United States District Court, D. Columbia.
UNITED STATES OF AMERICA, Plaintiff: Darrell C. Valdez, U.S.
ATTORNEY'S OFFICE FOR THE DISTRICT OF COLUMBIA,
D.J. EISENBERG, Defendant, Pro se.
MICHAEL D.J. EISENBERG, Defendant, MICHAEL D.J. EISENBERG,
Third Party Plaintiff, MICHAEL D.J. EISENBERG, Counter
Defendant: Michael D.J. Eisenberg, LEAD ATTORNEY, LAW OFFICES
OF MICHAEL D.J. EISENBERG, Washington, DC.
Michael D.J. Eisenberg, LEAD ATTORNEY, LAW OFFICES OF MICHAEL
D.J. EISENBERG, Washington, DC.
GREGORY THOMPSON, Third Party Defendant, GREGORY THOMPSON,
Counter Claimant: Lawrence John Anderson, LEAD ATTORNEY,
Nealon & Associates, PC, Alexandria, VA.
A. HOWELL, United States District Judge.
United States initiated this suit to recover funds under
Section 8132 of the Federal Employees' Compensation Act
(" FECA" ), 5 U.S.C. § 8101 et seq.,
from defendant Michael D.J. Eisenberg, who is an attorney
licensed to practice law in the District of Columbia and is
proceeding pro se in this action. Eisenberg
successfully obtained a settlement award for his former
client, and now-third-party defendant, Gregory Thompson, in a
Thompson v. Wackenhut Corp., No.
1:09-cv-01113-GBL-TRJ (E.D. Va. Oct. 2, 2009) ("
Wackenhut suit" ), for injuries Thompson
suffered from a slip-and-fall accident. Eisenberg failed,
however, to refund to the government the amount of
workmen's compensation paid to Thompson under the FECA.
The United States alleges that, under 5 U.S.C. § 8132,
Eisenberg was required to refund to the United States funds
totaling $96,295.15 prior to disbursing the settlement funds
obtained in the third-party suit. Pending before the Court
are three motions: (1) the United States' Motion for
Partial Judgment on the Pleadings and for Partial Summary
Judgment (" Pl.'s Mot." ), ECF No. 26; (2)
Eisenberg's Motion for Leave to File Counterclaim Against
the United States of America (" Def.'s Counterclaim
Mot." ), ECF No. 62; and (3) Eisenberg's Opposed
Motion to Amend Answer (" Def.'s Answer Mot."
), ECF No. 86. For the reasons discussed below,
Eisenberg's motions are denied, and the United
States' motion is granted in part and denied in
following facts derive from the whole record, including the
parties' various statements of material facts, briefs,
exhibits, and other evidence in the record.
Thompson, an employee of the U.S. Department of the Navy, was
injured in a slip-and-fall accident on December 6, 2007.
Pl.'s Statement Material Facts Supp. Mot. J. Pleadings &
Partial Summ. J (" Pl.'s SMF" ) ¶ 7, ECF No.
26-1; Def.'s Material Facts (" Def.'s SMF"
) at 7, ECF No. 85; Def.'s Counterclaim Against the
United States of America (" Def.'s Proposed
Counterclaim" ) ¶ 10, ECF No. 62-2. After the accident,
pursuant to the FECA, Thompson filed a claim with the
Department of Labor (" DOL" ) Office of
Workers' Compensation Programs (" OWCP" ) for
medical benefits and lost wages related to the injuries
caused by the accident. Pl.'s SMF ¶ 8; Def.'s SMF at
7. By letter dated February 19, 2008,
Thompson received notification from OWCP that his claim had
been accepted. Def.'s Mem. Supp. Opp'n Pl.'s Mot.
Partial J. Pleadings & Partial Summ. J. (" Def's
Mem." ), Ex. A (" Thompson FECA Claim Acceptance
Notice" ), ECF No. 84-1. Over a year later, by letter
dated May 28, 2009, on which Eisenberg is copied as
Thompson's attorney, Thompson received notice from OWCP
that his " claim for medical and wage loss benefits has
been terminated effective 06/07/2009." Def.'s Mem.,
Ex. B (" Thompson FECA Claim Termination Notice" ),
ECF No. 84-2. Thus, OWCP disbursed compensation to Thompson
until at least June 7, 2009, when it purportedly terminated
his benefits. Id.; see also Compl. ¶ 8 (alleging
OWCP disbursed compensation to Thompson until June 7, 2009);
Pl.'s SMF ¶ 9 (same).
represented by Eisenberg, requested reconsideration of
OWCP's decision to terminate his benefits, but OCWP
denied this request on July 7, 2010. See Def.'s
Mem., Ex. C (" Thompson FECA Claim Reconsideration
Notice" ), ECF No. 84-3.
OWCP's notification of termination of Thompson's
benefits, compensation was apparently paid on behalf of
Thompson, at least to medical providers, after June 7, 2009.
For example, DOL payment history reports in the record
reflect that while Thompson's lost wages compensation
stopped after June 6, 2009, see Def.'s Mem., Ex.
D (" October 8, 2010 Letter" ) at 2-6 (attached
report of " Compensation Payment History" ), ECF
No. 84-4; id., Ex. I (" October 4, 2011
Letter" ) at 50-53 (attached " Payment History
Inquiry Report" ), ECF No. 84-8; Pl.'s Opp'n
Def.'s Mot. Amend Answer (" Pl.'s Opp'n
Answer" ), Ex. 8 at 46-49 ( Wackenhut, Def.
United States' Mot. Dismiss or Summ. J. (" Pl.'s
Wackenhut Mot." ), Ex. D, ECF No. 8-2) ("
Payment History Inquiry Report" ), ECF No. 88-1, he
continued to receive medical benefits through February 10,
2011, see October 4, 2011 Letter at 40-49 (attached
" Bill Pay History Report" showing medical benefits
disbursed through February 10, 2011); see also
Pl.'s Opp'n Answer, Ex. 8 at 40-45 (Pl.'s
Wackenhut Mot., Ex. C, ECF No. 8-2) (" Bill Pay
History Report" showing medical benefits disbursed
through August 27, 2009).
Third Party Lawsuit
October 2, 2009, Thompson, represented by Eisenberg, filed
suit in the U.S. District Court for the Eastern District of
Virginia against a third party, Wackenhut Services, Inc.
(" Wackenhut" ), and the United States for
negligence relating to Thompson's December 6, 2007
slip-and-fall accident. Wackenhut, Compl., ECF No.
1;  see also Pl.'s SMF ¶¶
10-11; Def.'s SMF at 7; Def.'s Proposed Counterclaim
¶ 10. On December 7, 2009, the United States filed a Motion
to Dismiss, or Alternatively, for Summary Judgment ("
Pl.'s Wackenhut Mot." ),
Wackenhut, ECF No. 7, supported by a Declaration of
Antonio A. Rios (" Rios Decl." ), id., ECF
No. 8-1, Deputy Director
for OWCA, together with a detailed accounting, id.,
Exs. C & D. Rios attested: " Thompson received a total
of $94,261.33 disability compensation from January 22, 2008
until June 6, 2009. OWCP also paid $29,451.75 for medical
treatment related to the accepted conditions." Rios
Decl. ¶ 5; see Pl.'s Opp'n Answer at 13 n.9.
The court granted the United States' motion on January
15, 2010, dismissing the United States from the suit without
prejudice. Wackenhut, Order, ECF No. 20.
and Wackenhut then settled the negligence action for
$675,000. Pl.'s SMF ¶ 12; Def.'s SMF at 7. On
November 5, 2010, Eisenberg, on behalf of Thompson, filed a
Notice of Settlement in the Wackenhut suit,
Wackenhut, ECF No. 234, which was followed by a
joint Stipulation of Dismissal With Prejudice, on November
16, 2010, id., ECF No. 235.
settlement award was issued jointly to Thompson and
Eisenberg's law firm. See Def.'s Mem., Ex. E
(" Third-Party Lawsuit Settlement Letter" ) at 2,
ECF No. 84-5. Eisenberg admits that " [u]pon receiving
the $675,000 from the settlement, [he] distributed the
proceeds to Mr. Thompson and paid himself an attorney's
fee." Pl.'s SMF ¶ 14; Def.'s SMF at 7.
Government Refund-Related Correspondence
October 7, 2010, at Eisenberg's request, see
Def.'s SMF ¶ 5 (asserting that " [d]efendant did
request, as a confirmation what, if any funds, were due
through Mr. Thompson" ), Thompson wrote a letter to OWCP
" requesting the total amount of compensation paid"
by OWCP for his case, October 8, 2010 Letter at 1. By letter
dated October 8, 2010, Gloria Watson, a Claims Examiner at
OWCP, responded to Thompson, attaching " a copy of [his]
compensation payment history." Id.
Handwritten on one copy of the October 8, 2010 letter
submitted by Eisenberg in this case, on the bottom right-hand
corner, is the phrase, " Workers Comp Payback
$52,900.45," along with a second handwritten number
" 52,900.45" a few lines below the phrase.
Id. The attached payment history printout of
Thompson's " Compensation Payment History,"
which appears to have been generated that day from the "
Employment Standards Administration Federal Employees'
Compensation System," id. at 2, shows net total
payments of $94,261.33 from January 22, 2008 through June 6,
2009, id. at 6.
forwarded Eisenberg a copy of the October 8, 2010 letter
without any handwriting, via email on October 14, 2010.
Def.'s Mem., Ex. U (" October 14, 2010 Email"
), ECF No. 84-19. Eisenberg replied to Thompson the same day,
stating: " This appears to include your paycheck as
well. You need to contact HR and ask them what benefits you
have to payback [sic] (all of them or just medical and/or
paycheck, etc) and an exact number of what you owe."
six months after the settlement of the Wackenhut
suit, Eisenberg submitted, by letter dated June 9, 2011, a
Long Form Statement of Recovery (" SOR" ) notifying
DOL, Office of the Solicitor (" DOL-SOL" ), that
Thompson had " recently" received a third-party
damage award in a settlement against the third-party involved
in Thompson's OWCP claim. Pl.'s Mem. Supp. Mot.
Partial J. Pleadings & Partial Summ. J. (" Pl.'s
Mem." ), Ex. 1 (" June 9, 2011 Letter" ), ECF
No. 26-2; Def.'s Mem., Ex. F (" June 9, 2011
Letter" ), ECF No. 84-6.
Despite being privy both to the Wackenhut suit's
Rios Declaration, which indicated that compensation totaling
$123,713.08 had been paid to Thompson, and to DOL-SOL's
October 2010 letter, which stated that compensation paid to
Thompson through June 6, 2009 totaled $94,261.33, Eisenberg
listed in the SOR an amount of $70,533.93 in OWCP
disbursements to Thompson and an amount of $17,633.48 for the
government-allowed attorney's fee, reflecting a balance
of $52,900.45 to be refunded to OWCP. See June 9,
2011 Letter. According to Eisenberg, Thompson had "
instructed [him] that the amount to be used in the set-aside
calculation was $70,533.93," Answer ¶ 18(b); Def.'s
First Amended Answer (" Def.'s Proposed Answer"
) at ¶ 18(b), ECF No. 86-3, and Thompson had relied on the
government " to provide him with accurate information to
provide Mr. Eisenberg," Answer ¶ 18(c); Def.'s
Proposed Answer ¶ 18(c); see also Def.'s Mem. at
6 n.8 (" Defendant asserts that Mr. Thompson informed
Defendant of this value after Mr. Thompson spoke with
DOL." ), ECF No. 83-2. The SOR triggered a lengthy
series of communications between Eisenberg and DOL.
little over a month later, by letter dated July 19, 2011 to
Eisenberg, Onetia J. Evans, a DOL-SOL Paralegal Specialist,
acknowledged the receipt of the SOR, but raised concern over
the computation of the amount to be refunded. Pl.'s Mem.,
Ex. 2 (" July 19, 2011 Letter" ), ECF No. 26-3;
Def.'s Mem., Ex. G (" July 19, 2011 Letter" ),
ECF No. 84-7. Specifically, DOL indicated that OWCP had
disbursed additional benefits to Thompson in the interim
between the Wackenhut suit settlement and the
receipt of the SOR, stating:
Since you did not timely file the required Statement of
Recovery to compute the Government's statutory right of
reimbursement and to establish the surplus, the [OWCP]
continued to pay benefits to and on behalf of your client.
Current disbursements total $128,393.53 as of June 29, 2011.
19, 2011 Letter. Consequently, the letter cautioned:
If you insist on paying the Government's right of
reimbursements in the amount of $52,900.45 based on
disbursement at the time of the settlement that you computed
at $70,533.93, there will be an overpayment of $57,859.60
which is current disbursements of $128,393.53 minus
$70,533.93 disbursements at the time of settlement.
Id. In other words, because the SOR was not timely
filed, OWCP had disbursed benefits for Thompson after the
October 2010 Wackenhut settlement, bringing the
total amount of disbursements to $128,393.93. The letter
attached an amended SOR and demanded payment of a refund to
OWCP in the amount of $96,295.15 within thirty days.
next month, on August 16, 2011, Eisenberg spoke with Gertrude
G. Gordon, DOL-SOL's Chief of Subrogation, and requested
that she " explain how the numbers on the Statement of
Recovery were reached" in the July 19, 2011 letter.
Pl.'s Mem., Ex. 3 (" August 16, 2011 Letter" )
at 1, ECF No. 26-4. Gordon wrote back to Eisenberg "
apologize[ing] for any miscommunications between"
Eisenberg and her staff, but reiterating that the SOR "
was not timely filed" and that OWCP " continued to
pay benefits to and on behalf of your client," with
" [c]urrent disbursements total[ing] $128,393.52 as of
June 29, 2011." Id. She further explained that,
" since the [OWCP] did not suspend your client's
benefits, current disbursements total $128,393.53 which
results in a refund of $96,295.15." Id.
Acknowledging that Eisenberg " stated that [he had]
$52,900.45 ready to pay the Government's statutory right
reimbursement," Gordon asked him to " [p]lease
submit this payment within thirty days of your receipt of
this letter." Id. Eisenberg was cautioned,
however, that " the total due is $96,295.15" and,
thus, " upon receipt of the $52,900.45, the balance due
will be $43,394.70." Id. In response to
Eisenberg's request for " possible payment of the
additional amount with monthly payments," Gordon agreed
that DOL would " accept a monthly payment plan,"
but that the balance of the amount owed " must be paid
in full within one year." Id.
months later, by letter dated October 4, 2011, Evans, the
Paralegal Specialist, responded to Eisenberg's "
recent request for current disbursement information" for
Thompson's FECA claim, stating that the United States had
disbursed $98,792.13 in pay compensation and $29,601.40 in
medical compensation--a total of $128,393.53 in
compensation--as of September 27, 2011. Pl.'s Mem., Ex. 4
(" October 4, 2011 Letter" ), ECF No. 26-5; October
4, 2011 Letter at 1.
on October 23, 2011, Eisenberg advised DOL-SOL of " Mr.
Thompson's family income and expenses." Def.'s
Mem., Ex. J (" October 23, 2011 Correspondence" ),
ECF No. 84-9; see Pl.'s Mem., Ex. 5 ("
November 17, 2011 Letter" ), ECF No. 26-6; Def.'s
Mem., Ex. K (" November 17, 2011 Letter" ), ECF No.
84-10. After complaining that DOL had failed to timely
contact him and Thompson or " to return [his] calls from
nearly six weeks ago," Eisenberg explained that
Thompson's financial situation was " strained"
such that making even a $100 monthly payment " would
create a financial hardship." October 23, 2011
Correspondence. He represented, " [h]owever," that
" as a matter of due course and act of good faith, the
family is prepared to pay the lump sum amount that was
withheld back in November ($52,900.45) and make monthly
payments of $100.00." Id. Eisenberg further
A good faith effort was made to protect the financial
interests of the government when the settlement with the
third-party contractor was made. As discussed above, it
appears that it was the Agency's error that created the
situation the family now finds itself in. I would ask as a
matter of compassion that the remaining moneys, after the
lump sum withheld back in November is paid ($52,900.45), be
waived. If the Government is unwilling to assist this former
member of the United States military and nearly 20 year civil
servant, the family will agreed [sic] to the payment scheme
discussed above. But, if the Government is unwilling to agree
to the aforementioned, then the moneys currently being held
will need to be used to start monthly payments.
responded, by letter dated November 17, 2011, that, under
section 8132 of the FECA, the government had " no
authority to waive or compromise the amount to be
refunded" and, consequently, " [t]he amount of
compensation paid as of the date of third party settlement in
this case is $128,393.53. The Statement of Recovery must be
computed based on this disbursement amount which results in a
refund owed to the United Sates in the of [sic] $96.295.15.
This amount must be paid." November 17, 2011 Letter.
DOL-SOL also rejected Eisenberg's offer of monthly
payments because it would " clearly result in payment
being completed well beyond one year." Id. The
letter explained, " Payments are typically made within
30 days of completion (see 20 C.F.R. § § 10.715 &
10.716) but this office can allow an installment plan of up
to a year." Id. The letter notified Eisenberg
had two options: he could (1) " submit payment of the
$96,295.15 within thirty days," or (2) " submit an
initial payment of $52,900.45 within 30 days with continuing
monthly payment to pay the balance of $43,394.70 within one
calendar year." Id. Lastly, the letter warned
Eisenberg that " [f]ailure to make payment in either of
these two ways will result in this matter being forwarded to
Treasury for collection or referral to the U.S. Department of
Justice to bring action against you, your firm and your
following month, by letter dated December 19, 2011, Eisenberg
requested " a formal meeting" with Gordon and
DOL-SOL " regarding the overpayment issue your office
has caused my client." Def.'s Mem., Ex. L ("
December 19, 2011 Letter" ), ECF No. 84-11. In the
letter, Eisenberg accused the government of "
nonfeasance" and alleged that any payments to Thompson
over the amount of $52,900.45--the amount which Eisenberg had
set aside from the settlement to pay the government--were
" separate overpayment[s] caused by your office"
that " have nothing to do with our settlement
notification." Id. According to Eisenberg, the
government had failed to stop making payments to Thompson,
who " had no reason due to your inaction to believe that
he was not entitled to these monies." Id.
Eisenberg thus alleged that any amount over $52,900.45 fell
outside the scope of Section 8132 and the government was not
entitled to recoup those funds. Id.
March 12, 2012, Eisenberg met with Alexandra A. Tsiros,
Counsel for FECA Subrogation at DOL-SOL, and the Deputy
Associate Solicitor. See Pl.'s Mem., Ex. 6
(" July 31, 2012 Letter" ), ECF No. 26-7;
Def.'s Mem., Ex. N (" July 31, 2012 Letter" ),
ECF No. 84-12. Tsiros memorialized the discussion during the
March 12, 2012 meeting in a letter to Eisenberg, dated July
31, 2012, making yet another demand for payment. Id.
Notably, the letter reflected that Eisenberg " stated
during the meeting in our office that the settlement funds
had already been used to purchase an annuity for your client,
and, as a consequence, your client does not have sufficient
income to reimburse the government." Id. The
letter warned that, " [b]ecause it is apparent that you
distributed funds to your client and paid yourself an
attorney's fee of $101,250.00 without paying the refund
due to the United States under § 8132, you have
established that you are liable to the government for the
full amount of the refund." Id.
August 12, 2012, in an email to Tsiros, Eisenberg offered to
settle the matter, on behalf of Thompson, for the $52,000
retained from the settlement and $500 monthly payments "
until the rest is paid off." Def.'s Mem., Ex. N(2),
ECF No. 84-13. Tsiros responded that she would review the
offer, discuss it with the appropriate parties, and "
get back to you as soon as possible." Id. The
record does not reflect any follow-up communication between
Eisenberg and Tsiros.
September 24, 2012, Eisenberg emailed Marcia Harris at DOL
requesting " a sit-down meeting with you and your
supervisors" regarding " some new information
[that] may have come to light that needs to be properly
addressed." Def.'s Mem., Ex. O, ECF No. 84-14. The
record reflects no such meeting or further communication
until December 14, 2012, on which date Tsiros sent Eisenberg
a letter representing DOL-SOL's " final attempt to
collect this debt before referring the matter to the
Department of the Treasury for collection." Pl.'s
Mem., Ex. 7 (" December 14, 2012 Letter" ), ECF No.
26-8; Def.'s Mem., Ex. P (" December 14, 2012
Letter" ), ECF No. 84-15. In response, on January 13,
2013, Eisenberg emailed Tsiros
and conceded that " send[ing] this matter to
DOJ/IRS" " is the only remaining path based on your
correspondence." Def.'s Mem., Ex. Q, ECF No. 84-16.
United States filed the Complaint in this matter on October
24, 2013, seeking recovery solely from Eisenberg of
$96,295.15 under § 8132 of the FECA. Compl. ¶
1. Eisenberg then joined Thompson as a
third-party defendant. Compl. & Mot. to Join Gregory Thompson
& Clarisse Thompson as Third-Party Defs. (" Third-Party
Compl." ), ECF No. 10.
March, 12, 2014, Thompson answered the third-party complaint
and counterclaimed against Eisenberg for negligence and
breach of contract, alleging that Eisenberg "
negligently failed to protect the lien asserted by the United
States," and " charged [him] a fee of more than
$200,000.00 for his services, . . . [which] included
protecting and clearing any and all liens claims by the
United States." Third-Party Def.'s Counterclaim
Against Michael Eisenberg (" Thompson's
Counterclaim" ) at ¶¶ 4, 6, ECF No. 18.
unsuccessful mediation of the dispute, and at the request
of the United States and Thompson, see Joint Status
Report, ECF No. 24, discovery was stayed until the resolution
of any pre-discovery dispositive motions, see Minute
Order (June 3, 2014). The United States subsequently filed,
on June 11, 2014, its pending dispositive motion, ECF No. 26.
then took approximately nine months, until March 23, 2015,
after multiple extensions of time, see Minute Order
(June 24, 2014); Minute Order (July 9, 2014); Minute Order
(March 6, 2015), to complete the submission of his opposition
to the United States' motion, see ECF Nos.
83-85. In the interim, he filed approximately twelve
additional motions, including motions to file cross-claims
against three additional third-parties--a legal malpractice
insurance company and two insurance brokers, see ECF
Nos. 31-32, a motion to stay the dispositive motions
schedule, see ECF No. 37, a motion for leave to file
amended cross-claims against Thompson and his wife,
see ECF No. 63, five motions for extensions of time
related to those motions, see ECF Nos. 52-54, 67-68,
and his pending motion to file counterclaims against the
United States, ECF No. 62, for selective prosecution, per
se discrimination, denial of due process and notice, and
civil conspiracy, see Def.'s Proposed
Counterclaim ¶¶ 21-45.
withdrew two of those motions, see ECF Nos. 72, 78;
Minute Order (Feb. 2, 2015); Minute Order (Feb. 23, 2015),
and the Court held a hearing on the remaining substantive
motions on February 11, 2015, see Minute Entry (Feb.
11, 2015); Minute Order (Feb. 11, 2015). Eisenberg then
stipulated to the dismissal of the third-party insurance
ECF No. 80, Minute Order (Feb. 23, 2015), and the Court
denied his motion to stay, ordering that he respond to the
United States' dispositive motion by March 11, 2015,
see Minute Order (Feb. 26, 2015).
yet another extension of time, see Minute Order
(March 6, 2015), Eisenberg finally submitted opposition
papers, see ECF Nos. 83-85, and then, on March 29,
2015, filed his pending motion to amend his Answer, ECF No.
86, to add two additional affirmative defenses--estoppel and
selective prosecution, see Def.'s Proposed
Answer at ¶¶ 21-22.