Agustin v. Su

[2] 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA [5] 6 REMIGIO I. AGUSTIN, Case No. 23-cv-02131-JD 7 Plaintiff, ORDER RE DISMISSAL v. [8] 9 JULIE SU, Defendant. [11] 12 Pro se plaintiff Remigio Agustin alleges that defendant Julie Su, in her capacity as 13 Secretary of the U.S. Department of Labor, violated the Federal Employee Compensation Act 14 (FECA), 5 U.S.C. § 8102 et seq., and the Due Process Clause of the Fifth Amendment to the U.S. 15 Constitution, by denying him a “right to a fair and full adjudication” of his claim for disability 16 benefits. Dkt. No. 1 at 27. He seeks a nationwide preliminary injunction, declaratory relief, 17 damages, and a writ of mandamus. See Dkt. Nos. 1 & 7. The Secretary asks to dismiss the 18 complaint for lack of standing and lack of subject matter jurisdiction pursuant to Federal Rules of 19 Civil Procedure 12(b)(1) and 12(b)(6). Dismissal is granted with leave to amend. 20 BACKGROUND 21 As alleged in the complaint, Agustin is a former civilian employee of the U.S. Navy who 22 suffered severe medical injuries when he fell and struck his head on a concrete floor in the 1990s. 23 Dkt. No. 1 at 2. The Office of Workers’ Compensation Programs (OWCP) within the Department 24 of Labor accepted his FECA claim and began administering disability benefits. Id. 25 Reimbursements for Agustin’s psychiatric treatment by Dr. Vasdeep Kahlon were 26 provided from 1995 until 2020, when OWCP stopped paying Dr. Kahlon’s bills. Id. at 7 . After 27 Agustin advised his Claims Examiner in September 2022 that Dr. Khalon declined to see him due 1 been paid in full because the amount billed exceeded the Federal Government Fee Schedule, and 2 that others were not paid because Dr. Kahlon’s license with the government had expired, Dkt. 3 Nos. 12 ¶ 4; 12-1, Attach. 6. OWCP provided various instructions to Agustin and Dr. Kahlon 4 about how to get the FECA reimbursements back on track. See Dkt. No. 12-1, Attachs. 6 & 8. 5 In October 2022, Agustin received a notice stating that he was required to provide an 6 updated medical assessment form to OWCP within 30 days, and that failure to do so “may impact 7 [his] benefits.” Dkt. Nos. 1 at 7; 1-3 at ECF p. 57. Agustin alleges that, because the agency had 8 stopped paying Dr. Kahlon, he was “unable and failed to submit” the required assessment form. 9 Dkt. No. 1 at 7. 10 In February 2023, OWCP scheduled Agustin for a telephonic Second Opinion examination 11 with a government-approved physician, pursuant to 5 U.S.C. § 8123 (a), and created a Statement of 12 Accepted Facts (SOAF) concerning Agustin’s injuries for the examiner’s reference. See Dkt. 13 Nos. 1 at 7-8; 12-1, Attachs. 12 &13. Agustin alleges that the SOAF was “inaccurate and 14 incomplete,” and that the agency did not provide him with a copy in advance of the exam. Dkt. 15 No. 1 at 7-8. 16 Agustin did not attend the examination. He says that he was unable to attend due to 17 unclear instructions from OWCP, and because of his symptoms. Dkt. No. 1 at 8. OWCP issued a 18 Notice of Proposed Suspension of Benefits requiring him to submit a justification for his failure to 19 attend the examination within 14 days. Dkt. No. 12-1, Attach. 18. The Notice advised that 20 complaints of illness did not suffice because the hearing was telephonic, and that his psychiatrist 21 failed to submit adequate evidence of his continued disability. Id. Dr. Kahlon subsequently 22 submitted a letter attesting to Agustin’s disability, and Agustin submitted a response in which he 23 argued that the examination was unlawful. See Dkt. No. 12-1, Attachs. 19 & 20. 24 On April 7, 2023, the OWCP issued a Notice of Decision suspending Agustin’s FECA 25 benefits due to his failure to attend the Second Opinion examination, pursuant to 5 U.S.C. 26 § 8123(d). Dkt. No. 12-1, Attach. 21. The Notice advised that benefits would resume if Agustin 27 “fully cooperated with the examination.” Id. at 2. The Notice also presented options for 1 Agustin did not pursue an administrative appeal. Instead, he filed this lawsuit. Dkt. No. 1. 2 Three days later, his benefits were reinstated with retroactive effect and his SOAF was updated to 3 include the fact that Agustin hit his head when he fell. Dkt. Nos. 12 ¶ 15; 21-1, Attach. 23. 4 The agency then scheduled Agustin for another Second Opinion exam and again advised 5 him that failure to attend could result in suspension of benefits. Dkt. No. 12-1, Attachs. 23 & 26. 6 Agustin submitted a responsive letter in which he argued that the examination was unlawful, 7 requested accommodations for the examination under the Americans with Disabilities Act, and 8 asked that certain medical conditions be accepted and included in his SOAF. Id., Attach. 24. 9 Agustin again did not attend the Second Examination, and the agency sent another Notice of 10 Proposed Suspension. Id., Attachs. 27 & 28. 11 On July 20, 2023, the agency advised Agustin that it was not pursuing the suspension due 12 to “the current medical evidence, including evidence recently received,” and that it was not 13 “pursuing the scheduling of a second opinion examination at this time.” Id., Attach. 29. 14 LEGAL STANDARD 15 The Secretary principally contests subject matter jurisdiction. “Unless the jurisdictional 16 issue is inextricable from the merits of a case, the court may determine jurisdiction on a motion to 17 dismiss for lack of jurisdiction under Rule 12(b)(1) of the Federal Rules of Civil Procedure.” 18 Robinson v. United States, 586 F.3d 683, 685 (9th Cir. 2009) (internal citation and quotation 19 marks omitted). See Friends of Del Norte v. Cal. Dep’t of Transp., No. 18-CV-00129-JD, 2020 20 WL 1812175 , at *1 (N.D. Cal. Apr. 9, 2020). “A Rule 12(b)(1) jurisdictional attack may be facial 21 or factual.” Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). “In a facial 22 attack, the challenger asserts that the allegations contained in a complaint are insufficient on their 23 face to invoke federal jurisdiction. By contrast, in a factual attack, the challenger disputes the 24 truth of the allegations that, by themselves, would otherwise invoke federal jurisdiction.” Id. “In 25 resolving a factual attack on jurisdiction, the district court may review evidence beyond the 26 complaint without converting the motion to dismiss into a motion for summary judgment.” Id. 27 (citation omitted). “Once challenged, the party asserting subject matter jurisdiction has the burden 1 DISCUSSION 2 Agustin’s complaint alleges a number of grievances against OWCP dating back to the 3 early 1990s. Reviewing it with the liberality afforded pro se litigants, the Court construes it to 4 allege a cause of action under the Administrative Procedures Act for violation of FECA, and a 5 constitutional claim for violation of the Fifth Amendment’s guarantee of procedural due process, 6 on the following theories: 7 • The agency suspended his FECA benefits without due process. Dkt. No. 1 at 25. 8 • Requiring a Second Opinion examination was a violation of FECA and of due process, 9 because the agency had previously determined that he was eligible for benefits. See Dkt. 10 No. 1 at 13-14; Dkt. No. 7. 11 • The agency denied him notice and an opportunity to be heard concerning the content of 12 the SOAF(s) prepared for the Second Opinion examination. See Dkt. No. 1 at 13; 16-17. 13 • The agency deprived him of his “constitutionally protected right to medical care and 14 treatment under FECA” by failing to pay Dr. Kahlon’s bills. Dkt. No. 1 at 23. 15 Assuming for purposes of discussion that Agustin has standing to bring his claims, the case 16 must be dismissed because FECA bars review of the Secretary’s benefits determinations. “FECA 17 establishes a comprehensive and exclusive workers’ compensation scheme for federal employees.” 18 Markham v. United States, 434 F.3d 1185, 1187 (9th Cir. 2006). “The Secretary has the authority 19 to administer and decide all questions under FECA, 5 U.S.C. § 8145 , and may formulate rules and 20 regulations necessary to administer the Act, 5 U.S.C. § 8149 .” Id. “[C]ourts do not have 21 jurisdiction to review FECA claims challenging the merits of benefit determinations.” Id. See [22] 5 U.S.C. § 8128 (b) (“The action of the Secretary or his designee in allowing or denying a payment 23 under this subchapter is … not subject to review by another official of the United States or by a 24 court by mandamus or otherwise.”). 25 “The courts have fashioned two narrow exceptions to this absolute jurisdictional bar. 26 Courts retain jurisdiction to consider constitutional challenges or claims for violation of a clear 27 statutory mandate or prohibition.” Markham, 434 F.3d at 1187 (citing Staacke v. U.S. Sec’y of 1 Agustin’s complaint does not fall within either of these narrow exceptions. None of 2 Agustin’s grievances constitute a violation of a “clear statutory mandate or prohibition.” 3 Markham, 434 F.3d at 1187 . To the contrary, the statute authorizes the Secretary to order re4 examination of a beneficiary such as Agustin. See 5 U.S.C. § 8123 (a) (“An employee shall submit 5 to examination by a medical officer of the United States, or by a physician designated or approved 6 by the Secretary of Labor, after the injury and as frequently and at the times and places as may be 7 reasonably required.”). It also provides that failure to “submit” to such an examination will result 8 in the suspension of benefits. Id. § 8123(d). To permit judicial review of the Secretary’s 9 intermediate decision to investigate the merits of his claim would be akin to reviewing the 10 Secretary’s ultimate benefits determination, and therefore an end-run around Congress’s decision 11 to vest sole discretion over benefits determinations with the Secretary. 12 Agustin’s constitutional claim cannot move forward either. Judicial review is not available 13 when the plaintiff simply rephrases a challenge to an unreviewable benefits determination with 14 constitutional “[r]hetoric.” Markham, 434 F.3d at 1186 . In Markham, the plaintiff had challenged 15 a threatened suspension of benefits if he did not attend vocational rehabilitation at the direction of 16 the agency, as well as certain frustrating features of the OWPC bureaucracy. See id. at 1186-87 . 17 Our circuit held that, “Pure policy decisions concerning the administration of FECA are entirely 18 within the discretion of the Secretary,” and that the due process claims were “wholly insubstantial, 19 rendering the federal courts without subject matter jurisdiction.” Id. at 1188 . 20 As pled, Agustin’s constitutional claims are similarly “insubstantial” and so insufficient to 21 invoke this Court’s jurisdiction. Id. “Procedural due process claims require (1) a deprivation of a 22 constitutionally protected liberty or property interest, and (2) a denial of adequate procedural 23 protections.” Kildare v. Saenz, 325 F.3d 1078, 1085 (9th Cir. 2003) (citation omitted). Agustin 24 has not identified any authority suggesting that he has a constitutionally protected property interest 25 in receiving treatment from Dr. Kahlon specifically, or that he was temporarily deprived of that 26 right without adequate procedural protections. The Court lacks jurisdiction to hear complaints 27 about administrative matters such as “claims processing and customer service.” Markham, 434 1 To be sure, Agustin has a recognized property interest in his FECA benefits, and “due 2 || process principles require at least notice and an opportunity to respond in some manner, whether 3 || in writing or at an oral hearing, before termination of that interest.” Raditch v. United States, 929 4 |} F.2d 478, 480 (9th Cir. 1991). But nothing in the record suggests that Agustin’s benefits were 5 suspended without notice or an opportunity to be heard, Markham, 434 F.3d at 1188 , or that 6 || Agustin was deprived of adequate post-deprivation remedies, Raditch, 929 F.2d at 480 (holding 7 that OWCP provides sufficient predeprivation and postdeprivation procedures for FECA 8 claimants); see also Kimber v. Mabus, 627 F. App’x 666, 667 (9th Cir. 2015) (unpublished). To 9 the contrary, the record indicates a substantial degree of communication and accommodation by 10 || the federal agency, and that Agustin chose not to himself of the OWCP’s appeals procedures, for 11 which he “cannot now argue that he was denied procedural due process.” Raditch, 929 F.2d at 12 || 482. 13 CONCLUSION 14 Although the complaint’s defects are unlikely to be cured by amendment, it is not fully 3 15 clear that amendment would be futile. Consequently, the complaint is dismissed with leave to 16 || amend. An amended complaint that conforms to this order may be filed by February 29, 2024. 3 17 The complaint may not add any new defendants or causes of action without leave of the Court. 18 Failure to meet this deadline will result in dismissal pursuant to Rule 41(b). 19 IT IS SO ORDERED. 20 || Dated: January 26, 2024 [22] JAMES ATO 23 United fftates District Judge