Slugocki v. U.S. by and through Dept. of Labor

• Decision Date: 22 September 1997
• Docket Number: No. 96-7105-CIV.,96-7105-CIV.
• Citation: 988 F.Supp. 1443
• Parties: Albert SLUGOCKI, Plaintiff, v. The UNITED STATES of America, By and Through its DEPARTMENT OF LABOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, DIVISION OF FEDERAL EMPLOYEES' COMPENSATION, Defendant.
• Court: U.S. District Court — Southern District of Florida

988 F.Supp. 1443

Albert SLUGOCKI, Plaintiff, v. The UNITED STATES of America, By and Through its DEPARTMENT OF LABOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, DIVISION OF FEDERAL EMPLOYEES' COMPENSATION, Defendant.

No. 96-7105-CIV.

United States District Court, S.D. Florida.

September 22, 1997.

COPYRIGHT MATERIAL OMITTED

Arthur W. Tifford, Miami, FL, for Plaintiff.

Peter Outerbridge, Asst. U.S. Atty., Miami, FL, for Defendant.

ORDER AFFIRMING MAGISTRATE'S REPORT AND RECOMMENDATION AND DISMISSING CASE

GOLD, District Judge.

THIS CAUSE came before the Court Defendant's Motion to Dismiss (DE 12).

THE MATTER was referred to the Honorable Linnea R. Johnson, United States Magistrate. A Report and Recommendation dated August 14, 1997, has been filed, recommending that Defendant's Motion to Dismiss be GRANTED. The Plaintiff has filed an Objection to and Appeal from Report and Recommendation. The Court has reviewed the entire file and record herein, and being otherwise fully advised in the premises, it is

ORDERED AND ADJUDGED that United States Magistrate Linnea R. Johnson's Report and Recommendation of August 14, 1997, is hereby RATIFIED, AFFIRMED and APPROVED in its entirety. Plaintiff's Motion in Opposition to the Report of the Magistrate is DENIED. The Parties Joint Motion to Adjudicate Civil Action, filed September 16, 1997, is DENIED as moot. This case is DISMISSED WITH PREJUDICE.

REPORT AND RECOMMENDATION

JOHNSON, United States Magistrate Judge.

THIS CAUSE is before the Court on Defendant's Motion to Dismiss (D.E. No. 12). This matter was referred to the undersigned United States Magistrate Judge by the Honorable Ursula Ungaro-Benages, United States District Judge for the Southern District of Florida, and is now ripe for judicial review.

I. BACKGROUND

The Plaintiff, Albert Slugocki (hereinafter "Slugocki"), is a retired United States Army Special Forces Sergeant Major presently residing in Ft. Lauderdale, Florida. (Compl. ¶¶ 1, 9). Slugocki retired from the Army with a thirty percent (30%) disability in 1971 and joined the United States Marshall Service. In 1981, Slugocki retired from the Marshall Service with a medically documented service-connected disability. (Compl. ¶¶ 9, 10). Due to his government service and his disability, Slugocki started receiving disability compensation benefits from the Department of Labor, Office of Worker's Compensation Programs, Division of Federal Employees' Compensation (hereinafter the "OWCP") in 1981. (Compl. ¶ 10).

On January 11, 1995, the OWCP issued an administrative action reducing Slugocki's disability compensation by approximately one-third of a percent, making Slugocki's monthly payment twelve hundred dollars ($1,200) per month.¹ (Compl. ¶ 11). Thereafter, on January 12, 1995, the OWCP, believing that it had overpaid Slugocki, notified Slugocki of its intent to order Slugocki to forfeit to the government two hundred seventeen thousand eight hundred forty-three dollars and two cents ($217,843.02) incident to the overpayments.² (Compl. ¶ 12).

On February 16, 1996, a jury for the United States District Court for the Southern District of Florida entered guilty verdicts against Slugocki on nine counts of Federal Mail Fraud and six counts of making false statements in annual Federal Employees' Compensation Act (hereinafter "FECA") reports.³ (Compl. ¶ 13). On March 15, 1996 the OWCP, issued an administrative action terminating Slugocki from the FECA program, stating that Slugocki pled guilty to the above criminal charges. (Compl. ¶¶ 14, 15, 16). The effective date of the termination of benefits was February 16, 1996. (Id.) The OWCP is alleged to have based its administrative action on 5 U.S.C. § 8148(a) which states in part,

any individual convicted of a violation of Section 1920 of Title 18, or any other Federal or State criminal statute relating to fraud in the application for or receipt of any benefits ..., shall forfeit (as of the date of such conviction) any entitlement to any benefits such individual would otherwise by entitled to under this subchapter or subchapter III for any injury occurring on or before the date of such conviction.⁴

5 U.S.C. § 8148(a). On April 2, 1996, Slugocki requested an oral hearing of the OWCP's decision to terminate his benefits, which he later amended on April 26, 1996. (Compl. ¶ 17). Slugocki alleges that six months went by without the OWCP taking any administrative action thereby converting the agency's inaction into a denial of hearing by the OWCP. (Compl. ¶ 17).

II. STANDARD OF REVIEW

Defendant's Motion to Dismiss is predicated on Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. Finding only Rule 12(b)(1) applicable herein, the following analysis shall be so limited. A 12(b)(1) Motion to Dismiss raises the question of the federal court's subject matter jurisdiction, a question which may be inquired into at any stage of the proceedings. Fitzgerald v. Seaboard Sys. R.R., Inc., 760 F.2d 1249 (11th Cir.1985) (per curiam); Menchaca v. Chrysler Credit Corp., 613 F.2d 507, 511 (5th Cir.), cert. denied, 449 U.S. 953, 101 S.Ct. 358, 66 L.Ed.2d 217 (1980). The motion itself may be directed at two different types of defects. A "facial attack" on the complaint "requires the court merely to look and see if plaintiff has sufficiently alleged a basis of subject matter jurisdiction ..." Id. at 511. In this respect the allegations of the complaint are taken as true. Id. A "factual attack", on the other hand, "challenges the existence of subject matter jurisdiction in fact, irrespective of the pleadings." Id. In this posture, the allegations of the complaint, although taken as true, may be tested by extraneous evidence. Id. In other words, "no presumptive truthfulness attaches to plaintiff's allegations and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims." Lawrence v. Dunbar, 919 F.2d 1525, 1528-29 (11th Cir.1990) (per curiam). When the attack is factual, plaintiff bears the burden of proving that jurisdiction does in fact exist. Menchaca, 613 F.2d at 511.

III. LEGAL ANALYSIS

As the Complaint makes clear, all elements of Slugocki's claim stem solely from the administrative termination of his FECA benefits, which termination became effective February 16, 1996, the day he was found guilty of 15 counts of fraud relating to his receipt of FECA benefits. Essentially, Slugocki charges the Government with five errors which he contends all rise to Constitutional dimensions: (1) the erroneous citation to a guilty plea rather than a guilty verdict rendered against Slugocki following a jury trial; (2) an alleged delay in Slugocki's request for an administrative hearing; (3) the so-called "non-finality" of Slugocki's criminal conviction; (4) the ex-post facto application of 5 U.S.C. § 8148(a); and, (5) the supposed double jeopardy effect of 5 U.S.C. § 8148(a).⁵

As the United States mounts a "factual attack" challenging the existence of subject matter jurisdiction, Slugocki bears the burden of showing that subject matter jurisdiction does, indeed, exist. Menchaca, 613 F.2d at 511. Here, Slugocki has failed to meet this burden.

In Woodruff v. U.S. Department of Labor, 954 F.2d 634, 636-37 (11th Cir.1992) the

Eleventh Circuit defined the prism through which the issues before us must be viewed. There, the Court described Section 8148 as a door-closing provision, noting that "[t]he Secretary's decision to award or deny [or terminate] compensation to a particular claimant is not subject to judicial review." The only exception to this basic proposition is when the claim involved raises a real and substantial constitutional question. In these instances federal courts retain jurisdiction. Id. at 639. This is because the nature of constitutional questions renders them unsuitable for determination in an administrative hearing, making access to the courts essential to their disposition. Rodrigues v. Donovan, 769 F.2d 1344, 1347 (9th Cir.1985). However, simply alleging a constitutional claim is not adequate to overcome a door-closing statute. Reid v. Engen, 765 F.2d 1457, 1461 (9th Cir.1985). Thus, the threshold issue on each of Slugocki's five claims is whether "the casting of [his] claim in constitutional terms is a mere `rhetorical cover' for a claim for benefits that the door-closing statutes are intended to block." Czerkies v. U.S. Dept. of Labor, 73 F.3d 1435, 1442 (7th Cir.1996). If so, this court lacks jurisdiction over the claim. If not, then the question becomes whether the "constitutional claim [is] insubstantial" Id. at 1442, or without merit as a matter of law.

1. REFERRAL TO A GUILTY PLEA AS OPPOSED TO A GUILTY VERDICT

It is elementary that the mischaracterization of a guilty verdict as a guilty plea as a basis for the decision to terminate disability benefits does not rise to the level of a constitutional claim. Slugocki appears to concede as much when he fails to address this argument anywhere in his Response brief. Accordingly, this Court finds the subject claim fails to rise to a constitutional level which would warrant the exercise of jurisdiction.

2. SIX MONTH PERIOD BETWEEN FILING OF NOTICE OF APPEAL AND NOTICE OF APPEAL

Slugocki makes the argument that the six month delay between his request for a hearing regarding the termination of his disability benefits and the notice of hearing constitutes a de facto denial of the appeal and consequent violation of due process. In his Opposition to Defendant's Motion to Dismiss, Slugocki details the treatment which he describes as "callous" that he received at the hands of the OWCP and posits that further administrative review would be futile.

Courts have recognized that "at some point, a delay in the post-termination hearing would become a constitutional violation." Rodrigues v. Donovan, 769 F.2d 1344, 1348 (9th Cir.1985). Inherent in any bureaucracy, however, is a certain amount of...