Domby v. U.S. Government, 91-56011

• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)
• Writing for the Court: Before FARRIS, WIGGINS and FERNANDEZ; WIGGINS
• Citation: 974 F.2d 1341
• Parties: NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel. Imre DOMBY, Plaintiff-Appellant, v. U.S. GOVERNMENT; Elizabeth Dole; Employees Comp., Defendants-Appellees.
• Docket Number: No. 91-56011,91-56011
• Decision Date: 10 July 1992

Page 1341

974 F.2d 1341 NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel. Imre DOMBY, Plaintiff-Appellant,
v.
U.S. GOVERNMENT; Elizabeth Dole; Employees Comp.,
Defendants-Appellees. No. 91-56011. United States Court of Appeals, Ninth Circuit. Submitted July 10, 1992. ^*
Decided Sept. 15, 1992.

Before FARRIS, WIGGINS and FERNANDEZ, Circuit Judges.

MEMORANDUM ^**

Imre Domby appeals the district court's dismissal of his action challenging the denial of his claim under the Federal Employees' Compensation Act (FECA), 5 U.S.C. § 8101 et seq. We affirm.

BACKGROUND

Domby filed a claim for compensation under FECA on May 30, 1987. Domby alleged that between 1958 and 1986 the CIA, working through his family members, surreptitiously drugged him with LSD and other substances. Domby claimed that he was disabled as a consequence of the government's experimentation. The Secretary of Labor forwarded Domby's case file to the CIA, which searched its records but found no mention of Domby's name. On April 7, 1989, the Secretary informed Domby that he had an additional 30 days to submit proof that he had been an employee of the federal government, voluntary or otherwise. Domby did not submit any such evidence and the Secretary denied his claim on July 13, 1989.

Domby appealed to the Employees' Compensation Appeals Board (ECAB). On appeal he claimed that the government had administered drugs to him through some 22 federal agencies, 80 institutions, and 185 researchers of unknown identity. The ECAB emphasized that a claimant seeking compensation under FECA has the burden of proving the essential elements of his claim and found that Domby had not met his burden of proving that he was a federal employee. The ECAB denied Domby's request for reconsideration.

Domby filed suit in the district court. His complaint alleged that the Secretary unconstitutionally required him to produce evidence that he was a federal employee. Domby further claimed that the Secretary's investigation of the CIA's records was constitutionally inadequate because the Secretary failed to acknowledge that records of the drug experimentation program were kept in code. The district court dismissed Domby's complaint for lack of subject matter jurisdiction and for failure to state a claim upon which relief can be granted.

DISCUSSION

We lack jurisdiction to review the Secretary's denial of a claim for FECA benefits. 5 U.S.C. § 8128(b). We do have jurisdiction over constitutional claims; however, these claims must "be more than mere allegations included in the complaint to create jurisdiction where none would exist otherwise." Rodrigues v. Donovan, 769 F.2d 1344, 1348 (9th Cir.1985). In Rodrigues we found that the Secretary's prolonged delay in holding a post-termination hearing presented a cognizable due process claim. Id. at 1348 (citing Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 547, 105 S.Ct. 1487, 1496, 84 L.Ed.2d 494 (1985)). In Raditch v. United States, 929 F.2d 478 (9th Cir.1991), we took jurisdiction because a disabled employee's benefits were allegedly terminated without notice. We said that "due process principles require at least notice and an opportunity to respond in some manner, whether in writing or at an oral hearing, before termination [of a government-created property interest]...." Id. at 480.

In contrast to the plaintiffs in Rodrigues and Raditch, Domby has failed to state a cognizable due process claim. He asserts that the Secretary impermissibly placed upon him the burden of proving he was a federal employee. In doing so, the Secretary complied with her own regulations, which state that "[a] claimant has the burden of establishing by the weight of reliable, probative and substantial evidence that the claimed condition and the disability, if any, was caused ... by the claimant's Federal employment." 20 C.F.R. § 10.110(a). Assuming that Domby is attacking this regulation as so arbitrary and irrational as to violate the Due Process Clause, this claim is frivolous and is best interpreted as an attempt to create federal jurisdiction where none exists.

The same is true for Domby's claim that the Secretary's investigation of his claim was so inadequate as to violate the constitution. By statute the Secretary is obliged to complete "such investigation as [she] considers necessary." 5 U.S.C. § 8124. According to the Secretary's regulations,

[t]he Office [of Workers Compensation Programs] may, in its discretion, undertake to develop either factual or medical evidence for determination of the claim. For example, ... when relevant evidence is in the possession of the Federal government and not accessible to the claimant (e.g., a deactivated employing agency facility), the Office will undertake to develop the necessary evidence.

20 C.F.R. § 10.110(b). In this case the Secretary undertook to develop the necessary evidence by asking the CIA to search its records for information about Domby. The CIA found none. Domby argues that the CIA's fruitless search was due to the fact that victims of drug experimentation were assigned code names. Domby seems to suggest that the Secretary's failure to search the CIA's records for reference to an unknown code name was unconstitutional. His claim before the ECAB that close to 300 other individuals and institutions, plus his family members, also administered drugs to him would not cast upon the Secretary the duty of investigating all of them, especially since Domby came forward with nothing but general background information and his own assertions. Domby's criticism of the Secretary's investigation, like his claim that he need not produce any evidence, fails to spell out a cognizable constitutional claim.

Domby's complaint broadly asserted that the Secretary's procedures deprived him of due process. This allegation alone does not state a cognizable claim. In his opposition to the defendant's motion to dismiss, Domby argued for the first time that he was denied due process by the Secretary's failure to grant him a hearing. The Secretary's procedures gave Domby ample opportunity to submit evidence. Before denying his claim for benefits, the Secretary notified Domby of the need to submit proof of his employee status and granted him 30 days to provide this evidence. Domby did not do so. When the Secretary denied Domby's claim, Domby had the choice of requesting a hearing, requesting reconsideration of the Secretary's decision, or filing an appeal to the ECAB. 20 C.F.R. §§ 10.131, 10.138(b), 10.139. Although Domby submitted an untimely request for a hearing months before his claim was first denied, upon receiving the Secretary's decision Domby chose to appeal to the ECAB. The ECAB gave Domby's claim detailed consideration without hearing oral argument.

By asserting that the Secretary's failure to hold an oral hearing was...