Amicus Curiae Brief — Lindahl v. Office of Personnel Management

83-5904 |

f NDER L. ITEVAS.

No. ae eS ae CLERK

IN THE

Supreme Court of the United States

OCTOBER TERM, 1983

WAYNE LINDAHL,

Petitioner,

V.

OFFICE OF PERSONNEL MANAGEMENT,

Respondent.

On Writ of Certiorari to the United States Court of Appeals

for the Federal Circuit

BRIEF AMICUS CURIAE FOR THE

AMERICAN FEDERATION OF

GOVERNMENT EMPLOYEES, AFL-CIO

STUART A. KIRSCH

STAFF COUNSEL

AMERICAN FEDERATION OF

GOVERNMENT EMPLOYEES

AFL-CIO (FIFTH DISTRICT)

510 Plaza Drive, Suite 2510

College Park, Georgia 30349

MARK D. ROTH

Counsel of Record

GENERAL COUNSEL

AMERICAN FEDERATION OF

GOVERNMENT EMPLOYEES

AFL-CIO

1325 Massachusetts Ave.,

Washington, D.C. 20005

(202) 737-8700

Attorneys for Amicus Curiae

PANDICK PRESS, ATLANTA, GA—3400 PEACHTREE AD., N.E , ATLANTA, GA 30326— (404) 237-0688

BEST AVAILABLE COPY

(i)

QUESTION PRESENTED

Whether the United States Court of Appeals has

jurisdiction pursuant to 5 U.S.C. § 8347, 5 U.S.C. § 7703

and judicial precedent to review decisions of the Office of

Personnel Management and the Merit Systems Protection

Board regarding disability retirement applications other

than those initiated by an employing agenty on the basis

of an individual’s mental condition.

—_ Apes wn “

? yt Pas Lb hh 7

rs

‘

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Argument

Il.

ITT.

IV.

Conclusion

(iii)

TABLE OF CONTENTS

There is No Clear and Convincin

Evidence that Congress Intended to

Preclude All Judicial Review of Dis-

ability Retirement Matters...

The Federal Circuit’s Rejection of the

“Scroggins” Line of Cases is Based

Upon Artificial Distinctions Regard-

ing Voluntary or Involuntary Nature

of the Disability Retirement Appli-

en Sg A Sct ore ea

The Legislative History Surrounding

the 1980 Amendment to the Disability

Retirement Statute Evinces a Con-

gressional Intent to Maintain the

Prevailing Judicial Review in Exist-

ence for Over Twenty Years...

The Court of Appeals for the Federal

Circuit has Jurisdiction Pursuant to 5

U.S.C. § 1295 to Review Decisions of

MSPB Relating to Disability Retire-

AE SEES GA a

11

(iv)

TABLE OF AUTHORITIES

Cases: Page

Abbott Laboratories v. Gardner, 387 U.S. 136

eS REC RUG Pid SONS Si aa 6

Albermarle Paper Co. v. Moody, 422 U.S. 405,

Re i 15

Allen v. United States, 571 F.2d 14 (Ct. Cl.

eisitihcakieals ee 4

American Postal Workers Union v. United

States Postal Service, 707 F.2d 548 (D.C.

CE silt ee 7

American School of Magnetic Hearing v.

McAnnulty, 187 U.S. 94(1902) ~

Atkins v. United States, 556 F.2d 1028, 1039

Es ee on 15

Barlow v. Collins, 397 U.S. 166(1970) ........... 6

Dunlop v. Bachowski, 421 U:S. 560(1975) 6

Fancher v. United States, 588 F.2d 803 (Ct.

WUE blade Ase 9,11

Gaines v. United States, 158 Ct. Cl. 497, cert.

denied, 371 U.S. 936(1962) ss” 4

Harmon v. Brucker, 355 U.S. 579(1958) 8

Henderson v. Office of Personnel Management,

724 F.2d 119 (Fed. Cir.1983) 10

Horne v. Merit System Protection Board, 684

F.2d 155 (D.C. Cir. 1982) 0!” 18

Johnson v. Robison, 415 U.S. 361( aR 6

Kizas v. Webster, 707 F.2d 524 (D.C. Cir.

___ RARER SPE RCSD ora maa 7

Lancelotti v. Office of Personnel Management,

704 F.2d 91 (8rd Cir.1983) ...tit™” 12

Leedom v. Kyne, 358 U.S. 184( a 8

Lindahl v. Office of Personnel Management,

718 F.2d 391 (Fed. Cir.1988) .. passim

Lorillard v. Pons, 434 U.S. 575, 580-581... 15

(v)

TABLE OF AUTHORITIES—Continued

Cases—Continued Page

McCard v. Merit Systems Protection Board,

702 F.2d 978 (11th Cir. 1983) 0. 6,11,12

McFarland v. United States, 517 F.2d 938

(Ct. Cl. 1975); cert. denied, 423 USS.

hi PRETEEN 9,13

McGlasson v. United States, 397 F.2d 303 (Ct.

ee Ah cena carne AM 5 Se AS 9,11,13

Mead v. Merit System Protection Board, 687

F.2d 285 (9th Cir. 1982) 20000 18

Merrill, Lynch, Pierce, Fenner and Smith v.

Curran, 456 U.S. 358, 381-2... (1982) 15

Meyer v. Department of Health and Human

Services, 666 F.2d 540 (Ct. Cl. 1981) ............ 18

Morton v. Mancuri, 417 U.S. 535, 551(1974) . 19

Parodi v. Office of Personnel Management, 690

F.2d 731 (9th Cir. 1982) 00. 6,1 “—

Pitzak v. Office of Personnel Management, 710

F.2d 1476 (10th Cir. 1983) 0. —

Polos v. United States, 621 F.2d 385 (Ct. Cl.

ESRD <7 ae as ee ll

Power Reactor Development Company v. In-

ternational Union of Elec., Radio, and Ma-

chine Workers, 367 U.S. 396, 408(1961) ..... 14

Raicovich v. U.S. Postal Service, 675 F.2d 417

<_ 18

Red Lion Broadcasting Company v. FCC, 395

iF § = a Rn Ie 14

Rosano v. Department of the Navy, 699 F.2d

1315, 1317 (Fed. Cir. 1983) 17

Schlesinger v. Councilmen, 420 U.S. 738, 749

(1975) ....... a a RNS i ph tla ee s

Scroggins v. United States, 397 F.2d 295 (Ct.

Cl.), cert. denied, 393 U.S. 952(1968) ......... passim

(vi)

TABLE OF AUTHORITIES—Continued

Cases—Continued

Smith v. Dulles, 236 F.2d 739 (D.C. Cir.

SRS DRE Seating nt oaar ne

South Corporation v. United States, 690 F.2d

a sactipeaninenes

Stark V. Wickard, 321 U.S. 288(1944) .............

Stevens v. TVA, 687 F.2d 158 (6th Cir. 1982) .

Turner v. Office of Personnel Management,

707 F.2d 1499 (D.C. Cor. 1983) 0.0.0.0...

Udall v. Tallman, 380 U.S. 1 (1965) .......00.00.....

United States v. Rutherford, 442 U.S. 544

eller sar St ANNE Ae Sa TONER

Statutes:

co soseusupemenntaiianneesiins

i aS IEE a ea IRIE

EERE SO name «Lem

SEG Re aN es ner ee amr

I al is

aia cneelainliil

I eas naliadnoniionh

PE PT Se RRO Te mee

FE a a eon aera OP

Miscellaneous:

H.R. Rep. No. 96-1080, 96th Cong., 2d Sess.

a a ca Aasaemilbal

S. Rep. No. 275, 97th Cong. 2d Sess. 21

reprinted in 1982 U.S. Code Cong. and Ad.

EES ac ER I Ue oe

S. Rep. No. 95-969, 95th Cong. 2d Sess.

(1978) reprinted in 1978 U.S. Code Cong.

OO I ais ssccsennnsiscnibedanailiabdivi

S. Rep. No. 96-1004, 96th Cong., 2d Sess.

(1980) reprinted in 1980 U.S. Code Cong.

De ose earnanaintven

Page

18

6,7,11,

12,13,14

4,16

4,5,16

5,12,13,

14,15

18

17

5,13,14

No. 83-8954

IN THE

Supreme Court of the United States

OCTOBER TERM, 1983

WAYNE LINDAHL,

Petitioner,

v.

OFFICE OF PERSONNEL MANAGEMENT,

Respondent.

On Writ of Certiorari to the United States Court of Appeals

for the Federal Circuit

BRIEF AMICUS CURIAE FOR THE

AMERICAN FEDERATION OF

GOVERNMENT EMPLOYEES, AFL-CIO

PRELIMINARY STATEMENT

Pursuant to Supreme Court Rule 36, written consent of

the parties having been obtained and filed along with this

brief, the American Federation of Government Employ-

ees, AFL-CIO (AFGE) files this brief as amicus curiae in

support of Petitioner Wayne Lindahl in this action.

INTEREST OF THE AMICUS CURIAE

The American Federation of Government Employees

(AFGE) is a labor organization affiliated with the AFL-

CIO. AFGE represents approximately 700,000 civilian

employees of the federal government in the United States

and overseas. AFGE is the largest labor organization of

non-postal federal employees including the so-called blue

a 2

collar, white collar and professional groups of employees

situated in nearly every major department and agency of

the Federal government. In its capacity as exclusive

bargaining representative, AFGE negotiates personnel

Policies, presents grievances, initiates court actions, and

carries on legislative activity to enhance the welfare of

the employees it represents. AFGE has previously in-

itiated or participated in judicial action involving retire-

ment issues and entitlements of its members.

The United States Court of Appeals for the Federal]

Circuit in an en banc decision in Lindahl v. Office of

Personnel Management, 718 F.2d 391 (Fed. Cir. 1983) held

that the disability retirement Statute precluded judicial

review of a Merit Systems Protection Board (MSPB)

decision ‘affirming the denial by the Office of Personne!

Management ( OPM) of a former federal employee’s ap-

plication for disability retirement.

The Federal Circuit’s decision has an impact on hun-

dreds of its members, who will have no access to the

Federal Circuit for review of certain disability retirement

decisions of OPM and the MSPB in cases pending before

these administrative agencies or where future appli-

cations will be submitted. Because of the Federal Circuit’s

restrictive reading of the disability retirement statute

there are serious implications for withholding of their

jurisdiction in other cases arising under similar statutes.

AFGE is committed to the protection of constitutional]

and statutory rights of federal employees and to challeng-

ing actions which infringe upon these rights. In this

regard AFGE has a direct and compelling interest in

assuring that the Federal Circuit assert some form of

review authority over OPM and MSPB decisions, where

such decisions implicate important disability retirement

entitlements.

3

INTRODUCTION AND SUMMARY OF ARGUMENT

Petitioner Wayne Lindahl is a former federal employee

who was removed from federal service because his severe

bronchitis rendered him unable to perform the duties of

his position. Pursuant to the terms of the Civil Service

Retirement Act, 5 U.S.C. §§ 8331-8348, Petitioner imme-

diately thereafter applied for a disability annuity.

In an application to OPM, the Petitioner, who had

contributed to the retirement fund for more than five

years, alleged that he had a disease or injury which

precluded him from rendering useful and efficient service

in the grade or class of position he last occupied. 5 U.S.C.

§ 8331(6), 5 U.S.C. § 88337. OPM, and the MSPB on review,

denied his application for disability retirement. The

United States Court of Appeals for the Federal Circuit, in

an en banc decision, dismissed his petition on jurisdictional

grounds, a plurality holding that 5 U.S.C. § 8347(c)

precludes judicial review of voluntary disability retire-

ment decisions.

5 U.S.C. §§ 8347(c) and (d) provide as follows:

{<) The Office [OPM] shall determine questions of

isability and dependency arising under this

subchapter. Except to the extent provided under

subsection (d) of this section, the decisions of the

ce concerning these matters are final and con-

clusive and are not subject to review. The Office may

direct at any time such medical or other examinations

as it considers necessary to determine the facts con-

cerning disability or dependency of an individual

receiving or applying for annuity under this

subchapter. The ce may suspend or deny annuity

for failure to submit to examination.

(d)(1) Subject to paragraph (2) of this subsection, an

administrative action or order aS rights or

interests of an individual or of the United States

under this subchapter may be appealed to the Merit

Systems Protection Board under procedures pre-

scribed by the Board.

(2) In the case of any individual found by the Office

1

to be disabled in whole or in part on the basis of the

individual’s mental! condition, and that finding was

made pursuant to an application by an agency for

purposes of disability retirement under section

8337(a) of this title, the procedures under section

7701 of this title shall apply and the decision of the

Board shall be subject to judicial review under section

7703 of this title.

By its holding the Federal Circuit has overruled over

twenty years of its own precedents and acted contrary to

the majority of the circuits that have addressed this issue.

In addition, the Federal Circuit has chosen to ignore the

legislative history specifically recognizing an existing lim-

ited form of judicial review, and merely expanding the

judicial review in certain types of disability retirement

cases initiated by the Agency. Further, the Federal

Circuit’s decision operates contrary to this Court’s

pronouncement that absent clear and convincing evidence

of Congressional intent to preclude the important right to

judicial review, review must be granted.

ARGUMENT

I. There is No Clear and Convincing Evidence that Con-

gress Intended to Preclude All Judicial Review of

Disability Retirement Matters

The Federal Circuit asserts that the so-called “finality

clause” in 5 U.S.C. § 8347(c) provides “unequivocally and

unambiguously that administrative decisions on questions

of disability are final and conclusive and are not subject to

review.” The Federal Circuit concludes “[i]}t is difficult to

conceive of a more clear-cut statement of congressional

intent to preclude review ...” 718 F.2d at 393.

The history of the C.sability retirement statutory

scheme can be traced briefly as follows. The finality clause

language relied on herein to preclude the Federal Circuit

jurisdiction first appeared in relation to survivorship ben-

efits in 1948 in 5 U.S.C. § 724 and was extended to include

5

disability cases in 1956, as codified at 5 U.S.C. § 2266. In

1978, Congress passed an amendment to the retirement

statute, 5 U.S.C. § 8347, Pub L. No. 95-454 (Civil Service

Retirement Act). That amendment again left intact the

finality language with respect to OPM’s decisions, (re-

placing the Civil Service Commission), although providing

for access to an administrative review by the newly

created MSPB. In 1980, Congress, concerned about poten-

tial for abuse and stigma occasioned by agency initiated

disability retirement applications based on an individual’s

alleged mental condition, made additional amendments to

the law. Senate Report No. 96-1004, 96th Cong. 2d Sess.

(1980). House Report No. 96-1080, 96th Cong., 2d Sess.

(1980). Tnese amendments provided modifying language

to the finality provision in 5 U.S.C. § 8347(c) by referenc-

ing subsection (d) and specified MSPB adherence to

procedures under 5 U.S.C. § 7701 and the full scope of

judicial review provided under 5 U.S.C. Section 7703 for

review of MSPB decisions involving agency initiated dis-

ability retirement applications for mental conditions.

After journeying through a similar development of the

disability retirement statute, the Federal Circuit con-

cluded that “[u]ntil 1980, Congress had at no time specif-

ically granted jurisdiction to any court to review any

question, by either OPM or MSPB, on questions of dis-

ability and dependency.” Although earlier acknowledging

a paucity of legislative history concerning the origins of

the finality provisions, the Federal Circuit rejects twenty

years of precedence of its predecessor court, the presump-

tion favoring judicial review of agency actions, and the

legislative history accompanying the 1980 amendments by

reliance on what it calls the “plain language of the

statute.” Although the finality language now contained in

Section 8347(c) has been in existence since 1948, and has

been consistently interpreted to provide for narrow judi-

cial review, the Federal Circuit declares a clear statutory

preclusion for review. Yet, the finality language of

6

Section 8347(c) has never been regarded as a complete bar

to judicial review of decisions by OPM (or its predecessor

Civil Service Commission) or the MSPB.

The Federal Circuit in its plurality opinion rejects the

Supreme Court’s declared presumption of judicial review

over agency actions, finding 5 U.S.C. § 8347(c) to be an

express preclusion of judicial review. 718 F.2d at 397.

While the scope of judicial review of administrative

action may be specifically limited by statute, there is a

presumption that an agency action is reviewable. Judicial

review will be precluded only if Congress’ intent to pre-

clude such review is clear and convincing. Abbott Labora-

tories v. Gardner, 387 U.S. 136(1967); Barlow v. Collins,

397 U.S. 166(1970); Dunlop v. Bachowski, 421 US.

560(1975); Johnson v. Robison, 415 U.S. 361(1974). This

presumption of reviewability is especially strong where

definitive personal rights are created by federal statute,

such as retirement benefits, similar in kind to those

customarily treated in courts of law. Stark v. Wickard, 321

U.S. (288(1944).

The language of 5 U.S.C. § 8347(c) does not provide

clear and convincing evidence of a Congressional! intent to

bar all judicial review of disability determinations.

McCard v. MSPB, 702 F.2d 978, 981 (11th Cir. 1983). The

statute only evinces a congressional intent to bar judicial

review of factual questions concerning disability and

dependency. Parodi v. MSPB, 690 F.2d 731, 735 (9th Cir.

1982); Turner v. OPM, 707 F.2d 1499, 1502(D.C. Cir. 1983).

It is possible to give effect to Congress’ obvious intent to

foreclose judicial review of the sufficiency of the medical

evidence, yet preserve the generally recognized duty of

the courts to require a governmental agency to follow the

procedural and substantive framework established in the

act the agency administers and to prevent the agency

from violating constitutional rights. Pitzak v. OPM, 710

F.2d 1476, 1479 (10th Cir. 1983); Dunlop v. Bachowski,

supra, 421 U.S. at 567.

7

In further support of this position that the finality

clause of section 8347(c) is compatible with judicial review

of MSPB disability decisions that are confined to proce-

dural infirmities and irrational decision making is the

juxtaposition of the finality clause with a statement

immediately thereafter concerning OPM’s determination

of the facts. Turner v. OPM, supra, 707 F.2d at 1502. This

clearly demonstrates that the finality clause in non-

agency initiated disability retirement cases for mental

conditions operates with respect to a review of the factual

determinations only. While the Federal Circuit herein

rejects this suggestion, without explanation, 718 F.2d at

397, such a view renders the finality clause language much

more plausible than its interpretation.

The Federal Circuit plurality goes so far as to suggest

that even where the OPM and MSPB act so irresponsibly

and arbitrarily as to employ unacceptable interpretations

of law, statutes or regulations, and totally inadequate

procedures for the purpose of denying annuities to those

who voluntarily retire, it could not exercise jurisdiction.

718 F.2d at 397. The Federal Circuit in this regard states

that the right to retirement or a retirement annunity has

no basis in the Constitution. 718 F. 2d at 392. The Court

States that “one whose application for an annuity is

denied after voluntary disability retirement is not by that

denial alone deprived of a constitutional right. There

being no liberty or fundamental pre-existing property

interest at risk, the simplest procedures adopted by the

agency will avoid a claim of denial of procedural due

process.” 718 F.2d at 397.

The Federal Circuit erroneously concluded that an em-

ployee who has met the minimum service and disability

requirements does not have a legitimate property interest

in entitlement to an annuity. Federal employees have

protected property interests in these retirement an-

nuities. Kizas vy. Webster, 707 F.2d 524 (D.C. Cir. 1983);

American Postal Workers Union v. United States Postal

Service, 707 F.2d 548 (D.C. Cir. 1983). After an employee

8

serves five years of continuous employment and is found to

be totally disabled, his/her entitlement to an annuity is a

vested property right. The Federal Circuit’s failure to

acknowledge this property interest and abrogation of a

means of enforcing it where there are serious procedural

or legal deficiencies implicate constitutional and statutory

rights. Action of the executive branch in violation of

constitutional or statutory rights of a Petitioner is subject

to judicial review. Leedom v. Kyne, 358 U.S. 184(1958);

American School of Magnetic Hearing v. McAnnulty, 187

U.S. 94(1902); Harmon v. Brucker, 355 U.S. 579(1958).

The concurring opinion of Judge Nichols recognizes the

potential danger of extending the preclusion of judicial

review “to instances of unconstitutional and void

determinations where Congress could not reasonably, in

the light of history, have expected the preclusion to be

effective.” 718 F.2d at 405. Congress cannot deprive the

federal courts of jurisdiction to review agency action that

is in contravention of the Constitution, a federal statute,

or regulation, even where there is a finality clause in the

statute. Schlesinger v. Councilmen, 420 U.S. 738,

749(1975); Pitzak v. OPM, supra.

As will be developed further herein, Congress’ continued

acknowledgment of a line of cases permitting a narrow

scope of review in the routine disability retirement cases,

and expansion of that review to agency initiated dis-

ability retirements for mental condition, evinces a clear

intent not to preclude all judicial review.

Il. The Federal Circuit’s Rejection of the “Scroggins”

Line of Cases is Based Upon Artificial Distinctions

Regarding Voluntary or Involuntary Nature of the

Disability Retirement Application

In rendering its decision in this matter, the Federal

Circuit presumes an unchartered body of judicial prece-

dent in application of the finality clause in the statute.

Unremarkable to the Federal Circuit is that the finality

language in the disability retirement statute is in essence

9

identical to the language of the statute as it existed when

its predecessor court established a definite, albeit narrow

scope of judicial review. Gaines v. United States, 158 Ct. Cl.

497, cert. denied, 371 U.S. 936(1962); Scroggins v. United

States, 397 F.2d 295 (Ct. Cl.), cert. denied, 393 US.

952(1968); McGlasson v. United States, 397 F.2d 303 (Ct.

Cl. 1968); McFarland v. United States, 517 F.2d 938 (Ct. Cl.

1975); cert. denied, 423 U.S. 1049(1976): Allen v. United

States, 571 F.2d 14 (Ct. Cl. 1978); Fancher v. United States,

588 F.2d 803 (Ct. Cl. 1978). In what has been designated

as the “Scroggins formula,” although having its genesis in

Smith v. Dulles, 236 F.2d 739 (D.C. Cir. 1956), the Court of

Claims determined that it could set aside the Civil Service

Commission’s (OPM’s predecessor) decision where “there

has been a substantial departure from important proce-

dural rights, a misconstruction of the governing legisla-

tion, or some like error going to the heart of the adminis-

trative determination.”

The Federal Circuit discounts each and every one of

these consistent Court of Claims decisions, by its assertion

that “we face here no settled case law,” in its finding that

all of these cases dealt with forced retirements for mental

conditions or physical disability. The distinction for re-

view based upon the forced or voluntary nature of the

disability retirement is not recognized in the body of

judicial case law or legislative history. Further, the

Federal Circuit’s interpretation ignores the reality of this

type of separation, and is contrary to their subsequent

pronouncement on the identical treatment of these cases.

If truly finding that the 1980 Amendment did not alter

the previous finality provision, 718 F.2d at 400, the Federal

Circuit offers no rational basis for overturning the pre-

cedence of the Court of Claims.

The holdings of the United States Court of Claims shall

be binding as precedent upon the Federal Circuit, South

Corporation v. United States, 690 F.2d 1368 (Fed. Cir.

1982). By creating a distinction not found in the provi-

sion of the statute relied upon by the court herein, 5 U.S.C.

10

§ 8347(c) (Nichols, concurring opinion, 718 F.2d at 400),

nor the legislative history, the Court believes it sidesteps

its repudication of the Court of Claims precedent. Yet as

Judge Nichols (concurring) opines, the factual basis of the

statement that Mr. Lindahl is a voluntary retiree is

uncertain. After an employee such as Mr. Lindahl! is

terminated from employment for disability reasons, it can

hardly be posited that his disability retirement appli-

cation is voluntary. Under these circumstances, Judge

Nichols prefers to assume that Mr. Lindahl’s retirement

was involuntary. 718 F.2d at 400.

More significantly, this Court in a panel comprised of

the Chief Judge who issued the majority opinion in the

instant case, subsequently determined in Henderson v.

Office of Personnel Management, 724 F.2d 119(Fed. Cir.

1983) that there is no legal reason for application of a

different rule from Lindahl, precluding judicial review in

involuntary physical disability retirement cases. The

Federal! Circuit stated that:

ijn LindaAl, it is correct that the subject claim had

n made voluntarily, but the fact was not pivotal,

as it could not be. The critical language of 5 U.S.C.

§ 8347(c) makes no distinction between voluntary

and involuntary claims based on physical disability.

Thus the principle in Lindahl remains applicable.

This court does not have jurisdiction to review deci-

sions of the MSPB on physical disability claims which

are involuntary.

724 F.2d at 120.

Although using this distinction of voluntary vs in-

voluntary retirement in Lindahl to reject an entire body

of Court of Claims precedent, the Federal Circuit in

Henderson completely emasculates that distinction and

makes no reference to the Scroggins line of cases.

The other federal circuits relying on the Scroggins line

of reasoning for employee initiated disability applications

have made no such distinction or reference to dissimilar

treatment based upon voluntary vs involuntary consid-

1]

erations. Parodi v. MSPB, supra (9th Cir. 1982); Pitzak v.

OPM, supra (10th Cir. 1983); Turner v. OPM, supra (D.C.

Cir. 1983); McCard v. MSPB, supra (11th Cir. 1983).

The Scroggins line of cases which has also been uni-

formly applied by the Court of Claims since the inception

of the finality language in the disability retirement stat-

ute can not be summarily ignored under this thin and

untenable distinction.

III. The Legislative History Surrounding the 1980 Amend-

ment to the Disubility Retirement Statute Evinces a

Congressional Intent to Maintain the Prevailing Judi-

cial Review in Existence for Over Twenty Years

The Federal Circuit states that it finds no support for

the view that the 1980 amendment to the disability

retirement statute merely expanded the “breadth” of

review in cases beyond the “limited” review said to be

available for such cases in Scroggins. Again in making

this finding the Federal Circuit limits Scroggins impact to

that of involuntarily disability retirement cases for men-

tal conditions, ignoring its expansion by the Court of

Claims and other circuits to involuntarily retirement for

physical disability and “voluntary” disability retirement

claims. Polos v. United States, 621 F.2d 385 (Ct. Cl. 1980);

Parodi, supra; Turner, supra. The Federal Circuit plural-

ity states that by leaving the finality language in 5 U.S.C.

§ 8347(c), Congress intended what it always provided in

its original enactments of no judicial review. 718 F.2d at

399, 400.

It is submitted that the dissenting opinion of the four

circuit judges, written by Circuit Judge Davis, is the more

reasoned approach. 718 F.2d at 405, 406. According to this

analysis, the 1980 amendment of 5 U.S.C. 8347 did not

lessen or abolish the narrow judicial review that has been

accorded to disability retirement matters at least since

1956. Scroggins, supra, McGlasson, supra, Fancher, supra,

et. al. The legislative objective, the dissent states, in

contrast to the majority, was to expand judicial review in

12

the special area of involuntary mental disability retire-

ment. This view was shared wholeheartedly by five other

circuits considering this matter, Parodi v. MSPB (9th

Cir.) supra; McCard v. United States (11th Cir.) supra;

Turner v. OPM (D.C. Cir) supra; Pitzak v. OPM (10th

Cir.), supra; and Lancelotti v. OPM, 704 F.2d 91 (3rd Cir.

1983).

The dissent herein summarizes the core of these recent

decisions:

(a) [T]he standard of narrow judicial review [Scrog-

gins formula] had been utilized for many years when

Congress considered the 1980 amendment; (b) Con-

gress was made quite aware of that standard during

its consideration of the 1980 amendment; (c) the

whole focus of that Congressional consideration was

the over- narrowness of that standard for involuntary

mental! disability cases; (d) no one seems to have

suggested that, for other types of disability cases, the

existing standard should be lessened or all review

abolished (indeed the then Director of OPM expressly

told Congress that the prior standard would continue

for non-member disability cases, see Turner v. OPM,

supra, 707 F.2d at 1503-1504); (e) there is nothing in

the Committee reports that the prior judicial stan-

dard was no longer to be followed in the non- mental

area; and (f) no change was made in the wording of

the “finality” clause (except for the special provision

for mental disability and express authorization for

review by the MSPB).

718 F.2d at 406

The decisions in McCard, Turner and Parodi further

highlight the legislative history and demonstrate the

Federal Circuit plurality’s fatal misreading and general

disregard of that history. The purpose of the 1980 amend-

ment was to prevent involuntary disability retirement

proceedings from being misused to force unpopular em-

ployees out of active service for reasons of mental in-

competency. H. R. Rep. No. 1080; 96th Cong. 2d Sess. 2-3

(1980). To check this possibility of misuse, Congress

expanded the scope of judicial review beyond the Scroggins

level, for this one class of disability determinations, to

13

include the traditional “substantial evidence” and broad

scope of review under section 7703. S. Rep. No. 1004, 96th

Cong. 2d Sess 2, reprinted in 1980 U.S. Code Cong. and Ad

News 5986, 5987. “Given that the sole purpose of the

amendment was to expand judicial protection of employ-

ees through review of factual findings in a certain subset

of cases, it hardly follows that Congress negatively im-

plied its intent to strip employees of Scroggins—type

review in other cases.” Turner v. OPM, supra, 707 F.2d at

1508. To the contrary, the House Report to the 1980

amendment in discussing the problem Congress intended

the amendment to remedy, pointed to three cases that did

not allow “judicial review,” to show that the amendment

was necessary. H. Rep. No. 1080, 96th Cong. 2d Sess 4

(1980). As the court in Parodi, supra, 690 F.2d at 736,

points out, in all three of these cases, Scroggins, McGlasson,

and McFarland, the Court of Claims held that under

section 8347(c) courts should not review the factual find-

ings that underlie an agency’s disability and dependency

determinations, but that limited judicial review, i.e. re-

view under the Scroggins rule, is appropriate. Thus the

Parodi court properly concludes, the bar on judicial review

referred to by the report precludes only judicial review of

factual findings. 690 F.2d at 736.

This view, moreover, was confirmed by the Director of

OPM himself, who wrote to Congress at the time of the

amendment’s consideration, and whose statements were

submitted in the record. The statement of the OPM

Director provided:

We believe that it is reasonable and proper to restrict

expanded judicial review to involuntary disability

retirements. An employee who voluntarily applies for

disability retirement seeks to establish title to a

benefit granted by law; the Office of Personnel Man-

agement is the administrative agency charged under

the law with the managerial function of adjudicating

disability retirement claims. It is appropriate there-

fore, that OPM decisions on voluntary applications be

14

conclusive, reviewable only to determine whether

there has been a substantial procedural error, a mis-

construction of governing legislation, or some like

error going to the heart of the administrative

determination.

H. R. Rep. No. 1080, supra at 7-9.

The latter standard being a recitation of the Scroggins

language, it becomes unfathomable how the Federal Cir-

cuit concludes that “the legislative history contains no

statement of the [Scroggins] formula,” 718 F.2d at 399,

and that Congress in essense was ignorant of its appli-

cation. See also virtually identical letter of Director OPM

to Senator Ribicoff (Sept. 25, 1980), preceded by a state-

ment of the Committee that OPM endorses its position. S.

Rep. No. 1004, 96th Cong. 2d Sess. (1980). Although

OPM’s position now apparently has changed, far more

deference is due the agency’s contemporaneous ex-

planation of the statute’s effect than is due its present

post-hoc litigating position. Turner v. OPM, supra, 707

F.2d at 1504; Udall v. Tallman, 380 U.S. 1(1965). Indeed,

MSPB, the final administrative arbiter of this matter, by

its advice to petitioner at the bottom of its Opinion and

Order in this case, and its position before the Federal

Circuit, flatly contradicts OPM. Turner, supra, 707 F.2d at

1504. An administrative agency’s construction of the

statutes which it is charged with administering is due

substantial deference. Udall v. Tallman, supra, 380 U.S. at

16; United States v. Rutherford, 442 U.S. 544, 553. The

Federal Circuit without justification failed to accord

appropriate deference to the position of the MSPB. Red

Lion Broadcasting Company v. FCC, 395 US. 367,

381(1969); Power Reactor Development Company v. Inter-

national Union of Elec., Radio, and Machine Workers, 367

U.S. 396, 408(1961).

The legislative history in the House of Representatives

in setting forth OPM’s position also specifically states that

it is in accord with the committee’s stance that it is

reasonable and proper to restrict “expanded” judicial

15

review to involuntary disability retirements. H.R. Rep.

No. 96-1080, 96th Cong., 2d Sess. P. 3( 1980).

The dissent, written by Circuit Judge Davis, cogently

states that in the face of this legislative history:

it is hard for me te@think that, in explicitly expanding

review for mental cases, Congress silently withdrew

for non-mental cases the limited judicial review that

had been allowed. To paraphrase what the Supreme

Court said in Merrill, Lynch, Pierce, Fenner and Smith

v. Curran, 456 U.S. 353, 381-2... (1982) (a recent

Supreme Court decision holding that the reen-

actment and enlargement of another statute had

incorporated a prior judicial gloss) “it is abundantly

clear” that the “Scroggins standard was a part of the

‘contemporary legal context’ in which Congress legis-

lated in 1980. “In that context the fact that a

comprehensive reexamination and __ significant

amendment” of the disability retirement legislation

“left intact the statutory provisions under which the

federal courts” had developed and used the Scroggins

standard “is of itself evidence that Congress

affirmatively intended to preserve that remedy.”

When the “finality” language was retained and em-

bodied in the 1980 amendment, the language carried

with it the existing judicial] interpretation.

718 F.2d at 406.

Indeed, Congress is presumed to be aware of an admin-

istrative or judicial interpretation of a statute and to

adopt that interpretation of a statute when it reenacts a

statute without change.” Lorillard v. Pons, 434 U.S. 575,

580-581, Albermarle Paper Co. v. Moody, 422 U.S. 405,

419(1975). Further, the recodification or revision of a

Congressional act “indicates approval of court inter-

pretations of the statute made prior to reenactment.”

Atkins v. United States, 556 F.2d 1028, 1039 (Ct. Cl. 1977);

cert. denied, 434 U.S. 1009 (1978). These presumptions or

indications notwithstanding, the Congress in its 1980

amendments specifically recognized that the judicial re-

view for agency initiated mental disability cases was

16

merely expanding an existing Scroggins type of judicial

review. Congress was clearly cognizant of the judicial

interpretations of 5 U.S.C. § 8347(c) and it intended to

continue the existing remedy of Scroggins type of review,

based on its leaving the other portions of the statute

intact.

IV. The Court of Appeals for the Federal Circuit has

jurisdiction pursuant to 5 U.S.C. § 7703 and 28 U.S.C.

§ 1295 to review decisions of MSPB relating to dis-

ability retirement.

It is clear from the language and history of Chapter 77

of the Civil Service Reform Act that it was intended to

govern all matters within the appellate jurisdiction of the

MSPB. MSPB, whose interpretation of the statute it

administers is entitled to great deference, Udall-v. Tall-

man, supra took that identical position before the Federal

Circuit. Similarly, Judge Smith, writing for four dis-

senting Federal Circuit judges took a similar position. 718

F.2d at 407, 408.

Section 7701(a) provides:

An employee, or applicant for employment, may sub-

mit an appeal to the Merit Systems Protection Board

from any action which is appealable to the Board

under any law, rule or regulation. (Emphasis added)

Similarly, 5 U.S.C. § 7703(a) provides:

Any employee or applicant for employment adversely

affected or aggrieved by a final order or decision of

the Merit Systems Protection Board may obtain judi-

cial review of the order or decision. (Emphasis

added )

OPM’s denial of Petitioner’s application for disability

retirement from his position as a federal employee was an

action appealable to the MSPB pursuant to 5 U.S.C.

§ 8347(d)(2). Petitioner exercised his right to appeal

OPM’s decision to the MSPB and was adversely affected by

the MSPB’s decision in this case. Petitioner is thus

entitled to review to the Federal Circuit (see 28 U.S.C.

17

§ 1295(a)(9)), under the unambiguous language of the

statute.

The legislative history of these provisions provide that

section 205 amending Chapter 77 “makes important

changes in the procedures governing review by the Board

{MSPB] and the courts of adverse actions, such as re-

movals, and other appealable actions taken by an agency.”

(Emphasis added). S. Rep. No. 95-969, 95th Cong. 2d Sess,

51, reprinted in 1978 U.S. Code Cong. and Ad. News at

2773. The legislative history states further that section

7703(a) “applies to judicial review of all final orders or

decisions of the Board...” Id. at 62, reprinted in 1978 U.S.

Code Cong. and Ad. News at 2784. The administration’s

Reorganization Plan No. 2 of 1978, 5 U.S.C. § 1101 Note,

which accompanied the legislative proposal for civil service

reform as part of the legislative package, specifically

included retirement cases. By way of this Reorganization

Plan, “any action to the Board” would include the appel-

late adjudicatory responsibilities of the Civil Service Com-

mission in disputes relating to retirement benefits. S.

Rep. No. 95-969, 95th Cong. 2d Sess 1-2(1978). The Civil

Service Reform Act amended existing statutes conferring

appeal rights under 5 U.S.C. § 8347(d) to substitute the

MSPB for the Commission. Review of all non-

discrimination cases from decisions of the MSPB were

conferred by Section 7703 upon the Court of Appeals and

the Court of Claims. (Subsequently transferred to the

Federal Circuit by the Federal Courts Improvement Act of

1982, 28 U.S.C. § 1295(a)(9)).

Furthermore, as the dissenting opinion written by

Judge Smith recognized, Section 7701(a) is the main

jurisdictional basis for appealable agency adverse ac-

tions—and the jurisdiction of section 7701(a) actions is

plenary. Rosano v. Department of the Navy, 699 F.2d 1315,

1317 (Fed. Cir. 1983). Although Section 7701(a) is ex-

pressly made the jurisdictional basis for actions under

inter alia, Sections 4303(e) and 7513(d), other agency

actions, such as the withholding of periodic step increases,

18

under Section 5335(c) have been held to be appealable

under section 7701. Meyer v. Department of Health and

Human Services, 666 F.2d 540 (Ct. Cl. 1981). The courts

have asserted jurisdiction in other cases, although not

specifically provided under Section 7701 or other govern-

ing statutes. E.q. Reemployment priority rights—

Raicovich v. U.S. Postal Service, 675 F.2d 417 (D.C. Cir

1982); Stevens v. TVA, 687 F.2d 158 (6th Cir. 1982):

Reduction in foree— Mead v. MSPB, 687 F.2d 285 (9th Cir.

1982); Horne v. MSPB, 684 F.2d 155 (D.C. Cir. 1982); and

disability retirement cases previously recited. The plural-

ity’s bare statement that retirement benefit claims are

not adverse action claims, 718 F.2d 391 (1983), dees not

suffice to deny jurisdiction of all other claims under 5

U.S.C. § 7703. The dissent asserts that an analysis of

Section 7703 reveals that the Federal Circuit has jurisdic.

tion of all MSPB decisions except discrimination cases and

possibly certain Special Counsel and Senior Executive

Service Cases.

The dissent remarks that the most significant

anomaly in the majority holding is the conflict between

their holding of no review and the plenary authority of

the Federal Circuit to review, as set out in Section

7703(a)(1). Under the Feieral Courts Improvement Act,

the entire jurisdiction created by Section 7703 (judicia!

review of ail final orders or decisions of the Board)

devolved upon the Federal Circuit. H. R. Rep. No. 312 at

18 (jurisdiction ...over all appeals from the MSPB), S.

Rep. No. 275, 97th Cong. 2d Sess. 21, reprinted in 1982 U.S.

Code. Cong. and Ad. News 11, 31 (“jurisdiction of any

appeal from a final order or final decision of the Merit

Systems Protection Board). As the dissent urges “there is

absolutely no reason to believe—and numerous reasons to

doubt—that Congress intended this court to approach its

MSPB jurisdiction with the extreme caution practiced by

the majority.”

19

This construction by the plurality totally contravenes

the presumption in favor of judicial review, Abbott Labora-

tories, supra, and the statutory principle of reconciling

statutes where possible. Morton v. Mancuri, 417 U.S. 535,

551(1974); Pitzak v. OPM, supra, 710 F.2d at 1479. The

plurality’s holding totally barring all review in these cases

further frustrates the intent of the Civil Service Reform

Act and the Federal Courts Improvement Act to have the

Federal Circuit hear all appeals from the MSPB.

CONCLUSION

For the aforesaid reasons, the decision of the United

States Court of Appeals for the Federal Circuit should be

reversed.

Respectfully Submitted,

STUART A. KIRSCH

STAFF COUNSEL

AMERICAN FEDERATION OF

GOVERNMENT EMPLOYEES

AFL-CIO (FIFTH DISTRICT)

510 Plaza Drive, Suite 2510

College Park, Georgia 30349

MARK D. ROTH

Counsel of Record

GENERAL COUNSEL

AMERICAN FEDERATION OF

GOVERNMENT EMPLOYEES

AFL-CIO

1325 Massachusetts Ave.,

Washington, D.C. 20005

(202) 737-8700

Attorneys for Amicus Curiae