Banks v. United States

• Decision Date: 31 May 2016
• Docket Number: CIVIL ACTION NO. 4:15-cv-00341-GHD-CMC
• Citation: 190 F.Supp.3d 618
• Parties: Norris JM Banks, Plaintiff v. United States of America, Defendant.
• Court: U.S. District Court — Eastern District of Texas

190 F.Supp.3d 618

Norris JM Banks, Plaintiff

v.United States of America, Defendant.

CIVIL ACTION NO. 4:15-cv-00341-GHD-CMC

United States District Court, E.D. Texas, Sherman Division.

Signed May 31, 2016

Filed June 2, 2016

Norris JM Banks, Paris, TX, pro se.

Ruth Harris Yeager, US Attorney's Office, Tyler, TX, for Defendant.

MEMORANDUM OPINION GRANTING MOTION TO DISMISS DUE TO LACK OF SUBJECT-MATTER JURISDICTION

GLEN H. DAVIDSON, SENIOR U.S. DISTRICT JUDGE

Presently before the Court is a motion to dismiss [9] filed by Defendant, United States of America (the "Government"), pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. Upon due consideration, the Court finds the motion should be granted on Rule 12(b)(1) grounds, because the Court lacks subject-matter jurisdiction over the case.

A. Factual and Procedural Background

In the case sub judice , Plaintiff Norris JM Banks ("Plaintiff") alleges that he injured his back while working at the North Chicago VA Medical Center on or around November 13, 2002, and thereafter filed a claim for compensation and medical benefits with the Department of Labor ("DOL"), Office of Workers' Compensation Programs ("OWCP"), due to lumbar back strain, aggravation of lumbar stenosis, and aggravation of neurogenic claudication

.¹ Plaintiff began receiving temporary total disability benefits pursuant to the Federal Employees' Compensation Act ("FECA") effective January 2, 2003.² Plaintiff avers that on or around April 3, 2007, Dr. Paul E. Barkhaus, a "referee medical examiner" for OWCP, examined Plaintiff and reported to OWCP that his medical conditions had ceased or were no longer injury-related.³ Plaintiff further avers that based on that report OWCP terminated Plaintiff's compensation and medical benefits on July 18, 2007.⁴

Plaintiff alleges that "[a]fter [he] suffered more than a three-year loss of benefits and compensation," the attorney who represented Plaintiff in the OWCP case filed a motion for reconsideration of that decision, because he discovered Dr. Barkhaus was employed by the Milwaukee Veterans Administration Medical Center, and "[u]nder OWCP rules, physicians who are employed by or who are associated with federal agencies are prohibited from serving as referee medical examiners."⁵ Plaintiff further maintains that "[u]pon consideration of said motion for reconsideration, OWCP determined that there was clear evidence on the part of OWCP in terminating [Plaintiff's] benefits due to Dr. Barkhaus' employment by the Veterans Administration Medical Center" and "affiliation with the Milwaukee Veterans Administration Medical Center" during "the time of [Dr. Barkhaus'] referee medical report to OWCP."⁶ It is undisputed that OWCP committed an error of its own procedures in relying on Dr. Barkaus' report to resolve a conflict of medical opinion,⁷ and that due to that error, on September 1, 2010, OWCP granted Plaintiff's motion for reconsideration and restored full benefits to him; specifically, OWCP opened Plaintiff's claim for medical care and ordered that Plaintiff's compensation be reinstated for the period July 18, 2007 to the present.^{8 ,9} However, Plaintiff maintains that "in the process of seeking reinstatement of his benefits, [he] accumulated legal expense[s] of $32,551.05 and $ 1,200.00 in out-of-pocket medications and medical expenses," necessitating the taking out of a loan and an interest expense of approximately $15,000.00.¹⁰ Plaintiff also maintains that he "suffered other financial adversities resulting from the suspension of [his] benefits," including his inability to afford health insurance, "the monthly cost of which rose from $270.00 to $800.00 during the suspension of [his] benefits," as well as his inability to afford regular medication for his pain and suffering.¹¹

Plaintiff maintains that he submitted a claim to DOL's Employees' Compensation Appeals Board ("ECAB")/OWCP, Senior Claims Examiner, pursuant to 28 U.S.C. § 2675(a), for the alleged damages he sustained while pursuing the reinstatement of his benefits; the claim was sent on or about October 30, 2013 and was received by the DOL/OWCP on November 4, 2013.¹² The Government acknowledges that Plaintiff sent a Standard Form 95 to OWCP and that the same was received on November 5, 2013 and "put in [Plaintiff's] FECA case record," but that "the proper place to file a claim of that amount was with the DOL's Office of the Solicitor."¹³ It is undisputed that the Government took no action on Plaintiff's submission. Plaintiff asserts that DOL's failure to make a final disposition of the claim for more than six months constitutes the agency's denial of his claim¹⁴ (though he acknowledges the claim "never has been formally rejected"); subsequently, on May 15, 2015, Plaintiff filed this suit against the Government pursuant to 28 U.S.C. § 1346(b) of the Federal Tort Claims Act (the "FTCA").¹⁵ Plaintiff seeks a judgment against the Government in the amount of $200,000.00 for the legal and medical expenses allegedly incurred while Plaintiff sought the reinstatement of his benefits from July 18, 2007 (the date his benefits were terminated) until September 1, 2010 (the date his benefits were fully restored).¹⁶

In lieu of an answer, the Government has filed the present motion to dismiss [9] pursuant to Rule 12(b)(1) and Rule 12(b)(6). Plaintiff has filed a response, and the Government has filed a reply. The matter is now ripe for review. Because the Court finds that dismissal is proper on the Government's first argument for dismissal, that the Court lacks subject-matter jurisdiction to review the DOL's determinations under FECA, 5 U.S.C. § 8101 et seq. , the Court need not and does not reach the Government's other arguments for dismissal in the motion.¹⁷

B. Rule 12(b)(1) Motion to Dismiss Standard

Rule 12(b)(1) provides that a party may assert the defense of lack of subject-matter jurisdiction by motion. Fed. R. Civ. P. 12(b)(1). A court must address a Rule 12(b)(1) jurisdictional challenge before addressing a challenge on the merits under Rule 12(b)(6). Braatz, L.L.C. v. Red Mango FC, L.L.C. , No. 15–10498, 642 Fed.Appx. 406, 408–09, 2016 WL 1253679, at *2 (5th Cir. Mar. 30, 2016) (per curiam) (citing Ramming v. United States , 281 F.3d 158, 161 (5th Cir.2001) ). Addressing Rule 12(b)(1) arguments first "prevents a court without jurisdiction from prematurely dismissing a case with prejudice." Ramming , 281 F.3d at 161.

"Federal courts are courts of limited jurisdiction; without jurisdiction conferred by statute, they lack the power to adjudicate claims." In re FEMA Trailer Formaldehyde Prods. Liab. Litig. , 668 F.3d 281, 286 (5th Cir.2012) (citing Kokkonen v. Guar. Life Ins. Co. of Am. , 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994) ; Stockman v . Fed. Election Comm'n , 138 F.3d 144, 151 (5th Cir.1998) ). "Subject-matter jurisdiction ... refers to a tribunal's power to hear a case. It presents an issue quite separate from the question whether the allegations the plaintiff makes entitle him to relief." Morrison v. Nat'l Austl. Bank Ltd. , 561 U.S. 247, 254, 130 S.Ct. 2869, 177 L.Ed.2d 535 (2010) (internal quotation marks and citations omitted). " ‘It is to be presumed that a cause lies outside [a federal court's] limited jurisdiction, and the burden of establishing the contrary rests upon the party asserting jurisdiction.’ " Pershing, L.L.C. v. Kiebach , 819 F.3d 179, 181 (5th Cir.2016) (quoting Kokkonen , 511 U.S. at 377, 114 S.Ct. 1673 ).

"In reviewing a motion to dismiss under Rule 12(b)(1), we first determine whether the motion was a facial or factual attack on jurisdiction." Braatz, L.L.C. , 642 Fed.Appx. at 409, 2016 WL 1253679, at *2. In the case sub judice , the Government's arguments pursuant to Rule 12(b)(1) present a factual attack on jurisdiction because the United States has filed supporting evidentiary materials. See id. "When a defendant makes a factual attack[,] ‘no presumptive truthfulness attaches to plaintiff's allegations.’ " See Eagle TX I SPE, L.L.C. v. Sharif & Munir Enters., Inc. , 602 Fed.Appx. 576, 578 (5th Cir.2015) (per curiam) (quoting Williamson v. Tucker , 645 F.2d 404, 413 (5th Cir.1981) ). "To defeat a factual attack, a plaintiff ‘must prove the existence of subject-matter jurisdiction by a preponderance of the evidence’ and is ‘obliged to submit facts through some evidentiary method to sustain his burden of proof.’ " Superior MRI Servs., Inc. v. All. Healthcare Servs., Inc. , 778 F.3d 502, 504 (5th Cir.2015) (quoting Irwin v. Veterans Admin. , 874 F.2d 1092, 1096 (5th Cir.1989), aff'd sub nom., Irwin v. Dep't of Veterans Affairs , 498 U.S. 89, 111 S.Ct. 453, 112 L.Ed.2d 435 (1990) ).

For the reasons stated below, Plaintiff has failed to meet his burden of proof in defeating the Government's factual attack on jurisdiction.

C. Parties' Ride 12(b)(1) Arguments

The Government characterizes Plaintiff's case as follows: "[Plaintiff] seeks damages in the amount of $200,000.00 for harm allegedly caused by a July 18, 2007 decision by the [OWCP] that terminated his compensation benefits under [FECA].... This suit is apparently a belated attempt to have this Court review DOL's FECA determinations made in 2007 which terminated his compensation benefits, a decision long since reversed by OWCP in 2010."¹⁸ The Government argues that 5 U.S.C. § 8128(b)"clearly precludes such judicial review" unless there is a "substantial cognizable constitutional challenge."¹⁹ The Government maintains that "[t]o the extent that [Plaintiff's] FTCA suit is an attempt to seek tort damages relating to the FECA claim, FECA is [Plaintiff's] exclusive remedy for his work-related injury" and "[h]e is not permitted to also pursue damages under the FTCA."²⁰ The Government further maintains that this Court has no subject-matter jurisdiction, because the post-deprivation remedies available to Plaintiff were sufficient to assure that he received sufficient due process, even though the decision to...