Nicosia, et al v. Secy of the Army

* 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this opinion should not be published and is not precedent except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.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-40963
Conference Calendar
MICHAEL E. NICOSIA; JON R. MUSSER;
DWAINE D. PERRENOT; GILBERTO RAMIREZ;
JOSEPH C. RUSZCZYK; PHYLLIS P. RUSZCZYK,
Plaintiffs-Appellants,
versus
SECRETARY OF THE ARMY,
Defendant-Appellee.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. C-99-CV-110
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June 13, 2000
Before JOLLY, DAVIS, and STEWART, Circuit Judges.
PER CURIAM:*
Plaintiffs appeal the dismissal of their complaint under
Rule 12(b)(1) of the Federal Rules of Civil Procedure against
defendant pursuant to the Federal Tort Claims Act (FTCA) and the
Civil Service Reform Act (CSRA). 28 U.S.C. § 2671 et seq.
(2000); 5 U.S.C. § 1101 et seq. (1996).
Within days of plaintiffs retirement from the Department of
the Army, Corpus Christi Army Depot (CCAD), they were
individually contacted and ordered back to work for a brief

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No. 99-40963
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period. Plaintiffs allege their recall to work caused financial
hardship and physical and mental pain and suffering. The
district court dismissed plaintiffs' complaint because the CSRA
preempts plaintiffs' FTCA claim. The district court also
concluded that it had no jurisdiction under the CSRA to entertain
plaintiffs' action for damages.
Federal courts must be assured of their subject-matter
jurisdiction at all times and may question it sua sponte at any
stage of judicial proceedings. In re Bass, 171 F.3d 1016, 1021
(5th Cir. 1999). We have no jurisdiction over plaintiffs' FTCA
claim as plaintiffs did not name the United States as a
defendant. This omission is fatal to FTCA jurisdiction. Galvin
v. OSHA, 860 F.2d 181, 183 (5th Cir. 1988).
Even if the United States had been named as a defendant,
there is no FTCA jurisdiction. In Rollins v. Marsh, 937 F.2d
134, 139 (5th Cir. 1991), we specifically concluded that the
CSRA's preclusive effect included FTCA claims. Id. at 139-41.
Plaintiffs argue the CSRA does not preclude their FTCA claim
because they were retired at the time "they were negligently
called back to CCAD." We disagree. Plaintiffs were called back
to CCAD to work, and, during this time, they were employees,
albeit temporary employees, of the Army. As such, their FTCA
claim arose out of their employment relationship with the federal
government.
Plaintiffs argue that because they have no administrative
remedy available under the CSRA, the district court has
jurisdiction to review their claims. This argument is without

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merit as plaintiffs have failed to establish a basis for such
jurisdiction.
AFFIRMED.

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