United States Court of Appeals
Fifth Circuit
F I L E D
June 22, 2004
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT Charles R. Fulbruge III
Clerk
No. 03-51204
Summary Calendar
DANIEL A. RAMIREZ,
Plaintiff-Appellant,
versus
DIRECTOR, OFFICE OF WORKERS’ COMPENSATION PROGRAMS,
U.S. DEPARTMENT OF LABOR,
Defendant-Appellee.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. EP-02-CV-188-DB
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Before BARKSDALE, EMILIO M. GARZA, and DENNIS, Circuit Judges.
PER CURIAM:*
Daniel A. Ramirez, an employee of the United States Army
between 1988 and 1990, appeals the district court’s order granting
the motion for summary judgment filed by the Director of the Office
of Workers’ Compensation Programs (“OWCP”), in Ramirez’s “petition
for review” challenging the administrative decision to suspend his
workers’ compensation benefits under the Federal Employees
Compensation Act (“FECA”), 8 U.S.C. § 8102(a).
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
No. 03-51204
-2-
The OWCP Director has argued that the federal courts lacked
subject-matter jurisdiction under 8 U.S.C. § 8128(b), which states
that “[t]he action of the Secretary [of the Department of Labor] or
his designee in allowing or denying payment under this subchapter
is-- . . . (B) not subject to review by another official of the
United States or by a court by mandamus or otherwise.” Although 8
U.S.C. § 8128(b) bars Ramirez’s action insofar as he challenges the
administrative decision to deny him FECA benefits, the statute does
not prohibit review of “substantial” of “cognizable” constitutional
claims. See Benton v. United States, 960 F.2d 19, 22 (5th Cir.
1992); Duncan v. Department of Labor, 313 F.3d 445, 446 (8th Cir.
2002); Czerkies v. United States Dep’t of Labor, 73 F.3d 1435, 1441
(7th Cir. 1996).
Ramirez had been paid FECA benefits since the early 1990s. In
July 1999, Ramirez was directed by the OWCP to appear for two
second-opinion medical appointments. He failed to do so. After
Ramirez failed to provide written reasons for such failure, the
OWCP suspended his benefits.
Even if it is assumed arguendo that Ramirez’s “petition for
review” was sufficient to establish a “cognizable” and
“substantial” due-process claim, the documentary evidence submitted
by the parties in connection with the OWCP Director’s summary-
judgment motion is sufficient to show that no genuine issue of
material fact remains as to such claim. See FED. R. CIV. P. 56(c);
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). It is true
that the record shows that, in January 2001, during Ramirez’s
administrative appeals, the Employees’ Compensation Appeals Board
No. 03-51204
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castigated the OWCP for failing to reconstruct and properly
assemble Ramirez’s case record. The Appeals Board’s decision
remanding the case to the OWCP for reconstruction of the record was
intended to protect Ramirez’s administrative appeal rights and
effectively corrected any due-process violation that might have
occurred. The record otherwise shows that Ramirez was repeatedly
warned of the consequences of failing to appear for medical
appointments, that he was repeatedly informed of the procedures for
challenging the OWCP’s position that he was required to appear at
those appointments, and that his administrative challenges to the
suspension of FECA benefits were repeatedly reviewed. Ramirez has
not established a due-process violation. See FDIC v. Bank of
Coushatta, 930 F.2d 1122, 1130 (5th Cir. 1992).
The judgment of the district court is AFFIRMED.