Cooper v. Secretary of Labor , 71 F. App'x 76 ( 2003 )

Not for Publication in West’s Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 02-2278
NATHANIEL COOPER,
Plaintiff, Appellant,
v.
ELAINE L. CHAO, SECRETARY,
UNITED STATES DEPARTMENT OF LABOR,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Joseph A. DiClerico, U.S. District Judge]
Before
Boudin, Chief Judge,
Campbell, Senior Circuit Judge,
and Lipez, Circuit Judge.
Nathaniel Cooper on brief pro se.
Thomas P. Colantuono, United States Attorney, and Robert J.
Rabuck, Assistant U.S. Attorney, on brief for appellee.
July 24, 2003
Per Curiam. Pro se plaintiff-appellant Nathaniel Cooper
("Cooper") appeals from the dismissal of his complaint against the
United States Department of Labor ("DOL") for lack of subject
matter jurisdiction. Where the question of subject matter
jurisdiction focuses on "pure (or nearly pure) questions of law,"
we review the district court's decision de novo. Gonzalez v.
United States, 284 F.3d 281, 287 (1st Cir. 2002). We are obligated
to construe a pro se complaint liberally, Ayala Serrano v. Lebron
Gonzalez, 909 F.2d 8, 15 (1st Cir. 1990), treating all well-pleaded
factual allegations as true and drawing all reasonable inferences
in the plaintiff's favor, Aversa v. United States, 99 F.3d 1200,
1210 (1st Cir. 1996). After carefully reviewing the parties' briefs
and the record, we affirm the dismissal of the complaint
essentially for the reasons stated in the magistrate judge's July
22, 2002 report and recommendation. We add only the following
comments.
As the lower court correctly noted, the Federal Employees'
Compensation Act ("FECA"), 5 U.S.C. § 8101 et seq., is the
exclusive avenue of redress for a federal employee's claim against
the government for a work-related injury. See Lockheed Aircraft
Corp. v. United States, 460 U.S. 190, 193-94 (1983). We have
recognized only one exception to FECA's clear mandate prohibiting
judicial review: where the plaintiff makes a specific and
substantive claim of the deprivation of his constitutional rights.
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See Paluca v. Secretary of Labor, 813 F.2d 524, 527 (1st Cir. 1987)
(holding that district courts have jurisdiction to review
Secretary's compliance with Constitution in its administration of
FECA). Cooper has made no such claim here.
A complaint must set forth specific allegations sufficient to
support a claim. See Aulson v. Blanchard, 83 F.3d 1, 3 (1st Cir.
1996) (noting that "bald assertions, unsupportable conclusions,
periphrastic circumlocutions, and the like need not be credited").
Cooper's complaint does not explicitly allege any constitutional
violation. Moreover, the complaint lacks any reference to the
United States Constitution, and does not invoke any term or phrase
commonly associated with a constitutional right sufficient to allow
the court to infer that such a claim was being alleged.
On appeal, Cooper argues that he did, in fact, assert a due
process violation when he alleged that the DOL's Office of Workers'
Compensation Programs ("OWCP") tampered with his file "as a tactic
to intentionally delay the processing of this claim." Cooper's
allegation, however, is merely a bald assertion that does not pass
muster as a well-pleaded factual averment. See id. Cooper alleged
no facts to even suggest any improper conduct by the OWCP, let
alone conduct egregious enough to constitute a constitutional
violation. Indeed, the only "evidence" in support of his claim is
a newspaper article on a wholly unrelated case involving an
attorney for the Board of Veterans Affairs who had tampered with
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veterans' files.
Cooper also tries on appeal to present additional
constitutional challenges to the OWCP's denial of benefits,
invoking the Fourth, Fifth and Fourteenth Amendments. These
arguments were not raised below, and, therefore, are deemed waived.
See, e.g., United States v. Bongiorno, 106 F.3d 1027, 1034 (1st
Cir. 1997) (noting that constitutional arguments not raised in the
lower court cannot be advanced on appeal). Moreover, because these
arguments are vague and cryptic, they are waived for this reason as
well. See id. (noting that issues raised on appeal in perfunctory
manner are deemed waived). Accordingly, the lower court correctly
ruled that it lacked subject matter jurisdiction over Cooper's
claims.
Cooper's motion for expedited review of his appeal is denied
as moot.
The judgment of the district court is affirmed.
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