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Wexler v. United States

United States District Court, D. Colorado

April 26, 2018




         This matter is before the Court on Defendants' (“the Government”) Motion to Dismiss, in which the Government argues that the Court lacks subject matter jurisdiction under the Federal Employees' Compensation Act (“FECA”) and the Federal Torts Claims Act (“FTCA”) to hear Plaintiff Warren Wexler's challenge to a final determination of the Office of Worker's Compensation (“OWCP”). (Doc. # 12.) For the following reasons, the Court concludes that it does not have jurisdiction over this action and accordingly grants the Government's Motion to Dismiss. (Id.)

         I. BACKGROUND

         Plaintiff, who proceeds pro se, filed the instant suit on November 27, 2017. (Doc. # 1.) Plaintiff's Complaint contains limited information regarding the legal and factual background of his several claims and appeals filed with OWCP. The Government provides additional information to help clarify this matter. See (Doc. # 12-1.) The Government primarily seeks dismissal of the Complaint on the basis of lack of subject matter jurisdiction. For the most part, the allegations in Plaintiff's complaint are irrelevant to the resolution of the Government's Motion to Dismiss. The Court, however, has considered relevant facts from the Government's exhibits throughout this Order as they are relevant to the Court's determination of whether it has jurisdiction over Plaintiff's claims.[1]

         The Court only briefly summarizes the factual and procedural background of this case and relies in part on the Government's description of events, which it supports with numerous exhibits and affidavits. See (Doc. # 12 at 3-5.) Plaintiff applied for FECA benefits in 1991, and upon OWCP's approval of his application, OWCP began paying Plaintiff wage-loss benefits for his total disability. (Id. at 3-4; Doc. # 12-1 at 5.) However, in a decision dated December 2, 1993, OWCP partially reduced Plaintiff's wage-loss benefits because he was earning income in a vending machine business. (Doc. # 12 at 4; Doc. # 12-1 at 7.)

         After nearly a decade of requests for reconsiderations and remands for various issues, OWCP concluded on January 23, 2012, that it had improperly reduced Plaintiff's benefits in 1993. (Doc. # 12 at 4; Doc. # 1 at 3-4.) OWCP reversed its 1993 decision, and Plaintiff was returned to total disability. (Doc. # 12-1 at 16-21.) On February 21, 2012, OWCP paid Plaintiff $141, 114.65-the difference between the benefits Plaintiff had been entitled to from 1988 through 2004 and the benefits Plaintiff was actually paid after OWCP's erroneous partial reduction of his benefits in 1993. (Doc. # 12 at 4; Doc. # 12-1 at 23.)

         Plaintiff requested that OWCP pay him interest on the back-pay award of $141, 114.65 on June 13, 2012. (Doc. # 12-1 at 25.) OWCP informed Plaintiff in a letter dated June 27, 2012, that “there is no provision in [FECA] to pay interest on any prior compensation payments made.” (Id. at 27; Doc. # 1 at 4.) Plaintiff filed an appeal of OWCP's letter to the Employees' Compensation Appeals Board (“ECAB”) on July 2, 2012. (Doc. # 12-1 at 30.) At Plaintiff's request, ECAB dismissed Plaintiff's appeal on October 31, 2012. (Id. at 35.)

         Plaintiff previously filed a similar case in this Court, claiming that he was owed interest on the lump-sum payment of his back-pay and that OWCP acted in bad faith by denying him interest. Wexler v. U.S. Dep't of Labor, No. 15-cv-01514-KLM (“Wexler I”). The Court therein dismissed Plaintiff's Complaint upon the Government's motion, finding that Congress foreclosed judicial review of FECA determination under 5 U.S.C. § 8128(b). (Wexler I, Doc. # 38 at 5.) The Court observed that there is a narrow exception to FECA's preclusion of judicial review where a plaintiff claims OWCP violated a constitutional right. (Id. at 6) (citing Staacke v. U.S. Sec'y of Labor, 841 F.2d 278, 281 (9th Cir. 1988)). It did not consider that exception however because Plaintiff “ha[d] not made any claims, allegations, or arguments would [could have been] construed as fitting this exception.” (Id.)

         Plaintiff sent a self-styled “Notice of Claim” to the Government on April 17, 2017, informing the Government that he intended to file suit under FTCA. (Doc. # 1 at 3-5.) He asserted a “violation of the takings clause, ” claiming that “he is entitled, under the Taking Clause of the Fifth Amendment, to be paid interest on the back-pay he was awarded.” (Id. at 4.) Plaintiff requested $500, 000 in interest, $1, 000, 000 in “time, energy, effort and stress, ” and $3, 000 in “incidental expenses.” (Id. at 5.) Plaintiff contends that the Government did not respond to this communication. (Id. at 3.)

         Plaintiff filed the suit now before the Court on November 27, 2017. (Doc. # 1.) He argues that the Government “owe[s] him interest of [sic] the backpay amount under the Takings Clause.” (Id. at 2.) He asserts the Court has jurisdiction pursuant to FTCA, and he cites only the Takings Clause as the legal basis for his demand for interest and other damages. See generally (id.)

         The Government filed the instant Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1) on January 24, 2018, arguing that the Court lacks subject matter jurisdiction because “5 U.S.C. § 8128(b) precludes judicial review of OWCP decisions regarding FECA benefits.” (Doc. # 12 at 1.) Plaintiff timely filed his Response on February 5, 2018 (Doc. # 15), to which the Government replied on February 14, 2018 (Doc. # 16).



         Plaintiff proceeds pro se. The Court, therefore, reviews his pleading “liberally and hold[s] [it] to a less stringent standard than those drafted by attorneys.” Trackwell v. United States, 472 F.3d 1242, 1243 (10th Cir. 2007) (citations omitted). However, a pro se litigant's “conclusory allegations without supporting factual averments are insufficient to state a claim upon which relief can be based.” Hall v. Bellmon,935 F.2d 1106, 1110 (10th Cir. 1991). A court may not assume that a plaintiff can prove facts that have not been alleged, or that a defendant has violated laws in ways that a plaintiff has not alleged. Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983); see also Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997) (a court may not “supply additional factual allegations to round out a plaintiff's complaint”); Drake v. City of Fort Collins, 927 F.2d 1156, 1159 (10th Cir. 1991) (a ...

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