                           UNITED STATES DISTRICT COURT
                           FOR THE DISTRICT OF COLUMBIA



LENORA GUERRERO-SMITH,

                      Plaintiff,
                                                   Civil Action No. 12-0228 (BJR)
              v.

HILDA L. SOLIS,                                    MEMORANDUM OPINION
Secretary, U.S. Department of Labor,

                      Defendant.


  MEMORANDUM OPINION GRANTING IN PART AND FINDING MOOT IN PART
              DEFENDANT’S MOTION TO DISMISS [11]

                                        I. INTRODUCTION

       Before the Court is Defendant Secretary of Labor’s Motion to Dismiss [11]. Upon

consideration of the parties’ arguments, the relevant case law, and the entire record, the Court

grants in part and finds moot in part Defendant’s Motion to Dismiss.

                   II. FACTUAL AND PROCEDURAL BACKGROUND

       Plaintiff Lenora Guerrero-Smith originally filed her petition for a writ of mandamus on

February 9, 2012. Plaintiff sought to compel Defendant “to perform mandatory duties owed to

Plaintiff arising under the Federal Employees Compensation Act,” (“FECA”), 5 U.S.C. § 8101,

et seq. Plaintiff sought to compel Defendant to act on two “open and accepted” Office of

Workers’ Compensation Program (“OWCP”) claims. Further, Plaintiff sought an “accounting of

the OWCP’s benefit payments to Plaintiff, such that Plaintiff may know the data that has been

used to calculate her payments to determine correctness,” and injunctive relief to compel

Defendant to “[p]rocess any future OWCP payment paperwork in a timely fashion.”



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       On August 12, 2013, the parties filed a joint status report. In said report, Plaintiff

indicated that Defendant had awarded Plaintiff payment under FECA as related to her workers’

compensation claims. As such, the only unresolved issues before the Court are Plaintiff’s claim

for injunctive relief as well as Plaintiff’s claim to attorney’s fees pursuant to the Equal Access to

Justice Act (“EAJA”), 28 U.S.C. § 2412(d)(1)(A).

                            III. Defendant’s Motion to Dismiss [11]

            A. Plaintiff’s Claims Regarding Workers’ Compensation Benefits are Moot

       As noted above and as acknowledged by Plaintiff in the joint status report, all claims by

Plaintiff as to unpaid workers’ compensation benefits have been resolved in her favor. As such,

Plaintiff’s claims against Defendant with respect to these benefits are moot, and Defendant’s

motion to dismiss with respect to these claims is moot.

              B. The Court has Jurisdiction to Consider Plaintiff’s Remaining Claims

       Defendant argues in her motion to dismiss that this Court lacks jurisdiction over all of

Plaintiff’s claims because “Congress has foreclosed judicial review” “for matters arising within

the scope of FECA.” Def.’s Mot. at 7. 5 U.S.C. § 8128(b) establishes that “[t]he action of the

Secretary . . . in allowing or denying a payment under this subchapter is . . . not subject to review

by another official of the United States or by a court by mandamus or otherwise.” However, this

does not preclude all judicial review of issues “arising within the scope of FECA.” Courts have

exercised jurisdiction over claims where “[t]he conduct of the Secretary that [the plaintiff]

challenges . . . is not the ‘allowing or denying [of] a payment,’ but rather the manner in which

his claim was decided.” Rodrigues v. Donovan, 769 F.3d 1344, 1347-48 (9th Cir. 1985); see

also Gilmore v. U.S. Dep’t of Labor, 1993 WL 89050, at *1 (D.C. Cir. Feb. 10, 1993) (finding

that, while review of Secretary’s substantive decision is foreclosed by FECA, a plaintiff’s



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constitutional claims can be heard by the district court). Here, Plaintiff stated in her petition for

a writ of mandamus that she was “not challenging the merits of any [workers’ compensation]

decision, but rather the failure . . . to provide Plaintiff with procedural due process . . . .” Pl.’s

Pet. at 4.

        Accordingly, the Court is satisfied that is has jurisdiction to consider Plaintiff’s claims.

                                            C. Injunctive Relief

        Plaintiff argues that, while her workers’ compensation claims against Defendant have

been resolved, this case is not moot because there is a reasonable likelihood that the alleged

wrong (in this case, delay in processing Plaintiff’s workers’ compensation claims) will reoccur.

“Article III of the Constitution restricts the federal courts to deciding only ‘actual, ongoing

controversies.’” Nat’l Black Police Ass’n v. D.C., 108 F.3d 346, 349 (D.C. Cir. 1997) (quoting

Honig v. Doe, 484 U.S. 305, 317 (1988)). “Even where litigation poses a live controversy when

filed . . . [a] court [must] refrain from deciding it if events have so transpired that the decision

will neither presently affect the parties’ rights nor have a more-than-speculative chance of

affecting them in the future.” Nat’l Black Police Ass’n, 108 F.3d at 349 (quoting Clarke v.

United States, 915 F.2d 699, 701 (D.C. Cir. 1990)). In cases where a plaintiff seeks injunctive

relief, the plaintiff must allege some likelihood of future injury. See City of Los Angeles v.

Lyons, 461 US. 95, 105-06 (1983).

        Here, Plaintiff makes only the barest of allegations of future injury, stating that “in all

likelihood, DOL will continue to fail to respond to requests and correspondences.” The Court is

not persuaded by Plaintiff’s argument. Plaintiff alleges, without evidence of a particular policy

or practice on the part of Defendant, that Defendant may not respond to hypothetical future

workers’ compensation claims in a timely manner. Such an allegation is far too speculative to



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establish a risk of future harm sufficient to preserve a live case or controversy. As such,

Defendant’s motion to dismiss is granted with respect to Plaintiff’s request for injunctive relief.

                                            D. Attorney’s Fees

       Plaintiff also requests attorney’s fees pursuant to the Equal Access to Justice Act

(“EAJA”), 28 U.S.C. § 2412(d)(1)(A). The EAJA establishes that “a court shall award to a

prevailing party other than the United States fees and other expenses, in addition to any costs

awarded pursuant to subsection (a), incurred by that party in any civil action . . . including

proceedings for judicial review of agency action . . . unless the court finds that the position of the

United States was substantially justified or that special circumstances make an award unjust.”

Defendant argues that Plaintiff is not a “prevailing party” because the Court has not ruled in

Plaintiff’s favor. Plaintiff argues in response that Defendant’s action in acting upon Plaintiff’s

workers’ compensation claims was in response to Plaintiff’s lawsuit, and as such, Plaintiff has

“prevailed.”

       “A party has ‘prevailed’ if (1) the party received a significant part of the relief it sought;

and (2) the lawsuit was a catalytic, necessary or substantial factors, see Tucson Medical Center v.

Sullivan, 947 F.2d 971, 982 (D.C. Cir. 1991), in obtaining that result. ‘[T]he claimant must show

that it is more probable than not that the government would not have performed the desired act

absent the lawsuit.’ Public Citizen Health Research Group v. Young, 909 F.2d 546, 550 (D.C.

Cir. 1990).” Maduka v. Meissner, 114 F.3d 1240, 1241 (D.C. Cir. 1997) (insertions in original).

       While Plaintiff has requested attorney’s fees, Plaintiff has not addressed or briefed the

standard discussed above. Should Plaintiff wish to pursue attorney’s fees, she may file a motion

for attorney’s fees no later than February 7, 2014. The Court will retain jurisdiction to consider

said motion.



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                                IV. Conclusion

An order consistent with this memorandum opinion will issue separately.

Signed on January 23, 2014.




                                           BARBARA J. ROTHSTEIN
                                           UNITED STATES DISTRICT JUDGE




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