                                UNITED STATES DISTRICT COURT
                                FOR THE DISTRICT OF COLUMBIA

                                                )
SONDRA EDWARDS,                                 )
                                                )
                Plaintiff,                      )
                                                )
                v.                              )       No. 18-cv-2560 (KBJ)
                                                )
UNITED STATES OF AMERICA,                       )
                                                )
                Defendant.                      )
                                                )

                                  MEMORANDUM OPINION

         Pro se plaintiff Sondra Edwards is a former United States Postal Service

employee and veteran who, since 1991, has received benefits from both the Department

of Veterans Affairs (“VA”), for a service-connected disability, and the Department of

Labor (“Labor”), for an on-the-job injury pursuant to the Federal Employees’

Compensation Act (“FECA”). (See generally Am. Compl. (“Compl.”), ECF No. 6; see

also Notice of Proposed Rescission Decision, Attach. C to Gov’t Ex. 1 of Mot. to

Dismiss, ECF No. 8-4, at 21.) 1 In 2012, the Office of Workers’ Compensation

Programs (“OWCP”)—a sub-agency that the Secretary of Labor has designated to

manage claims for benefits under the FECA—determined that Edwards was improperly

receiving dual benefits from both the VA and Labor for the same condition and

terminated Edwards’s FECA benefits. (See Compl. ¶ 4.) Edwards then spent years

disputing that termination through the administrative appeals process, which resulted in

the reinstatement of her FECA benefits. (See id. ¶ 5.) In the instant lawsuit, Edwards



1
 Page number citations to the documents that the parties have filed refer to those that the Court’s
electronic case filing system automatically assigns.
seeks money damages for OWCP’s decision to terminate her FECA benefits in the first

place; she alleges that this erroneous determination defamed her, constituted intentional

and negligent infliction of emotional distress, and violated her rights under the

Americans with Disabilities Act (“ADA”). (See id. ¶ 1.)

       Before this Court at present is the Government’s motion to dismiss, which argues

that the Court lacks subject matter jurisdiction with respect to Edwards’s tort claims

(see Gov’t Mem. in Support of Mot. to Dismiss (“Gov’t Mem.”), ECF No. 8-3, at 8–14),

and that Edwards has failed to state a claim upon which relief can be granted under the

ADA (see id. at 15–16). As explained herein, the Court agrees with the Government’s

argument that it does not have jurisdiction over Edwards’s tort claims, and it finds that

this limitation on the Court’s authority is for good reason. The FECA statute expressly

precludes judicial review of OWCP’s actions in denying a payment under the statute,

but it provides an administrative appeals process, of which Edwards has already availed

herself. And because that process has led to the termination decision being rescinded

and the wrongfully withheld benefits being restored, the money damages that Edwards

now claims as a result of the allegedly tortious termination of her FECA benefits have,

in essence, already been provided. Therefore, this Court lacks power to order anything

more, and the Government’s motion to dismiss the claims in Edwards’s complaint will

be GRANTED. A separate Order consistent with this Memorandum Opinion will

follow.




                                            2
    I.      BACKGROUND

            A. Factual Background 2

         Pro se Plaintiff Sondra Edwards worked for the United States Postal Service until

1990, and prior to that, she served in the United States Air Force. (See Compl. ¶ 18;

Notice of Occupational Disease and Claim for Compensation, Attach. A to Gov’t Ex. 1,

at 15; Oct. 6, 2017, Letter from Adam Calendrillo, Attach. W to Gov’t Ex. 1, at 155.)

Due to a disability that resulted from her military service, Edwards has received

benefits from the Department of Veterans Affairs (“VA”) since at least 1989. (See

Notice of Occupational Disease and Claim for Compensation, Attach. A to Gov’t Ex. 1,

at 16.) In 1990, while working for the Postal Service, Edwards suffered an additional

injury caused by the alleged harassment of her supervisors, and she submitted a claim to

Labor for compensation under the FECA. (See id. at 14.) In 1991, Labor accepted

Edwards’s FECA claim in relation to “the condition major depressive episode.” (Feb. 6,

1991, Letter from Heidi Lempert, Attach. B to Gov’t Ex. 1, at 18.)

         Approximately twenty years later, in 2011, OWCP changed Edwards’s medical

condition from “Major Depressive Disorder” to “Aggravation of Major Depressive

Disorder” in its records. (See Notice of Decision, Attach. D to Gov’t Ex. 1, at 27.)

OWCP sent Edwards a letter notifying her of the change, and she alleges that, along



2
  Although Edwards’s amended complaint is not clear regarding the facts surrounding OWCP’s decision
to terminate her benefits, the Government’s motion to dismiss includes nearly 200 pages of attached
exhibits that are relevant to the agency action at issue in this case including letters exchanged between
OWCP and Edwards,. When reviewing a motion to dismiss for lack of subject matter jurisdiction,
courts may consider exhibits attached to the parties’ filings so long as all factual allegations in the
complaint are accepted as true, see Jerome Stevens Pharm., Inc. v. FDA, 402 F.3d 1249, 1253 (D.C.
Cir. 2005), and Edwards does not dispute the authenticity of the documents that the Government has
provided (see Pl.’s Opp’n, ECF No. 10, at 1). Therefore, in recounting the facts underlying Edwards’s
claims, this Court has referenced not only the complaint but also the exhibits attached to the parties’
briefs.


                                                   3
with this correspondence, the agency included a letter addressed to another veteran,

along with his private medical information. (See Compl. ¶ 1; Apr. 10, 2017, Claim for

Damage, Injury, or Death, Attach. A to Gov’t Ex. 2 to Mot. to Dismiss, ECF No. 8-5, at

7.) Edwards forwarded the information to the other veteran, after which she received a

call from an OWCP employee who allegedly screamed at her because she had exposed

the agency’s violation of the Health Information Protection Privacy Act (“HIPPA”).

(See Compl. ¶ 1.) According to Edwards, OWCP then began to retaliate against her

(see Compl. ¶ 6; Pl.’s Opp’n, ECF No. 10, at 8), and to this end, on May 19, 2011,

OWCP briefly terminated the payment of Edwards’s FECA benefits (see June 18, 2020,

Letter, Ex. 1 to Pl.’s Response, ECF No. 12-1, at 35). 3

        In the months that followed, OWCP began to investigate whether Edwards was

impermissibly receiving dual benefits for her condition from both OWCP and the VA.

(See Compl. ¶ 2; see also Nov. 14, 2011, Letter from Darryl K. Parker, Attach. E to

Gov’t Ex. 1, at 31.) In 2012, OWCP informed Edwards that the agency had determined

that she was receiving dual benefits from both agencies, and that dual benefits are

prohibited by FECA. (See Jan. 17, 2011, Letter from Darryl K. Parker, Attach. F to

Gov’t Ex. 1, at 39 (explaining that dual benefits exist where an “injury sustained while

in Federal civilian employment” results in both “[a]n increase in a veteran’s service

connected disability” and “workers’ compensation wage-loss benefits”); see also

Compl. ¶ 3.) And when Edwards failed to respond by electing to receive either the VA

benefits or the FECA benefits, by default, Edwards’s FECA benefits were terminated.


3
  This termination was vacated, and Edwards’s benefits were reinstated on November 7, 2011, on the
grounds that OWCP had relied on the report of a second-opinion physician that was based on incorrect
facts. (See Compl. ¶ 1–2; see also June 18, 2020, Letter, Ex. 1 to Pl.’s Response, ECF No. 12-1, at 35.)



                                                   4
(See May 17, 2012, Letter from Darryl K. Parker, Attach. G to Gov’t Ex. 1, at 46; see

also Compl. ¶ 3.) Edwards timely requested reconsideration of this termination

decision, but OWCP found that the evidence Edwards provided was unpersuasive. (See

Aug. 10, 2012, Letter from Alida V. Anderson, Attach. K to Gov’t Ex. 1, at 80–83.)

       In September of 2012, OWCP informed Edwards that the agency had made a

preliminary determination that she had been “overpaid benefits in the amount of

$440,345.92” and provided instructions for her to dispute that overpayment amount.

(Sept. 25, 2012, Letter from Helen Ferro, Attach. H to Gov’t Ex. 1, at 52; see also

Compl. ¶ 4.) Edwards failed to dispute that determination, and OWCP finalized its

overpayment determination in November of 2012. (See Nov. 13, 2012, Letter from

Helen Ferro, Attach. I to Gov’t Ex. 1, at 66–67.) And given Edwards’s failure to take

steps to refute or repay the purported overpayment, OWCP considered the debt

delinquent and, in May of 2013, referred the overpayment amount to Treasury for

collection. (See Debt Referral for Treasury, Ex. 10 to Pl.’s Response, ECF No. 12-1, at

37; see also Attach. J to Gov’t Ex. 1, at 73.)

       Meanwhile, in early 2013, Edwards participated in a “formal hearing” at the VA

regarding the issue of dual benefits. (Compl. ¶¶ 3, 4.) According to Edwards, the VA

determined that she was not receiving dual benefits (see id. ¶ 4), and based on the VA’s

determination in this regard, Edwards sought reconsideration of OWCP’s termination

decision, which OWCP ultimately denied (see June 4, 2013, Letter from Stephanie

Fenton, Attach. J to Gov’t Ex. 1, at 90–91; see also Compl. ¶ 4). In August of 2013,

Edwards appealed OWCP’s denial of reconsideration to the Employees’ Compensation

Appeals Board (“ECAB”) (see Feb. 10, 2014, ECAB Decision and Order, Attach. M to




                                             5
Gov’t Ex. 1, at 93), but because Edwards had failed to challenge directly the merits of

OWCP’s prior decisions to terminate her FECA benefits and to assess the $440,345.92

overpayment amount, ECAB only had jurisdiction to review the “nonmerit[s] decision”

of the agency’s denial of Edwards’s request for reconsideration. (Id.) ECAB found that

OWCP properly denied the request for reconsideration. (See id. at 96.)

       Edwards sought reconsideration several more times; appealed one such denial to

ECAB again; and then filed a request for reconsideration from ECAB—none of which

was availing. (See Mar. 14, 2014, Letter from Christina Steven, Attach. N to Gov’t Ex.

1, at 99; Dec. 18, 2015, Letter from Kevin Burke, Attach. Q to Gov’t Ex. 1, at 115; Jan.

29, 2016, Letter from Kristina A. Oettel-Barber, Attach. R to Gov’t Ex. 1, 125; Feb. 17,

2016, Letter from Tonya Taylor, Attach. S to Gov’t Ex. 1, at 128.) Edwards also wrote

letters to the Secretary of Labor and other Labor officials asking for help to “correct”

the record regarding “[her] diagnosis and [to] remove that bogus debt[.]” (Feb. 9, 2016,

Letter from Sondra Edwards, Attach. T to Gov’t Ex. 1, at 133; see also July 19, 2016,

Letter from Sondra Edwards, Attach. U to Gov’t Ex. 1, at 138; Aug. 6, 2016, Letter

from Sondra Edwards, Attach. V to Gov’t Ex. 1, at 142; Compl. ¶ 11.) Each letter was

forwarded to OWCP, and the agency repeatedly sent letters to Edwards in response.

(See Feb. 19, 2016, Letter from Christel Porter-Keefer, Attach. T to Gov’t Ex. 1, at 135;

Aug. 15, 2016, Letter from Tisha Carter, Attach. U to Gov’t Ex. 1, at 139; Aug. 17,

2016, Letter from Tisha Carter, Attach. V to Gov’t Ex. 1, at 146.) Edwards also alleges

that the Secretary engaged in intimidation tactics to cause her to “be quiet, and not seek

help.” (Compl. ¶ 11.)




                                            6
       Edwards further maintains that OWCP’s erroneous dual-benefits decision,

termination of her FECA benefits, and referral of the mistaken overpayment debt to

Treasury harmed her in a variety of ways, including causing her to suffer homelessness

(see id. ¶ 5); to endure a robbery at gunpoint (see id. ¶ 6); to encounter bed bugs (see

id. ¶ 9); to sustain fractured family relationships and issues with life insurance/credit

(see id. ¶¶ 10, 14); and to have both a stroke and continuing and new mental health

issues (see id. ¶¶ 15–16). On April 10, 2017, Edwards filed her first claim for money

damages with Labor, “seeking $440,345.92 in personal damages pursuant to the

[Federal Tort Claims Act (“FTCA”)]” for several alleged wrongdoings by OWCP.

(Declaration of Catherine P. Carter, Ex. 2 to Def.’s Mot., ECF No. 8-5, ¶ 2.) 4

       By letter dated October 6, 2017—five years after Edwards was deemed ineligible

for FECA benefits under the dual benefits standard, four years after a six-figure

overpayment debt was referred for collection, and six-months after she first filed her

claim for damages with Labor—OWCP informed Edwards that its prior determinations

had been vacated. (See Compl. ¶ 14; Oct. 6, 2017, Letter from Adam Calendrillo,

Attach. W to Gov’t Ex. 1, at 149.) OWCP explained that there was evidence in her file

that she was not being dual compensated, and that the dual compensation issue had been

raised and decided in 1998. (See Oct. 6, 2017, Letter at 151.) As a result, OWCP

informed Edwards that she was entitled to reinstatement of her FECA benefits and that

the overpayment debt would be “declared null and void.” (Id. at 153–54.) In addition,



4
  In this first administrative claim for money damages, Edwards alleged that OWCP engaged in the
following wrongful acts: changing her accepted medical condition, sending her the medical information
of another person, reviewing her file for dual compensation as retaliation, forcing her to choose
between VA and FECA benefits, lying to the VA about her medical condition, and referring a debt of
$440,345.92 to Treasury for collection. (See Apr. 10, 2017, Claim for Damage, Injury, or Death,
Attachment B to Ex. 2, ECF No. 8-5, at 7–11.)


                                                  7
Edwards received payment in the amount of $156,771.07 for the years in which her

FECA benefits were not tendered due to the agency’s termination decision. (See Oct.

13, 2017, Payment, Attach. X to Gov’t Ex. 1, at 7.) Notably, according to the

complaint, Edwards has declined the reinstatement payments that the agency has

tendered to her, out of fear of “retaliation and death[.]” (Compl. ¶ 14.)

      On October 15, 2017, after OWCP’s decisions were vacated, Edwards filed a

second claim for money damges with Labor’s Office of the Solicitor, again seeking

$440,345.92 based on the Office of the Secretary’s failure to intervene and correct

OWCP’s wrongful determinations concerning the termination of her FECA benefits.

(See Oct. 15, 2017, Claim for Damage, Injury, or Death, Attach. B to Ex. 2, at 13–15.)

On May 24, 2018, Labor denied both of Edwards’s damages claims “on the ground that

the FECA is the exclusive remedy for federal employees who suffer work-related

injuries, including damages resulting from the tortious conduct of government actors in

handling work-related injuries[,]” and “the [Federal Tort Claims Act (“FTCA”)]

expressly bars claims for defamation, fraud, and abuse of process.” (Id. at ¶ 4.)

          B. Procedural Background

      Edwards originally filed the instant lawsuit in the United States Court of Federal

Claims; the matter was transferred to this Court on November 5, 2018. (See ECF No.

1.) Edwards amended her complaint against the United States on February 15, 2019.

(See Amend. Compl. (“Compl.”), ECF No. 6.) Edwards’s amended complaint is less

than clear, but she appears to be making two types of legal claims throughout. First,

Edwards brings tort claims pursuant to the FTCA, alleging that OWCP’s conduct

intentionally and negligently inflicted emotional distress and defamed her. (See, e.g.,




                                            8
Compl. ¶¶ 1, 2, 3, 6, 11, 13, 14, 18.) Second, Edwards claims that OWCP’s conduct

violated the ADA. (See id. ¶ 1, 14.)

       The Government filed a motion to dismiss on March 29, 2019. (See Gov’t Mot.

to Dismiss (“Gov’t Mot.”), ECF No. 8). In its motion, the Government, first, argues

pursuant to Federal Rule of Civil Procedure 12(b)(1) that this Court lacks subject matter

jurisdiction over Edwards’s tort claims, because the FECA is the exclusive remedy for

the tortious conduct of OWCP in administering Edwards’s claim, or in the alternative,

that most of Edwards’s claims are time-barred and that the actions of OWCP are

excluded from judicial review by the FTCA’s discretionary function exception. (See

Gov’t Mem. in Supp. of Mot. to Dismiss (“Gov’t Mem.”), ECF No. 8-3, at 8–14.) The

Government further alleges, pursuant to Rule 12(b)(6), that Edwards has failed to state

an ADA claim against the United States because federal actors are not subject to the

ADA. (See id. at 15–16.)

       Edwards filed an opposition on May 1, 2019 (see Pl.’s Opp’n to Mot. to Dismiss

(“Pl.’s Opp’n”), ECF No. 10); the Government filed a reply on May 10, 2019 (see Gov’t

Reply to Pl.’s Opp’n, ECF No. 11); and Edwards filed another response on May 17,

2019 (see Pl.’s Response to Mot. to Dismiss (“Pl.’s Response”), ECF No. 12). In her

responsive briefs, Edwards realleges the claims that she makes in the amended

complaint and she also claims that OWCP’s actions violated her constitutional rights

(see Pl.’s Opp’n at 3, 5, 7, 13–22) and rights under several other federal statutes;

namely, sections 1983, 1985, and 10801 of Title 42 of the United States Code, and also

HIPPA (see id. at 3, 12). Because “[i]t is a well-established principle of law in this

Circuit that a plaintiff may not amend her complaint by making new allegations in her




                                             9
opposition brief[,]” the new claims that Edwards brings only in her opposition briefs are

not before the Court at present. Budik v. Ashley, 36 F. Supp. 3d 132, 144 (D.D.C.

2014), aff’d sub nom. Budik v. United States, No. 14-5102, 2014 WL 6725743 (D.C.

Cir. Nov. 12, 2014).

   II.      MOTIONS TO DISMISS UNDER RULES 12(b)(1) AND 12(b)(6)

         A motion to dismiss for lack of subject matter jurisdiction brought under Rule

12(b)(1) of the Federal Rules of Civil Procedure challenges a court’s power to entertain

the plaintiff’s legal claims. In order to withstand a Rule 12(b)(1) motion, “the plaintiff

bears the burden of establishing [the court’s] jurisdiction by a preponderance of the

evidence.” Moran v. U.S. Capitol Police Bd., 820 F. Supp. 2d 48, 53 (D.D.C. 2011)

(citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992)). When reviewing

such a motion, “the district court may consider materials outside the pleadings[.]”

Jerome Stevens Pharm., Inc. v. FDA, 402 F.3d 1249, 1253–54 (D.C. Cir. 2005) (internal

quotation marks and citation omitted). However, “the court must still accept all of the

factual allegations in [the] complaint as true[.]” Id. Yet, “[b]ecause Rule 12(b)(1)

concerns a court’s ability to hear a particular claim, the court must scrutinize the

plaintiff’s allegations more closely when considering a motion to dismiss pursuant to

Rule 12(b)(1) than it would under . . . Rule 12(b)(6).” Schmidt v. U.S. Capitol Police

Bd., 826 F. Supp. 2d 59, 65 (D.D.C. 2011) (citations omitted).

         By contrast, a Rule 12(b)(6) motion tests the legal sufficiency of a complaint’s

factual allegations. See Howard Univ. v. Watkins, 857 F. Supp. 2d 67, 71 (D.D.C.

2012). As a result, courts reviewing a motion to dismiss under Rule 12(b)(6) must

accept as true all of the plaintiff’s allegations of fact, and must also “grant plaintiff the



                                             10
benefit of all inferences that can be derived from the facts alleged[.]” Sparrow v.

United Air Lines, Inc., 216 F.3d 1111, 1113 (D.C. Cir. 2000) (internal quotation marks

and citation omitted); see also Busby v. Capital One, N.A., 932 F. Supp. 2d 114, 134

(D.D.C. 2013). To survive such a motion, the complaint must contain sufficient factual

allegations to “state a claim to relief that is plausible on its face[,]” Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 570 (2007), meaning that the complaint’s “factual content . . .

[must] allow[] the court to draw the reasonable inference that the defendant is liable for

the misconduct alleged[,]” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “However, the

court need not accept inferences . . . [that] are unsupported by the facts set out in the

complaint. Nor must the court accept legal conclusions cast in the form of factual

allegations.” Kowal v. MCI Commc'ns Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994).

       Rule 12(b)(1) and Rule 12(b)(6) motions vary in a number of ways. For one

thing, Rule 12(b)(6) “places th[e] burden on the moving party” to show that the

complaint is legally insufficient. Cohen v. Bd. of Trs. of the Univ. of D.C., 819 F.3d

476, 481 (D.C. Cir. 2016) (citing 5B Charles A. Wright & Arthur R. Miller, Federal

Practice and Procedure § 1357 (3d ed. 2015)). Also in contrast to a motion to dismiss

brought under Rule 12(b)(1), a court assessing whether a complaint states a claim upon

which relief can be granted must limit its analysis to the four corners of the complaint,

as well as any “documents attached as exhibits or incorporated by reference in the

complaint, or documents upon which the plaintiff's complaint necessarily relies[.]”

Page v. Mancuso, 999 F. Supp. 2d 269, 275 (D.D.C. 2013) (internal quotation marks

and citations omitted).




                                              11
       Finally, the Court is cognizant that, in the instant case, the Government is

seeking Rule 12(b)(1) and Rule 12(b)(6) dismissal of a complaint that the plaintiff has

filed pro se. It is well established that a court must “liberally construe[]” the pleadings

of pro se parties, and that a pro se complaint, “however inartfully pleaded, must be held

to less stringent standards than formal pleadings drafted by lawyers[.]” Erickson v.

Pardus, 551 U.S. 89, 94 (2007) (per curiam) (internal quotation marks and citations

omitted); see also Haines v. Kerner, 404 U.S. 519, 520–21 (1972). However, it is also

quite clear that “[t]his benefit is not . . . a license to ignore the Federal Rules of Civil

Procedure.” Sturdza v. United Arab Emirates, 658 F. Supp. 2d 135, 137 (D.D.C. 2009)

(citation omitted); see also McNeil v. United States, 508 U.S. 106, 113 (1993). Thus,

although a pro se complaint “must be construed liberally, the complaint must still

present a claim on which the Court can grant relief.” Budik v. Dartmouth–Hitchcock

Med. Ctr., 937 F. Supp. 2d 5, 11 (D.D.C. 2013) (internal quotation marks and citation

omitted); see Moore v. Motz, 437 F. Supp. 2d 88, 90 (D.D.C. 2006) (noting that “a pro

se plaintiff’s inferences . . . need not be accepted” if they “are unsupported by the facts

set out in the complaint” (internal quotation marks and citation omitted)).

   III.    ANALYSIS

       As previously explained, the Government seeks dismissal of Edwards’s tort

claims on the grounds that this Court lacks subject matter jurisdiction over them,

because the FECA is the exclusive remedy for Edwards’s tort claims or, in the

alternative, because the claims are barred by the FTCA’s statute of limitations and

discretionary functions exception. (See Gov’t Mem. at 8–14.) The Government further

asserts that Edwards has failed to state a claim under the ADA because the federal



                                              12
government is not a proper defendant under the ADA. (See id. at 15–16.) For the

reasons explained below, this Court finds that the FECA bars judicial review of claims

arising from OWCP’s actions in denying a payment under the statute, including claims

styled as common-law torts. The Court also agrees that Edwards cannot maintain an

ADA claim against the federal government. Thus, Edwards’s complaint must be

dismissed in full.

          A. This Court Lacks Subject Matter Jurisdiction Over Edwards’s Tort
             Claims Because The FECA Bars Judicial Review Of Agency Actions
             That Relate To Its Administration Of Claims Under The Statute

       Under the FECA, the United States must “pay compensation . . . for the

disability or death of an employee resulting from personal injury sustained while in the

performance of his duty[.]” 5 U.S.C. § 8102(a). The compensation provided for in the

FECA is the exclusive remedy for a federal employee’s on-the-job injury, see id.

§ 8116(c), and that statute is intentionally “designed to protect the Government from

suits under statutes, such as the [FTCA], that had been enacted to waive the

Government’s sovereign immunity.” Lockheed Aircraft Corp. v. United States, 460

U.S. 190, 193–94 (1983). “In enacting [the FECA’s exclusive-remedy] provision,

Congress adopted the principal compromise—the ‘quid pro quo’—commonly found in

workers’ compensation legislation: employees are guaranteed the right to receive

immediate, fixed benefits, regardless of fault and without need for litigation, but in

return they lose the right to sue the Government.” Id. at 194 (citations omitted).

       The Secretary of Labor is tasked with “administer[ing], and decid[ing] all

questions arising under [the FECA][,]” and the Secretary may delegate those powers. 5

U.S.C. § 8145. The Secretary has delegated the administration of the FECA to OWCP,




                                            13
see 20 C.F.R. § 10.1, which means that OWCP is empowered to “review an award for or

against payment of compensation at any time[,]” and it may “(1) end, decrease, or

increase the compensation previously awarded; or (2) award compensation previously

refused or discontinued.” 5 U.S.C. § 8128(a). To challenge a benefits determination

that OWCP makes, a claimant may request “reconsideration by the district office; a

hearing before an OWCP hearing representative; and appeal to the Employees’

Compensation Appeals Board (ECAB).” 20 C.F.R. § 10.600.

        Significantly for present purposes, Congress has made it crystal clear that

OWCP’s act of “allowing or denying a payment” is both “final and conclusive for all

purposes and with respect to all questions of law and fact[,]” and is “not subject to

review by another official of the United States or by a court by mandamus or

otherwise.” 5 U.S.C. § 8128(b) (emphasis added). “The Supreme Court has recognized

§ 8128(b) as an example of ‘Congress intend[ing] to bar judicial review altogether,’

given the provision’s ‘unambiguous and comprehensive’ language.” Hall v. Dep’t of

Labor, 289 F. Supp. 3d 93, 99 (D.D.C. 2018), aff’d sub nom. Hall v. United States

Dep’t of Labor, No. 18-5100, 2018 WL 5919255 (D.C. Cir. Nov. 1, 2018) (quoting

Lindahl v. Office of Pers. Mgmt., 470 U.S. 768, 779–80 & n.13 (1985)). 5

        It is under this scheme that Edwards now seeks to vindicate the allegedly tortious

acts of the OWCP officials who administered her claim. The alleged injury to Edwards

did not arise while in the “performance of [her] duty” as a federal employee, 5 U.S.C.

§ 8102(a), but her action falls under the FECA nevertheless, as it is clear that the



5
 The one narrow exception to this jurisdictional bar that the D.C. Circuit has recognized—i.e., that the
FECA does not prevent “judicial review of constitutional challenges[,]” Lepre v. Dep’t of Labor, 275
F.3d 59, 67 (D.C. Cir. 2001)—is not at issue in this case.


                                                   14
alleged breach of duty that is the basis for Edwards’s tort claims is the agency’s

improper termination of her benefits (see Pl.’s Opp’n at 1); see also Nurriddin v.

Acosta, 327 F. Supp. 3d 147, 155 (D.D.C. 2018) (holding that plaintiff’s claim that

FECA “benefits were improperly suspended” is “squarely within the jurisdictional bar

of § 8128(b)”). To sidestep this conclusion, Edwards insists that “the initial case was

won” with OWCP’s vacatur of its decisions and reinstatement of her benefits, and that

she has filed the instant lawsuit only to seek “damages” for harmful effects of OWCP’s

improper termination. (Pl.’s Opp’n at 1.) But a court’s jurisdiction is established based

on the nature of the claim that has been made, not on the basis of the harm that is

alleged to have resulted from the defendant’s unlawful behavior. See Aviles-Wynkoop

v. Neal, 978 F. Supp. 2d 15, 18 (D.D.C. 2013) (“[W]hether the Court has subject-matter

jurisdiction depends on the nature of plaintiff’s claims.”). And where a plaintiff seeks

to challenge an unfavorable OWCP determination regarding FECA benefits,

entertaining that claim under the guise of a common law tort would work an improper

back-door to judicial review of OWCP payment decisions under circumstances in which

Congress has made clear that the merits of such decisions are not subject to judicial

review. See 5 U.S.C. § 8128(b).

      What is more, there appears to be no precedent for exercising jurisdiction over a

plaintiff’s claims when presented with similar facts. Indeed, courts have universally

concluded that injuries sustained as a result of OWCP’s termination of FECA benefits

“derive from” OWCP’s benefits determination such that they are exclusively covered by

FECA, and therefore, judicial review is precluded. See, e.g., Banks v. United States,

190 F. Supp. 3d 618, 628 (E.D. Tex. 2016) (holding that claims for medical and legal




                                            15
expenses incurred as a result of improper termination of FECA benefits “fall within

FECA’s preclusion on judicial review” because “[n]o liability could be assessed in this

case without first examining the conclusions of law and fact made by the Secretary in

the FECA benefits determination”); Tidwell v. U.S. Dep’t of Labor Office of Workers’

Comp. Program, No. C 11-06393 DMR, 2012 WL 4497802, at *3 (N.D. Cal. Sept. 28,

2012) (holding that plaintiff’s statutory and tort law claims “all ultimately constitute

challenges to his unfavorable FECA determination or attempts to recover damages from

the government for his work-related injuries through non-FECA avenues”); Proctor v.

United States, No. 5:11-CV-27-BR, 2011 WL 3626688, at *4 (E.D.N.C. Aug. 17, 2011)

(finding that “although plaintiffs’ claims are couched in tort language . . . , the true crux

of their argument is that the OWCP wrongfully and negligently reduced [plaintiff-

husband’s] FECA benefits” and “[t]hus, plaintiffs essentially seek to have the court

independently review the substance of this decision to reduce [his] benefits”).

       This is not to say that Edwards has not been injured due to OWCP’s erroneous

decision to terminate her benefits. (See, e.g., Compl. ¶¶ 5, 10, 15, 16 (alleging that

homelessness, fractured relationships with family and friends, and worsening physical

and mental health conditions, among other things, resulted from the termination of her

benefits).) But Congress has provided an exclusive remedy for obtaining relief for the

agency’s allegedly wrongful, and potentially harmful, termination of payments: the

administrative review and appeals process, and, here, that process plainly worked to

Edwards’s benefit. Cf. Proctor, 2011 WL 3626688, at *5 (noting that plaintiff “did

successfully obtain retroactive benefits through the administrative process, a fact that

militates against the court’s exercising jurisdiction over this case” (internal quotation




                                             16
marks and citation omitted)). Regardless, and in any event, it is clear that this Court

lacks jurisdiction to adjudicate claims against the Government for additional monetary

relief, because the FECA precludes judicial review of tort claims that pertain to

OWCP’s erroneous termination of benefits, for the reasons explained above.

           B. Edwards Has Not Stated A Cognizable Claim Under The ADA

       Edwards’s attempt to bring an ADA claim against the United States (see Compl.

¶¶ 1, 14) fails for the very simply reason that the ADA does not apply to the federal

government. See Mitchell v. Pompeo, No. 1:15-CV-1849 (KBJ), 2019 WL 1440126, at

*5 (D.D.C. Mar. 31, 2019). It is crucial to note that the scope of the ADA is

demarcated by three general provisions that prohibit certain entities from discriminating

against individuals with disabilities: Title I prohibits employment discrimination, see

42 U.S.C. § 12112; Title II prohibits discrimination in “the services, programs, or

activities of a public entity[,]” 42 U.S.C. § 12132; and Title III prohibits discrimination

by “public accommodations[,]” 42 U.S.C. § 12181. The statute thus prescribes the

categories of defendants who can be subjected to suit under each Title of the ADA, and

courts have long held that none of the titles is directed toward the federal government.

See Bean v. Perdue, No. CV 17-0140 (RC), 2017 WL 4005603, at *4 (D.D.C. Sept. 11,

2017) (explaining that “employer” under Title I “does not include [ ] the United States”;

that “public entity” under Title II covers only “any State or local government” and/or

state and local departments or instrumentalities; and that Title III “prohibits

discrimination by ‘public accommodations,’ [and] only applies to enumerated types of

private entities”).




                                            17
         Consequently, Edwards has not, and cannot, state a cognizable claim against the

federal government under the ADA, and thus, this claim, too, must be dismissed.

   IV.      CONCLUSION

         This Court has no doubt that, as a result of her FECA benefits lapsing and

OWCP’s referral of a six-figure debt for collection, Edwards has suffered greatly. But

Congress has clearly set out an administrative compensation scheme under the FECA,

and it has made clear that even erroneous decisions of OWCP are not reviewable by a

federal court. To be sure, Edwards has presented her claims as common law torts

brought under the FTCA, but any alleged injury plainly arises from OWCP’s decision to

terminate her benefits, which this Court has no jurisdiction to review. And this Court

further finds that Edwards has not stated a viable ADA claim against the Government,

because the federal government is not amenable to suit under the ADA. Accordingly,

pursuant to Rules 12(b)(1) and 12(b)(6) and as reflected in the accompanying Order, the

Government’s motion to dismiss Edwards entire complaint must be GRANTED.




DATE: May 29, 2020                         Ketanji Brown Jackson
                                           KETANJI BROWN JACKSON
                                           United States District Judge




                                             18
