Senerchia v. United States

235 F.3d 129, 2000 WL 1854094
Court of Appeals for the Second Circuit·Decided December 19, 2000·No. Docket No. 00-6027·Published·Cited by 4 cases

Opinion

VAN GRAAFEILAND, Circuit Judge:

Frank Senerchia (“Senerchia”), a retired detective with the New York City Police Department (“NYPD”), appeals from a final judgment of the United States District Court for the Southern District of New York (Griesa, /.). The district court granted a motion to dismiss Senerchia’s attempt to have the federal courts review and reverse a determination that Senerc-hia was not entitled to benefits under the Federal Employees’ Compensation Act [131]*131(“FECA”), 5 U.S.C. § 8101 et seq. For the reasons that follow, we affirm.

In 1983, the federal Bureau of Alcohol, Tobacco and Firearms (“ATF”) was conducting undercover operations looking for criminals involved in weapons and narcotics trafficking. NYPD was assisting ATF in these efforts. On November 9, 1983 Senerehia and an ATF agent were conducting mobile surveillance in an ATF vehicle. Senerehia was driving. The vehicle was involved in a traffic accident, and Sen-erchia was injured.

In 1984, Senerehia applied for compensation benefits under FECA. FECA provides compensation for state officers who are injured while they are engaged in apprehending federal criminals or preventing federal crimes. See 5 U.S.C. § 8191. In 1985, the Office of Workers’ Compensation Programs (“OWCP”) at the Department of Labor denied Senerchia’s claim. OWCP reasoned that, at the time Senerehia was injured, he was involved only in surveillance in an attempt to uncover possible future wrongdoing. According to OWCP, there was no federal crime occurring at the time Senerehia was injured. Senerc-hia was entitled to appeal OWCP’s decision, but did not do so immediately. He ■waited until 1994 to request reconsideration of OWCP’s 1985 decision. Senerehia explains that he waited so long because it was not until 1994 that a doctor told him his injuries from the 1983 accident had worsened to the point he was forced to retire from NYPD.

Senerehia’s request for reconsideration was denied by OWCP. Senerehia then appealed OWCP’s decision to the Employees’ Compensation Appeals Board (“ECAB”), also in the Department of Labor. ECAB rejected Senerchia’s appeal. In the Matter of Frank Senerchia, 1997 WL 1877301 (ECAB Sept. 2, 1997). Senerchia then turned to the district court. Senerehia asked the district court to review and reverse the ECAB decision.

The defendants moved to dismiss for lack of subject matter jurisdiction. They relied on a provision of FECA, 5 U.S.C. § 8128(b), which states that “[t]he action of the Secretary [of Labor] or [her] desig-nee in allowing or denying a payment under this subchapter is ... (2) not subject to review by another official of the United States or by a court by mandamus or otherwise.”

The district court granted the motion to dismiss, holding that § 8128(b) divested it of subject matter jurisdiction. The district court recognized that several circuits have held that § 8128(b)’s ban on jurisdiction is not absolute, even though the statute itself states unequivocally that the courts shall not exercise jurisdiction. Some circuits have recognized two possible exceptions to this ban. First, if a claimant contends that the government violated his constitutional rights in denying his compensation claim, jurisdiction may be available. Second, some courts have thought jurisdiction exists if the government violates a clear statutory mandate. Because Senerehia did not argue that his constitutional rights had been violated, the district court looked primarily at the second exception. It held that the government had not violated a clear statutory mandate and dismissed the action.

The Second Circuit has not addressed squarely the issue- of whether an exception to § 8128(b)’s ban on jurisdiction exists when the government clearly exceeds its statutory authority. Other circuits have not spoken in unison on this issue. Compare McDougal-Saddler v. Herman, 184 F.3d 207, 213-14 (3d Cir.1999) (finding no exception for clear statutory violations); Paluca v. Secretary of Labor, 813 F.2d 524, 527-28 (1st Cir.1987) (same) with Hanauer v. Reich, 82 F.3d 1304, 1307-09 (4th Cir.1996) (determining that federal courts have jurisdiction to hear claims that government violated clear statutory mandate); Woodruff v. United States Department of Labor, 954 F.2d 634, 639-40 (11th Cir.1992) (per curiam).

[132]*132Assuming an exception for clear statutory violations exists, judicial review of such violations is extremely limited. Even the Fourth Circuit, which recognizes jurisdiction to hear claims that Labor violated a clear statutory mandate of FECA, see Hanauer, 82 F.3d. at 1304, recognizes the limited scope of judicial review. Id. at 1309 (“When the statute in question is capable of two plausible interpretations, the Secretary’s decision to adopt one interpretation over the other does not constitute a violation of a clear statutory mandate.”). See also Woodruff, 954 F.2d at 641 (11th Cir.1992) (“Our task is not to develop our own interpretation ..., nor is it to choose the best of two competing interpretations.”). Thus, so long as the government’s interpretation of FECA is reasonable, no clear statutory mandate has been violated.

Senerchia’s claim that Labor violated a clear statutory mandate rests, in part, on his argument that prior ECAB decisions dictate that Senerchia be awarded compensation in this case. Even if Sen-erchia is correct that ECAB’s decision in this case is contrary to ECAB’s prior interpretations of § 8191, that would only make the decision contrary to prior agency rulings; it would not necessarily make the decision contrary to a clear statutory command. Absent a separate statutory provision that requires the government to abide by its prior interpretations, in effect codifying an absolute rule of stare decisis, any asserted inconsistency between the decision in this case and prior ECAB decisions is irrelevant. The relevant question is whether ECAB’s current interpretation is clearly contrary to the statute.

Senerchia also emphasized, in both his brief and at oral argument, that the government’s denial of benefits in this case runs contrary to the purpose of § 8191. While knowledge of the purpose of a statute assists in the interpretation of that statute, violation of the purpose, without violation of a statutory command, does not constitute a violation of a clear statutory mandate. We turn, therefore, to the clear statutory command that was allegedly violated, 5 U.S.C. § 8191.

The statute provides, in relevant part, that a state officer is entitled to federal benefits if the state officer was engaged “on that occasion in the apprehension or attempted apprehension of any person.” 5 U.S.C.

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