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December 13, 1983

WILLIAM F. WALSH, Plaintiff, v RAYMOND J. DONOVAN, Secretary of Labor, UNITED STATES DEPARTMENT OF LABOR: WILLIAM H. WEBSTER, as Director, Federal Bureau of Investigation; THE FEDERAL BUREAU OF INVESTIGATION: and EMANUEL FRIEDMAN, Hearing Representative of the Department of Labor, Defendants.

The opinion of the court was delivered by: POLLACK


MILTON POLLACK, District Judge

 Plaintiff, an agent of the Federal Bureau of Investigation, brings this action seeking review of several actions of the Department of Labor in connection with his claim for workers' compensation. Defendants, including the Secretary of Labor, have moved for dismissal of plaintiff's complaint for want of subject matter jurisdiction and for failure to state a claim for which relief may be granted, pursuant to Fed.R.Civ.P. 12(b)(1) and Fed.R.Civ.P. 12(b)(6). For reasons to be set forth below, defendants' motion should be, in all respects, granted.

 Plaintiff alleges that he suffered injuries to his head, right knee and back on July 17, 1979, in the course of his employment. Plaintiff was placed on "traumatic leave" the following day, but resumed participation in assigned activities on July 31, 1979. Plaintiff's claim for workers' compensation was completed the same day.

 On October 13, 1981, the Department of Labor approved plaintiff's request for workers' compensation benefits for his head and knee injuries; plaintiffs's claim for benefits for his back injury, however, was denied on September 7, 1982. On October 20, 1982, plaintiff requested reconsideration of that denial. A hearing was scheduled for August 25, 1983, and defendant Emanuel Friedman was appointed the hearing representative for the Department of Labor.

 On July 25, 1983, Friedman cancelled the hearing and directed that the Branch of Special Claims of the United States Department of Labor Workers' compensation Board issue a de novo determination of plaintiff's claim. In the memorandum sent to an Acting Assistant Deputy Commissioner in the Special Claims Branch, remanding plaintiff's claim to that Branch, Friedman stated:

 I have serious doubt as to whether the claimant injured his back at all on July 17, 1979, thus the first questions which should be considered is whether the claimant sustained a back injury on July 17, 1979. If it is found that he did injure his back at that time, the next question is whether there is sufficient medical evidence to show a cause or relationship between the back disability and the injury. Another serious question is whether the claimant injured his right knee at the time. It should be noted that the record does not contain a single, clear description how the back or the right knee was injured. I might also note that the emergency room record from St. Clare's Hospital clearly shows there was no loss of consciousness.

 Plaintiff avers that Friedman's statement demonstrates a predisposition toward finding against him which has permeated his entire Department of Labor proceedings, making it impossible for him to obtain a fair and impartial determination of his claim. Asserting a denial of his due process rights, plaintiff seeks this court's intervention in his claim for workers' compensation benefits. Specifically, plaintiff seeks the disqualification of the Department of Labor from hearing his claim, the appointment of a special hearing officer to evaluate his eligibility for workers' compensation, discovery of the F.B.I. investigative file compiled in connection with his alleged injuries and the establishment of a certain date for hearing before the requested hearing officer.

 Asserting that 5 U.S.C. § 8128(b) precludes this Court from taking jurisdiction of plaintiff's action, defendants have moved for dismissal of his complaint on grounds set forth above. § 8128(b) states that

 The action of the Secretary or his designee in allowing or denying a payment under this subchapter is --

 (1) final and conclusive for all purposes and with respect to all questions of law and fact; and

 (2) not subject to review by another official of the United States or by a court by mandamus or otherwise.

 Plaintiff contends that § 8128(b) does not apply to the case at bar. Plaintiff argues that he seeks not a review by this Court on the issue of coverage but a consideration of the constitutionality of the procedures employed by the defendants in determining his claim. Plaintiff cites TerKeurst v. United States, 549 F. Supp. 455 (W.D. Mich. 1982) for the proposition that § 8128(b) does not preclude judicial review of the constitutionality of the procedures employed by the Department of Labor in determining a workers' compensation claim.

 To adjudicate this motion, however, this Court need not decide whether § 8128(b) precludes a federal district court form taking jurisdiction of a constitutional attack upon such procedures. Nor need this Court decide the logically prior issue whether an applicant for federal workers' compensation benefits has a property interest in those benefits sufficient to trigger the procedural due process ...

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