Renzi v. Perez

          ORDER

          Joseph DiClerico, Jr. United States District Judge.

         Diane 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 jurisdiction.^[1]

         Standard of Review

         A 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 exhibits.”^[2] Id.

         Background^[3]

         Renzi 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.

         On 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 claims.

         On 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.

         The 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.

         Renzi 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, and Damages.

         Discussion

         The 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.

         Under 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.^[4] 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).

         To 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).

         Although 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.^[5] 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.

         A. Due Process

         Renzi 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 ...