['SCOTT v. SOLIS']

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

________________________________
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ANNE L. SCOTT, )
)
Plaintiff, )
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v. ) Civil Action No. 12-2055 (EGS)
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HILDA L. SOLIS et al., )
)
Defendants. )
________________________________ )

MEMORANDUM OPINION

Plaintiff was injured on the job in October 1988 and March 1989 while employed with

the Department of Veterans Affairs. She pursued workers’ compensation and was awarded

partial relief under the Federal Employees Compensation Act (“FECA”), 5 U.S.C. § 8101. In

this action brought pro se, plaintiff appears to challenge a decision issued by the Employees’

Compensation Appeal Board (“ECAB”) on August 21, 2009. See Compl. Attachment. She

alleges, however, that she “was entitled to a scheduled award, but . . .never received

confirmation,” and that she has “been met with hurdles” and “been denied . . . [the] basic avenue

to have my voice heard” through “an oral hearing [requested] for many years.” Compl. at 2.

Defendant moves to dismiss under Rule 12(b)(1) for lack of subject matter jurisdiction,

Defs.’ Mot. to Dismiss, ECF No. 7, and plaintiff has responded. Pl.’s Response to Mot. to

Dismiss, ECF No. 10. Upon consideration of the parties’ submissions, the Court will grant

defendant’s motion and dismiss the case.

The FECA “establishes a comprehensive workers' compensation scheme under which

federal employees . . . receive compensation, regardless of fault, for employment related injuries

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or deaths.” Chung v. Chao, 518 F. Supp. 2d 270, 272 (D.D.C. 2007). Under the FECA, the

decision of the Secretary of Labor in allowing or denying a workers' compensation payment is

“not subject to review by another official of the United States or by a court by mandamus or

otherwise.” 5 U.S.C. § 8128(b)(2). This is “an unambiguous and comprehensive provision

barring any judicial review of the Secretary of Labor's determination of FECA coverage.”

Southwest Marine, Inc. v. Gizoni, 502 U.S. 81, 90 (1991) (internal quotation marks and citation

omitted).

The Court is not foreclosed from reviewing a constitutional claim predicated on the due

process clause. See Gilmore v. U.S. Dep’t of Labor, No. 92-1339 (D.C. Cir. Feb. 10, 1993) (per

curiam) (citing cases); Guerrero-Smith v. Solis, No. 12-0228, --- F. Supp. 2d ---, 2014 WL

242863, at *1 (D.D.C. Jan. 23, 2014) (“Courts have exercised jurisdiction over [FECA] claims

where [the challenged conduct] is not the allowing or denying of a payment but rather the

manner in which [the] claim was decided.”) (citations, internal quotation marks, and alterations

omitted); Gallucci v. Chao, 374 F. Supp. 2d 121, 125 (D.D.C. 2005) (“It is well established that

this court has subject matter jurisdiction to review a decision made under FECA if there has been

a constitutional violation.”) (citing Lepre v. Dep’t. of Labor, 275 F.3d 59, 67 (D.C. Cir. 2001)).

Liberally construing the complaint as the Court must with a pro se party’s filing, the alleged

denial of a hearing implicates the due process clause. The due process clause is triggered when

the government deprives an individual of life, liberty, or property, Kentucky Dep't of Corr. v.

Thompson, 490 U.S. 454, 459-60 (1989) (citation and internal quotation marks omitted), and

“[t]he fundamental requirements of due process are ‘notice and the opportunity to respond.’ ”

Gallucci, 374 F. Supp. 2d at 126 (quoting Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532,

546 (1985)) (other citations omitted). But the process cannot be considered if the requisite

deprivation has not occurred. See Budik v. U.S., 949 F. Supp. 2d 14, 25 (D.D.C. 2013), aff’d No.

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13-5122, 13-5123 (D.C. Cir. Nov. 19, 2013) (“The first inquiry in every [procedural] due process

challenge is whether the plaintiff has been deprived of a protected interest in liberty or

property.”) (citations and internal quotation marks omitted) (alteration in original).

Defendant has shown from the administrative record supplied by both parties that

plaintiff has received meaningful hearings, has obtained a schedule award, and is receiving

monetary benefits. See generally Decl. of Jennifer Valdivieso [Dkt. # 7-1]. According to

defendant’s declarant, who is Chief of the Branch of Regulations, Policy and Procedure for the

Division of Federal Employees’ Compensation in the Department of Labor’s Office of Workers

Compensation Programs, procedures exist for plaintiff to request modification of her “loss of

wage-earning capacity” and “an additional schedule award . . .by submitting medical evidence

demonstrating that she has an increased or new impairment . . . .” Valdiviesco Decl. ¶ 16.

Hence, the due process clause is not triggered, and the FECA deprives the Court of jurisdiction

over the Secretary’s administrative decision. A separate order of dismissal accompanies this

Memorandum Opinion.

SIGNED: EMMET G. SULLIVAN
UNITED STATES DISTRICT JUDGE
DATE: March 14, 2014

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