                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 02-2046
                                  ___________

Donald W. Duncan,                    *
                                     *
           Plaintiff-Appellant.      *
                                     *
      v.                             * Appeal from the United States
                                     * District Court for the Eastern
                                     * District of Arkansas.
Department of Labor,                 *
Honorable Elaine L. Chao,            *
Secretary,                           *      PUBLISHED
                                     *
           Defendant-Appellee        *
                                     *
                                ___________

                            Submitted: September 3, 2002

                                 Filed: October 22, 2002
                                  ___________

Before McMILLIAN, FAGG, and BOWMAN, Circuit Judges.
                            ___________

PER CURIAM.

     Robert W. Duncan applied to the Department of Labor for workers’
compensation wages, claiming work-related depression affected his ability to work.
The Department of Labor denied Duncan’s request in a series of proceedings and the


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district court* later dismissed his case for lack of subject matter jurisdiction. Duncan
raises several arguments on appeal; we consider each in turn, reviewing the district
court’s decision de novo. See BP Chem. Ltd. v. Jiangsu Sopo Corp., 285 F.3d 677,
682 (8th Cir. 2002) (standard of review).

       First, Duncan claims the Department of Labor denied him procedural due
process when it adjudicated his claim. Because the Federal Employees’
Compensation Act precludes judicial review of workers’ compensation decisions
made by the Department of Labor, 5 U.S.C. § 8128(b) (2000), Duncan must allege a
substantial, cognizable constitutional claim to have the district court review his case.
See Schneider v. United States, 27 F.3d 1327, 1332 (8th Cir. 1994) (a statute
precluding judicial review does not bar review of constitutional claims arising under
the statute). To state a claim for deprivation of due process, Duncan must first state
a property interest that was deprived. Cleveland Bd. of Educ. v. Loudermill, 470 U.S.
532, 541 (1985). Contrary to Duncan’s assertion, Duncan never had or acquired a
property interest in his workers’ compensation request because the federal
government did not find Duncan was entitled to the benefits, or pay out the benefits.
See Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 60 (1999). Further, even if
Duncan did have a property right, we agree with the district court that he received the
process to which he was entitled: notice and the right to be heard. Loudermill, 470
U.S. at 542.

       Second, Duncan argues the Department of Labor denied him equal protection
of the laws as a disabled veteran. Because Duncan does not identify the regulation(s)
or procedure(s) which discriminate against veterans, generally, and him as a veteran,
specifically, we assume the statute is facially neutral. Even assuming veterans are a
protected class, Duncan’s equal protection claims fail because he does not show


      *
       The Honorable Susan Webber Wright, Chief Judge, United States District
Court for the Eastern District of Arkansas.
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intentional or purposeful discrimination on the basis of his status as a veteran.
McCleskey v. Kemp, 481 U.S. 279, 292 (1987).

      Third, Duncan contends the Department of Labor decision was based on
conspiracy, fraudulent misrepresentation, and an abuse of authority–all tort claims.
Because a federal agency cannot be sued under the Federal Tort Claims Act, the
United States is the proper defendant. F.D.I.C. v. Meyer, 510 U.S. 471, 476-77
(1994). Although the Federal Tort Claims Act creates several exceptions to the
United States’ sovereign immunity, it requires the claimant to first “present[] the
claim to the appropriate Federal agency,” which Duncan did not do. 28 U.S.C. §
2675(a) (2000). Thus, the district court also lacked jurisdiction to hear Duncan’s tort
claims.

       Fourth, Duncan argues the district court violated his Seventh Amendment
rights by refusing to allow a jury trial. Because the district court’s dismissal of
Duncan’s case was proper, there is no issue for trial and the district court’s refusal to
allow a jury trial was permissible. Perkins v. Spivey, 911 F.2d 22, 28 n.6 (8th Cir.
1990) (“an otherwise proper ruling is not erroneous merely because it has the
incidental effect of precluding a jury trial”).

      For the reasons stated above, we affirm the judgment of the district court.

      A true copy.

             Attest:

                     CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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