FERGUSON v. U.S. POSTAL SERVICE
MEMORANDUM OPINION AND ORDER GRANTING the defendant's 5 Motion to Dismiss. The Clerk of the Court is directed to close this case. See Memorandum Opinion and Order for further details. Signed by Chief Judge Beryl A. Howell on October 11, 2019. (lcbah2)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
Civil Action No. 19-1689 (BAH)
Chief Judge Beryl A. Howell
U.S. POSTAL SERVICE,
MEMORANDUM OPINION AND ORDER
The plaintiff, Tracy Ferguson, proceeding pro se, filed a statement of claim against the
United States Postal Service (“Postal Service”) in the Small Claims and Conciliation Branch of
the Superior Court of the District of Columbia alleging that the Postal Service, her former
employer, has either over-deducted money from her workers’ compensation benefits or has not
properly refunded her for over-deductions of health benefits. Notice of Removal, Ex. 1,
Statement of Claim (“Compl.”), ECF No. 1. After removing the action to federal district court,
the Postal Service filed a motion to dismiss for lack of subject matter jurisdiction or for failure to
state a claim upon which relief can be granted. Def.’s Mot. to Dismiss (“Def.’s Mot.”), ECF No.
5. After being advised of her opportunity to respond and of her obligations under the applicable
procedural rules, see Order (July 18, 2019), ECF No. 6 (citing Fox v. Strickland, 837 F.2d 507,
509 (D.C. Cir. 1988); Neal v. Kelly, 963 F.2d 453, 456 (D.C. Cir. 1992)), plaintiff filed a
memorandum in opposition to the motion to dismiss, see Pl.’s Mem. in Opp., ECF No. 7. The
Postal Service’s motion is GRANTED for the reasons stated below.
Statement of Claim
The plaintiff’s statement of claim begins by alleging that she is “on disability from the
U.S. Postal Service” and is “being discriminated against because of [her] disability.” Compl. at
5. More specifically, the plaintiff claims both that “[t]he U.S. Postal Service has not properly
paid back . . . money from [her] health insurance,” id. at 3, and that “[t]he Postal Service has
taken extra money out of [her] disability check, for years,” id. at 5. “Sometimes,” plaintiff states,
the Postal Service has “giv[en] a little [money] at a time back.” Id. at 3. As a remedy, the
plaintiff seeks money damages in the amount of $3,000. Id. at 3.
Statutory and Regulatory Background
Plaintiff’s pro se complaint “is ‘to be liberally construed.’” Erickson v. Pardus, 551 U.S.
89, 94 (2007) (quoting Estelle v. Gamble, 429 US. 97, 106 (1976)). So construed, the claims
relate to the federal workers’ compensation program or to health benefits.
Federal Workers’ Compensation
The Federal Employees’ Compensation Act (“FECA”) governs workers’ compensation
benefits for federal employment. Workers’ compensation is owed “for the disability or death of
an employee resulting from personal injury sustained while in the performance of his duty.” 5
U.S.C. § 8102(a). By statute, the Secretary of Labor administers and decides “all questions
arising under” FECA. Id. § 8145. By regulation, the Secretary of Labor has delegated authority
and assigned responsibility for administering FECA to the Director of the Office of Workers’
Compensation Programs (“OWCP”). 20 C.F.R. § 1.2.
The Postal Service’s Health Benefits Refund Program
The Health Benefits Refund Program (the “Program”) is a Postal Service program to
reimburse injured employees for over-deductions of health benefits premiums. See U.S. Postal
Service, Employee and Labor Relations Manual (“ELM”) § 525.132. “For the first year of
compensable disability, OWCP deducts health benefits premiums at the Postal Service rate.” Id.
In future years, the premium deduction is made at the standard rate for federal employees, which
is higher than the Postal Service rate. Id. As a result, under the Program, Postal Service
employees who are receiving OWCP compensation may be owed a refund for over-deduction of
health benefits premiums. Id. The ELM directs the Postal Service to calculate the refund by
“subtract[ing] the difference between the [standard federal employee] health benefits premium
rate and the Postal Service rate of the health benefits plan chosen by the employee.” Id.
Motion to Dismiss Under Rule 12(b)(1)
In reviewing a motion to dismiss for lack of subject matter jurisdiction under Rule
12(b)(1), “[i]t is to be presumed that a cause lies outside [the federal court’s] limited jurisdiction,
and the burden of establishing the contrary rests upon the party asserting jurisdiction.”
Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994) (internal citation omitted).
The court must accept as true all uncontroverted factual allegations contained in the complaint
and must “construe the complaint liberally, granting plaintiff the benefit of all inferences that can
be derived from the facts alleged.” Am. Nat’l Ins. Co. v. FDIC, 642 F.3d 1137, 1139 (D.C. Cir.
2011) (internal quotation marks omitted).
Motion to Dismiss Under Rule 12(b)(6)
To survive a motion to dismiss under Rule 12(b)(6), “a complaint must contain sufficient
factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). A facially plausible claim pleads factual content that allows “the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Id.; see also
Atherton v. District of Columbia Office of Mayor, 567 F.3d 672, 681–82 (D.C. Cir. 2009)
(“[E]ven a pro se complainant must plead ‘factual matter’ that permits the court to infer ‘more
than the mere possibility of misconduct.’” (quoting Iqbal, 556 U.S. at 679)). In deciding a
motion under Rule 12(b)(6), the court must consider the whole complaint, accepting all factual
allegations as true, “even if doubtful in fact.” Twombly 550 U.S. at 555.
Federal Workers’ Compensation
Plaintiff’s statement that “[t]he Postal Service has taken extra money out of [her]
disability check for years,” Compl. at 5, may be a challenge to withholdings from her workers’
compensation benefits under the FECA. See Pueschel v. Chao, 357 F. Supp. 3d 18, 24 (D.D.C.
2018) (“FECA . . . provides federal employees with an exclusive remedy against the United
States for work-related injuries.” (citing 5 U.S.C. § 8116(c)). Subject matter jurisdiction over
such a claim is lacking.1
Federal district courts lack subject matter jurisdiction over challenges to workers’
compensation withholdings under a provision of FECA precluding judicial review of any claims
for “payment of compensation” under that Act. See 5 U.S.C. § 8128(b) (“[A]ction of the
Secretary of Labor or his designee in allowing or denying a payment . . . is . . . final and
conclusive for all purposes and with respect to all questions of law and fact” and “not subject to
review . . . by a court by mandamus or otherwise.”); see also Lindahl v. Office of Pers. Mgmt.,
470 U.S. 768, 779–80 & n.13 (1985) (identifying § 8128(b) as an example of “Congress
intend[ing] to bar judicial review altogether”). Instead, workers’ claims arising under FECA are
handled by OWCP and are reviewable by the Employees’ Compensation Appeals Board, see 20
The current complaint is also deficient in making such a claim because workers’ compensation benefits are
administered not by the Postal Service but by OWCP and the Department of Labor, see e.g., 20 C.F.R. § 1.2; ELM
§ 525.132, which are not parties to this action.
C.F.R. § 10.625; that Board’s decisions about workers’ compensation claims are final and not
subject to judicial review, see 5 U.S.C. § 8128(b).
In short, any claim by the plaintiff for under-payment of worker’s compensation benefits
cannot withstand the motion to dismiss under Rule 12(b)(1). See Gallucci v. Chao, 374 F. Supp.
2d 121, 128 (D.D.C. 2005) (finding no “subject matter jurisdiction because federal question
jurisdiction is precluded by 5 U.S.C. § 8128(b)”), aff’d, No. 05-5280, 2006 WL 3018055 (D.C.
Cir. Mar. 2, 2006) (“Appellant has failed to demonstrate that the district court possessed subject
matter jurisdiction over this case despite the provisions of 5 U.S.C. § 8128(b).”).
The Postal Service’s Health Benefits Refund Program
Plaintiff’s statement that “[t]he U.S. Postal Service has not properly paid back . . . money
from [her] health insurance,” id. at 3, may be a claim that the Postal Service has not properly
refunded her health benefits premiums under the Health Benefits Refund Program. That
Program is laid out in the ELM, which “does not create a private right of action” in federal court.
Ko v. Brennan, No. 17-CV-06427-HRL, 2018 WL 1400467, at *4 (N.D. Cal. Mar. 20, 2018),
aff’d sub nom. Kyoung Ko v. Brennan, 740 F. App’x 623 (9th Cir. 2018). Given that plaintiff
cannot bring suit under the ELM, the government suggests that “one might construe Plaintiff’s
claim as one seeking relief under” the Administrative Procedure Act (“APA”), see 5 U.S.C.
§ 706, on the theory that “the provisions of the Manual constitute ‘regulations’ of the Postal
Service,” Def.’s Mem. Supp. Mot. to Dismiss (“Gov’t’s Mem.”) at 6, ECF No. 5-1 (citing Gose
v. U.S. Postal Service, 451 F.3d 831, 835–36 (Fed. Cir. 2006)). The APA does generally
authorize claims against federal agencies, see 5 U.S.C. § 704, but it cannot provide a cause of
action here, as the Postal Reorganization Act of 1970 exempts the Postal Service from APA
review, see 39 U.S.C. § 410(a) (providing that, with certain exceptions, “no Federal law dealing
with public or Federal contracts, property, works, officers, employees, budgets, or funds . . . shall
apply to the exercise of the powers of the Postal Service”); see also Mittleman v. Postal
Regulatory Comm’n, 757 F.3d 300, 305 (D.C. Cir. 2014) (“[T]he Postal Service is exempt from
review under the [APA].” (quoting N. Air Cargo v. U.S. Postal Serv., 674 F.3d 852, 858 (D.C.
Cir. 2012)).2 Absent a private right of action, the plaintiff cannot maintain a claim related to the
Health Benefits Program.
Allegation of Discrimination
Finally, plaintiff states that she is “being discriminated against because of [her]
disability.” Compl. at 5. This statement, because it is accompanied by no factual allegations, is
inadequate to make out a claim for discrimination under a federal statute such as the
Rehabilitation Act, 29 U.S.C. § 701 et seq.
Therefore, upon consideration of the defendant’s Motion to Dismiss, ECF 5, the related
legal memoranda in support and in opposition, and the entire record herein, for the reasons set
forth above, it is hereby
ORDERED that the defendant’s Motion is GRANTED, without prejudice; and it is further
ORDERED that the Clerk of the Court is DIRECTED to close this case.
This is a final and appealable order.
Date: October 11, 2019
BERYL A. HOWELL
“[N]on-statutory” review of Postal Service actions may be available “to determine whether the agency has
acted ultra vires.” Mittleman, 757 F.3d at 300 (internal quotation marks and citations omitted). Plaintiff does not
contend that the Postal Service has exceeded any statutory authority.
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