Stuto v. Fleishman

• Citation: 164 F.3d 820
• Decision Date: 21 January 1999
• Docket Number: No. 97-6305,97-6305
• Parties: Michael J. STUTO, Plaintiff-Appellant, v. Seymour FLEISHMAN, Thomas Pavloski, Kenneth Hamlett, New York City Office of the United States Department of Labor's Office of Workers' Compensation Programs, U.S. Department of Labor, and United States of America, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Page 820

164 F.3d 820

Michael J. STUTO, Plaintiff-Appellant, v. Seymour FLEISHMAN, Thomas Pavloski, Kenneth Hamlett, New

York City Office of the United States Department of Labor's

Office of Workers' Compensation Programs, U.S. Department of

Labor, and United States of America, Defendants-Appellees.

No. 97-6305.

United States Court of Appeals, Second Circuit.

Argued May 13, 1998.

Decided Jan. 21, 1999.

Phillip G. Steck, Cooper, Erving, Savage, Nolan & Heller, LLP, Albany, NY, for Plaintiff-Appellant.

Rebecca DeRuyter, U.S. Department of Labor, Office of the Solicitor, Washington, DC (Thomas J. Maroney, United States Attorney, Thomas Spina, Assistant U.S. Attorney, Northern District of New York, Albany, NY, of counsel ), for Defendants-Appellees.

Before: FEINBERG and WALKER, Circuit Judges, and SHADUR, ^* Senior District Judge.

WALKER, Circuit Judge:

Plaintiff-appellant Michael J. Stuto appeals from the judgment entered December 2, 1997, by the United States District Court for the Northern District of New York (Lawrence E. Kahn, Judge ), dismissing his complaint pursuant to Fed.R.Civ.P. 12(b)(6). This judgment followed upon two orders of the district court: the first, issued by Judge Con C. Cholakis, dismissed most of Stuto's claims; Judge Lawrence E. Kahn later dismissed the balance of the complaint. Stuto's complaint alleged a Bivens-type damages claim against defendants-appellees Seymour Fleishman, Thomas Pavloski, and Kenneth Hamlett for violation of his right to due process under the Fifth Amendment, as well as claims against the United States, the United States Department of Labor, and the New York City branch of the Office of Workers' Compensation Programs ("OWCP") (collectively the "government" or "government defendants") under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346, 2671 et seq., for misrepresentation, fraud, and negligent and intentional infliction of emotional distress arising out of the improper termination of Stuto's disability benefits under the Federal Employees' Compensation Act ("FECA"), 5 U.S.C. § 8101 et seq. Stuto appeals only from Judge Cholakis's dismissal of his due process claim and Judge Kahn's dismissal of his FTCA claim for intentional infliction of emotional distress. Because we hold that Stuto's due process rights were not violated and that he has failed to state a claim for intentional infliction of emotional distress, we affirm.

BACKGROUND

Stuto's complaint alleges the following facts. In September 1985, Stuto, a mailhandler employed by the United States Postal Service in Albany, New York, suffered a disabling work-related injury to his lower back that required surgery. Two months later he began receiving workers' compensation benefits pursuant to FECA. Four years later, in September 1989, Stuto was given medical clearance for limited job duty of three hours a day. Soon after starting a job repairing damaged mail, his back injury worsened and his physician, Dr. Guidarelli, declared him totally disabled. In November 1989, a Dr. Fay performed a "fitness for duty exam" for the Postal Service and determined that Stuto "would benefit from a ... Work Assessment Conditioning Center." Stuto attended the program, but his condition did not improve. Stuto continued to receive disability payments.

On March 18 and June 26, 1991, at the request of the Department of Labor, Stuto was examined by Drs. Fay and Kavanaugh. Both concluded that Stuto was capable of limited sedentary work. Over the next year Stuto accepted new job offers from the Postal Service, but, for reasons not stated in the complaint, he never actually entered into any of these jobs.

On May 29, 1992, Fleishman of OWCP sent a letter to Stuto advising him that OWCP had determined that a new job offer from the Postal Service was suitable for Stuto in light of the medical evidence concerning Stuto's ability to work. He gave Stuto "30 days from the receipt of this letter to either accept the job or to provide a reasonable, acceptable explanation for refusing the offer." On July 2, Stuto sent a letter to OWCP stating that he accepted the job offer but also that he had been advised by his physicians, Drs. Guidarelli and Patel, that he was totally disabled. He requested that OWCP send him to a medical referee to resolve any conflict. He also objected to several of the medical reports in his file as not having been obtained in accordance with FECA regulations.

Meanwhile, on July 1 Stuto had submitted to a "fitness for duty" exam by a Dr. Rogers, as required by the Postal Service. Dr. Rogers sent a medical report to the Postal Service on July 2, stating that in his opinion Stuto was totally disabled and incapable of working. That report allegedly was forwarded to OWCP by the Postal Service on July 7, accompanied by a memorandum from the Postal Service stating that it needed clarification regarding Stuto's current medical condition before he could report for work. Because Stuto's medical condition remained unclear, the Postal Service did not request that he report for work, and Stuto never did so.

Stuto did not receive his scheduled worker's compensation payment for July. In a telephone call on July 29, Fleishman informed Stuto's brother, Peter Stuto, that Stuto's disability benefits were "terminated because he is not working." According to Stuto's complaint, Fleishman denied that Dr. Rogers's "fitness for duty" report had been received by OWCP.

OWCP then sent Stuto an order dated August 5, declaring that his benefits had been terminated because "[i]n a statement ... dated July 2, 1992, [Stuto] accepted the job offer but then refused it based on the advice of his physician." Attached to the order was a letter explaining, inter alia, that the "decision [to terminate his benefits] was based on all evidence of record and on the assumption that all available evidence was submitted. If you disagree with the decision, you may follow any one of the courses of action outlined on the attached appeal rights." The "appeal rights" referred to an enclosed memorandum entitled "Federal Employees' Compensation Act Appeal Rights."

According to Stuto, the individual defendants at OWCP continued to deny that they had received Dr. Rogers's report, even though Stuto's OWCP file indicates that the OWCP received the report on July 7, that its substance was communicated to the defendants several times, and that a second copy of the report was sent to OWCP on August 5. Moreover, the individual defendants refused to reconsider their decision to terminate Stuto's benefits in light of the report. In response to Stuto's complaint that he would be in a difficult financial condition if his benefits did not resume, Pavloski allegedly suggested that Stuto request another "fitness for duty exam" and tell the doctor that he could do the job. Pavloski told Stuto that he could appeal the termination, but that "his case was very weak, and if the appeal were lost, the Post Office would never offer him another job." Stuto also alleges that the individual defendants conspired to put Dr. Rogers's report into Stuto's file after the date of the termination "in an effort to sabotage Mr. Stuto's right to appeal to the Employees' Compensation Appeals Board ['ECAB']."

On August 10, 1992, Stuto filed an appeal with the ECAB for review of the decision to terminate his benefits. On November 4, 1992, the Director of the OWCP filed a motion to set aside the decision to terminate and to remand the case. He contended that OWCP had not followed proper procedures in two ways: (1) it failed to notify Stuto that the medical examination by Dr. Kavanaugh was for the purpose of resolving a conflict in the medical evidence, and therefore Dr. Kavanaugh's report could not be used to resolve the conflict, and (2) it failed to give Stuto appropriate notice prior to terminating his benefits, as required by FECA Bulletin No. 92-19. The Director stated that "[o]n remand, the Office will reinstate appellant's In November of 1992, prior to the ECAB's decision to remand, Stuto filed an action in the United States District Court for the Northern District of New York alleging that the Secretary of Labor violated his rights under the Due Process Clause and FECA by improperly terminating his disability benefits. Stuto moved for a preliminary injunction reinstating his disability benefits. In response, the government agreed to reinstate his benefits retroactively, and the motion for a preliminary injunction was withdrawn. Following the ECAB's remand of the case, an impartial medical examination determined that Stuto was totally disabled; his benefits have continued to the present day.

                monetary benefits, retroactive to July 11, 1992, ... will ensure that Dr. Kavanaugh's June 26, 1991 report is excluded from further review in appellant's claim[,] and will follow proper procedures to resolve the conflict of medical evidence."   On January 11, 1993, the ECAB granted the Director's motion to remand.  See In the Matter of Michael Stuto, No. 92-1978 (ECAB January 11, 1993)
                

On July 7, 1994, Stuto filed this action in the United States District Court for the Northern District of New York. He alleged a Bivens-type claim against the individual defendants Fleishman, Pavloski and Hamlett, for violation of his Fifth Amendment right to due process, see Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 390, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971) (recognizing implied cause of action for violation of plaintiff's Fourth Amendment rights), and a claim against the government defendants under the Federal Tort Claims Act, 28 U.S.C. §§ 1346, 2671 et seq., for misrepresentation, fraudulent denial of benefits, and negligent and intentional infliction of emotional distress. The government moved to dismiss the action pursuant to Fed.R.Civ.P. 12(b)(6). Judge Cholakis dismissed all of Stuto's claims except for the claims for negligent and intentional infliction of emotional distress. The case was...