73 F.3d 1435 (7th Cir. 1996), 93-3391, Czerkies v. United States Dept. of Labor

Docket Nº:93-3391.
Citation:73 F.3d 1435
Party Name:Gregory R. CZERKIES, Plaintiff-Appellant, v. U.S. DEPARTMENT OF LABOR, Employment Standards Administration and Office of Workers Compensation Programs, Defendants-Appellees.
Case Date:January 17, 1996
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

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73 F.3d 1435 (7th Cir. 1996)

Gregory R. CZERKIES, Plaintiff-Appellant,


U.S. DEPARTMENT OF LABOR, Employment Standards

Administration and Office of Workers Compensation

Programs, Defendants-Appellees.

No. 93-3391.

United States Court of Appeals, Seventh Circuit

January 17, 1996

Argued En Banc Dec. 19, 1995.

Submitted July 14, 1994.

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[Copyrighted Material Omitted]

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Gregory R. Czerkies (argued), Lockport, IL, pro se.

William Kanter, Department of Justice, Civil Division, Appellate Section, Washington, DC, Ernest Y. Ling, Office of the United States Attorney, Civil Division, Chicago, IL, for Department of Labor.

William Kanter, John S. Koppel (argued), Department of Justice Civil Division, Appellate Section, Washington, DC, Lawrence W. Rogers, Department of Labor, Office of the Solicitor, Washington, DC, for Office of Workers' Compensation Programs.

Paul W. Mollica (argued), Meites, Frackman, Mulder & Burger, Chicago, IL, for Paul W. Mollica.


POSNER, Chief Judge.

Federal employees who are injured on the job can apply to the Office of Workers' Compensation Programs in the Department of Labor for workers' compensation benefits, including vouchers to enable the injured employee to pay for medical treatment of the injury. 5 U.S.C. Sec. 8103(b). Mr. Czerkies, the plaintiff in this case, did this, and was turned down. He has tried to challenge the Office's decision by means of a suit in federal district court, in the teeth of a strongly worded judicial door-closing statute. The Federal Employees Compensation Act provides that "[t]he action of the Secretary [of Labor] or his designee in allowing or denying a payment under this [Act] is--(1) final and conclusive for all purposes and with respect to all questions of law and fact; and (2) not subject to review by another official of the United States or by a court by mandamus or otherwise." 5 U.S.C. Sec. 8128(b). We ordered the case to be heard en banc, in accordance with our Circuit Rule 40(e), in order to consider--more precisely, given Marozsan v. United States, 852 F.2d 1469 (7th Cir.1988) (en banc), to reconsider--the applicability of this door-closing provision, and ones like it, to constitutional claims that do not question the validity of a statute or other general rule or regulation. The district judge held that section 8128(b) does not bar constitutional claims, but he dismissed Czerkies' suit anyway, on the ground that the constitutional claim that Czerkies sought to advance was insubstantial. 833 F.Supp. 686 (N.D.Ill.1993).

No statute waives the sovereign immunity of the United States either with respect to claims by its employees for compensation for injuries sustained on the job (beyond what is allowed by the Federal Employees Compensation Act itself, see Lockheed Aircraft Corp. v. United States, 460 U.S. 190, 193-94, 103 S.Ct. 1033, 1036, 74 L.Ed.2d 911 (1983)) or to constitutional

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claims generally. See, e.g., FDIC v. Meyer, --- U.S. ----, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994). Yet the government, usually vigilant to assert its sovereign prerogatives, concedes that sovereign immunity is not a bar to Czerkies' suit. It is right to concede this. The Administrative Procedure Act waives the federal government's sovereign immunity from actions seeking judicial review of federal administrative decisions, provided the action is not one for "money damages." 5 U.S.C. Sec. 702; Rose Acre Farms, Inc. v. Madigan, 956 F.2d 670, 673 (7th Cir.1992). Czerkies claims that he was denied due process of law by the Office of Workers' Compensation Programs when it denied his claim. Although he did not caption his suit as one for judicial review of the denial, he is proceeding pro se and should not be penalized too harshly for failing to characterize his suit in the proper legal terms. If he is seeking damages or other monetary relief he is barred by sovereign immunity; if he is seeking an order that the Office of Workers' Compensation redetermine his entitlement he is not. No lay person could be expected to avoid the banana peel on which Czerkies has slipped. His handwritten complaint does not contain a request for relief as such, but merely a statement that should his case go to trial he would like a jury because he will be seeking punitive damages. Since the full relief sought is not specified, we are not obliged to construe the complaint as seeking only monetary relief, which is to say only the relief to which Czerkies is plainly not entitled. Rather than play "Gotcha!" with someone who through no fault of his own does not know the rules of the game, we should construe his suit as one not just for damages or other monetary relief but also for a direction that the Office of Workers' Compensation Programs process his claim in conformity with due process of law. We should in short construe the complaint as making the same request for dual monetary and equitable relief as in Marozsan, where we held that although the request for monetary relief was barred, the request for equitable relief was not.

The government concedes that Czerkies' suit, because it alleges a constitutional violation, namely a denial of due process, is also not barred by the door-closing statute. The issue is a jurisdictional one, so we are not bound by the government's concession. Neither are we bound by the decision of another circuit. But we should give due weight to the fact that a number of other circuits have agreed that 5 U.S.C. Sec. 8128(b), despite its uncompromising language, does not bar constitutional challenges to decisions by the Office of Workers' Compensation Programs. Brumley v. U.S. Dept. of Labor, 28 F.3d 746, 747 (8th Cir.1994) (per curiam); Benton v. United States, 960 F.2d 19, 22 (5th Cir.1992) (per curiam); Woodruff v. U.S. Dept. of Labor, 954 F.2d 634, 639 (11th Cir.1992) (per curiam); Owens v. Brock, 860 F.2d 1363, 1367 (6th Cir.1988); Paluca v. Secretary of Labor, 813 F.2d 524, 525-26 (1st Cir.1987); Rodrigues v. Donovan, 769 F.2d 1344, 1347-48 (9th Cir.1985). (A panel of this court cited three of these decisions approvingly in Ezekiel v. Michel, 66 F.3d 894, 898 (7th Cir.1995).) No circuit has disagreed. We ought not go out of our way to create intercircuit conflicts. United States v. Hill, 48 F.3d 228, 232 (7th Cir.1995).

Addressing the same issue under a similar statute (as noted in Paluca v. Secretary of Labor, supra, 813 F.2d at 526), we held in Marozsan that the door indeed remained open to constitutional claims. Marozsan, like Czerkies, claimed that he had been denied due process of law in an administrative proceeding in which he was seeking benefits (veterans' benefits in that case). He sought benefits plus a "directive" that the Veterans Administration comply with the due process clause, 852 F.2d at 1471 n. 3; he did not seek injunctive or class-wide relief. Id. at 1487-89 (dissenting opinion). Marozsan was an en banc decision, and nothing has happened since it was decided that would justify our overruling it. EEOC v. Metropolitan Educational Enterprises, Inc., 60 F.3d 1225 (7th Cir.1995); id. at 1230 (concurring opinion). It is not as if a decisional tide were running against Marozsan. Subsequent decisions on whether door-closing statutes close the door to constitutional claims are consistent with Marozsan, as well as with the cases under 5 U.S.C. Sec. 8128(b) that we have cited (several of which were decided after Marozsan ).

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Two are decisions of the Supreme Court. Dalton v. Specter, --- U.S. ----, ----, ----, 114 S.Ct. 1719, 1726, 1728, 128 L.Ed.2d 497 (1994); McNary v. Haitian Refugee Center, Inc., 498 U.S. 479, 491-94, 111 S.Ct. 888, 895-97, 112 L.Ed.2d 1005 (1991). The others are decisions of our sister circuits. Olenhouse v. Commodity Credit Corp., 42 F.3d 1560, 1572-73 (10th Cir.1994); Mace v. Skinner, 34 F.3d 854, 858-59 (9th Cir.1994); Schneider v. United States, 27 F.3d 1327, 1332 (8th Cir.1994); Shafii v. PLC British Airways, 22 F.3d 59 (2d Cir.1994); Concerned Citizens of Nebraska v. NRC, 970 F.2d 421, 424-25 (8th Cir.1992); Reardon v. United States, 947 F.2d 1509, 1514-17 (1st Cir.1991) (en banc); Edelman v. Western Airlines, Inc., 892 F.2d 839, 845-47 (9th Cir.1989); Kicking Woman v. Hodel, 878 F.2d 1203, 1206-07 (9th Cir.1989).

Prior to our decision in Marozsan some courts had held that the veterans' benefits law did preclude constitutional challenges. E.g., Higgins v. Kelley, 824 F.2d 690 (8th Cir.1987) (per curiam). But we have found only two cases decided since Marozsan that even appear to be inconsistent with our decision, Baez v. INS, 41 F.3d 19, 24 (1st Cir.1994), and Sugrue v. Derwinski, 26 F.3d 8, 11 (2d Cir.1994), and both are distinguishable. Baez involved a statute that closed the door to judicial review of deportation orders after the order is executed; it was not a door-closing statute, but a statute dealing with the timing of review. One is not surprised, therefore, that the court did not even cite its earlier decisions in Paluca or Reardon. Sugrue involved the same statute as Marozsan, but all it held is that redescribing a benefits claim as a constitutional claim will not get the claimant out from under the bar of the door-closing statute. "[C]ourts do not acquire jurisdiction to hear challenges to benefits determinations merely because those challenges are cloaked in constitutional terms." 26 F.3d at 11. A "rhetorical cover," id., will not open the door.

The circuits are in agreement: door-closing statutes do not, unless Congress expressly provides, close the door to constitutional claims, provided that the claim is colorable and the claimant is seeking only a new hearing or...

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