Lepre v. Department of Labor

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 22, 2001 Decided December 21, 2001

No. 00-5053

Gerald Steven Lepre,

Appellant

v.

Department of Labor,

Employee Compensation Appeals Board,

Appellee

Appeal from the United States District Court

for the District of Columbia

(No. 98cv03137)

Andrew W. Bagley, appointed by the court, argued the

cause as amicus curiae on the side of appellant. With him on

the briefs was Dana C. Contratto.

Gerald S. Lepre, appearing pro se, was on the briefs for

appellant.

Irene M. Solet, Attorney, U.S. Department of Justice,

argued the cause for appellee. With her on the brief were

Wilma A. Lewis, U.S. Attorney at the time the brief was

filed, John C. Hoyle, Assistant U.S. Attorney, and David W.

Ogden, Assistant Attorney General, U.S. Department of Jus-

tice. Daria J. Zane and R. Craig Lawrence, Assistant U.S.

Attorneys, entered appearances.

Before: Rogers, Circuit Judge, Silberman and Williams*,

Senior Circuit Judges.

Opinion for the Court filed by Circuit Judge Rogers.

Concurring opinion filed by Senior Circuit Judge

Silberman.

Rogers, Circuit Judge: This appeal concerns the judicial

review provision of the Federal Employees Compensation Act

("FECA"), 5 U.S.C. s 8128(b) (1994), in a case involving the

suspension of temporary total disability benefits to an em-

ployee for failing to appear for a required medical examina-

tion. In rejecting Gerald Steven Lepre's claim that he never

received notice of the examination, the Department of Labor's

Employees' Compensation Appeals Board ("Board") relied on

the presumption that mail sent has been received. Lepre

now appeals the dismissal of his complaint, contending that

the district court erred in rejecting his due process challenge

based on lack of notice and in ruling that s 8128(b) barred

judicial review of his claim that the Secretary of the Depart-

ment of Labor violated the clear statutory mandate of FECA.

We hold that s 8128(b) does not bar judicial review of

Lepre's due process challenge to the Department's alleged

systemic reliance on the mailbox presumption. We further

hold that Lepre's due process challenge is unpersuasive. We

do not reach the question of whether s 8128(b) bars judicial

review of a claimed violation by the Secretary of a clear

statutory mandate because Lepre's complaint fails to allege a

facial violation of FECA. Accordingly, we affirm the dismiss-

al of the complaint.

__________

* Senior Circuit Judge Williams was in regular active service at

the time of oral argument.

I.

Under FECA, "an employee shall submit to examination by

a medical officer of the United States, or by a physician

designated or approved by the Secretary of Labor, after the

injury and as frequently and at the times and places as may

be reasonably required." 5 U.S.C. s 8123 (a). "If the em-

ployee refuses to submit to or obstructs an examination, his

right to compensation is suspended until the refusal or ob-

struction stops." Id. s 8123(d).

In November 1993, while Lepre was employed as a federal

corrections officer in Otisville, New York, a prisoner struck

him with a wooden industrial floor broom, causing a lumbosa-

cral strain. Lepre filed a claim for disability benefits with

the Department of Labor's Office of Workers' Compensation

Programs ("OWCP"), and was awarded continuation of pay

followed by wage loss benefits for temporary total disability

under FECA, 5 U.S.C. ss 8101 et seq. Lepre received

regular payments for temporary total disability through De-

cember 13, 1994. His benefits were interrupted for approxi-

mately ten months in 1995, after which he received compensa-

tion for the period ending March 31, 1995. Following another

interruption, he eventually received compensation from

OWCP for the period between April 1, 1995, and September

17, 1995. Although his benefits were restored as of August

18, 1996, when he indicated that he was willing to submit to a

medical examination, Lepre has never received benefits for

the period between September 18, 1995, and August 18, 1996,

because of OWCP's position that he failed to comply with

requests to submit to a second opinion medical examination.

In a letter addressed to "Gerald S. Lepre" dated June 30,

1995, OWCP informed Lepre that in order to "clarify the

cause and extent of [your] injury-related impairment," he was

to see a physician on August 3, 1995, and that failure to

appear "may result in the suspension of your right to compen-

sation under Title 5 U.S.C. 8123(d) until the refusal or

obstruction is deducted from the period for which compensa-

tion is payable." Lepre did not appear for the medical

appointment. In a follow-up letter addressed to "Gerald

Lepri" on August 14, 1995, OWCP stated that Lepre needed

to explain why he failed to keep the appointment, and that

"any action on your part short of full cooperation could result

in suspension of benefits." No response to this letter was

ever received. Finally, in a letter addressed to "Gerald S.

Lepre" dated September 18, 1995, OWCP informed Lepre

that his claim for benefits had been disallowed because of his

failure to attend or explain his nonattendance at the sched-

uled medical examination. All three of OWCP's letters were

addressed to Lepre at 106 Willow Avenue, Susquehanna, PA

18847.

On September 20, 1995, Lepre wrote to OWCP advising of

the problems he was having with his "claim." He attached

what he described as "a current set of forms" as well as his

affidavit stating that he had complied with all prior medical

appointments. Although he did not expressly state in his

affidavit that he had not received OWCP's pre-suspension

notices, he demanded proof of service and stated that he was

not notified, as the claims examiner averred in her findings of

fact, of the August 3, 1995 medical examination, and that the

presumption that he was notified had prejudiced him. In his

affidavit, he also stated that all future correspondence should

be sent to him by certified mail, return receipt requested, to:

Gerald S., Lepre, Sui Juris, Juris et de jure

c/o 106 Willow Avenue

34th Judicial district

Susquehanna Depot borough

Susquehanna, Pennsylvania commonwealth Republic

state

OWCP treated Lepre's letter as a request for reconsideration

of the suspension of his benefits, and denied the request on

September 29, 1995. OWCP did not interpret Lepre's letter

to indicate his willingness to submit to a medical examination

and declined to change Lepre's mailing address, because it

would not be recognized by the U.S. Postal Service for lack of

a zip code.

Nearly a year later, on August 19, 1996, Lepre appealed to

the Employees' Compensation Appeals Board, advising that

he had not heard anything from OWCP and was willing to

attend a medical examination if notified. The Board denied

Lepre's appeal and subsequent request for reconsideration.

In determining that Lepre had failed to offer sufficient rea-

sons for failing to cooperate with the second opinion medical

examination, the Board relied on the "mailbox rule," pursuant

to which:

It is presumed, in the absence of evidence to the con-

trary, that a notice mailed to an individual in the ordi-

nary course of business was received by that individual.

This presumption arises when it appears from the record

that the notice was properly addressed and duly mailed.

The appearance of a properly addressed copy in the case

record, together with the mailing custom or practice of

the Office itself, will raise the presumption that the

original was received by the addressee. While in his

request for reconsideration, [Lepre] requested that all

mail be sent to another address, prior to that time, the

address of record was correctly used by the Office. As

[Lepre] has not provided any evidence to the contrary, it

is presumed that he was duly notified of the scheduled

appointment.

The Board declined to consider Lepre's contention that the

federal statutes applied by OWCP are inapplicable to him as

a citizen of the State of Pennsylvania, stating that the Board

"has long recognized that it is not the proper forum to

challenge the constitutionality of an act of Congress," citing

its decision in Christino Rodriguez, 8 ECAB 428 (1955),

inasmuch as "[t]he exercise of jurisdiction by the federal

courts regarding constitutional issues is calculated to directly

uphold and preserve the principle of separation of powers."

Lepre then filed pro se a petition in the district court

seeking review of the Board's decision, raising both constitu-

tional and statutory claims. Specifically, Lepre alleged that

"he [had] never received proper notice to attend [the] medical

examination," had notified the Department of his proper

mailing address, and had anticipated that a new date for a

medical examination would be set. Asserting that his affida-

vit claiming non-receipt of the notice was unrebutted, and

that the Department failed to offer evidence during the

administrative proceedings that the letters had been mailed,

much less received, Lepre sought relief in a variety of forms,

including the award of the denied benefits, a remand with

direction to the Board to reverse its decision, and a declara-

tion that the Secretary of the Department has a duty to

reschedule a medical examination once the obstruction is

removed or the claimant is willing to submit to such examina-

tion. In moving pro se for summary judgment, Lepre chal-

lenged the constitutionality of the Board's reliance on the

mailbox rule, as well as the adequacy of the administrative

review procedures used to determine whether a beneficiary

has refused to attend a medical examination, on the ground

that they fail to afford a meaningful opportunity to be heard.

The district court denied Lepre's motion for summary

judgment and granted the Department's motion to dismiss for

lack of jurisdiction under Fed. R. Civ. P. 12(b)(1). Constru-

ing s 8128(b) to bar judicial review of the benefits determina-

tion, the district court ruled that it had jurisdiction to review

Lepre's constitutional claims. Assuming Lepre had a proper-

ty interest in the continued payment of FECA benefits, the

court held that his due process rights to notice and an

opportunity to respond were satisfied by OWCP's post-

deprivation notice of September 18, 1995, which Lepre admit-

ted receiving, and the availability of administrative reconsid-

eration and appeal.

II.

On appeal, Lepre contends because an injured employee

has a property interest in FECA benefits, due process re-

quires at a minimum that the employee receive actual notice,

a hearing or an opportunity to be heard, and a judicial

determination. Lepre also contends that the Board's decision

relied on bald assertions and conclusions of law in finding that

he refused or obstructed the taking of a medical examination,

without any evidence to rebut his affidavit that he did not

receive OWCP's notices. In contending that Congress did

not intend for s 8128(b) to preclude review of constitutional

claims, Lepre, assisted by amicus on appeal, focuses on the

strong presumption of judicial review of administrative ac-

tions and Supreme Court decisions interpreting bars to judi-

cial review. Amicus maintains that not only does the lan-

guage of s 8128(b) not specifically preclude judicial review of

constitutional claims, the legislative history reveals no con-

gressional intent to bar such claims. Amicus maintains fur-

ther that preclusion could lead to the potentially absurd result

of allowing the Department to trample over FECA beneficia-

ries' constitutional rights with impunity, and that otherwise

s 8128(b) would violate the separation of powers and the

Fifth Amendment's Due Process Clause. Nor, amicus con-

tends, does s 8128(b) bar review of Lepre's claim that the

Secretary violated FECA's clear statutory mandate or ex-

ceeded her statutory authority.

A.

The issue of whether the court has jurisdiction to review

Lepre's due process and statutory mandate contentions is

reviewed de novo. See Ridder v. Office of Thrift Supervision,

146 F.3d 1035, 1038 (D.C. Cir. 1998). Although the Depart-

ment does not contest that the court has jurisdiction to

review substantial constitutional claims, the court must make

its own determination of its jurisdiction. See Floyd v. Dis-

trict of Columbia, 129 F.3d 152, 155 (D.C. Cir. 1997).

Section 8128(b) provides, in pertinent part, that:

The action of the Secretary or h[er] designee in allow-

ing or denying a payment under this subchapter is -

(1) final and conclusive for all purposes and with re-

spect to all questions of law and fact; and

(2) not subject to review by another official of the

nited States or by a court by mandamus or

otherwise.

5 U.S.C. s 8128(b) (1994). The language of s 8128(b) is

facially uncompromising as to the "action of the Secretary,"

but amicus maintains that it refers only to the benefits

decision and not to the practice or procedure used in making

decisions. In interpreting s 8128(b)'s scope, we have signifi-

cant guidance from the Supreme Court and the law of this

circuit.

In Johnson v. Robison, 415 U.S. 361 (1974), the Supreme

Court addressed whether 38 U.S.C. s 211(a) barred judicial

review of a facial challenge to the Veterans' Readjustment

Benefits Act of 1966, on the ground that by denying edu-

cational benefits to conscientious objectors who had complet-

ed alternative civilian service, the statute unconstitutionally

discriminated against them and infringed upon their religious

freedom. Section 211(a) provided that:

[T]he decisions of the Administrator on any question of

law or fact under any law administered by the Veterans'

Administration providing benefits for veterans and their

dependents or survivors shall be final and conclusive and

no other official or any court of the United States shall

have power or jurisdiction to review any such decision by

an action in the nature of mandamus or otherwise.

Because construing the review provision to foreclose judicial

review of constitutional claims "would ... raise serious ques-

tions concerning the constitutionality of s 211(a)," the Court

looked to see whether Congress intended such an interpreta-

tion. Id. at 366. Finding that "neither the text nor the scant

legislative history of s 211(a)" sufficed to furnish the requi-

site clear and convincing evidence of congressional intent to

prohibit judicial review of constitutional challenges to the

statute, the Court construed the statute to permit judicial

review of the claim. Id. at 373-74.

The Supreme Court has remained faithful to Robison's

teachings. In Webster v. Doe, 486 U.S. 592, 603 (1988),

applying the "heightened showing" required by Robison, the

Court held that colorable constitutional challenges to a discre-

tionary decision of the Director of the CIA to terminate an

employee were judicially cognizable while other challenges to

the termination were precluded. See id. at 600, 603. So too

in Bowen v. Michigan Academy of Family Physicians, 476

U.S. 667 (1986), the Court rejected the notion that statutory

authorization of judicial review of some acts suffices to sup-

port an inference of exclusion as to others. See id. at 672.

Finding that the legislative history of 42 U.S.C. ss 1395ff and

1395ii revealed an intent to preclude judicial review only of

the amounts of benefits awarded under Part B of the Medi-

care Act, see Bowen, 476 U.S. at 676-77, the Court held there

was no bar to judicial review of constitutional and statutory

challenges to agency regulations. See id. at 680. Thereafter,

in Traynor v. Turnage, 485 U.S. 535 (1988), the Court took

note of Robison's reasoning, that "the prohibitions [of s 211a]

would appear to be aimed at review only of those decisions of

law or fact that arise in the administration by the Veterans'

Administration of a statute providing benefits for veterans,"

415 U.S. at 367, in concluding that judicial review was not

barred of a challenge to a Veteran's Administration regulation

as violative of s 504 of the Rehabilitation Act. Traynor, 485

U.S. at 543, 545.

Meanwhile, following the instruction in Robison, this cir-

cuit, in the so-called Ralpho trilogy, has required, when

confronted with similarly worded statutory review provisions,

special clarity of congressional intent to bar federal courts

from adjudicating the merits of constitutional challenges. In

Ralpho v. Bell, 569 F.2d 607, 612-13 (D.C. Cir. 1977), the

court was confronted with a challenge, not that a statute was

unconstitutional, but that the agency implementing the stat-

ute had violated due process by relying on secret valuation

data in ruling on a claim for compensation for destruction of a

private residence. It was also confronted with claims of

nonconstitutional error. A provision of the Micronesian

Claims Act of 1971, 50 U.S.C. ss 2018-2020b (Supp. II 1972),

provided that claims determinations "shall be final and con-

clusive for all purposes, notwithstanding any other provision

of law to the contrary and not subject to review." Id. s 2020.

The court rejected the argument that a challenge to the

constitutionality of agency action was sufficient to distinguish

the case from Robison.

[I]f legislation by Congress purporting to prevent judicial

review of the constitutionality of its own actions is itself

constitutionally suspect, legislation that frees an adminis-

trative agency from judicial scrutiny of its adherence to

the dictates of the Constitution must pose grave constitu-

tional questions as well. Not only is it daring to suggest

that Congress, though subject to the checks and balances

of the Constitution, may create a subordinate body free

from constraints; it also beggars the imagination to

suggest that judicial review might be less crucial to

assuring the integrity of administrative action than it is

to make certain the Congress will operate within its

proper sphere. If the courts are disabled from requiring

administrative officials to act constitutionally, it is diffi-

cult to see who would perform that function.

Ralpho, 569 F.2d at 620. The court applied the standards of

Robison, id. at 621, reviewing the legislative history to deter-

mine if Congress intended to cut off judicial review of consti-

tutional claims, and concluded that Congress "took such a

drastic step ... with marked silence as to its purpose." Id.

In the one instance that "might suggest such a legislative

purpose," the court noted, Congress had addressed concerns

about Commission positions becoming "posh sinecures"

through dilatory behavior by instructing the Commission to

wind up its work within three years. The court declined to

"assume that Congress courted a constitutional confrontation

merely to facilitate Commission adherence to a timetable,

which is ... merely directory." Id. at 620. However, the

court also found "clear evidence of congressional concern for

the due process rights of claimants under the Act." Id. at

621. Hence, consistent with a duty to avoid construing a

statute in a manner that would bring it into conflict with the

Constitution, the court held that "challenges of constitutional

stature impugning action by the [agency] are cognizable in

the federal courts." Id. at 621-22.

The two other parts of the trilogy, Griffith v. Federal

Labor Relations Auth., 842 F.2d 487 (D.C. Cir., 1988), and

Ungar v. Smith, 667 F.2d 188 (D.C. Cir. 1981), reaffirmed the

Ralpho analysis. In Griffith, the court observed that "[e]ven

though constitutional attacks on a statute carry much less

risk of trammeling other administrative system than do

claims that a particular act of an agency was unconstitutional,

we have extended this 'particularly rigorous' style of interpre-

tation into the latter, more treacherous area." 482 F.2d at

487. The court held that it had jurisdiction to review an as-

applied due process challenge under the Civil Service Reform

Act of 1978, 5 U.S.C. ss 7122-23 (1982). An Internal Reve-

nue Service employee who took the denial of a within-grade

increase to arbitration succeeded in securing a retroactive

pay increase under the Back Pay Act, 5 U.S.C. s 5596 (1982).

The Federal Labor Relations Authority rescinded the award

on the ground that the arbitrator had erred in applying the

terms of the Back Pay Act. The employee filed suit, contend-

ing (among other things) that the Authority's failure to

remand to the arbitrator deprived her of "property" in the

form of the pay increase, thereby infringing on her due

process rights. Id. at 490. The Civil Service Reform Act

provided for judicial review by "[a]ny person aggrieved by

any final order of the Authority other than an order under [ ]

section 7122 ... (involving an award by an arbitrator), unless

the order involves an unfair labor practice under section

7118." 5 U.S.C. s 7123(a). The court found no specific

evidence that Congress intended to preclude judicial review of

constitutional claims and addressed the merits of the as-

applied due process challenge. Id. at 495-501.

In Ungar, the court held that it had jurisdiction of an as-

applied constitutional challenge to a denial of a request under

the Trading with the Enemy Act, 22 U.S.C. s 1631o (1976),

for the return of assets owned by a Hungarian pharmaceuti-

cal company that had been seized during World War II.

Although s 1631o(c) provided that claims determinations

were to be "final" and "not ... subject to review by any

court," the court reiterated that "only the clearest evocation

of congressional intent to proscribe judicial review of constitu-

tional claims will suffice to overcome the presumption that the

Congress would not wish to court the constitutional dangers

inherent in denying a forum in which to argue that govern-

ment action has injured interests that are protected by the

Constitution." Unger, 667 F.2d at 193. A review of the

legislative history of s 1631o(c) uncovered no reference to the

proscription of judicial review. See id. at 194. Looking to

the history of related statutes, the court found at most "scant

assistance," id., and "failed to discover anything that might be

considered a clear expression of Congress' desire to prevent

courts from passing on constitutional claims of those seeking

return of vested assets." Id. at 196. The court remanded

the case for the Justice Department to establish procedures,

consistent with due process, that provided adequate time for

the preparation and examination of whatever probative evi-

dence was submitted to it in support of a claim. See id. at

198.

B.

Turning to Lepre's contention that s 8128(b) does not bar

review of his due process challenge to the mailbox rule, we

need only look to Robison and its progeny to conclude that

we have jurisdiction. Although it also is clear that we have

jurisdiction under the Ralpho trilogy's clear statement rule,

the court, while continuing to apply the Ralpho trilogy, has

recently raised the question whether language in Traynor,

485 U.S. at 542-45, undermines the trilogy's premise that

Robison was based more on ideas of special status of constitu-

tional claims than statutory language. See McBryde v.

Comm. to Review Circuit Council Conduct and Disability

Orders of the Judicial Conference of the United States, 264

F.3d 52, 59-60 (D.C. Cir. 2001), petition for en banc review

pending. Robison and Traynor have also spawned two lines

of analysis on how to interpret withdrawal of jurisdiction

provisions framed in the manner of s 8128(b): one that

distinguishes between constitutional and statutory claims, see

Czerkies v. United States Dep't of Labor, 73 F.3d 1435, 1442

(7th Cir. 1996) (en banc), and another that distinguishes

between systemic challenges and case-specific decisions, id. at

1443 (Easterbrook, J., concurring in the judgment). We need

not choose between the theories. Because Lepre's due pro-

cess challenge focuses on a structural component of the

FECA system itself, and not simply on an individual decision

on a benefits claim, his challenge is both constitutional and

systemic.

We hold that s 8128(b) does not bar judicial review of

Lepre's due process challenge to the mailbox rule. This

conclusion is consistent with the statutory language, Supreme

Court precedent, and precedents from other circuits. As

amicus suggests, the language of s 8128(b) speaks only to the

action of the Secretary "under this chapter" and does not rule

out judicial review of constitutional challenges. The Supreme

Court noted in Waters v. National Ass'n of Radiation Sur-

vivors, 473 U.S. 305, 311 n.3 (1985), that "[d]espite the

general preclusion of judicial review with respect to VA

benefit claims, [the Supreme] Court held in Johnson v. Robi-

son, 415 U.S. 361 (1974), that the district courts have jurisdic-

tion to entertain constitutional attacks on the operation of the

claims system." In Traynor, the Supreme Court, observing

that the statute at issue addressed "decisions of the Adminis-

trator," and that regulations governing such programs are not

"decisions," distinguished between systemic challenges and

case-specific decisions. 485 U.S. at 543-44; see also Bowen,

476 U.S. at 678. Without exception, every other circuit to

consider the scope of s 8128(b) has concluded that it does not

bar judicial review of constitutional claims. See Czerkies, 73

F.3d at 1442 (7th Cir. en banc); id. at 1443 (Easterbrook, J.,

concurring in the judgment); Brumley v. United States Dep't

of Labor, 28 F.3d 746, 747 (8th Cir. 1994) (per curiam);

Benton v. United States, 960 F.2d 19, 22 (5th Cir. 1992) (per

curiam); Woodruff v. United States Dep't of Labor, 954 F.2d

634, 639 (11th Cir. 1992) (per curiam); Owens v. Brock, 860

F.2d 1363, 1367 (6th Cir. 1988); Paluca v. Secretary of Labor,

813 F.2d 524, 525-26 (1st Cir. 1987); Rodrigues v. Donovan,

769 F.2d 1344, 1347-48 (9th Cir. 1985). As the Seventh

Circuit majority of the en banc court reasoned, to find review

to be precluded could lead to absurd results, either allowing

agencies to trample over claimants' constitutional rights with

impunity or not to consider them at all. See Czerkies, 73

F.3d at 1442. Although the McBryde court held that the

statutory bar in that case extended to as-applied constitution-

al claims, 264 F.3d at 62-63, McBryde may be sui generis

given its emphasis on redundancy, see id. at 62, as it involved

Article III judges reviewing a challenge to the imposition of

judicial discipline, albeit not in the usual court context; no

such circumstances exist in the instant case. Alternatively,

the element under attack - the Secretary's generic use of the

mailbox rule - is both "structural" and "systemic," and there-

fore review is not barred by s 8128(b)'s bar on review of

specific "action" of the Secretary. See Czerkies, 73 F.3d at

1444, 1446 (Easterbrook, J., concurring in the judgment).

Furthermore, despite the "uncompromising language" of

s 8128(b), id. at 1438, the search for congressional intent is

neither elusive nor difficult to understand. The analysis of

the legislative history of s 8128(b) in Czerkies is compelling.

A review of FECA's legislative history revealed "the limited

scope of the door-closing provision." Id. at 1440. As that

court recounted, s 8128(a) became part of FECA in 1945, as

part of a statute that was addressing special problems arising

out of World War II. In particular, there was difficulty in

determining and administering compensation for injuries sus-

tained by noncitizen employees of the federal government

who were injured while working outside of the United States.

Congress resolved the problem by providing in s 4 of the

1945 legislation that the benefits commission should base

compensation awards on local law or custom, and "near the

end tacked on the sentence about the commission's ... action

being final and conclusive that appears in the current stat-

ute." Id. at 1441. "So far as appears," the Seventh Circuit

concluded, "the 1945 door-closing provision was intended to

be limited to awards under section 4, the section of which it

was the penultimate sentence - odd placement if the provision

was intended to govern all claims under the compensation

law." Id. Further, "[t]here is no indication at any stage in

the evolution of the statute that Congress meant to enlarge

the scope of the original limitation, let alone to curtail consti-

tutional remedies." Id. Only a letter from the commission's

chairman suggested that the door-closing provision of section

4 was intended to promote finality in payment, but that

discussion focused on payments to employees in foreign coun-

tries where failure to comply with local custom would upset

the employee and the local authorities. See id. (citing S. Rep.

No. 421, 79th Cong., 1st Sess. 5-6 (1945)). Thus, the Seventh

Circuit was satisfied that the door-closing provision did not

appear to apply to claims by United States citizens. See id.

The court, therefore, concluded that "[t]he history of [FECA]

provides no basis for rebutting the presumption of judicial

review of constitutional claims." Id.

III.

Turning to the merits of Lepre's due process challenge, he

contends that the Department's reliance on the mailbox rule,

in conjunction with the Department's deficient post-

suspension review procedures, fails to meet the requirements

of due process. His challenge thus implicates no less than

the constitutional adequacy of the systemic procedures em-

ployed by the Department in suspending FECA benefits in

addition to the adequacy of the procedures as applied to

Lepre himself. Specifically, he contends that he was uncon-

stitutionally deprived of his FECA disability benefits because

he never received OWCP's June 30, 1995 notice of the re-

quired medical examination, or its August 14, 1995 follow-up

letter. In addition, Lepre contends that the administrative

reconsideration and appeal procedures failed to provide him

with a meaningful opportunity to be heard.

Except for certain narrow exceptions, due process general-

ly requires that a property interest in government benefits be

preceded by adequate note and an opportunity to respond,

either in person or in writing. See Cleveland Bd. of Educ. v.

Loudermill, 470 U.S. 532, 546 (1985). The opportunity to be

heard must be provided "at a meaningful time and in a

meaningful manner." Mathews v. Eldridge, 424 U.S. 319, 333

(1976) (internal quotations omitted). In Eldridge, the Court

instructed, however, that "[d]ue process, unlike some legal

rules, is not a technical conception with a fixed content

unrelated to the time, place and circumstances.... Due

process is flexible and calls for such procedural protections as

the particular situation demands." Id. at 334 (internal quota-

tions omitted). Among the relevant factors to be considered

in striking the appropriate balance are "the degree of poten-

tial deprivation that may be created by a particular decision,"

id. at 341, "the fairness and reliability of the existing preter-

mination procedures, and the probable value, if any, of addi-

tional procedural safeguards," id. at 343, as well as "the

public interest ... includ[ing] the administrative burden and

other societal costs that would be associated with requiring,

as a matter of constitutional right," the added safeguards.

Id. at 347.

With respect to his as-applied challenge, Lepre does not

contend that he was unable to present his evidence during the

administrative review proceedings. Rather, he relies on his

affidavit stating that he had not received notice of the medical

examination. In view of the Department's failure to intro-

duce evidence that the pre-suspension notices had been

mailed or evidence regarding OWCP's mailing practices in

general, Lepre maintains that his affidavit was unrebutted

and sufficed to vitiate the presumption of receipt. He relies

on Legile v. Dann, 544 F.2d 1 (D.C. Cir. 1976), where the

court held that Federal Rule of Evidence 301 embodies the

"bursting bubble" theory, whereby the presumption of deliv-

ery of mail that arises upon proof of the foundation facts

evaporates as a rule of law in the face of contrary evidence.

See id. at 4-6; see generally Bratton v. The Yoder Company,

758 F.2d 1114, 1119 (6th Cir. 1985). An issue of fact thus

arises when the person to whom mail is addressed denies

receipt. See Witt v. Roadway Express, 136 F.3d 1424, 1430

(10th Cir. 1998); American Cas. Co. of Reading v. Nordic

Leasing, Inc., 42 F.2d 725, 734 (2d Cir. 1994).

In applying the mailbox rule, the Board relied on copies of

OWCP's three letters (each addressed to Lepre at 106 Willow

Avenue, Susquehanna, PA 18847), as well as its knowledge of

OWCP's customary mailing practices. However, it appears

from the record on appeal that there was no evidentiary

foundation regarding OWCP's mailing practices, nor evidence

that these particular letters had been mailed. Presumably to

remedy this deficiency, the Department introduced in the

district court a declaration from the Chief of OWCP's Branch

of Regulations, Policies, and Procedures stating that a review

of Lepre's file indicated that "[i]n accordance with OWCP's

established procedures for scheduling such examinations, the

notice of examination was sent by first class mail to Lepre's

address of record." With this declaration, there may well

have been sufficient evidence to support an inference in the

district court that OWCP's notices had been mailed. See

Mahon v. Credit Bureau of Placer County, Inc., 171 F.3d

1197, 1202 (9th Cir. 1999); Meckel v. Continental Res. Co.,

758 F.2d 811, 817 (2d Cir. 1985). The question would still

remain, however, whether Lepre's affidavit sufficed to rebut

the presumption that the notices had also been received by

him. Lepre does not contend that prior to June 30, 1995, he

had notified OWCP of any change in his address, and the

address set forth in his affidavit is virtually identical to the

address of record to which OWCP had been sending its

letters. Cf. Mullane v. Central Hanover Bank & Trust Co.,

339 U.S. 306, 318-19 (1950); Mennonite Bd. of Missions v.

Adams, 462 U.S. 791, 798-800 (1983). Further, Lepre admits

receiving OWCP's September 18, 1995, notice of suspension of

benefits. Under the circumstances, some courts have con-

cluded that a mere denial of receipt is insufficient to rebut the

presumption accorded the sender under the mailbox rule.

See Mahon, 171 F.3d at 1202; Kinash v. Callahan, 129 F.3d

736, 738 (5th Cir. 1997); McCall v. Bowen, 832 F.2d 862, 864

(5th Cir. 1987); Meckel, 758 F.2d at 817; cf. Kerr v. Charles

F. Vatterott & Co., 184 F.3d 938, 947-48 (8th Cir. 1999).

Lepre contends, however, that in applying the mailbox rule

the Board placed an insurmountable burden on him to prove

a negative (i.e., that he did not receive the letters or, alterna-

tively, that OWCP never mailed the letters), thereby trans-

forming the presumption into an irrebuttable axiom. Lepre

further contends that as a systemic matter, such reliance on

the mailbox rule does not comport with due process. Indeed,

it is difficult to conceive of what more a FECA beneficiary

could have done to demonstrate that he had not received

OWCP's pre-suspension notices, and on appeal the Depart-

ment's only response is that requiring OWCP to accept his

"unsupported statement as conclusive" would compel use of

return-receipt requested mail. For reasons that follow, we

need not decide whether, as a matter of due process, OWCP's

reliance on the mailbox rule, combined with its practice of

timely mailing notification of required medical examinations

to the beneficiary's address of record and following up, as

necessary, with a letter seeking an explanation and coopera-

tion prior to the suspension of benefits, strikes a fair balance

between claimants' interests in the continued receipt of bene-

fits, the risk of unwarranted deprivations of or disruptions in

the provision of benefits, and the need to administer disability

benefits reliably and efficiently. Cf. Eldridge, 424 U.S. at

347. See also Kerr, 184 F.3d at 948.

Lepre contends that he was entitled to receive actual notice

prior to the suspension of his benefits. The Supreme Court

established in Mullane that notice must be "reasonably calcu-

lated, under all circumstances, to apprise interested parties of

the pendency of the action and afford them an opportunity to

present their objections," 339 U.S. at 314, and reiterated in

Tulsa Prof. Collection Servs. v. Pope, 485 U.S. 478 (1988),

that "mail service is an inexpensive and efficient mechanism

that is reasonably calculated to provide actual notice." Id. at

490; see also Mennonite Bd., 462 U.S. at 800. Consistent

with the teachings of Mullane, courts have examined the

surrounding circumstances to determine whether the govern-

ment has shown, not that actual successful notice occurred,

but that it made reasonable efforts to give actual notice to the

intended recipient. See, for example, Covey v. Town of

Somers, 351 U.S. 141, 146-47 (1956), involving notice to an

incompetent person, and cases involving incarcerated persons,

United States v. Dusenberry, 223 F.3d 422 (6th Cir. 2000),

cert. granted in part, __ U.S. __, 121 S.Ct. 1186 (Feb. 26,

2001); United States v. Minor, 228 F.3d 352, 358 (4th Cir.

2000); United States v. One Toshiba Color Television, 213

F.3d 147, 155 (3d Cir. 2000); Weng v. United States, 137 F.3d

709, 714 (2d Cir. 1998); Small v. United States, 136 F.3d

1334, 1337 (D.C. Cir. 1998) (citing Robinson v. Hanrahan, 409

U.S. 38, 40 (1972)). See also Mennonite Bd., 462 U.S. at 798

n.4. On the record before the district court, it is conceivable,

particularly in view of Lepre's admission that he received the

September 18, 1995, notice of suspension, that OWCP made

reasonable efforts to furnish Lepre with actual pre-

suspension notice. Neither Lepre nor amicus suggest that

special measures to ensure actual notice were required in

Lepre's case, as in Covey, 351 U.S. at 146-47.

We proceed, however, on the basis that Lepre's affidavit

sufficed to rebut the presumption arising under the mailbox

rule, given the difficulty of expecting a FECA beneficiary to

do more and the Department's apparent evidentiary lapse

before the Board. Mail sent does not always arrive at its

destination, and some courts have viewed a sworn denial of

receipt as sufficient to establish an issue of material fact.

See, e.g., Witt, 136 F.3d at 1430; American Cas. Co. of

Reading, 42 F.2d at 734. Thus, the question is whether, after

rejecting the Board's reliance on the mailbox rule in the face

of Lepre's affidavit, Lepre would prevail on his due process

challenge. He would not. Where a notice is lost in the mail,

the availability of agency reconsideration and appeal provide

sufficient avenues of redress and rectification to meet the

requirements of due process. See Stuto v. Fleishman, 164

F.3d 820, 825-27 (2d Cir. 1999); Raditch, 929 F.2d at 480-82

(citing Hudson v. Palmer, 468 U.S. 517, 533 (1984), and

Parratt v. Taylor, 451 U.S. 527, 544 (1981)). The record

indicates that Lepre received OWCP's suspension notice, and

he offers no more than bald assertions that the post-

suspension proceedings were "a sham" and that he did not

have a fair opportunity to challenge OWCP's decision. Cf.

Stuto, 164 F.3d at 833. In the absence of specificity, the

court has no basis to conclude, even assuming a mistaken

denial of benefits, that Lepre's due process rights were

violated. See Czerkies, 73 F.3d at 1443. We therefore affirm

the district court's denial of Lepre's due process challenge.

IV.

Lepre also contends that the Secretary violated FECA's

statutory mandate by failing to reschedule his medical exami-

nation after receipt of his September 20, 1995, letter and

affidavit. Specifically, he maintains that the Secretary's inac-

tion violated s 8123(d), pursuant to which a beneficiary's

"right to compensation under this subchapter is suspended

until the refusal or obstruction stops." According to Lepre,

his affidavit demonstrated that he never refused to submit to

or obstructed a medical examination. Further, Lepre main-

tains that his request that all future correspondence be sent

by certified mail to the revised address manifested his willing-

ness to submit to a new medical examination, thereby remov-

ing any grounds for continuing to withhold his benefits.

Relying on Leedom v. Kyne, 358 U.S. 184 (1958), amicus

contends that judicial review of this alleged violation of

FECA's statutory mandate is not barred by s 8128(b).

Our analysis again begins with "the strong presumption

that Congress intends judicial review of administrative ac-

tion," Bowen, 476 U.S. at 670, which "may be overcome 'only

upon a showing of clear and convincing evidence of a contrary

legislative intent.' " Traynor, 485 U.S. at 542 (quoting Abbott

Labs. v. Gardner, 387 U.S. 136, 141 (1967)). As the Supreme

Court observed, however:

Subject to constitutional constraints, Congress can, of

course, make exceptions to historic practice whereby

courts review agency action. The presumption of judicial

review is, after all, a presumption, and 'like all presump-

tions used in interpreting statutes, may be overcome by,'

inter alia, 'specific language or specific legislative history

that is a reliable indicator of congressional intent,' or a

specific congressional intent to preclude judicial review

that is 'fairly discernible in the detail of the legislative

scheme.'

Bowen, 476 U.S. at 672 (quoting Block v. Community Nutri-

tion Inst., 467 U.S. 340, 349 (1984)).

Even when Congress has not expressly provided for judi-

cial review, it may nonetheless be available. See id.; Tray-

nor, 485 U.S. at 545. In Kyne, the Supreme Court held that

a determination by the National Labor Relations Board that

directly conflicted with a provision of the National Labor

Relations Act was judicially cognizable, despite the absence of

express authorization of judicial review of such determina-

tions. See id. at 183-84. The Court stated that it "cannot

lightly infer that Congress did not intend judicial protection

of rights it confers against agency action taken in excess of

delegated powers." Id. at 190. Thereafter, in Oestereich v.

Selective Serv. Sys. Local Bd. No. 11, 393 U.S. 233 (1968), the

Court observed that such judicial oversight is needed to

protect against "freewheeling agencies meting out their brand

of justice in a vindictive manner." Id. at 237. Thus, where

agency action contravenes a specific statutory prohibition and

results in the overstepping of the agency's delegated powers,

judicial review is not barred. See Boire v. Greyhound Corp.,

376 U.S. 473, 480-81 (1964). The Court subsequently stated

in Board of Governors of the Fed. Reserve Sys. v. MCorp

Financial, Inc., 502 U.S. 32, 43-44 (1991), that two "critical"

factors distinguished the review provision at issue in Kyne:

the lack of any alternative means of judicial review for the

plaintiffs, and the lack of a clear statement of Congress's

preclusive intent, such that the National Labor Relations

Board was forced to "contend[ ] that a statutory provision

that provided for judicial review implied, by its silence, a

preclusion of review of the contested determination." Id. at

43-44. In the absence of such factors, the Court held that

the Kyne exception did not apply. Id.; cf. United States v.

Fausto, 484 U.S. 439, 448-51 (1988).

In keeping with the Supreme Court's guidance, this court

has recognized a narrow statutory mandate exception to

statutory bars to judicial review. In Ralpho, the court stated

with regard to nonconstitutional claims of error that, notwith-

standing Congress' power to "shield[ ] even the most patent

deviation from statutory scheme from judicial redress where

the Constitution is not implicated," the "courts have assumed

it less likely that Congress intended to prohibit review of a

claim that the activities of an agency are facially invalid than

of the 'numerous discretionary, factual, and mixed questions

of law determinations' normally underlying an agency's deci-

sionmaking process." Ralpho, 569 F.2d at 622 (quoting Ost-

ereich, 393 U.S. at 240). Explaining that this assumption

reflects both a reluctance to license "free wheeling agencies

meting out their own brand of justice," and "a nice apprecia-

tion, presumably shared by Congress, that courts of law

possess peculiar expertise in statutory interpretation," the

court looked "to see how far Congress desired to muzzle the

courts and unleash the agency, and will normally disregard

'basically lawless' agency action only when clearly instructed

to do so." Id. Notably, the court observed that Congress is

not required in order "to ensure preclusion, [to] spell out the

boundaries of its intention with excruciating particularity,"

but is presumed to have done so "only after deliberation that

made its intention plain." Id. at 624. The court found no

such evidence of congressional intent in the statutory provi-

sion at issue (indeed "no evidence at all of the scope that

Congress contemplated"). See id. at 625. Accordingly, the

court held that s 2020 did not foreclose judicial review of

claims that the agency disregarded unambiguous statutory

directives or constitutional commands. Id. at 626-27; see

also Dart v. United States, 848 F.2d 217, 222 (D.C. Cir. 1988).

But cf. McBryde, 264 F.3d at 63-64; Griffith, 842 F.2d at 493.

This court has yet to decide whether s 8128(b) precludes

judicial review of a claim that the Secretary disregarded the

plain letter of the law. On the one hand, the clarity of

Congress's preclusional intent as to the Secretary's benefits

determinations can hardly be gainsaid. The Supreme Court

has referred to s 8128(b) as an example of language that

Congress employs when it "intends to bar judicial review

altogether." Lindahl v. Office of Personnel Mgmt., 470 U.S.

768, 780 n.13 (1985). However, s 8128(b) is silent as to

claims that the Secretary acted outside the scope of her

statutory authority, and, as the Fourth Circuit pointed out in

Hanauer v. Reich, 82 F.3d 1304 (4th Cir. 1996), "unlike the

statutory scheme at issue in MCorp, [FECA] does not pro-

vide for judicial review of a final order of the Secretary." Id.

at 1308. Thus, "[a]cceptance of the Secretary's argument

that s 8128(b) precludes district courts from considering

claims that the Secretary violated a clear statutory mandate

would, in the words of the Supreme Court, 'wholly deprive

[claimants] of a meaningful and adequate means of vindicat-

ing [their] statutory rights.' " Id. at 1308-09 (quoting

MCorp, 502 U.S. at 43). Cf. Shalala v. Illinois Council on

Long Term Care, Inc., 529 U.S. 1, 19 (2000); Bowen, 476 U.S.

at 678. A majority of other circuits to have considered the

issue have held that judicial review is available for clear

violations of FECA's statutory mandate. Compare, e.g.,

Brumley v. United States Dep't of Labor, 28 F.3d 746 (8th

Cir. 1994); Woodruff v. United States Dep't of Labor, Office

of Workers Comp., 954 F.2d 634 (11th Cir. 1992) (per curiam);

Staacke v. United States Sec'y of Labor, 841 F.2d 278 (9th

Cir. 1988), with McDougal-Saddler v. Herman, 184 F.3d 207

(3d Cir. 1999); Paluca v. Secretary of Labor, 813 F.2d 524

(1st Cir. 1987).

We need not now decide whether such a statutory mandate

exception exists for s 8128(b). In Griffen the court stated

that "review may be had only when the agency's error is

patently a misconstruction of the Act, ... or when the agency

has disregarded a specific and unambiguous statutory di-

rective, ... or when the agency has violated some specific

command of the statute.... Garden-variety errors of law or

fact are not enough." Griffith, 842 F.2d at 493. Lepre's

contention amounts to an alleged "garden-variety" error by

the Secretary, one in the nature of a factual dispute or a

mixed question of law and fact, rather than claim of a

statutory violation that is plain on its face. Lepre maintains

only that his letter and affidavit of September 20, 1995,

should have been viewed by OWCP as an indication that he

no longer "obstructed" or "refused" to submit to a medical

examination, thus rendering the Secretary's failure to re-

schedule the examination and her continued suspension of his

benefits a violation of the statute. This is no more than a

challenge to the assessment of Lepre's evidence. Yet an

examination of his September 20, 1995, letter and September

21, 1995, affidavit shows that they do not clearly convey a

readiness to submit to a second medical examination or a

request for rescheduling, much less suggest a clear violation

of a statutory mandate by the Secretary. Cf. Senerchia v.

United States, 235 F.3d 129, 132 (2d Cir. 2000); Ridder, 146

F.3d at 1040-41. Hence, whatever discretion the Secretary

may have to restore FECA benefits retroactively, following a

new medical examination (despite an earlier missed medical

examination), her refusal to do so for Lepre does not, on the

grounds he asserts, constitute a violation of a clear statutory

mandate, nor does it constitute a violation of Lepre's due

process rights.

Accordingly, we affirm the district court's denial of Lepre's

due process challenge and the dismissal of Lepre's statutory

challenge for lack of jurisdiction.

Silberman, Senior Circuit Judge, concurring: The Su-

preme Court has for a number of years, as Judge Rogers'

collection of cases shows, demonstrated an unseemly resis-

tance to statutes that preclude, or even limit, judicial review.

Its resistance more reflects James Buchanan's public choice

theory, see Crawford-El v. Britton, 93 F.3d 813, 832 (D.C.

Cir. 1996) (Silberman, J., concurring), than a fair interpreta-

tion of those statutes. Not surprisingly, the fiercest opposi-

tion is mounted to protect the Supreme Court's authority to

interpret the Constitution. That authority lies at the core of

the Supreme Court's power since, when exercised, it is virtu-

ally unchallengeable. Thus, the Court repeatedly holds that

statutes should not be read as depriving the federal courts of

jurisdiction to entertain constitutional challenges purportedly

because that reading would itself supposedly raise a serious

constitutional question--even when that reading is the obvious

one. See, e.g., Johnson v. Robison, 415 U.S. 361, 366 (1974).

Yet paradoxically, the same Supreme Court has admonished

the Court of Appeals not to use that maxim of statutory

interpretation unless the statute is truly capable of an alter-

nate construction. See Commodity Futures Trading

Comm'n v. Schor, 478 U.S. 833, 841 (1986). If the Court

believes that a statutory preclusion of constitutional claims is

unconstitutional, it should so hold, but see Webster v. Doe, 486

U.S. 592, 611 (1988) (Scalia, J., concurring in part and dissent-

ing in part), rather than engaging in this series of disingenu-

ous statutory interpretations.

In light of these cases, we are now led to a limiting

construction (not covering constitutional challenges--at least

generic ones) of a statute the Supreme Court itself once

described as using the language Congress employs when it

intends to bar judicial review altogether. See Lindahl v.

Office of Personnel Mgmt., 470 U.S. 768, 780 n.13. The

Supreme Court has brought us to a statutory interpretation

which is really a reductio ad absurdum.

To be sure, because the appellant's claim can be described

as a generic rather than an as applied challenge we need not

decide whether we agree with the majority of the Seventh

Circuit in Czerkies v. United States Dep't of Labor, 73 F.3d

1435 (7th Cir. 1996) (en banc), that under this statute any

constitutional challenge must be heard, or Judge Easter-

brook's concurrence that would limit such challenges to ge-

neric ones. I think Judge Easterbrook has somewhat the

better of the argument because I agree with him that virtual-

ly any plaintiff can get judicial review by clothing an ordinary

case in constitutional garb. I also believe the majority, by

reasoning that only by being able to bring a case in federal

court does a plaintiff gain constitutional protection, Czerkies,

73 F.3d at 1442, overlooks the point that all government

officials take an oath to the Constitution. Although govern-

ment agencies may not entertain a constitutional challenge to

authorizing statutes they must decide constitutional chal-

lenges to their own policies whether embodied in generic

rules or as applied in an individual case. See Meredith Corp.

v. FCC, 809 F.2d 869, 872 (D.C. Cir. 1987).

On the other hand, it must be conceded that a distinction

between generic and as applied challenges does not emerge

naturally from reading the statute. And I am not sure Judge

Easterbrook's line holds back very much litigation since

virtually any as applied claim can be phrased--as in this case--

as a generic challenge. Perhaps we should just give up; I

doubt that the Supreme Court has left us any principled

ground upon which a Court of Appeals judge can honor a

congressional preclusion of review of a constitutional claim.

The most forthright reason to read the statute's preclusion

of judicial review of "all questions of law and fact" as not

reaching constitutional challenges is that such challenges

have, for quite some time, not really been based on "law."

Supreme Court decisions--particularly in the last century--

have resembled more the periodic declarations of a continuing

constitutional convention than efforts to read the Constitution

as a body of positive law.