The opinion of the court was delivered by: Royce C. Lamberth, United States District Judge
Before the court is the motion to dismiss of defendant Elaine Chao ("Secretary"), Secretary of the United States Department of Labor. The Secretary moves to dismiss the complaint on the grounds that the court lacks subject matter jurisdiction. For the reasons set forth herein, the court will grant the Secretary's motion.
In opposing a motion to dismiss for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1), the plaintiff bears the burden of persuasion to establish subject matter jurisdiction by a preponderance of the evidence. McCutt v. Gen. Motors Acceptance Corp. of Indiana, 298 U.S. 178, 189 (1936). A complaint may be dismissed for lack of subject matter jurisdiction only if " 'it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.' " Sinclair v. Kleindienst, 711 F.2d 291, 293 (D.C. Cir. 1983) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). The court assumes the truth of the allegations made in the complaint and construes them favorably to the pleader. Artis v. Greenspan, 158 F.3d 1301, 1305-06 (D.C. Cir. 1998). In determining whether the plaintiff has met his burden, the court may look to materials beyond the pleadings. Herbert v. Nat'l Acad. of Sciences, 974 F.2d 192, 197 (D.C. Cir. 1992).
II. FECA Statutory Scheme*fn1
Congress enacted the Federal Employees' Compensation Act ("FECA") to provide for a workers' compensation scheme. The Act provides that "[t]he United States shall pay compensation for the disability or death of an employee resulting from injury sustained while in the performance of his duty[.]" 5 U.S.C. § 8102 (a) (2000). The monthly pay at the time of a claimant's injury or the monthly pay at the time that the disability begins determines the compensation for total or partial disability. 5 U.S.C. §§ 8101(4), 8114 (2000). The actual earnings of the employee determine the wage-earning capacity of the employee, "if his actual earnings fairly and reasonably represent his wage-earning capacity." 5 U.S.C. § 8115 (a) (2000). "When an overpayment has been made to an individual...adjustment shall be made under regulations prescribed by the Secretary of Labor by decreasing later payments to which the individual is entitled." 5 U.S.C. § 8129 (a) (2000).
The Secretary of Labor may "review an award for or against payment of compensation at any time on [her] own motion or on application." 5 U.S.C. § 8128(a) (2000). Upon review under section 8128 if the Secretary finds that the wage-earning capacity of the individual would probably have increased but for the injury, the Secretary shall recalculate prospectively the monetary compensation payable for disability on the basis of an assumed monthly pay corresponding to the probable increased wage-earning capacity. 5 U.S.C. § 8113 (a) (2000).
FECA authorizes the Secretary to prescribe rules and regulations necessary for the administration and enforcement of the Act. 5 U.S.C. § 8149 (2000). FECA authorizes the Secretary to administer FECA and to appoint employees to administer FECA. 5 U.S.C. § 8145 (2000). The Secretary has delegated the authority to administer FECA to the Office of Worker's Compensation Programs ("OWCP").
If a claimant disagrees with OWCP's final claims determination, FECA provides for administrative review. From the date of the decision, the claimant may: (1) within 30 days, request a hearing before an OWCP hearing representative or request that such representative review the record, 5 U.S.C. § 8124 (2000), 20 C.F.R. § 10.616 (2003); (2) within one year, request reconsideration, 20 C.F.R. § 10.606 (2003); 20 C.F.R. § 10.607 (2003); or (3) within one year, file an appeal with the Employees' Compensation Appeals Board ("ECAB"). 20 C.F.R. §§ 10.625, 501.3(d) (2003). Administrative review is the claimant's only avenue for review of a claim because Congress precluded judicial review of claims disputes. 5 U.S.C. § 8128 (b) (2000).
On April 23, 1973, plaintiff Gallucci, an apprentice plate printer for the United States Bureau of Printing and Engraving ("Bureau"), which is part of the United States Department of the Treasury ("Treasury"), injured his back. Gallucci made a timely application to OWCP, which is a division of the Department of Labor ("Labor"). Labor, through OWCP, approved Gallucci's application for workers' compensation benefits under FECA. Gallucci received medical benefits and temporary total disability compensation at the pay-rate of an apprentice plate printer.
In 1975, OWCP determined that Gallucci was capable of doing the work of a lab technician. OWCP changed his total disability compensation to loss of wage-earning capacity ("LWEC"), thus OWCP reduced Gallucci's benefits by $110.00 per week.
On July 24, 1983, Gallucci began nine years of employment as a psychology technician for the National Institute of Mental Health, ("NIMH") at a salary of $389.54 per week. On December 21, 1992, Gallucci began employment with the Veterans Administration, ("VA") as a readjustment counseling therapist earning $754.40 per week.
In 2002, Gallucci learned that the pay-rate for his worker's compensation benefits should have been that of a journeyman plate printer due to Labor's own policy. Gallucci timely informed OWCP of the discrepancy, at which point OWCP assigned the case to Mr. Huff for review. In a letter dated May 21, 2003, OWCP informed Gallucci that from August 13, 1981 to September 9, 2000 his benefits should have been based upon the pay-rate of journeyman plate printer, as opposed to the pay-rate of an apprentice plate printer. OWCP informed Gallucci that the difference between his actual LWEC entitlement and the money he received for the period was $828,980.11. The same letter also explained that during the period from December 18, 1993 to October 31, 2001, Gallucci received benefits from the Office of Personnel Management ("OPM") at the same time that he was receiving FECA benefits. OWCP determined that Gallucci's overcompensation amounted to $105,744.10, which OWCP would deduct from the $828,980.11 for a total compensation of $723,236.01.*fn2
In a letter dated June 4, 2003, Treasury asked Labor not to make the payments specified in the May 21, 2003 letter. Treasury asserted that it had new information and requested a reasonable opportunity to further investigate the case. From June 2003 to May 26, 2004 Gallucci received no word from OWCP about the additional money owed to him. On May 26, 2004 Gallucci's counsel received a facsimile that a decision would be coming within fourteen days.
On June 28, 2004 Gallucci filed the original complaint with the court. Later that day, Gallucci's counsel received a letter dated June 25, 2004 from OWCP. The letter stated that OWCP determined that Gallucci was entitled to two monetary pay-rate increases. The first being from April 23, 1974 to April 28, 1976 because the pay-rate for the job of apprentice plate printer increased from $200.17 per week to $234.93 per week. The second pay increase was for April 28, 1976 till the present because Gallucci would have graduated from apprentice plate printer to journeyman on that date. OWCP ...