United States District Court, S.D. Mississippi, Southern Division
STEPHEN B. MUNN PLAINTIFF
US DEPARTMENT OF LABOR, et al. DEFENDANTS
ORDER DENYING MOTION FOR RECONSIDERATION
GUIROLA, JR. CHIEF U.S. DISTRICT JUDGE.
THE COURT is the  Motion for Reconsideration filed by
Plaintiff Stephen Munn pursuant to Federal Rule of Civil
Procedure 59(e) with respect to the Court's  Order
Granting Defendants' Motion to Dismiss entered on
February 15, 2017. The Court dismissed Munn's case on the
grounds (1) that it lacked jurisdiction over Munn's First
Cause of Action brought pursuant to the Administrative
Procedures Act (APA), and, (2) that Munn's Second Cause
of Action premised on Bivens v. Six Unknown Named Agents
of Federal Bureaus of Narcotics, 403 U.S. 388 (1971),
failed to state a claim. Munn now asks the Court to
reconsider that dismissal. Having thoroughly considered the
submissions of the parties and the relevant law, the Court is
of the opinion that the Motion should be denied because there
is no need to correct a clear error of law or prevent
59 motion “calls into question the correctness of a
judgment.” Templet v. HydroChem Inc., 367 F.3d
473, 478 (5th Cir. 2004) (citation and quotation marks
omitted). The Fifth Circuit has repeatedly “held that
such a motion is not the proper vehicle for rehashing
evidence, legal theories, or arguments that could have been
offered or raised before the entry of judgment.”
See Id. at 478-79. “Reconsideration of a
judgment after its entry is an extraordinary remedy that
should be used sparingly.” Id. at 479.
must establish (1) an intervening change in controlling law;
(2) the availability of new evidence not previously
available; or (3) the need to correct a clear error of law or
prevent manifest injustice. See In re Benjamin Moore
& Co., 318 F.3d 626, 629 (5th Cir. 2002). Munn moves
for relief with respect to the third prong only.
Munn simply re-hashes arguments that could or should have
been made previously. See Templet, 367 F.3d at
478-79. He acknowledges that “there is no specific
‘on point' case law within the Fifth Circuit”
on the issue presented in his action, (see Pl. Reply
4, ECF No. 47), but states that the cases cited by him
“provided more than sufficient authority for
jurisdiction . . . under the APA.” (Mot. For Recons. 1,
ECF No. 43). The Court already considered and rejected this
same argument. Namely, the APA does not apply where a statute
- in this case, the Federal Employees' Compensation Act
(FECA) - precludes judicial review. See 5 U.S.C.
§§ 701, 8128. Nor does the APA “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). Relevant
case law establishes that this Court lacks jurisdiction over
any APA claim. 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). Munn's disagreement with that case law does
not establish a clear error of law or the need to prevent
Court also remains of the opinion that Munn does not qualify
for any exception to FECA's preclusion of judicial review
because he has failed to state a substantial constitutional
claim. Munn “never had or acquired a property interest
in his workers' compensation request because the federal
government did not find [Munn] was entitled to benefits, or
pay out the benefits.” See Duncan v. Dep't of
Labor, 313 F.3d 445, 446-47 (8th Cir. 2002). Munn's
citation to Cushman v. Shinseki, 576 F.3d 1290 (Fed.
Cir. 2009), does not convince the Court to reconsider its
decision. Cushman was not a FECA or APA case and is
even accepting that a property right existed, Munn has failed
to show that the Court's finding that Munn received all
the process he was due (i.e., notice and an
opportunity to be heard) was in error. Fifth Circuit law is
clear that “the post-deprivation remedies available to
FECA claimants are sufficient to assure that claimants
receive sufficient due process . . . .” See
Schwartz v. U.S. Dep't of Labor, 161 F. App'x
357, 359 (5th Cir. 2005); see also Ramirez v.
Walker, 199 F. App'x 302, 308 n.5 (5th Cir. 2006).
This Court “correctly found that it did not have
subject matter jurisdiction . . . because [Munn] did not
allege a substantial constitutional violation . . . .”
See Beemer v. Holder, 495 F. App'x 396, 400 (5th
Cir. 2012). “Merely affixing a constitutional label to
an otherwise precluded claim” - as Munn has
continuously attempted to do - “will not
suffice.” See Ramirez, 199 F. App'x at
has represented to this Court that his “claim is for
wrongful procedural violations by Defendants . . . .”
(See Munn Opp. 2-3, ECF No. 34). However, Munn's
allegations of procedural violations do not equate to a
statutory violation. See Banks v. United States, 190
F.Supp.3d 618, 628 (E.D. Tex. 2016); see also
Galluci, 374 F.Supp.2d at 126-27. To the extent Munn
argues that he has articulated statutory violations, the
Court is still unconvinced that this Circuit would even
recognize a “statutory violation” exception,
which Munn never raised or discussed before now. See
Templet, 367 F.3d at 478-79. Even so, Munn's
challenges to the assessment of his evidence, (see
Mot. For Recons. 12, ECF No. 43 (stating that Defendant
Ramona Brown “ignored the medical evidence in
file”)), remain insufficient for this Court to exercise
jurisdiction. See, e.g., Lepre v. Dep't of
Labor, 275 F.3d 59, 74 (D.C. Cir. 2001). And, the Court
is again unpersuaded by Munn's citation to and discussion
of case law involving the discretionary function exception to
the Federal Tort Claims Act, which is not at issue here.
Munn argues that because the Court's dismissal of his
First Cause of Action was erroneous, the Court should
reinstate his Second Cause of Action. However, the Court has
determined that reconsideration of dismissal of the First
Cause of Action is unwarranted. Further, Munn's
allegations premised on supervisory liability are
insufficient. See Ashcroft v. Iqbal, 556 U.S. 662,
extent the Court has not addressed any of the parties'
arguments, it has considered them and determined that they
would not alter this result. For the reasons discussed
herein, the Court is of the opinion that there is no basis
for reconsidering its  Order Granting Defendants'
Motion to Dismiss.
THEREFORE ORDERED AND ADJUDGED that the  Motion for
Reconsideration filed ...