using similar analysis to hold that Federal Employees Compensation Act benefit determinations are not covered by the EAJA
How later courts described this case
- using similar analysis to hold that Federal Employees Compensation Act benefit determinations are not covered by the EAJA
- “[e]xcept for cases alleging that the Secretary violated a claimant’s constitutional rights or exceeded the scope of his congressional mandate, courts have unanimously held that section 8128(b) prohibits judicial review of FECA benefit determinations”
- criticizing Escobar Ruiz but also distinguishing it because the statute at issue in Owens explicitly disavowed section 554 coverage
- “Except for cases alleging that the Secretary violated a claimant’s constitutional rights or exceeded the scope of his congressional mandate, courts have unanimously held that section 8128(b) prohibits judicial review_”
Written by the judges who cited it.
The opinion
DAVID A. NELSON, Circuit Judge,
concurring.
Although I concur in the judgment and in most of the reasoning of the court, I write *1370 separately to note that I do not believe that the benefit determination with which we are concerned here could be an “adversary adjudication” within the meaning of the Equal Access to Justice Act even if Escobar Ruiz v. INS, 838 F.2d 1020 (9th Cir.1988) (en banc), which involved deportation proceedings, was decided correctly.
It was undisputed, in Escobar Ruiz , that adjudications in deportation proceedings are “adjudications” within the meaning of 5 U.S.C. § 554 . There could not possibly have been any dispute about this, because § 554 speaks of adjudications “required by statute to be determined on the record after opportunity for an agency hearing,” and the pertinent immigration statute expressly requires that any “[djetermination of deportability ... shall be made only upon a record made in a proceeding ... at which the alien shall have reasonable opportunity to be present____” 8 U.S.C. § 1252 (b).
In the case at bar, by contrast, the plaintiffs entitlement to workers’ compensation benefits was not required by statute to be determined “on the record.” The adjudication with which we are concerned here, therefore, was not an adjudication under section 554 in any conceivable sense; unlike the adjudication in Escobar Ruiz , it was not even an adjudication “under the meaning” of § 554, to say nothing of being “governed” by § 554.
Whether or not the question thought to be presented in Escobar Ruiz was decided correctly, the Ninth Circuit’s decision in that case gives Mr. Owens no help at all, as far as I can see. Our criticism of Escobar Ruiz , which may or may not be well taken, is clearly not central to our holding in the case at bar. Should a panel of our court be called upon to decide, at some future time, whether attorney fees may ever be awarded in connection with INS deportation adjudications, I do not believe that the panel would be foreclosed from reaching the same result as that reached by the Ninth Circuit in Escobar Ruiz .