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`Case 4:15—cv—OO341—GHD—CMC Document 21 Filed 06/02/16 Page 1 of 17 Page|D #: 195
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`IN THE UNITED STATES DISTRICT COURT
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`FOR THE EASTERN DISTRICT OF TEXAS
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`SHERMAN DIVISION
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`NORRIS JM BANKS
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`PLAINTIFF
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`CIVIL ACTION NO. 4: l5-cv-0034} -GHD~CI\/IC
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`UNITED STATES OF AMERICA
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`DEFENDANT
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`MEMORANDUM OPINION GRANTING MOTION TO DISMISS DUE TO LACK OF
`SUBJECT-MATTER JURISDICTION
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`Presently before the Court is a motion to dismiss [9] filed by Defendant, United States of
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`America (the “Government”), pursuant to Rules l2(b)(l) and l2(b)(6) of the Federal Rules of
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`Civil Procedure. Upon due consideration, the Court finds the motion should be granted on Rule
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`l2(b)(l) grounds, because the Court lacks subject-matter jurisdiction over the case.
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`A. Factual and Procedural Background
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`In the case sub judice, Plaintiff Norris JM Banks (“Plaintiff”) alleges that he injured his
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`back while working at the North Chicago VA Medical Center on or around November 13, 2002,
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`and thereafter filed a claim for compensation and medical benefits with the Department of Labor
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`(“DOL”), Office of Workers’ Compensation Programs (“OWCP”), due to lumbar back strain,
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`aggravation of lumbar stenosis, and aggravation of neurogenic claudication.
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`Plaintiff began
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`1
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`receiving temporary total disability benefits pursuant to the Federal Employees’ Compensation
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`Act (“FECA”) effective January 2, 2003 .2 Plaintiff avers that on or around April 3, 2007, Dr. Paul
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`[9—1} 1] 4; DOL Employees’ Comp.
`‘See PE.’s Compl. [1] ‘[1 4; Deffs Mot. Dismiss {9] at 4; Tritz Decl.
`Appeals Bd. Decision & Order [9-2] at E—2; Pl.’s Resp. Aff. & Br. Opp’n to Deffs Mot. Dismiss [I3] ‘H 2.
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`2 See PE.‘s Comp]. [1] ii 4; Def.’s Mot. Dismiss [9] at 4; Tritz Decl. [9-1] ‘H 5; Payment History Inquiry R.
`[9—3] at 1; Pl.‘s Resp. Aff. & Br. Opp’n to Deffs Mot. Dismiss [I3] 112.
`l
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`E. Barkhaus, a “referee medical examiner” for OWCP, examined Plaintiff and reported to OWCP
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`that his medical conditions had ceased or were no longer injury-related} Plaintiff further avers
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`that based on that report OWCP terminated Piaintiff’ s compensation and medical benefits on Juiy
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`13,20073
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`Plaintiff alleges that “{a]fter [he] suffered more than a three—year loss of benefits and
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`compensation,” the attorney who represented Plaintiff in the OWCP case filed a motion for
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`reconsideration of that decision, because he discovered Dr. Barkhaus was employed by the
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`Milwaukee Veterans Administration Medical Center, and “[u]nder OWCP rules, physicians who
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`are employed by or who are associated with federal agencies are prohibited from serving as referee
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`medical examiners.”5 Plaintiff further maintains that “[u]pon consideration of said motion for
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`reconsideration, OWCP determined that there was clear evidence on the part of OWCP in
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`terminating [Plaintiffs] benefits due to Dr. Barkhaus’
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`employment by the Veterans
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`Administration Medical Center” and “affiliation with the Milwaukee Veterans Administration
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`Medical Center” during “the time of [Dr. Barkhaus’] referee medical report to OWCP.”6 It is
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`undisputed that OWCP committed an error of its own procedures in relying on Dr. Barkaus’ report
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`3 See Pl.’s Compl. {1} 1[ 5; Def.‘s Mot. Dismiss {9} at 4; "Fritz Decl. [9-E] M 9-10; DOL Employees’ Comp.
`Appeals Bd. Decision & Order [9-2] at 3; Pl.’s Resp. Aff. & Br. Opp’n to Def.’s Mot. Dismiss [13] 113, 5.
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`4 See Pl.’s Compl. [I] fit 6; Def.’s Mot. Dismiss [91 at 4; Tritz Decl. [9—1] fifit 9—l0; DOL Employees’ Comp.
`Appeals Bd. Decision & Order [9-2} at 3; Pl.’s Resp. Aff. & Br. 0pp’n to Def.’s Mot. Dismiss [13] 1! 6, 5.
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`5 See Pl.’s Compl. {1} 117; Def.’s Mot. Dismiss £9] at 4—5; Tritz Dec}. [9-1] 1] 12; Pl.’s Request for Recons.
`to DOL/OWCP [9-4] at 1; Pl.’s Resp. Aff. & Br. Opp’n to Def.’s Mot. Dismiss [13] 15 7.
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`6 See Pl.’s Compl. {1} 1[‘fi 7-8; De£’s Mot. Dismiss {9} at 5; Pl.’s Request for Recons. to DOL/OWCP [9-4}
`at 2; DOLfOffice of Workers’ Comp. Programs Letter to P1. {9—5] at 2; Ptfs Resp. Aff. & Br. 0pp’n to Def.‘s Mot.
`Dismiss [13] 1] 8, 5.
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`to resolve a conflict of medical opinion,7 and that due to that error, on September 1, 2010, OWCP
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`granted Plaintiffs motion for reconsideration and restored full benefits to him; specifically,
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`OWCP opened Plaintiffs claim for medical care and ordered that Plaintiffs compensation be
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`reinstated for the period July 18, 2007 to the presents’ 9 However, Plaintiff maintains that “in the
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`process of seeking reinstatement of his benefits, [he] accumulated legal expense[s] of $32,551.05
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`and $1,200.00 in out-—of-pocket medications and medical expenses,” necessitating the taking out of
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`a loan and an interest expense of approximately $15,000.00”) Plaintiff also maintains that he
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`“suffered other financial adversities resulting from the suspension of [his] benefits,” including his
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`inability to afford health insurance, “the monthly cost of which rose from $270.00 to $800.00
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`during the suspension of [his] benefits,” as weli as his inability to afford regular medication for his
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`pain and suffering.”
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`Plaintiff maintains that he submitted a claim to DOL’s Employees’ Compensation Appeals
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`Board (“ECAB”)/OWCP, Senior Claims Examiner, pursuant to 28 U.S.C. § 2675(a), for the
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`alleged damages he sustained while pursuing the reinstatement of his benefits; the ciaim was sent
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`7 See Pl.’s Compl. [E] 1] 8; Pl.’s Request for Recons. to DOL/OWCP [9—4] at 2; DOL/Office of Workers’
`Comp. Programs Letter to P1. [9—5] at 2; Pl.’s Resp. Aft‘. & Br. Opp’n to Def.’s Mot. Dismiss [1311] 8, 5; Def.’s Reply
`Supp. Mot. Dismiss [18] at 3.
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`3 See Pl.’s Compt. [1] 11 9; Def.’s Mot. Dismiss [9] at 5; Tritz Deci. [9—l] 11 13; DOL/Office of Workers’
`Comp. Prograrns Letter to P1. {9-5] at 2, 5; Pl.’s Resp. Aff. & Br. 0pp’n to Def.’s Mot. Dismiss [13] 1] 9, 5.
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`9 The Government states that Plaintiffs first payment was issued on October 8, 2010 for the period January
`1, 2010 to September 25, 2010 in the amount of $31,964.40; that payments were issued on October 23, 2010 for the
`period September 26, 2010 to October 23, 2010 in the amount of $3,364.00; and that his last payment, as of the fiiing
`of the Government‘s motion to dismiss, was issued for the period August 23, 2015 to September 19, 2015. The
`Government further states that as of September 19, 2015, Plaintiff has received a total of $532,918.87 in temporary
`total disability compensation and $23,631.95 in medical benefits, and that payments for the retroactive compensation
`for the period Juiy 18, 2007 to December 3 E, 2009 were processed on December 13, 2010. See De£’s Mot. Dismiss
`[9] at 5.
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`1° See Pl.’s Compl. [1] 1] 9; Pl.’s Resp. Aff. & Br. Opp’n to Def.’s Mot. Dismiss [13] 1] 9.
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`“ See Pl.’s Compl. [1]1] 10; Pl.’s Resp. Aff. & Br. Opp’n to Def.’s Mot. Dismiss [i3]1] 10.
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`3
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`on or about October 30, 2013 and was received by the DOL/OWCP on November 4, 2013.12 The
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`Government acknowledges that Plaintiff sent a Standard Form 95 to OWCP and that the same was
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`received on November 5, 2013 and “put in [Plaintiffs] FECA case 1'ec01'd,” but that “the proper
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`place to file a claim of that amount was with the DOL’s Office ofthe Solicitor.”13 It is undisputed
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`that the Government took no action on Plaintiffs submission. Plaintiff asserts that DOL’s failure
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`to make a final disposition of the claim for more than six months constitutes the agency’s denial of
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`his ciaimld (though he acknowledges the claim “never has been formally rejected”); subsequently,
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`on May 15, 2015, Plaintiff filed this suit against the Government pursuant to 28 U.S.C. § 1346(b)
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`of the Federal Tort Claims Act (the “FTCA”). 15
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`Plaintiff seeks a judgment against
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`the
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`Government in the amount of $200,000.00 for the legal and medical expenses allegedly incurred
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`while Plaintiff sought the reinstatement of his benefits from July 18, 2007 (the date his benefits
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`were terminated) until September 1, 2010 (the date his benefits were fully restored).i6
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`In lieu of an answer, the Government has filed the present motion to dismiss [9] pursuant to
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`Rule l2(b)(l) and Rule l2(b)(6). Plaintiff has filed a response, and the Government has filed a
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`reply. The matter is now ripe for review. Because the Court finds that dismissal is proper on the
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`Government’s first argument for dismissal, that the Court lacks subject—matter jurisdiction to
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`12 See Pl.’s Compl. [1]1t 4; Pl.’s Resp. Aff. & Br. Opp’n to Deffs Mot. Dismiss [13] at 6; Standard Form 95,
`Claim for Damage, Injury, or Death, to DOL ESAJOWCP [13-I] at I—2.
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`'3 See Def.’s Mot. Dismiss [9] at 6. The Court notes that the Government incorrectly cites 29 C.F.R. § 15.4
`in support ofthis statement; the correct supporting citation is 29 C.F.R. § 15.104.
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`'4 See Pl.’s Compl. [1] ‘H4; Pl.’s Resp. Affi & Br. Opp’n to Def.’s Mot. Dismiss [13] at 6.
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`'5 See Pl.’s Compl. [1] 1n; 1, 4.
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`15 See id. 1111 9-1 1.
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`review the DOL’s determinations under FECA, 5 U.S.C. § 8101 er seq., the Court need not and
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`does not reach the Govermnent’s other arguments for dismissal in the motion.”
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`B. Rule ]2(b)(1) Motion to Dismiss Standard
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`Rule 12(b)(1) provides that a party may assert the defense of lack of subject-rnatter
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`jurisdiction by motion.
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`Fed. R. Civ. P. 12(b)(1). A court must address a Rule 12(b)(1)
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`jurisdictional challenge before addressing a challenge on the merits under Rule 12(b)(6). Braaiz,
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`L.L.C‘. v. RedMango FC, L.L.C., No. 15-10498, 2016 WL 1253679, at *2 (5th Cir. Mar. 30, 2016)
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`(per curiam) (citing Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001)). Addressing
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`Ruie l2(b)(1) arguments first “prevents a court without jurisdiction from prematurely dismissing a
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`case with prejudice.” Ramming, 281 F.3d at 161.
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`“Federal courts are courts of limitedjurisdiction; without jurisdiction conferred by statute,
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`they lack the power to adjudicate claims.” In re FEM/1 Trailer Formaldehyde Prods. Liab. Litig. ,
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`668 F.3d 281, 286 (5th Cir. 2012) (citing Kokkonen v. Guar. Life Ins. Co. ofAm., 511 U.S. 375,
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`377, 114 S. Ct. 1673, 128 L. Ed. 2d 391 (1994); Stocicman v. Fed. Election Comm ‘n, 138 F.3d 144,
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`151 (5th Cir. 1998)).
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`“Subject-matter jurisdiction. .
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`. refers to a t1‘ibunal’s power to hear a case.
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`It presents an issue quite separate from the question whether the allegations the plaintiff makes
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`entitle him to relief.” Morrison v. Nat‘! Austl. Bank Ltd, 561 U.S. 247, 254, 130 S. Ct. 2869, 177
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`L. Ed. 2d 535 (2010) (internal quotation marks and citations omitted).
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`“ ‘It is to be presumed that
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`a cause lies outside {a federal court’s] limited jurisdiction, and the burden of establishing the
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`E7 The Government’s other arguments not addressed by the Court in this opinion include the following: (1)
`pursuant to Rule l2(b)(i), this Court has no subject—matter jurisdiction over the claim for damages against the United
`States under the FTCA because FECA is Plaintiffs exclusive remedy for an injury that occurred on the job under 5
`U.S.C. § 8i i6(c); (2) pursuant to Rule 12(b)(1), this Court has no subject-matterjurisdiction to review this case
`because Plaintiffs FTCA action is not based on a state law cause of action as required by 28 U.S.C. § 1346(b)(1); and
`(3) pursuant to Rule 12(b)(6), Piaintiff has faiied to state a claim for reiief because his FTCA administrative claim was
`filed outside ofthe FTCA’s statute of limitations set forth in 28 U.S.C. § 2401(b).
`5
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`contrary rests upon the party asserting jurisdiction.’ ”
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`Pershing, L. L. C. v. Kiebach, No.
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`15~30396, 2016 WL 1375874, at *1 (5th Cir. Apr. 6, 2016) (quoting Kokkonen, 511 U.S. at 377,
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`114 S. Ct. 1673).
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`“In reviewing a motion to dismiss under Rule l2(b)(1), we first determine whether the
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`motion was a facial or factual attack on jurisdiction.” Braatz, L. L. C'., 2016 WL 1253679, at *2.
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`In the case sub judice, the Government’s arguments pursuant to Rule l2(b)(1) present a factual
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`attack on jurisdiction because the United States has flied supporting evidentiary materials. See id.
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`“When a defendant makes a factual attack[,] ‘no presumptive truthfulness attaches to plaintiffs
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`allegations.’ ” See Eagle TX I SPE, L. L. C. v. Sharifcft Mzmir Enters, Inc., 602 F. App’); 576, 578
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`(5th Cir. 2015) (per curiam) (quoting Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir. 1981)).
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`“To defeat a factual attack, a plaintiff ‘must prove the existence of subject-matter jurisdiction by a
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`preponderance of the evidence’ and is ‘obliged to submit facts through some evidentiary method to
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`sustain his burden of proof.’ ” Superior MRI Servs., Inc. v. All. Healtivcare Servs, Inc, 778 F.3d
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`502, 504 (5th Cir. 2015) (quoting Irwin 1». Veterans Admin, 874 F.2d 1092, 1096 (5th Cir. 1989),
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`aff'd sub nom, Irwin v. Dep’r of Veterans Aflairs, 498 U.S. 89, 111 S. Ct. 453, 112 L. Ed. 2d 435
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`(1990)).
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`For the reasons stated below, Plaintiff has failed to meet his burden of proof in defeating
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`the Government’s factual attack on jurisdiction.
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`C. Par-‘ties’ Rule ]2(b)(I) Arguments
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`The Government characterizes Plaintiff’ 3 case as foilows: “[Plaintiffl seeks damages in the
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`amount of $200,000.00 for harm aiiegedly caused by a July 18, 2007 decision by the [OWCP] that
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`terminated his compensation benefits under [FECA]. .
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`.
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`. This suit is apparently a belated attempt
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`to have this Court review DOL’s FECA determinations made in 2007 which terminated his
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`compensation benefits, a decision long since reversed by OWCP in 2010313 The Government
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`argues that 5 U.S.C. § 8l28(b) “clearly precludes such judicial review” unless there is a
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`“substantial cognizabie constitutional chaiienge.”19 The Government maintains that “[t}o the
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`extent that [Plaintiffs] FTCA suit is an attempt to seek tort damages relating to the FECA ciaim,
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`FECA is [Plaintiffs] exclusive remedy for his work~related injury” and “[h]e is not permitted to
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`also pursue damages under the FTCA.”2° The Government further maintains that this Court has
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`no subject-matter jurisdiction, because the post—deprivation remedies available to Plaintiff were
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`sufficient to assure that he received sufficient due process, even though the decision to terminate
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`Plaintiffs disability benefits was undisputedly in violation of OWCP procedures.
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`The
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`Government maintains that although Plaintiff seeks recovery for, inter alia, the payment of his
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`rnedicai bills incurred during the period that his FECA benefits were terminated, Plaintiffs
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`complaint does not allege that he ever attempted to seek payment by OWCP for such medical bills.
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`Therefore, the Government argues that this suit is within the scope of FECA, that the available
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`administrative remedies under FECA were sufficient to have OWCP’s error reviewed and
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`corrected, and that accordingly the Court has no subject-matter jurisdiction over the case.
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`Plaintiff argues in response that FECA is designed to compensate federal employees
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`injured in the performance of their duties, but provides no compensation for his alleged damages,
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`which Plaintiff claims are “not duty related,” “did not occur while [Pjlaintiff was in the
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`13 See Def.’s Mot. Dismiss {9} at 2.
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`*9 See id. at 3.
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`2" See id.
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`performance of his work duties,” and “were unforeseeable under FECA and for which FECA was
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`neither designed nor intended.”2E Plaintiff argues that he has “been severely damaged by the acts
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`of the [DOL] and OWCP in this case”; that D1‘. Barkhaus notified these departments that retaining
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`him as a referee medical examiner would be a conflict of interest; and that the DOL and OWCP
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`decided to retain Dr. Barkhaus as a referee medical examiner in the case, despite “knowing or
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`having reason to know that doing so was in direct conflict with and in violation of federal 1aw.”22
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`Therefore, Plaintiff maintains that his case falls under the FTCA, is not within the scope of FECA,
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`and that the Court has subject-matter jurisdiction over the case.
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`D. Discussion and Analysis
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`Courts may not exercise subject-matter jurisdiction in a suit against the United States
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`unless the United States has waived immunity and consented to suit. See United States v.
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`Sherwood, 312 U.S. 584, 586-87, 61 S. Ct. 767, 85 L. Ed. 1058 (1941); UnitedSiaIes V. Shaw, 309
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`U.S. 495, 501, 60 S. Ct. 659, 84 L. Ed. 888 (1940); Bank One Tex. v. Taylor, 970 F.2d 16, 33 (5th
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`Cir. 1992), cert. denied, 508 U.S. 906, 113 S. Ct. 2331, 124 L. Ed. 2d 243 (1993). A waiver of
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`sovereign immunity is strictly construed and thus must be unequivocally expressed by Congress.
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`See United States 1:. Mitchell, 445 U.S. 535, 538, 100 S. Ct. 1349, 63 L. Ed. 2d 607 (1980);
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`Sherwood, 312 US. at 590, 61 S. Ct. at 771; Infeifirsf Bank Dallas 12. United States, 769 F.2d 299,
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`306 n.10 (5th Cir. 1985), cert. denied, 475 U.S. 1081, 106 S. Ct. 1458, 89 L. Ed. 2d 716 (1986).
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`“{N}o suit may be maintained against the United States unless the suit is brought in exact
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`compliance with the terms of a statute under which the sovereign has consented to be sued.”
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`2' See Pl.’s Resp. Aff. & Br. Opp’n to Def.’s Mot. Dismiss [13] at 4.
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`22 See id. at 6.
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`Lundeen v. Mineta, 291 F.3d 300, 304 (5th Cir. 2002). Because Plaintiff has asserted federal
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`jurisdiction is proper, he has the burden to show such consent. See id.
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`Plaintiff asserts the appropriate statutory avenue in this case is the FTCA, not FECA.23
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`“The question of whether the United States has Waived sovereign immunity pursuant to the FTCA
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`goes to the court’s subject~matter jurisdiction, and may therefore be resolved on a Rule 12(b)(1)
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`motion to dismiss.” Willoughby v. US ex rel. U.S. Dep ’t ofthe Army, 730 F.3d 476, 479 (5th Cir.
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`2013) (internal citations omitted).
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`FECA provides in pertinent part:
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`The liability of the United States or an instiumentality thereof under
`this subchapter or any extension thereof with respect to the injury .
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`. of an employee is exclusive and instead of all other liability of the
`United States or the instrumentality to the employee .
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`. otherwise
`entitled to recover damages from the United States or
`the
`instrumentaiity because of the injury .
`.
`.
`in a direct judicial
`proceeding, in a civil action, .
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`. or by an adrninistrative or judicial
`proceeding under a vvorl<men’s compensation statute or under a
`Federal tort liability statute.
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`5 U.S.C. 8116(0). This exclusive liability provision “was designed to protect the government
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`from suits under statutes, such as the [FTCA].” Lockheed Aircraft Corp, 460 US. at 193-94,
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`I03 S. Ct. 1033. Because FECA is exclusive, a toit claim brought under the FTCA may not give
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`supplemental effect to any remedy available under FECA. Um'fedSfate.s' v. Demko, 385 US. 149,
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`152, 87 S. Ct. 382, 17 L. Ed. 2d 258 (1966). Thus, it is imperative to determine whether the case
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`23 Plaintiff states on the civil cover sheet [E-1] accompanying his complaint that the nature of his suit is one
`arising under the Administrative Procedure Act (the “APA”). The APA “waives the federal government’s sovereign
`immunity from actions seeking judicial review of federal administrative decisions only for claims ‘seeking relief other
`than money damages.’ ” King v. US. Dep ’t of Veterans Afar‘:-s, 728 F.3d 410, 416 (5th Cir. 2013) (quoting 5 U.S.C.
`§ 702). However, because “the substance of the complaint at issue is a claim for money damages, the case is not one
`covered by {the APA] and, hence, sovereign immunity has not been waived [by the APA]." See Armendariz—MaIa v.
`US. Dep‘I ofJ1:s2‘ice, Drug Enf’t Admin, 82 F.3d 679, 682 (5th Cir. 1996). Therefore, the Government has not
`consented to suit on this matter under the APA; Plaintiff must utilize another statutory avenue.
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`9
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`sub judice falls Within the ambit of FECA; if it does, Plaintiff may not seek any relief,
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`supplemental or otherwise, under the FTCA.
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`Furthermore, “if a claim is covered under FECA,
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`then the federal courts have no
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`subject[-]matter jurisdiction to entertain the action, since the United States has not otherwise
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`waived its sovereign immunity to suit.” Heilman v. United States, 731 F.2d 1104, 1109 (3d Cir.
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`1984); see L0ckheedAircrafi‘ Corp. v. UnitedStateS, 460 US. 190, 193-94, 103 S. Ct. 1033, 74 L.
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`Ed. 2d 911 (1983); Harvey v. Potter, 202 F. App’): 2, 4 (5th Cir. 2006) (per curiam) (citing U.S.C.
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`§ 8116(0); Benton v. United States, 960 F.2d 19, 22 (5th Cir. 1992)). Thus, if Plaintiffs case falls
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`within the ambit of FECA, this Court lacks subject-matter jurisdiction to hear his case.
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`FECA was enacted in 1916 as “the first comprehensive injuiy-compensation statute for
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`federal employees” who have sustained work-related injuries; such employees are entitled under
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`FECA to compensation for medical expenses, lost wages, and vocational rehabilitation. United
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`States v. Lorenzetti, 467 U.S. 167, 168, 169, 176, 104 S. Ct. 2284, 81 L. Ed. 2d 134 (1984); see 5
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`U.S.C. §§ 8102-8107.
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`“ ‘[Through FECA] employees are guaranteed the right to receive
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`immediate, fixed benefits, regardless of fault and without need for litigation, but in return they lose
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`the right to sue the Government.’ ” Ramirez v. Walker, 199 F. App’x 302, 307 (5th Cir. 2006)
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`(per curiam) (quoting Lockheed Airerajft Corp, 460 U.S. at 194, 103 S. Ct. 1033).
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`“The heart of
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`the system is an implicit bargain: employees are granted surer and more immediate relief in return
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`for foregoing more expensive rewards outside the system.” Gill V. United States, 641 F.2d 195,
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`197 (5th Cir. 1981). Thus, “[f]or injuries within its coverage, FECA’s remedy is exclusive of any '
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`other remedy, including the FTCA.” White v. United States, 143 F.3d 232, 234 (5th Cir. 1998);
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`accord United States v. Brown, 348 U.S. 110, 113, 75 S. Ct. 141, 99 L. Ed. 139 (1954).
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`10
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`The FTCA was “enacted to waive the Government’s sovereign immunity.” See Lockheed
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`Aircrafi‘ Corp, 460 U.S. at 193, 103 S. Ct. 1033. The FTCA authorizes suits against the United
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`States sounding in state tort for money damages arising from:
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`injury or loss of property, or personal injury or death caused by the
`negligent or wrongful act or omission of any employee of the
`Government while acting within the scope of his office or
`employment, under circumstances Where the United States, if a
`private person, would be liable to the claimant in accordance with
`the law of the place where the act or omission occurred.
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`28 U.S.C. § l346(b)(l).
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`In this case, Plaintiffs alleged injuries are his “adverse financial circumstances,” which
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`“beg[an] with the suspension of [his] benefits” as a result of OWCP’s “terminat[ion of]
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`{P]laintiff’s compensation and medical benefits on July 18, 2007.”24 Unquestionably, Plaintiff’ s
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`alleged damages were not sustained while in the performance of his duty as a federal employee,
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`but after he had left employment and had stopped receiving disability benefits. However,
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`FECA’s exclusive remedy position bars not only claims for physical injuries compensable under
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`FECA, but also claims for injuries that derive fi‘om the physical injury. See Benton, 960 F.2d at
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`21. Plaintiffs out—of~pocl<et medications and medical expenses, including health insurance, stem
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`from his FECA-compensated injury. His legal expenses of $32,551.05 also derive directly from
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`his FECA benefits determination and in pursuit of the reinstatement of his FECA benefits. Thus,
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`Plaintiffs’ injuries derive from his FECA benefits determination.
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`Plaintiffs claims may be viewed either as an attempt to challenge the propriety of OWCP’s
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`earlier benefits termination decision or an attempt to recover damages for OWCP’s breach of its
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`duty to follow its own procedures with respect to its earlier benefits termination decision.
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`2*‘ See Pins Compl. [1] 111; :0, 6; PE.‘s Resp. Affi & Br. Opp‘n to Deffs Mot. Dismiss {13} 1111 :0, 6.
`11
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`However, as the ancient idiom goes, “all roads lead to Rome”; either way the claims are viewed,
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`they fall within FECA’s preclusion on judicial review. No liability could be assessed in this case
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`without first examining the conclusions of law and fact made by the Secretary in the FECA
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`benefits determination.
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`Such analysis is prohibited by FECA’s “strongly worded judicial
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`doo1'—closing statute.” See Czerkies V. US. Dep?‘ ofLabor, 73 F.3d 1435, 1437 (7th Cir. 1996).
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`FECA provides that “[t]he Secretary of Labor, in accordance with the facts found on review,
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`rnay-~end, decrease, or increase the compensation previously awarded.”
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`5 U.S.C. § 8128(a)(l).
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`And “[FECA] limits judicial review of [such] OWCP decisions,” Beemer v. Holder, 495 F. App’):
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`396, 398 (5th Cir. 2012) (per curiam), through its “unambiguous and comprehensive provision
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`barring any judicial review of the Secretary of Labor’s determination of FECA coverage,” Sw.
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`Marine, Inc. V. Gizoni, 502 U.S. 81, 90, 112 S. Ct. 486, 116 L. Ed. 2d 405 (1991) (internal
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`quotation marks and citation marks omitted). FECA provides in pertinent part: “The action of the
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`Secretary [of Labor] or his designee in allowing or denying a payment under this |Act| isfil)
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`final and conclusive for all purposes and with respect to all guestions of law and fact; a_n_d (2) @
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`subject to review by another official of the United States or by a court by mandamus or otherwise.”
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`5 U.S.C. § 8l28(b) (emphases added). Accordingly, Plaintiff is “prohibited from challenging the
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`merits of the [DOL’s] decision to [terminate] his [disability] benefits, as such review on the merits
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`of any aspect of his claim is precluded under 5 U.S.C. § 8218(b).” See Ramirez, 199 F. App’): at
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`307. This Court is without jurisdiction to review the DOL’s earlier decision to terminate
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`Plaintiffs FECA benefits.
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`However, federal courts have recognized two exceptions wherein they nonetheless may
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`exercise jurisdiction over a final decision of the Secretary under FECA: (1) a constitutional claim
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`and (2) a claim that the Secretary violated a clear statutory mandate or prohibition. See Taylor v.
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`Potter, 124 F. App’x 293, 2005 WL 746617, at 1 (5th Cir. 2005) (per curiam) (cit-ing Woodruflv.
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`United States, 954 F.2d 634, 639 (1 1th Cir. 1992)).
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`With respect to the first exception, the Fifth Circuit has recognized that in limited situations
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`“[a} court may review an OWCP decision .
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`.
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`. if there are ‘substantial constitutional claims,’ such
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`as those arising from a due process violation.” Beemer, 495 F. App’): at 399 (citing Gamer v.
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`US. Dep ’t ofLabor, 221 F.3d 822, 824~25 (5th Cir. 2000), cert. denied, 532 U.S. 906, 121 S. Ct.
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`1230, 149 L. Ed. 2d 140 (2001)).
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`in this case, Plaintiff never mentions, references, or even hints
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`at a constitutional provision. The substance of Plaintiffs complaint is simply that OWCP
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`wrongfully terminated his benefits as a result of Dr. Barkhaus’ examination as a referee medical
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`examiner in violation of OWCP procedures in OWCP Procedure Manual 3-0500-4b(3)(a) and that
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`Plaintiff should recover monetary damages as a result.
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`Even assuming Plaintiff has a
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`constitutional due process claim that the Government deprived him of a substantive entitlement in
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`the continued payment of FECA benefits, however, the termination of his benefits would not
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`constitute a violation of the procedural requirements of the due process clause if a meaningful
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`post-deprivation remedy for the loss was available. See Schwartz v. US. Dep ’t ofLabor, 161 F.
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`App’x 357, 358 (5th Cir. 2005) (citing Hudson v. Palmer, 468 U.S. 517, 533, 104 S. Ct. 3194, 82
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`L. Ed. 2d 393 (1984)).
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`ECAB issued its decision to terminate Plaintiffs benefits on July 18, 2007.25 As a result,
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`Plaintiff was without benefits for approximately two years and nine months until his attorney sent
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`25 See Pl.’s Compl. [1] 1; 6; Def.’s Mot. Dismiss [9} at 4; Tritz Decl. [9— 1] 1111 9-10; DOL Employees’ Comp.
`Appeals Bd. Decision & Order [9-2] at 3; Pl.’s Resp. Aff. & Br. Opp’n to Def.’s Mot. Dismiss [13] 116, 5.
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`13
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`
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`a letter to the DOL requesting reconsideration of the benefits termination on April 23, 2010.26
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`About four months later, on September 1, 2010, the DOL entered a Notice of Decision stating as
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`follows: “The Office finds that the new evidence presented sufficiently supports the fact that Dr.
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`Barkhaus’ report must be excluded and cannot resolve a conflict in the medical evidence according
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`to set criteria. .
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`.
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`. The decision .
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`.
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`. is VACATED and set aside. Your claim is open for medical
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`care and your compensation will be reinstated .
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`.
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`.
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`.”27 Other than requesting reconsideration by
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`the OWCP, Plaintiff apparently pursued no further post-deprivation remedies to him available
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`under FECA, such as reimbursement for his medical bills incurred during the time that his FECA
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`benefits were terminated. Because his claim is “open for medical care,”28 he is able to seek
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`reimbursement for any qualifying medical expenses incurred during the time his FECA benefits
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`were terminated. Other damages he seeks may not be compensable under FECA; nevertheless,
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`those damages do not entitle him to bring a claim under the FTCA for the reasons stated above.
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`In addition, Plaintiff makes no allegations that FECA’s post-deprivation remedies are
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`constitutionaily inadequate. See Schwartz, 161 F. App')( at 358-59. The Fifth Circuit has stated:
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`“[T}he post-deprivation remedies available to FECA claimants are sufficient to assure that
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`claimants receive sufficient due process, even in situations Where there were violations of OWCP
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`procedures.” See id. at 359; see also Czerkies, 73 F.3d at 1443 (“The government does not violate
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`the Constitution every time it mistakenly denies a claim for benefits”). Therefore, for all of the
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`26 See Pl.’s Request for Recons. to DOL/OWCP {9-4} at l.
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`27 See DOL Office of Workers’ Comp Programs Notice of Decision [9-5} at 4, 5.
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`23 See DOL Office of Workers’ Comp Programs, Senior Ciainis Examiner, Letter [9-5] at 2; DOL Office of
`Workers’ Comp Programs Notice of Decision [9—5} at 5.
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`14
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`foregoing reasons, the Court finds that Plaintiff has failed to bring a cognizable constitutional
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`violation claim that would constitute an exception to FECA’s bar on judicial review.
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`Although Fifth Circuit case law is replete with analyses of the first exception to FECA’s
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`bar on judicial review, it is bereft with respect to the second exception——and other circuits have not
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`spoken in unison on the issue. Compare McD0ugaI—Sada'le