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SOEKEN v. HERMAN

February 17, 1999

DONALD R. SOEKEN, ET AL. PLAINTIFFS,
v.
ALEXIS M. HERMAN, SECRETARY, U.S. DEPARTMENT OF LABOR, ET. AL., DEFENDANTS.



The opinion of the court was delivered by: Thomas F. Hogan, District Judge.

MEMORANDUM OPINION

Pending before the Court is defendants' motion for dismissal. Defendants' motion raises three issues. First, whether 5 U.S.C. § 8128(b) prevents the Court from reviewing the decision of the Federal Employees' Compensation Act (FECA) that denied the award of benefits to plaintiff for violating a clear statutory mandate. Second, whether defendant's interpretation of the term "physician," which barred the use of "licensed certified psychotherapists" for use as medical experts, deprived the plaintiff of his due process rights. Finally, whether the doctrine of absolute immunity bars the plaintiffs' claims against defendants Walsh, Groom, and Kanjorski in their individual capacities. After considering the written submissions of the parties, the Court grants the motion to dismiss for the defendant in respect to all issues.

I.

This case stems from the denial of plaintiff's physical and mental injury claims by the Employees' Compensation Appeals Board (ECAB) of the U.S. Department of Labor (DOL). On September 8, 1989, plaintiff Ern Reynolds, while working as an office systems analyst for the Antitrust Division of the U.S Department of Justice, discovered a multi-million dollar computer procurement overcharge. Reynolds suggests that as a result of this discovery, his superiors deliberately retaliated against him by moving him into an office without natural light, contrary to the written recommendations of Reynolds' eye doctors. Shortly after the change in offices, Reynolds began to experience a neuro-ophthalmological disorder and depression. As a result of these illnesses, plaintiff Ern Reynolds received a medical retirement from the Department of Justice on November 30, 1990. On November 27, 1991, Reynolds filed a claim with the Office of Workers' Compensation Programs (OWCP) alleging that his retirement was based upon sustaining work-related injuries. OWCP denied Reynolds claim on April 20, 1992, based on "conflicting or absent evidence" as to whether the alleged events or exposures "occurred at the times, places and manners alleged." Defendant's Attachment 4, at 386. The decision found that Reynolds had failed to provide either a detailed statement of employment factors which caused his injury or a medical opinion explaining how and in what manner the employment factors inflicted injury.

Reynolds requested reconsideration of his claim by the OWCP and submitted a medical report from Dr. Stephen J. Rojcewicz. Rojcewicz's report stated that Reynolds suffered from both a depressive and mixed personality disorder, concluding that these conditions were "directly and proximately caused by the work stresses, namely by actions that in his opinion were retaliatory and harassing." Defendant's Attachment 7, at 6. OWCP affirmed its former decision, finding that Dr. Rojcewicz's evaluation lacked probative value because the report failed "to diagnose a condition related to an accepted work-related factor of employment." Defendants Attachment 8, at 6. Based on this decision, Reynolds again requested reconsideration on January 11, 1995. Because Reynolds failed to submit any new evidence or legal theories, however. OWCP refused to reconsider the case.

Once again Reynolds requested reconsideration of his claim, submitting the report of Dr. Donald R. Soeken, a psychotherapist with a doctorate in Human Development who asserted that Reynolds suffered from work-related injuries. OWCP rejected this request, however, stating that because Soeken was a psychotherapist, he didn't qualify as a probative witness under the statutory definition of relevant medical evidence pursuant to 5 U.S.C. § 8108(2) and as clarified in the Federal (FECA) Procedure Manual at 3-100-3. Reynolds appealed OWCP's ruling and in a decision issued August 20, 1997, ECAB affirmed OWCP's determination that a licensed certified psychotherapist with a doctorate in human development did not fall within the ambit of a physician or clinical psychologist as mandated by FECA.

In this action, plaintiff Reynolds claims that defendants Secretary of Labor Herman, assistant Secretary of Labor Anderson, and three members of the ECAB have violated his right to due process by refusing to consider Dr. Soeken's opinion as probative evidence so that he can be entitled to FECA benefits by the ECAB.*fn1 Although the plaintiff asserts many alternative theories of liability, his main contentions are: (1) that defendants, by refusing to assign any probative weight to Dr. Soeken as a medical expert, deprived plaintiff of his due process rights;*fn2 (2) that OWCP's failure to consider Dr. Soeken's report resulted in violations of plaintiffs' civil rights pursuant to 42 U.S.C. § 1983 and 1985; and (3) that defendants Walsh, Groom, and Kanjorski, as members of ECAB, are liable in their individual capacities for denying Reynolds' FECA claim. Defendants have moved to dismiss the Complaint under Fed.R.Civ.P. 12(b)(1) and (6), for lack of subject matter jurisdiction and failure to state a claim.

II.

A. Standard of Review

A motion to dismiss is appropriate only if it is evident that no relief could be granted under any set of facts that could be proven to support the allegations made by the plaintiff in the complaint. See Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); see also Martin v. Ezeagu, 816 F. Supp. 20, 23 (D.D.C. 1993). In evaluating a motion to dismiss, the Court must construe the complaint in the light most favorable to the plaintiff and give the plaintiff "the benefit of all inferences that can be derived from the facts alleged." Boehner v. McDermott, No. Civ. 98-594, 1998 WL 436897, at *2 (D.D.C. July 28, 1998), citing Schuler v. United States, 617 F.2d 605, 608 (D.C.Cir. 1979). However, it is the plaintiff's burden to establish the existence of subject matter jurisdiction. See Murphy v. United States, 45 F.3d 520, 522 (1st Cir. 1995).

B. Statutory Framework of the FECA

Plaintiff's Complaint alleges due process and civil rights*fn3 violations based upon the exclusion of Dr. Soeken, a licensed psychotherapist, as a "physician" for purposes of FECA regulations. The Federal Employees' Compensation Act, 5 U.S.C. § 8102 et. seq. (1994), is the exclusive workers' compensation scheme for federal employees. The Act mandates that the United States "pay compensation for the disability or death of an employee resulting from personal injury sustained while in the performance of his duty." Id. The Secretary of Labor (Secretary) has the responsibility of enforcing FECA and consequently has the authority to promulgate rules and regulations and decide all questions arising under the Act. See 5 U.S.C. § 8145, 8149 (1994). Pursuant to 20 C.F.R. § 10.2, the Secretary has delegated this administrative and rulemaking authority to the Director of the OWCP.

Upon a congressional mandate, the Secretary created ECAB, which has the authority to hear and make final decisions on appeal taken from OWCP determinations and awards. See 5 U.S.C. § 8149 (1994); 20 C.F.R. § 10.301. To be awarded compensation from ECAB, the claimant must establish "by the weight of reliable, probative and substantial evidence" that the claimed injury was caused by the employee's Federal employment. 20 C.F.R. § 10.110. To satisfy this evidentiary hurdle, the claimant must "submit rationalized medical opinion evidence" from an individual ...


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