UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Diane Renzi
v. Civil No. 16-cv-039-JD Opinion No. 2016 DNH 103 Thomas E. Perez, Secretary United States Department of Labor
O R D E R
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
1 Although the Secretary cites both Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) in the motion to dismiss, the memorandum in support of the motion proceeds under only Rule 12(b)(1). Therefore, the court construes the motion as seeking to dismiss the claims due to a lack of subject matter jurisdiction under Rule 12(b)(1). 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.
Background3
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
2 Renzi asserts that the Secretary is moving to dismiss under Rule 12(b)(6), although she also acknowledges Rule 12(b)(1). Based on the limited scope of review under Rule 12(b)(6), Renzi argues that the motion must be converted to one for summary judgment. Fed. R. Civ. P. 12(d). Because the motion seeks dismissal due to a lack of subject matter jurisdiction under Rule 12(b)(1), not failure to state a claim under 12(b)(6), the additional evidence submitted by the parties may be considered without converting the motion to one for summary judgment.
3 Consonant with the standard of review, the background information is taken from Renzi’s complaint and additional evidence submitted by the parties.
2 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
3 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 USC § 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
4 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
4 In light of the plain meaning of § 8128, Renzi’s theory that § 8128(b) does not apply to her claims is not persuasive.
5 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 due process violation and instead merely
attacks the OWCP’s decision to deny her claim for benefits.
“The Due Process Clause of the Fifth Amendment guarantees
that ‘no person shall . . . be deprived of life, liberty, or
property, without due process of law.’” United States v. James
Even if the First Circuit were to recognize the additional 5
exception, Renzi did not show that the OWCP violated a clear FECA mandate.
6 Danial Good Real Prop., 510 U.S. 43, 48 (1993). Therefore,
“individuals must receive notice and an opportunity to be heard
before the Government deprives them of property.” Id. In
addition, substantive due process protects against a
governmental abuse of power that shocks the conscience. County
of Sacramento v. Lewis, 523 U.S. 833, 847 (1998).
1. Procedural Due Process
Renzi argues in her objection to the motion to dismiss that
the OWCP violated her right to procedural due process by failing
to evaluate her medical opinion evidence “in a meaningful
manner,” by allowing two of the claims examiners to participate
in the claims proceedings and decide her requests for
reconsideration, and by taking too long to process her claim.
She also argues that she did not receive adequate notice because
the FECA regulatory standards for medical evidence are vague and
inconsistent. The Secretary contends that no procedural due
process violation occurred because Renzi had notice and an
opportunity to be heard before her claim for FECA benefits was
denied.
a. Notice
Renzi argues that she did not have adequate notice of the
requirements for being awarded FECA benefits because the FECA
7 regulations impose vague and inconsistent standards. She did
not allege any insufficiency of notice in her complaint,
however. Even if she had properly raised an issue as to notice,
her theory lacks merit.
In support, she argues that the standard for supporting a
new claim for benefits, 20 C.F.R. § 10.115, is different from
the standard for evidence to support a continuation of benefits,
20 C.F.R. § 10.501(a)(3), and that the difference renders the
statutory scheme vague and inconsistent. Section 10.115
requires medical evidence to support a new claim that is
“reliable, probative and substantial.” Because Renzi was not
seeking a continuation of previously awarded benefits,
§ 10.501(a)(3) did not apply to her claim. Renzi, who is
represented by counsel, does not persuasively show that the
regulations are vague or inconsistent or caused any confusion in
the presentation of her claim for benefits.6
b. Opportunity to Be Heard
“The fundamental requirement of due process is the
opportunity to be heard at a meaningful time and in a meaningful
manner.” Mathews v. Eldridge, 424 U.S. 319, 333 (1976)
6 Even if she had been confused about the appropriate standard, despite being represented by counsel, the OWCP repeatedly explained the required standard.
8 (internal quotation marks omitted). There is no dispute that
Renzi was heard on her claim for FECA benefits and received a
decision on the claim less than five months after the claim was
filed. The OWPC also considered and ruled on Renzi’s multiple
requests for reconsideration. Renzi did not appeal her claim to
the Employees’ Compensation Appeals Board. Those circumstances
do not show any lack of opportunity to be heard or unwarranted
delay.
Renzi argues, however, that the OWCP’s review of her claim
was not meaningful because the standard for medical evidence was
too onerous and because two claims examiners who made
reconsideration decisions had previously been involved in her
claim proceedings. Renzi’s attack on the standard does not
raise a due process issue and instead simply challenges the
OWCP’s decision on the merits.
“[D]ue process demands impartiality on the part of those
who function in judicial or quasi-judicial capacities.”
Schweiker v. McClure, 456 U.S. 188, 195 (1982). Administrative
agencies must also operate with impartial decision makers.
Withrow v. Larkin, 421 U.S. 35, 46 (1975). Bias may be presumed
when the decision maker has a pecuniary interest in the outcome
and when the decision maker “has been the target of personal
abuse or criticism from the party before him.” Id. at 47. On
9 the other hand, combined functions in an administrative agency
for investigation and adjudication do not support a presumption
of bias. Id. at 56.
With respect to the impartiality of the claims examiners,
Renzi argues that Claims Examiners Kim and Janowski were biased
because they were involved in her claims adjudication process
and then made reconsideration decisions. Claims Examiner Kim
issued OWCP reconsideration decisions dated June 14, 2014, and
May 13, 2015, on different but related claims that were later
combined. Claims Examiner Janowski issued the initial OWCP
notice of receipt of Renzi’s second claim on December 30, 2013,
and the last decision on reconsideration issued on September 28,
2015. Renzi does not explain why those actions demonstrate a
lack of impartiality, and none may be presumed. Therefore, the
cited circumstances do not show any lack of impartiality.
Renzi has not stated a claim that the OWCP violated her
right to procedural due process.
2. Substantive Due Process
Substantive due process protects against certain
deprivations by the government regardless of whether procedural
due process was sufficient. Gonzalez-Fuentes v. Molina, 607
F.3d 864, 880 (1st Cir. 2010). To state a claim for protection
under substantive due process, a plaintiff must allege facts
10 that show she “suffered the deprivation of an established life,
liberty, or property interest, and that such deprivation
occurred through governmental action that shocks the
conscience.” Najas Realty, LLC v. Seekonk Water District, ---
F.3d ---, 2016 WL 1732730, at *7 (1st Cir. May 2, 2016). To
meet the conscience shocking standard, the challenged action
must demonstrate “an extreme lack of proportionality,” that is,
a “violation[] of personal rights so severe, so disproportionate
to the need presented, and so inspired by malice or sadism
rather than a merely careless or unwise excess of zeal that it
amounted to a brutal and inhumane abuse of power literally
shocking to the conscience.” Harron v. Town of Franklin, 660
F.3d 531, 536 (1st Cir. 2011) (internal quotation marks
omitted).
Renzi argues that the OWCP violated her right to
substantive due process by imposing a standard higher than a
preponderance of the evidence for medical evidence. As is
discussed above, the applicable FECA regulation, § 10.115,
“reliable, probative and substantial.” Renzi has not shown that
the OWCP failed to apply the governing standard, much less that
it acted in a way that would shock the conscience.
11 Therefore, Renzi has not stated a claim that the Secretary
violated her substantive due process rights.
B. Equal Protection
To state an equal protection violation, a plaintiff must
allege facts that show the government subjected her to disparate
treatment “compared with others similarly situated in all
relevant respects.” Bruns v. Mayhew, 750 F.3d 61, 65 (1st Cir.
2014) (internal quotation marks omitted). The plaintiff “must
show that the parties with whom [she] seeks to be compared have
engaged in the same activity vis-à-vis the government entity
without such distinguishing or mitigating circumstances as would
render the comparison inutile.” Id. at 66. When, as here, the
plaintiff is a “class of one,” rather than part of a protected
group, she would have to show that the defendant “intentionally
treated [her] differently from others similarly situated and
there was no rational basis for this disparate treatment.”
Najas Realty, 2016 WL 1732730, at *6.
Renzi alleges that she “has been intentionally treated
differently than similarly situated federal employees who have
been awarded FECA benefits based on less proof and evidence than
the Secretary has required of her.” Complaint, ¶ 82. In
support, Renzi alleges only that “[t]housands of FECA claimants
have been awarded benefits” based on medical opinions and other
12 medical evidence that did not meet the standards required of
her. Id., ¶¶ 83-85. She provides no specific factual
allegations about what proof may have been provided or required
in other cases.
A conclusory recitation of the legal elements of an equal
protection claim is insufficient to state a claim. See, e.g.,
Vazquez-Velasquez v. P.R. Highway & Trans. Auth., 2016 WL
183653, at *10 (D.P.R. Jan. 14, 2016); Soto-Caro v. Velez-
Lorenzo, 2015 WL 9412530, at *4 (D.P.R. Dec. 22, 2015).
Instead, in the context of a FECA claim, a plaintiff must allege
facts to show that she was similarly situated to other
applicants for FECA benefits and was treated less favorably.
See Crane v. United States, 2014 WL 1328921, at 5 (M.D. Fla.
Apr. 2, 2014) (allegations that another FECA applicant was
awarded benefits for chiropractic care insufficient). Renzi has
not alleged sufficient facts to support her equal protection
claim.
Further, in response to the Secretary’s motion to dismiss a
FECA claim under Rule 12(b)(1), Renzi bears the burden to show,
with sufficient evidentiary support, that the court has
jurisdiction to consider her claim. See, e.g., Escalante v.
United States, 2014 WL 695091, at *1 (N.D. Cal. Feb. 21, 2014);
Gibbs v. United States, 865 F. Supp. 2d 1127, 1135 (M.D. Fl.
13 2012); Bolte v. Chao, 2007 WL 1464562, at *3 (N.D. Ohio May 17,
2007); Kerrigan v. Chao, 2004 WL 2397396, at *1 (E.D. Pa. Oct.
26, 2004). Renzi provides no evidence of disparate treatment in
opposition to the Secretary’s motion to dismiss under Rule
12(b)(1).7 Instead, in her surreply, Renzi argues that the
evidence of disparate treatment is within the Secretary’s
control and that she will need discovery to obtain evidence to
support her equal protection claim.8
In the absence of some factual support, Renzi’s equal
protection claim is meritless.
C. Damages
The Secretary also challenges Renzi’s claim for damages,
because damages would be available, if at all, only through the
Federal Tort Claims Act (“FTCA”). The Secretary contends that
Renzi cannot bring a claim under the FTCA in this court because
she has not made an administrative claim as is required by
For example, she does not cite cases from the Employees 7
Compensation Appeals Board to show that she has been treated differently from other applicants who were similarly situated to her.
Renzi does not elaborate as to what discovery she 8
anticipates. Because her allegation is that thousands of FECA claimants were granted benefits based on less evidence than she provided, it would appear that Renzi intends to request discovery about the medical proof provided by thousands of other claimants, along with other information about the claimants to show that she was similarly situated.
14 28 U.S.C. § 2675(a). Renzi acknowledges that she would have to
pursue a claim under the FTCA to be entitled to damages and does
not assert that claim here.
Renzi has not alleged a claim under the FTCA, and she is
not entitled to damages in this action.
D. Summary
Renzi’s claims that the OWCP violated clear FECA mandates
do not fall within the narrow exception to the bar on judicial
review of FECA decisions. She has not stated claims of due
process or equal protection violations. In addition, her claim
for damages is dismissed.
Conclusion
For the foregoing reasons, the defendant’s motion to
dismiss (document no. 5) is granted due to a lack of
jurisdiction.
The clerk of court shall enter judgment accordingly and
close the case.
SO ORDERED.
__________________________ Joseph DiClerico, Jr. United States District Judge
June 22, 2016 cc: James G. Noucas, Jr., Esq. T. David Plourde, Esq.