Anderson v. United States

16 Cl. Ct. 546, 1989 U.S. Claims LEXIS 54, 1989 WL 31908
United States Court of Claims·Decided April 6, 1989·No. No. 750-88C·Published·Cited by 5 cases

Opinion

ORDER

MOODY R. TIDWELL, III, Judge:

This action comes before the court on defendant’s motion to dismiss. At issue is whether the court has jurisdiction to entertain plaintiff’s claims based upon the Federal Employees’ Compensation Act (FECA), 5 U.S.C. §§ 8101 et seq. (1982) and a denial of procedural due process under the Fifth Amendment.

FACTS

Aimee J. Anderson, plaintiff, was employed as a vocational rehabilitation specialist at the Veterans Administration’s (VA) Wadsworth Medical Center in Los Angeles, California. On February 1, 1985, plaintiff filed a claim for benefits under FECA for alleged disabilities proximately caused by a sexual assault perpetrated by her immediate supervisor. In July, 1986, the Office of Workers Compensation Programs (OWCP) Branch of Hearings and Review determined that plaintiff had failed to provide sufficient evidence to show a nexus between her disabilities and the course of her employment, and thus denied her claim. The Employees Compensation Appeals Board (ECAB) affirmed the OWCP decision on June 30, 1988. Disgruntled with the outcome, plaintiff filed a petition for reconsideration with the Board, claiming that she was denied procedural due process of law and that the ECAB had violated its own regulations. Plaintiff’s petition was denied. Plaintiff then filed a complaint in this court, stating that:

[Plaintiff] has been denied her Constitutional rights to Due Process of Law, Equal Protection of the Law, resulting in loss of her property and rights afforded under the FECA and its implementing regulation.

Plaintiff’s Comp. ¶ 3.

DISCUSSION

Defendant moved that plaintiff’s complaint be dismissed on the grounds that the court lacked subject matter jurisdiction over plaintiff’s claim of wrongful denial of benefits by the Department of Labor under FECA. Defendant’s argument is twofold: First, that FECA prohibited judicial review of plaintiff’s claims and did not create a substantive right of recovery for money damages; and second, that the court had no jurisdiction over claims based upon denial of due process and equal protection. Plaintiff admitted the court normally had no jurisdiction over FECA claims, but argued that because her Constitutional rights had been deprived, judicial review should be afforded her. Plaintiff's Comp. 114. Plaintiff contended that this matter was properly before the court pursuant to the Tucker Act, 28 U.S.C. § 1491 (1982), which states, in part:

The United States Claims Court shall have jurisdiction to render judgment upon any claim against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department____

While plaintiff’s complaint may truly be grounded on the denial of her due process rights, the mere assertion of a claim [548]*548against the United States based upon the Constitution or any regulation of an executive department is not sufficient grounds for the court to assert jurisdiction over this matter. United States v. Testan, 424 U.S. 392, 402, 96 S.Ct. 948, 955, 47 L.Ed.2d 114 (1976). Plaintiff must show that her claim is one for money damages and must demonstrate that the source of substantive law she relies on can be fairly interpreted as mandating compensation from the Federal Government for damages sustained. Mitchell v. United States, 463 U.S. 206, 216, 217, 103 S.Ct. 2961, 2967, 2968, 77 L.Ed.2d 580 (1983). Furthermore, any statutory waiver of sovereign immunity, so as to permit suit for money damages and to confer jurisdiction on this court, must be explicit, United States v. King, 395 U.S. 1, 4, 89 S.Ct. 1501, 1502-03, 23 L.Ed.2d 52 (1969), and must be strictly construed by the courts. Brannan v. United States, 7 Cl.Ct. 399, 403 (1985).

The statutory basis for plaintiff’s suit, FECA, provides for the payment of compensation to federal employees who are disabled in the performance of their duties. 5 U.S.C. § 8102 (1982); 20 C.F.R. § 810.1 (1985). This compensation constitutes plaintiff’s exclusive remedy against the United States for her alleged work-related disabilities. Administrative review of FECA awards and disputes is limited to the Secretary of Labor and is

(1) final and conclusive for all purposes and with respect to all questions of law and fact; and
(2) not subject to review by another official of the United States or by a court or mandamus or otherwise.

5 U.S.C. § 8128(b) (1982). This court and its predecessor court, the Court of Claims, has consistently found that 5 U.S.C. § 8128 precludes review of the FECA board decisions. See Nolen v. United States, 124 Ct.Cl. 230, 109 F.Supp. 391 (1953); Collins v. United States, 194 Ct.Cl. 1037 (1971); Landman v. United States, 404 U.S. 885, 92 S.Ct. 222, 30 L.Ed.2d 167 (1971); Chapman v. United States, 204 Ct.Cl. 815 (1974); Crawford v. United States, 3 Cl.Ct. 323, 328 (1983), aff'd 732 F.2d 168 (Fed.Cir.), cert. denied, 469 U.S. 861, 105 S.Ct. 194, 83 L.Ed.2d 127 (1983). The amount and kind of relief available to disabled federal employees is the exclusive province of Congress and the Secretary of Labor, free of judicial examination. Everett v. United States, 169 Ct.Cl. 11, 19, 340 F.2d 352, 356 (1965). This court follows the abundance of precedent and finds that it does not have jurisdiction over plaintiff’s FECA claims.

Plaintiff argued that the court had jurisdiction based upon the due process and equal protection guarantees of the Constitution. Plaintiff cited two cases, Marozsan v. United States, 852 F.2d 1469 (7th Cir.1988) and Rodriguez v. United States, 769 F.2d 1344 (9th Cir.1985), for the proposition that federal courts are not precluded from reviewing FECA claims in instances involving the denial of due process rights. “We do not read the statute [5 U.S.C. § 8128] to take the ‘extraordinary’ step of foreclosing jurisdiction over constitutional claims.” Id. at 1348. Assuming, arguendo, that the court chose to follow such precedence, the court would nevertheless be precluded from entertaining plaintiff’s due process claims.

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Anderson v. United States, 16 Cl. Ct. 546, 1989 U.S. Claims LEXIS 54, 1989 WL 31908 (cc 1989).

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