United States v. Eisenberg, Civil Action No. 13-1629 (BAH)

• Decision Date: 15 December 2015
• Docket Number: Civil Action No. 13-1629 (BAH)
• Citation: 149 F.Supp.3d 71
• Parties: United States of America, Plaintiff, v. Michael D.J. Eisenberg, Defendant.
• Court: U.S. District Court — District of Columbia

149 F.Supp.3d 71

United States of America, Plaintiff,

v.Michael D.J. Eisenberg, Defendant.

Civil Action No. 13-1629 (BAH)

United States District Court, District of Columbia.

Signed December 15, 2015

Darrell C. Valdez, U.S. Attorney's Office, Washington, DC, for Plaintiff.

Michael D.J. Eisenberg, Washington, DC, pro se.

MEMORANDUM OPINION

BERYL A. HOWELL, United States District Judge

The United States initiated this suit to recover funds under Section 8132 of the Federal Employees' Compensation Act (“FECA”), 5 U.S.C. § 8101 et seq. , from defendant Michael D.J. Eisenberg, who is an attorney licensed to practice law in the District of Columbia and is proceeding pro se in this action. Eisenberg successfully obtained a settlement award for his former client, and now-third-party defendant, Gregory Thompson, in a lawsuit captioned, Thompson v. Wackenhut Corp. , No. 1:09–cv–01113–GBL–TRJ (E.D.Va. Oct. 2, 2009) (“Wackenhut suit”), for injuries Thompson suffered from a slip-and-fall accident. Eisenberg failed, however, to refund to the government the amount of workmen's compensation paid to Thompson under the FECA. The United States alleges that, under 5 U.S.C. § 8132, Eisenberg was required to refund to the United States funds totaling $96,295.15 prior to disbursing the settlement funds obtained in the third-party suit. Pending before the Court are three motions: (1) the United States' Motion for Partial Judgment on the Pleadings and for Partial Summary Judgment (“Pl.'s Mot.”), ECF No. 26; (2) Eisenberg's Motion for Leave to File Counterclaim Against the United States of America (“Def.'s Counterclaim Mot.”), ECF No. 62; and (3) Eisenberg's Opposed Motion to Amend Answer (“Def.'s Answer Mot.”), ECF No. 86. For the reasons discussed below, Eisenberg's motions are denied, and the United States' motion is granted in part and denied in part.¹

I. BACKGROUND

The following facts derive from the whole record, including the parties' various statements of material facts, briefs, exhibits, and other evidence in the record.

A. FECA Claim

Gregory Thompson, an employee of the U.S. Department of the Navy, was injured in a slip-and-fall accident on December 6, 2007. Pl.'s Statement Material Facts Supp. Mot. J. Pleadings & Partial Summ. J (“Pl.'s SMF”) ¶ 7, ECF No. 26-1; Def.'s Material Facts (“Def.'s SMF”) at 7, ECF No. 85; Def.'s Counterclaim Against the United States of America (“Def.'s Proposed Counterclaim”) ¶ 10, ECF No. 62-2. After the accident, pursuant to the FECA, Thompson filed a claim with the Department of Labor (“DOL”) Office of Workers' Compensation Programs (“OWCP”) for medical benefits and lost wages related to the injuries caused by the accident. Pl.'s SMF ¶ 8; Def.'s SMF at 7.² By letter dated February 19, 2008, Thompson received notification from OWCP that his claim had been accepted. Def.'s Mem. Supp. Opp'n Pl.'s Mot. Partial J. Pleadings & Partial Summ. J. (“Def's Mem.”), Ex. A (“Thompson FECA Claim Acceptance Notice”), ECF No. 84-1. Over a year later, by letter dated May 28, 2009, on which Eisenberg is copied as Thompson's attorney, Thompson received notice from OWCP that his “claim for medical and wage loss benefits has been terminated effective 06/07/2009.” Def.'s Mem., Ex. B (“Thompson FECA Claim Termination Notice”), ECF No. 84-2. Thus, OWCP disbursed compensation to Thompson until at least June 7, 2009, when it purportedly terminated his benefits. Id. ; see also Compl. ¶ 8 (alleging OWCP disbursed compensation to Thompson until June 7, 2009); Pl.'s SMF ¶ 9 (same).³

Thompson, represented by Eisenberg, requested reconsideration of OWCP's decision to terminate his benefits, but OCWP denied this request on July 7, 2010. See Def.'s Mem., Ex. C (“Thompson FECA Claim Reconsideration Notice”), ECF No. 84-3.

Notwithstanding OWCP's notification of termination of Thompson's benefits, compensation was apparently paid on behalf of Thompson, at least to medical providers, after June 7, 2009. For example, DOL payment history reports in the record reflect that while Thompson's lost wages compensation stopped after June 6, 2009, see Def.'s Mem., Ex. D (“October 8, 2010 Letter”) at 2–6 (attached report of “Compensation Payment History”), ECF No. 84-4; id. , Ex. I (“October 4, 2011 Letter”) at 50–53 (attached “Payment History Inquiry Report”), ECF No. 84-8; Pl.'s Opp'n Def.'s Mot. Amend Answer (“Pl.'s Opp'n Answer”), Ex. 8 at 46–49 (Wackenhut , Def. United States' Mot. Dismiss or Summ. J. (“Pl.'s Wackenhut Mot.”), Ex. D, ECF No. 8-2) (“Payment History Inquiry Report”), ECF No. 88-1, he continued to receive medical benefits through February 10, 2011, see October 4, 2011 Letter at 40–49 (attached “Bill Pay History Report” showing medical benefits disbursed through February 10, 2011); see also Pl.'s Opp'n Answer, Ex. 8 at 40–45 (Pl.'s Wackenhut Mot., Ex. C, ECF No. 8-2) (“Bill Pay History Report” showing medical benefits disbursed through August 27, 2009).

B. Third Party Lawsuit

On October 2, 2009, Thompson, represented by Eisenberg, filed suit in the U.S. District Court for the Eastern District of Virginia against a third party, Wackenhut Services, Inc. (“Wackenhut”), and the United States for negligence relating to Thompson's December 6, 2007 slip-and-fall accident. Wackenhut , Compl., ECF No. 1;⁴ see also Pl.'s SMF ¶¶ 10–11; Def.'s SMF at 7; Def.'s Proposed Counterclaim ¶ 10. On December 7, 2009, the United States filed a Motion to Dismiss, or Alternatively, for Summary Judgment (“Pl.'s Wackenhut Mot.”), Wackenhut , ECF No. 7, supported by a Declaration of Antonio A. Rios (“Rios Decl.”), id ., ECF No. 8-1, Deputy Director for OWCA, together with a detailed accounting, id . Exs. C & D. Rios attested: “Thompson received a total of $94,261.33 disability compensation from January 22, 2008 until June 6, 2009. OWCP also paid $29,451.75 for medical treatment related to the accepted conditions.” Rios Decl. ¶ 5; see Pl.'s Opp'n Answer at 13 n.9. The court granted the United States' motion on January 15, 2010, dismissing the United States from the suit without prejudice. Wackenhut , Order, ECF No. 20.

Thompson and Wackenhut then settled the negligence action for $675,000. Pl.'s SMF ¶ 12; Def.'s SMF at 7. On November 5, 2010, Eisenberg, on behalf of Thompson, filed a Notice of Settlement in the Wackenhut suit, Wackenhut , ECF No. 234, which was followed by a joint Stipulation of Dismissal With Prejudice, on November 16, 2010, id. , ECF No. 235.

The settlement award was issued jointly to Thompson and Eisenberg's law firm. See Def.'s Mem., Ex. E (“Third-Party Lawsuit Settlement Letter”) at 2, ECF No. 84-5. Eisenberg admits that “[u]pon receiving the $675,000 from the settlement, [he] distributed the proceeds to Mr. Thompson and paid himself an attorney's fee.” Pl.'s SMF ¶ 14; Def.'s SMF at 7.

C. Government Refund-Related Correspondence

On October 7, 2010, at Eisenberg's request, see Def.'s SMF ¶ 5 (asserting that “[d]efendant did request, as a confirmation what, if any funds, were due through Mr. Thompson”), Thompson wrote a letter to OWCP “requesting the total amount of compensation paid” by OWCP for his case, October 8, 2010 Letter at 1. By letter dated October 8, 2010, Gloria Watson, a Claims Examiner at OWCP, responded to Thompson, attaching “a copy of [his] compensation payment history.” Id.⁵ Handwritten on one copy of the October 8, 2010 letter submitted by Eisenberg in this case, on the bottom right-hand corner, is the phrase, “Workers Comp Payback $52,900.45,” along with a second handwritten number “52,900.45” a few lines below the phrase. Id. The attached payment history printout of Thompson's “Compensation Payment History,” which appears to have been generated that day from the “Employment Standards Administration Federal Employees' Compensation System,” id. at 2, shows net total payments of $94,261.33 from January 22, 2008 through June 6, 2009, id. at 6.

Thompson forwarded Eisenberg a copy of the October 8, 2010 letter without any handwriting, via email on October 14, 2010. Def.'s Mem., Ex. U (“October 14, 2010 Email”), ECF No. 84-19. Eisenberg replied to Thompson the same day, stating: “This appears to include your paycheck as well. You need to contact HR and ask them what benefits you have to payback [sic] (all of them or just medical and/or paycheck, etc) and an exact number of what you owe.” Id.

Over six months after the settlement of the Wackenhut suit, Eisenberg submitted, by letter dated June 9, 2011, a Long Form Statement of Recovery (“SOR”) notifying DOL, Office of the Solicitor (“DOL-SOL”), that Thompson had “recently” received a third-party damage award in a settlement against the third-party involved in Thompson's OWCP claim. Pl.'s Mem. Supp. Mot. Partial J. Pleadings & Partial Summ. J. (“Pl.'s Mem.”), Ex. 1 (“June 9, 2011 Letter”), ECF No. 26-2; Def.'s Mem., Ex. F (“June 9, 2011 Letter”), ECF No. 84-6.

Despite being privy both to the Wackenhut suit's Rios Declaration, which indicated that compensation totaling $123,713.08 had been paid to Thompson, and to DOL-SOL's October 2010 letter, which stated that compensation paid to Thompson through June 6, 2009 totaled $94,261.33, Eisenberg listed in the SOR an amount of $70,533.93 in OWCP disbursements to Thompson and an amount of $17,633.48 for the government-allowed attorney's fee, reflecting a balance of $52,900.45 to be refunded to OWCP. See June 9, 2011 Letter. According to Eisenberg, Thompson had “instructed [him] that the amount to be used in the set-aside calculation was $70,533.93,” Answer ¶ 18(b); Def.'s First Amended Answer (“Def.'s Proposed Answer”) at ¶ 18(b), ECF No. 86-3, and Thompson had relied on the government “to provide him with accurate information to provide Mr. Eisenberg,” Answer ¶ 18(c); Def.'s Proposed Answer ¶ 18(c); see also Def.'s Mem. at 6 n.8 (“Defendant asserts that Mr. Thompson informed Defendant of this value after Mr. Thompson spoke with DOL.”), ECF No. 83-2. The SOR triggered a lengthy series of communications between Eisenberg and DOL.

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