holding that judicial review over workers’ compensation claims generally precluded
How later courts described this case
- holding that judicial review over workers’ compensation claims generally precluded
- finding that plaintiff’s appeal and petition for reconsideration, considered by OWCP and ECAB, were sufficient where preliminary notice was allegedly lost in the mail
- holding that § 8128(b) prevents a federal court from having subject matter jurisdiction to review a “garden-variety” dispute over benefits
- rejecting non-statutory review where the plaintiff alleged a “‘garden-variety’ error ... rather than [a] claim of a statutory violation that is plain on its face”
Written by the judges who cited it.
The opinion
SILBERMAN, Senior Circuit Judge,
concurring:
The Supreme Court has for a number of years, as Judge Rogers’ collection of cases shows, demonstrated an unseemly resistance 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 interpretation of those statutes. Not surprisingly, the fiercest opposition 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 virtually 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 , 94 S.Ct. 1160, 1165 , 39 L.Ed.2d 389 (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 alternate construction. See Commodity Futures Trading Comm’n v. Schor, 478 U.S. 833, 841 , 106 S.Ct. 3245, 3251-52 , 92 L.Ed.2d 675 (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 , 108 S.Ct. 2047, 2057-58 , 100 L.Ed.2d 632 (1988) (Scalia, J., concurring in part and dissenting in part), rather than engaging *75 in this series of disingenuous 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, 105 S.Ct. 1620 , 1627 n. 13, 84 L.Ed.2d 674 (1985). 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 Easterbrook’s concurrence that would limit such challenges to generic ones. I think Judge Easterbrook has somewhat the better of the argument because I agree with him that virtually 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 government agencies may not entertain a constitutional challenge to authorizing statutes they must decide constitutional challenges to their own policies whether embodied in generic rules or as applied in an individual case. See Meredith Corp. v. FCC, 809 F.2d 863 , 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.