United States v. Eisenberg (149 F. Supp. 3d 71, 2015)

MEMORANDUM OPINION

BERYL A. HOWELL, United States District Judge

The United States initiated this suit to recover funds under Section 8132 of the Federal Employees’ Compensation Act (“FECA”), 5 U.S.C. § 8101 et seq., from defendant Michael D.J. Eisenberg, who is an attorney licensed to practice law in the District of Columbia and is proceeding pro se in this action. Eisenberg successfully obtained a settlement award for his former client, and now-third-party defendant, Gregory Thompson, in a lawsuit captioned, Thompson v. Wackenhut Corp., No. 1:09-cv-01113-GBL-TRJ (E.D.Va. Oct. 2, 2009) (“Wackenhut suit”), for injuries Thompson suffered from a slip-and-fall accident. Ei-senberg failed, however, to refund to the government the amount of workmen’s compensation paid to Thompson under the FECA. The United States alleges that, under 5 U.S.C. § 8132, Eisenberg was required to refund to the United States funds totaling $96,295.15 prior to disbursing the settlement funds obtained in the third-party suit. Pending before the Court are three motions: (1) the United States’ Motion for Partial Judgment on the Pleadings and for Partial Summary Judgment (“PL’s Mot.”), ECF No. 26; .(2) Eisenberg’s Motion for Leave to File Counterclaim Against the United States of America (“Def.’s Counterclaim Mot.”), ECF No. 62; and (3) Eisenberg’s Opposed Motion, to Amend Answer (“Def.’s Answer Mot.”), ECF No. 86. For the reasons discussed below, Eisenberg’s motions are denied, and the United States’ motion is granted in part and denied in part.

I. BACKGROUND

The following facts derive from the whole record, including the parties’ various statements of material facts, briefs, exhibits, and other evidence in the record.

A. FECA Claim

Gregory Thompson, an employee of the U.S. Department of the. Navy, was injured in a slip-and-fall accident on December 6, 2007. PL’s Statement Material Facts Supp. Mot. J. Pleadings- & Partial Summ. J (“PL’s SMF”) ¶ 7, EOF No. 26-1; Def.’s Material Facts (“Def.’s SMF”) at 7, ECF No. 85; Def,’s Counterclaim Against the United States of America (“Def.’s Proposed Counterclaim”) ¶ 10, ECF No. 62-2. After the accident, pursuant to the FECA, Thompson filed a claim with the Department of Labor (“DOL”) Office of Workers’ Compensation Programs (“OWCP”) for medical benefits and lost wages related to the injuries caused by the accident. PL’s SMF ¶ 8; Def.’s SMF at 7. By letter dated February 19, 2008, Thompson received notification from OWCP that his claim had been accepted. Def.’s Mem. Supp. Opp’n PL’s Mot. Partial J. Pleadings & Partial Summ. J. (“Def s Mem.”), Ex. A (“Thomp-. son ■ FECÁ Claim Acceptancé Notice”), ECF No. 84-1. Over a year later, by letter dated May 28, 2009, on which Eisenberg is eopied as Thompson’s attorney, Thompson received notice from OWCP that his “claim for medical and wage loss benefits has been terminated effective 06/07/2009.” Def.’s Mem., Ex. B (“Thompson FECA Claim Termination Notice”), ECF- No. 84-2. Thus, OWCP disbursed compensation to Thompson -until at least June 7, 2009, when it purportedly terminated his benefits. Id.; see also'Compl.. ¶8 (alleging OWCP disbursed compensation to Thompson until June 7, 2009); Pl.’s SMF ¶ 9 (same).

Thompson, represented by Eisenberg, requested reconsideration of OWCP’s decision to terminate his benefits, but OCWP denied this request on July 7, 2010. See Def.’s. Mem., Ex. C (“Thompson, FECA Claim Reconsideration Notice”), ECF No. 84-3.

Notwithstanding OWCP’s notification-of termination of Thompson’s benefits, compensation was apparently paid on behalf of Thompson, at least to medical providers, after June 7, 2009. For example, DOL payment history reports in the record reflect that -while Thompson’s lost wages compensation stopped after June 6, 2009, see Def.’s Mem., Ex. D (“October 8, 2010 Letter”) at 2-6 (attached report of “Compensation Payment History”), ECF No. 84-4; id., Ex. I (“October 4, 2011 Letter”) at 50-53 (attached “Payment History Inquiry Report”), ECF No. 84-8; PL's Opp’n Def.’s Mot. Amend Answer (“PL’s Opp’n Answer”); Ex. 8 at 46-49 ('Wackenhut, Def. United States’ Mot. Dismiss or Summ. J. (“PL’s Wackenhut Mot.”), Ex. D,'ECF No. 8-2) (“Payment History • Inquiry Report”), ECF No. 88-1, he continued to receive medical benefits through February 10, 2011, see October 4, 2011 Letter at 40-49 (attached “Bill Pay History-Report” showing medical benefits disbursed through February 10, 2011); see also PL’s Opp’n Answer, Ex. 8 a( 40-45 (PL’s Wackenhut Mot., Ex. - C, ECF No. 8-2) (“Bill Pay History Report” showing medical benefits disbursed through August 27, 2009).

B. Third Party Lawsuit

• On October 2, 2009, Thompson, represented by Eisenberg, filed suit in the U.S. District Court for the-Eastern District of Virginia against a third party, Wackenhut Services, Inc. (‘Wackenhut”), and the United States for negligence relating to Thompson’s December 6, 2007 slip-and-fall accident. Wackenhut, Compl., ECF No. 1; see also PL’s SMF ¶¶ 10-11; Def.’s SMF at 7; Def.’s Proposed Counterclaim ¶ 10, Ori December 7, 2009, thé United States filed a Motion to Dismiss, or Alternatively, for Summary Judgment (“PL’s Wackenhut Mot.”), Wackenhut, ECF No. 7, supported by a Declaration of Antonio A. Rios (“Rios Decl.”), id., ECF No. 8-1, Deputy Director for OWCA, together with a detailed accounting, id. Exs. C & D. Rios attested: “Thompson received a total of $94,261.33 disability compensation from January 22, 2008 until June 6, 2009. OWCP also paid $29,451.75 for medical treatment related to the accepted conditions,” Rios Decl. ¶ 5; see PL’s Opp’n Answer at 13 n.9. The court granted the United States’ motion on January 15, 2010, dismissing the United States from the suit without prejudice. Wackenhut, Order, ECF No. 20.

Thompson and Wackenhut then settled the negligence action for $675,000. PL’s SMF ¶ 12; Def.’s SMF at 7. On November 5,2010, Eisenberg, on behalf of Thompson, filed a Notice of Settlement in the Wack-enhut suit, Wackenhut, ECF No. 234, which was followed by a joint Stipulation of Dismissal With Prejudice, on November 16, 2010, id., ECF No. 235.

The settlement award was issued jointly to Thompson and Eisenberg’s law firm. See Def.’s Mem., Ex. E (“Third-Party Lawsuit Settlement Letter”) at 2, ECF No. 84-5. Eisenberg admits that “[u]pon receiving the $675,000 from the settlement, [he] distributed the proceeds to Mr. Thompson and paid himself an attorney’s fee.” PL’s SMF ¶ 14; Defi’s SMF at 7.

C. Government Refund-Related Correspondence

On October 7, 2010, at Eisenberg’s request, see Defi’s SMF ¶ 5 (asserting that “[defendant did request, as a confirmation what, if any funds, were due through Mr. Thompson”), Thompson wrote a letter to OWCP “requesting the total amount of compensation paid” by OWCP for his case, October 8, 2010 Letter at 1. By letter dated October 8, 2010, Gloria Watson, a Claims Examiner at OWCP, responded to Thompson, attaching “a copy of [his] compensation payment history.” Id. Handwritten on one copy of the October 8, 2010 letter submitted by Eisenberg in this case, on the bottom right-hand comer, is the phrase, ‘Workers Comp Payback $52,900.45,” along with a second handwritten number “52,900.45” a few lines below the phrase. Id. The attached payment history printout of Thompson’s “Compensation Payment History,” which appears to have been generated that day from the “Employment Standards Administration Federal Employees’ Compensation System,” id. at 2, shows net total payments of $94,261.33 from January 22, 2008 through June 6, 2009, id. at 6.

Thompson forwarded Eisenberg a copy of the October 8, 2010 letter without any handwriting, via email on October 14, 2010. Def.’s - Mem., Ex. U (“October 14, 2010 Email”), ECF No. 84-19. Eisenberg replied to Thompson the same day, stating: “This appears to include your paycheck as well. You need to contact HR and ask them what benefits you have to payback [sic] (all of them or just medical and/or paycheck, etc) and an exact number of what you owe.” Id.

Over six months after the settlement of the Wackenhut suit, Eisenberg submitted, by letter dated June 9, 2011, a Long Form Statement of Recovery (“SOR”) notifying DOL, Office of the Solicitor (“DOL-SOL”), that Thompson had “recently” received a third-party damage award in a settlement against the third-party involved in Thompson’s OWCP claim. PL’s Mem. Supp. Mot. Partial J. Pleadings & Partial Summ. J. (“PL’s Mem.”), Ex. 1 (“June 9, 2011 Letter”), ECF No. 26-2; Def.’s Mem., Ex. F (“June 9, 2011 Letter”), ECF No. 84-6. Despite being privy both to the Wackenhut suit’s Rios Declaration, which indicated that compensation totaling $123,713.08 had been paid to Thompson, and to DOL-SOL’s October 2010 letter,. which stated that compensation paid to Thompson through June 6, 2009 totaled $94,261.33, Eisenberg listed in the SOR an amount of $70,533.93 in OWCP disbursements to Thompson and an amount of $17,633.48 for the government-allowed attorney’s fee, reflecting a balance of $52,900.45 to be refunded to OWCP. See June 9, 2011 Letter. According to Eisenberg, Thompson had “instructed [him] that the amount to be used in the set-aside calculation was $70,533.93,” Answer ¶ 18(b); Def.’s First Amended Answer (“Def.’s Proposed Answer”) at ¶ 18(b), ECF . No. 86-3, and Thompson had relied on the government “to provide him with accurate information to provide Mr. Eisenberg,” Answer ¶ 18(c); Def.’s Proposed Answer ¶ 18(c); see also Def.’s Mem. at 6 n.8 (“Defendant asserts that Mr. Thompson informed Defendant of this .value after Mr. Thompson spoke with DOL.”), ECF No. 83-2. The SOR triggered a lengthy series of communications between Eisenberg and DOL.

A little- over a month later, by letter dated July 19,2011 to Eisenberg, Onetia J. Evans, a DOL-SOL Paralegal Specialist, acknowledged the receipt of the SOR, but raised concern over the Computation of the amount to -be refunded. Pl.’s Mem., Ex. 2 (“July 19, 2011 Letter”), ECF No. 26-3; Def.’s Mem., Ex. G (“July 19, 2011 Letter”), ECF No. “84-7. Specifically, DOL indicated that OWCP had disbursed additional benefits to Thompson in the interim between the Wackenhut suit settlement and the receipt of the SOR; stating: ■

Since- you did not 'timely file the required Statement of Recovery to compute the Government’s statutory right of reimbursement and to establish the surplus, the [OWCP] continued to pay benefits, to and on-behalf of your client. Current disbursements total $128,393.53 as of June 29,2011.

July 19, 2011 Letter. Consequently, the letter cautioned:

If you insist on paying the Government’s right of reimbursements in the amount of $52,900.45 based on disbursement at the time of the settlement that you computed at $70,533.93, there will be an overpayment of $57,859.60 which is current disbursements of $128,393.53 minus $70,533.93 disbursements at the time of settlement.

Id. In other words, because the SOR was not timely filed, OWCP had disbursed benefits for Thompson after the October 2010 Wackenhut settlement, bringing the total amount of disbursements to $128,393.93. The letter attached an amended SOR and demanded payment of a refund to OWCP in the amount of $96,295.15-within thirty days. Id.

The next month, on August 16, 2011, Eisenberg spoke with Gertrude G. Gordon, DOL-SOL’s Chief of Subrogation, and requested that she “explain how the numbers -on the Statement of Recovery were reached” in the July 19, 2011 letter. PL’s Mem., Ex. 3 (“August 16, 2011 Letter”) at 1, ECF No. 26-4. Gordon wrote back to Eisenberg “apologize[ing] for any miscom-munications between” Eisenberg and her staff, but reiterating that the SOR “was not timely filed” and' that OWCP “continued to pay benefits to and on behalf of your client,” with “[c]urrent disbursements totaling] $128,393.52 as of June 29, 2011.” Id. She further explained that, “since the [OWCP]' did not suspend your client’s benefits, current disbursements total $128,393.53 which results in a refund of $96,295.15.” Id. Acknowledging that Eisen-berg “stated that [he had] $52,900.45 ready to pay the Government’s statutory right of reimbursement,” Gordon asked him to “[p]lease submit this payment within thirty days of your receipt of this letter.” Id. Eisenberg was cautioned, however, that “the total due is $96,295.15” and, thus, “upon receipt of the $52,900.45, the balance due will be $43,394.70.” Id. In response to Eisenberg’s request for “possible payment of the additional amount with monthly payments,” Gordon agreed that DOL would “accept a'monthly payment plan,” but that the balance of the amount owed “must be paid in full within one year.” Id.

Two months later, by letter dated October 4, 2011, Evans, the Paralegal Specialist, responded to Eisenberg’s “recent request for current disbursement information” for Thompson’s FECA claim, stating that the United States had disbursed $98,792.13 in pay compensation and $29,601.40 in medical compensation— a total of $128,393.53 in compensation — as of September 27, 2011. Pl.’s Mem., Ex. 4 (“October 4, 2011 Letter”), ECF No. 26-5; October 4, 2011 Letter at 1.

Subsequently, on October 23, 2011, Ei-senberg advised DOL-SOL -of “Mr. Thompson’s family income and expenses.” Def.’s Mem., Ex. J (“October 23, 2011 Correspondence”), ECF No; 84-9; see. PL’s Mem., Ex. 5 (“November 17, 2011 Letter”), ECF No. 26-6; Def.’s Mem., Ex. K (“November 17, 2011 Letter”), ECF No. 84-10. After complaining that DOL had failed to timely contact him and Thompson or “to return [his] calls from nearly six weeks ago,” Eisenberg explained that Thompson’s financial situation':was- “strained” such that making even a $100 monthly payment “would create a financial hardship.” October 23, 2011 Correspondence. He represented, “[h]owever,” that “as a matter of due course and act of good faith, the family is prepared to pay the lump sum amount that was withheld back in November ($52,900.45) and make monthly payments of $100.00.” Id. Eisenberg further stated,

A good faith effort was made to protect the financial interests of the government when the settlement with the third-party "contractor was made. As discussed above, it appears that it was the Agen-Gy’s error that created the situation the family now finds itself in. I would ask as a matter of compassion that the remaining moneys, after the lump sum withheld back in November is paid" ($52,900.45), be waived. If the 'Government is unwilling to assist this former member of the United States military and nearly 20 year civil servant, the family will agreed [sic] to the payment scheme discussed above. But, if the Government is unwilling to agree to the aforementioned, then the moneys currently being held will need to be used to start monthly payments. ,

Id

DOL-SOL responded, by letter dated ■November 17, 2011, that, under section 8132 of the FECA, the government had “no authority to waive or compromise the amount to be refunded” and, consequently, “[t]he amount of compensation paid as of the date of third party .settlement in this case is $128,393.53. The Statement of Recovery must be computed based on this disbursement amount which results in a refund owed to the United Sates in the of [sic] $96,295,15. This amount must be paid.” November 17, 2011 Letter. DOL-SOL also rejected Eisenberg’s offer of monthly payments because it would “clearly result in payment being completed well beyond one year.”. Id. The letter explained, “Payments are typically , made within 30 days of completion (see 20 C.F.R. §§ 10.715 & 10.716) b.ut this office can allow an installment plan of up to a year.” Id. -The letter notified Eisenberg that he had two options: he could (1) “submit payment of the $96,295.15 within thirty days,” or (2) “submit. an , initial payment of $52,900.45 within 30 days with continuing monthly, payment to pay the balance .of $43,394.70 within one calendar year .’’..Id. Lastly, the letter warned Eisenberg that “[f]ailure to make payment in either of these two ways will result in this matter being forwarded to Treasury for collection or referral to the U.S. Department of Justice to bring action against you, your firm and your client.” Id.

The following month, by letter dated December 19, 2011, Eisenberg requested “a formal meeting” with Gordon' and DOL-SOL “regarding the overpayment' issue your office has caused my client.” Def.’s Mem., Ex. L (“December 19, 2011 Letter”), ECF No. 84-11. In the letter, Eisen-berg accused the government of “nonfea-sance” and alleged that any payments to Thompson over the amount of $52,900.45— the amount which Eisenberg had set aside from the settlement to pay the government — were “separate overpayments] caused by your office” that “have nothing to do with our settlement notification.” Id. According to Eisenberg, the government had failed to stop making payments to Thompson, who “had no reason due to your inaction to believe that he was not entitled to these monies.” Id. Eisenberg thus alleged that any amount over $52,900.45 fell outside the scope of Section 8132 and the government was not entitled to recoup those funds. Id.

On March 12, 2012, Eisenberg met with Alexandra A. Tsiros, Counsel for FECA Subrogation at DOL-SOL, and the Deputy Associate Solicitor. See Pl.’s Mem., Ex. 6 (“July 31, 2012 Letter”), ECF No.. 26-7; Def.’s Mem., Ex. N (“July 31, 2012 Letter”), ECF No. 84-12. Tsiros memorialized the discussion during the March 12,' 2012 meeting in a letter to Eisenberg, dated July-31, 2012, making yet another demand for payment. Id. Notably, the letter reflected that Eisenberg “stated during the meeting in our office that the settlement funds had already been used to purchase an annuity for your client, and, as a consequence, your client does not have sufficient income to reimburse the governmént.” Id. The letter warned that, “[b]ecause it is apparent that you distributed funds to your client and paid yourself an attorney’s fee of $101,250.00 without paying the refund due to the United States under § ‘ 8132, you have established that you are liable to the government for the full amount of the refund.” Id.

.On August 12, 2012, in an email to Tsi-ros, Eisenberg offered to settle the matter, on behalf of Thompson, for the $52,000 retained from the settlement and $500 monthly payments “until the rest is paid .off.” Def.’s Mem., Ex. N(2), ECF No. 84-13. Tsiros responded that she would review the offer, discuss it with the appropriate parties, and “get back to you as soon as possible.” Id. The record does not reflect any follow-up communication between Eisenberg and Tsiros.

On September 24, 2012, Eisenberg emailed Marcia Harris at DOL requesting “a sit-down meeting with you and your supervisors” regarding “some new information [that] may have come to light that needs to be properly addressed.” Defi’s Mém., Ex. O, ECF No. 84-14. The'record reflects no such meeting or further communication until December 14, 2012, on which date Tsiros sent Eisenberg a letter representing DOL-SOL’s “final attempt to collect this debt before referring the matter to the Department of the Treasury for collection.” PL’s Mem., Ex. 7 (“December 14, 2012 Letter”), ECF No! 26-8; Def.’s Mem., Ex. P (“December 14, 2012 Letter”), ECF No. 84-15. In response, on January 13, 2013, Eisenberg’ emailed Tsiros and conceded that “sendfing] this matter to DOJ/IRS” “is the only remaining path based on your correspondence.” Def.’s Mem., Ex. Q, ECF No. 84-16.

D. Instant Lawsuit

The United States filed the Complaint in this matter on October 24, 2013, seeking recovery solely from Eisenberg of $96,295.15 under § 8132 of the FECA. Compl. ¶ l. Eisenberg then joined Thompson as a third-party defendant. Compl. & Mot. to Join Gregory Thompson & Clar-isse Thompson as Third-Party Defs. (“Third-Party Compl”), ECF No. 10. On March, 12, 2014, Thompson answered the third-party complaint and counterclaimed against Eisenberg for negligence and breach of contract, alleging that Eisenberg “negligently failed to protect the lien asserted by the United States,” and “charged [him] a fee of more than $200,000.00 for his services, ... [which] included protecting and clearing any and all liens claims by the United States.” Third-Party Def.’s Counterclaim Against Michael Eisenberg (“Thompson’s Counterclaim”) at ¶¶ 4, 6, ECF No. 18.

After unsuccessful mediation of the dispute, and at the request of the United States and Thompson, see Joint Status Report, ECF No. 24, discovery was stayed until the resolution of any pre-discovery dispositive motions, see Minute Order (June 3, 2014). The United States subsequently filed, on June 11, 2014, its pending dispositive motion, ECF No. 26.

Eisenberg then took approximately nine months, until March 23, 2015, after multiple extensions of time, see Minute Order (June 24, 2014); Minute Order (July 9, 2014); Minute Order (March 6, 2015), to complete the submission of his opposition to the United States’ motion, see ECF Nos. 83-85. In the interim, he filed approximately twelve additional motions, including motions to file cross-claims against three additional third-parties — a legal malpractice insurance company and two insurance brokers, see ECF Nos. 31-32, a motion to stay the dispositive motions schedule, see ECF No. 37, a motion for leave to file amended cross-claims against Thompson and his wife, see ECF No. 63, five motions for extensions of time related to those motions, see ECF Nos. 52-54, 67-68, and his pending motion to file counterclaims against the United States, ECF No. 62, for selective prosecution, per se discrimination, denial of due process and notice, and civil conspiracy, see Def.’s Proposed Counterclaim ¶¶ 21-45.

Eisenberg withdrew two of those motions, see ECF Nos. 72, 78; Minute Order (Feb. 2, 2015); Minute Order (Feb. 23, 2015), and the Court held a hearing on the remaining substantive motions on February 11,, 2015, see Minute Entry (Feb. 11, 2015); Minute Order (Feb. 11, 2015). Ei-senberg then stipulated to the dismissal of the third-party insurance companies, see EOF No. 80, Minute Order (Feb. 23, 2015), and the Court, denied his motion to stay, ordering that he respond to the- United States’ dispositive motion by March 11, 2015, see Minute Order (Feb. 26, 2015).

After yet another extension of time,' see Minute Order (March 6, 2015), Eisenberg finally submitted opposition papers, see ECF Nos. 83-85, and then, on March 29, 2015, filed his pending motion to amend, his Answer, ECF No. 86, to add two additional affirmative defenses — estoppel and selective prosecution, see Def.’s Proposed Answer at ¶¶ 21-22.

II. DISCUSSION

The Court first discusses the applicable statutory and regulatory framework and then addresses Eisenberg’s two motions to amend his pleadings before turning to the United States’ dispositive motion, for which the record is sufficient for a decision on the merits in favor of the United States.

A. Section 8132 Statutory and Regulatory Framework

Under the FECA, federal employees may receive compensation for injuries sustained while performing their employment duties. See 5 U.S.C. § 8102; United States v. Lorenzetti, 467 U.S. 167, 168, 104 S.Ct. 2284, 81 L.Ed.2d 134 (1984) (“The [FECA], 5 U.S.C. § 8101 et seq., provides a comprehensive system of compensation for federal employees who sustain work-related inju-riés.”). When an employee is entitled to receive compensation under the FECA but “a person other than the United States” is legally liable for the employee’s injuries, “the Secretary of Labor may require” the employee to “assign to the United States any right of action” he has to enforce the third-party- liability or to “prosecute the action in [the employee’s] own name.” 5 U.S.C. § 8131 (emphasis added). Regardless of any action by the Secretary of Labor, however, a FECA beneficiary who “receives money or other property” for third-party liability “as the result of suit or settlement by him or in his behalf,” must refund to the United States,- “after deducting therefrom the costs of suit and a reasonable attorney’s fee,” the compensation that the United States paid to ’the beneficiary and “credit any surplus on future payments of compensation payable to him for the same injury.” 5 U.S.C. § 8132; see Lorenzetti, 467 U.S. at 168, 104 S.Ct. 2284 (“As part of [the FECA] system, an employee who receives FECA payments is required to reimburse the United States for those payments, to a specified extent, when he obtains a damages award or settlement from a third party who is liable to the employee for his injuries.”); Gonzalez v. Dep’t of Labor, 603 F.Supp.2d 137, 141 (D.D.C.2009) (“[R]egardless of whether the Secretary requires the filing of a lawsuit, a FECA beneficiary who receives compensation through a third-party lawsuit must reimburse Labor for federal funds already paid to the beneficiary as compensation for an injury.”), aff'd, 609 F.3d 451 (D.C.Cir.2010).

Section 8132, moreover, expressly directs that “[n]o court, insurer, attorney, or other person shall pay or distribute to the beneficiary or his designee the proceeds of such [third-party] suit or settlement without first satisfying or assuring satisfaction of the interest of the United States.” 5 U.S.C. § 8132; see Lorenzetti, 467 U.S. at 171 n. 2, 104 S.Ct. 2284 (“Section 8132-.,. provides that no person shall make distribution to an employee pursuant to a damages judgment or settlement without first satisfying the United States’ reimbursement interest.”)., The Eighth Circuit explained that “this sentence was added to expedite reimbursement by granting the government a lien on the proceeds of any third party recovery to the extent of the government’s reimbursement rights” such that “[a]ny person who deals with funds against which the government has a lien under section 8132 . is thus liable to the United States for conversion,” Green v. U.S. Deft of Labor, 775 F.2d 964, 970 (8th Cir.1985). Consequently, this provision creates joint and several liability for the FECA beneficiary and his attorney. Id.; see also United States v. Epstein, No. 2:06cv656, 2007 WL 2617174, at *9 (W.D.Pa. Sept. 6, 2007) (“In applying Lor-enzetti, the Court of Appeals for the Eighth Circuit held that the plain language of § 8132 creates joint and several liability on the part of the FECA recipient and his attorney.”). Similarly, the Ninth Circuit recognized that “[t]he legislative history of the [provision] indicates that this language creates a lien on the recovery.” United States v. Limbs, 524 F.2d 799, 803 (9th Cir.1975). Accordingly, “[a]n attorney ... who receives settlement from a third party tortfeasor ... has an explicit duty to reimburse the federal government before paying his clients.” Id.

The scope of § 8132 is broad: “it expressly creates a general right of reimbursement” and should not “be construed to diminish the scope of the United States’ reimbursable interest when a third-party action is maintained by the employee himself.” Lorenzetti, 467 U.S. at 174, 176, 104 S.Ct. 2284. As the Supreme Court explained:

Section 8132 imposes only two conditions precedent to an employee’s obligation to “refund ... the amount of compensation paid by the United States.” The first is that the employee must have suffered an injury or death under circumstances creating a legal liability in a third party to pay damages.. The second is that the employee or his beneficiaries must have received money or other property in satisfaction of that liability.

Id. at 173-74,104 S.Ct. 2284; see Gonzalez, 609 F.3d at 456 (recognizing the “only two conditions precedent to & FECA beneficiary’s reimbursement obligation”).

The governing regulations are consistent with the statute.' Under the regulations, a FECA claimant “can be required to take action,” by OWCP or DOL-SOL, against a third party who wholly or partially caused the claimant’s injuries. 20 C.F.R. § 10.705 (emphasis added). Regardless of whether the claimant is required by the agency to take action, however:

[a]ny person who has filed a FECA claim that has been accepted[,] ... is required to notify OWCP or [DOL-SOL] of the receipt of money or other property as a result of a settlement or judgment in connection with the circumstances of that .claim...... in writing within 30 days of the receipt of such money or other property or the acceptance of the FECA claim, whichever occurs later-

20 C.F.R. § 10.710. The regulations also prescribe the amount of money that the FECA beneficiary is entitled to keep from any third-party recovery and explain, in detail, how the amount that must be paid to the United States is to be calculated. See 20 C.F.R. §§ 10.711-10.7l5.

B. Defendant’s Motions to Amend His Pleadings

Eisenberg seeks to file counterclaims against the United States for (1) selective prosecution, (2) per se discrimination, (3) denial of due process and notice, and (4) civil conspiracy, alleging that the United States “selectively enforced this pending action against him because of his religion, race, gender and disability status,” conspired with the Thompsons to collect funds from him, and failed to “follow its own regulations.” Def.’s Proposed Counterclaim ¶¶ 1-3; see id. ¶¶ 21-28 (“Count I — Selective Prosecution of Defendant Eisenberg”), 29-35 (“Count II — Per Se Discrimination”), 36-42 (“Count III — Denial of- Due Process and Notice”), 43-45 (“Count IV— Conspiracy to Make Mr. Eisenberg Solely Liable”). He seeks both injunctive relief, in the form of “[a]n immediate dismissal (with prejudice) of' the pending lawsuit against” him, id. ¶ 46, and money damages of twelve million dollars, plus fees and costs, id. at ¶ 47, Eisenberg similarly seeks to-amend his answer to assert the affirmative defenses of estoppel and selective prosecution. See Def.’s Proposed Answer ¶¶ 21-22. As support for these additional defenses, Eisenberg alleges that the government is “estopped from taking this action due to. its failure to carry out its mandatory duties under the DOL’s guidelines,” and is “selectively prosecuting the Caucasian, Jewish, Childless person who is not totally and permanently .disabled.versus the non Caucasian, non Jewish, person with Children who is totally and permanently disabled.” Id.

1. Legal Standard

The same legal standard applies to both of the defendant’s motions. Generally, a party must assert in its responsive pleading any counterclaim against an opposing party when it “arises out of the transaction nr occurrence that is the subject-matter of the opposing party’s claim.” Fed. R. Civ. P. 13(a). Courts haye recognized, however, that “[t]wo rules govern, adding a counterclaim after the initial pleadings have been filed[,]” Rule 13(e) and Rule 15(a). United States ex rel. Westrick v. Second Chance Body Armor, Inc., 893 F.Supp.2d 258, 263 (D.D.C.2012). Rule 13(e) governs counterclaims which arise after responsive pleadings have been filed, see id. at 263-64, authorizing a court to.“permit a party to file a supplemental pleading asserting a counterclaim that matured or was acquired by the party after serving an earlier pleading,” Fed. R. .Civ. P. 13(e). Rule 15(a)(2), on the, other hand, governs counterclaims which a party should have, but did not, file in its responsive pleadings. See Westrick, 893 F.Supp.2d at 263; Fed. R. Civ. P. 15 advisory committee’s note to 2009 amendment (explaining Rule 15 “govern[s] amendment of a pleading to add a counterclaim”).

Because of the timing and nature of the counterclaims that Eisenberg seeks to assert, the Rule 15 standard applies to his motion to assert counterclaims. Eisen-berg’s proposed counterclaims arise from the United States allegedly targeting and prosecuting him in this matter, see Def.’s Proposed Counterclaim ¶¶22, 26-27, 32-34, 45, and “failpng] to follow its own rules of process prior to initiating this present suit,” id. ¶38. These claims had clearly already arisen at the time he served his responsive pleading, and he was required to state them in his responsive pleading. See Fed. R. Civ. P. 13(a). Since he should have asserted his counterclaims in his responsive pleading but failed to do so, Ei-sqnberg’s instant motion is evaluated under Rule 15(a)(2) as a motion for leave to amend his responsive pleading. The same standard applies to his motion to amend his answer.

While Rule 15(a), which generally governs all amendments to pleadings, authorizes amendments to pleadings before trial “as a matter of course” within certain prescribed periods, see Fed. R. Crv. P. 15(a)(1), “[i]n all other cases, a party may amend its pleading only with the opposing party’s written consent or the court’s leave,” Fed. R. Civ. P. 15(a)(2). “The court should freely give leave [to amend] when justice so requires,” id. but “the grant or denial of leave to amend is committed to a district court’s discretion,” Firestone v. Firestone, 76 F.3d 1205, 1208 (D.C.Cir.1996); see Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962), and should be determined “on a case by case basis,” Harris v. Sec’y, U.S. Dept of Veterans Affairs, 126 F.3d 339, 344 (D.C.Cir.1997). The Supreme Court has explained:

In the absence of any apparent or declared reason — such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of the amendment, etc. — the leave sought should, as the rules require, be “freely given.”

Foman, 371 U.S. at 182, 83 S.Ct. 227; Harris, 126 F.3d at 344.

While that standard is “generous,” Harris, 126 F.3d at 344, “[u]ndue delay, undue prejudice to the defendant or futility of the proposed amendment are factors that may warrant denying leave to amend,” Westrick, 893 F.Supp.2d at 264 (citing Richardson v. United States, 193 F.3d 545, 548-49 (D.C.Cir.1999)); see also Foman, 371 U.S. at 182, 83 S.Ct. 227; Hettinga v. United States, 677 F.3d 471, 480 (D.C.Cir.2012) (citing James Madison Ltd. ex rel. Hecht v. Ludwig, 82 F.3d 1085, 1099 (D.C.Cir.1996)). When a party cannot allege adequate facts to state a claim, or the amended pleading would not survive a motion to dismiss, a court acts within its discretion in denying leave to amend a pleading as futile. See Rollins v. Wackenhut Servs., Inc., 703 F.3d 122, 131 (D.C.Cir.2012); Hettinga, 677 F.3d at 480; In re Interbank Funding Corp. Sec. Litig., 629 F.3d 213, 218 (D.C.Cir.2010).

Here, both the undue delay and the futility of Eisenberg’s proposed counterclaims and amendments warrant denial of his motions.

2. Undue Delay

Eisenberg was given over six months from the time he filed his Answer to amend his pleadings, and he was on clear notice of the final deadline to do so. After the Complaint, ECF No. 1, was filed on October 23, 2013, Eisenberg was granted a two-week extension to file his answer, see Minute Order (Jan. 13, 2014), as well as permission to file a third-party claim against Thompson, see Minute Order (Feb. 14, 2014). In an untimely Joint Meet and Confer Report (“JMCR”), ECF No, 14, which was filed by the parties only after prompting by the Court’s order to show cause why the parties failed to submit the report as required, see Minute Order (Feb. 28, 2014), the “parties recommend[ed] that all other parties shall be joined and the pleadings amended by July 1, 2014,” JMCR ¶ 2. An order consistent with the parties’ recommendation was entered. See Minute Order (Mar. 7, 2014). On April 2, 2014, the parties filed' a Supplemental Joint Meet and Confer Report, ECF No. 20, recommending the same July 1, 2014 deadline for amendments to pleadings, id. ¶ 2, which deadline gave the parties a generous six months from the filing of the Complaint to amend their pleadings.

• Despite this generous period of time for any amendments to pleadings, Eisenberg filed his Motion for Leave to File Counterclaim Against the United States of, America, ECF No. 62, on November 13, 2014, over a year after the- Complaint was filed, eleven months after he had filed his Answer, and approximately five months after the deadline (of July 1, 2014) to submit amended pleadings had passed. Eisenberg then filed his Motion to Amend Answer, ECF No. 86, on March 29, 2015, over one and a half years after the Complaint was filed, fifteen months after he had filed his Answer, and approximately nine months after the deadline (of July 1, 2014) to submit amendéd pleadings had passed.

At the outset, Rule 16 of the Federal Rules of Civil Procedure provides that a court’s scheduling order “may be modified only for good cause and with the judge’s consent.” Fed. R. Civ. P. 16(b)(4). Accordingly, courts'have -held parties to this higher “good cause” standard on motions to. amend pleadings where scheduling orders to amend pleadings were in place. See A Love of Food I, LLC v. Maoz Vegetarian USA, Inc., 292 F.R.D. 142, 143-44 (D.D.C.2013) (citing cases). To determine whether good cause exists, courts consider, first and foremost, the diligence of the moving party, “focus[ing] on the timeliness of the amendment and the reasons for its tardy submission.” Id. at 144 (quoting Lurie v. Mid-Atl. Permanente Med. Grp., P.C., 589 F.Supp.2d 21, 23 (D.D.C.2008)). Eisenberg argues that his proposed affirmative defenses are “essential for a just adjudication of this case,” and that he did not “become aware of the possible discriminatory motives of the other parties” until after their settlement discussions, noting that “as a solo-practitioner receiving a lawsuit from the- might of the United States government, [he] is at a slight disadvantage to his opposing counsel’s resources.” Defi’s Reply PL’s Opp’n Def.’s Mot. Amend Answer (“Def.’s Reply”) at 2-3, ECF No. 89. Despite his numerous flings in this case before ever seeking to amend his pleadings, Eisenberg also emphasizes that he has not filed repeated motions'to amend or acted in bad faith. Id: at 3. As'discussed below, the Court can discern no good reason to modify the July 1, 2014 deadlne for the parties to amend pleadings; see Minute Order (Mar. 7, 2014), or to excuse the delays in Eisenberg’s proposed amendments to his pleadings:

Eisenberg offers absolutely no explanation, and the Court cannot infer any, for his delay in filing his proposed counterclaims. With respect to the proposed amendments to -his Answer, Eisenberg posits that he learned1 the information related to the proposed affirmative defenses of estoppel and selective prosecution only after. he filed his Answer, Defi’s Mem. Supp. Opposed Mot. Amend Answer (“Def.’s Mem. Answer”) at 6-7, ECF No. 86-1; Def.’s Reply at 3, but his justification makes little sense. Eisenberg’s estoppel defense arises almost entirely from DOL’s alleged failure to follow its own internal procedures before the United States filed the present suit. See Def.’s Reply at'7-9. Likewise, the selective prosecution defense arises from the prosecution of the present suit, see Def.’s Proposed Answer ¶-22, which- plainly occurred before Eisenberg filed his Answer.

Eisenberg also ‘attempts to justify the delay by indicating that during his settlement discussions with' the government, which occurred in April and May, 2014, he “became more enlightened as to the possible discriminatory motives of the Parties,” Def.’s Mem. Answer at 4 (emphasis added); see also Def.’s Reply at 3 (asserting that “it was not until this mediation process that [Eisenberg] became aware of the possible discriminatory motives of the other parties”). Yet, even if this were true, he offers no explanation for why he waited another six months, until November 2014, to seek leave to amend his answer. Delay alone would warrant denial of Eisenberg’s motions to amend his answer and to assert counterclaims.

3. Futility of Amendments

Regardless of the delay, the defendant’s proposed amendments to his pleadings would be futile.

a. Selective Prosecution/Per Se Discrimination

Eisenberg seeks to add selective prosecution as an affirmative defense in his Answer, see Def.’s Proposed Answer ¶ 22, and as a counterclaim, see Defi’s Proposed Counterclaim -¶¶ 21-28, and to add per se discrimination as a counterclaim, see id. ¶¶ 29-35. The ■ defendant’s proposed counterclaims for selective prosecution and per se discrimination are substantively the same: he alleges that the government prosecuted him, instead of and without ihcluding the Thompsons as defendants, because he is “a Jewish, white male who is not totally and permanently disabled, and childless” “[w]hile the Thompsons are non-Jewish, African American individuals with dependents” and “Mr. Thompson is totally and permanently disabled due to a Federal-Government work related injury.” Def.’s Proposed Counterclaim ¶ 25; see id. T32 (alleging that the government “discriminated against [him] by choosing solely to bring this action against [him] based on his racé, religious background, gender (childless) and disability status even though the Thompsons are in a similar circumstance”). Additionally, “the relevant case law makes no distinction between ‘selective’ and ‘discriminatory’ prosecution.” Office of Foreign Assets Control v. Voices in the Wilderness, 329 F.Supp.2d 71, 82 n. 8 (D.D.C.2004) (citing United States v. Bass, 536 U.S. 862, 863, 122 S.Ct. 2389, 153 L.Ed.2d 769 (2002); United States v. Diggs, 613 F.2d 988, 1003 (D.C.Cir.1979)). Accordingly, the Court considers the defendant’s proposed selective prosecution and per se discrimination counterclaims to be one single claim of selective prosecution. Id.

The standard t,o prove a selective prosecution claim, “is a demanding one,” United States v. Armstrong, 517 U.S. 456, 463, 116 S.Ct. 1480, 134 L.Ed.2d 687 (1996), as government prosecutors have “broad discretion” for their prosecution decisions, id. at 464, 116 S.Ct. 1480 (quoting Wayte v. United States, 470 U.S. 598, 607, 105 S.Ct. 1524, 84 L.Ed.2d 547 (1985)). The Supreme Court has explained:

This broad discretion rests largely on the recognition that the decision to prosecute is particularly ill-suited to ju- . dicial •- review. • Such factors as the strength of the case, the prosecution’s general deterrence value, the Government’s enforcement priorities, and the case’s relationship to the Government’s overall enforcement plan are not readily -susceptible to the kind of analysis the courts are competent to undertake.

Wayte, 470 U.S. at 607, 105 S.Ct. 1524. To prove selective prosecution, a claimant must show that (1) the prosecution “had1 a discriminatory effect,” and (2) “that it Was motivated by a discriminatory purpose.” Id. at 608, 105 S.Ct. 1524; see Armstrong, 517 U.S. at 465, 116 S.Ct. 1480;. “To establish a discriminatory effect ..., the claimant must show that similarly situated individuals of a different [protected class] ... were not'prosecuted.” Armstrong, 517 U.S.at 465, 116 S.Ct. 1480; see Fog Cutter Capital Grp. Inc. v. SEC, 474 F.3d 822, 826 (D.C.Cir.2007) (“To prove selective prosecution, a claimant must be part of a protected class ... and show not only that prosecutors acted with bad intent, but also that ‘similarly situated individuals [outside the protected category] were not prosecuted.’ ” (alteration in original) • (quoting Armstrong, 517 U.S. at 465, 116 S.Ct. 1480)); United States v. Blackley, 986 F.Supp. 616, 617-18 (D.D.C.1997) (“[Cjharges may be dismissed on the basis of selective prosecution if a defendant is (1) singled out for prosecution from among others similarly situated and (2) the prosecution is improperly motivated, i.e. based on an arbitrary classification.”).

Eisenberg fails to' state a claim for selective prosecution because he does not allege sufficient facts to show he was similarly situated to an individual who was not prosecuted. Eisenberg compares himself to Thompson, his former client, asserting that the government selectively prosecuted him instead of Thompson, despite the fact that both of them are subject to liability under § 8132. See Def.’s-Proposed Counterclaim ¶26 (“Plaintiff failed to bring in the Thompsons into the core ‘Complaint’ even ■though they are jointly and severally liable for collection of any - relevant moneys ____”); Def.’s Reply at 6 (“In this case, Mr. Thompson and Mr. Eisenberg were each parties that could be recovered from under statute.”). Eisenberg and Thompson, however, are not similarly-situated for the simple reason that Eisenberg is an attorney and Thompson is not.

Eisenberg argues that the law is not so stringent as to require that he show he is similarly situated “in every relevant aspect to a comparator who was treated differently,” and urges the Court to apply a less “demanding” standard and “common-sense inquiry.” Def.’s Reply at 4-5. Commonsense, however, suggests that Eisenberg cannot prevail. Eisenberg has not alleged, nor has he provided any indication that he could allege, that the United States declined to pursue any other attorney, as opposed to beneficiary, under a similar obligation to repay the United States after a PECA beneficiary’s recovery from, a third party under 5 U.S.C. § 8132. Accordingly, Eisenberg’s counterclaim for selective prosecution, or per se discrimination, would not survive.a motion to dismiss and granting him leave to file the counterclaim would be futile. For the same reasons, granting Eisenberg leave to amend his Answer to include selective prosecution as an affirmative defense would also be futile.

Moreover, and perhaps more significantly, Eisenberg can show no harm or damage whatsoever from the United States’ decision to prosecute him and not Thompson. Eisenberg recognizes that he and Thompson are “each parties that could be recovered from under the statute,” Def.’s Reply at 6, and, thus, that he and Thompson are jointly and severally liable to the United States. He therefore could, and did, join Thompson in the suit. Had the reverse occurred — had the United States decided to prosecute only Thompson, Thompson could have, and likely would have, joined Eisenberg. Since Eisenberg would be por tentially liable for the United States’ funds regardless of. whether the United States sued Thompson, he cannot,, as a matter of law, have been harmed,-by the United States’ alleged “selective prosecution” of him. Accord Green, 775 F.2d at 970 n. ,6 (“[A] party found jointly and severally liable ... ‘cannot compel the plaintiff [the government] to make others parties to the action, or complain because they have not been joined.’”' (alteration in original) (quoting W.P. Keeton, Prosser and Keeton on the Law of Torts § 47, at 327 (5th ed. 1984))).

Eisenberg’s attempt to distinguish Green, see Def.’s Mem. at 24-25, which he asserts is “simply wrong,” id. at 24, is unavailing. Eisenberg argues that Green “fails, to follow Congressional intent” because, in enacting § 8132, Congress intended to prevent “windfalls]” or double recoveries for FECA beneficiaries. Id. at 24. Eisenberg misreads Green. The Green court concluded) based on “an examination of the legislative history of the United States’ right of reimbursement under the FECA[,] ... that Congress intended that a party held liable under the lien language of section 8132 be entitled to reimbursement from the beneficiary of the FECA payments and the third party recovery.” 775 F.2d at 972 n. 9, Indeed, the court found that “[cjlearly/ Congress intended that the beneficiary of the FECA payments and the third party recovery must bear the ultimate- burden' of reimbursement.” Id. at 972. As a result, the court held “that a party liable to' the United ■ States under the lien language of section 8132 is generally entitled to indemnity from the ultimate beneficiary.” Id. Here, nothing is stopping Eisenberg from seeking indemnity or contribution from Thompson, against whom he has already filed a third-party complaint.

b. Denial of Due Process and Notice (“Accardi Claim”) and Estoppel

Eisenberg seeks to bring a counterclaim for denial of due process and notice based on allegations that DOL failed to comply with its internal procedures and guidelines, see Def.’s Proposed Counterclaim ¶¶ 36-^42, and seeks to add the affirmative defense of estoppel on the same grounds, alleging that DOL’s failure to follow its internal procedures and guidelines bars the government from recovering any money from him, see Def.’s Proposed Answer ¶ 21; see also Def.’s Proposed Counterclaim at 19 ¶ m (“Failure to provide the required due process not only violates Defendant’s rights but also bars the Government from any form of recovery from Defendant.”); Def-’s Reply at 7-10 (arguing the government “did not comply” with the “extensive list of processes and procedures that are to be followed when an OWCP claim is to be reimbursed 'by a third party lawsuit”). Ei-senberg’s claims are meritless.

Eisenberg’s proposed counterclaim is purportedly an “Accardi claim.” The Supreme Court’s decision in United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 74 S.Ct. 499, 98 L.Ed. 681 (1954) (Accardi”), “has come to stand for the proposition that agencies may not violate their own rules and regulations to the prejudice of others.” Battle v. FAA, 393 F.3d 1330, 1336 (D.C.Cir.2005). Citing to various provisions of an internal DOL procedure manual, see U.S. Dep’t of Labor, Div. of Fed. Emp. Comp. Procedural Manual ch. 2-1100 (Mar. 2006) (“FECA Third Party Subrogation Guidelines”), Eisenberg makes numerous allegations that the United States “failed to follow its own rules of process,” Def.’s Proposed Counterclaim at 9, ¶ 38. Eisenberg’s allegations, see id. at 8-21, ¶38, can be grouped as follows: (1) the government’s failure to communicate with and assist Eisenberg “prior to and during the third-party suit,” id. at 9; see also id. at 13-14, 16-17; Def.’s Reply at 7-8, including by failing to use various prescribed “templates in its communications,” Def.’s Proposed Counterclaim at 10-11; (2) the government’s failure to follow internal procedures with respect to processing the SOR and pursuing the collection of the debt after the third-party suit, see generally id. at 12-15, 18-19; and (3) the government’s failure to advise the defendant of his “rights and responsibilities,” id. at 20.

“It has long been settled that a federal agency must adhere firmly to self-adopted rules by which the interests of others are to be regulated.” Mass. Fair Share v. Law Enf't Assistance Admin., 758 F.2d 708, 711 (D.C.Cir.1985) (emphasis added); see also Morton v. Ruiz, 415 U.S. 199, 235, 94 S.Ct. 1055, 39 L.Ed.2d 270 (1974) (“Where the rights of individuals are affected, it is incumbent upon agencies to follow their own procedures.” (emphasis added)). Where, however, “[t]he rules were not intended primarily to confer important procedural benefits upon individuals in-the face of otherwise unfettered discretion,” and where a case does not involve an agency failing to exercise required independent discretion, the agency may “relax or modify its procedural rules adopted for the orderly transaction of business before it when in a given case the ends of justice require it[;]” and, such an agency action “is not reviewable except upon a showing of substantial prejudice to the complaining party.” Am. Farm Lines v. Black Ball Freight Serv., 397 U.S. 532, 539, 90 S.Ct. 1288, 25 L.Ed.2d 547 (1970) (internal quotation marks omitted).

Here, none of the guidelines about which Eisenberg complains affect the rights of individuals or were intended to protect individuals from agency discretion; Instead, the procedures and guidelines that he cites involve the government’s processes and procedures for pursuing and collecting claims from third parties for benefits disbursed to beneficiaries under FECA. These are procedural rules intended to benefit the government, so that it may be reimbursed for claims it has paid. See FECA Third Party Subrogation Guidelines, ch. 2-1100.1 (“Purpose and Scope. This subchapter outlines the procedures for administering the government’s rights under §§ 8131 and 8132 of the FECA to require FECA claimants to seek damages from' third parties potentially liable for .damages as a result of the FECA-covered injuries, and to refund a portion of any money or other property recovered.” (emphasis added)); see also Lorenzetti, 467 U.S. at 176,104 S.Ct. 2284 (explaining that § 8132 “was, adopted ‘not for the purpose of increasing [FECA] compensation, but for the purpose of reimbursing the Government for payments made and indemnifying it against other amounts payable in the future’ ” (alteration in original) (quoting Dahn v. Davis, 258 U.S. 421, 430, 42 S.Ct. 320, 66 L.Ed. 696 (1922))); id. at 177, 104 S.Ct. 2284. (“[T]he purpose of § 8132 is not simply to prevent double recoveries but to minimize the cost of the FECA program to the Federal Government.”); Green, 775 F.2d at 969 (“The Supreme Court emphasized that the primary purpose of section 8132 was to minimize the cost of the FECA program to the federal government and that this policy was furthered by construing section 8132 to create a general right of reimbursement, however harsh that result might be in a particular case.”). Thus, even assuming' arguendo that Eisenberg sufficiently'alleges that'the government violated some internal rule or procedure relating to (1) assisting Eisen-berg with the third-party suit, (2) collect-' ing the debt owed, or. (3) advising Eisen-berg -of “his rights and responsibilities,” the government’s actions in this case are not reviewable without a- showing of substantial prejudice to the defendant.

Eisenbei'g cannot show such substantial, if any, prejudice. First, Eisenberg can show no harm at all from any failure on the part of the United States to communicate with or assist him in prosecuting Thompson’s third party suit because that third party suit ultimately ended in a substantial settlement recovery for Thompson and, consequently, substantial attorney’s fees for Eisenberg. Thus, any allegations relating to the government’s actions before or during the third party suit are unre-viewable.

The defense of estoppel is also unavailable with respect to these allegations. See Gonzalez, 609 F.3d at 459 (rejecting FECA beneficiaries’ estoppel defense in § 8132 suit because “a requirement that Labor participate in litigation in order to preserve its reimbursement rights would be inconsistent with one of the purposes of FECA’s reimbursement scheme, which is to ‘minimize the cost of the FECA program to the Federal Government.’ ” (quoting Lorenzetti, 467 U.S. at 177, 104 S.Ct. 2284)); see also Green, 775 F.2d at 970 (holding that “the government’s failure to become involved”. in the third-party suit did “not preclude it from seeking reimbursement from [the beneficiary] or [his attorney]” because “the federal government has unfettered discretion to determine whether to require an assignment’ of the beneficiary’s claim under section 8131 or to seek reimbursement from the beneficiary under section 8132”); Mitchell v. Henderson, 128 F.Supp.2d 298, 306 (D.Md.2001) (“[Section] 8132 does not provide that the government will- actively assist or facilitate an individual plaintiffs lawsuit. Consequently, the fact that [the agency] did not aid [the FECA beneficiary] does not adversely affect, its claim for subrogation”).

Second, Eisenberg can show no substantial harm from any failure on the part of the United States' to adhere to certain internal, discretionary debt collection procedures. Eisenberg specifically complains that “the Agency misrepresented to the Parties that they only had one [ ] year,” as opposed to three years, to repay the United States after the third party suit ended. Def.’s Proposed Counterclaim at 18, ¶ (g) (citing FECA Third Party Subrogation Guidelines, ch. 2-1100.11b(3)(a)). Indeed, internal procedures appear to permit DOL-SOL to collect debt- through periodic payments within three years, see FECA Third Party Subrogation Guidelines, ch. 2-1100.11.b(3)(a), but the agency is not required to allow three years in every given circumstance. Thus, Eisenberg cannot show that he would be any better -off had the government represented to him that it could .provide three years for repayment, since nothing mandates that DOL-SOL, in fact, provide three years. As Eisenberg acknowledges, the parties- have had ample time to mediate this dispute -and have failed to reach a settlement.. See. Def.’s Material Facts (“Def.’s Answer Mot. SMF”) at ¶¶ 5, 8, ECF No. 86-2; Answer ¶ 14 (recognizing that attempts have been made in the last five years to settle this matter); Defi’s Proposed Answer ¶ 14 (same). DOL was not required, under its internal guidelines or otherwise, to enter a three-year payment plan to recover funds it is owed. ’

Third, Eisenberg. cannot-show substantial, if any, prejudice from any purported failure on the part of the United States to advise him of his “rights and responsibilities” as specifically .prescribedin the FECA Third Party • Subrogation Guidelines. The record is replete with formal letters from DOL-SOL to Eisenberg advising him of his rights and responsibilities over an extensive period of time.. See generally July 19, 2011 Letter; October 4, 2011 Letter; November 17,-2011 Letter; December 19, 2011; July 31, 2012 Letter; December 14, 2012 Letter. Moreover, Ei-senberg is himself an attorney and personally met with the Deputy Associate Solicitor and counsel for DOL-SOL to discuss this matter. See July 31, 2012 Letter. Ei-senberg was clearly apprised of his rights and responsibilities with respect to the United States’ right of recovery of FECA claims. See also Heckler v. Cmty. Health Servs. of Crawford Cty., Inc., 467 U.S. 51, 61-62, 104 S.Ct. 2218, 81 L.Ed.2d 42 (1984) (holding, where the respondent’s “detriment [was] the inability to retain money that it should never have received in the first place,” the “respondent, lost no Nghts but merely was induced to do something which could be corrected at , a later time”).

Lastly, the affirmative defense of estoppel does not “lie against the Government as it lies against private litigants,” Millard Refrigerated Servs., Inc. v. Sec’y of Labor, 718 F.3d 892, 897 (D.C.Cir.2013) (quoting OPM v. Richmond, 496 U.S. 414, 419, 110 S.Ct. 2465, 110 L.Ed.2d 387 (1990)), and “the bar for succeeding on such a claim is high,” id. at 897-98; see Heckler, 467 U.S. at 60, 104 S.Ct. 2218 (“When the Government is unable to enforce the law because the conduct of its agents has given rise to an estoppel, the interest of the citizenry as a whole in obedience to the rule of law is undermined. It is for this reason that it is well settled that the Government may not be estopped on the same terms as any other litigant”). Indeed, “[t]o apply equitable estoppel against the government, a party must show that (1) there was a definite representation to the party claiming estoppel, (2) the party relied on its adversary’s conduct in such a manner as to change his position for the worse, (3) the party’s reliance was reasonable and (4) the government engaged in affirmative misconduct.” Morris Commc’ns, Inc. v. FCC, 566 F.3d 184, 191 (D.C.Cir.2009) (internal quotation marks omitted).

Eisenberg asserts that the government’s “failure to properly participate in the FECA Third Party Subrogation Process,” Def.’s Reply at 8, and, essentially, “assist[ ] [him] with reimbursement calculations,” id. at 9 n. 12, “confused” him and Thompson, id. at 8. He further asserts that, “[b]ased on the Government action (or inaction),” he “changed his position and attempted the calculations himself (even though Government’s lack of action gave the appearance it was not even necessary),” and “[t]his was a reasonable determination.” Id. This argument is entirely unpersuasive, particularly in light of “the general rule that those who deal with the Government are expected to know the law and may not rely on the conduct of Government agents contrary to law.” Heckler, 467 U.S. at 63,104 S.Ct. 2218.

Eisenberg cannot show any of the elements required to assert estoppel against the government. First, he acknowledge