United States District Court, D. New Hampshire
DiClerico, Jr. United States District Judge.
Renzi has brought suit against Thomas E. Perez, Secretary of
the United States Department of Labor, challenging the denial
of her federal workers’ compensation claim under the
Federal Employees’ Compensation Act
(“FECA”). She alleges that in denying her claim
the Secretary violated FECA mandates and her constitutional
rights to due process and equal protection. The Secretary
moves to dismiss for lack of subject matter
defendant may challenge the jurisdictional basis of the suit
by moving to dismiss under Rule 12(b)(1). In deciding a
motion under Rule 12(b)(1), the court “credit[s] the
plaintiff’s well-pled factual allegations and draws all
reasonable inferences in the plaintiff’s favor.”
Merlonghi v. United States, 620 F.3d 50, 54 (1st
Cir. 2010). “The district court may also consider
whatever evidence has been submitted, such as depositions and
worked as a Passport Specialist for the Department of State
in Portsmouth, New Hampshire. On October 6, 2011, Renzi fell
while walking up the stairs at work, injuring her hands, her
right shoulder, and her knees. She filed a claim for
workers’ compensation benefits, and the Office of
Workers’ Compensation Programs (“OWCP”)
accepted her claim on January 26, 2012. Renzi received
workers’ compensation benefits through May of 2013 and
then again in October and November of 2013 after knee
surgery. The OWCP also approved a schedule award to Renzi
because of permanent impairment to her right arm and left leg
caused by the fall.
September 27, 2013, Renzi filed a new claim with the OWCP due
to osteoarthritis in her left thumb that she asserted made
her unable to work. She alleged that the osteoarthritis was
caused by repetitive hand activities at work and was
aggravated and accelerated by the fall. Renzi asked that her
two claims be merged, and the OWCP agreed to merge the
February 6, 2014, the OWCP denied Renzi’s claim because
she had not shown a causal relationship between the
osteoarthritis in her thumb and her work. The OWCP explained
that the medical opinions Renzi provided, which stated that
the fall and work activities “more likely than
not” contributed to her osteoarthritis condition, were
equivocal as to causation. Renzi then sought reconsideration
and submitted additional medical opinions.
OWCP again found the medical opinion evidence lacked an
unequivocal opinion that Renzi’s degenerative
osteoarthritis was directly related to her work duties. The
OWCP stated that the medical opinion must provide “a
complete and accurate history of [her] condition and the
potential contributing factors” and a “firm and
unequivocal opinion” that work caused her
osteoarthritis condition. The OWCP issued its final decision
denying Renzi’s application on September 28, 2015.
Renzi did not appeal that decision.
filed this action on February 6, 2016. She asserts subject
matter jurisdiction under 28 U.S.C. § 1331 and 5 U.S.C.
§ 8101, et seq. She alleges that the Secretary, through
the OWCP, violated her “constitutional rights and
statutory mandates of the Federal Employees Compensation Act
(FECA), 5 U.S.C. § 8101 et seq.” She brings seven
counts titled: Burden of Proof, Burden of Proof on Causation,
Probative Value, Timeliness, Process Due, Equal Protection,
Secretary moves to dismiss Renzi’s claims on the ground
that the court lacks jurisdiction to review the decision of
the OWCP denying Renzi’s workers’ compensation
claim under FECA. The Secretary also challenges Renzi’s
claim for damages. In response, Renzi argues that
jurisdiction exists to consider her claims that the OWCP
violated her rights to procedural and substantive due process
and equal protection and that the OWCP violated FECA mandates
in denying her claim. The Secretary filed a reply, and Renzi
filed a surreply.
FECA, § 8101, et seq., a decision by the OWCP to deny
workers’ compensation benefits is “final and
conclusive for all purposes and with respect to all questions
of law and fact; and  not subject to review by another
official of the United States or by a court by mandamus or
otherwise.” § 8128(b). As such, FECA unambiguously
and comprehensively bars “any judicial review of the
Secretary’s determination of FECA coverage.”
Southwest Marine, Inc. v. Gizoni, 502 U.S. 81, 90
(1991). Despite the statutory preclusion to review of FECA
coverage decisions, a court has jurisdiction to hear
constitutional challenges to the administration of
FECA. Paluca v. Sec’y of Labor,
813 F.2d 524, 526 (1st Cir. 1987); accord Cooper v.
Chao, 71 F. App’x 76, 77 (1st Cir. 2003).
provide jurisdiction within the exception, a constitutional
claim must not be “so attenuated and unsubstantial as
to be absolutely devoid of merit.” Palucca,
813 F.2d at 526. That is, a cognizable constitutional claim
must be “specific and substantive.”
Cooper, 71 F. App’x at 77. Therefore, a
conclusory allegation of a constitutional challenge is not
enough to avoid preclusion under § 8128(b). Stone v.
Chao, 284 F.Supp.2d 241, 246 (D. Mass. 2003).
a few courts have found an exception to the bar on judicial
review for claims that the OWCP violated a clear FECA
mandate, the First Circuit recognizes only the exception for
constitutional challenges. Cooper, 71 F. App’x at
77; Palucca, 813 F.2d at 528; Taylor v. United
States, 2011 WL 2200825, at *3 (D. Mass. June 6, 2011).
Therefore, the court lacks jurisdiction to consider
Renzi’s claims in Counts I, II, IV, and V that the OWCP
violated a clear FECA mandate by requiring a standard of
proof higher than a preponderance of the evidence and by
taking too long to reach a decision.
alleges in her complaint that the OWCP violated her right to
due process, but she does not distinguish between procedural
and substantive due process. In her objection to the
Secretary’s motion to dismiss, however, Renzi argues
that the OWCP violated her rights to both substantive due
process and procedural due process. The Secretary contends
that Renzi has not stated a colorable ...