Amicus Curiae Brief — Lindahl v. Office of Personnel Management

95

nov 1 * W

IN THE

Supreme Court of the United States

OCTOBER TERM, 1984

WAYNE LINDAHL,

» Petitioner,

OFFICE OF PERSONNEL MANAGEMENT,

Respondent.

On Writ of Certiorari to the United States

Court of Appeals for the Federal Circuit

MOTION FOR LEAVE TO FILE BRIEF AMICI CURIAE

AND BRIEF ON BEHALF OF PETITIONERS IN 5 CASES

PENDING BEFORE THE COURT OF APPEALS FOR

THE FEDERAL CIRCUIT, MARY ROSE OAKAR,

MEMBER OF CONGRESS, AND PATRICIA SCHROEDER,

MEMBER OF CONGRESS, AS AMICI CURIAE

EpitH U. FIERsT

(Counsel of Record)

Suite 712

1140 Connecticut Ave., N.W.

Washington, D.C. 20036

(202) 223-3420

ALICE BRANDEIS POPKIN

Suite 222

1015 20th St., N.W.

Washington, D.C. 20036

(202) 293-1721

— —

WILSON - Eres PRINTING Co.. INC. - 789-0096 - WASHINGTON, D.C. 20001

IN THE

Supreme Court of the United States

OCTOBER TERM, 1984

No. 83-5954

WAYNE LINDAHL,

7 Petitioner,

OFFICE OF PERSONNEL MANAGEMENT,

Respondent.

On Writ of Certiorari to the United States

Court of Appeals for the Federal Circuit

MOTION FOR LEAVE TO FILE BRIEF AMICI CURIAE

Margaret Cheeseman, Marie Zagorny, Chong C. Brown,

Alan Speek, Irving Saginor, Amalia Meierdiercks, Pa-

tricia Schroeder and Mary Rose Oakar, by and through

their attorney, Edith U. Fierst, respectfully move this

Court pursuant to Rule 42 of the Supreme Court Rules

for leave to file a brief amici curiae in the above entitled

case. Petitioner has consented to allow said filing, but

Respondent has declined to consent.

Most of the Amici are petitioners in cases pending be-

fore the Court of Appeals for the Federal Circuit which

have been (or soon will be) stayed pending a decision by

the Supreme Court in Lindahl v. OPM, 718 F.2d 391

(Fed. Cir. 1983), cert. granted, 52 U.S.L.W. 3906 (U.S.

June 18, 1984) (No. 83-5954). The possibility of their

.

obtaining judicial review of their respective cases May

depend upon a favorable ruling by the Court in this cake.

The remaining Amici are Members of Congress.

The jurisdietional issues presented by movants were

not before this Court in Lindahl until the Government

sought in its reply brief to broaden the issues beyond

those decided by the Federal Circuit or raised in Peti-

tioner’s brief. Prior to that date, the dispute in Lindahl

was restricted to the right of an applicant for disability

retirement to obtain judicial review by the Court of Ap-

peals for the Federal Circuit of the denial of his claim.

Specifically the issue was whether section 8347(c) of

title 5 U.S.C. precludes review of any aspect of the de-

nial of such claim, as held by the Federal Circuit, or

alternatively whether it bars that Court from reviewing

only a decision on the facts of the alleged disability.

The Government’s reply brief raised several entirely

new questions, including whether judicial review is also

barred when the applicant is seeking retirement benefits

other than disability benefits, whether review by the

Federal Circuit is separately barred when the claimant

is a retired Federal employee, whether such review is

precluded when the claimant is the surviving spouse of

a Federal employee, and whether the proper forum in

all such cases is the Claims Court.

These questions are of critical importance to movants

whose petition before the Federal Circuit has been

stayed, and whose right to be heard on appeal may de-

pend upon the decision of this Court. These movants

have been badly prejudiced by the Government’s request

that this Court rule adversely to them without giving

them notice or an opportunity to present their views.

While it is true that this brief amici curiae is not

timely pursuant to Rule 36 of the Supreme Court rules,

this untimeliness is of Respondent’s making.* There was

no reason for movants to know they had an interest in

the case of Mr. Lindahl until Respondent herein at-

tempted to broaden the issues in its brief, at which time

it was already too late to proceed timely under Rule 36.

CONCLUSION

For all the foregoing reasons, I respectfully urge this

Court to grant this motion for leave to file the accom-

panying amici brief in the present case in support of the

position of movants.

Respectfully submitted,

EDITH U. FIERST

Counsel for Amici

1140 Connecticut Ave., N.W.

Suite 712

Washington, D.C. 20036

(202) 223-3420

* Respondent neither served nor furnished a copy of its brief

to petitioners, thereby causing another week to be lost.

QUESTION PRESENTED

1. Whether the Court of Appeals for the Federal Cir-

cuit has jurisdiction over retirement cases, and if so

whether this jurisdiction can be invoked on the petition

of retired employees or their survivors.

2. Whether the Claims Court is the proper forum for

appeals from the Merit Systems Protection Board in

retirement cases.

(i)

TABLE OF CONTENTS

QUESTION PRESENTED .0oo..2...eeeceecceceeceeeeeeeeeeee

TABLE OF AUTHORITIES— 2

INTEREST OF AMICI CURIAE

—.—.

SUMMARY OF ARGUMENT eeeeee ene

ee

I.

II.

III.

IV.

VI.

Retirement for age and service is very different

from disability retirement

Coverage of retirement cases involves serious

questions of access to and administration of

The Federal Circuit has jurisdiction to hear

cases involving claims for non-disability retire-

A. The physical disability exception has no rele-

vance to non-disability retirement

B. The Government’s argument is at variance

with common sense — ee

C. Voluntariness is not a workable criterion for

appellate review .......

A retired employee is an employee for purposes

of sections 7701 (a) (1) and 7703 (a) (1) ............

The right of action of a retired employee sur-

vives his or her death, and the surviving spouse

is entitled to be heard on appeal

The Claims Court is not an alternative forum

A. There is no statutory basis for appellate re-

view in the Claims Court

(iii)

iv

TABLE OF CONTENTS—Continued

Page

B. Congress had no reason to give appellate ju-

risdiction to the Claims Court i 20

C. There would be sericus negative consequences

if the Claims Court were found to be the

proper forum . ' 21

CONCLUSION ............... — — 22

V

TABLE OF AUTHORITIES

UNITED STATES SUPREME COURT CASES Page

Scheuer v. Rhodes, 416 U.S. 232 (1974) —.............. 19

OTHER FEDERAL CASES

AFGE v. Devine, No. 82-3391, slip op. (D.C.,

C 19

Bronger v. OPM, Appeal No. 83-1349, 1350, 1376,

slip op. (Fed. Cir. July 26, 1983 6, 9, 13, 14,

15, 18

Brown v. OPM, No. 831L8310837 (MSPB, July 7,

1984), appeal docketed, 85-571 (Fed. Cir.) ........ 2, 4, 15

Cheeseman and Zagorny v. OPM, PHOS3 183 10675

and DC08318310909 (MSPB, June 5, 1984), ap-

peal docketed, No. 84-1675 (Fed. Cir.) )) 2, 5, 9, 10,

13, 14, 15, 18

Gilman v. OPM, No. 84-764, slip op. (Fed. Cir.

ETE EES erie ne ae a 14

In Re Air Crash Disaster Near Saigon, Etc., 476

eS i eee 16

In Re Paris Air Crash, 399 F. Supp. 732, 745 (C.D.

7 17

Lindahl v. OPM, 718 F.2d 391 (Fed. Cir. 1983),

cert. granted, 52 U.S.L.W. 3906 (U.S. June 18,

De . 1. 2, 8, 11

Meierdiercks v. OPM, No. NY 08318410132

(MSPB Sept. 27, 1984), appealed but not yet

OU 2, 5, 15

Saginor v. OPM, No. DC083184103831 (MSPB

July 9, 1984), appeal docketed, No. 84-1743 (Fed.

— EEE ˙ A T l E 2 2, 3, 15

Speek v. OPM, No. SF08318310957 (MSPB, July

6, 1984), appeul docketed, No. 84-1764 (Fed.

e ALS eae ES 2 2, 4,15

Williams v. OPM, 718 F.2d 1553 (Fed. Cir. 1983) 13

STATE CASES

Strother v. District of Columbia, 372 A.2d 1291

r 16

vi

TABLE OF AUTHORITIES—Continued

MSPB DECISIONS Page

Chavez v. OPM, 6 MSPB 343 (1981) ....................... 7

Doyle v. Office of Personnel Management, DC

08318110491 (MSPB July 30, 1984) 19

CONSTITUTION AND STATUTES

ED GS Oa 16

Civil Service Reform Act

21608008000 ——E—————EEE 9

5 U.S.C. § 7512 (1982) ................. — 9

5 U.S.C. § 7701 (a) (1) (198227 6, 10, 14

5 U.S.C. § 7701(g) (1) (1982) -.......................... 9, 10

QR iE 12, 16

1. 6, 11, 14

5 U.S.C. § 7708 (b) (1) (198222 18

1 TL— EE 18

OS 13

1 —.. 17, 19

5 U.S.C. § 8847 (e) (19822 8, 11, 13, 14

5 U.S.C. § 8347 (d) (1) (1982) _.......................... 14

5 U.S.C. § 8347 (d) (2) (19822) 11, 12,14

̃ Kü—„m,i! 9

Federal Court Improvements Act

28 U.S.C. § 1295 (a) (9) (19827 18, 19, 20

Fed. R. Civ. P. 25 — tia aaiaasmcaaiiilimiatitis 17

Tucker Act

28 U.S.C. 88 1346 (a) (2), 1491 (a) (1) (1982) 18

D. C. Code Ann. 58 12-101, 12-102 (1980) 6, 16, 17

LEGISLATIVE MATERIALS

S. Rep. 97-275, 97th Cong., Ist Sess. (1981) 6, 15,

19, 20

„ ADMINISTRATIVE MATERIALS

Merit Systems Protection Board, 5 CFR § 1201.3

J — — — 6, 10

IN THE

Supreme Court of the United States

OCTOBER TERM, 1984

No. 83-5954

WAYNE LINDABL,

Petitioner,

v.

OFFICE OF PERSONNEL MANAGEMENT,

Respondent.

On Writ of Certiorari to the United States

Court of Appeals for the Federal Circuit

BRIEF ON BEHALF OF PETITIONERS IN 5 CASES

PENDING BEFORE THE COURT OF APPEALS FOR

THE FEDERAL CIRCUIT, MARY ROSE OAKAR,

MEMBER OF CONGRESS, AND PATRICIA SCHROEDER,

MEMBER OF CONGRESS, AS AMICI CURIAE

INTEREST OF AMICI CURIAE

Most of the Amici are petitioners in cases pending be-

fore the Court of Appea's for the Federal Circuit which

have been (or soon will be) stayed pending a decision by

the Supreme Court in Lindahl. The possibility of their

obtaining judicial review of their respective cases may

depend upon a favorable ruling by the Court in this case.

The remaining Amici are Members of Congress. Mary

Rose Oakar is Chair of the Subcommittee on Compensa-

tion and Employee Benefits of the House Committee on

Post Office and Civil Service. Patricia Schroeder is Chair

of the Subcommittee on Civil Service of the House Com-

mittee on Post Office and Civil Service. Both are deeply

concerned that as a result of this case judicial review

may be cut off from members of the Civil Service with

respect to their retirement rights. Both see the protec-

tion of these rights as vital to the persons and issues with

the charge of their respective Subcomittees.

STATEMENT

On October 10, 1984, the Department of Justice filed a

motion to stay proceedings in the case of Cheeseman and

Zagorny (on behalf of themselves and others similarly

situated) v. OPM, Nos. 08318310675 and DC08318310909

(MSPB June 5, 1984), appeal docketed No. 84-1675 (Fed.

Cir.) which is pending in the Court of Appeals for the

Federal Circuit. It asked for the proceedings to be de-

layed pending a decision in Lindahl v. OPM, 718 F.2d

391 (Fed. Cir. 1983) on which cert. had been granted.

Shortly thereafter the Justice Department filed similar

motions to stay proceedings in three other cases (Brown

v. OPM, No. 831L8310837 (MSPB July 7, 1984), appeal

docketed (Fed. Cir.) 84-1743; Speek v. OPM, No. SF

08318310957 (MSPB July 6, 1984), and Saginor v. OPM,

No. DC08318410331 (MSPB July 9, 1984), appeal docketed,

84-1743. All of these cases have now been stayed.

At least one additional case now pending in the Fed-

eral Circuit will almost certainly be stayed as soon after

docketing as feasible. That case is Amalia Meierdiercks

v. OPM, No. 08318410132 (MSBP Sept. 27, 1984), ap-

pealed but not yet docketed (Fed. Cir.).

These cases involve the following facts and issues.

1. Cheeseman and Zagorny v. OPM, supra. This case

arose because OPM failed to change the application for

retirement when 5 USC 8339(j) was amended in 1974.

Under the previous law, the annuity payable to a retiree

who elected a survivor annuity was permanently reduced.

The 1974 amendment (Pub. L. 93-474) provided for the

reduction to cease when the marriage terminates by

death, divorce or annulment. As the result of litigation

which began in 1981, OPM revised its application form,

and notified all persons who had retired in the interim

and elected less than the maximum survivor annuity, or

their survivors, that the retiree had been misinformed

and they could change the election, providing they could

show that the misinformation was a primary cause of re-

tiree’s decision not to provide a survivor annuity. So far

over 1400 individuals have made such a showing to the

satisfaction of OPM, and been assured either that their

spouses will be protected after the death of the retiree,

or if that death has already occurred, that they are

eligible to receive survivor annuities ( including back pay-

ments to the date of death of the retiree). The remain-

ing issues are (1) whether the MSPB was right in put-

ting the burden of proving that a deceased employee was

primarily influenced by the application form’s misinfor-

mation on the employee’s widow (er), or should have put

it on the Government to prove that he or she was not so

influenced; and (2) whether the MSPB was right in

holding that it lacks authority to award an attorney’s fee

in this case because it lacks such authority in disability

retirement cases.

2. Saginor v. OPM, supra. This case was filed on be-

half of a retired employee who tried to change his sur-

vivor annuity election as part of the Cheeseman and

Zagorny class. His application was refused, apparently

because he was not married when he filled out the appli-

cation form with the misleading information, although

he was contemplating the marriage which occurred

shortly thereafter. The issue is whether he has a right

to show that he was primarily influenced by the applica-

tion form’s misinformation when he failed to make a

timely election to provide a survivor annuity for his wife.

4

3. In Speek v. OPM, supra, a retired employee who

was divorced and remarried seeks to assure survivor

protection for his second wife. OPM was required to

notify him of a change in the law making his provision

of a survivor annuity for his second wife contingent upon

his requesting such coverage within one year of that

marriage. Mr. Speek denies that he received the re-

quired notice. During the period before he notified the

Government of the remarriage, Mr. Speek’s annuity con-

tinued to be reduced to pay for a survivor annuity. The

question is whether the holding of the Merit Systems

Protection Board that Mr. Speeks received timely notice

of the change in the law was unsupported by the evidence

and therefore that its refusal to allow him to elect a

survivor annuity for his wife was arbitrary and capri-

cious under the circumstances.

4. In Brown v. OPM, supra, the Civilian Personnel

Office in Korea denied a retired employee the opportunity

to elect a survivor annuity for the wife he married after

retirement, stating that he was ineligible until he had

been married two years. The employee lived in Seoul

and had previously worked there for the Defense Depart-

ment. There is evidence that the employee of the Civilian

Personnel Office who refused his application was relying

on outdated issuances of OPM. Before he died, the re-

tired employee learned that he had been misled and that

in fact it was necessary for him to make the election

within one year. He tried to rectify the error, but his

application was rejected as not timely because more than

a year had elapsed. The petitioner is the widow on whose

behalf he tried to obtain a survivor annuity. The ques-

tion is whether the MSPB was right in holding that al-

though the Government provided wrong information to

its retired employee on which he had no alternative but

to rely, it can nevertheless deny him and his surviving

spouse the benefits which they have would have obtained

absent the Government’s wrongful conduct.

5

. OPM, supra, the application of

a

ground that the burden of proof is on her to show that

the primary cause of her husband’s election was the mis-

information on the application form. There are two is-

sues, (1) whether the burden of proof is properly on

Mrs. Meierdiercks: and (2) whether the MSPB was cor-

rect in failing to review the merits of her claim that she

had met the burden.

INTRODUCTION AND SUMMARY OF ARGUMENT

The court below held that it lacked jurisdiction to

review a decision of the Merit Systems Protection Board

(MSPB) regarding a disability retirement, both the

fact of the alleged disability and the standards followed

by the MSPB in reaching its decision. In its reply brief

Respondent argued that the above Federal Circuit cover-

age is unavailable not only with respect to disability re-

tirements, but also with respect to retirement based on

age and service. It further argued that the Federal Cir-

cuit has no jurisdiction to hear appeals brought by per-

sons who have retired and are, therefore, no longer em-

ployed by the Federal Government, or by their surviving

spouses because they are not and never were employees.

Finally Respondent argued that the proper forum for

appeals on these issues by these persons is the Claims

Court.

The Respondent’s brief is wrong because the special

prohibitions placed on disability retirement do not apply

to retirement for age and service. A decision to exclude

age and service retirements from appellate review by

the Federal Circuit would affect many more persons

than would one regarding disability retirement, and

would wreak havoe on the administration of justice.

Such a decision should not be treated as an incidental

concomitant of the law on disability retirement.

Specific statutory authority gives the Federal Circuit

jurisdiction to hear retirement cases based on age and

service. 5 U.S.C. 7701(a)(1) gives the MSPB express

authority to hear cases that are appealable under any

rule or regulation. MSPB regulations (5 CFR 1201.3

(a) (6)) provide authority for the MSPB to hear re-

tirement cases. Section 7703(a)(1) authorizes the Fed-

eral Circuit to hear appeals from anyone adversely af-

fected by an MSPB decision. Arguments for a contrary

result are based on arcane readings of the statute and

legislative history; they are unreasonable.

The same unreasonableness is true of arguments

based upon the presumed intention of Congress to treat

voluntary retirements differently from involuntary; fre-

quently it is unclear whether a particular retirement is

voluntary or unvoluntary. In the case of the surviving

spouse of an employee who dies in service, there is no

basis for assuming voluntariness (unless the employee

committed suicide.) Moreover, despite the Government’s

argument that Congress deemed it inappropriate for the

Federal Circuit to hear retirement claims because they

are not in the nature of adverse actions, many retire-

ment claims, including those of all movants who are

petitioners in the Federal Circuit, involve actions ini-

tiated by the Government adverse to petitioners.

The Federal Circuit in Bronger v. OPM, Appeal Nos.

1349, 1350, 1376, slip op. (Fed. Cir. July 26, 1984) held

Similarly a survivor has the right to appeal: Section

12-101 of the D.C. Code provides that the right

of a retired employee survives his death. Both

and case law substantiate the of the

claim

spouse to be the legal representative.

7

The Claims Court cannot be deemed a substitute

forum. Its jurisdiction is not appellate, but trial. To

give it jurisdiction over retirement cases would thwart

the Congressional policy of fostering uniform treatment

of similar situations. Great harm not intended by Con-

gress would be done to many potential appellants from

decisions of the MSPB if recourse to the Claims Court

were the only forum where they could obtain a hearing.

ARGUMENT

I. Retirement for Age and Service Is Very Different From

Disability Retirement.

Petitioners in cases stayed by the Federal Circuit are

seeking retirement or survivor annuities based on age

and service, not disability.

Disability retirement is very different from ordinary

retirement at the appropriate age and after the required

service. This difference exists both as to eligibility re-

quirements and under the jurisdictional provisions of

title 5 of the United States Code.

First as to eligibility requirements: Entitlement to

disability retirement depends upon a showing that the

applicant is disabled. Someone must weigh the evidence

and make this decision. Congress has vested that au-

thority in the Office of Personnel Management (OPM)

and the MSPB. The burden of proving disability has

been placed upon the applicant who is seeking this spe-

cial benefit. (Chavez v. OPM, 6 MSPB 343, 1981).

By contrast, retirement for age and service is a mat-

ter of right. No discretion needs to be exercised by any-

one. The only issue is one of bookkeeping: does the ap-

plicant indeed have the requisite age and service? If the

answer is that he or she does, the burden must be on

the Government if it seeks to withheld such payments

to explain why.

The jurisdictional provisions of title 5 take account of

the difference in the two types of benefits by providing

in pertinent part in section 8347(c).' “The Office shall

determine questions of disability and dependency arising

under this subchapter. Except to the extent provided

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

Office concerning these matters are final and conclusive,

and are not subject to review.”

The exact meaning of that provision is in controversy

in the Lindahl case. It is beyond dispute, however, that

the quoted language has no direct bearing on cases

where a question of disability or dependency? does not

exist.

II. Coverage of Retirement Cases Involves Serious Ques-

tions of Access to and Administration of Justice.

The right to appeal with respect to retirement in-

volves many more individuals than does a decision on

jurisdiction over disability. This issue should not be

treated as an appendage of disability retirement, which

occurs far less frequently.

The ramifications of a decision denying appellate

rights in retirement cases would be broad beyond imagi-

nation. The potential variety of cases is as great as life

itself.

Petitioners on this amicus brief have a diversity of

situations requiring judicial review. Beyond doubt there

is a multitude of other such issues involving many other

petitioners, and potential petitioners.

1 All section references are to title 5 U.S.C. unless otherwise

indicated.

2 For purposes of this statute, dependency appears to mean an

inability to be self-supporting. There is no indication that it

refers to the status of a homemaking wife as the dependent of an

employee. Payment of a survivor annuity to a widow or widower

is not at all contingent upon a showing that the widow(er) was

dependent upon the employee.

9

Recourse, and clarity about the method of obtaining

such recourse, are needed. The difficulty of drawing the

line to deny access to judicial review to some petitioners,

and provide it to others, can be demonstrated by the is-

sue of whether to hear active employees who have ques-

tions regarding retirement rights. Could they appeal?

If active employees can be heard by the Federal Cir-

cuit, but retirees who seek to raise the identical legal

issue cannot be heard, the likelihood of a double stan-

dard of justice and consequent great confusion looms

large.

The same result would follow from the Government’s

proposed denial of jurisdiction over any retirement is-

sue, no matter by whom raised (Brief of Respondent,

24), because of the interrelationship between retirement

rights and other employee rights and benefits. For ex-

ample, the definition of service raised in the Bronger

ease (Slip op. at 12-15) may have other applications.

The law regarding labor-management relations permits

collective bargaining about conditions of employment,

presumably including some retirement issues. (5 U.S.C.

§ 7103) An adverse action can lead to a reduction in

retirement pay (Section 7512). Health benefits are

available to annuitants on a basis similar to that ap-

plicable to employees (Section 8905). No doubt there

are numerous other examples. The Government’s posi-

tion would create uncertainty about the forum where

these issues will be decided, and the probability that the

decisions of different forums will not be uniform.

The extent to which the Government’s arguments lead

into unexpected and perilous ground can be illustrated

by the decision of the MSPB in Cheeseman and Zagorny

v. OPM, supra that it lacks jurisdiction to award attor-

ney’s fees in retirement cases, although these are au-

thorized under section 7701(g)(1). If this ruling is

allowed to stand, it will deprive many widows of legal

10

assistance they cannot afford to purchase. In the Cheese-

man class action, for example, many class members are

widows without other retirement income (Federal em-

ployment until recently provided no coverage under

Social Security). Many live on SSI. Nothing in the

legislative history has been cited to suggest that Con-

gress intended their cases to be conducted at their own

expense or not at all. It is hard to believe that Congress

intended to exclude this class of needy plaintiffs from

the protection of section 7701(g)(1) which authorizes

the Board to provide payment of reasonable attorney

fees to the prevailing party if “warranted in the inter-

est of justice.” But such an outcome appears to the

Merit Systems Protection Board to be the consequence

of the Government’s position.’

III. The Federal Circuit has Jurisdiction to Hear Cases

Involving Claims for Non-Disability Retirement.

The statutory language makes the conclusion inescap-

able that Congress intended the Federal Circuit to have

jurisdiction over retirement cases that do not involve

disability or dependency.

Specifically section 7701 (a) (1) provides that “an em-

ployee or applicant for employment may submit an ap-

peal to the Merit Systems Protection Board from any

action which is appealable to the Board under any law,

rule or regulation.” (Emphasis supplied).

MSPB regulation section 1201.3 (a) (5) of 5 CFR

(initially published at 44 FR 38349, June 29, 1979)

provides that the Board’s appellate jurisdiction includes

“Determinations relating to disability retirement, health

insurance and annuities.”

8 Presumably the Government would have the MSPB make the

same decision regarding the surviving children of Government

employees, making this case one of the most egregious assaults

on widows and orphans since the days of the Robber Barons.

11

Under section 7703(a)(1), because the Board has

this jurisdiction, so does the Court. That section of the

statute provides that an employee or applicant for em-

ployment adversely affected or aggrieved by a final or-

der or decision of the Merit Systems Protection Board

may obtain judicial review of the order or decision.

A. The physical disability exception has no relevance

to non-disability retirement.

Excepted from the jurisdiction of the Federal Circuit

by section 8347(d) are “questions of disability and de-

pendency”, other than those involving mental disability.

The holding of the Lindahl court was that section 8347

(e) should be construed to exclude from the jurisdiction

of the Federal Circuit all aspects of physical disability

retirement, not only findings of fact regarding the

claimants’ disability. This interpretation is properly be-

fore the Supreme Court. (Brief of Petitioner and of

Respondent, as well as several amici).

In addition, however, the Government argues that the

statute should be construed to preclude jurisdiction in

the Federal Circuit over all types of retirement, not only

disability retirement. (B. of Resp. 20, 21). This conclu-

sion does not follow from the statutory language.

B. The Government’s Argument is at Variance with

Common Sense.

The Government’s argument is long, complicated by

arcane constructions, and heavy with legislative history,

but it ignores the plain words of the relevant statutes,

and the reliance that Members of Congress, in the rush

of their multitudinous duties, are likely to place on the

simple meaning, rather than the strained and complex

construction that only a legal scholar can follow.

For example, the Government argues that because the

exception in section 8347(d)(2) to the bar against re-

view of questions of disability or dependency in 8347 (e)

12

authorizes judicial appeal on a finding of mental dis-

ability, there is an implication that no other retirement

question can be appealed.“ This reading ignores the

ordinary meaning of the words involved, and flies di-

rectly in the face of the language of section 7703 which

provides that any action appealable to the Board may be

appealed to the Federal Circuit.

The common understanding is that the Board is au-

thorized to hear appeals on retirement cases. This was

true prior to enactment of section 8347(d) (2) in 1980,

and remains true today. Numerous cases have been

heard by the Board under that authority, including the

various cases brought by the petitioners.

To the extent that the Government’s argument is

based upon the wording of a 1980 Congressional Act to

provide coverage for mental disability cases, it suggests

that Congress intended thereby to eliminate appellate

review for a very large class of Federal employees with-

out debating this intent. This argument lacks reason-

ableness. Members of Congress must be assumed to have

given the normal reading to the proposal before them,

which was merely to authorize review of a factual] deter-

mination that an employee (including one who has re-

tired from the Federal service) suffers from a mental

condition. If Congress had decided in 1980 to eliminate

the right to appellate review for a large class of Fed-

eral employees, Congress would have written in plain

English that this change had taken place.

C. Voluntariness is not a workable criterion for appel-

late review.

Advocates of the Government’s position argue that its

view is sensible because Congress wanted to distinguish

between voluntary and involuntary claims for retire-

Brief of Respondent, 20 and 21.

13

ment.“ This line of reasoning cannot withstand analysis.

Who knows what the dynamics of a particular situation

are with sufficient clarity to determine before hearing

the facts whether the retirement was voluntary or in-

voluntary? Many persons are forced into retirement

each year because their jobs are abolished or because

they know that if they do not retire they will be dis-

charged. Many others choose retirement in lieu of ac-

cepting downgrading or transfer across the country.

Are these retirements voluntary or involuntary? A deci-

sion to classify a retirement improperly risks unequal

treatment of similarly situated persons.

Moreover even if all retirements were presumed to be

voluntary, it would be completely unreasonable to make

a presumption of voluntariness about death in service

(other than the occasional suicide). There are many

thousands of such cases; the law is clear that the sur-

viving spouse is entitled to a benefit provided certain

threshold standards are met.“ Is the widow(er) to be

deprived of a right to appeal to the court because some

applicants for disability retirement act voluntarily?

The arguments made by some of those who would de

prive petitioners of the right to appeal to the Federal

Circuit ignore the statutory words “disability and de

pendency” in section 8347(c). See, for example, the deci-

sion of the MSPB in Cheeseman and Zagorny v. OPM,

supra, in which the Board cited an earlier Federal Cir-

cuit case, Williams v. OPM, 718 F.2d 1553 (Fed. Cir.

1983) as authority for denying attorney fees in a non-

disability case. The Board explained that although the

Williams case “relates specifically to physical disability

retirement appeals, appellants have pointed to nothing

See, for example, Judge Nies’ dissent to Bronger, Slip op. at

3 and 4, or the conceptually similar argument made by Respondent

(Brief, 40) regarding appeals closely resembling adverse actions,

discussed infra pp. 14 and 15).

5 U.S.C. 8341.

14

which would render this analysis inapplicable to cases

involving other retirement issues, and we have not found

any appropriate distinctions.” Cheeseman, supra at page

11. To the same effect is the reasoning of Judge Nies in

her dissent to Gilman v. OPM, No. 84-764, slip op. (Fed.

Cir. Sept. 12, 1984) where she says “In my view, a deci-

sion by the MSP3 on a claim for benefits under section

8347 (d) (1) is not reviewable by this court unless the

claim comes within section 8347(d)(2) [relating to

mental disability)”.

IV. A Retired Employee is an Employee for Purposes of

Sections 7701(a)(1) and 7703(a)(1).

Despite the statutory language specifying that an ap-

peal must be brought by “an employee or applicant for

employment,” the Federal Circuit has already decided,

properly, in Bronger v. OPM, Appeal Nos. 83-1349, 1350,

1376, sli, op. (Fed. Cir. July 26, 1984) that an em-

ployee does not lose entitlement to appeal when he or

she retires. The reasons stated by the court in its opin-

ion are reasonable and correct.

In particular the Bronger court pointed out that cases

involving adverse actions are sometimes brought by per-

sons who are no longer employees as a consequence of

the very adverse action that is challenged. The court

noted that an interpretation that limited the court’s

jurisdiction to current employees would deprive it of a

major portion of the jurisdiction which it exercises

every day. Id. at 10 and 11. The Government doesn’t

like this idea, and tried to show that it is illogical by

stating that an individual doesn’t lose his right of ap-

peal if he is deprived of status as an employee while seek-

ing review of the adverse action. (Brief of Respondent,

24). But what about an individual who file un-

til he has been terminated? The brief

The logic of the Government’s position such a

former employee would have no right te appeal to the

Federal Circuit. If this were the rule, the race to the

15

lawyer’s office would begin the minute any employee had

reason to think he might be fired. Conversely, the Super-

visor would be under pressure to hasten to discharge any-

one whose appeal he feared. It would be nonsensical to

suppose Congress wanted such a system.

Moreover, if the Court issues a jurisdictional ruling

requiring such a bifurcation of authority over discharge

cases, the Congressional purpose of achieving a system

that will provide “quick and definitive answers to legal

questions of nationwide significance” (S. Rep. 97-275,

97th Cong., Ist Sess., 1981, [hereinafter cited as Senate

Report], p. 13.) will be thwarted.

The Government assumes wrongly that retirement

cases do not involve events closely resembling adverse

ment. In the Cheeseman and Zagorny class action, that

adverse action was the use of an application form for

retirees which misled them into electing not to

a survivor annuity. The application form also

underlying factor in Saginor and Meierdiercks. I

Bronger and Brown the adverse action consisted of a

Government official giving wrong information to a for-

mer employee regarding his employment rights, which

led the former employee to act to his detriment. In

Speek the adverse action was the failure of the Govern-

ment to give Speek notice that he could not rely on the

law as it was when he retired, but must provide OPM

notice of his new marriage.

A more reasonable interpretation of Congressional in-

tent is that the reference to an employee or applicant

for employment was intended to describe generally what

the relevant chapters of title 5 cover. These are rights

of employees and applicants for employment, not the

rights of the general public with respect to contracts,

torts, the environment, criminal law, foreign policy, and

16

so forth. None of these other matters can be brought

before the MSPB, and if they come before the Federal

Cireuit, it is because there is separate authority. But

issues relating to the rights of employees, including re-

tired employees, are covered by title 5 U.S.C., and such

matters may be heard by the Board and on appeal from

it by the Federal Circuit.

V. The Right of Action of a Retired Employee Survives

His or Her Death, and the Surviving Spouse is Entitled

to be Heard on Appeal.

The right of action to obtain a survivor annuity sur-

vives the death of the retired employee. The right of

appeal of an employee under Section 7703 survives his

or her death.

Section 12-101 of the D.C. Code provides:

On the death of a person in whose favor or against

whom a right of action has accrued for any cause

prior to his death, the right of action, for all such

cases, survives in favor of or against the legal rep-

resentative of the deceased.

This statute governs an action against the Office of

Personnel Management which is located in the District of

Columbia. Further “the District of Columbia law of

survival of action was enacted by Congress pursuant to

its constitutional power and responsibility to exercise

exclusive legislation in all Cases whatsoever over .. . the

Seat of Government of the United States’. U.S. Const.

Art. I. see 8, cl. 17,” as cited by Judge Louis Oberdorfer

in In Re Air Crash Disaster Near Saigon, Etc. (476

F. Supp. 521, 527 (D.C. 1979).

The term “legai representative” in Section 12-101 of

the D.C. Code is not limited to a duly appointed executor

or administrator but includes “any person who, whether

by virtue of testamentary act or operation of law, stands

in the place of the decedent with respect to his prop-

erty ...” Strother v. District of Columbia 372 A2d 1291,

17

1296 (D.C. App. 1977). It is plain that the surviving

spouse would qualify under the D.C. statute and could

bring this appeal.

While not all the claimants in petitioners’ cases are

located in the District of Columbia, many are. It is in-

conceivable that Congress intended to have the right of

appeal vary according to the jurisdiction in which the

claimant resides. Instead there must be a uniform rule

of law.

Judge Oberdorfer has provided another reason why the

law of the District of Columbia is the appropriate one:

Because of the national interests at stake here, the

law of the forum, which is the law enacted by Con-

gress for the Seat of the Government, should be dis-

— only if some other jurisdietion has an over-

policy interest in “plying its own law.

See In re Paris Air Crash, 399 F. Supp. 732, 745

(C.D. Calif. 1975). Id. at 527.

The surviving spo" e not only inherits the right but

also clearly could be substituted in this action and ap-

peal. Section 12-102 of the D.C. Code makes the Federal

Rules of Civil Procedure applicable to determining the

substitution of parties in civil actions in the District.

Under Rule 25 of the Federal rules, the court may allow

substitution. In cases where the party in interest is the

surviving spouse, there seems little doubt that the court

would recognize the widow(er) as the substitute party.

Indeed by entertaining appeals from surviving spouses,

the MSPB has already done so.

VI. The Claims Court is not an Alternative Forum.

The Government’s brief contained the following state-

ment in footnote 15:

We concede that the Claims Court does have juris-

diction to review the MSPB’s decision in a retire-

ment case in a suit under the Tucker Act (except as

barred by 5 U.S.C. 8347)

18

The statement is offered as part of the Government’s

challenge to the Federal Circuit’s reasoning in Bronger

supra, that there is a presumption in favor of judicial

review

Without some statutory basis, however, the Claims

Court may refuse to act upon the Justice Department

concession that it has jurisdiction to hear appeals in

retirement cases.

A. There is no Statutory Basis for Appellate Review in

the Claims Court.

All appellate jurisdiction over the Merit Systems Pro-

tection Board is vested in the Court of Appeals for the

Federal Circuit.’ The Claims Court is a trial court only.

The Tucker Act* cited by the Government in its brief

does not provide a right of appeal, but rather a right of

action in the first instance.“

Section 7703(b)(1) of 5 U.S.C., as amended in 1982 by the

Federal Courts Improvement Act (Pub. L. 97-164), provides that

a petition to review a final order or final decision of the Merit

Specifically the Court said:

process must be completed before judicial review is appropriate.

10 The Senate Report states that the Federal Circuit “inherits, in

appellate form, substantially all of the jurisdiction of the two

courts abolished in the merger” ‘Emphasis supplied). Senate Re-

port, p. 3. (The two courts are the Court of Claims and the Court

of Customs and Patent Appeals).

Court inherits ]

of Claims which under present practice is exercised largely by the

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The Justice Department does not say why

there is a right of review in the Claims Court over deci-

sions of the Merit Systems Protection Board, or why it

conceded that authority (other than the hope of defeat-

ing any right of appeal in the Federal Circuit).

B. Congress had No Reason to Give Appellate Juris-

diction to the Claims Court.

It would be out of keeping with the stated intention of

Congress in enacting the Federal Courts Improvement

Act to give appellate jurisdiction over retirement cases

to the Claims Court.

Specifically the Senate Report to that statute states

that the new court is designed to “provide reasonably

quick and definitive answers to legal questions of na-

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C. There Would Be Serious Negative Consequence if

the Claims Court were Found to Be the Proper

Forum.

If the Supreme Court finds the Claims Court is the

proper forum and there is no jurisdiction in the Federal

Circuit to hear appeals from the MSPB, great confusion

will reign. It may be too late for some cases now on

appeal to the Federal Circuit to be transferred to the

Claims Court. The proper interpretation of the six year

time limit will raise new questions about the event from

which the six year time limit must be judged (e.g. the

date of the employee’s retirement, the date of his death

where the claimant is a survivor, the date on which the

employee was wronged). Forum shopping will re-emerge

as the public tries to decide whether to initiate a case

before the Claims Court or to go first to the MSPB and

then seek de novo review at the Claims Court. Decisions

will not be uniform, unless they are 1 itinely appealed to

the Federal Circuit from the Claims Court.

All of the difficulties outlined above which would flow

from sending retirement cases to the Claims Court can

be avoided by deciding that the Congress acted in accord-

ance with (1) the language of the statute which provides

for appeals to the Federal Circuit Court except when is-

sues of disability and dependency are at stake, and (2)

the purpose expressed in the legislative history of bring-

ing about uniformity in decision on Federal employment

rights.

22

CONCLUSION

It would do great harm never intended by Congress to

petitioners and untold others to construe the law as the

Government argues. Instead, the Court should find that

a right of appeal to the Federal Circuit has been pro-

vided by Congress in retirement cases, and that such

appeal may be filed by retirees or their survivors.

Respectfully submitted,

EpDITH U. FIERST

(Counsel of Record)

Suite 712

1140 Connecticut Ave., N.W.

Washington, D.C. 20036

(202) 223-3420

ALICE BRANDEIS POPKIN

Suite 222

1015 20th St., N.W.

Washington, D.C. 20036

(202) 293-1721