                             UNITED STATES DISTRICT COURT
                             FOR THE DISTRICT OF COLUMBIA

 TRACY FERGUSON,

                        Plaintiff,                          Civil Action No. 19-1689 (BAH)

                        v.                                  Chief Judge Beryl A. Howell

 U.S. POSTAL SERVICE,

                        Defendant.


                          MEMORANDUM OPINION AND ORDER

       The plaintiff, Tracy Ferguson, proceeding pro se, filed a statement of claim against the

United States Postal Service (“Postal Service”) in the Small Claims and Conciliation Branch of

the Superior Court of the District of Columbia alleging that the Postal Service, her former

employer, has either over-deducted money from her workers’ compensation benefits or has not

properly refunded her for over-deductions of health benefits. Notice of Removal, Ex. 1,

Statement of Claim (“Compl.”), ECF No. 1. After removing the action to federal district court,

the Postal Service filed a motion to dismiss for lack of subject matter jurisdiction or for failure to

state a claim upon which relief can be granted. Def.’s Mot. to Dismiss (“Def.’s Mot.”), ECF No.

5. After being advised of her opportunity to respond and of her obligations under the applicable

procedural rules, see Order (July 18, 2019), ECF No. 6 (citing Fox v. Strickland, 837 F.2d 507,

509 (D.C. Cir. 1988); Neal v. Kelly, 963 F.2d 453, 456 (D.C. Cir. 1992)), plaintiff filed a

memorandum in opposition to the motion to dismiss, see Pl.’s Mem. in Opp., ECF No. 7. The

Postal Service’s motion is GRANTED for the reasons stated below.

I.     BACKGROUND

       A.      Statement of Claim


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       The plaintiff’s statement of claim begins by alleging that she is “on disability from the

U.S. Postal Service” and is “being discriminated against because of [her] disability.” Compl. at

5. More specifically, the plaintiff claims both that “[t]he U.S. Postal Service has not properly

paid back . . . money from [her] health insurance,” id. at 3, and that “[t]he Postal Service has

taken extra money out of [her] disability check, for years,” id. at 5. “Sometimes,” plaintiff states,

the Postal Service has “giv[en] a little [money] at a time back.” Id. at 3. As a remedy, the

plaintiff seeks money damages in the amount of $3,000. Id. at 3.

       B.      Statutory and Regulatory Background

       Plaintiff’s pro se complaint “is ‘to be liberally construed.’” Erickson v. Pardus, 551 U.S.

89, 94 (2007) (quoting Estelle v. Gamble, 429 US. 97, 106 (1976)). So construed, the claims

relate to the federal workers’ compensation program or to health benefits.

               1.      Federal Workers’ Compensation

       The Federal Employees’ Compensation Act (“FECA”) governs workers’ compensation

benefits for federal employment. Workers’ compensation is owed “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). By statute, the Secretary of Labor administers and decides “all questions

arising under” FECA. Id. § 8145. By regulation, the Secretary of Labor has delegated authority

and assigned responsibility for administering FECA to the Director of the Office of Workers’

Compensation Programs (“OWCP”). 20 C.F.R. § 1.2.

               2.      The Postal Service’s Health Benefits Refund Program

       The Health Benefits Refund Program (the “Program”) is a Postal Service program to

reimburse injured employees for over-deductions of health benefits premiums. See U.S. Postal

Service, Employee and Labor Relations Manual (“ELM”) § 525.132. “For the first year of

compensable disability, OWCP deducts health benefits premiums at the Postal Service rate.” Id.

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In future years, the premium deduction is made at the standard rate for federal employees, which

is higher than the Postal Service rate. Id. As a result, under the Program, Postal Service

employees who are receiving OWCP compensation may be owed a refund for over-deduction of

health benefits premiums. Id. The ELM directs the Postal Service to calculate the refund by

“subtract[ing] the difference between the [standard federal employee] health benefits premium

rate and the Postal Service rate of the health benefits plan chosen by the employee.” Id.

II.     LEGAL STANDARD

        A.      Motion to Dismiss Under Rule 12(b)(1)

        In reviewing a motion to dismiss for lack of subject matter jurisdiction under Rule

12(b)(1), “[i]t is to be presumed that a cause lies outside [the federal court’s] limited jurisdiction,

and the burden of establishing the contrary rests upon the party asserting jurisdiction.”

Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994) (internal citation omitted).

The court must accept as true all uncontroverted factual allegations contained in the complaint

and must “construe the complaint liberally, granting plaintiff the benefit of all inferences that can

be derived from the facts alleged.” Am. Nat’l Ins. Co. v. FDIC, 642 F.3d 1137, 1139 (D.C. Cir.

2011) (internal quotation marks omitted).

        B.      Motion to Dismiss Under Rule 12(b)(6)

        To survive a motion to dismiss under Rule 12(b)(6), “a complaint must contain sufficient

factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft

v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570

(2007)). A facially plausible claim pleads factual content that allows “the court to draw the

reasonable inference that the defendant is liable for the misconduct alleged.” Id.; see also

Atherton v. District of Columbia Office of Mayor, 567 F.3d 672, 681–82 (D.C. Cir. 2009)

(“[E]ven a pro se complainant must plead ‘factual matter’ that permits the court to infer ‘more

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than the mere possibility of misconduct.’” (quoting Iqbal, 556 U.S. at 679)). In deciding a

motion under Rule 12(b)(6), the court must consider the whole complaint, accepting all factual

allegations as true, “even if doubtful in fact.” Twombly 550 U.S. at 555.

III.    ANALYSIS

        A.       Federal Workers’ Compensation

        Plaintiff’s statement that “[t]he Postal Service has taken extra money out of [her]

disability check for years,” Compl. at 5, may be a challenge to withholdings from her workers’

compensation benefits under the FECA. See Pueschel v. Chao, 357 F. Supp. 3d 18, 24 (D.D.C.

2018) (“FECA . . . provides federal employees with an exclusive remedy against the United

States for work-related injuries.” (citing 5 U.S.C. § 8116(c)). Subject matter jurisdiction over

such a claim is lacking.1

        Federal district courts lack subject matter jurisdiction over challenges to workers’

compensation withholdings under a provision of FECA precluding judicial review of any claims

for “payment of compensation” under that Act. See 5 U.S.C. § 8128(b) (“[A]ction of the

Secretary of Labor or his designee in allowing or denying a payment . . . is . . . final and

conclusive for all purposes and with respect to all questions of law and fact” and “not subject to

review . . . by a court by mandamus or otherwise.”); see also Lindahl v. Office of Pers. Mgmt.,

470 U.S. 768, 779–80 & n.13 (1985) (identifying § 8128(b) as an example of “Congress

intend[ing] to bar judicial review altogether”). Instead, workers’ claims arising under FECA are

handled by OWCP and are reviewable by the Employees’ Compensation Appeals Board, see 20




1
        The current complaint is also deficient in making such a claim because workers’ compensation benefits are
administered not by the Postal Service but by OWCP and the Department of Labor, see e.g., 20 C.F.R. § 1.2; ELM
§ 525.132, which are not parties to this action.

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C.F.R. § 10.625; that Board’s decisions about workers’ compensation claims are final and not

subject to judicial review, see 5 U.S.C. § 8128(b).

       In short, any claim by the plaintiff for under-payment of worker’s compensation benefits

cannot withstand the motion to dismiss under Rule 12(b)(1). See Gallucci v. Chao, 374 F. Supp.

2d 121, 128 (D.D.C. 2005) (finding no “subject matter jurisdiction because federal question

jurisdiction is precluded by 5 U.S.C. § 8128(b)”), aff’d, No. 05-5280, 2006 WL 3018055 (D.C.

Cir. Mar. 2, 2006) (“Appellant has failed to demonstrate that the district court possessed subject

matter jurisdiction over this case despite the provisions of 5 U.S.C. § 8128(b).”).

       B.      The Postal Service’s Health Benefits Refund Program

       Plaintiff’s statement that “[t]he U.S. Postal Service has not properly paid back . . . money

from [her] health insurance,” id. at 3, may be a claim that the Postal Service has not properly

refunded her health benefits premiums under the Health Benefits Refund Program. That

Program is laid out in the ELM, which “does not create a private right of action” in federal court.

Ko v. Brennan, No. 17-CV-06427-HRL, 2018 WL 1400467, at *4 (N.D. Cal. Mar. 20, 2018),

aff’d sub nom. Kyoung Ko v. Brennan, 740 F. App’x 623 (9th Cir. 2018). Given that plaintiff

cannot bring suit under the ELM, the government suggests that “one might construe Plaintiff’s

claim as one seeking relief under” the Administrative Procedure Act (“APA”), see 5 U.S.C.

§ 706, on the theory that “the provisions of the Manual constitute ‘regulations’ of the Postal

Service,” Def.’s Mem. Supp. Mot. to Dismiss (“Gov’t’s Mem.”) at 6, ECF No. 5-1 (citing Gose

v. U.S. Postal Service, 451 F.3d 831, 835–36 (Fed. Cir. 2006)). The APA does generally

authorize claims against federal agencies, see 5 U.S.C. § 704, but it cannot provide a cause of

action here, as the Postal Reorganization Act of 1970 exempts the Postal Service from APA

review, see 39 U.S.C. § 410(a) (providing that, with certain exceptions, “no Federal law dealing

with public or Federal contracts, property, works, officers, employees, budgets, or funds . . . shall
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apply to the exercise of the powers of the Postal Service”); see also Mittleman v. Postal

Regulatory Comm’n, 757 F.3d 300, 305 (D.C. Cir. 2014) (“[T]he Postal Service is exempt from

review under the [APA].” (quoting N. Air Cargo v. U.S. Postal Serv., 674 F.3d 852, 858 (D.C.

Cir. 2012)).2 Absent a private right of action, the plaintiff cannot maintain a claim related to the

Health Benefits Program.

        C.       Allegation of Discrimination

        Finally, plaintiff states that she is “being discriminated against because of [her]

disability.” Compl. at 5. This statement, because it is accompanied by no factual allegations, is

inadequate to make out a claim for discrimination under a federal statute such as the

Rehabilitation Act, 29 U.S.C. § 701 et seq.

IV.     CONCLUSION

        Therefore, upon consideration of the defendant’s Motion to Dismiss, ECF 5, the related

legal memoranda in support and in opposition, and the entire record herein, for the reasons set

forth above, it is hereby

        ORDERED that the defendant’s Motion is GRANTED, without prejudice; and it is further

        ORDERED that the Clerk of the Court is DIRECTED to close this case.

        SO ORDERED.

        This is a final and appealable order.

        Date: October 11, 2019



                                                              __________________________
                                                              BERYL A. HOWELL
                                                              Chief Judge

2
         “[N]on-statutory” review of Postal Service actions may be available “to determine whether the agency has
acted ultra vires.” Mittleman, 757 F.3d at 300 (internal quotation marks and citations omitted). Plaintiff does not
contend that the Postal Service has exceeded any statutory authority.

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