Opinion
EP-02-CA-188-DB
September 16, 2003
MEMORANDUM OPINION AND ORDER
On this day, the Court considered a "Motion to Dismiss or, in the Alternative, Motion for Summary Judgment" ("Motion to Dismiss" and "Motion for Summary Judgment"), filed by Respondent Director, Office of Workers' Compensation Programs, United States Department of Labor in the above-captioned cause on August 23, 2002. Petitioner Daniel A. Ramirez, proceeding pro se, filed a "Opposition to Motion to Dismiss" August 30, 2002. On June 27, June 30, and July 14, 2003, the Petitioner filed a "Supplemental Opposition to Respondent's Motion to Dismiss," "Second Supplemental Opposition" and "Third Supplemental Opposition," respectively. On July 17, 2003, Respondent filed a "Reply to Petitioner's Supplemental Responses to Motion to Dismiss or, in the Alternative, Motion for Summary Judgment." On August 30, 2003, Petitioner filed an "Opposition to Motion to Dismiss." After due consideration, the Court is of the opinion that the Motion to Dismiss should be denied, while the Motion for Summary Judgment should be granted for the reasons stated below.
BACKGROUND
Petitioner was employed by the United States Army from 1988 to 1990 as an industrial hygienist. In 1990, Petitioner was injured in the performance of his duties and, in 1992, was awarded workers' compensation benefits under the Federal Employee's Compensation Act ("FECA"), 5 U.S.C. § 8101 et seq, for total disability resulting from the 1990 injury. Respondent terminated Petitioner's compensation benefits due to Petitioner's refusal to submit to a medical examination pursuant to 5 U.S.C. § 8123(d).According to the record, on June 29, 1999, Petitioner was ordered to submit to medical examinations by physicians on July 12, and July 19, 1999, for the purpose of attaining second opinions regarding Petitioner's physical disabilities. One examination was to take place in Dallas, Texas and the other in El Paso, Texas, respectively. The letters to Petitioner concerning these exams notified Petitioner that his compensation could be suspended if he failed to attend these medical examinations and that he should notify Respondent if he was unable to attend either appointment. Plaintiff did not keep either of these appointments, nor did he notify Respondent that he would be unable to attend either appointment.
On July 20, 1999, Respondent issued a "Notice of Proposed Suspension of Compensation" to Petitioner, notifying him of a proposed suspension and allowing him a period of fourteen days in which to explain his reasons for missing both appointments. Petitioner did not respond until after the deadline and his suspension was finalized on August 5, 1999. Petitioner did not request a hearing in writing until August 16, 1999. Petitioner repeated this written request on October 1, 1999, where he included a copy of a letter from Petitioner to Respondent dated August 2, 1999 but was not received by the Respondent prior to the August 5, 1999 suspension. In the August 2, 1999 letter, Petitioner stated that he did not attend the medical examinations because there was no conflict in the medical evidence and there was sufficient medical evidence to document his condition.
On August 31, 2000, after conducting a hearing, Respondent's issued a decision which upheld the suspension of Respondent's benefits because Petitioner refused to submit to a medical examination. Petitioner then appealed the decision to the Employees' Compensation Appeals Board ("ECAB"). The ECAB then requested transmittal of the case record. The ECAB failed to render a decision. On March 29, 2001, Respondent issued a decision indicating that Petitioner's benefits remained suspended because he did not indicate that he would submit to the necessary medical examinations.
Since that time, Petitioner has sought review of Respondent's decision to suspend his benefits through an application for review with the ECAB, an "Original Application for Reconsideration" with Respondent on September 4, 2001; a "Petition for Review" with the United States Court of Appeals for the Fifth Circuit on May 2, 2002; and finally, the filing of the instant cause on May 15, 2002.
On August 30, 2002, Petitioner filed an "Emergency Application for Temporary Restraining Order" ("Application for TRO") in this cause, wherein Petitioner requested that the Court impose a temporary restraining order on Respondent to prevent further deprivation of Petitioner's property interest provided by the FECA. Respondent filed a Response on September 16, 2002 and the Court held a hearing on the Application for TRO on October 4, 2002. At the hearing, Respondent notified the Court that it reached a decision on September 10, 2002 regarding Petitioner's Original Application for Reconsideration, filed on September 4, 2002 with the Respondent. Therein, Respondent upheld its previous termination decision, but explained that Petitioner may become eligible for reinstatement of compensation benefits upon completion of two medical examinations as directed by Respondent. That decision informed Petitioner that he had one year from September 10, 2002 to submit additional evidence by filing a new request for reconsideration.
By Order entered October 7, 2002, the Court denied Petitioner's Application and ordered Respondent to deliver the complete administrative record of Petitioner's case to Petitioner on or before November 4, 2002. The Court's Order also instructed Petitioner to comply with the requirements for reinstatement or appeal as outlined in Respondent's September 10 Notice of Decision before seeking further relief from the Court.
On October 16, 2002, Petitioner filed a Notice of Appeal of the Court's Order denying Petitioner's Application for TRO to the Fifth Circuit. The Fifth Circuit dismissed Petitioner's appeal on the grounds that it had no jurisdiction to consider a temporary restraining order.
On November 5, 2002, Respondent filed an "Advisory to the Court." Therein, Respondent informs the Court that several unsuccessful attempts were made to contact Petitioner to coordinate the delivery of the administrative record. On October 30, 2002, the Respondent sent, via certified mail, return receipt requested, a complete copy of Petitioner's administrative record to Petitioner. The Respondent also reported that Petitioner attended the two scheduled medical examinations on October 15 and October 31, 2002 and that Respondent "was in the process of initiating compensation payments retroactive to April 6, 2001," the date Petitioner finally agreed to attend the required medical examinations.
On November 12, 2002, Petitioner filed a "Response to Respondent's Advisory." Therein, Petitioner argued that his compensation benefits should be retroactive to August 1999, not April 6, 2001.
On December 19, 2002, Respondent filed a "Second Advisory to the Court." Therein, Respondent states that Petitioner failed to pick up the administrative record after two notices by the United States Postal Service. On December 12, 2002, the Postal Service returned the administrative record as "unclaimed" to the U.S. Attorney's Office. In order to comply with the Court's Order, Respondent submitted the administrative record to the Court. Respondent also certifies that a copy of the Advisory and the attached administrative record were forwarded to Petitioner.
The copy of the administrative record, mailed to the Court by the Respondent, remains in the possession of the Court. The Court will maintain the administrative record for 30 days from the date this Order enters. If Petitioner does not retrieve the administrative record within the allotted time, the Court will dispose of the copy as it sees fit.
On November 8, 2002 Respondent restored Petitioner's benefits retroactive to April 6, 2001, the date Petitioner indicated his willingness to undergo the medical examinations that were initially scheduled for July 1999.
On November 12, 2002, Petitioner filed a "Response To Advisory To The Court." In this Response, Petitioner argues that he has been "wrongfully deprived of his property interest in disability compensation" because the compensation benefits should have been restored retroactively to August 1999, instead of April 6, 2001.
The instant Motions were filed August 23, 2002, prior to Petitioner's FECA benefits being reinstated. In its Motions, Respondent argues Petitioner's claim of due process violation completely fails to rise to the level of a substantial, cognizable claim of constitutional violation and therefore, that the Court lacks jurisdiction to entertain the case. In it's "Response to Petitioner's Supplemental Response," filed after reinstatement of benefits, Respondent argues that despite having filed four Responses to Respondent's Motion, Petitioner fails to show that a genuine issue of material fact exists and thus, that it is entitled to judgment as matter of law.
DISCUSSION
A. Motion to Dismiss
In its Motion to Dismiss, Respondent argues that the Court lacks subject matter jurisdiction over Petitioner's complaint because the FECA explicitly bars judicial review of the Secretary of Labor's administration of the FECA program pursuant to 5 U.S.C. § 8128(b), except where a substantial, cognizable constitutional claim is alleged. Accordingly, Respondent argues that Petitioner's claim of a due process violation fails to rise to the level of a substantial, cognizable claim of a constitutional violation. Petitioner contends that Respondent violated his right to due process because he was not given notice and an opportunity to respond prior to his suspension of benefits.
Section 8128(b) of FECA precludes judicial review of an action of the Secretary "in allowing or denying a payment" as follows:
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 fact; and (2) not subject to review by another official of the United States or by a court by mandamus or otherwise.5 U.S.C.A. § 8128(b) (West 2003).
However, courts in various circuits, including the Fifth Circuit, have held that § 8128(b) does not foreclose judicial review of a substantial constitutional claim involving FECA. Czerkies v. Department of Labor, 73 F.3d 1435, 1443 (7th Cir. 1996); Benton v. United States, 960 F.2d 19, 22 (5th Cir. 1992); Rodriguez v. Donovan, 769 F.2d 1344, 1347-48 (9th Cir. 1985). The conduct of the Respondent that Petitioner challenges in this action is not the "allowing of denying [or] of payment," but rather the manner in which his claim was decided. When a government-created property interest is at stake, due process principles require at least notice and an opportunity to respond in some manner, whether in writing or at an oral hearing, before termination of that interest. See Raditch v. United States, 929 F.2d 478, 480 (9th Cir. 1991) (recognizing property interest in FECA benefits). Petitioner claims that he has been denied due process because he was not provided with notice and an opportunity to be heard prior to the suspension of his benefits. Based on these allegations, the Court finds that Petitioner has raised a substantial constitutional claim and this Court retains jurisdiction to review that charge. Accordingly, the Court is of the opinion that Respondent's Motion to Dismiss should be denied. The Court will now consider Respondent's alternative motion, the Motion for Summary Judgment.
B. Motion for Summary Judgment
Summary judgment should be granted only where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED. R. CIV. P. 56(c). The party that moves for summary judgment bears the initial burden of identifying those portions of the pleadings and discovery on file, together with any affidavits, which it believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). "If the moving party fails to meet this burden, the motion must be denied, regardless of the nonmovant's response." Tubacex, Inc. v. M/V Risan, 45 F.3d 951, 954 (5th Cir. 1995). If the movant does meet this burden, however, the nonmovant must go beyond the pleadings and designate specific facts showing that there is a genuine issue for trial. See, e.g., Celotex, 477 U.S. at 324, 106 S.Ct. at 2553. "If the non-movant fails to meet this burden, then summary judgment is appropriate." Tubacex, 45 F.3d at 954.
When making a determination under Rule 56, factual questions and inferences are viewed in a light most favorable to the nonmovant. See Lemelle v. Universal Mfg. Corp., 18 F.3d 1268, 1272 (5th Cir. 1994). The party opposing a motion supported by evidence cannot discharge his burden by alleging mere legal conclusions. See Anderson v. Liberty Lobby, 477 U.S. 242, 248-49, 106 S.Ct. 2505, 2509-10, 91 L.Ed.2d 202 (1986). Instead, the party must present affirmative evidence in order to defeat a properly supported motion for summary judgment. See id.
Petitioner argues that Respondents denied him of his property interest in FECA benefits by failing to provide him with notice and an opportunity to be heard prior to suspension of his benefits. At least one court has held that disability benefits under FECA constitute a valid property interest. See Raditch at 480. "Claims of entitlement to federal disability payments are secured through laws passed by Congress, 5 U.S.C. § 8101-8193 and therefore, entitlement to the benefits cannot be taken away without due process." Id. However, a deprivation of property does not constitute a deprivation of due process "if meaningful post-deprivation remedy for the loss is available." Hudson v. Palmer, 468 U.S. 517, 533, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984). "A violation of procedural rights requires only a procedural correction." Casper v. Herman, 1998 WL 114520, at *5 (E.D.Pa. Feb. 10, 1998). Assuming, arguendo, that Respondent violated Petitioner's due process rights because it did not provide Petitioner notice, nor an opportunity to be heard before suspending his FECA benefits, Petitioner already received his post-deprivation remedy because his benefits have been reinstated. On September 10, 2002, Respondent issued a Notice of Decision wherein it decided to reinstate Petitioner's compensation benefits retroactive to April 6, 2001. Respondent is not obligated to compensate Petitioner for the time that he refused to attend the medical examinations. Pursuant to § 8123(d), if a recipient does not comply with procedural medical examinations, "his right to compensation under this subchapter is suspended until the refusal or obstruction stops." 5 U.S.C.A. § 8123(d) (West 1996).
Respondent restored Petitioner's benefits retroactive to April 6, 2001, the date Petitioner indicated he was willing to attend the scheduled medical examinations. Because the Petitioner's FECA benefits were reinstated retroactive to April 6, 2001, and remain in effect to the present date, Petitioner received the post-deprivation remedy that he might have been entitled to receive had Respondent not reinstated his benefits. Thus, there is no genuine issue of material fact as to whether Petitioner's due process rights have been violated because he obtained the relief sought.
Petitioner claims that he is owed FECA benefits from August 5, 1999 to April 6, 2001. However, Petitioner cannot genuinely claim compensation for a time period that he was unexplainably absent from attending his scheduled medical appointments. This Court is of the opinion that Petitioner's unexplainable failure to attend the medical examinations, especially the appointment with a Dr. Spier in El Paso, Texas because of the close proximity to Petitioner's city of residence, indicates Petitioner's volitional choice to miss the appointments. He did not agree to submit to the medical examinations until April 6, 2001. Therefore, he is not entitled to FECA benefits for the period that he refused to submit to examinations, pursuant to 5 U.S.C. § 8123(d).
Moreover, the September 10, 2002 Notice of Decision informed Petitioner that if he wished to submit additional evidence, he could file a new request for reconsideration within one year from the date of the decision, which would give Petitioner until September 10, 2003 to appeal Respondent's findings outlined in the September 10 Notice of Decision. To this date, the Court is not aware of Petitioner's attempts to comply with the requirements for appeal. Alternatively, Petitioner could have appealed to the ECAB for review of the Notice of Decision within ninety days from the date of the decision. Petitioner offers conclusory allegations of a conspiracy to deprive him of his benefits, but this court is not convinced that he did everything within his control to appeal the September 10 Notice of Decision. Therefore, the Court is of the opinion the Petitioner's accusations are without merit.
CONCLUSION
Based on Petitioner's allegations that Respondent denied him the right to notice and an opportunity to be heard before suspending his FECA benefits, the Court finds that Petitioner raised a substantial constitutional claim and this Court retains jurisdiction to review that charge. Accordingly, the Court is of the opinion that Respondent's "Motion to Dismiss" should be denied.
However, because the Petitioner's FECA benefits were reinstated retroactive to April 6, 2001, Petitioner received the post-deprivation remedy that he might have been entitled to receive had Respondent not reinstated his benefits. There is no genuine issue of material fact as to whether Petitioner's due process rights have been violated because he obtained the relief sought. Therefore, the Court is of the opinion that Respondent's "Motion for Summary Judgment" should be granted.
Accordingly, IT IS HEREBY ORDERED Respondent's "Motion to Dismiss" is DENIED. IT IS FURTHER ORDERED that Respondent's "Motion for Summary Judgment" is GRANTED.
IT IS FINALLY ORDERED that all other pending motions, if any, are DENIED AS MOOT.