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Seevers v. United States

January 22, 2007

ELMER R. SEEVERS, PLAINTIFF,
v.
UNITED STATES OF AMERICA; DEPARTMENT OF THE NAVY; GORDON R. ENGLAND, SECRETARY OF THE NAVY; DEPARTMENT OF LABOR; ELAINE L. CHAO, SECRETARY OF LABOR, DEFENDANTS.



The opinion of the court was delivered by: Hon. Napoleon A. Jones, Jr. United States District Judge

ORDER: (1) GRANTING DEFENDANTS' MOTION TO DISMISS WITH PREJUDICE; AND (2) DENYING DEFENDANTS' MOTION FOR SANCTIONS

Before the Court is Defendants United States of America, et al.'s ("Defendants") Amended Motion to Dismiss under Federal Rule 12(b)(6), Motion to Dismiss under Federal Rule 12(b)(2), (4), and (5), Motion for Summary Judgment in the alternative, and Motion for Sanctions. [Doc. No. 15.] Plaintiff Elmer R. Seevers (Plaintiff) has not filed an Opposition to the Motion. The Court has determined the issues presented herein are appropriate for decision without oral argument. See S.D. Cal. Civ. R. 7.1(d)(1) (2006). For the reasons set forth below, the Court (1) GRANTS Defendants' Motion to Dismiss with prejudice, and (2) DENIES Defendants' Motion for Sanctions.

Background

Prior Administrative Proceedings This case arises out of the partial denial of benefits to Plaintiff under the Federal Employee's Compensation Act ("FECA") for injuries dating back to 1984. Plaintiff has litigated his claims through many administrative channels and has unsuccessfully brought five previous actions in the district court relating to these claims. Plaintiff has failed to provide a clear statement of the factual and procedural background of this case. Therefore, the following facts are taken from the November 10, 1997, Order Granting Defendants' Motion to Dismiss with Prejudice, Civil No. 97-0396 K (CGA):

From May 7, 1984 until January 25, 1985, plaintiff was employed as a physical science technician at the Mare Island Naval Shipyard in Vallejo, California. His employment was terminated during his probationary year. On December 11, 1984, prior to his termination, while containing a chemical spill, plaintiff suffered injuries causing throat irritation. On December 19, 1984, plaintiff filed a notice of traumatic injury and claim for continuation of pay/compensation with the Office of Workers' Compensation ("OWCP"). The OWCP accepted plaintiff's claim for chemical inhalation. This claim sought benefits under FECA.

OWCP approved continuation of pay and paid temporary disability compensation for December 28, 1984 through April 1, 1985. In a March 26, 1986 decision, OWCP found that plaintiff was not disabled for work beyond April 1, 1985. The case was kept open, however, for medical benefits. Three administrative bodies affirmed this March 1986 decision: (1) the Branch of Hearings and Review (the "Branch") on June 30, 1987; (2) OWCP (on a request for reconsideration) on September 24, 1987 and (3) the Employee's Compensation Appeals Board ("ECAB") on March 31, 1988. During and after this review process, plaintiff continued to submit medical reports regarding various physical complaints. In addition, OWCP referred plaintiff for second opinion evaluations. Plaintiff claims that OWCP provided false information to the doctors who performed these evaluations.

On September 11, 1990, plaintiff filed with OWCP a notice of occupational disease and claim for compensation asserting that his chronic throat problem was aggravated during subsequent employment at the Census Bureau. On September 16, 1991, OWCP denied benefits on this claim because plaintiff failed to show a casual nexus between his injuries and his federal employment. On July 15, 1992, however, the OWCP hearing representative issued a decision setting aside the September 16, 1991 decision and returning the case to the District Office (the "Office") for a de novo decision. On November 20, 1992, the Office accepted plaintiff's claim (File No. A13-940120) for a temporary aggravation of chronic laryngitis for the period of his employment with the Census Bureau. The Office also accepted the conditions of chronic laryngitis, vocal cord scarring and partial vocal cord paralysis as resulting from the December 11, 1984 employment injury. (File No. A13-759139).

On October 6, 1994, following further medical evaluations and reports, the Office denied plaintiff any further benefits, finding that although the Office accepted plaintiff's claim for temporary aggravation of chronic laryngitis stemming from his work at the Census Bureau, this temporary aggravation ended when his work at the Census Bureau ended and he was no longer exposed to the aggravating conditions. The Office found no residual disfunction and no resulting disability due to the temporary aggravation of plaintiff's chronic laryngitis. With respect to plaintiff's previous claim in connection with his December 11, 1984 injury, because the Office found that plaintiff had residuals from the injury, it decided to leave the case open so that plaintiff could receive medical treatment and supplies when needed.

The Office further found, however, that while plaintiff's laryngitis would preclude him from jobs requiring moderate to extensive speaking, his previous job of physical science technician did not fall within this category. Plaintiff disagrees with this assessment. Because plaintiff would have been capable of performing that job had he not been terminated for cause, the Office did not alter the March 1986 decision denying disability benefits for any time after April 1, 1985 (except for the brief period of disability during his employment with the Census Bureau.)

Plaintiff requested a hearing to review the October 6, 1994 decision and on February 15, 1996 an OWCP hearing representative in Washington, D.C. affirmed the decision. Then on April 8, 1996, the Office denied plaintiff's request for reconsideration. After plaintiff requested a "reconsideration hearing," the OWCP, in an April 23, 1996 letter, explained that no such hearing existed and advised him that he could either request another reconsideration or file an appeal. Plaintiff chose to request another reconsideration which the Office denied on June 13, 1996 because plaintiff failed to present any new evidence or issues that the Office had not previously considered and thus did not meet the requirements for reconsideration.

Plaintiff again made a request for a hearing which the Office denied on June 27, 1996, explaining that under the regulatory scheme, plaintiff was not entitled to both a reconsideration and a hearing, but that plaintiff still had the right to appeal the June 13, 1996 decision to the ECAB and that plaintiff remained entitled to request reconsideration until April 8, 1997.

On October 17, 1996, plaintiff submitted a request for "administrative mandamus" to the Branch to obtain review of the written record. Plaintiff claimed that the Office violated various statutes and regulations. Many of these allegations appear in the complaint in the current action. On November 15, 1996, the Branch advised plaintiff that he was not entitled to a review of the written record because he had previously requested reconsideration. The Branch, nevertheless, considered plaintiff's request for reconsideration and denied it, stating that plaintiff must either submit new evidence or legal contentions to the District Office in a request for reconsideration, or file an appeal with ECAB. Plaintiff elected to submit an appeal to the ECAB. at 2-4 (citations omitted). On October 7, 1999, the ECAB issued its decision on Plaintiff's appeal. It affirmed the previous decisions of the OWCP and denied Plaintiff administrative relief. (See Mot. to Dismiss at 4, Ex. B.)

Prior Judicial Proceedings

Plaintiff has filed five previous complaints in federal district court relating to his 1984 injury and the subsequent administrative proceedings. (See Mot. to Dismiss at 4.) On March 25, 1988, Plaintiff filed a complaint in the Eastern District of California against the United States Government, Department of Navy ("DON"), Department of Labor ("DOL"), Office of Personnel Management, and Mare Island Naval Shipyard. See Seevers v. United States, et al., Civil No. 88-154 REC (E.D. Cal. 1988). In that complaint, Plaintiff alleged a variety of claims including the denial of workers' compensation benefits, the denial of disability retirement benefits, unfair labor practices, the removal of sick leave benefits, and termination of employment. See id. On May 18, 1990, after allowing Plaintiff two opportunities to amend his complaint, the court dismissed Plaintiff's complaint with prejudice for lack of subject matter jurisdiction. (See Decision and Order Re Defs.' ...


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