Lepre v. Dep't of Labor

• Decision Date: 21 December 2001
• Docket Number: No. 00-5053,00-5053
• Citation: 275 F.3d 59
• Parties: (D.C. Cir. 2001) GERALD STEVEN LEPRE, APPELLANT v. DEPARTMENT OF LABOR, EMPLOYEE COMPENSATION APPEALS BOARD, APPELLEE
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 59

275 F.3d 59 (D.C. Cir. 2001)

GERALD STEVEN LEPRE, APPELLANT v. DEPARTMENT OF LABOR, EMPLOYEE COMPENSATION APPEALS BOARD, APPELLEE

No. 00-5053

UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 22, 2001

Decided December 21, 2001

Appeal from the United States District Court for the District of Columbia (No. 98cv03137)

Andrew W. Bagley, appointed by the court, argued the cause as amicus curiae on the side of appellant. With him on the briefs was Dana C. Contratto.

Gerald S. Lepre, appearing pro se, was on the briefs for appellant.

Irene M. Solet, Attorney, U.S. Department of Justice, argued the cause for appellee. With her on the brief were Wilma A. Lewis, U.S. Attorney at the time the brief was filed, John C. Hoyle, Assistant U.S. Attorney, and David W. Ogden, Assistant Attorney General, U.S. Department of Justice. Daria J. Zane and R. Craig Lawrence, Assistant U.S. Attorneys, entered appearances.

Before: ROGERS, Circuit Judge, SILBERMAN and WILLIAMS^*, Senior Circuit Judges.

Opinion for the Court filed by Circuit Judge Rogers.

Concurring opinion filed by Senior Circuit Judge Silberman.

This appeal concerns the judicial review provision of the Federal Employees Compensation Act ("FECA"), 5 U.S.C. § 8128(b) (1994), in a case involving the suspension of temporary total disability benefits to an employee for failing to appear for a required medical examination. In rejecting Gerald Steven Lepre's claim that he never received notice of the examination, the Department of Labor's Employees' Compensation Appeals Board ("Board") relied on the presumption that mail sent has been received. Lepre now appeals the dismissal of his complaint, contending that the district court erred in rejecting his due process challenge based on lack of notice and in ruling that § 8128(b) barred judicial review of his claim that the Secretary of the Department of Labor violated the clear statutory mandate of FECA.

We hold that § 8128(b) does not bar judicial review of Lepre's due process challenge to the Department's alleged systemic reliance on the mailbox presumption. We further hold that Lepre's due process challenge is unpersuasive. We do not reach the question of whether § 8128(b) bars judicial review of a claimed violation by the Secretary of a clear statutory mandate because Lepre's complaint fails to allege a facial violation of FECA. Accordingly, we affirm the dismissal of the complaint.

I.

Under FECA, "an employee shall submit to examination by a medical officer of the United States, or by a physician designated or approved by the Secretary of Labor, after the injury and as frequently and at the times and places as may be reasonably required." 5 U.S.C. § 8123 (a). "If the employee refuses to submit to or obstructs an examination, his right to compensation is suspended until the refusal or obstruction stops." Id. § 8123(d).

In November 1993, while Lepre was employed as a federal corrections officer in Otisville, New York, a prisoner struck him with a wooden industrial floor broom, causing a lumbosacral strain. Lepre filed a claim for disability benefits with the Department of Labor's Office of Workers' Compensation Programs ("OWCP"), and was awarded continuation of pay followed by wage loss benefits for temporary total disability under FECA, 5 U.S.C. §§ 8101 et seq. Lepre received regular payments for temporary total disability through December 13, 1994. His benefits were interrupted for approximately ten months in 1995, after which he received compensation for the period ending March 31, 1995. Following another interruption, he eventually received compensation from OWCP for the period between April 1, 1995, and September 17, 1995. Although his benefits were restored as of August 18, 1996, when he indicated that he was willing to submit to a medical examination, Lepre has never received benefits for the period between September 18, 1995, and August 18, 1996, because of OWCP's position that he failed to comply with requests to submit to a second opinion medical examination.

In a letter addressed to "Gerald S. Lepre" dated June 30, 1995, OWCP informed Lepre that in order to "clarify the cause and extent of [your] injury-related impairment," he was to see a physician on August 3, 1995, and that failure to appear "may result in the suspension of your right to compensation under Title 5 U.S.C. 8123(d) until the refusal or obstruction is deducted from the period for which compensation is payable." Lepre did not appear for the medical appointment. In a follow-up letter addressed to "Gerald Lepri" on August 14, 1995, OWCP stated that Lepre needed to explain why he failed to keep the appointment, and that "any action on your part short of full cooperation could result in suspension of benefits." No response to this letter was ever received. Finally, in a letter addressed to "Gerald S. Lepre" dated September 18, 1995, OWCP informed Lepre that his claim for benefits had been disallowed because of his failure to attend or explain his nonattendance at the scheduled medical examination. All three of OWCP's letters were addressed to Lepre at 106 Willow Avenue, Susquehanna, PA 18847.

On September 20, 1995, Lepre wrote to OWCP advising of the problems he was having with his "claim." He attached what he described as "a current set of forms" as well as his affidavit stating that he had complied with all prior medical appointments. Although he did not expressly state in his affidavit that he had not received OWCP's pre-suspension notices, he demanded proof of service and stated that he was not notified, as the claims examiner averred in her findings of fact, of the August 3, 1995 medical examination, and that the presumption that he was notified had prejudiced him. In his affidavit, he also stated that all future correspondence should be sent to him by certified mail, return receipt requested, to:

Gerald S., Lepre, Sui Juris, Juris et de jure

c/o 106 Willow Avenue

34th Judicial district

Susquehanna Depot borough

Susquehanna, Pennsylvania commonwealth Republic state

OWCP treated Lepre's letter as a request for reconsideration of the suspension of his benefits, and denied the request on September 29, 1995. OWCP did not interpret Lepre's letter to indicate his willingness to submit to a medical examination and declined to change Lepre's mailing address, because it would not be recognized by the U.S. Postal Service for lack of a zip code.

Nearly a year later, on August 19, 1996, Lepre appealed to the Employees' Compensation Appeals Board, advising that he had not heard anything from OWCP and was willing to attend a medical examination if notified. The Board denied Lepre's appeal and subsequent request for reconsideration. In determining that Lepre had failed to offer sufficient reasons for failing to cooperate with the second opinion medical examination, the Board relied on the "mailbox rule," pursuant to which:

It is presumed, in the absence of evidence to the contrary, that a notice mailed to an individual in the ordinary course of business was received by that individual. This presumption arises when it appears from the record that the notice was properly addressed and duly mailed. The appearance of a properly addressed copy in the case record, together with the mailing custom or practice of the Office itself, will raise the presumption that the original was received by the addressee. While in his request for reconsideration, [Lepre] requested that all mail be sent to another address, prior to that time, the address of record was correctly used by the Office. As [Lepre] has not provided any evidence to the contrary, it is presumed that he was duly notified of the scheduled appointment.

The Board declined to consider Lepre's contention that the federal statutes applied by OWCP are inapplicable to him as a citizen of the State of Pennsylvania, stating that the Board "has long recognized that it is not the proper forum to challenge the constitutionality of an act of Congress," citing its decision in Christino Rodriguez, 8 ECAB 428 (1955), inasmuch as "[t]he exercise of jurisdiction by the federal courts regarding constitutional issues is calculated to directly uphold and preserve the principle of separation of powers."

Lepre then filed pro se a petition in the district court seeking review of the Board's decision, raising both constitutional and statutory claims. Specifically, Lepre alleged that "he [had] never received proper notice to attend [the] medical examination," had notified the Department of his proper mailing address, and had anticipated that a new date for a medical examination would be set. Asserting that his affidavit claiming non-receipt of the notice was unrebutted, and that the Department failed to offer evidence during the administrative proceedings that the letters had been mailed, much less received, Lepre sought relief in a variety of forms, including the award of the denied benefits, a remand with direction to the Board to reverse its decision, and a declaration that the Secretary of the Department has a duty to reschedule a medical examination once the obstruction is removed or the claimant is willing to submit to such examination. In moving pro se for summary judgment, Lepre challenged the constitutionality of the Board's reliance on the mailbox rule, as well as the adequacy of the administrative review procedures used to determine whether a beneficiary has refused to attend a medical examination, on the ground that they fail to afford a meaningful opportunity to be heard.

The district court denied Lepre's motion for summary judgment and granted the Department's motion to dismiss for lack of jurisdiction under Fed. R. Civ. P. 12(b)(1). Construing § 8128(b) to bar judicial review of the benefits determination, the district court ruled that it had jurisdiction to review Lepre's constitutional claims. Assuming Lepre had a property interest in the continued payment...