United States District Court, District of Columbia
February 17, 1999
DONALD R. SOEKEN, ET AL. PLAINTIFFS,
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.
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.
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 appealed the denial of his claim to the OWCP's Branch
of Hearing and Review, and a hearing was held on October 7, 1992.
In an opinion dated January 21, 1993, the OWCP Hearing
considering Reynold's testimony and evidence, affirmed the
denial of his claim, finding that Reynolds failed to submit
any medical evidence demonstrating that he sustained an
injury in the performance of a work-related duty. Defendant's
Attachment 5, at 284. Reynold then appealed this decision
to ECAB; and in a decision dated June 8, 1994, ECAB
affirmed OWCP's denial of Reynolds' claim. ECAB based its
decision on the fact that Reynolds failed to submit "rationalized
medical opinion evidence necessary to show [a] causal
relationship," and as a result found that Reynolds did not
satisfy the burden of proof necessary to establish a work-related
injury. Defendant's Attachment 6, at 6.
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. 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 defined as a "physician" pursuant to the Act. Id. The
interpretation of this definition is the source of contention
between the plaintiff and defendants.
Section 8101(2) of the Act defines a physician as including:
"surgeons, podiatrist, dentist, clinical psychologists,
optometrists, chiropractors, and osteopathic practitioners
within the scope of their practice as defined by state law.
The term `physician' includes chiropractors only to the
extent that their reimbursable services are limited to
treatment consisting of manual manipulation of the spine to
correct a subluxation as demonstrated by x-ray to exist,
and subject to regulation by the Secretary."
5 U.S.C. § 8101(2). The Federal (FECA) Procedure Manual
expounds upon the definition by including clinical psychologists
under the term "physician." Federal (FECA) Procedure Manual,
3-0100-3. In order to qualify as a clinical psychologist under
the Manual, an individual must meet three criteria. Id. First,
the individual must be "licensed or certified as a psychologist
at the independent practice level of psychology by the state in
which he or she practices." Id. Second, the individual must
possess either a doctoral degree in psychology from a recognized
accredited educational institution or be listed in a national
register of health service providers in psychology that the
Secretary deems appropriate. Id. Third, the individual must
possess two years of supervised experience in health services
including at least one year of post-degree work. Id.
Claimants have three different opportunities to appeal a FECA
decision. First, an individual can request a hearing before an
OWCP hearing representative or a review of the written record
within thirty days of the initial decision. See 5 U.S.C. § 8124
(1994); 20 C.F.R. § 10.131. If the OWCP review does not
satisfy the claimant, then he or she has one year to request
reconsideration. See 5 U.S.C. § 8128 (1994); 20 C.F.R. § 10.138.
Finally, the claimant may file an appeal with ECAB within one year.
See 20 C.F.R. § 10.139. Reynolds, however, arguing that his due
process and civil rights were deprived because he was barred from
using Dr. Soeken as an expert witness, seeks an additional review of
the decision by this Court.
C. The Section 8128(b) Limitation on Judicial Review
In enacting FECA, Congress sought to strike a compromise
between granting injured employees immediate benefits while
insulating the government from workers' compensation lawsuits.
See Lockheed Aircraft Corp. v. United States, 460 U.S. 190, 194,
103 S.Ct. 1033, 74 L.Ed.2d 911 (1983). To effectuate this
compromise, Congress enacted 5 U.S.C. § 8128(b) (1994), which
limits regulatory review as the exclusive remedy for work-related
injuries. Section 8128(b) states:
The action of the Secretary or his designee
in allowing or denying a payment under
this subchapter is —
(1) final and conclusive for all purposes
and with respect to all questions of law and
(2) not subject to review by an other official
of the United States or by a Court by
mandamus or otherwise.
5 U.S.C. § 8128(b), Although this Court lacks jurisdiction to
review ECAB's findings of fact or law, see Gilmore v. United
States Dep't of Labor, 1993 WL 89050 at *1 (D.C.Cir. 1993), the
District Court does have the jurisdiction to review actions
violative of the Constitution.*fn4 See Wacks v. Reich,
950 F. Supp. 454, 458 (D.Conn. 1996).
A more difficult question is whether § 8128(b) prevents
this court from reviewing violations of a clear statutory
mandate. There is a split in the circuits as to whether §
8128(b) prevents judicial review of violations of a clear
statutory mandate. Because this Circuit has never directly
considered the issue, this is a matter of first impression. The
First and Ninth Circuits have rejected the "statutory mandate"
exception, noting that because 5 U.S.C. § 8145 gives the
Secretary of Labor "virtually limitless" authority "to make the
policy choices associated with disability decisions," courts are
barred from reviewing violations of a clear statutory mandate.
See Paluca v. Secretary of Labor, 813 F.2d 524 (1st Cir. 1987)
(holding that district court did not have jurisdiction to review
Secretary's compliance with FECA based on statutory violations
because it would directly conflict with Secretary's authority to
freely make policy decisions regarding disability benefits.);
Staacke v. United States Secretary of Labor, 841 F.2d 278, 282
(9th Cir. 1988).*fn5 In Hanauer v. Reich, however, the
Fourth Circuit recognized judicial review for violations of clear
statutory violations, basing its holding upon the Supreme Court's
decision in Leedom v. Kyne, 358 U.S. 184, 79 S.Ct. 180, 3 L.Ed,
2d 210 (1958).*fn6 See 82 F.3d 1304, 1307 (4th Cir. 1996). The
D.C. Circuit has considered statutory bars to judicial review in
regards to presidential action. See Chamber of Commerce v. Reich,
74 F.3d 1322 (D.C.Cir. 1996). In Reich, the court held that
absent a statute that implicitly precludes review of presidential
actions, such actions are reviewable if the petitioner alleges
that such conduct is ultra vires and that the action violates
either a specific statutory prohibition or deprives an individual
of a right granted by statute. Id. The instant case is
distinguishable, however, because § 8101 neither confers upon
Reynolds a right to use a psychotherapist as a probative expert
witness nor does OWCP's interpretation of § 8101 violate any
statutory prohibition. In Shook v. District of Columbia Fin.
Responsibility and Management Assistance Auth., 132 F.3d 775
(D.C.Cir. 1998), the D.C. Circuit held that a statutory provision
that precluded judicial review of the agency's ability to issue
orders did not preclude the court from reviewing the legality of
such orders. Furthermore, the D.C. Circuit has held that a
statutory prohibition of judicial review of an agency's exercise
of its powers as a receiver of a bank did not preclude review of
the agency's decision to appoint a receiver. See James Madison
Ltd. v. Ludwig, 82 F.3d 1085 (D.C.Cir. 1996). Unlike Ludwig,
however, § 8128(b) is an extremely broad prohibition on a
court's ability to review FECA determinations. See 5 U.S.C. § 8128(b).
The D.C. Circuit has held that "it is individual determinations
that `have traditionally been accorded more rather than less
judicial protection against agency error than generally
applicable rules.'" Paluca, 813 F.2d at 527, citing Gott v.
Walters, 756 F.2d 902, 915 (D.C.Cir. 1985). In this case, the
§ 8101(2) definition of physician is clearly a generally
applicable rule, leaving little if any discretion to the hearing
officer. Based upon the "unambiguous and comprehensive language"
of § 8128(b) illustrating Congress' intention "to bar
judicial review altogether," Lindahl v. Office of Personnel
Management, 470 U.S. 768, 105 S.Ct. 1620, 84 L.Ed.2d 674 (1985),
and the guidance of the D.C. Circuit, this Court finds that §
8128(b) bars judicial review of violations of a clear statutory
mandate.*fn7 This leaves Reynolds' alleged constitutional
violation for the Court's consideration.
Reynolds constitutional challenge to § 8101 is apparently
based on his belief that the Secretary's exclusion of
psychotherapists from § 8101 resulted in the deprivation of
his Fifth Amendment right to due process. "The fundamental
requirement of due process is the opportunity to be heard `at a
meaningful time and in a meaningful manner.'" Mathews v.
Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976).
In order for a plaintiff to establish an actionable due process
claim, facts must be alleged that (1) support a determination
that the plaintiff has a constitutionally protected life,
or property interest, see Board of Regents v. Roth, 408 U.S. 564,
569, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972); and (2) the
conduct complained of has deprived the claimant of that interest
without constitutionally adequate procedure. See Logan v.
Zimmerman Brush Co., 455 U.S. 422, 428, 102 S.Ct. 1148, 71
L.Ed.2d 265 (1982).
The first step in accessing Reynolds' due process challenge is
whether he has a constitutionally protected property interest in
receiving FECA benefits. As the court in Jones-Booker v. United
States noted, in order to have a property interest protected by
the Fifth Amendment, courts must determine whether "an
independent source," such as FECA, establishes a "legitimate
claim of entitlement" to compensation. 16 F. Supp.2d 52, 59
(D.Mass. 1998). Whether a legitimate claim exists depends upon
the amount of discretion afforded to ECAB under the statute. See
id. In Jones-Booker, the court found that FECA creates a property
interest based upon the mandatory language in the statute that
restricts ECAB's discretion to award compensation payments.*fn8
Based upon the plain text of FECA, this Court is in agreement
with Jones-Booker that the statute's mandatory quality creates a
legitimate property interest for receiving compensation benefits.
The second step of the analysis requires a determination of
what process Reynolds is due. Due process is "flexible" and
requires balancing three distinct factors. See id. The first
consideration is the private interest that will be affected by
the official action. See id. Secondly, this court must consider
the risk of an erroneous deprivation of "such interest through
the procedures used, and the probative value, if any, of
additional or substitute procedural safeguards." Id. Finally, the
Government's interest must be assessed, taking into account the
fiscal and administrative burdens the additional or substitute
procedural requirement would entail. See id. Thus, in determining
whether due process was properly afforded to a claimant, the
court must weigh the costs and benefits of the disputed
procedure. See United States v. Woods, 931 F. Supp. 433, 439
In the instant case, Reynolds had numerous opportunities to be
heard. Reynolds brought in several medical experts who qualified
under the conscripts of § 8101. Unfortunately for Reynolds,
however, none of these qualified medical practitioners could
establish the requisite nexus between his injury and the
workplace environment. It seems disingenuous to accept Reynolds'
argument that because none of the accepted medical experts could
establish the requisite nexus, that the failure to acknowledge a
nonrecognized expert by ECAB is somehow violative of his due
process. Reynolds had a fair opportunity to present evidence of
his work-related injury.*fn9 A statute that defines who can
provide probative medical evidence of a work-related injury does
not create a statutory entitlement to bring whatever witness
Reynolds chooses. Because Reynolds had every opportunity to
select a medical practitioner that fit the statutory definition,
he had sufficient notice and opportunity to be heard such that
the exclusion of an expert outside of the statutory definition
violate his due process.*fn10
For the reasons stated above, defendants' motion to dismiss is
GRANTED. An order consistent with this opinion will issue this