1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6

YVONNE JETT,

7 Case No. 24-cv-01472-SK Plaintiff, 8 v. ORDER GRANTING DEFENDANTS’ 9 MOTION TO DISMISS U.S. POST OFFICE, et al., 10 Regarding Docket No. 51 Defendants. 11

12 This matter comes before the Court upon consideration of the motion to dismiss for lack of 13 subject matter jurisdiction filed by Defendants the United States Postal Service, the United States 14 Department of Labor, and the Office of Workers’ Compensation Programs (collectively, 15 “Defendants”). (Dkt. No. 51.) All parties have consented to the jurisdiction of a magistrate judge. 16 (Dkt. Nos. 4, 34.) Having carefully considered the parties’ papers, relevant legal authority, and 17 the record in the case, and having had the benefit of oral argument, the Court hereby GRANTS 18 Defendants’ motion for the reasons set forth below. 19 FACTUAL ALLEGATIONS 20 Plaintiff Yvonne Jett (“Plaintiff”) alleged the following facts, which the Court accepts as 21 true for purposes of this motion. The FAC is not entirely clear. As Plaintiff is proceeding pro se, 22 the Court makes every effort to make sense of Plaintiff’s allegations and give inferences in her 23 favor. 24 Plaintiff was employed by the United States Postal Service (“USPS”). (Dkt. No. 12, ¶ 6.) 25 On July 22, 1981, she was injured while lifting sacks of mail. (Id. at ¶ 6, p. 11.) The USPS then 26 terminated Plaintiff’s employment. (Id. at ¶ 7.) In addition, Plaintiff applied for federal workers’ 27 compensation benefits, but her claim was denied. (Id. at ¶ 7.) Plaintiff also states that her claim 1 In 2000, the USPS rehired Plaintiff on “limited duty” because she had a cumulative work 2 injury in her neck. (Id. at ¶ 7, p. 11.) The USPS failed to accommodate her disability. (Id. at ¶ 8.) 3 Because the USPS did not accommodate Plaintiff’s limitations, she worked “on and off.” (Id. at ¶ 4 9.) Plaintiff believes the USPS retaliated against her because of her injury. (Id.) 5 The USPS requested Plaintiff undergo a Functional Capacity Evaluation (“FCE”). (Id. at ¶ 6 11.) Plaintiff underwent the FCE on June 21, 2005. (Id. at ¶ 12, p. 11.) During the FCE, 7 Plaintiff’s left hand was injured. (Id. at ¶ 12.) Due to Plaintiff’s injury, the FCE examiner assisted 8 Plaintiff by having Plaintiff perform tasks with only her right hand, while the examiner performed 9 the left-handed movements. (Id. at ¶ 13.) Plaintiff asserts that the FCE reports intentionally 10 omitted information about the examiner’s assistance. (Id. at ¶¶ 21-24.) After the FCE, Plaintiff 11 was in severe pain from performing strength tests. (Id. at ¶ 14.) 12 The next day, Plaintiff sough medical treatment due to pain in her left wrist and hand, 13 “along with discomforts all over [her] body including [her] neck.” (Id. at ¶ 15.) Plaintiff’s 14 treating physician diagnosed her with wrist tendonitis and “triangular fibrocartilage complex.”1 15 (Id. at ¶ 16.) 16 Plaintiff filed a workers’ compensation claim based on the injury Plaintiff sustained during 17 the FCE. (Id. at ¶ 17.) USPS investigated Plaintiff for a month and a half. (Id. at ¶ 18.) Plaintiff 18 references a surveillance video that, according to the USPS, showed Plaintiff carrying pizzas in 19 her left hand. (Id. at ¶ 21.) Plaintiff asserts this surveillance video was altered such that her right 20 hand appeared to be her left hand (a mirror image). (Id. at ¶ 20.) Following the investigation, 21 Plaintiff’s workers’ compensation claim was denied, and she was “fired for getting hurt again.” 22 (Id. at ¶ 19.) Plaintiff requested reconsideration and appealed the denial of her claim. (Id. at ¶ 23 26.) At some point between 2021 and 2023, Plaintiff learned that two doctors who examined her 24 “were compromised and not impartial,” and that they fraudulently made medical reports in 2021 25 without re-examining Plaintiff. (Id. at ¶¶ 37-40.) 26 Plaintiff asserts that she went back to school to learn why she was not gaining relief and 27 1 realized that “they would never give me any fairness, impartiality, or due process.” (Id.) 2 CAUSES OF ACTION 3 Plaintiff’s First Amended Complaint alleges a number of grievances against Defendants. 4 Reviewing it with the liberality afforded pro se litigants, the Court construes it to allege a cause of 5 action under the Administrative Procedures Act for violating the Federal Employee Compensation 6 Act (“FECA”), a constitutional claim for violation of the Fifth Amendment’s guarantee of 7 procedural due process, a cause of action under Section 501 of the Rehabilitation Act for disability 8 discrimination,2 and a state law claim for fraud, on the following theories: 9 • The Office of Workers’ Compensation Programs (“OWCP”) improperly denied Plaintiff 10 FECA benefits, (Id. at ¶ 34.); 11 • OWCP denied Plaintiff FECA benefits without due process of law, (Id. at ¶¶ 34, 35, 36.); 12 • OWCP improperly ignored evidence of the FCE examiner’s assistance and plaintiff’s own 13 statements, (Id. at ¶¶ 33, 41.); 14 • OWCP denied Plaintiff copies of her medical reports, (Id. at ¶ 42.); 15 • OWCP relied on improper medical examinations, (Id. at ¶¶ 38-39); 16 • Two of the medical examiners were not impartial because they examined Plaintiff twice, 17 (Id. at ¶¶ 37-40.); 18 • The USPS falsified the surveillance video used in the investigation of Plaintiff’s work 19 limitations, (Id. at ¶¶ 31, 32.); 20 • The USPS failed to send Plaintiff to an agency doctor as part of her workers’ compensation 21 claim, (Id. at ¶ 30.); 22 • The USPS failed to accommodate Plaintiff’s disability, (Id. at ¶ 29.); and 23 • The USPS wrongfully terminated Plaintiff’s employment in retaliation for getting injured, 24 (Id. at ¶ 28.). 25 Plaintiff requests punitive and monetary damages, “to be made whole,” “accountability,” 26 and “due process.” (Id. at p. 12.) 27 1 PROCEDURAL HISTORY 2 Plaintiff filed her Initial Complaint and an application to proceed in forma pauperis on 3 March 11, 2024. (Dkt. Nos. 1, 2.) The Court granted Plaintiff’s in forma pauperis application but 4 dismissed her Initial Complaint for failure to state a claim pursuant to 28 U.S.C. § 1915. (Dkt. 5 No. 6.) On May 1, 2024, Plaintiff submitted her First Amended Complaint. (Dkt. No. 12.) The 6 Court determined that Plaintiff’s First Amended Complaint included at least one viable claim and 7 allowed her case to proceed accordingly. (Dkt. No. 13.) 8 On September 10, 2024, Defendants filed the instant motion to dismiss for lack of subject 9 matter jurisdiction. (Dkt. No. 51.) Plaintiff opposed the motion, (Dkt. No. 57.), and Defendants 10 filed a reply, (Dkt. No. 61.) Plaintiff then attempted to file a sur-reply without leave of court, 11 (Dkt. No. 63.), which is prohibited by Local Rule 7-3(d). Regardless, nothing in the sur-reply 12 would alter the Court’s analysis or conclusion. The Court heard oral argument on November 18, 13 2024. (Dkt. No. 65.) During the motion hearing, the Court informed the parties that Plaintiff had 14 already filed two disability discrimination actions against USPS, and directed the parties to reach 15 the issue of whether Plaintiff’s disability discrimination claims are precluded. (Dkt. No. 66.) 16 Both parties filed responsive briefs. (Dkt. Nos. 67, 68.) 17 ANALYSIS 18 A. Legal Standards on Motion to Dismiss. 19 When a defendant moves to dismiss for lack of subject matter jurisdiction pursuant to 20 Federal Rule of Civil Procedure 12(b)(1), the plaintiff bears the burden of proving that the court 21 has jurisdiction to decide the claim. Thornhill Publ’n Co. v. Gen. Tel. & Elecs. Corp., 594 F.2d 22 730, 733 (9th Cir. 1979). Federal courts can only adjudicate cases which the Constitution or 23 Congress authorize them to adjudicate: cases involving a federal question, diversity of citizenship, 24 or the United States as a party. 28 U.S.C. §§ 1331, 1332; Kokkonen v. Guardian Life Ins. Co. of 25 Am., 511 U.S. 375, 377 (1994). 26 A Rule 12(b)(1) motion can be either “facial” or “factual.” Safe Air for Everyone v. 27 Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). Where an attack on jurisdiction is a “facial” attack 1 the non-moving party is entitled to have those facts construed in the light most favorable to him or 2 her. Hyatt v. Yee, 871 F.3d 1067, 1071 n.15 (9th Cir. 2017). 3 In a “factual attack,” the moving party questions the veracity of the plaintiff’s allegations 4 that “would otherwise invoke federal jurisdiction.” Safe Air for Everyone, 373 F.3d at 1039. The 5 plaintiff’s allegations are questioned by “introducing evidence outside the pleadings.” Leite v. 6 Crane Co., 749 F.3d 1117, 1121 (9th Cir. 2014). “When the defendant raises a factual attack, the 7 plaintiff must support her jurisdictional allegations with ‘competent proof,’ under the same 8 evidentiary standard that governs in the summary judgment context.” Id. (quoting Hertz Corp. v. 9 Friend, 559 U.S. 77, 96-97 (2010)). While the plaintiff typically has the burden of proof to 10 establish subject matter jurisdiction, “if the existence of jurisdiction turns on disputed factual 11 issues, the district court may resolve those factual disputes itself.” Id. at 1121-22 (citing Safe Air 12 for Everyone, 373 F.3d at 1039-40). 13 When granting a motion to dismiss under Rule 12, a court must grant leave to amend 14 unless it is clear that the complaint’s deficiencies cannot be cured by amendment. Lucas v. Dep’t 15 of Corr., 66 F.3d 245, 248 (9th Cir. 1995). When amendment would be futile, however, dismissal 16 may be ordered with prejudice. Dumas v. Kipp, 90 F.3d 386, 393 (9th Cir. 1996). 17 B. Defendants’ Motion to Dismiss. 18 Defendants move to dismiss the First Amended Complaint for lack of subject matter 19 jurisdiction on several grounds. First, as to Plaintiff’s claims requesting review of her FECA 20 benefits determination, Defendants argue that determinations regarding FECA benefits are not 21 subject to judicial review. (Dkt. No. 51, pp. 10-11.) Second, as to Plaintiff’s due process claim, 22 Defendants argue that Plaintiff has not raised a colorable due process claim. (Id. at pp. 11-14.) 23 Third, as to Plaintiff’s claims for disability discrimination, Defendants argue that the claims are 24 impermissible collateral attacks on the denial of FECA benefits. (Id. at p. 14.) Defendants’ 25 supplemental brief also argues that Plaintiff’s earlier lawsuits preclude her claims for disability 26 discrimination. (Dkt. No. 68.) Plaintiff’s Opposition Brief does not respond to these arguments, 27 but it asserts that venue is proper and re-asserts Plaintiff’s factual allegations. (Dkt. No. 57.) 1 because Plaintiff was proceeding pro se, was ignorant of the law, and was focused on raising her 2 children. (Dkt. No. 67.) 3 In assessing Defendants’ motion, the Court is mindful that “[a] document filed pro se is to 4 be liberally construed, and a pro se complaint, however inartfully pleaded, must be held to less 5 stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 6 94 (2007) (internal citations and quotation marks omitted). 7 1. FECA Violation Claim. 8 This Court lacks subject matter jurisdiction to review Plaintiff’s petition for entitlement to 9 FECA benefits. 5 U.S.C. § 8128(b). Section 8128(b) provides:

10 The action of the Secretary or h[er] designee in allowing or denying payment under 11 this subchapter is--

12 (1) final and conclusive for all purposes and with respect to all questions of law and fact; and, 13 (2) not subject to review by another official of the United States or by a Court 14 by mandamus or otherwise. 15 Id. Accordingly, “courts do not have jurisdiction to review FECA claims challenging the merits of 16 benefit determinations.” Markham v. United States, 434 F.3d 1185, 1187 (9th Cir. 2006); see also 17 Sw. Marine, Inc. v. Gizoni, 502 U.S. 81, 90 (1991) (“FECA contains an unambiguous and 18 comprehensive provision barring any judicial review of the Secretary of Labor’s determination of 19 FECA coverage” (citation and quotation marks omitted)). 20 The Court GRANTS Defendants’ motion to dismiss as to Plaintiff’s claim for violation of 21 FECA. Because FECA provides a complete jurisdictional bar, there is no way for Plaintiff to re- 22 plead her claim to plead a viable cause of action. Amendment would thus be futile. Accordingly, 23 the Court dismisses Plaintiff’s FECA violation claim WITH PREJUDICE. 24 2. Due Process Claim. 25 Although 28 U.S.C. § 8128(b) precludes judicial review of FECA benefits, courts have 26 recognized two narrow exceptions to address “constitutional challenges or claims for violation of a 27 clear statutory mandate or prohibition.” Markham, 434 F.3d at 1187. The constitutional challenge 1 due process right either to a meaningful opportunity to be heard or to seek reconsideration of an 2 adverse benefits determination.” Klemm v. Astrue, 543 F.3d 1139, 1144 (9th Cir. 2008) (citation 3 omitted). 4 To state a colorable due process claim, Plaintiff must allege that she was deprived of “life 5 liberty, or property, without due process of law.” U.S. Const. amend. V; see Cleveland Bd. of 6 Educ. v. Loudermill, 470 U.S. 532, 538 (1985) (“Respondents’ federal constitutional claim 7 depends on their having had a property right . . . .”). While federal benefits recipients have a 8 property right in the continued receipt of their benefits, federal benefits claimants do not have a 9 property right in benefits which they have been denied. See Am. Mfrs. Mut. Ins. Co. v. Sullivan, 10 526 U.S. 40, 60-61 (1999); see also Duncan v. Dep’t of Lab., 313 F.3d 445, 446 (8th Cir. 2002) 11 (“[The plaintiff] never had or acquired a property interest in his workers’ compensation request 12 because the federal government did not find [he] was entitled to the benefits, or pay out the 13 benefits.”); Petersen v. U.S. Dep’t of Lab., No. 03-0918 SI, 2003 WL 21982812, at *4 (N.D. Cal. 14 Aug. 11, 2003), aff’d, 101 F. App’x 714 (9th Cir. 2004) (“[A] plaintiff has no ‘property interest’ 15 for constitutional purposes where benefits have been denied . . . .”). Because Plaintiff appears to 16 be contesting a denial of FECA benefits, rather than a discontinuation of FECA benefits, Plaintiff 17 has no property interest. 18 Even if Plaintiff had a property interest in FECA benefits, she has not alleged that she was 19 deprived of due process (i.e., notice and an opportunity to be heard). Plaintiff contests the 20 weighing of various evidence, not the procedures used to process her claim. Further, the First 21 Amended Complaint’s mention of Plaintiff’s appeals and requests for reconsideration suggests 22 that Plaintiff had multiple opportunities to be heard. (Dkt. No. 12, ¶ 26.) 23 The Court GRANTS Defendants’ motion to dismiss as to Plaintiff’s due process claim. 24 Because amendment would be futile, the Court dismisses Plaintiff’s due process claim WITH 25 PREJUDICE. 26 3. Claims for Disability Discrimination. 27 The doctrine of res judicata or claim preclusion bars Plaintiff’s claims for disability 1 claims, (2) a final judgment on the merits, and (3) privity between parties.” Poblete Mendoza v. 2 Holder, 606 F.3d 1137, 1140 (9th Cir. 2010). 3 Plaintiff has already brought two cases in this Court alleging disability discrimination 4 resulting in wrongful termination. See Jett v. Potter, No. 08-cv-04290-PJH (N.D. Cal. filed Sept. 5 11, 2008) (“Jett I”); Jett v. U.S. Postal Serv., No. 11-cv-05078-JSC (N.D. Cal. filed Oct. 17, 2011) 6 (“Jett II”).3 In Jett I, Plaintiff brought claims against USPS alleging failure to accommodate her 7 disabilities, wrongful termination of her employment, and use of an altered video against her. (08- 8 cv-04290-PJH, Dkt. No. 1.) The Court dismissed the complaint with leave to amend because 9 Plaintiff failed to exhaust administrative remedies. (08-cv-04290-PJH, Dkt. No. 5, p. 3.) When 10 Plaintiff’s amended complaint did not cure the defect, the Court dismissed the case with prejudice. 11 (08-cv-04290-PJH, Dkt. No. 7.) 12 In Jett II, Plaintiff brought identical claims against USPS. (11-cv-05078-JSC, Dkt. Nos. 1, 13 9.) The Court explained that Jett I barred Plaintiff’s claims, and after one amendment to the 14 complaint, the Court ultimately dismissed the complaint with prejudice. (11-cv-05078-JSC, Dkt. 15 Nos. 7, 10.) 16 Once again, the judgment in Jett I bars Plaintiff’s claims for disability discrimination that 17 she brings in this case. First, Plaintiff’s claims for failure to accommodate her disabilities and 18 wrongful termination of her employment are identical to the claims she raised in Jett I. Second, 19 Jett I’s dismissal with prejudice constitutes a final judgment on the merits. See Leon v. IDX Sys. 20 Corp., 464 F.3d 951, 962 (9th Cir. 2006). Third, the prior action involved the same parties, 21 Plaintiff and USPS, and here, Plaintiff again brings disability discrimination claims against USPS. 22 Accordingly, Plaintiff is not permitted to relitigate claims that this Court already decided. 23 Plaintiff argues that the prior judgments should not be held against her because she was not 24 legally savvy at the time and later discovered more facts and unlawful behaviors, such as that 25 Defendants allegedly violated her due process. (Dkt. No. 67.) The Court acknowledges that 26 Plaintiff has added new claims regarding her FECA proceedings; those claims are not barred by 27 1 issue preclusion. As noted above, the Court does not have jurisdiction over her FECA claims, so 2 || the Court dismisses those claims on that separate ground. Jett I bars only the claims for disability 3 discrimination. 4 Plaintiff's disability discrimination claims are hereby DISMISSED. Because amendment 5 || would be futile, the Court dismisses Plaintiffs disability discrimination claims WITH 6 || PREJUDICE. 7 4. Fraud Claim. 8 This Court lacks subject matter jurisdiction to review Plaintiffs claim relating to USPS’s 9 || alleged falsification of a surveillance video used during Plaintiff's FECA proceedings. See 5 10 U.S.C. § 8128(b). Plaintiff essentially argues that OWCP should have discounted this evidence, 11 but the Court does not have the power to second-guess the weighing of evidence during FECA 12 || proceedings. See id. Further, Plaintiff's challenge to the surveillance video is not a constitutional 5 13 challenge or a claim for violation of a clear statutory mandate or prohibition, so it does not 14 || constitute an exception to the FECA jurisdictional bar. See Markham, 434 F.3d at 1187. 3 15 CONCLUSION 16 For the foregoing reasons, the Court GRANTS Defendants’ motion to dismiss and 3 17 dismisses all claims WITH PREJUDICE.

IT IS SO ORDERED.

19 Dated: December 2, 2024 { ( ° a, . 20

SALLIE KIM

21 United States Magistrate Judge 22 23 24 25 26 27 28