The opinion of the court was delivered by: A Robert J. Bryan United States District Judge
This matter comes before the Court on Defendants' Motion to Dismiss and Motion for Injunctive Relief. Dkt. 7. This Court has considered the pleadings filed in support of and in opposition to these motions, and the remaining file herein.
On September 24, 2007, Plaintiff filed a civil suit against the United States, the Puget Sound Naval Shipyard ("PSNS"), and the Secretary of Labor for the Office of Workers' Compensation Programs ("OWCP"). Dkt. 1. His claims arise from his employment as a sandblaster at PSNS from 1979 to 1984, injuries he alleges he suffered as a result, and the Defendants' subsequent handling of his various workers' compensation claims pursuant to the Federal Employees' Compensation Act ("FECA"), 5 U.S.C. § 8128. Id. Plaintiff claims that Defendant OWCP's failure to provide him with disability compensation was a "fraudulent act," denied Plaintiff his "equal protection and procedural due process rights afforded to him by the 5th Amendment to the United States Constitution," and violated FECA. Id. at 3. Plaintiff refers to a OWCP decision issued on May 27, 2005, and a "Demand for Payment" letter Plaintiff sent on August 17, 2007 to OWCP. Id. Plaintiff alleges that Defendant OWCP did not respond to his letter of August 17, 2007. Id., at 5. Plaintiff seeks $5,000,000.00 in damages. Id.
This matter is one of several actions brought in U.S. District Court by Plaintiff against the United States, its agencies, and employees regarding his employment at PSNS and the denial of his FECA benefits. See e.g. Walker v. United States Dept. of Labor, et al., Western District of Washington cause number C96-842; Walker v. United States, et al., Western District of Washington cause number C97-1279; Walker v. United States, et al., Western District of Washington cause number C03-1418L; Walker v. United States, et al., Western District of Washington cause number C05-5742RJB.
In May of 1996, Plaintiff filed suit in U.S. District Court under the Federal Tort Claims Act ("FTCA") alleging OWCP erroneously denied his claim for benefits, committed various torts including "negligence, medical malpractice, wantonness, willfulness, and constitutional violations" (Case No. C96-842). Dkt. 8-2, at 26-37. The case was dismissed for 1) lack of subject matter jurisdiction due to Plaintiff's failure to file an administrative tort claim, 2) lack of subject matter jurisdiction to review denial of worker's compensation benefits, and 3) a finding that his constitutional claims were not cognizable under FTCA. Dkt. 8-3, at 2-3.
On August 4, 1997, Plaintiff filed suit under the FTCA against the United States, OWCP, PSNS and various individual employees of the United States, (No. C97-1279). Dkt. 8-3, at 12-23. Plaintiff's Complaint alleged that his worker's compensation claims had been denied because he was black, and therefore deprived him of his equal protection rights, and that he had been deprived of due process in the denial of his claims. Id. The matter was dismissed upon the government's motions for summary judgment because Plaintiff failed to support his equal protection claim with sufficient evidence and the evidence established that he had no valid due process claim. Id. at 25-31.
In June of 2003, Plaintiff again filed suit in the Western District of Washington, (No. C03-1418RSL). Dkt. 8-4, at 18-25. In that matter, Plaintiff alleged in his Complaint ("2003 Complaint") that PSNS failed to supply him with adequate protective clothing, PSNS negligently and wantonly ordered him back to work even though he had demonstrated that repeated exposure was worsening his condition, and that sending him back to his regular duties constituted medical malpractice. Id. He alleged PSNS and OWCP conspired against him to deny his worker's compensation benefits. Id. Plaintiff alleged violations of his equal protection and due process rights. Id. Plaintiff alleged that OWCP's denial of his claims amounted to fraud. Id. The action was dismissed because: 1) Plaintiff's claims under the FTCA were not properly exhausted and they were barred by the exclusive remedy provision of the FECA, 2) Plaintiff failed to allege sufficient facts to support his fraud or civil conspiracy claims, 3) the United States did not waive sovereign immunity and so any monetary damages asserted for alleged violations of his equal protection or due process rights would be barred, and 4) lack of subject matter jurisdiction to review the merits of his worker's compensation claim. Dkt. 8-5, at 24-27.
On November 14, 2005, Plaintiff filed a civil suit against the United States, PSNS, and the OWCP. Walker v. United States, et al., Western District of Washington Cause number 05-5742RJB. Plaintiff's Complaint in this case ("2005 Complaint") indicated that at some time during his employment he was placed on light duty, but was ordered to return to his regular duties in February of 1983. Dkt. 8-9, at 2. Plaintiff's 2005 Complaint alleged that as a result of having contact "with offending agents" he "sustained an allergic sensitization injury and disease, which from February 1983 through July 1983 caused Plaintiff's eczema, asthma and urticaria injuries, along with allergy to molds, pollens and latex injury, while in performance of his duties as a sandblaster for Defendant PSNS." Id. at 4. Plaintiff claimed, in his 2005 Complaint, that as a result of being ordered back to his regular duties, Defendants violated his "equal protection and due process rights because the Plaintiff was denied of his rights to receive reasonable accommodation for his said physical handicaps and work restrictions, in clear violation of Section 501 of the Rehabilitation Act of 1973." Id. at 6. Plaintiff further alleged that his equal protection and due process rights, and FECA were violated when Defendant OWCP denied his "employment related urticaria and allergy to molds, pollens and latex claims" due to lack of medical evidence.
Id. at 6, 8. Plaintiff alleged that OWCP's decision, in January of 2004, to designate his "employment related asthma claim" a "temporary aggravation" violated his equal protection and due process rights, and FECA, because there was medical evidence to the contrary. Id. at 10. Plaintiff also made allegations regarding the manner in which the Defendants were processing his FECA claims. For example, Plaintiff alleged that Defendant PSNS's failure to timely complete a worker's compensation form in June of 2004, violated his equal protection and due process rights. Id. at 11.
On July 18, 2006, Plaintiff's claims relating to events occurring before April 28, 2004 were dismissed with prejudice because they were barred by res judicata. Dkt. 8-9, at 15. (April 28, 2004 was the date cause number C03-1418RSL, filed in the Western District of Washington, was dismissed.) All non-constitutional claims related to events occurring after April 28, 2004 were dismissed with prejudice because Plaintiff had not exhausted his administrative remedies as required by the FTCA, and because federal court review of the merits of Plaintiff's FECA claim is generally precluded by 5 U.S.C. § 8128. Id., at 6 (citing Rodrigues v. Donovan, 769 F.2d 1344 (9th Cir. 1985). However, because the Ninth Circuit has determined that federal courts do retain jurisdiction to review substantial constitutional claims relating to the denial of FECA benefits, See Rodrigues at 1348, Plaintiff's constitutional claims, based on events occurring after April 28, 2004, were dismissed without prejudice. Id. (finding that Plaintiff failed to allege sufficient facts to support those claims). Plaintiff was given fourteen days to amend his complaint upon the following narrowly drawn grounds: "facts which have arisen after the April 28, 2004 order dismissing his 2003 case, which Plaintiff alleges support substantial constitutional violations in the denial of his FECA benefits." Id., at 7. Plaintiff was cautioned that monetary damages would be barred as a matter of law for claims that his constitutional rights were violated in the denial of his FECA claim, as the United States and its agencies have not waived their sovereign immunity from lawsuits seeking money damages for constitutional violations in this context. Id. (citing Daly-Murphy v. Winston, 837 F.2d 348, 356 (9th Cir. 1987)).
Plaintiff filed an Amended Complaint on July 27, 2006 ("2005 Amended Complaint").
Dkt. 8-9, at 25. Plaintiff's claims arose from two written decisions by OWCP. Id. The first is a letter dated January 30, 2004, which opened Plaintiff's employment related asthma injury claim, but only for temporary aggravation and not for permanent disability. Id. at 26-7. The second decision, dated May 27, 2005, was a determination that Plaintiff was not disabled and was not entitled to wage compensation. Id. Plaintiff's 2005 Amended Complaint stated that: 1) OWCP "denied him of his equal protection rights guaranteed by U.S.C.A. [sic] Const. Amend. 14, by concluding that their correspondence dated January 30, 2004 was not intended as, nor does it constitute a decision, causing Plaintiff to be denied of his right to file an Appeal," 2) OWCP's May 27, 2005, decision to deny Plaintiff's FECA claim for benefits "denied Plaintiff of his equal protection rights guaranteed by U.S.C.A. [sic] Const. Amend. 14, because Plaintiff had provided said defendant with a medical report dated June 8, 2004" which indicated he was disabled, and 3) OWCP committed fraud against Plaintiff "when stating in their decision dated May 27, 2005, that at the time of Plaintiff's termination his employing agency was providing him light duty for his work injury" and
When stating in their decision dated May 27, 2005, that he have [sic] not provided any evidence that his employing agency committed any error or abuse in his case, because the Plaintiff had provided said defendant with two medical reports . . . . But because of Plaintiff's race (Black), said Defendant so negligently, wantonly or willfully concluded that Plaintiff have not ...