                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                December 28, 2005

                                                         Charles R. Fulbruge III
                                                                 Clerk
                           No. 05-10547
                         Summary Calendar



STANLEY M. SCHWARTZ,
                                              Plaintiff - Appellant,

versus

UNITED STATES DEPARTMENT OF LABOR,
                                              Defendant - Appellee.

                       --------------------

          Appeal from the United States District Court
               for the Northern District of Texas
                           (04-CV-644)

                       --------------------

Before JOLLY, DAVIS and OWEN, Circuit Judges.

W. EUGENE DAVIS, Circuit Judge:1

     Plaintiff Stanley Schwartz appeals the dismissal of his suit

under the Federal Tort Claims Act.   Schwartz, a Federal

Administrative Law Judge, sued the United States, the U.S.

Department of Labor and Occupational Safety and Health Review

Commission alleging that he suffered intentional infliction of

emotional distress arising out of conditions relating to his

employment.   The district court dismissed the case without

prejudice to allow the Secretary of Labor to determine if

     1
        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that this opinion should not be published and is not precedent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.
Schwartz’s claims were covered by the provisions of the Federal

Employees Compensation Act (“FECA”).    We affirmed that decision.

     The Department of Labor’s Office of Workers’ Compensation

Programs (“OWCP”) determined that Schwartz’s condition, if

compensable, was covered under FECA but that Schwartz failed to

prove his case.   Other than requesting reconsideration by the

OWCP, Schwartz did not pursue further post-deprivation remedies

available to him under FECA.    Schwartz then refiled his petition

in the district court.    In response to the defendant’s Motion to

Dismiss, the district court dismissed Schwartz’s claim.    Schwartz

again appeals.

     The district court correctly concluded that it lacked

subject matter jurisdiction to review the Secretary of Labor’s

FECA benefits determination.    Such review is expressly precluded

by 5 U.S.C. § 8128(b).    Benton v. United States, 960 F.2d 19 (5th

Cir. 1992).

     A limited exception to FECA preclusion has been recognized

for substantial cognizable constitutional challenges to the

proceedings.   The substance of Schwartz’s complaint is that the

OWCP revised its initial decision in his case as a result of

improper contact between the Department of Labor’s Solicitor’s

Office and the OWCP.     However, even if Schwartz could establish a

due process violation with regard to his OWCP hearing, that does

not constitute a violation of the procedural requirements of the


                                   2
due process clause if a meaningful post-deprivation remedy for

the loss is available.   Hudson v. Palmer, 468 U.S. 517, 533

(1984). Schwartz made no allegations to the district court or to

us that FECA’s post-deprivation remedies are constitutionally

inadequate.   In addition, the district court properly found that

the post-deprivation remedies available to FECA claimants are

sufficient to assure that claimants receive sufficient due

process, even in situations where there were violations of OWCP

procedures. See Raditch v. United States, 929 F.2d 478 (9th Cir.

1991); Lepre v. Dep’t of Labor, 275 F.3d 59 (D.C. Cir. 2001);

Stuto v. Fleishman, 164 F.3d 820 (2d Cir. 1999).

     For the foregoing reasons, the district court’s dismissal of

Schwartz’s claims for lack of jurisdiction is AFFIRMED.




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