Gregory R. Czerkies v. U.S. Department of Labor, Employment Standards Administration and Office of Workers Compensation Programs

73 F.3d 1435, 1996 U.S. App. LEXIS 534, 1996 WL 15556

• Court: Court of Appeals for the Seventh Circuit
• Decided: January 17, 1996
• Docket: 93-3391
• Status: Published

Opinions

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. § 8103(b). Mr. CzerMes, 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 Ms 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 Umted States or by a court by mandamus or otherwise.” 5 U.S.C. § 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 CzerMes’ suit anyway, on the ground that the constitutional claim that CzerMes sought to advance was insubstantial. 833 F.Supp. 686 (N.D.Ill.1993).

No statute waives the sovereign immunity of the Umted 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 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. § 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. § 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 intereircuit 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. § 8128(b) that we have cited (several of which were decided after Marozsan). 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 eases 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 Patuca or Reardon. Sugrue involved the same statute as Maroz-san, 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. “[Cjourts 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 other process rather than a direct award of money by the district court. One does not, of course, need a statute to close the doors of the court to claims that are insubstantial, which is all that Sugrue holds.

Most of the decisions that deny judicial review of constitutional claims concern requests for monetary relief, where the sovereign immunity of the federal government is a bar unless there is a statutory waiver. Thunder Basin Coal Co. v. Reich, — U.S. -, -, 114 S.Ct. 771, 779-81, 127 L.Ed.2d 29 (1994), did hold that a door-closing statute in the mine-safety act blocked a nonmonetary due process claim, but the circumstances were special. The agency that reviewed the mine operators’ claims was independent of the agency that regulated mine safety. This independent agency had addressed constitutional claims previously, and — the most important point — its decisions were reviewable by a federal court of appeals. All these features are missing from the statutory scheme in this case. If Czerk-ies cannot maintain this suit, he has no administrative or judicial forum in which to litigate his claim that he was denied his constitutional right to due process of law. Barmet Aluminum Corp. v. Reilly, 927 F.2d 289, 293 (6th Cir.1991), which found a statutory bar to pre-enforcement constitutional challenges in one of the environmental-protection statutes, is again different; the door remained open to post-enforcement constitutional challenges. Barmet is a timing case, like Baez. All doors are closed to Czerkies if the government’s jurisdictional concession is declined.

We do not think that the only kind of constitutional challenge not barred by a door-closing statute is a challenge to a statute or regulation, the kind of challenge involved in Johnson v. Robison, 415 U.S. 361, 94 S.Ct. 1160, 39 L.Ed.2d 389 (1974). Among points emphasized in Johnson and equally applicable to the present case was the fact that the Veterans Administration was not competent to decide constitutional issues and that the history of the statute revealed no intention to foreclose constitutional challenges. The Supreme Court has read Johnson to stand for. the broad principle that “where Congress intends to preclude judicial review of constitutional claims its intent to do so must be clear ... in part to avoid the ‘serious constitutional question’ that would arise if a federal statute were construed to deny any judicial forum for a colorable constitutional claim.” Webster v. Doe, 486 U.S. 592, 603, 108 S.Ct. 2047, 2053, 100 L.Ed.2d 632 (1988). The majority opinion in Marozsan does not read Johnson narrowly. 852 F.2d at 1472-77. The opinion does not describe, let alone characterize as systemic or general, Marozsan’s specific constitutional claims. The opinion contains an illustration of those claims — a claim that the Veterans Administration employed a quota system that limited the number of benefits claims that could be granted, id. at 1471 — but no suggestion that it makes a difference whether this is typical of Maroz-san’s claims. As an a fortiori example of a constitutional claim that would not be barred by the door-closing statute, the court instances a claim of racial discrimination in the grant of benefits. Id. at 1478. None of the grounds that Marozsan offers for the conclusion that constitutional claims are not barred has anything to do with whether the claim is of a systemic violation of the applicant’s constitutional rights or of an idiosyncratic violation by a particular administrative law judge or other administrative officer, and the dissenting opinion was emphatic that Marozsan was not seeking any sort of systemic relief; he just wanted additional benefits for himself. Id. at 1487-89. Marozsan could not get the benefits decision as such reviewed, id. at 1471 n. 3, but only an order that his benefits be recomputed in an administrative proceeding free from constitutional error. Czerkies can get no more. But, like Marozsan, he is entitled to an administrative proceeding uncontaminated by a violation of the Constitution. Whether he had such a proceeding is a separate question, the question on the merits.

We have gone on at such length about Marozsan because we take seriously our duty to stand by our precedents — a duty the proper discharge of which requires, of course, that we get clear the scope of the precedent. Marozsan establishes that door-closing statutes do not shut off nonmonetary constitutional claims. But quite apart from the authority of that decision, the fact that Czerkies is challenging the specific handling of his case by the administrative agency rather than mounting a general challenge to the procedures employed by the agency in all cases is of no moment. Webster v. Doe, supra, makes this clear. The distinction has it is true been emphasized in some noncon-stitutional eases, such as United States v. Erika, Inc., 456 U.S. 201, 102 S.Ct. 1650, 72 L.Ed.2d 12 (1982). The Supreme Court concluded in that case that Congress had intended to preclude judicial review of a class of individual Medicare claims. The plaintiff had lodged constitutional as well as noneonstitu-tional objections to the denial of its Medicare claim. The court of appeals had dismissed the constitutional objections as insubstantial, whereupon the plaintiff had abandoned them, and they played no role in the Supreme Court’s consideration of the case. See id. at 206 n. 5, 102 S.Ct. at 1653 n. 5. The only issue decided by the Court was whether the plaintiff was entitled to judicial review of the noneonstitutional grounds.

We must not ignore relevant differences between the statutes involved in Marozsan and in the present case. It is possible that while Marozsan was not barred by the door-closing provision of his statute, Czerkies is by his different statute. The statute in Mar-ozsan closed the door to judicial review of decisions “under any law administered by the Veterans’ Administration providing benefits for veterans,” and the due process clause is not such a law. A similar qualification is not explicit in the Federal Employees Compensation Act. But it may be implicit in the reference to the Secretary’s action in awarding or denying compensation “under this [Act].” His interpretation and application of the Act are not to be questioned, but not his interpretation and application of the Constitution.

Examination of the history of the federal employees’ compensation law reveals the limited scope of the door-closing provision. The original statute, enacted in 1916, had contained no provision with respect to judicial review. An amendment made in 1924 provided a limitation similar to, though less sweeping than, the one in the veterans’ law at issue in Marozsan. It said that “in the absence of fraud or mistake in mathematical calculation, the finding of facts in, and the decision of the commission [the predecessor to the Office of Workers’ Compensation Programs] upon, the merits of any claim presented under or authorized by this Act if supported by competent evidence shall not be subject to review by any other administrative or accounting officer, employee, or agent of the United States.” 43 Stat. 389 (1924). The present language came in by a further amendment in 1945. But it came in by a curious route. The statute of which this amendment was a part was concerned with a variety of special problems arising out of World War II. Among the most exotic was the problem of determining and administering compensation for injuries sustained by noncitizen employees of the federal government who were working outside the United States when injured. Section 4 of the Act of July 28, .1945, 59 Stat. 503-04 (1945), made provision for this problem mainly by authorizing the commission or its designees to base compensation awards on local laws or custom, and near the end tacked on the sentence about the commission’s or desig-nees’ action being final and conclusive that appears in the current statute. Congress did not delete the language of the 1924 amendment, which appeared in another section of the existing statute, not the one amended by section 4 of the 1945 statute. So far as appears, the 1945 door-closing provision was intended to be limited to awards under section 4, the section of which it was the penultimate sentence — odd placement if the provision was intended to govern all claims under the compensation law. The deletion of the door-closing provision that had been added to the compensation act by the 1924 amendment did not occur until 1966, when, as part of a series of purely technical amendments, that provision was “omitted as included in” the sentence in section 4 of the 1945 statute. H.R.Rep. No. 901, 89th Cong., 1st Sess. 146 (1965); see 80 Stat. 545-46 (1966).

There is no indication at any stage in the evolution of the statute that Congress meant to enlarge the scope of the original limitation, let alone to curtail constitutional remedies. The only pertinent discussion is found in a letter from the commission’s chairman which was made a part of the Senate report on the 1945 statute. The letter suggests that the door-closing provision in section 4 was intended to promote finality in the payment of, for example, blood money (!) in lieu of conventional compensation to foreign employees in societies in which failure to pay compensation in accordance with local custom would upset the employee and the local authorities. S.Rep. No. 421, 79th Cong., 1st Sess. 5-6 (1945). It does not appear that the provision was intended to apply to claims by U.S. citizens at all, and the substitution decades later of this provision for the more narrowly worded language of the 1924 amendment may well have been an accident. Constitutional rights should' not hang by such threads.

Each statute must stand on its own two feet, but each is informed by the presumption already mentioned against slamming the courthouse door in the face of holders of constitutional claims. Webster v. Doe, supra, 486 U.S. at 603, 108 S.Ct. at 2053; Gutierrez de Martinez v. Lamagno, - U.S. -, -, 115 S.Ct. 2227, 2231, 132 L.Ed.2d 375 (1995); Califanc v. Sanders, 430 U.S. 99, 109, 97 S.Ct. 980, 986, 51 L.Ed.2d 192 (1977). These decisions put in perspective the Supreme Court’s dictum in Lindahl v. Office of Personnel Management, 470 U.S. 768, 779-80 and n. 13, 105 S.Ct. 1620, 1627 and n. 13, 84 L.Ed.2d 674 (1985); see also Southwest Marine, Inc. v. Gizoni, 502 U.S. 81, 90, 112 S.Ct. 486, 493, 116 L.Ed.2d 405 (1991), that the statutes involved in Czerkies’ case and Marozsan’s “bar judicial review altogether.” Neither Lindahl nor Southwest Marine was a constitutional case. When all that a claimant is seeking is benefits on the basis of an error of fact or law by the administering agency, judicial review is barred altogether.

The history of the Federal Employees Compensation Act provides no basis for rebutting the presumption of judicial review of constitutional claims. It is distasteful to suppose that an administrative agency would claim to receive from Congress by sheer inadvertence a license to ignore the Constitution. It is not surprising that the government makes no such claim in this case. Our decision in Marozsan emphasized the presumption against denying all judicial remedies for violations of the Constitution by federal agencies, noting the anomalous consequences of such a denial. 852 F.2d at 1476-79. The anomalies would be even greater here because Marozsan- at least had an administrative appellate remedy; he could and did appeal the denial of his claim to the Board of Veterans’ Appeals. Czerk-ies has no appellate remedies of any kind.

Consequences are not irrelevant to the interpretation of statutes. It would be passing odd to suppose that the Office of Workers’ Compensation Programs could turn down the claim of an injured federal worker on racial or religious grounds, and the worker have no judicial remedy whatever, or even an administrative remedy. This is not a race or religion case, but are we to pick and choose among constitutional rights? That approach would have no footing in the statute. To hold that the district court had no jurisdiction would be to hold that the Department of Labor can discriminate with impunity against compensation claimants on grounds of race and religion. (So the government conceded in Marozsan’s case. Id. at 1478.) Such a conclusion is sufficiently improbable to justify our invoking “the general rule honored even by interpretive literalists ... that if a literal reading produces an absurd result the interpreter is free (we would say compelled) to depart in the direction of sense.” Central States, Southeast & Southwest Areas Pension Fund v. Lady Baltimore Foods, Inc., 960 F.2d 1339, 1345 (7th Cir.1992). See Burns v. United States, 501 U.S. 129, 135-37, 111 S.Ct. 2182, 2185-86, 115 L.Ed.2d 123 (1991); Green v. Bock Laundry Machine Co., 490 U.S. 504, 527, 109 S.Ct. 1981, 1994, 104 L.Ed.2d 557 (1989) (concurring opinion). We repeated this admonition recently in another en banc decision, this one a unanimous one. United States v. Hudspeth, 42 F.3d 1013, 1014 (7th Cir.1994) (en banc).

In neither Marozsan nor the present case would a conclusion that the claimant had been denied due process of law entitle him to benefits. It would entitle him only to a fair procedure for adjudicating his claim to benefits. The decision as to whether the statute administered by the agency in question entitled him to benefits would remain that of the agency — and not subject to judicial review. People are entitled to have their claims for benefits determined in proceedings that do not deny the claimants their federal constitutional rights. They can enforce that entitlement in federal court, as Czerkies has tried to do. To conclude the contrary would be to misinterpret the statute, overrule an en banc decision of this court despite the absence of any intervening change of circumstances, create an intercircuit conflict, and invite federal administrative agencies to flout the Constitution. Confining constitutional challenges to systemic or general rules or practices of the agencies would lighten the judicial workload — but not enough to outweigh the interest in allowing persons some forum in which to assert their constitutional rights. Suits of the kind brought by Maroz-san and Czerkies have been remarkably few despite favorable precedent, and when the casting of a claim in constitutional terms is a mere “rhetorical cover” for a claim for benefits that the door-closing statutes are intended to block, the suit fails, as we are about to see.

We hold that the district court had jurisdiction to consider Czerkies’ constitutional claim, and we proceed to the question whether the district judge was right to dismiss Czerkies’ suit on the ground that his constitutional claim was insubstantial. The judge had before him not only the complaint but also two supplementary statements by Czerkies in response to the government’s filings. The complaint and supplementary statements are handwritten documents prepared without assistance of counsel, and every indulgence must be granted. The documents contain sufficient detail, however, to indicate the character of Czerkies’ grievance. One searches these documents in vain for any indication of some deficiency in the procedures by which Czerkies’ claim was processed, except for a contention, which could not found a substantial due process claim, that he had been prevented from cross-examining his supervisor. The documents are replete with assertions that the claim was denied without due process of law, but what Czerkies appears to mean by this is that the wrongful denial of a claim is a denial of due process of law. As he puts it in one of his submissions, “To deprive a disabled person of appropriate medical [care or benefits] which the person was and or is entitled to by the government is completely in defiance of both the letter and spirit of the U.S. Constitution.” This is in the nature of a substantive due process claim: Mr. Czerkies has a substantive entitlement of which the government has deprived him. Such a claim has no merit. The government does not violate the Constitution every time it mistakenly denies a claim for benefits. On appeal, Czerkies, through the able lawyer whom we asked to present argument on his behalf as amicus curiae (Czerkies declined our offer to appoint counsel for him), now argues that Czerkies was “front desked” — that is, his employing agency, the Postal Service, refused to accept his claim for filing. There is no hint of this theory of a due process violation in the complaint or other documents filed in the district court; it comes too late.

This is a ease of a claim for benefits “cloaked in constitutional terms.” Czerkies has affixed the constitutional label to a garden-variety claim for benefits plainly barred by 5 U.S.C. § 8128(b). The judgment dismissing his suit is therefore

AFFIRMED.