United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT December 28, 2005
Charles R. Fulbruge III
Clerk
No. 05-10547
Summary Calendar
STANLEY M. SCHWARTZ,
Plaintiff - Appellant,
versus
UNITED STATES DEPARTMENT OF LABOR,
Defendant - Appellee.
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Appeal from the United States District Court
for the Northern District of Texas
(04-CV-644)
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Before JOLLY, DAVIS and OWEN, Circuit Judges.
W. EUGENE DAVIS, Circuit Judge:1
Plaintiff Stanley Schwartz appeals the dismissal of his suit
under the Federal Tort Claims Act. Schwartz, a Federal
Administrative Law Judge, sued the United States, the U.S.
Department of Labor and Occupational Safety and Health Review
Commission alleging that he suffered intentional infliction of
emotional distress arising out of conditions relating to his
employment. The district court dismissed the case without
prejudice to allow the Secretary of Labor to determine if
1
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that this opinion should not be published and is not precedent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.
Schwartz’s claims were covered by the provisions of the Federal
Employees Compensation Act (“FECA”). We affirmed that decision.
The Department of Labor’s Office of Workers’ Compensation
Programs (“OWCP”) determined that Schwartz’s condition, if
compensable, was covered under FECA but that Schwartz failed to
prove his case. Other than requesting reconsideration by the
OWCP, Schwartz did not pursue further post-deprivation remedies
available to him under FECA. Schwartz then refiled his petition
in the district court. In response to the defendant’s Motion to
Dismiss, the district court dismissed Schwartz’s claim. Schwartz
again appeals.
The district court correctly concluded that it lacked
subject matter jurisdiction to review the Secretary of Labor’s
FECA benefits determination. Such review is expressly precluded
by 5 U.S.C. § 8128(b). Benton v. United States, 960 F.2d 19 (5th
Cir. 1992).
A limited exception to FECA preclusion has been recognized
for substantial cognizable constitutional challenges to the
proceedings. The substance of Schwartz’s complaint is that the
OWCP revised its initial decision in his case as a result of
improper contact between the Department of Labor’s Solicitor’s
Office and the OWCP. However, even if Schwartz could establish a
due process violation with regard to his OWCP hearing, that does
not constitute a violation of the procedural requirements of the
2
due process clause if a meaningful post-deprivation remedy for
the loss is available. Hudson v. Palmer, 468 U.S. 517, 533
(1984). Schwartz made no allegations to the district court or to
us that FECA’s post-deprivation remedies are constitutionally
inadequate. In addition, the district court properly found that
the post-deprivation remedies available to FECA claimants are
sufficient to assure that claimants receive sufficient due
process, even in situations where there were violations of OWCP
procedures. See Raditch v. United States, 929 F.2d 478 (9th Cir.
1991); Lepre v. Dep’t of Labor, 275 F.3d 59 (D.C. Cir. 2001);
Stuto v. Fleishman, 164 F.3d 820 (2d Cir. 1999).
For the foregoing reasons, the district court’s dismissal of
Schwartz’s claims for lack of jurisdiction is AFFIRMED.
3