United States District Court, S.D. Mississippi, Southern Division
STEPHEN B. MUNN PLAINTIFF
US DEPARTMENT OF LABOR, et al. DEFENDANTS
ORDER GRANTING DEFENDANTS' MOTION TO
GUIROLA, JR. CHIEF U.S. DISTRICT JUDGE
THE COURT is Defendants'  Motion to Dismiss filed
pursuant to Federal Rule of Civil Procedure 12. Plaintiff
Stephen Munn has filed an Opposition to the Motion, and
Defendants have filed a Reply. For the reasons discussed
herein, the Court is of the opinion (1) that it lacks
jurisdiction over Plaintiff's First Cause of Action
allegedly brought pursuant to the Administrative Procedures
Act (APA) against the United States Department of Labor (DOL)
and various DOL officials in their official capacities and,
(2) that Plaintiff's Second Cause of Action against the
DOL officials individually under Bivens v. Six Unknown
Named Agents of Federal Bureaus of Narcotics, 403 U.S.
388 (1971), fails to state a claim upon which relief can be
has sued the DOL and various DOL officials in their official
and individual capacities. His allegations all arise out of a
claim that he made in 2013 pursuant to the Federal
Employees' Compensation Act (FECA) to the DOL, Office of
Workers' Compensation Programs (OWCP), for an injury that
occurred in 1998 while he was employed by the federal
government as a Special Agent, Diplomatic Security Service.
(See Compl. 9-10 (¶¶ 28-41), ECF No. 1).
Munn's initial claim was denied by a Notice of Decision
issued by Defendant Claims Examiner Sharon Dawkins in
February 2014, citing the untimeliness of the claim. Munn
appealed that decision to the OWCP, which vacated the Notice
of Decision based on timeliness and remanded the case
“for complete review of the evidence of record to
address whether the remaining four basis elements for a
traumatic injury have been met and to issue a de
novo decision.” (See Letter and Decision
of the Hearing Representative, ECF No. 1-6; see also
Compl. 15 (¶52), ECF No. 1).
claim was denied again by a second Notice of Decision issued
by Dawkins in December 2014. Dawkins found that “the
medical evidence is not sufficient to establish that a
medical condition was diagnosed in connection with the
claimed event and/or work factor. The requirements have not
been met for establishing that you sustained an injury as
defined by the FECA.” (Dec. 16, 2014 Notice of
Decision, ECF No. 1-7). Munn appealed this denial, as well,
which the OWCP affirmed in September 2015 with the
modification that “causal relationship has not been
established.” (See Letter and Decision of the
Hearing Representative, ECF No. 1-10; Compl. 16-17
(¶57), ECF No. 1).
alleges that in February 2016, he submitted additional
medical information to establish causation. (See
Compl. 18 (¶63), ECF No. 1). Following the submission of
that evidence, on February 22, 2016, Defendant Ramona Brown
issued a third Notice of Decision denying Munn's claim.
Brown stated: “I have reviewed your case file in its
entirety and do not find the evidence on file, including the
new evidence[, ] is sufficient to support the conditions that
you are claiming were due to the 1998 work event as
claimed.” (Feb. 22, 2016 Notice of Decision, ECF No.
1-12; see also Compl. 2 (¶1), ECF No. 1).
states that he is “seeking both declaratory and
injunctive relief vacating the ‘denial' issued by
Defendant Brown and approval and award of the claim submitted
by Plaintiff under the [APA] and damages for constitutional
violations under Bivens . . . .” (Compl. 2-3
(¶5), ECF No. 1). Defendants have moved to dismiss all
claims, on both jurisdictional and substantive grounds.
Cause of Action; Plaintiff's APA claim with respect to
denial of FECA benefits against the DOL and DOL officials in
their official capacities
raise multiple grounds for dismissal of Plaintiff Munn's
First Cause of Action, including dismissal under Rule
12(b)(1), challenging the Court's subject-matter
jurisdiction. See Ramming v. United States, 281 F.3d
158, 161 (5th Cir. 2001). “The burden of proof for a
Rule 12(b)(1) motion to dismiss is on the party asserting
jurisdiction.” Id. Because the Court finds that
Munn has not met this burden and that the Court therefore
lacks jurisdiction over the First Cause of Action, it will
not address Defendants' alternative arguments for
dismissal of this claim. See id.
provides compensation for a federal employee's personal
injuries ‘sustained while in the performance of his
duty.'” White v. United States, 143 F.3d
232, 234 (5th Cir. 1998) (citing 5 U.S.C. § 8102(a)). An
employee is also entitled to medical services following such
an injury. See 5 U.S.C. § 8103. “FECA
vests with the Secretary of Labor the power to
‘administer, and decide all questions arising under
[FECA], ' 5 U.S.C. § 8145, and the Secretary's
action in allowing or denying an award under FECA is final
and conclusive and not subject to review by a court of law, 5
U.S.C. § 8128(b).” White, 143 F.3d at
states that he is not seeking review under FECA, but, rather,
is seeking review “under the APA for the arbitrary
failure of Defendants' [sic] to follow their own
guidelines, rules and regulations in evaluating” his
FECA claim. (Munn Opp. Mem. 7-8, ECF No. 34). However, the
APA does not apply where a statute (in this case, FECA)
precludes judicial review. See 5 U.S.C. § 701.
Moreover, “the APA does not afford an implied grant of
subject-matter jurisdiction permitting federal judicial
review of agency action.” See Califano v.
Sanders, 430 U.S. 99, 107 (1977). Accordingly, this
Court agrees with other courts in rejecting Munn's
jurisdictional argument premised on the APA. See,
e.g., Staacke v. U.S. Sec'y of Labor, 841
F.2d 278, 282 (9th Cir. 1988); Galluci v. Chao, 374
F.Supp.2d 121, 128 (D.C. Cir. 2005); Wacks v. Reich,
950 F.Supp. 454, 458 (D. Conn. 1996).
Court is not persuaded by Munn's citation to a non-FECA
case, Texas v. United States, 787 F.3d 733 (5th Cir.
2015), to argue otherwise. Additionally, while Munn's
Complaint also mentions jurisdiction premised on 28 U.S.C.
§§ 1361, 2201, and 2002, § 8128(b) precludes
relief under those statutes, as well. See, e.g.,
Staacke, 841 F.2d at 280; Meade v. U.S.
Gov't, No. 87-CV-681, 1988 WL 83176, at *2 (E.D.N.Y.
July 22, 1988).
courts have “recognized a limited exception to
FECA's preclusion of judicial review - courts are not
precluded from considering substantial constitutional claims.
. . . Merely affixing a constitutional label to an otherwise
precluded claim, however, will not suffice.” See
Ramirez v. Walker, 199 F. App'x 302, 307 (5th Cir.
2006); see also, e.g., Duncan v. Dep't of
Labor, 313 F.3d 445, 446 (8th Cir. 2002) (“Because
[FECA] precludes judicial review of workers' compensation
decisions made by the [DOL], [a plaintiff] must allege a
substantial, cognizable constitutional claim to have the