FINDINGS AND RECOMMENDATIONS
DALE A. DROZD, Magistrate Judge.
This matter came before the court on December 14, 2012, for hearing of defendants' motion to dismiss plaintiff's complaint pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure. Attorney Chi Kim appeared on behalf of the defendants. Plaintiff Dayle Lewis appeared at the hearing on his own behalf. Oral argument was heard and the motion was taken under submission.
Plaintiff commenced this action on September 24, 2012, by filing an application to proceed in forma pauperis and a motion for a temporary restraining order. (Doc. Nos. 1 & 2.) On September 25, 2012, the assigned District Judge ordered plaintiff to file a complaint. (Doc. No. 3.) Plaintiff filed his complaint in this action on October 22, 2012. (Doc. No. 5.) Therein, plaintiff alleges that the U.S. Office of Workers' Compensation Programs ("OWCP") discriminated and retaliated against him by reducing his compensation award. (Compl. (Doc. No. 5) at 2.) On November 2, 2012, the assigned District Judge issued an order denying plaintiff's motion for a temporary restraining order. (Doc. No. 7.)
On November 16, 2012, defendants noticed for hearing before the undersigned the motion to dismiss now pending before the court. (Doc. Nos. 10 & 12.) Although plaintiff did not file written opposition to defendants' motion, he nonetheless appeared at the December 14, 2012 hearing and stated his opposition to the motion.
Federal Rule of Civil Procedure 12(b)(1) allows a defendant to raise the defense, by motion, that the court lacks jurisdiction over the subject matter of an entire action or of specific claims alleged in the action. "A motion to dismiss for lack of subject matter jurisdiction may either attack the allegations of the complaint or may be made as a speaking motion' attacking the existence of subject matter jurisdiction in fact." Thornhill Publ'g Co. v. Gen. Tel. & Elecs. Corp. , 594 F.2d 730, 733 (9th Cir. 1979).
When a party brings a facial attack to subject matter jurisdiction, that party contends that the allegations of jurisdiction contained in the complaint are insufficient on their face to demonstrate the existence of jurisdiction. Safe Air for Everyone v. Meyer , 373 F.3d 1035, 1039 (9th Cir. 2004). In a Rule 12(b)(1) motion of this type, the plaintiff is entitled to safeguards similar to those applicable when a Rule 12(b)(6) motion is made. See Sea Vessel Inc. v. Reyes , 23 F.3d 345, 347 (11th Cir. 1994); Osborn v. United States , 918 F.2d 724, 729 n. 6 (8th Cir. 1990). The factual allegations of the complaint are presumed to be true, and the motion is granted only if the plaintiff fails to allege an element necessary for subject matter jurisdiction. Savage v. Glendale Union High Sch. Dist. No. 205 , 343 F.3d 1036, 1039 n. 1 (9th Cir. 2003); Miranda v. Reno , 238 F.3d 1156, 1157 n. 1 (9th Cir. 2001). Nonetheless, district courts "may review evidence beyond the complaint without converting the motion to dismiss into a motion for summary judgment" when resolving a facial attack. Safe Air for Everyone , 373 F.3d at 1039.
When a Rule 12(b)(1) motion attacks the existence of subject matter jurisdiction, no presumption of truthfulness attaches to the plaintiff's allegations. Thornhill Publ'g Co. , 594 F.2d at 733. "[T]he district court is not restricted to the face of the pleadings, but may review any evidence, such as affidavits and testimony, to resolve factual disputes concerning the existence of jurisdiction." McCarthy v. United States , 850 F.2d 558, 560 (9th Cir. 1988). When a Rule 12(b)(1) motion attacks the existence of subject matter jurisdiction in fact, plaintiff has the burden of proving that jurisdiction does in fact exist. Thornhill Publ'g Co. , 594 F.2d at 733.
The Federal Employees' Compensation Act ("FECA"), 5 U.S.C. § 8101 et seq., "establishes a comprehensive and exclusive workers' compensation scheme for federal employees." Markham v. United States , 434 F.3d 1185, 1187 (9th Cir. 2006). Except for certain specific exceptions, FECA requires the United States to pay compensation for the disability or death of an employee resulting from personal injury sustained while in the performance of his or her duty. 5 U.S.C. § 8102(a). FECA's exclusivity provision bars recovery for those injured while working for the United States pursuant to other statutes, providing that "[t]he liability of the United States... under this subchapter... is exclusive and instead of all other liability of the United States... to the employee... and any other person otherwise entitled to recover damages from the United States... under a Federal tort liability statute." 5 U.S.C. § 8116(c).
"In enacting [FECA], Congress adopted the principal compromise... commonly found in workers' compensation legislation: employees are guaranteed the right to receive immediate, fixed benefits, regardless of fault and without need for litigation, but in return they lose the right to sue the Government." Lockheed Aircraft Corp. v. United States , 460 U.S. 190, 194 (1983) (citations omitted). See also Moe v. U.S. , 326 F.3d 1065, 1068 (9th Cir. 2003) ("In other words, if compensation is available under FECA, all other statutory remedies for claims arising under the same facts are preempted.").
In this regard, 5 U.S.C. § 8128(b) of FECA "provides that the courts do not have jurisdiction to review FECA claims challenging the merits of benefit determinations...." Markham , 434 F.3d at 1187. There are, however, two narrow exceptions to the absolute jurisdictional bar on such FECA claims, but those exceptions provide jurisdiction only for the court's consideration of constitutional challenges or claims for violation of a clear statutory mandate or prohibition. See Staacke v. U.S. Secretary of Labor , 841 F.2d 278, 281 (9th Cir. 1988).
Under FECA, the Secretary of Labor makes all necessary determinations and findings of fact regarding payment of compensation after considering the claim presented and completing such investigation as she considers necessary. 5 U.S.C. § 8124. The Secretary may prescribe rules and regulations necessary for the administration and enforcement of FECA, including rules and regulations for the conduct of hearings. 5 U.S.C. § 8149. The Secretary may appoint employees to administer FECA and delegate powers. 5 U.S.C. § 8145. The Secretary has ...