Gregory R. Czerkies v. U.S. Department of Labor, Employment Standards Administration and Office of Workers Compensation Programs

EASTERBROOK, Circuit Judge,

with whom MANION and KANNE, Circuit Judges, join, concurring in the judgment.

When dealing with laws defining their authority, courts have a special duty to be scrupulous — and to be modest. Judges often justify their role by pointing to the need for a check on other political actors. Statutes specifying the jurisdiction of courts are the other actors’ checks on judges. Just as we insist that the Legislative and Executive Branches respect the constitutional checks on their power, so we must respect the constitutional checks on ours — especially because judges, unlike the other branches of government, assert that they possess the last word on the scope of their own powers. To evade laws limiting jurisdiction is to usurp power.

Congress has asserted its constitutional checking power by forbidding judicial review of federal workers’ compensation decisions:

The action of the Secretary or his designee in allowing or denying a payment under this subchapter is—

(1) final and conclusive for all purposes and with respect to all questions of law or fact; and

(2) not subject to review by another official of the United States or by a court by mandamus or otherwise.

5 U.S.C. § 8128 (b). This statute does not distinguish among reasons for seeking review; it makes the administrative decision final. In Lindahl v. Office of Personnel Management, 470 U.S. 768 , 779-80 & n. 13, 105 S.Ct. 1620 , 1627 & n. 13, 84 L.Ed.2d 674 (1985), the Supreme Court gave § 8128(b) as an example of the “unambiguous and comprehensive” language that Congress uses “when [it] intends to bar judicial review altogether”. This description was reiterated in Southwest Marine, Inc. v. Gizoni, 502 U.S. 81, 90 , 112 S.Ct. 486, 493 , 116 L.Ed.2d 405 (1991). It is altogether apt. If § 8128(b)(1) were not enough, § 8128(b)(2) adds: “We really mean it!”

The amicus curiae contends that we should whittle away at § 8128(b) to avoid a constitutional problem. There is none to avoid. Long ago the Supreme Court held that, when Congress creates a right to recover money from the United States, it may “provide an administrative remedy and make it exclusive.” Dismuke v. United States, 297 U.S. 167, 172 , 56 S.Ct. 400, 403 , 80 L.Ed. 561 (1936). Accord, United States v. Babcock, 250 U.S. 328, 331 , 39 S.Ct. 464, 465 , 63 L.Ed. 1011 (1919). That is what Congress did in § 8128(b). It is within the legislative power. Blanc v. United States, 244 F.2d 708 (2d Cir.1957); Hancock v. Mitchell, 231 F.2d 652 (3d Cir.1956); Calderon v. Tobin, 187 F.2d 514 (D.C.Cir.1951).

Any argument that there is constitutional-claim exception to statutes like § 8128(b) cannot be traced to doubts about the power of Congress to restrict the jurisdiction of *1444 district courts — for until 1875 the inferior courts lacked any general federal-question jurisdiction, and until 1980 the federal-question jurisdiction was qualified by an amount-in-controversy requirement. No one thinks the Judiciary Act of 1789 a colossal violation of Article III on this account. Sovereign immunity, too, limits judicial competence; what role judges are to play is entirely in the hands of Congress, see FDIC v. Meyer, — U.S. -, -, 114 S.Ct. 996, 1004-06 , 127 L.Ed.2d 308 (1994); the obligation to respect legislative decisions is not diminished by the constitutional basis of the claim (Meyer and many other sovereign-immunity cases deal with claims arising under the Constitution); and § 8128(b) invokes that immunity by restricting grants of judicial power that appear elsewhere in the United States Code.

The proposition that a law making an administrative decision final can coexist with some judicial role has its provenance in Johnson v. Robison, 415 U.S. 361, 366-74 , 94 S.Ct. 1160, 1165-69 , 39 L.Ed.2d 389 (1974), and Traynor v. Turnage, 485 U.S. 535, 541-45 , 108 S.Ct. 1372, 1378-80 , 99 L.Ed.2d 618 (1988). These cases dealt with 38 U.S.C. § 211 (a), which limited review of veterans’ benefits awards. Johnson and Traynor involved challenges, not to individual decisions on veterans’ claims, but to structural components of the system — in Johnson , to the constitutionality of the statute itself; in Tray-nor, to the statutory validity of a regulation. In each case the Court concluded that § 211(a) did not bar review because the statute concerned only decisions of the Administrator. Section 211(a) provided:

[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 ... 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.

Section 211(a) was repealed as part of the reorganization that created a Court of Veterans Appeals under Article I of the Constitution. The new court has “exclusive jurisdiction” to review decisions concerning veterans’ benefits. 38 U.S.C. (1991 Supp.) § 7252(a). See generally 38 U.S.C. (1991 Supp.) §§ 7251-92. A new 38 U.S.C. (1991 Supp.) § 511(a) limits the jurisdiction of the Article III courts in a way comparable to the former § 211(a).

A contest to the statute in Johnson was not a disagreement with a decision of the Administrator; and a challenge to a regulation did not raise “any question of law or fact under any law administered by the Veterans’ Administration providing benefits for veterans”. As the Court saw things, Johnson raised a claim “under” the Constitution rather than “under any law administered by the Veterans’ Administration providing benefits for veterans”, and Traynor raised a claim under the Rehabilitation Act. But the Court did not doubt that § 211(a) had a core of application: “A decision of law or fact ‘under’ a statute is made by the Administrator in the interpretation or application of a particular provision of the statute to a particular set of facts.” 415 U.S. at 367 , 94 S.Ct. at 1166 .

In Walters v. National Ass’n of Radiation Survivors, 473 U.S. 305 , 105 S.Ct. 3180 , 87 L.Ed.2d 220 (1985), the Court wrote that Johnson stands for the principle that “district courts have jurisdiction to entertain constitutional attacks on the operation of the claims system.” Id. at 311 n. 3, 105 S.Ct. at 3184 n. 3 (emphasis added). Traynor observed that § 211(a) dealt only with “decisions of the Administrator”, and that regulations governing the whole program are not such “decisions”. Johnson, Walters, and Traynor all distinguish systemic challenges from case-specific decisions — a conclusion that the Court thought backed up by the legislative history, which showed that Congress did not want the courts messing in the administration of the program or exposed to the high volume of claims entailed by case-specific inquiries. None of the three cases distinguishes constitutional from statutory theories; the claim in Traynor was based on a statute. The distinction is between systemic and individual challenges. The Court has analyzed similar statutory schemes in the same way. Compare United States v. Erika, Inc., 456 U.S. 201 , 205-06 & n. 5, 102 S.Ct. 1650 , 1652-53 & n. 5, 72 L.Ed.2d 12 (1982) *1445 (no review of individual benefits decisions under Part B of the Medicare program, even for constitutional objections), with Bowen v. Michigan Academy of Family Physicians, 476 U.S. 667 , 106 S.Ct. 2133 , 90 L.Ed.2d 623 (1986) (reviewing regulations implementing Part B of the Medicare program).

Marozsan v. United States, 852 F.2d 1469 (7th Cir.1988) (en banc), is cut from similar cloth. Marozsan had disclaimed any desire to have us review the award in his case (id. at 1471, quoting from his brief). We treated the suit as a challenge to the procedures the VA used in all cases, rather than as a claim of any error specific to his case. To implement this distinction, we held that Maroz-san’s suit must be dismissed to the extent he was trying indirectly to obtain review of the decision in his own case. Id. at 1471 n. 3 (“Section 211(a) clearly precludes our review of the Administrator’s decision to set benefits and disability levels” in particular cases, and 28 U.S.C. § 1346 (a)(2) bars review in the district courts of monetary claims exceeding $10,000). Today that limitation vanishes. The majority extends Marozsan to individual claims under a different statute, with broader language, and in the process casts it free of its precursors in the Supreme Court. My colleagues announce a general constitutional-argument “exception” to statutes that admit of no exceptions and proceed to review a decision in an individual benefits case. The majority does not interpret the language of § 8128(b); it bypasses the language of § 8128(b). Likewise § 1346(a)(2) escapes mention, although CzerMes’ demand for punitive damages makes it relevant.

“The presumption favoring judicial review of administrative action is just that — a presumption. This presumption, like all presumptions used in interpreting statutes, may be overcome by specific language”. Block v. Community Nutrition Institute, 467 U.S. 340, 349 , 104 S.Ct. 2450, 2455 , 81 L.Ed.2d 270 (1984). See also, e.g., Thunder Basin Coal Co. v. Reich, — U.S. -, 114 S.Ct. 771 , 127 L.Ed.2d 29 (1994); Dalton v. Specter, — U.S. -, 114 S.Ct. 1719 , 128 L.Ed.2d 497 (1994); United States v. Fausto, 484 U.S. 439 , 108 S.Ct. 668 , 98 L.Ed.2d 830 (1988). Section 8128(b) is as specific as they come. So the Supreme Court recognized in Lindahl and Southwest Marine. Cases such as Webster v. Doe, 486 U.S. 592 , 108 S.Ct. 2047 , 100 L.Ed.2d 632 (1988), which the majority emphasizes, articulate the presumption of judicial review but do not hint that a law as sweeping as § 8128(b) is inadequate to overcome it. The statute on which the agency relied in Webster permitted the Director of the CIA to fire employees “whenever he shall deem such termination necessary or advisable in the interests of the United States” ( 50 U.S.C. § 403 (c)); it was silent about the judicial role. Because the APA does not apply to any decision “committed to agency discretion by law”, 5 U.S.C. § 701 (a)(2), it did not authorize review of the question whether the discharge was “necessary or advisable”; but § 403(c) did not create any discretion concerning constitutional interpretation and therefore did not affect review otherwise authorized by the APA on that subject. Section 8128(b) has an entirely different structure; it forbids review of the decision itself rather than committing one or another issue to administrative discretion. If § 8128(b) is not enough to overcome the presumption, what is?

Section 8128(b) cannot be dodged on the theory that to review the procedures the Department of Labor used to reach a decision is not to review the “action of the Secretary or his designee in allowing or denying a payment.” Judges do not review issues in administrative cases; they review final administrative decisions. FTC v. Standard Oil Co. of California, 449 U.S. 232 , 101 S.Ct. 488 , 66 L.Ed.2d 416 (1980). Error at a step leading to a decision might vitiate the decision; but it is the decision rather than the process that is before the court. That is the point of Heckler v. Ringer, 466 U.S. 602, 613-16 , 104 S.Ct. 2013, 2020-22 , 80 L.Ed.2d 622 (1984), which rebuffed an effort to separate Medicare claims into, substantive and procedural components in order to avoid a review-preclusion statute. An objection to the process the agency used to make a decision is an objection to that decision, the Court held, and therefore is covered by the statute limiting review of that decision. If the Commissioner of Social Security rejects a claim for disability benefits, a suit contending that the *1446 Constitution forbids reliance on hearsay seeks review of the decision denying benefits. If the Supreme Court had agreed with that contention in Richardson v. Perales, 402 U.S. 389 , 91 S.Ct. 1420 , 28 L.Ed.2d 842 (1971), it would have ordered a remand for another hearing. My colleagues claim the right to do exactly that with a workers’ compensation decision, despite the vast difference between 42 U.S.C. § 405 (g) and 5 U.S.C. § 8128 (b). And if review of the procedures used to make a benefits decision is not review of the “action of the Secretary”, provided the remand calls for a new hearing rather than the payment of money, then a court is equally within its power to entertain arguments based on statutes (including the APA). Neither the statute nor the majority’s understanding of what it means to review an “action of the Secretary” distinguishes according to the source of the legal theory used to call the administrative process into question.

Practical as well as textual and historical roots support Johnson’s distinction between systemic and individual decisions. A single judicial opinion can settle the validity of a statute or regulation. Reviewing compensation decisions is a retail business, as courts acquainted with black lung and social security disability cases need not be reminded. When Congress attempts to curtail review of its own handiwork, judges are suspicious: What is the legislature up to, and must it be allowed to get away with what may be an inroad on the Constitution? When Congress directs high-volume business to a specialized tribunal such as the Employees’ Compensation Appeals Board or the Court of Veterans Appeals, it is conserving judicial time for other litigants; there is no ground of suspicion and no occasion for creative readings of the law.

A constitutional exception to a statute such as § 8128(b) could create the very high-volume litigation that Congress wanted to avoid. Consider the ubiquity of constitutional arguments in modem litigation: instead of saying that the adverse party did not comply with its discovery obligations under Fed.R.Civ.P. 36, a lawyer often insists that his client was denied due process by the lack of access to evidence. Instead of wrestling with the complexities of the hearsay rule, a lawyer is apt to insist that a decision admitting or excluding evidence violated the due process clause. Not only lawyers but also courts have developed ways to treat violations of statutes and rules as violations of the Constitution, see Thomas v. Peters, 48 F.3d 1000, 1008-11 (7th Cir.1995) (concurring opinion); Bates v. McCaughtry, 934 F.2d 99 (7th Cir.1991), despite the drumbeat of reminders that they differ. E.g., Gilmore v. Taylor, 508 U.S. 333 , -, 113 S.Ct. 2112, 2117-19 , 124 L.Ed.2d 306 (1993); Nordlinger v. Hahn, 505 U.S. 1 , 16 n. 8, 112 S.Ct. 2326 , 2335 n. 8, 120 L.Ed.2d 1 (1992); DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189, 202 , 109 S.Ct. 998, 1006 , 103 L.Ed.2d 249 (1989); Archie v. Racine, 847 F.2d 1211, 1215-18 (7th Cir.1988) (en banc). Rules of procedure bristle with details, which pro se litigants (and many lawyers) do not master; they turn to the majestic generalities of the Constitution, just as Czerkies has done. If this gives entrée, however, then § 8128(b) is undone. My colleagues recognize that Czerkies’ own arguments are standard administrative-law contentions in constitutional garb. Stripping away the disguise is scarcely different from resolving the suit on the merits; and if Congress possesses the power to forbid the latter exercise it has the power to forbid the same thing with constitutional persiflage.

Slippery-slope arguments do not aid in the interpretation of § 8128(b). One could say that, unless constitutional claims are reviewable, the Secretary of Labor may pursue a program of religious discrimination, or may deny workers’ compensation claims by Republicans while doling out funds to Democrats. A person possessed of an unreviewable power may abuse it. Does it follow that any given power is reviewable? This argument could be applied equally to judges, who not only can abuse their powers but also have done so on occasion. Yet there is no principle that the possibility of error always leads to an extra layer of review. A practice of pardoning only Democrats or appointing only Christians to federal office would violate the Constitution, but the remedy lies in the Senate rather than the courts. If the Secretary of Labor, operating under a law that gives *1447 him the final say, violates the Constitution, he should be impeached and removed from office. Jurisdiction — that is, the power to decide — is an initial hurdle in litigation; courts decide eases within their jurisdiction rather than asserting jurisdiction because they believe that a substantive claim ought to be considered. See United States v. Richardson, 418 U.S. 166 , 94 S.Ct. 2940 , 41 L.Ed.2d 678 (1974). Congress is entitled to believe that the probability of unconstitutional conduct in a class of cases is sufficiently low that a judicial search for it would come at too high a cost to other interests. Section 8128(b) expresses such a judgment, which we must respect.

In reaching a contrary conclusion, the majority relies on cases in other circuits that articulate a constitutional-contention exception to § 8128(b), principally Rodrigues v. Donovan, 769 F.2d 1344, 1347-48 (9th Cir.1985), and Paluca v. Secretary of Labor, 813 F.2d 524, 526-27 (1st Cir.1987). Neither case is sound. Rodrigues said that a constitutional challenge to the Secretary’s procedures is not “really” a challenge to the award of benefits and therefore falls outside § 8128(b). This is word play, and it is inconsistent with Ringer. Rodrigues gave Ringer a “ef.” citation; the correct signal would have been “contra.” Ringer had reversed the ninth circuit, which appears to be waging a rear-guard action. Patuca took a different line. It concluded that § 8128(b) is “like” § 211(a) and should be governed by Johnson . For reasons I have already given it does not follow that decisions in individual cases are reviewable. Three other decisions call for brief comment. Owens v. Brock, 860 F.2d 1363, 1367 (6th Cir.1988), which may be read as containing dicta taking Patuca’s view, was actually about a request for attorneys’ fees under the EAJA rather than an effort to obtain review of a workers’ compensation decision. Woodruff v. Department of Labor, 954 F.2d 634, 639 (11th Cir.1992), asserts jurisdiction to hear constitutional arguments without quoting § 8128(b) or giving a reason. And Brumley v. Department of Labor, 28 F.3d 746, 747 (8th Cir.1994), reports accurately that “it has been held that” § 8128(b) does not apply to constitutional (or statutoly!) arguments but does not address the question further, for the plaintiff had not made a constitutional argument.

If the best argument for entertaining CzerMes’ arguments is that § 8128(b) is like § 211(a), then the best argument against cases such as Rodrigues and Paluca is that those courts hold very different views about § 211(a) — for both the first and ninth circuits concluded that § 211(a) did not permit review of individual veterans’ benefits decisions, even when the veteran advanced a constitutional argument. See Milliken v. Gleason, 332 F.2d 122 (1st Cir.1964); Ross v. United States, 462 F.2d 618 (9th Cir.1972); Rosen v. Walters, 719 F.2d 1422, 1423 (9th Cir.1983). Other circuits likewise held that § 211(a) forbade review of individual veterans’ cases even when the veteran contended that the VA violated the Constitution in the course of resolving his claim. E.g., Higgins v. Kelley, 824 F.2d 690 (8th Cir.1987); Pappanikoloaou v. Administrator of Veterans Administration, 762 F.2d 8 (2d Cir.1985); Anderson v. Veterans Administration, 559 F.2d 935 (5th Cir.1977); de Rodulfa v. United States, 461 F.2d 1240, 1257-58 (D.C.Cir.1972). Since the repeal of § 211(a) and its replacement by § 511(a), the second circuit has reiterated its conclusion that claimants may not obtain review in the district courts of individual benefits decisions. Sugrue v. Derwinski, 26 F.3d 8, 11 (2d Cir.1994), cert. denied, — U.S. -, 115 S.Ct. 2245 , 132 L.Ed.2d 254 (1995). When opposing the petition for certiorari in Sugrue , the Solicitor General wrote (Br. in Opp. at 7-8):

Nor did the district court have jurisdiction over petitioner’s due process claims. Petitioner alleges that the failure to perform a neurological examination and the failure to refer to regulations when denying him full disability benefits constituted violations of due process because VA regulations were violated and the violation impeded an accurate evaluation of his claim. Further, petitioner argues that the Secretary effected a taking by denying his claim. Whatever the merits of those claims, they are in essence challenges to the application of “particular provision[s] * * * to a particular set of facts” and this Court has made clear that such challenges are precluded. *1448 Johnson v. Robison, 415 U.S. 361, 367 [ 94 S.Ct. 1160, 1165 , 39 L.Ed.2d 389 ] (1974); see Walters v. National Ass’n of Radiation Survivors, 473 U.S. 305 , 311 n. 3 [ 105 S.Ct. 3180 , 3184 n. 3, 87 L.Ed.2d 220 ] (1985) (jurisdiction available for “attacks on the operation of the claims system, [ ]”) (emphasis added).

This is a correct statement of the Supreme Court’s approach to this subject, which the Civil Division’s brief in this case abandons. The ability to dress ordinary legal arguments in constitutional garb — as Czeriries and Sug-rue alike have done — shows why the distinction between systematic and personal challenges is important. The need for judges to respect limits on their own power shows why the distinction is vital. I wish my colleagues saw things the same way.