Ricks et al v. National Institutes of Health et al

Filing 36

MEMORANDUM OPINION. Signed by Judge Theodore D. Chuang on 4/29/2016. (c/m 04/29/2016 bus, Deputy Clerk)

UNITED STATES DISTRICT COURT
DISTRICT OF MARYLAND

VICKY S. RICKS, and
LOUIS RICKS, III,
Plaintiffs,

v.
NATIONAL INSTITUTES OF HEALTH,
HEALTH AND HUMAN SERVICES
SECRETARY BURWELL,
DEPARTMENT OF LABOR SECRETARY
PEREZ,
SONIA MUDD,
DANIEL WHEELAND,
JERRY LAVIN, and
DONNA PHILLIPS,

Civil Action No. TDC-15-2822

Defendants.

MEMORANDUM

OPINION

Plaintiffs Vicky S. Ricks and her husband Louis Ricks, III ("Plaintiffs") filed suit against
Defendants National Institutes of Health ("NIH"), Secretary of Health and Human Services
Sylvia Matthews Burwell, Secretary of Labor Thomas Perez, Sonia Mudd, Daniel Wheeland,
Jerry Lavin, and Donna Phillips (collectively, "Defendants").

Pending before the Court is

Defendants' Motion to Dismiss. The Motion is fully briefed and ripe for disposition. No hearing
is necessary to resolve the issues. See D. Md. Local R. 105.6. For the reasons set forth below,
the Motion is GRANTED.
BACKGROUND
The following facts are presented in the light most favorable to Plaintiffs, the nonmoving
parties:

I.

The Federal Employees' Compensation Act Claim
Louis Ricks ("Ricks") is a maintenance mechanic for the NIH in Bethesda, Maryland.

On

April 4, 2015, he suffered an on-the-job injury to his back and right knee while carrying boxes.
On April 21, 2015, he filed a claim for compensation
Compensation Act ("FECA"), 5 U.S.c.

SS

under the Federal

8101-93 (2012), with the United States Department of

Labor's Office of Workers' Compensation Programs ("OWCP").
OWCP issued a Notice of Decision,

Employees'

On August 20, 2015, the

signed by Claims Examiner

Sonia Mudd, denying

compensation because it had concluded that Ricks had not shown that the injury was causally
related to the April 4 incident.

II.

Procedural History
Three days before the OWCP issued its decision, Plaintiffs filed suit in the District Court

of Maryland for Prince George's County.

The Complaint alleges that Louis Ricks has yet to

receive a workers' compensation award to which he is entitled.

On August 31, 2015, Plaintiffs

filed two Motions to Amend the Complaint, which the Court now grants.
2015, Defendants removed the case to this Court pursuant to 28 U.S.C.

On September 18,

S 1442, which

allows for

the removal of any action against an officer or agency of the United States "for or relating to any
act under color of such office." 28 U.S.C.
a certification

S

1442(a)(l) (2012). The Notice of Removal attached

from the United States Attorney for the District of Maryland attesting that

Wheeland, Lavin, and Phillips were Louis Ricks's supervisors and are entitled to absolute
immunity from the Plaintiffs' tort claims because they were acting within the scope of their
employment during the events giving rise to Plaintiffs' claims. See 28 U.S.C.
C.F.R.

S

15.4 (2015); id.

S 50.15(a).

2

S 2679(d)(l);

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On October 8, 2015, Plaintiffs filed a Motion requesting that the Court accept documents
with electronic signatures.

Included with this Motion were "Amended Pleadings," referencing

both FECA and the Federal Tort Claims Act ("FTCA"), 28 U.S.C. ~~ 1346(b), 2671-80 (2012).
The Court construes the Motion as seeking leave to amend the Complaint, which the Court now
grants.
Also on October 8, 2015, Defendants

filed a Motion to Dismiss, argumg that the

Complaint should be dismissed for lack of subject matter jurisdiction.

Based on the certification

by the United States Attorney, Defendants also moved to dismiss Wheeland, Lavin, and Phillips
from the action and to substitute the United States in their stead. On October 21,2015, Plalntiffs
filed two documents in response.

The first, entitled "Plaintiffs Response to Defendants'

Cross

Claim / Motion to Dismiss for Lack of Subject Matter Jurisdiction," challenged the proposed
dismissal of Wheeland, Lavin, and Phillips. It also alleged that NIH management slandered and
defamed Louis Ricks by misclassifying
Without Leave."

some of Ricks's injury-related absences as "Absent

The second filing, bearing the same title as the first but identifying the

defendants at issue as the Department of Labor and Mudd, argued against dismissal of the entire
case.

In this document, for the first time, Plaintiffs accuse Mudd of denying Ricks's FECA

claim in retaliation for filing this suit.
erroneous statements when processing,

It alleges that Mudd "made false, misleading
handling and deciding Mr. Ricks['s]

ultimately led to the claim being denied under [a] false and misleading theory."

and

claim, which
PIs.' S{:cond

Resp. to Mot. Dismiss at 2. Plaintiffs also suggest that Mudd "tamper[ed] with evidence." Id. at
1. On October 23,2015, Defendants filed a Reply to Plaintiffs' Responses.l

On October 21, 2015, Plaintiffs filed a motion docketed as a "Motion for Removal of Parties
from Action," requesting that the Court prohibit entities who are no longer parties to this case
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DISCUSSION
I.

Motion to Substitute
Defendants argue that the United States should be substituted into the case in place of

Wheeland, Lavin, and Phillips, who should be dismissed from the case. Such a substitution is
warranted when the Attorney General has certified that a defendant employee was acting within
the scope of employment at the time of the incident in question.

See 28 U.S.C.

92679(d)(l).

Defendants note that the United States Attorney has certified that Wheeland, Lavin, and Phillips
were acting within the scope of their employment.
Plaintiffs are correct that the filing of the certification does not prevent Plaintiffs from
proving that these individuals were not acting in the scope of employment.
Martinez v. Drug Enf't Admin., 111 F.3d 1148, 1153-55 (4th Cir. 1997).

Gutierrez de
Plaintiffs were,

however, required to come forward with evidence to challenge that certification.
Instead, Plaintiffs merely assert that the "discretionary
Phillips harmed Plaintiffs.

Id at 1155.

conduct" of Wheeland, Lavin, and

Pis.' First Resp. to Mot. Dismiss at 2. Such "conclusory allegations

and speculation" are insufficient to overcome the certification.

Gutierrez de Martinez, 111 F.3d.

at 1155. Thus, Defendants' Motion to Substitute is granted. Wheeland, Lavin, and Phillips are
dismissed from the action, and the United States is substituted as a party.

from receiving notice of filings. Because filings are public records and Plaintiffs offer no reason
that they should be kept under seal, the Motion is denied.
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II.

Motion to Dismiss
Defendants move to dismiss because (1) the OWCP's denial of FECA benefits is not

subject to judicial review; and (2) there is no viable FTCA claim.

For the reasons set forth

below, the Motion is granted.
A.

Legal Standard

The plaintiff has the burden to show that subject matter jurisdiction exists. Evans v. B.p
Perkins Co., Div. of Standex Int'l Corp., 166 F.3d 642, 647 (4th Cir. 1999). Federal Rule of
Civil Procedure 12(b)(1) allows a defendant to move for dismissal when it believes that the
plaintiff has failed to make that showing. When a defendant asserts that the plaintiff has failed to
allege facts sufficient to establish subject matter jurisdiction, the allegations in the complaint are
assumed to be true under the same standard as in a Rule 12(b)(6) motion, and "the motion must
be denied if the complaint alleges sufficient facts to invoke subject matter jurisdiction."

Kerns v.

United States, 585 F.3d 187, 192 (4th Cir. 2009).
B.

Federal Employees' Compensation Act

The Complaint asserts that the OWCP wrongfully denied FECA benefits to Louis Ricks.
Defendants counter that the Court lacks subject matter jurisdiction to review the OWCP's FECA
benefits

determination.

"FECA

establishes

compensation program for federal employees."

a comprehensive

and

exclusive

workers'

Hanauer v. Reich, 82 F.3d 1304, 1309 (4th Cir.

1996). FECA commits the United States to compensate any employee who suffers disability or
death "resulting from personal injury sustained while in the performance of his duty." 5 U.S.C.
9 8102.

The Secretary of Labor has delegated authority to administer the program, including

authority to decide whether employees are entitled to compensation,
OWCP. Id. 98145; 20 C.F.R. 9 10.1 (2016).

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to the Director of the

Although

there is a "strong presumption

that Congress intends judicial

administrative action," Congress can override that presumption.

reVIew of

Bowen v. Mich. Acad. of Family

Physicians, 476 U.S. 667, 670-73 (1986). FECA clearly expresses Congress's intent to preclude
judicial review of federal workers' compensation determinations:
The action of the Secretary or his designee in allowing or denying a payment
under this subchapter 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 by mandamus or otherwise.
5 U.S.C. ~ 8128(b); Lindahl v. Office of Pers. Mgmt., 470 U.S. 768, 779-80 & n.13 (1985)
(identifying 5 U.S.C. ~ 8128(b) as an "unambiguous and comprehensive" bar to judicial review);
Hanauer, 82 F.3d at 1307.

Narrow exceptions to FECA's bar on judicial review exist for

litigants who allege that the agency's benefits decision violated a "clear statutory mandate,"
Hanauer, 82 F.3d at 1307-09, or the employee's constitutional rights, Lepre v. Dep't of Labor,
275 F.3d 59, 67 (D.C. Cir. 2001).

The Complaint, however, does not identify a statutory

provision or constitutional right violated by the OWCP decision.

Although Plaintiffs'

Second

Response accuses OWCP Claims Examiner Sonia Mudd of retaliation, evidence tampering, and
making "false, misleading and erroneous statements when processing, handling and deciding Mr.
Ricks['s] claim," PIs.' Second Resp. to Mot. Dismiss at 1-2, these allegations do not appear in
the Complaint or any of the amendments, and they fail to articulate a statutory or constitutional
violation.

Plaintiffs' allegation, at bottom, is that they believe that Louis Ricks was entitled to

FECA benefits and disagree with the OWCP's decision that he was not. This Court lacks subject
matter jurisdiction to review that decision. See 5 U.S.c. ~ 8128(b).

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C.

Federal Tort Claims Act

Plaintiffs

also reference

a potential

violation

of the FTCA.

The Complaint

and

amendments do not set out the basis for Plaintiffs' FTCA claim. The only hint as to the nature of
that claim is contained in the First Response, which asserts that NIH management slandered
Louis Ricks by misclassifying

some of Ricks's injury-related absences as "Absent Without

Leave." The FTCA enacts a limited waiver of sovereign immunity for certain tort claims against
the federal government.

Dolan v. Us. Postal Serv., 546 U.S. 481, 484-85 (2006). That waiver

of sovereign immunity does not extend to claims of slander against federal employees.

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U.S.C. ~ 2680(h); Block v. Neal, 460 U.S. 289, 297 (1983); Talbert v. United States, 932 F.2d
1064, 1066-67 (4th Cir. 1991). The Court thus lacks subject matter jurisdiction over Plaintiffs'
FTCA claim.

Moreover, an FTCA claim cannot proceed unless the plaintiff first filed an

administrative claim with the agency. 28 U.S.C. ~ 2675(a). There is no evidence that Plaintiffs
filed such a claim. Accordingly, Plaintiffs' FTCA claim is dismissed.
CONCLUSION
For the foregoing reasons, Defendants' Motion to Substitute and Motion to Dismiss are
GRANTED. A separate Order shall issue.

Date: April 29, 2016

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