The opinion of the court was delivered by: M. James Lorenz United States District Court Judge
ORDER GRANTING WITH PREJUDICE DEFENDANTS' MOTION TO DISMISS [doc. #8] and DIRECTING ENTRY OF JUDGMENT
Plaintiff Richard Hefner was injured on April 7, 2000, at Camp Pendelton, where he worked as a civilian temporary federal employee pipefitter. He brings this action under the Federal Tort Claims Act ("FTCA") in order to obtain compensation for spinal cord and brain injuries suffered as a result of the accident and that are not available under the Federal Employees' Compensation Act ("FECA"). The government moves for dismissal of the action or alternatively for summary judgment contending the Court lacks jurisdiction over the FTCA claim and res judicata prevents the case from going forward. The motion has been fully briefed and considered on the papers submitted without oral argument pursuant to Civil Local Rule 7.1(d)(1).
A motion to dismiss filed under Federal Rule of Civil Procedure 12(b)(6) "tests the legal sufficiency of a claim." Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). A complaint may be dismissed either for failing to articulate a cognizable legal theory or for not alleging sufficient facts under a cognizable legal theory. Balistreri v. Pacifica Police Dep't., 901 F.2d 696, 699 (9th Cir. 1990).
Because Rule 12(b)(6) is concerned with a claim's sufficiency rather than its substantive merits, courts ordinarily "look only at the face of the complaint," i.e., the facts alleged in the complaint. Van Buskirk v. Cable News Network, Inc., 284 F.3d 977, 980 (9th Cir.2002). If the court considers materials outside of the complaint, it may convert a motion to dismiss into a motion for summary judgment so long as the parties are "given a reasonable opportunity to present al the material that is pertinent to the motion." FED. R. CIV. P. 12(d).
But the court may take judicial notice of facts "not subject to reasonable dispute" without converting a motion to dismiss into one for summary judgment when the facts "are capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be disputed." FED. R. EVID. 201. Thus, the court may take judicial notice of facts that are a matter of public record. See Lee v. City of Los Angeles, 250 F.3d 668, 689 (9th Cir. 2001). Further, the court may consider documents referenced in the complaint if the plaintiff's claims depend on the contents of that document, and the parties do not dispute the authenticity of the document, even though the plaintiff did not attach the document to the complaint or explicitly allege the contents of that document. Knievel v. ESPN, 393 F.3d 1068, 1076 (9th Cir. 2005) (citing Parrino v. FHP, 1476 F.3d 699, 706 (9th Cir. 1998)).
As a preliminary matter, defendants move for dismissal or alternatively, for summary judgment. Defendants offer as exhibits to their motion to dismiss: (A) plaintiff's complaint in Hefner v. United States of America, 02cv967 W (AJB); (B) the Order of dismissal in Hefner v. United States of America, 02cv967 W (AJB); (C) the Ninth Circuit Court of Appeals' memorandum disposition and judgment affirming the district court's decision in 02cv967 W (AJB); (D) the United States Department of Labor October 30, 2006 Notice of Decision; (E) the United States Department of Labor Decision of the Hearing Representative dated January 14, 2008; (F) the Declaration of Catherine P. Carter executed on December 10, 2008; and (G) the Declaration of P.A. Leonard executed on November 6, 2008. Having reviewed these exhibits, the Court finds and concludes that it may consider these exhibits without converting defendants' motion to dismiss into a summary judgment motion: Exhibits A-E are matters of public record and plaintiff does not and cannot dispute the authenticity of Exhibits F and G.
As a result of the injuries plaintiff sustained in the April 2000 accident, his medical care costs were paid for by the United States under the FECA, 5 U.S.C. § 8101, et seq. Plaintiff also received monetary awards under FECA for his neck, back and shoulder injuries.*fn1 FECA does not, however, provide monetary awards for brain and/or spinal injuries.
In 2002, plaintiff filed an action under the FTCA for additional compensation based on the brain and spinal injuries he suffered in the same accident. See Hefner v. United States of America, 02cv967 W(AJB). The United States moved to dismiss the action based on the exclusivity provision of FECA, 5 U.S.C. § 8116(c). The Court dismissed plaintiff's action with prejudice concluding that the "Ninth Circuit authority makes crystal clear the rule that FECA bars FTCA actions when the injuries, whether physical or emotional, are related to injuries sustained during the performance of one's federal job related duties." (Order filed June 19, 2003.) Plaintiff filed an appeal. The Court of Appeals affirmed the district court's judgment.
Thereafter, plaintiff submitted to the Department of Labor a request for payment for his injuries that were not covered by FECA. (Opp. at 5.) He then wrote a letter directly to the Secretary of Labor. Id. The letters were directed to the "head of the San Francisco office" which denied his claims. Id. As a result of this decision, plaintiff contends he exhausted his FTCA claim and may bring this action. Plaintiff also argues that 28 U.S.C. § 2733 is the statutory provision that allows his FTCA claim for injuries not compensable under FECA to go forward: "'[F]ederal statute 28 U.S.C. § 2733  dictates that the federal government is as liable as a private party in arena that are not covered." Id.
Plaintiff acknowledges he received compensation under FECA for his injuries other than his spinal and brain injuries. In this action, as in his prior action, he attempts to bypass the exclusive remedy of FECA. When a plaintiff's claim is cognizable under FECA, § 8116(c) bars a plaintiff's FTCA action as a matter of law:
The liability of the United States . . . with respect to the injury or death of an employee is exclusive and instead of all other liability of the United States . . . to the employee . . . in a civil action, or in admiralty, or by an administrative or judicial proceeding under a ...