# Opposition Brief — Pion v. Office of Personnel Management > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_0171%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1987 - **Citation:** 481 U.S. 1037 ## Text (y) APR 13 8? Iu the Supreme Court of the United States OCTOBER TERM, 1986 RUSSELL N. PION, PETITIONER v. OFFICE OF PERSONNEL MANAGEMENT ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT BRIEF FOR THE RESPONDENT IN OPPOSITION CHARLES FRIED Solicitor General RICHARD K. WILLARD Assistant Attorney General DAVID M. COHEN ROBERT A. REUTERSHAN STEPHEN J. MCHALE Attorneys Department of Justice Washington, D.C. 20530 (202) 633-2217 SE ET TR REET AED EET — QUESTION PRESENTED Whether the Merit Systems Protection Board abused its discretion by assigning to petitioner the burden of proving his continuing eligibility for civil service disability retirement benefits. (1) TABLE OF CONTENTS Page III in ciscninenicesncsasecnnssanensascterestantencesvennecsenseacstiososcens 1 Neen ee anineeasloaeninandigibienimieiinneiee 1 Neen a eiadpbisusnceninennnteniieninn 2 ee eee aT $ i gcsnaddsvankoies vannsiuniansnsninnsiiinwenbenienebeseeses 4 ed sipen ecleptasneeansignouenatipepnecnmaene 14 TABLE OF AUTHORITIES Cases: Chavez v. OPM, 6 M.S.P.R. 404 (1981) .................--- 7 Heckler v. Kuehner, 469 U.S. 977 (1984) ................. 10 Heckler v. Lopez, 469 U.S. 1082 (1984) ................... 10 Lee v. OPM, 762 F.2d 987 (Fed. Cir. 1985) ............. 13 Lindahl v. OPM, 470 U.S. 768 (1985), on remand, 776 F.2d 276 (Fed. Cir. 1985), cert. denied, No. 85-6214 (May 12, 1986) ......................--..... 4, 5, 6, 7, 12, 18 Matthews v. Eldridge, 424 U.S. 319 (1976) -........... 9 McAulay v. Heckler, 749 F.2d 1500 (11th Cir. Neen sc onicnabaeriinnanvarnntent 9 Prestien v. MSPB, 8 M.S.P.R. 698 (1981) -.............. 5,8 Simpson v. Schweiker, 691 F.2d 966 (11th Cir. Ns saicn aishinsiogianeas 9 Scroggins v. United States, 397 F.2d 295 (Ct. Cl.), cert. denied, 393 U.S. 952 (1968) .........................- 4 Smith v. OPM, 760 F.2d 244 (Fed. Cir. 1985) _...... 13 Smith v. OPM, 784 F.2d 397 (Fed. Cir. 1986) _...... 13 United States v. Erika, Inc., 456 U.S. 201 (1982)... 7 United States v. New York, N.H. & H.R.R., 355 i scamniendeaninnive 8 Vaughn v. Heckler, 727 F.2d 1040 (11th Cir. sec unvanbcnennpaasverioe 9 Warren Vv. Bowen, 804 F.2d 1120 (9th Cir. 1986)... 11 . (111) IV Statutes and rule: Page Civil Service Reform Act of 1978, Pub. L. No. 95- BE, GN BIE OE I. assists iccrnincsstene 2, I isa cesceestieticleibae aipamielalniniie OE, TD oO CD aecesectss co ectccvesmnoveneneaccenas Rt TRE 5 | SUEDE mNSnranEn nuns sarsorm Civil Service Retirement Act, 5 U.S.C. 8301 ef seq.: IID osc iciceicintineshanceleiedeieanneinencedsinaeianes 2 SS asailahiateamieanaenes 2,5 RRR TIDE ne Ree cee tent Wire nt cna 5 eI ic vscccncuvieskcovenauumaanweondaciaspasions 5 3 7 7 eS CO I aiecnsicatansancsoncnignciontsSienabiancnuietd 5, 12,1 Be IER ED ssihnccbncie ssa cncntencrencsaencctenperenaes 5, eee I ii rcieinacce eientainbarecntenannnses 6, Social Security Disability Benefits Reform Act of 1984, Pub. L. No. 98-460, 98 Stat. 1794, 42 U.S.C. CE FI, TE Gee, OS OI vein caceiveceretenetarweweeeerennnse 9 § 2(a), 98 Stat. 1794 (42 U.S.C. -(Supp. III) 8 RS REA ROR RIE. «OSS SNA Oe 9,10 § 2(a), 98 Stat. 1794 (42 U.S.C. (Supp. III) ef REPRESSES REE Seto eaent er en 10 § 2(d) (2) (C), 98 Stat. 1797 (42 U.S.C. ad cciaebiine 10 OO a sg sis siesaniosssacenSevecicusiacmantionsTans 4 Oe rte MI I OED I onsen senrerresoscosinens 11 42 U.S.C. (Supp. IIT) 423(d) (5) (A) ..........02 ww... 9 ii cetiemidoninion 4 Miscellaneous: H.R. Conf. Rep. 98-1039, 98th Cong., 2d Sess. I Sekitsicttes ie ce ee aca ok ee ak 11 H.R. Rep. 98-618, 98th Cong., 2d Sess. (1984) ........ 11 S. Rep. 98-466, 98th Cong., 2d Sess. (1984) -..00....... 11 Iu the Supreme Court of the United States OCTOBER TERM, 1986 No. 86-1224 RUSSELL N. PION, PETITIONER Vv. OFFICE OF PERSONNEL MANAGEMENT ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT BRIEF FOR THE RESPONDENT IN OPPOSITION OPINIONS BELOW The opinion of the court of appeals (Pet. App. A8-A9) and the opinion of the Merit Systems Pro- tection Board (Pet. App. Al-A7) are unreported. JURISDICTION The judgment of the court of appeals was entered on October 31, 1986, and the petition for a writ of certiorari was filed on January 27, 1987. The juris- diction of this Court is invoked under 28 U.S.C. 1254(1). (1) 2 STATUTE INVOLVED Relevant portions of 5 U.S.C. 8337 and 8347 are reproduced at Pet. App. A10-A12. STATEMENT 1. Petitioner was employed by the Social Security Administration as a GS-10 social insurance repre- sentative. On April 29, 1977, the United States Civil Service Commission granted petitioner’s application for civil service disability retirement benefits because of his poor eyesight. Eight years later, while peti- tioner was gainfully employed as a Senior Claims Examiner for the State of Rhode Island, the Office of Personnel Management (OPM) notified him that his disability annuity would be terminated. This no- tice was based on OPM’s conclusion that petition- er’s medical condition had improved to the point where he no longer was disabled within the meaning of the Civil Service Retirement Act, 5 U.S.C. 8337 (d).1 OPM denied petitioner’s request for reconsid- eration on July 25, 1985. Pet. App. A2. 2. Petitioner then sought review by the Merit Systems Protection Board (MSPB). In a decision dated September 25, 1985, a MSPB presiding official affirmed OPM’s decision, holding that petitioner had failed to sustain his burden of establishing that he remained disabled from providing useful and effi- cient service in his former position (Pet. App. Al- A5). Specifically, the presiding official found that 1 Pursuant to the Civil Service Reform Act of 1978, Pub. L. No. 95-454, 92 Stat. 1111 et seq., responsibility for determin- ing eligibility for disability retirement benefits was trans- ferred from the Civil Service Commission to OPM. See 5 U.S.C. 8347. 3 petitioner’s eyesight had improved significantly since his retirement (7d. at A3) : The agency submitted a June 17, 1985 letter from Dr. Paul Sydlowski, M.D., a specialist in Ophthalmology. Dr. Sydlowski indicated that [petitioner] had been his patient for eight years. In 1977 [petitioner’s] vision was 20/400 and 20/200. Cataract surgery was performed in 1977. [Petitioner] had four other operations on his eye resulting in a 20/25 range in his one good eye (the other remained 20/400). He indi- cated [petitioner] could not drive because he was legally blind. He noted [petitioner] could be gainfully employed without reliance on his loss of peripheral field. The presiding official also reviewed the evidence con- cerning petitioner’s leg problem and concluded (id. at A3-A4): Based upon the record before me, I find that [petitioner] has not shown he is disabled for useful and efficient service in the position of So- cial Insurance Representative. Dr. Sydlowski indicated [petitioner’s] eye problem would not keep him from being gainfully employed. Addi- itonally, [petitioner’s] leg problem did not pre- vent him from successfully working at a seden- tary job for several years for the State of Rhode Island. [Petitioner’s] former position of Social Insurance Representative is a sedentary position much like the position he has been performing with Rhode Island. Although [petitioner] cred- ibly testified about the differences in the two jobs, this evidence is insufficient without medical evidence showing he was unable to perform the duties of his former federal position. Therefore, I find he has not shown that his medical prob- 4 lem would keep him from performing his duties of Social Insurance Representative. The full MSPB denied petitioner’s petition for re- view on January 7, 1986 (Pet. App. A6-A7). 3. In a brief unpublished opinion dated October 31, 1986, the court of appeals affirmed the MSPB’s decision (Pet. App. A8-A9). The court of appeals noted that, under Lindahl v. OPM, 470 U.S. 768 (1985), judicial review of MSPB decisions in civil service disability retirement cases is limited to deter- mining “whether ‘there has been a substantial de- parture from important procedural rights, a miscon- struction of the governing legislation, or some like error “going to the heart of the administrative de- termination.”’” Pet. App. A9 (quoting 470 U.S. at 791 and Scroggins v. United States, 397 F.2d 295, 297 (Ct. Cl.), cert. denied, 393 U.S. 952 (1968) ). In this case, the court concluded, “such an error has not been established” (Pet. App. AQ). ARGUMENT The unpublished and nonprecedential decision of the court of appeals is correct and does not conflict with any decision of this Court or of another court of appeals.* Nor does it present any issue of special importance warranting review by this Court. The Federal Circuit has exclusive jurisdiction to enter- tain appeals from MSPB decisions in civil service retirement cases. See 5 U.S.C. 7703(b)(1) and 28 U.S.C. 1295(a) (9). Accordingly, judicial review of 2? Rule 18(a) of the Federal Circuit’s Rules provides that “To]pinions designated as unpublished shall not be employed as precedent by this court, nor may they be cited by counsel as precedent, except in support of a claim of res judicata, collateral estoppel, or law of the case.” 5 the procedures followed by the MSPB in its adjudi- cation of such cases is a matter within the special competence of the Federal Circuit. This Court re- cently denied review of the Federal Circuit’s decision sustaining the MSPB’s general approach to the allo- cation of the burden of proof in civil service disabil- ity retirement cases. See Lindahl v. OPM, 776 F.2d 276 (1985), cert. denied, No. 85-6214 (May 12, 1986). There is no reason for a different disposition of petitioner’s challenge to the particular application of that general approach in the context of an annui- tant’s continuing eligibility for benefits. 1. Petitioner contends (Pet. 5-18) that the MSPB acted arbitrarily and capriciously in following a rule of decision under which an annuitant bears the bur- den of establishing that he continues to be disabled. The adjudicatory approach that petitioner challenges, however, is fully supported by the text of the Civil Service Retirement Act and the opinions of this Court and the Federal Circuit in Lindahl. Moreover, that approach was followed by the MSPB’s predeces- sor agency, the Civil Service Commission, and it was formally carried forward by the MSPB almost six years ago in Prestien v. MSPB, 8 M.S.P.R. 698 (1981). This established practice clearly is not arbi- trary or capricious. a. The MSPB’s review of civil service disability retirement claims is governed by 5 U.S.C. 8347. Sub- sections (a) through (c) of Section 8347 provide for OPM to administer the retirement program, to pre- scribe regulations for that purpose, and to adjudi- cate claims. Subsection (d)(1) then provides that, “[s]ubject to paragraph (2) of this subsection,” a decision by OPM on an application for retirement benefits “may be appealed to the Merit Systems Pro- 6 tection Board under procedures prescribed by the Board” (emphasis added). The emphasized phrase makes it clear that Congress did not impose rigid procedural rules upon the MSPB, but rather vested the Board with broad discretion to adopt such rules as it finds appropriate for the adjudication of civil service retirement cases. Accordingly, as the court of appeals correctly held in Lindahl v. OPM, 776 F.2d at 278-279, the MSPB was not barred by the Civil Service Retirement Act from allocating the burden of proof to the former employee in such cases. This conclusion is confirmed by reference to para- graph (2) of Section 8347(d). That paragraph pro- vides that the “procedures under section 7701” of Title 5 shall apply in a limited class of cases, namely, those in which the agency has filed an application for disability retirement of an employee based upon the employee’s mental condition. One of the “procedures under section 7701” that is thereby incorporated is set forth in Section 7701(c)(1)(B), which permits the MSPB to sustain an agency’s decision only if it is supported by a preponderance of the evidence; that provision has the effect of placing the burden of proof on the agency in hearings regarding adverse actions and similar cases governed by 5 U.S.C. 7701. Thus, when Congress enacted Section 8347(d) (2) in 1980, it determined that agency-initiated disability retirements based on an alleged mental impairment were sufficiently like adverse actions to warrant ap- plication of the same procedural protections that em- ployees are afforded in adverse actions. See Lindahl v. OPM, 470 U.S. at 783-785. But Congress has re- frained from imposing the burden of proof on the agency in any other civil service retirement cases. This omission strongly supports the reasonableness 7 otf the MSPB’s administrative decision not to impose the burden of proof on OPM in civil service disabil- ity retirement cases generally. Compare United States v. Erika, Inc., 456 U.S. 201, 206-208 (1982). b. In accordance with the text of the governing statutes, the Federal Circuit, on remand from this Court’s decision in Lindahl, sustained the MSPB’s practice of placing the burden of proof upon new applicants for retirement benefits. That policy in turn had been formally articulated by the Board in Chavez v. OPM, 6 M.S.P.R. 404 (1981). The Board there reasoned that (1) the governing statutes do not mandate any particular allocation of the burden of proof in retirement cases; (2) the longstanding administrative practice has been to place the burden upon the applicant to establish his eligibility for re- tirement benefits; (3) the burden of proof is prop- erly placed upon the person seeking entitlement to a statutory benefit; and (4) it is reasonable to place the burden upon the applicant because he normally possesses or has ready access to the evidence relating to his medical condition. Chavez, 6 M.S.P.R. at 414- 416. Moreover, as the court of appeals noted in Lindahl, if Congress had desired to alter the prior administrative practice and place the burden of proof upon OPM, Congress could easily have done so when it enacted the Civil Service Reform Act in 1978. See 776 F.2d at 279-280 (contrasting 5 U.S.C. 8847(d) (1) and (d)(2), discussed at page 6, supra). The fact that Congress declined to dis- turb the prior administrative practice lends addi- tional support to the reasonableness of the MSPB’s overall approach. ce. Consistent with its prior decision in Lindahl, the court of appeals in the instant case correctly 8 sustained the MSPB’s conclusion that the burden of proof on the question of eligibility for disability re- tirement benefits should be allocated to the former employee, not only when he first applies for benefits, but also when his continuing eligibility is at issue. In following that approach in this case, the Board relied upon its earlier decision in Prestien v. OPM, 8 M.S.P.R. 698 (1981), where it reasonably deter- mined that the rationale of Chavez also applies in the present context. The MSPB noted in Prestien that the practice of the Civil Service Commission had been to require the annuitant to establish his continuing eligibility for benefits. 8 M.S.P.R. at 704.2% In Prestien, as in Chavez, the MSPB found no indication that Congress intended to overturn that settled practice when it enacted the Civil Service Reform Act of 1978. See 8 M.S.P.R. at 704-705 & n.7. And in Prestien, as in Chavez, the Board reasonably concluded that it was fair to place the burden upon the annuitant because he has primary access to the evidence necessary to establish his continuing disability (8 M.S.P.R. at 704-705). Compare United States v. New York, N.H. & H.R.R., 355 U.S. 258, 256 n.5 (1957). d. The reasonableness of the MSPB’s approach is further supported by administrative experience and 3 Petitioner asserts in passing (Pet. 13-14) that the Civil Service Commission in fact did not place the burden of proof on the annuitant to establish his continuing eligibility. How- ever, petitioner offers no rebuttal to the MSPB’s reading of the Commission’s precedents. In any event, the assessment of the past practices of the responsible agency (and of its prede- cessor) is a matter properly committed to that agency’s ex- pertise, and petitioner has not shown that the MSPB’s deter- mination in Prestien was clearly erroneous. 9 congressional action under the Social Security dis- ability program. This Court recognized in Mathews v. Eldridge, 424 U.S. 319, 336 (1976), that that pro- gram places the burden on the claimant “to establish initial and continued entitlement to disability bene- fits’ (emphasis added). The claimant’s burden of proof in this regard is prescribed by 42 U.S.C. (Supp. III) 423(d)(5)(A), which provides that “[a]n in- dividual shall not be considered to be under a dis- ability unless he furnishes such medical and other evidence of the existence thereof as the Secretary may require.” Ignoring both Mathews v. Eldridge and Section 423(d)(5)(A), petitioner argues (Pet. 11-12) that the burden is