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Robinson v. U.S. Air Force

United States District Court, W.D. Texas, San Antonio Division

September 24, 2019




         Before the Court in the above-styled cause of action are Plaintiff’s pro se Application to Proceed in District Court without Prepaying Fees or Costs and proposed civil complaint, filed September 12, 2019 [#1]. The motion was automatically referred to the undersigned upon filing, and the undersigned has authority to enter this order pursuant to 28 U.S.C. § 636(b)(1)(A). By his motion, Plaintiff seeks leave to proceed in forma pauperis (“IFP”) based on his inability to afford court fees and costs. Having considered the motion and documentation provided by Plaintiff, the Court will grant the motion to proceed IFP but order Plaintiff to file a more definite statement before ordering service on Defendants.

         I. Motion to Proceed IFP

         All parties instituting any civil action, suit, or proceeding in a district court of the United States, except an application for a writ of habeas corpus, must pay a filing fee of $350, as well as an administrative fee.[1] See 28 U.S.C. § 1914(a). Plaintiff’s motion to proceed IFP includes his income and asset information, which indicates that Plaintiff is unemployed but receives approximately $140.00 per month in pension, $74.00 per month in Social Security annuity, and $577.00 per month in other benefits. Plaintiff claims limited assets, lives in an R.V., and has only $250.00 in his checking account. The information demonstrates that Plaintiff does not have sufficient monthly resources available to pay the filing fee, and the Court will grant the motion to proceed IFP.

         II. More Definite Statement

         Pursuant to 28 U.S.C. § 1915(e), the Court is empowered to screen any civil complaint filed by a party proceeding IFP to determine whether the claims presented are (1) frivolous or malicious; (2) fail to state a claim on which relief may be granted; or (3) seek monetary relief against a defendant who is immune from such relief.[2] See 28 U.S.C. § 1915(e)(2)(B). Plaintiff’s Complaint sues the United States Air Force, Tinker Air Force Base, the Department of Labor, the United States Office of Personnel Management (“OPM”), and Randolph Air Force Base under the Rehabilitation Act of 1973, 29 U.S.C. § 791, et seq. for race and disability discrimination and retaliation in the workplace. (Compl. [#1-1] at 1–3.) Plaintiff’s Complaint alleges that Defendants discriminated against him on March 22, 1984 when they terminated his employment due to a knee injury he sustained while playing basketball in the workplace.[3] (Id. at 2–5.) Plaintiff seeks damages in the amount of $10, 000, 000. (Id. at 5.) According to Plaintiff’s Complaint, he filed charges with the Equal Employment Opportunity Commission (“EEOC”) regarding the alleged discrimination in November 1988, and the EEOC issued its right-to-sue notice on October 26, 1990. (Id. at 1.)

         Attached to Plaintiff’s Complaint are numerous exhibits, which include a handwritten chronology of his medical history, medical records, governmental documents related to his employment, and previous records of an administrative claim filed with the Office of Workers’ Compensation Program (“OWCP”). (Exhibits [#1-1] at 6–107.) These records indicate that Plaintiff was terminated from his position as an aircraft mechanic from Tinker Air Force Base in Oklahoma City based on a disability, but the date and other pertinent details on the termination documentation are illegible. (OPM Records [#1-1] at 25.) Other documents state the termination was on January 22, 1991. (Records [#1-1] at 26.) Records from what appears to be an administrative claim explain that Plaintiff applied for and was approved for disability retirement by OPM under the Federal Employees Retirement System (“FERS”). (Id.) Plaintiff also applied for workers compensation with the Department of Labor. (Id.) The claim was approved by OWCP. (Id.)

         Records attached to Plaintiff’s Complaint demonstrate that OWCP subsequently found that he was no longer totally disabled and reduced his workers’ compensation benefits. (DOL Records [#1-1] at 30.) Plaintiff prevailed in an appeal of this decision to the U.S. Department of Labor’s Employees’ Compensation Appeals Board in January 2000, and the board reopened his case for merits review. (Id. at 26–27, 30.) The ultimate merits decision on February 4, 2000, however, was not favorable to Plaintiff, and Plaintiff has since repeatedly attempted to convince OWCP to reconsider its decision. (Id. at 33.) Department of Labor correspondence indicates that as of August 28, 2019, Plaintiff had still been unsuccessful. (Id. at 33–43.)

         There are a number of factual and legal issues with Plaintiff’s Complaint that could be complete bars to his claims of race and disability discrimination and retaliation under the Rehabilitation Act. The Rehabilitation Act, a precursor to the Americans with Disabilities Act, prohibits discrimination against federal employees with disabilities. See 29 U.S.C. § 794(a) (forbidding disability discrimination by “any program or activity receiving Federal financial assistance”). The Rehabilitation Act’s anti-discrimination provision indicates that “[t]he standards used to determine whether this section has been violated . . . shall be the standards applied under title I of the American with Disabilities Act of 1990 and the provisions of sections 501 through 504, and 510 of the American with Disabilities Act of 1990, as such sections related to employment.” 29 U.S.C. § 794. The Rehabilitation Act incorporates the standards used in ADA cases, which are subject to the Title VII burden-shifting analysis. Daigle v. Liberty Life Ins. Co., 70 F.3d 394, 396 (5th Cir. 1995); see also Daugherty v. City of El Paso, 56 F.3d 695, 697–98 (5th Cir. 1995).

         In order to qualify for relief under the Rehabilitation Act, a plaintiff must prove that: (1) he was an “individual with a disability”; (2) he was “otherwise qualified”; (3) he worked for a covered program or activity; and (4) he was adversely treated solely because of his disability. Hileman v. City of Dallas, Tex., 115 F.3d 352, 353 (5th Cir. 1997). An individual with a disability is someone who: (1) has a physical or mental impairment which “substantially limits one or more of such person’s major life activities; (2) has a “record” of such an impairment; or (3) is “regarded” as having such an impairment. Id. at 353.

         A plaintiff must exhaust his administrative remedies before pursuing a Rehabilitation Act claim against a federal agency, but it need not do so before suing a federal grantee. Taylor v. City of Shreveport, 798 F.3d 276, 284 (5th Cir. 2015). Texas’s two-year statute of limitations governing personal-injury suits applies to claims arising under the Rehabilitation Act. Hickey v. Irving Indep. Sch. Dist., 976 F.2d 980, 982 (5th Cir. 1992); see also Tex. Civ. Prac. & Rem. Code § 16.003(a) (“[a] person must bring suit for . . . personal injury . . . not later than two years after the day the cause of action accrues.”).

         Plaintiff’s Complaint, when viewed in conjunction with the attached exhibits, suggests that he is not suing Defendants regarding his termination from employment in the 1980s but rather is suing Defendants for the recent denials of his administrative petitions for reconsideration of OWCP’s denial of his appeal of its decision that he is not totally disabled, which resulted in the reduction of his workers’ compensation benefits. In any event, if Plaintiff were attempting to challenge his termination in the 1980s, this claim would be time-barred under the two-year statute of limitations applicable to the Rehabilitation Act. If Plaintiff is attempting to challenge OWCP’s decision regarding the reduction of his workers’ compensation benefits, this claim would not fall under the Rehabilitation Act. Plaintiff seems to be advancing some type of claim for judicial review of his administrative claim before OWCP.

         The Federal Employees Compensation Act (“FECA”) provides workers’ compensation coverage for federal civilian employees who are injured while in the performance of their duties. 5 U.S.C. § 8102(a). FECA vests with the Secretary of Labor the power to “administer, and decide all questions arising under [FECA].” 5 U.S.C. § 8145. Under the authority granted in Section 8145(2), the Secretary has delegated responsibility for FECA management to the Director of OWCP. Woodruff v. U.S. Dep’t of Labor, Office of Workers Comp. Program, 954 F.2d 634, 637 (11th Cir. 1992). FECA allows for the appeal of an administrative decision by OWCP to the Employees’ Compensation Appeals Board. 20 C.F.R. § 501.2(c). It appears that Plaintiff employed this process in challenging the reduction of his benefits.

         The Secretary’s ultimate decision to award or deny compensation to a particular claimant under FECA is final and conclusive and not subject to judicial review. 5 U.S.C. § 8128(b); White v. United States, 143 F.3d 232, 234 (5th Cir. 1998). Although 5 U.S.C. § 8128(b) bars a federal-court action challenging an administrative decision to deny FECA benefits, the statute does not prohibit review of “substantial” of “cognizable” constitutional claims, such as a violation of due process. Ramirez v. Dir., Office of Workers’ Comp. Programs, 102 Fed. App’x 384, 385 (5th Cir. 2004) (citing Benton v. United States, 960 F.2d 19, 22 (5th Cir. 1992)). Even if Section 8128 does not bar judicial review because a constitutional claim challenging the administrative process is raised, the claimant cannot obtain substantive relief or money damages. Munn v. United States Dep’t of Labor, 714 Fed. App’x 387, 390 (5th Cir. 2018) (citing Czerkies v. United States Department of Labor, 73 F.3d 1435, 1439 (7th Cir. 1996) (en banc)). Where a ...

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