     Case: 17-60342   Document: 00514290481   Page: 1   Date Filed: 01/02/2018




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                               United States Court of Appeals

                                No. 17-60342
                                                                        Fifth Circuit

                                                                      FILED
                              Summary Calendar                  January 2, 2018
                                                                 Lyle W. Cayce
STEPHEN B. MUNN,                                                      Clerk


             Plaintiff - Appellant

v.

UNITED STATES DEPARTMENT OF LABOR; OFFICE OF WORKERS'
COMPENSATION PROGRAMS; DIVISION OF FEDERAL EMPLOYEES
COMPENSATION; R. ALEXANDER ACOSTA, SECRETARY,
DEPARTMENT OF LABOR, Individually and in his Official Capacity;
BRIAN KENNEDY, Assistant Secretary of Labor, OWCP/DFEC Individually
and in his Official Capacity; LEONARD J. HOWIE, III, Director of Office of
Worker's Compensation Programs, Individually and in his Official Capacity;
DOUGLAS FITZGERALD, Director of Division of Federal Employee
Compensation, Individually and in his Official Capacity; TISHA CARTER,
District 6 Regional Manager, Individually and in her Official Capacity (JAC);
RAMONA BROWN, Senior Claims Examiner, Individually and in her Official
Capacity; SHARON DAWKINS, Claims Examiner, Individually and in her
Official Capacity; UNITED STATES ATTORNEY GENERAL,

             Defendants - Appellees




                Appeal from the United States District Court
                  for the Southern District of Mississippi
                          USDC No. 1:16-CV-151


Before JOLLY, OWEN, and HAYNES, Circuit Judges.
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                                      No. 17-60342
PER CURIAM:*
       Stephen B. Munn appeals the dismissal of his claims against the
Department of Labor, Office of Workers Compensation Programs (OWCP), and
seven individual defendants, arising out of the denial of his claim for benefits
under the Federal Employees Compensation Act (FECA). We AFFIRM.
                                             I.
       In May 1998, while employed as a Special Agent in the Diplomatic
Security Service with the United States Department of State, Munn was
injured during a training exercise when he fell on his head after being dropped
by another agent. He received first aid and a medical evaluation, and a report
of the injury was completed. The report noted neuropathy in his hands, a
contusion to his forehead, and severe pain in his right thumb. Munn retired
from the State Department in 2001.
       In 2005, after medical imaging identified an area of spinal cord injury in
the cervical region of Munn’s neck, Munn’s neurosurgeon concluded that the
symptoms Munn had been experiencing since 2003 were caused by his 1998
work-related injury. Munn notified the Medical Unit of the State Department
and was told (erroneously) that medical treatment was not authorized because
a claim had not been filed within three years of the injury.
       In 2013, during the process of applying for Social Security disability
benefits, Munn learned that he was eligible to apply for FECA benefits. On
February 6, 2013, Munn submitted a claim for FECA benefits to the OWCP.
On February 20, OWCP informed him by letter that the agency was not able
to identify a federal injury claim associated with his name. He resubmitted



       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.

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                                    No. 17-60342
his application for benefits on March 5, 2013. On July 13, 2013, OWCP notified
Munn that his application was being returned because the employing agency
portion was not complete.       Munn contacted the State Department, which
completed and forwarded Munn’s claim to OWCP.                In February 2014, at
OWCP’s request, Munn’s doctor provided a report which included a statement
that Munn’s condition was caused by the 1998 injury.
      On February 19, 2014, OWCP Claims Examiner Dawkins denied Munn’s
claim for benefits because he (1) failed to file the claim within three years of
injury; and (2) failed to notify his immediate supervisor of the injury within 30
days. Munn appealed. OWCP conducted a hearing at which Munn presented
additional medical evidence, including a 2005 x-ray revealing a spinal fracture
and crushed/compressed vertebrae. On December 4, 2014, the OWCP Hearing
Representative reversed Claims Examiner Dawkins’s decision, ruling that
Munn had given timely notice of the injury and had timely filed a claim. The
case was remanded to the OWCP exams unit and assigned to Claims Examiner
Dawkins.
      On December 16, 2014, Dawkins issued a second notice of decision,
denying    the   claim    because    Munn    did   not   present    any    evidence,
contemporaneous to the date of injury, of a medical diagnosis signed by a
medical doctor rather than a nurse or nurse practitioner. Munn appealed
again. A hearing was conducted in July 2015. Following the hearing, at the
request of the Hearing Representative, Munn’s doctors submitted additional
medical evidence. That September, the Hearing Representative remanded the
case to OWCP for further development concerning causation, requesting
specifically that the doctors explain why no medical treatment was required
from 1999 to 2003.
      On February 3, 2016, Munn filed supplemental medical information
regarding causation in response to the Hearing Representative’s request. On
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                                  No. 17-60342
February 22, 2016, OWCP Senior Claims Examiner Brown issued a notice of
decision, stating that the evidence was insufficient to support Munn’s claim
that his condition was caused by the 1998 injury.
      In May 2016, Munn filed a complaint against the Department of Labor
(DOL), the OWCP, the Division of Federal Employees Compensation, and
seven DOL officials, in both their individual and official capacities. He sought
judicial review, declaratory and injunctive relief regarding his FECA claim
under the Administrative Procedures Act (APA), 5 U.S.C. §§ 701-708. He
claimed that the agency violated due process and statutory and regulatory
standards when processing his claim for FECA benefits. He sought monetary
relief against the individual defendants under Bivens v. Six Unknown Named
Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), based on the same
alleged due process violations.
      The district court dismissed Munn’s APA claims for lack of jurisdiction
and dismissed his Bivens claims for failure to state a claim upon which relief
could be granted. Munn timely appealed.
                                      II.
      Munn argues that the district court had jurisdiction over his APA claims
because he alleged substantial constitutional violations of due process and
violations of clear federal statutory and regulatory mandates. He maintains
that he is not seeking review of the denial of FECA benefits, but is, instead,
claiming that he was denied due process in the handling of his claim for such
benefits.
      FECA is a comprehensive workers’ compensation scheme for federal
civilian employees. The Secretary of Labor has the authority to administer
and decide all questions arising under FECA. See 5 U.S.C. § 8145. The
Secretary has delegated to the Director of the OWCP the responsibility for
administering and implementing FECA.          The OWCP’s decisions can be
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appealed to the Employees’ Compensation Appeals Board (ECAB), an
appellate division of the Department of Labor. 5 U.S.C. § 8149. However, the
statute prohibits judicial review of the Secretary’s decisions. See 5 U.S.C. §
8128(b) (stating that the “action of the Secretary . . . in allowing or denying a
payment” of FECA benefits is “final and conclusive for all purposes and with
respect to all questions of law and fact” and “not subject to review by another
official of the United States or by a court by mandamus or otherwise.”).
      This Court has recognized a limited exception to the prohibition of
judicial review:     a federal court may exercise jurisdiction to consider a
substantial constitutional claim, such as a claim that the agency’s procedures
violated due process. Garner v. United States Department of Labor, 221 F.3d
822, 825 (5th Cir 2000). Some other courts have recognized a second exception
for claims that the agency violated a clear statutory mandate. See Woodruff v.
U.S. Dep’t of Labor, Office of Workers Comp. Programs, 954 F.2d 634, 639 (11th
Cir. 1992). Even if § 8128 does not bar judicial review, the claimant cannot
obtain substantive relief or money damages. See Czerkies v. United States
Department of Labor, 73 F.3d 1435, 1439 (7th Cir. 1996) (en banc).
      We hold that the district court did not err by dismissing Munn’s APA
claims for lack of subject matter jurisdiction based on the statutory prohibition
of judicial review. Munn has not alleged a colorable due process claim. The
relief Munn requests goes to the merits of his FECA claims, rather than the
procedures by which those claims were adjudicated. Even if we assume that
Munn had a property interest in his claim for FECA benefits, the record
demonstrates that the process Munn received did not violate his constitutional
rights. He received two hearings and took two appeals, and thus was given a
meaningful opportunity to present his evidence, arguments, and objections.
“The fundamental requirement of due process is an opportunity to be heard at
a meaningful time and in a meaningful manner.” Matthews v. Eldridge, 424
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                                 No. 17-60342
U.S. 319, 333 (1976). Although Munn’s claims are expressed in constitutional
terms, the essence of his complaint is that the agency erred in assessing the
evidence and denying his claim for benefits. “The government does not violate
the Constitution every time it mistakenly denies a claim for benefits.”
Czerkies, 73 F.3d at 1443.
      Even if we assume that there is an exception to the statutory prohibition
of judicial review if the agency violates a clear statutory mandate, the district
court did not err by holding that the exception does not apply here. Munn
contends that the evidence that he submitted required the agency to award
him benefits. But he has not identified a specific and unambiguous statutory
command or directive that prohibited the agency from assessing his evidence
to determine whether he is entitled to FECA benefits.
      Munn’s Bivens claims against the individual defendants are based on the
same alleged due process violations he relied on for his APA claims. Because
Munn failed to allege a colorable due process claim, the district court did not
err by holding that Munn failed to state a Bivens claim upon which relief could
be granted.
                                      III.
      In sum, we hold that the district court did not err by dismissing Munn’s
APA claims, because his challenge to the denial of FECA benefits is barred by
the statute’s prohibition of judicial review. The court also did not err by
dismissing Munn’s Bivens claims against the individual defendants because
Munn failed to state a colorable claim that the defendants violated his due
process rights. Accordingly, the judgment of the district court is
                                                                     AFFIRMED.




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