Brumley v. US Dept. of Labor

• Decision Date: 03 August 1993
• Docket Number: No. LR-C-91-529.,LR-C-91-529.
• Parties: Gerald L. BRUMLEY, Plaintiff, v. UNITED STATES DEPARTMENT OF LABOR, Defendant.
• Court: U.S. District Court — Eastern District of Arkansas

827 F. Supp. 1409

Gerald L. BRUMLEY, Plaintiff, v. UNITED STATES DEPARTMENT OF LABOR, Defendant.

No. LR-C-91-529.

United States District Court, E.D. Arkansas, W.D.

August 3, 1993.

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.

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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.

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. Secretary, 813 F.2d 524 (1st Cir.1987), cert. denied sub. nom Roberts v. Secretary of Labor, 484 U.S. 943, 108 S.Ct. 328, 98 L.Ed.2d 355 (1987) (holding that though a district court has jurisdiction over constitutional challenges to the Secretary's actions administering FECA, no jurisdiction exists to hear challenges based on statutory grounds).

Therefore, in order for this Court to be able to exercise jurisdiction over the instant case, Mr. Brumley's claim must come under one of these two specific exceptions. Otherwise, the Court has no choice but to dismiss his case.

1. Constitutional claims

Plaintiff argues that though Congress specifically granted the Secretary the authority under 5 U.S.C. § 8106 to order a partially disabled employee to report his earnings from employment, any similar grant of authority is conspicuously absent from the companion statute, § 8105, dealing with people determined to have total disability.³ He argues that the only possible conclusion that can be drawn is that Congress obviously did not want the DOL to have the authority to make such an inquiry, and in fact has withheld that authority from DOL.

The plaintiff has sometimes characterized his objection as a constitutional one; the Department exercising authority not granted by Congress would be a "separation of powers" type violation. However, the Court believes it more appropriate to view Mr. Brumley's complaint as a charge that the DOL has "violated a clear statutory mandate or prohibition...." Staacke, at 281.

If, in the present context, exercising authority withheld by Congress (plaintiff's allegation) is not violating a statutory mandate, then the term has no meaning to this Court. Even if one were to concede that what plaintiff has alleged is technically a constitutional claim as well as a statutory one (as perhaps is true in a broad sense) it clearly is not the type of constitutional claim found in the reported cases.

For example, in Woodruff, the plaintiff alleged a deprivation of a property interest without due process, as well as a violation of the separation of powers doctrine due to the government's refusal to follow established caselaw. In Paluca, 813 F.2d 524, the 1st Circuit found that jurisdiction existed for the district court to consider the merits of plaintiff's equal protection challenge. Mr. Brumley's allegation is nothing like those.

In the context of determining whether jurisdiction exists in FECA complaints brought in district court, appellate courts clearly recognize a distinction between constitutional claims and "statutory" ones. It is the opinion of this Court that if the distinction is to have any meaning, then what constitutes a constitutional claim must involve more than what Mr. Brumley has alleged in this case. Thus, the Court holds that for this Court to have jurisdiction over this cause, the Court must find that the action of the DOL which plaintiff complains of here violates a "clear statutory mandate or prohibition."

2. Clear statutory mandate or prohibition

The issue before the Court is a limited one:

Our task is limited to determining whether the statute in question contains a clear command that the Secretary has transgressed. Where, as here, the statute is capable of two plausible interpretations, the Secretary's decision to adopt one interpretation over the other cannot constitute a violation of a clear statutory mandate.

Staacke, 841 F.2d at 282. "Our task is not to develop our own interpretation of a statute, nor is it to choose the best of two competing interpretations." Woodruff, 954 F.2d at 640.

There seems to be little guidance in the reported cases for determining whether certain statutory language constitutes a "clear statutory mandate or prohibition." The Court is tempted to adopt some variation of Mr. Justice Stewart's "I know it when I see it" test.⁴ Perhaps, "if there is any doubt whether the language is `clear,' then it isn't."

Instead, in making the determination of whether §§ 8105 and 8106 contain a "clear statutory mandate or prohibition" that has been violated, this...