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Thomas v. U.S. Dep't of Labor Employment Standards Administration

July 14, 2008

WILBERT THOMAS, JR., PLAINTIFF
v.
U.S. DEPARTMENT OF LABOR EMPLOYMENT STANDARDS ADMINISTRATION, SECRETARY OF LABOR, AND R. DAVID LOTZ, DEFENDANTS



The opinion of the court was delivered by: Christopher C. Conner United States District Judge

(Judge Conner)

ORDER

AND NOW, this 14th day of July 2008, upon consideration of the report of the magistrate judge (Doc. 15), to which objections were filed (Doc. 16), recommending that defendants' motion to dismiss (Doc. 11) be granted, and, following an independent review of the record, it appearing that the Federal Employees' Compensation Act ("FECA") bars judicial review of the administrative determination of a federal employee's request for injury compensation under the FECA, see 5 U.S.C. § 8128(b); see also Southwest Maritime, Inc. v. Gizoni, 502 U.S. 81, 90 (1991), but that a court may hear a claim alleging a "substantial, cognizable" deprivation of constitutional rights resulting from the FECA administrative process, Freeman v. Herman, No. 98-2649, 1998 WL 813426, at *5 (E.D. Pa. Nov. 24, 1999); see also Kerrigan v. Chou, 151 Fed. App'x 129, 131 (3d Cir. 2005) (citing Czerkies v. U.S. Dep't of Labor, 73 F.3d 1435, 1438-43 (7th Cir.1996)), and the court concluding that plaintiff has failed to present a substantive constitutional question,*fn1 see Freeman, 1998 WL 813426, at *5 (citing Rodrigues v. Donovan, 768 F.2d 1344, 1348 (9th Cir. 1985) (stating that "a mere allegation of a constitutional violation would not be sufficient to avoid the effect of a statutory finality provision"), and that dismissal for lack of subject matter jurisdiction is proper in cases-such as the instant matter-in which the plaintiff's claims are "so insubstantial, implausible . . . or otherwise completely devoid of merit as not to involve a federal controversy," Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 89 (1998) (quoting Oneida Indian Nation of N.Y. v. County of Oneida, 414 U.S. 661, 666 (1974), it is hereby ORDERED that:

1. The report and recommendation of the magistrate judge (Doc. 15) is ADOPTED.

2. Defendants' motion to dismiss (Doc. 11) is GRANTED.

3. The Clerk of Court is directed to ...


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