were
precluded.
Having got the runaround, Bourke turned to the judiciary
under the Tort Claims Act. He now accepts the Department of
Labor’s conclusion that conditions at work did not cause the
medical issues for which he was treated by the VA, and he
contends that he is entitled to relief under the FTCA for med-
ical malpractice. The district court rejected his complaint on
the ground that the Federal Employees Compensation Act of-
fers his sole avenue of relief. 2021 U.S. Dist. L EXIS 96045 (N.D.
Ill. May 20, 2021). Once the Department of Labor adjudicates
a claim, the judge held, the applicant must accept the result
because the Compensation Act forecloses other sources of re-
lief, see 5 U.S.C. §8116(c), and 5 U.S.C. §8128(b)(2) blocks ju-
dicial review of the Department’s decisions.
But Bourke is not seeking judicial review of the Depart-
ment of Labor’s decision. He accepts its conclusion that fumes
in his workplace did not cause the conditions for which he
was treated by the VA. Bourke once argued otherwise but
now treats the Department’s decision as gospel. Someone
who loses before the Department can’t contest that outcome
in court—but Bourke insists that a loser may pursue other
remedies that are compatible with the Department’s views.
The United States, however, defends the district court’s

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No. 21-1966 3
conclusion that, once the Department of Labor accepts a claim
for resolution, the claimant has forfeited any other potential
remedy.
By that standard, if a federal employee wrongly thought
that he had been poisoned at work, and that belief led him to
cross the road to seek medical care, he could not sue a Postal
Service driver who negligently hit him or a robber who re-
lieved him of his wallet after he was disabled by the careening
postal van. That seems an extravagant outcome to attribute to
the exclusivity clause in §8116(c), which says no more than
that “[t]he liability of the United States … under this subchap-
ter … is exclusive and instead of all other liability”.
Liability “under this subchapter” is exclusive, but how far
does this extend? “[T]his subchapter” refers to Subchapter I
of Chapter 81 of Title 5—in other words, to 5 U.S.C. §§ 8101–
52. Subchapter I covers on-the-job injuries suffered by federal
employees. See 5 U.S.C. §8102(a). If an injury comes within
Subchapter I, then consequential losses also are covered.
Courts have concluded that the United States is liable when
an on-the-job injury is treated negligently at a hospital, mag-
nifying the job-related loss. See Baker v. Barber, 673 F.2d 147,
150 (6th Cir. 1982); Balancio v. United States, 267 F.2d 135, 137
(2d Cir. 1959). Cf. 5 U.S.C. §8101(3), (5). And when an injury
comes within the Federal Employees Compensation Act, the
employee cannot turn to other sources of damages. The dis-
trict court relied on these cases when ruling against Bourke.
The flaw in that approach, however, is the Department of La-
bor’s finding that Bourke was not injured on the job, and thus
was not treated by the VA for a condition that arose out of his
employment. That finding took Bourke’s claim for medical
malpractice at the VA outside the scope of Subchapter I.

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4 No. 21-1966
According to the United States, §8116(c) precludes liability
under the FTCA whenever the Department of Labor “ac-
cepts” a claim for adjudication, no matter what the Depart-
ment does next. Yet the statute does not say this. It links ex-
clusivity to “liability of the United States … under this sub-
chapter”. If the Department concludes that the United States
is not liable “under this subchapter” because the claimant’s
injury does not stem from the job, then “this subchapter”
drops out. And that’s what the Department concluded about
Bourke: he was exposed to fumes on the job but not injured
by them. We have not found any language in Subchapter I
supporting the proposition that any adjudication by the De-
partment of Labor knocks out every source of compensation
for injuries unrelated to federal employment. Baker and Balan-
cio hold that consequential damages are compensable under
the Federal Employees Compensation Act, but they do not
hold that losses that can’t be traced to on-the-job injuries are
covered by this Act.
We’ve already given one example: an employee who
crosses the street while healthy and is hit by a van. Here’s an-
other. A federal employee smells an odor at work and goes
home. Instead of resting in an easy chair until his workday
would have ended, he takes a bicycle ride, falls, and breaks
his arm. He then reports to a VA hospital, where his arm is
amputated by a surgeon who should have set the broken bone
instead. The Department of Labor concludes that nothing was
wrong at the workplace (the smell came from Limburger
cheese in someone else’s lunch) so that the employee did not
suffer an injury within the scope of the Federal Employees
Compensation Act. The Department’s finding would take the
situation outside Subchapter I and permit the employee to sue
for medical malpractice under the Tort Claims Act.

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No. 21-1966 5
Any other approach allows ambiguity to defeat liability.
Consider Bourke’s situation (as Bourke describes it). Fumes at
work sickened him and led him to seek medical care, which
made his condition worse. On that understanding, the United
States bears responsibility, for it operated both the workplace
and the VA hospital. But it is unclear whether the fumes or the
request for medical care led to compensable injuries. Each
agency blames the other—and, even though one or the other
must be responsible, the United States escapes all liability be-
cause it is impossible to be sure just where the causal chain
began. The language of the Federal Employees Compensation
Act does not command such an outcome. Once the Depart-
ment of Labor declares that on-the-job loss did not occur, Sub-
chapter I falls out and the employee can try elsewhere.
The United States asks us to affirm on an alternative
ground: the statute of repose for tort claims in Illinois. The
FTCA sets two time limits: an administrative claim no later
than two years after the injury and a suit no more than six
months after the agency mails its decision on the administra-
tive claim. 28 U.S.C. §2401(b). Bourke met these two dead-
lines, but the United States nonetheless maintains that his suit
is too late, because Illinois sets a four-year outer bound for all
tort actions against physicians or hospitals. 735 ILCS §5/13-
212(a). That time expired while the VA had Bourke’s admin-
istrative claim under consideration. According to the United
States, the fact that FTCA liability generally tracks state law
means that state time limits apply in addition to the time lim-
its in §2401(b). That proposition finds support in Augutis v.
United States, 732 F.3d 749, 753 (7th Cir. 2013), which Bourke
has not asked us to revisit. But he does ask us to remand with-
out reaching the subject. He observes, correctly, that his suit
was dismissed on the pleadings, which need not anticipate

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6 No. 21-1966
and refute affirmative defenses such as statutes of limitations
and repose. What’s more, Bourke insists, Illinois would not
start the four-year period until his course of treatment at the
VA had been completed. We do not address any of these mat-
ters; they are for the district court in the first instance.
One final comment. The district judge dismissed Bourke’s
complaint for want of jurisdiction, apparently under Fed. R.
Civ. P. 12(b)(1). Yet federal courts have jurisdiction over suits
under the Federal Tort Claims Act. They do lack jurisdiction
of suits under the Federal Employees Compensation Act,
where the administrative decision is conclusive, but this suit
rests on the FTCA. The Supreme Court deems some aspects
of the Tort Claims Act to be jurisdictional, but even then it has
concluded that the FTCA’s waiver of sovereign immunity
merges with the claim’s substance and that a decision there-
fore should be treated as one on the merits. See Brownback v.
King, 141 S. Ct. 740, 749 (2021). Bourke may or may not prevail
in the end, but a federal district court is authorized to decide
whether he has a good claim under the FTCA or instead the
United States has a good defense. Only if Bourke loses under
the statute could a court properly say that immunity bars the
suit—and then, as Brownback holds, the decision would be
both on the merits and for lack of jurisdiction.
The judgment is vacated, and the case is remanded for
proceedings consistent with this opinion.

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