Tidwell v. U.S. Department of Labor Office of Workers' Compensation Program et al

Filing 42

Order by Magistrate Judge Donna M. Ryu granting 25 Motion to Dismiss; granting 25 Motion to Dismiss for Lack of Jurisdiction.(dmrlc2, COURT STAFF) (Filed on 9/28/2012)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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For the Northern District of California

United States District Court

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ARTHUR R. TIDWELL,

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No. C 11-06393 DMR

Plaintiff(s),

ORDER GRANTING DEFENDANTS'
MOTION TO DISMISS

v.
U.S. DEPARTMENT OF LABOR OFFICE
OF WORKERS' COMPENSATION
PROGRAM,
Defendant(s).
___________________________________/

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Plaintiff Arthur Tidwell, proceeding pro se, filed this action against Defendants Department

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of the Navy; Department of Labor; and Alexis Lara, whom Plaintiff sues in her official capacity as a

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Reconsideration Examiner in the Department of Labor's Office of Workers' Compensation Program

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("OWCP"), to contest the denial of a benefit claim under the Federal Employees' Compensation Act

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("FECA"), 5 U.S.C. § 8101 et seq. Defendants move to dismiss the suit on several grounds,

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including that the Court lacks subject matter jurisdiction over Plaintiff's claims. The court

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conducted a hearing on September 27, 2012. For the following reasons, the court grants

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Defendants' motion and dismisses this case.

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I. Background and Procedural History
Plaintiff previously worked as an asphalt worker for the Department of the Navy in Oakland,
California. (Compl. ¶ 18.) On or around April 12, 1990, he sustained injuries to his neck and left

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shoulder and arm during the course of his employment. (Compl. ¶ 18.) He subsequently filed a

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workers' compensation claim pursuant to FECA with the Department of Labor's OWCP. (Compl. ¶

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18; Rios Decl. Attach A, July 6, 2012.) The OWCP accepted his claim for a sprained neck,

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intervertebral disc disorder with myelopathy, cervical region, and intervertebral disc disorder with

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myelopathy, thoracic region on August 4, 2010, (Rios Decl. Attach B), and he began receiving

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disability compensation, (see Rios Decl. Attach. C).

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On February 6, 1992, the OWCP awarded Plaintiff a schedule award based upon a 4%

later, it awarded him an additional schedule award for an additional 25% permanent impairment to

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the left upper extremity, for a total 29% impairment. (Rios Decl. Attach. G.) On May 16, 1995, it

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For the Northern District of California

permanent impairment for his left and right upper extremities. (Rios Decl. Attach F.) One week

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United States District Court

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awarded him a third schedule award based upon an additional 6% impairment to his right upper

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extremity. (Rios Decl. Attach. I.) On June 24, 1998, it awarded him a fourth schedule award based

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upon a 16% additional impairment of his right upper extremity. (Rios Decl. Attach. J.) He received

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a fifth schedule award on June 12, 2000 for an additional 4% impairment of the right upper

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extremity, for a total of 30%, and for an additional 3% impairment of the left upper extremity, for a

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total of 32%. (Rios Decl. Attach. K.)

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On April 14, 2010, Plaintiff filed a claim for a sixth additional schedule award, (Rios Decl.

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Attach. L), which the OWCP denied on December 1, 2010 because "the evidence is not sufficient to

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establish that [he] sustained additional permanent impairment." (Rios Decl. Attach N; accord

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Compl. ¶ 19; see also Rios Decl. Attach M (medical examination of Plaintiff by Alan Kimelman,

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M.D.).) Plaintiff requested reconsideration of the decision on February 1, 2011, (Rios Decl. Attach.

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O), which the OWCP denied on February 24, 2012 because Plaintiff did "not provide[] sufficient

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evidence to warrant merit review." (Rios Decl. Attach. P at 3.)

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Plaintiff filed this action on December 16, 2011 to contest the denial of his request for

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reconsideration and obtain redress for the consequent "injuries, damages, and inconveniences" that

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he suffered. (See Compl. ¶¶ 23-27.) He states the following causes of action against Defendants:

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(1) breach of fiduciary duty, (2) negligent misrepresentation, (3) violation of 42 U.S.C. § 1983, (4)

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violation of the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq., (5) violation of

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Michigan's Persons with Disabilities Civil Rights Act, Mich. Comp. Laws § 37.1101 et seq., (6)

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violation of the Rehabilitation Act, 29 U.S.C. § 701, (7) waiting time penalties pursuant to

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California Labor Code §§ 201-203, (8) unfair business practices under California Business and

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Professions Code § 17200 et seq., (9) negligent and intentional infliction of emotional distress, and

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(10) injunctive relief. (Compl. ¶¶ 28-72.)

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Defendants now move to dismiss for lack of subject matter jurisdiction or, in the alternative,

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for failure to state a claim upon which relief can be granted. The parties have consented to this

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court’s jurisdiction pursuant to 28 U.S.C. § 636(c), [Docket Nos. 5, 20], and the court may enter

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judgment in the case. See 28 U.S.C. § 636(c)(1); Fed. R. Civ. P. 72(b); N.D. Cal. Civ. L.R. 72-1.

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For the Northern District of California

United States District Court

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II. Legal Standard
A court will dismiss a party’s claim for lack of subject-matter jurisdiction “only when the

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claim is so insubstantial, implausible, foreclosed by prior decisions of th[e Supreme] Court, or

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otherwise completely devoid of merit as not to involve a federal controversy.” Steel Co. v. Citizens

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for a Better Env't, 523 U.S. 83, 89 (1998) (citation and quotation marks omitted); see Fed. R. Civ. P.

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12(b)(1). When reviewing a 12(b)(1) motion, the court sculpts its approach according to whether the

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motion is “facial or factual.” White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000). A facial challenge

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asserts that “the allegations contained in a complaint are insufficient on their face to invoke federal

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jurisdiction.” Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). A factual

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challenge, such as the motion at bar, asserts that subject-matter jurisdiction does not exist,

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independent of what is stated in the complaint. White, 227 F.3d at 1242. In contrast with a facial

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challenge, a factual challenge permits the court to look beyond the complaint, without “presum[ing]

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the truthfulness of the plaintiff's allegations.” Id. Even the presence of disputed material facts “will

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not preclude the trial court from evaluating for itself the merits of jurisdictional claims.” Roberts v.

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Corrothers, 812 F.2d 1173, 1177 (9th Cir. 1987). To successfully rebut a factual challenge in a

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motion to dismiss, the non-moving party “‘must furnish affidavits or other evidence necessary to

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satisfy its burden of establishing subject matter jurisdiction.’” White v. Astrue, No. 10-2124 CRB,

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2011 WL 900289, at *3 (N.D. Cal. Mar. 15, 2011) (quoting Savage v. Glendale Union High Sch.,

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343 F.3d 1036, 1040 n.2 (9th Cir. 2003)).

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III. Analysis
FECA is a comprehensive and exclusive workers' compensation scheme for federal

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employees administered by the Secretary of Labor. See 5 U.S.C. § 8145. Under the program,

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"federal employees are compensated for injuries sustained during the performance of their duties,"

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and the remedies provided "are exclusive of all other remedies against the United States for job-

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related injury." Figueroa v. United States, 7 F.3d 1405, 1407 (9th Cir. 1993) (citing 5 U.S.C.

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§ 8116(c)). Section 8116(c), FECA's exclusivity provision, "prohibits actions against the United

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States by an employee . . . to recover damages from the United States . . . because of the

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[employee's] injury or death." Lockheed Aircraft Corp. v. United States, 460 U.S. 190, 193 (1983)
(brackets and second ellipses in original) (quotation marks omitted). "In enacting this provision,

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For the Northern District of California

United States District Court

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Congress adopted the principal compromise . . . commonly found in workers' compensation

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legislation: employees are guaranteed the right to receive immediate, fixed benefits, regardless of

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fault and without need for litigation, but in return they lose the right to sue the Government." Id. at

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194 (citations omitted). Similarly, 5 U.S.C. § 8128(b) provides that "[t]he action of the Secretary [of

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Labor] or his designee in allowing or denying a payment under [FECA] is – (1) final and conclusive

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for all purposes and with respect to all questions of law and fact; and (2) not subject to review by . . .

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a court by mandamus or otherwise." § 8128(b); accord Staacke v. U.S. Sec'y of Labor, 841 F.2d

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278, 281 (9th Cir. 1988); see Markham v. United States, 434 F.3d 1185, 1187 (9th Cir. 2006)

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(holding that § 8128(b) "provides that the courts do not have jurisdiction to review FECA claims

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challenging the merits of benefit determinations").1

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The court does not have subject matter jurisdiction to entertain Plaintiff's complaint. At the

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hearing, Plaintiff confirmed that the sole basis for his suit is to challenge adverse decisions made by

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the OWCP regarding his worker’s compensation claims. Thus, although he characterizes his suit as

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arising out of federal and state statutory causes of action and common law torts, they all ultimately

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constitute challenges to his unfavorable FECA determination or attempts to recover damages from

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The courts have recognized two narrow exceptions to FECA's prohibition of judicial review:
"to consider constitutional challenges or claims for violation of a clear statutory mandate or prohibition."
Markham, 434 F.3d at1187 (citations omitted); accord Staacke, 841 F.2d at 281. Neither of these carve
outs apply in the present case.

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the government for his work-related injuries through non-FECA avenues. (See, e.g., Compl. ¶¶ 28-

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30 (alleging breach of fiduciary duty because Defendants "fail[ed] to maintain sufficient records

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needed to make the right decision to approve Plaintiff [sic] schedule award and related benefit

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compensation"), 31-34 (alleging that Defendants' negligent misrepresentations "caused Plaintiff to

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be denied his schedule award"), 35-38 (alleging that "denial of Plaintiff's schedule award and related

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benefit compensation" amounted to deprivation of his federal rights and property interests), 39-45

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(alleging that Defendants' "denial of Plaintiff [sic] schedule award and related benefit compensation"

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violated his rights under Americans with Disabilities Act), 46-50 (alleging that "Defendants'

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decision to deny [Plaintiff's] schedule award and related benefit compensation" violated Michigan's
Persons with Disabilities Civil Rights Act), 51-56 (alleging violation of Rehabilitation Act due to

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Plaintiff's being "denied and excluded from the benefits of [FECA]"), 57-60 (alleging that

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Defendants' failure to approve Plaintiff's "schedule award and all accrued benefit compensation and

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wages" violated California Labor Code § 202), 61-64 (alleging that Defendants engaged in unfair

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business practices under California law when they refused to approve his FECA application), 65-68

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(alleging that Defendants negligently and intentionally inflicted Plaintiff with emotional distress

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when he suffered workplace injury), 69-72 (seeking injunctive relief from alleged harms suffered "as

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a result of denial of [Plaintiff's] schedule award and related benefit compensation").) The court does

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not have subject matter jurisdiction to hear such claims, §§ 8116(c), 8128(b), and therefore must

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dismiss them with prejudice.

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IV. Conclusion

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Because the Court has no subject matter jurisdiction over Plaintiff's claims, the court
GRANTS Defendants' motion to dismiss and DISMISSES this case.

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Dated: September 28, 2012

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NO

DONNA M. RYU nna M. Ryu
United States e Do
Judg Magistrate Judge

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IT IS SO ORDERED.

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