Background:
Plaintiff, Esperanza Bonilla-Olmedo ("Esperanza") filed this action as the widow of William Charles Merriweather ("Charles") who was a civilian employee with the Department of Morale in Fort Buchanan, Puerto Rico.

Espreranza claimed that Charles was the victim of harassment by his superiors who undermined his health ultimately resulting in his death.

Esperanza brought this claim under Article II of the constitution which effectively waives the United States' immunity in this tort case. The US has moved to dismiss claiming that Esperanza's under the Federal Tort Claims Act ("FTCA") should be dismissed because she is not titled to a cause of action. Moreover the US asserted that the claim is barred by the Longshore Harbor Workers' Act (LHWCA).

Issue:
Did this Court dismiss plaintiff's complaint finding that there was no cause of action under the FTCA and that it was further barred under the LHWCA?

Held:
Under the FTCA, the US waived its sovereign immunity for "injury or loss of property... caused by the negligent act or omission of any employee of the government while acting within the scope of his office/employment...".

The FTCA provides the exclusive remedy to compensate for a federal employee's tortious acts committing within his/her scope of employment.

The waiver of immunity is subject to conditions that (1) the claim must be brought within 2 years and (3) within six months of denial of the administrative claim.

The FTCA waives the immunity of the US for tortious acts of its employees only where the US, if a private person, would be liable to the claimant in accordance with local law.

Ultimately this Court found US within the provisions of Puerto Rico Civil Code, 1802 which allows relatives of the injured to recover for harm caused by discriminatory treatment at the hands of the employer. Accordingly, 1802 allows for the recovery under the FTCA.

US also contended that the deceased would have been able to seek compensation under the LHWCA, which supplied the exclusive remedy for compensation for work-related death or disability.

This Court recognized however, that application of benefits under the LHWCA did not estop an employee from bringing an FTCA suit until coverage has been determined by judicial or administrative decision. Voluntary compensation paid by the employer before such a determination would not bar suit under the LHWCA.

The US has argued that the statute of limitations has run its course under the FTCA, and as such, the claim should be dismissed.

Esperanza claimed a continuing violation ensued in this case, and the continuing violation doctrine created an equitable exception when the unlawful behavior is deemed ongoing. As such, the statute of limitation is controlled by all discriminatory acts, not the first.

This Court found that the complaint filed addressed a pattern of harassment which commenced on July 2005 and continued until August 2007, including racial slurs and moving Charles from his regular duties to perform duties he was physically unfit for, it caused his ultimate demise. As such, it constituted continuous violations and therefore was not time barred.

The Court denied the United States' motion to dismiss.

Comment:
Under the FTCA, the US has waived its sovereign immunity. Usually, a private citizen may not sue the Federal Government unless  a waiver applies. The FTCA provides such waiver that where, under law of the local jurisdiction, a claimant could bring such an action of negligence against a private citizen, then the US has waived its immunity and may be sued under the same theory.

Steve Gordon