827 F.Supp. 1409 (E.D.Ark. 1993), LR-C-91-529, Brumley v. United States Dept. of Labor

Docket NºLR-C-91-529.
Citation827 F.Supp. 1409
Party NameGerald L. BRUMLEY, Plaintiff, v. UNITED STATES DEPARTMENT OF LABOR, Defendant.
Case DateAugust 03, 1993
CourtUnited States District Courts, 8th Circuit, Eastern District of Arkansas

Page 1409

827 F.Supp. 1409 (E.D.Ark. 1993)

Gerald L. BRUMLEY, Plaintiff,

v.

UNITED STATES DEPARTMENT OF LABOR, Defendant.

No. LR-C-91-529.

United States District Court, E.D. Arkansas, Western Division.

Aug. 3, 1993

Page 1410

Gerald L. Brumley, pro se.

Margaret Terry, Office of the Sol., U.S. Dept. of Labor, Dallas, TX, and A. Doug Chavis, Asst. U.S. Atty., Little Rock, AR, for defendant.

ORDER

ROY, District Judge.

By previous order, this Court has made a preliminary declaratory finding that the Secretary of Labor has no statutory authority under the Federal Employees Compensation Act to require earnings reports of persons, like the plaintiff, who are in the total disability category. In subsequently filed pleadings, the government has asked the Court to reconsider this finding, as well the Court's earlier determination that it even has jurisdiction to consider the matter. The Secretary moves for dismissal, or alternatively, for summary judgment. Mr. Brumley urges the Court to stand by its previous determinations on both issues and also moves for summary judgment.

After careful reconsideration of the arguments of both sides, the Court now finds that it is without jurisdiction to consider plaintiff's claim. Accordingly, the defendant's motion to dismiss will be granted.

* * * * * *

The Court sets out below some of the factual information found in the previously issued order:

The plaintiff is a person classified as having "total disability" under the Federal Employee's Compensation Act, 5 U.S.C. § 8101 et seq. ("FECA"). This program is administered by the defendant, the United States Department of Labor. 1 The plaintiff is also entitled to annuity payments pursuant to the Federal Retirement Act, 5 U.S.C. § 8301 et seq. ("FERA"). Both FERA and FECA provide that a claimant may not receive benefits from the two programs simultaneously; one must elect from which program he wishes to receive benefits. However, one may generally switch back and forth at his sole discretion as often as desired.

The plaintiff first received benefit payments for temporary total disability on August 8, 1974. For certain periods of time since then, Mr. Brumley elected to receive benefits under FERA from the Office of Personnel Management ("OPM"). However, on or about February 28, 1991, plaintiff informed OPM that he was electing FECA benefits for the period January 5, 1985, through December 30, 1987. Since that time the defendant has not processed Mr. Brumley's election, which has resulted in plaintiff filing this action to compel the Department of Labor to do so. The position the DOL now takes in its briefs is that it is not required to process plaintiff's election of benefits unless and until plaintiff fills out its form "CA-8," which inquires into, among other things, a claimant's employment earnings.

Page 1411

The issue Mr. Brumley wishes the Court to address is whether the DOL has statutory authority to require people classified with "total disability" ratings under FECA to report their earnings from employment or self-employment as a condition to their receiving disability benefits under that Act. The defendant's argument in a nutshell is that it has been given by Congress the power to pass whatever regulations it deems necessary to administer its programs and it has the final say on settling disputes, including this one, relating to those regulations. The plaintiff does not dispute in general the Secretary's authority to promulgate such regulations, nor to "decide all questions arising under" same. 5 U.S.C. § 8145. 2 Instead, plaintiff argues that the particular action the defendant would require of the plaintiff is contrary to the intent of Congress and is not authorized by statute.

* * * * * *

Exceptions to the Preclusion Rule

As mentioned above, the Department points to § 8145 as its statutory authority to "decide all questions arising under" these Acts. It also points to § 8128(b) as precluding this Court from reviewing its decisions. This preclusion statute reads as follows:

The action of the Secretary [of Labor] or his designee in allowing or denying a payment under this subchapter is--

(1) final and conclusive for all purposes and with respect to all questions of law 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. § 8128(b). "The language is clear and its meaning unmistakable: Federal courts have no jurisdiction to review final judgments of the Secretary of Labor and his officers ..." Staacke v. United States Secretary of Labor, 841 F.2d 278, 281 (9th Cir.1988) (emphasis added).

In Staacke, the Court of Appeals for the Ninth Circuit discussed the breadth of this preclusion language, but also discussed two exceptions to the rule.

Significantly, the Supreme Court has singled out section 8128(b) as a model preclusion-of-review statute, noting that Congress uses such "unambiguous and comprehensive" language "when [it] intends to bar judicial review altogether." Lindahl v. Offense of Personnel Management, 470 U.S. 768, 779-80 & n. 13 [105 S.Ct. 1620, 1627 & n. 13, 84 L.Ed.2d 674].

* * * * * *

Even where the statutory provision absolutely bars judicial review, however, there are two situations where review is nonetheless available: First, courts maintain jurisdiction to consider constitutional claims [citation omitted]; and, second, jurisdiction exists where defendant is charged with violating a clear statutory mandate or prohibition....

Staacke, 841 F.2d at 281. Accord, Woodruff v. Department of Labor, 954 F.2d 634 (11th Cir.1992); Sheehan v. United States, 896 F.2d 1168 (9th Cir.1990); and Owens v. Brock, 860 F.2d 1363, 1367 (6th Cir.1988) ("Except for cases alleging that the Secretary violated a claimant's constitutional rights or exceeded the scope of his congressional mandate, courts have unanimously held that section 8128(b) prohibits judicial review...."). But see Paluca v....

To continue reading

Request your trial
2 practice notes
  • 962 F.Supp. 442 (S.D.N.Y. 1997), 96 Cr. 734-01, United States v. Machi
    • United States
    • Federal Cases United States District Courts 2nd Circuit Southern District of New York
    • May 1, 1997
    ...for the Department to make inquiries to determine whether the disability or dependency has ended"); Brumley v. U.S. Dep't of Labor, 827 F.Supp. 1409, 1414 (E.D.Ark.1993) (referring to Secretary's "implied authority" under § 8105 to require temporarily totally disabled individ......
  • 28 F.3d 746 (8th Cir. 1994), 93-3051, Brumley v. United States Dept. of Labor
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Eighth Circuit
    • June 16, 1994
    ...on which a claimant must report his earnings. The district court dismissed Brumley's claim for lack of subject matter jurisdiction 827 F.Supp. 1409. The court held that 5 U.S.C. Sec. 8128(b) precluded review of final and conclusive actions of the Secretary unless DOL violated the Constituti......
2 cases
  • 962 F.Supp. 442 (S.D.N.Y. 1997), 96 Cr. 734-01, United States v. Machi
    • United States
    • Federal Cases United States District Courts 2nd Circuit Southern District of New York
    • May 1, 1997
    ...for the Department to make inquiries to determine whether the disability or dependency has ended"); Brumley v. U.S. Dep't of Labor, 827 F.Supp. 1409, 1414 (E.D.Ark.1993) (referring to Secretary's "implied authority" under § 8105 to require temporarily totally disabled individ......
  • 28 F.3d 746 (8th Cir. 1994), 93-3051, Brumley v. United States Dept. of Labor
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Eighth Circuit
    • June 16, 1994
    ...on which a claimant must report his earnings. The district court dismissed Brumley's claim for lack of subject matter jurisdiction 827 F.Supp. 1409. The court held that 5 U.S.C. Sec. 8128(b) precluded review of final and conclusive actions of the Secretary unless DOL violated the Constituti......