Melvin Gilmore v. Director, Us Dept. Of Labor , 455 F. App'x 934 ( 2012 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 11-12747 FEBRUARY 6, 2012
Non-Argument Calendar JOHN LEY
________________________ CLERK
D.C. Docket No. 8:10-cv-02433-SDM-TBM
MELVIN GILMORE,
llllllllllllllllllllllllllllllllllllllllPlaintiff-Appellant,
versus
DIRECTOR, U.S. DEPARTMENT OF LABOR,
Office of Workers Compensation,
llllllllllllllllllllllllllllllllllllllllDefendant-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(February 6, 2012)
Before DUBINA, Chief Judge, MARCUS and MARTIN, Circuit Judges.
PER CURIAM:
Proceeding pro se, Appellant Melvin Gilmore appeals the dismissal of his
complaint filed pursuant to the Federal Employees’ Compensation Act, 5 U.S.C.
§ 8101 et seq., (“FECA”), for lack of subject-matter jurisdiction. On appeal,
Gilmore argues that the U.S. Department of Labor’s (“DOL”) Office of Workers’
Compensation Program (“OWCP”) failed to properly implement the decision of
the DOL’s Employees’ Compensation Appeals Board (the “Board”), dated
February 23, 2005, that required the OWCP to restore his full benefits and make
retroactive payments. He maintains that the OWCP’s actions were a violation of
his Fifth Amendment due process rights. Gilmore also states that pursuant to 5
U.S.C. § 706, the district court retained jurisdiction to enforce the Board’s 2005
decision because he was not asking for a review of the facts of the case, but rather,
seeking an adjustment of benefits previously awarded, pursuant to 5 U.S.C. §
8128(a).
We review de novo the district court’s dismissal of the complaint for lack of
subject-matter jurisdiction and construe the facts favorably to the plaintiff. Parise
v. Delta Airlines, Inc., 141 F.3d 1463, 1465 (11th Cir. 1998). To establish
jurisdiction, “the pleader must affirmatively allege facts demonstrating the
existence of jurisdiction and include ‘a short and plain statement of the grounds
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upon which the court’s jurisdiction depends.’” Taylor v. Appleton, 30 F.3d 1365,
1367 (11th Cir. 1994) (quoting Fed. R. Civ. P. 8(a)). Although we liberally
construe pro se pleadings, pro se litigants nonetheless are required to abide by
procedural rules. Moton v. Cowart, 631 F.3d 1337, 1341 n.2 (11th Cir. 2011). The
district court has an obligation to look behind the label of a pro se motion and, if
possible, interpret it as any request for relief over which the court may have
jurisdiction. United States v. Jordan, 915 F.2d 622, 624-25 (11th Cir. 1990).
Federal courts have limited jurisdiction and are “obligated to inquire into
subject matter jurisdiction sua sponte whenever it may be lacking.” Bochese v.
Town of Ponce Inlet, 405 F.3d 964, 975 (11th Cir. 2005) (quoting Univ. of S. Ala.
v. Am. Tobacco Co., 168 F. 3d 405, 410 (11th Cir. 1990)). If at any time during
the proceedings the court determines that it lacks subject-matter jurisdiction, “the
court must dismiss the action.” Fed. R. Civ. P. 12(h)(3). “The district courts shall
have original jurisdiction of all civil actions arising under the Constitution, laws, or
treaties of the United States.” 28 U.S.C. § 1331. However, even a claim that arises
under the Constitution, laws, or treaties of the United States may be dismissed for
lack of subject-matter jurisdiction if (1) “the alleged claim under the Constitution
or federal statutes clearly appears to be immaterial and made solely for the purpose
of obtaining jurisdiction,” or (2) “such a claim is wholly insubstantial and
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frivolous.” Blue Cross & Blue Shield of Ala. v. Sanders, 138 F.3d 1347, 1352
(11th Cir. 1998) (citation omitted).
The FECA is a comprehensive and exclusive workers’ compensation scheme
for federal civilian employees who are injured or killed while performing their
work duties. Noble v. United States, 216 F.3d 1229, 1234 (11th Cir. 2000).
Central to the FECA’s statutory scheme is the Secretary of Labor (the “Secretary”),
who has the authority to administer and decide all questions arising under the
FECA. Id. The Secretary has delegated its authority to oversee the FECA’s
administration and implementation to the Director of the OWCP. Id. The
Secretary retains the ability to review an award for or against payment of benefits
at any time on his own motion, or by application. 5 U.S.C. § 8128(a).
However, the FECA bars judicial review of the Secretary’s decision
allowing or denying an award of benefits. 5 U.S.C. § 8128(b). The Supreme Court
has noted that the “FECA contains an ‘unambiguous and comprehensive’ provision
barring any judicial review of the Secretary of Labor’s determination of FECA
coverage.” Sw. Marine, Inc. v. Gizoni, 502 U.S. 81, 90, 112 S. Ct. 486 (citation
omitted). Moreover, “[c]onclusions of law and fact made by the Secretary or the
[Employees’ Compensation Appeals Board] are also immune from judicial
review.” Woodruff v. U.S. Dep’t of Labor, 954 F.2d 634, 637 (11th Cir. 1992)
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(citation omitted). However, there are two instances in which a federal court may
exercise jurisdiction over a final decision of the Secretary under the FECA,
namely, when (1) a clear statutory mandate or prohibition has been violated, or
(2) there is a colorable constitutional claim. Id. at 639-40.
Gilmore alleges several constitutional and statutory violations by the
Director of the OWCP. However, the only matters of substance that would fall
within the two exceptions to 5 U.S.C. § 8128(b) are Gilmore’s assertions that the
Director deprived him of his substantive and procedural due process rights.
Gilmore alleges that he suffered a deprivation of property (back pay and interest)
when the Director failed to implement the Board’s February 2005 decision.
However, a review of that decision shows no entitlement to back pay and interest –
only that the OWCP should have considered a modification of Gilmore’s wage-
earning capacity based on his alleged recurrence of total disability. On remand, the
OWCP concluded that a modification was not warranted and further denied
Gilmore’s motion for reconsideration. As the OWCP’s decision was based on a
factual inquiry, it is immune from judicial review. Woodruff, 954 F.2d at 637
(citing 5 U.S.C. § 8128(b)). As for the alleged procedural due process claim, the
Supreme Court has held that “[t]he fundamental requirement of due process is an
opportunity to be heard ‘at a meaningful time and in a meaningful manner.’”
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Mathews v. Eldridge, 424 U.S. 319, 333, 96 S. Ct. 893, 902, (1976) (citation
omitted). Gilmore does not demonstrate a deprivation of the opportunity to notice
or hearing.
Because the record demonstrates that Gilmore failed to show that the
Director violated a clear statutory mandate or assert a colorable constitutional
claim, we conclude that the district court properly dismissed his complaint for lack
of subject-matter jurisdiction. Accordingly, we affirm the judgment of dismissal.
AFFIRMED.
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