GUERRERO-SMITH v. SOLIS

Filing 21

MEMORANDUM AND OPINION granting in part and finding moot in part 11 Motion to Dismiss. Signed by Judge Barbara Jacobs Rothstein on 1/23/14. (lcbjr1)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

LENORA GUERRERO-SMITH,
Plaintiff,
Civil Action No. 12-0228 (BJR)
v.
HILDA L. SOLIS,
Secretary, U.S. Department of Labor,

MEMORANDUM OPINION

Defendant.

MEMORANDUM OPINION GRANTING IN PART AND FINDING MOOT IN PART
DEFENDANT’S MOTION TO DISMISS [11]
I. INTRODUCTION
Before the Court is Defendant Secretary of Labor’s Motion to Dismiss [11]. Upon
consideration of the parties’ arguments, the relevant case law, and the entire record, the Court
grants in part and finds moot in part Defendant’s Motion to Dismiss.
II. FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff Lenora Guerrero-Smith originally filed her petition for a writ of mandamus on
February 9, 2012. Plaintiff sought to compel Defendant “to perform mandatory duties owed to
Plaintiff arising under the Federal Employees Compensation Act,” (“FECA”), 5 U.S.C. § 8101,
et seq. Plaintiff sought to compel Defendant to act on two “open and accepted” Office of
Workers’ Compensation Program (“OWCP”) claims. Further, Plaintiff sought an “accounting of
the OWCP’s benefit payments to Plaintiff, such that Plaintiff may know the data that has been
used to calculate her payments to determine correctness,” and injunctive relief to compel
Defendant to “[p]rocess any future OWCP payment paperwork in a timely fashion.”

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On August 12, 2013, the parties filed a joint status report. In said report, Plaintiff
indicated that Defendant had awarded Plaintiff payment under FECA as related to her workers’
compensation claims. As such, the only unresolved issues before the Court are Plaintiff’s claim
for injunctive relief as well as Plaintiff’s claim to attorney’s fees pursuant to the Equal Access to
Justice Act (“EAJA”), 28 U.S.C. § 2412(d)(1)(A).
III. Defendant’s Motion to Dismiss [11]
A. Plaintiff’s Claims Regarding Workers’ Compensation Benefits are Moot
As noted above and as acknowledged by Plaintiff in the joint status report, all claims by
Plaintiff as to unpaid workers’ compensation benefits have been resolved in her favor. As such,
Plaintiff’s claims against Defendant with respect to these benefits are moot, and Defendant’s
motion to dismiss with respect to these claims is moot.
B. The Court has Jurisdiction to Consider Plaintiff’s Remaining Claims
Defendant argues in her motion to dismiss that this Court lacks jurisdiction over all of
Plaintiff’s claims because “Congress has foreclosed judicial review” “for matters arising within
the scope of FECA.” Def.’s Mot. at 7. 5 U.S.C. § 8128(b) establishes that “[t]he action of the
Secretary . . . in allowing or denying a payment under this subchapter is . . . not subject to review
by another official of the United States or by a court by mandamus or otherwise.” However, this
does not preclude all judicial review of issues “arising within the scope of FECA.” Courts have
exercised jurisdiction over claims where “[t]he conduct of the Secretary that [the plaintiff]
challenges . . . is not the ‘allowing or denying [of] a payment,’ but rather the manner in which
his claim was decided.” Rodrigues v. Donovan, 769 F.3d 1344, 1347-48 (9th Cir. 1985); see
also Gilmore v. U.S. Dep’t of Labor, 1993 WL 89050, at *1 (D.C. Cir. Feb. 10, 1993) (finding
that, while review of Secretary’s substantive decision is foreclosed by FECA, a plaintiff’s

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constitutional claims can be heard by the district court). Here, Plaintiff stated in her petition for
a writ of mandamus that she was “not challenging the merits of any [workers’ compensation]
decision, but rather the failure . . . to provide Plaintiff with procedural due process . . . .” Pl.’s
Pet. at 4.
Accordingly, the Court is satisfied that is has jurisdiction to consider Plaintiff’s claims.
C. Injunctive Relief
Plaintiff argues that, while her workers’ compensation claims against Defendant have
been resolved, this case is not moot because there is a reasonable likelihood that the alleged
wrong (in this case, delay in processing Plaintiff’s workers’ compensation claims) will reoccur.
“Article III of the Constitution restricts the federal courts to deciding only ‘actual, ongoing
controversies.’” Nat’l Black Police Ass’n v. D.C., 108 F.3d 346, 349 (D.C. Cir. 1997) (quoting
Honig v. Doe, 484 U.S. 305, 317 (1988)). “Even where litigation poses a live controversy when
filed . . . [a] court [must] refrain from deciding it if events have so transpired that the decision
will neither presently affect the parties’ rights nor have a more-than-speculative chance of
affecting them in the future.” Nat’l Black Police Ass’n, 108 F.3d at 349 (quoting Clarke v.
United States, 915 F.2d 699, 701 (D.C. Cir. 1990)). In cases where a plaintiff seeks injunctive
relief, the plaintiff must allege some likelihood of future injury. See City of Los Angeles v.
Lyons, 461 US. 95, 105-06 (1983).
Here, Plaintiff makes only the barest of allegations of future injury, stating that “in all
likelihood, DOL will continue to fail to respond to requests and correspondences.” The Court is
not persuaded by Plaintiff’s argument. Plaintiff alleges, without evidence of a particular policy
or practice on the part of Defendant, that Defendant may not respond to hypothetical future
workers’ compensation claims in a timely manner. Such an allegation is far too speculative to

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establish a risk of future harm sufficient to preserve a live case or controversy. As such,
Defendant’s motion to dismiss is granted with respect to Plaintiff’s request for injunctive relief.
D. Attorney’s Fees
Plaintiff also requests attorney’s fees pursuant to the Equal Access to Justice Act
(“EAJA”), 28 U.S.C. § 2412(d)(1)(A). The EAJA establishes that “a court shall award to a
prevailing party other than the United States fees and other expenses, in addition to any costs
awarded pursuant to subsection (a), incurred by that party in any civil action . . . including
proceedings for judicial review of agency action . . . unless the court finds that the position of the
United States was substantially justified or that special circumstances make an award unjust.”
Defendant argues that Plaintiff is not a “prevailing party” because the Court has not ruled in
Plaintiff’s favor. Plaintiff argues in response that Defendant’s action in acting upon Plaintiff’s
workers’ compensation claims was in response to Plaintiff’s lawsuit, and as such, Plaintiff has
“prevailed.”
“A party has ‘prevailed’ if (1) the party received a significant part of the relief it sought;
and (2) the lawsuit was a catalytic, necessary or substantial factors, see Tucson Medical Center v.
Sullivan, 947 F.2d 971, 982 (D.C. Cir. 1991), in obtaining that result. ‘[T]he claimant must show
that it is more probable than not that the government would not have performed the desired act
absent the lawsuit.’ Public Citizen Health Research Group v. Young, 909 F.2d 546, 550 (D.C.
Cir. 1990).” Maduka v. Meissner, 114 F.3d 1240, 1241 (D.C. Cir. 1997) (insertions in original).
While Plaintiff has requested attorney’s fees, Plaintiff has not addressed or briefed the
standard discussed above. Should Plaintiff wish to pursue attorney’s fees, she may file a motion
for attorney’s fees no later than February 7, 2014. The Court will retain jurisdiction to consider
said motion.

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IV. Conclusion
An order consistent with this memorandum opinion will issue separately.
Signed on January 23, 2014.

BARBARA J. ROTHSTEIN
UNITED STATES DISTRICT JUDGE

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