UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Diane Renzi

v. Civil No. 16-cv-039-JD Opinion No.

Thomas E. Perez, Secretary United States Department of Labor

O R D E R

Diane Renzi has brought suit against Thomas E. Perez,

Secretary of the United States Department of Labor, challenging

the denial of her federal workers’ compensation claim under the

Federal Employees’ Compensation Act (“FECA”). She alleges that

in denying her claim the Secretary violated FECA mandates and

her constitutional rights to due process and equal protection.

The Secretary moves to dismiss for lack of subject matter

jurisdiction.1

Standard of Review

A defendant may challenge the jurisdictional basis of the

suit by moving to dismiss under Rule 12(b)(1). In deciding a

1 Although the Secretary cites both Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) in the motion to dismiss, the memorandum in support of the motion proceeds under only Rule 12(b)(1). Therefore, the court construes the motion as seeking to dismiss the claims due to a lack of subject matter jurisdiction under Rule 12(b)(1). motion under Rule 12(b)(1), the court “credit[s] the plaintiff’s

well-pled factual allegations and draws all reasonable

inferences in the plaintiff’s favor.” Merlonghi v. United

States,

(1st Cir. 2010). “The district court

may also consider whatever evidence has been submitted, such as

depositions and exhibits.”2

Background3

Renzi worked as a Passport Specialist for the Department of

State in Portsmouth, New Hampshire. On October 6, 2011, Renzi

fell while walking up the stairs at work, injuring her hands,

her right shoulder, and her knees. She filed a claim for

workers’ compensation benefits, and the Office of Workers’

Compensation Programs (“OWCP”) accepted her claim on January 26,

2012. Renzi received workers’ compensation benefits through May

of 2013 and then again in October and November of 2013 after

2 Renzi asserts that the Secretary is moving to dismiss under Rule 12(b)(6), although she also acknowledges Rule 12(b)(1). Based on the limited scope of review under Rule 12(b)(6), Renzi argues that the motion must be converted to one for summary judgment. Fed. R. Civ. P. 12(d). Because the motion seeks dismissal due to a lack of subject matter jurisdiction under Rule 12(b)(1), not failure to state a claim under 12(b)(6), the additional evidence submitted by the parties may be considered without converting the motion to one for summary judgment.

3 Consonant with the standard of review, the background information is taken from Renzi’s complaint and additional evidence submitted by the parties.

2 knee surgery. The OWCP also approved a schedule award to Renzi

because of permanent impairment to her right arm and left leg

caused by the fall.

On September 27, 2013, Renzi filed a new claim with the

OWCP due to osteoarthritis in her left thumb that she asserted

made her unable to work. She alleged that the osteoarthritis

was caused by repetitive hand activities at work and was

aggravated and accelerated by the fall. Renzi asked that her

two claims be merged, and the OWCP agreed to merge the claims.

On February 6, 2014, the OWCP denied Renzi’s claim because

she had not shown a causal relationship between the

osteoarthritis in her thumb and her work. The OWCP explained

that the medical opinions Renzi provided, which stated that the

fall and work activities “more likely than not” contributed to

her osteoarthritis condition, were equivocal as to causation.

Renzi then sought reconsideration and submitted additional

medical opinions.

The OWCP again found the medical opinion evidence lacked an

unequivocal opinion that Renzi’s degenerative osteoarthritis was

directly related to her work duties. The OWCP stated that the

medical opinion must provide “a complete and accurate history of

[her] condition and the potential contributing factors” and a

“firm and unequivocal opinion” that work caused her

3 osteoarthritis condition. The OWCP issued its final decision

denying Renzi’s application on September 28, 2015. Renzi did

not appeal that decision.

Renzi filed this action on February 6, 2016. She asserts

subject matter jurisdiction under

and

, et seq. She alleges that the Secretary, through the

OWCP, violated her “constitutional rights and statutory mandates

of the Federal Employees Compensation Act (FECA),

et seq.” She brings seven counts titled: Burden of Proof,

Burden of Proof on Causation, Probative Value, Timeliness,

Process Due, Equal Protection, and Damages.

Discussion

The Secretary moves to dismiss Renzi’s claims on the ground

that the court lacks jurisdiction to review the decision of the

OWCP denying Renzi’s workers’ compensation claim under FECA.

The Secretary also challenges Renzi’s claim for damages. In

response, Renzi argues that jurisdiction exists to consider her

claims that the OWCP violated her rights to procedural and

substantive due process and equal protection and that the OWCP

violated FECA mandates in denying her claim. The Secretary

filed a reply, and Renzi filed a surreply.

Under FECA, § 8101, et seq., a decision by the OWCP to deny

workers’ compensation benefits is “final and conclusive for all

4 purposes and with respect to all questions of law and fact; and

[] not subject to review by another official of the United

States or by a court by mandamus or otherwise.” § 8128(b). As

such, FECA unambiguously and comprehensively bars “any judicial

review of the Secretary’s determination of FECA coverage.”

Southwest Marine, Inc. v. Gizoni,

(1991).

Despite the statutory preclusion to review of FECA coverage

decisions, a court has jurisdiction to hear constitutional

challenges to the administration of FECA.4 Paluca v. Sec’y of

Labor,

(1st Cir. 1987); accord Cooper v. Chao,

(1st Cir. 2003).

To provide jurisdiction within the exception, a

constitutional claim must not be “so attenuated and

unsubstantial as to be absolutely devoid of merit.” Palucca,

. That is, a cognizable constitutional claim

must be “specific and substantive.” Cooper,

.

Therefore, a conclusory allegation of a constitutional challenge

is not enough to avoid preclusion under § 8128(b). Stone v.

Chao,

(D. Mass. 2003).

Although a few courts have found an exception to the bar on

judicial review for claims that the OWCP violated a clear FECA

4 In light of the plain meaning of § 8128, Renzi’s theory that § 8128(b) does not apply to her claims is not persuasive.

5 mandate, the First Circuit recognizes only the exception for

constitutional challenges.5 Cooper,

; Palucca,

; Taylor v. United States,

, at *3

(D. Mass. June 6, 2011). Therefore, the court lacks

jurisdiction to consider Renzi’s claims in Counts I, II, IV, and

V that the OWCP violated a clear FECA mandate by requiring a

standard of proof higher than a preponderance of the evidence

and by taking too long to reach a decision.

A. Due Process

Renzi alleges in her complaint that the OWCP violated her

right to due process, but she does not distinguish between

procedural and substantive due process. In her objection to the

Secretary’s motion to dismiss, however, Renzi argues that the

OWCP violated her rights to both substantive due process and

procedural due process. The Secretary contends that Renzi has

not stated a colorable due process violation and instead merely

attacks the OWCP’s decision to deny her claim for benefits.

“The Due Process Clause of the Fifth Amendment guarantees

that ‘no person shall . . . be deprived of life, liberty, or

property, without due process of law.’” United States v. James

Even if the First Circuit were to recognize the additional 5

exception, Renzi did not show that the OWCP violated a clear FECA mandate.

6 Danial Good Real Prop.,

(1993). Therefore,

“individuals must receive notice and an opportunity to be heard

before the Government deprives them of property.”

In

addition, substantive due process protects against a

governmental abuse of power that shocks the conscience. County

of Sacramento v. Lewis,

(1998).

1. Procedural Due Process

Renzi argues in her objection to the motion to dismiss that

the OWCP violated her right to procedural due process by failing

to evaluate her medical opinion evidence “in a meaningful

manner,” by allowing two of the claims examiners to participate

in the claims proceedings and decide her requests for

reconsideration, and by taking too long to process her claim.

She also argues that she did not receive adequate notice because

the FECA regulatory standards for medical evidence are vague and

inconsistent. The Secretary contends that no procedural due

process violation occurred because Renzi had notice and an

opportunity to be heard before her claim for FECA benefits was

denied.

a. Notice

Renzi argues that she did not have adequate notice of the

requirements for being awarded FECA benefits because the FECA

7 regulations impose vague and inconsistent standards. She did

not allege any insufficiency of notice in her complaint,

however. Even if she had properly raised an issue as to notice,

her theory lacks merit.

In support, she argues that the standard for supporting a

new claim for benefits,

, is different from

the standard for evidence to support a continuation of benefits,

(a)(3), and that the difference renders the

statutory scheme vague and inconsistent. Section 10.115

requires medical evidence to support a new claim that is

“reliable, probative and substantial.” Because Renzi was not

seeking a continuation of previously awarded benefits,

§ 10.501(a)(3) did not apply to her claim. Renzi, who is

represented by counsel, does not persuasively show that the

regulations are vague or inconsistent or caused any confusion in

the presentation of her claim for benefits.6

b. Opportunity to Be Heard

“The fundamental requirement of due process is the

opportunity to be heard at a meaningful time and in a meaningful

manner.” Mathews v. Eldridge,

(1976)

6 Even if she had been confused about the appropriate standard, despite being represented by counsel, the OWCP repeatedly explained the required standard.

8 (internal quotation marks omitted). There is no dispute that

Renzi was heard on her claim for FECA benefits and received a

decision on the claim less than five months after the claim was

filed. The OWPC also considered and ruled on Renzi’s multiple

requests for reconsideration. Renzi did not appeal her claim to

the Employees’ Compensation Appeals Board. Those circumstances

do not show any lack of opportunity to be heard or unwarranted

delay.

Renzi argues, however, that the OWCP’s review of her claim

was not meaningful because the standard for medical evidence was

too onerous and because two claims examiners who made

reconsideration decisions had previously been involved in her

claim proceedings. Renzi’s attack on the standard does not

raise a due process issue and instead simply challenges the

OWCP’s decision on the merits.

“[D]ue process demands impartiality on the part of those

who function in judicial or quasi-judicial capacities.”

Schweiker v. McClure,

(1982). Administrative

agencies must also operate with impartial decision makers.

Withrow v. Larkin,

(1975). Bias may be presumed

when the decision maker has a pecuniary interest in the outcome

and when the decision maker “has been the target of personal

abuse or criticism from the party before him.”

. On

9 the other hand, combined functions in an administrative agency

for investigation and adjudication do not support a presumption

of bias.

.

With respect to the impartiality of the claims examiners,

Renzi argues that Claims Examiners Kim and Janowski were biased

because they were involved in her claims adjudication process

and then made reconsideration decisions. Claims Examiner Kim

issued OWCP reconsideration decisions dated June 14, 2014, and

May 13, 2015, on different but related claims that were later

combined. Claims Examiner Janowski issued the initial OWCP

notice of receipt of Renzi’s second claim on December 30, 2013,

and the last decision on reconsideration issued on September 28,

2015. Renzi does not explain why those actions demonstrate a

lack of impartiality, and none may be presumed. Therefore, the

cited circumstances do not show any lack of impartiality.

Renzi has not stated a claim that the OWCP violated her

right to procedural due process.

2. Substantive Due Process

Substantive due process protects against certain

deprivations by the government regardless of whether procedural

due process was sufficient. Gonzalez-Fuentes v. Molina,

(1st Cir. 2010). To state a claim for protection

under substantive due process, a plaintiff must allege facts

10 that show she “suffered the deprivation of an established life,

liberty, or property interest, and that such deprivation

occurred through governmental action that shocks the

conscience.” Najas Realty, LLC v. Seekonk Water District, ---

F.3d ---,

(1st Cir. May 2, 2016). To

meet the conscience shocking standard, the challenged action

must demonstrate “an extreme lack of proportionality,” that is,

a “violation[] of personal rights so severe, so disproportionate

to the need presented, and so inspired by malice or sadism

rather than a merely careless or unwise excess of zeal that it

amounted to a brutal and inhumane abuse of power literally

shocking to the conscience.” Harron v. Town of Franklin,

(1st Cir. 2011) (internal quotation marks

omitted).

Renzi argues that the OWCP violated her right to

substantive due process by imposing a standard higher than a

preponderance of the evidence for medical evidence. As is

discussed above, the applicable FECA regulation, § 10.115,

requires medical evidence to support a new claim that is

“reliable, probative and substantial.” Renzi has not shown that

the OWCP failed to apply the governing standard, much less that

it acted in a way that would shock the conscience.

11 Therefore, Renzi has not stated a claim that the Secretary

violated her substantive due process rights.

B. Equal Protection

To state an equal protection violation, a plaintiff must

allege facts that show the government subjected her to disparate

treatment “compared with others similarly situated in all

relevant respects.” Bruns v. Mayhew,

(1st Cir.

2014) (internal quotation marks omitted). The plaintiff “must

show that the parties with whom [she] seeks to be compared have

engaged in the same activity vis-à-vis the government entity

without such distinguishing or mitigating circumstances as would

render the comparison inutile.”

. When, as here, the

plaintiff is a “class of one,” rather than part of a protected

group, she would have to show that the defendant “intentionally

treated [her] differently from others similarly situated and

there was no rational basis for this disparate treatment.”

Najas Realty,

.

Renzi alleges that she “has been intentionally treated

differently than similarly situated federal employees who have

been awarded FECA benefits based on less proof and evidence than

the Secretary has required of her.” Complaint, ¶ 82. In

support, Renzi alleges only that “[t]housands of FECA claimants

have been awarded benefits” based on medical opinions and other

12 medical evidence that did not meet the standards required of

her. Id., ¶¶ 83-85. She provides no specific factual

allegations about what proof may have been provided or required

in other cases.

A conclusory recitation of the legal elements of an equal

protection claim is insufficient to state a claim. See, e.g.,

Vazquez-Velasquez v. P.R. Highway & Trans. Auth.,

, at *10 (D.P.R. Jan. 14, 2016); Soto-Caro v. Velez-

Lorenzo,

, at *4 (D.P.R. Dec. 22, 2015).

Instead, in the context of a FECA claim, a plaintiff must allege

facts to show that she was similarly situated to other

applicants for FECA benefits and was treated less favorably.

See Crane v. United States,

, at 5 (M.D. Fla.

Apr. 2, 2014) (allegations that another FECA applicant was

awarded benefits for chiropractic care insufficient). Renzi has

not alleged sufficient facts to support her equal protection

claim.

Further, in response to the Secretary’s motion to dismiss a

FECA claim under Rule 12(b)(1), Renzi bears the burden to show,

with sufficient evidentiary support, that the court has

jurisdiction to consider her claim. See, e.g., Escalante v.

United States,

, at *1 (N.D. Cal. Feb. 21, 2014);

Gibbs v. United States,

(M.D. Fl.

13 2012); Bolte v. Chao,

, at *3 (N.D. Ohio May 17,

2007); Kerrigan v. Chao,

, at *1 (E.D. Pa. Oct.

26, 2004). Renzi provides no evidence of disparate treatment in

opposition to the Secretary’s motion to dismiss under Rule

12(b)(1).7 Instead, in her surreply, Renzi argues that the

evidence of disparate treatment is within the Secretary’s

control and that she will need discovery to obtain evidence to

support her equal protection claim.8

In the absence of some factual support, Renzi’s equal

protection claim is meritless.

C. Damages

The Secretary also challenges Renzi’s claim for damages,

because damages would be available, if at all, only through the

Federal Tort Claims Act (“FTCA”). The Secretary contends that

Renzi cannot bring a claim under the FTCA in this court because

she has not made an administrative claim as is required by

For example, she does not cite cases from the Employees 7

Compensation Appeals Board to show that she has been treated differently from other applicants who were similarly situated to her.

Renzi does not elaborate as to what discovery she 8

anticipates. Because her allegation is that thousands of FECA claimants were granted benefits based on less evidence than she provided, it would appear that Renzi intends to request discovery about the medical proof provided by thousands of other claimants, along with other information about the claimants to show that she was similarly situated.

14

(a). Renzi acknowledges that she would have to

pursue a claim under the FTCA to be entitled to damages and does

not assert that claim here.

Renzi has not alleged a claim under the FTCA, and she is

not entitled to damages in this action.

D. Summary

Renzi’s claims that the OWCP violated clear FECA mandates

do not fall within the narrow exception to the bar on judicial

review of FECA decisions. She has not stated claims of due

process or equal protection violations. In addition, her claim

for damages is dismissed.

Conclusion

For the foregoing reasons, the defendant’s motion to

dismiss (document no. 5) is granted due to a lack of

jurisdiction.

The clerk of court shall enter judgment accordingly and

close the case.

SO ORDERED.

__________________________ Joseph DiClerico, Jr. United States District Judge

June 22, 2016 cc: James G. Noucas, Jr., Esq. T. David Plourde, Esq.

15