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

plaintiffs argue also claims CZERKIES, all common law Gregory has liberated R. Wolens scope, Wol- preemptive the ADA’s Plaintiff-Appellant, from common law distinguish between did ens Rather, it distin statutory claims. enforcing private states guished between LABOR, Employ DEPARTMENT OF U.S. imposing their own substantive contracts Administration and Of ment Standards — to those contracts. external standards Compensation Pro fice Workers at -, States can 115 S.Ct. at 826. Defendants-Appellees. grams, own substantive standards impose their through law as well through the common No. 93-3391. in statutory did not enactments.13 Wolens Appeals, United States Court long line of cases that tend overrule Circuit. Seventh claims common law have found various See, e.g., Illinois by the ADA. preempted July 14, 1994. Submitted 754; Travel, F.2d at West Corp. Airlines, Inc., Northwest Argued En Banc Dec. 1995. (9th Cir.1993). recognize plain that the Jan. 1996. Decided on the tort claims are based tiffs’ intentional con as the their underlying conduct same claim, preempted is not which

tract 1305(a)(1). However, pro while Wolens seek to enforce contract claims that

tects it does agreements preemption, from

private The inten similarly tort claims. shelter tort therefore constitute claims of a law. More or enforcement”

“enactment

over, intentional tort extent that the refusal to trans are based on Saudia’s

claims flights passengers who had booked their

port All, to”

through such claims “relate Travel preempted and are

Saudia’s services we cannot determine

ADA Yet because plaintiffs’ if the stage proceedings

this solely slander based Saudia’s comments, defamatory we reverse

ous and the district court with

the decision of these claims.

III. reasons, we REVERSE foregoing

For court, dis- order the district counts, complaint on all and Re-

missed the proceedings consis- for further case

mand opinion.

tent with this U.S. at -, n. 8 fact, noting 115 S.Ct. at 826 acknowledged - cíes....” In Wolens 13. principles Curi (quoting law as Amicus "[s]ome state-law contract for United States Brief they might preempted ae). extent ... well public poli- State’s seek effectuate the POSNER, Judge, Chief Before CUMMINGS, COFFEY, FLAUM, EASTERBROOK, RIPPLE, MANION, ROVNER, WOOD, KANNE, P. DIANE EVANS, Judges. Circuit POSNER, Judge. Chief injured employees on the Federal who job apply to the Com- can Office Workers’ pensation Programs Department in the benefits, Labor for workers’ injured including vouchers to enable the em- ployee pay for medical treatment of the 8103(b). CzerMes, injury. 5 U.S.C. Mr. case, this, plaintiff in this did and was challenge turned He has tried to down. by of a suit in federal Office’s means court, strongly of a word- district teeth judicial door-closing ed statute. Federal Compensation provides that Employees Act Secretary or [of Labor] of the “[t]he action allowing denying pay- designee Ms or (1) con- ment under this final and [Act] is— purposes all and with clusive for (2) fact; questions all of law and subject by another official of the to review by by or or a court mandamus Umted States or- otherwise.” U.S.C. banc, en in accor dered case to be heard 40(e), Rule in order to dance with our Circuit given precisely, Marozsan consider —more (7th Cir.1988) States, 852 F.2d 1469 United (en banc), applicability of to reconsider —the it, door-closing provision, and like ones question that do claims constitutional Gregory (argued), Lockport, R. CzerMes validity general other rule of a statute or IL, pro se. judge regulation. The held or district bar section does not Kanter, Justice, Department of William claims, any CzerMes’ suit but he dismissed Section, Division, Washing- Appellate Civil way, ground the constitutional ton, DC, Ling, of the United Ernest Y. Office sought advance claim that CzerMes Division, IL, Chicago, Attorney, Civil States (N.D.Ill. F.Supp. insubstantial. Department of Labor. 1993). Kanter, (argued), Koppel John S. William sovereign No statute waives the Division, Appel- Department of Justice Civil immunity of the Umted States either Section, DC, Washington, late Lawrence W. by employees for com respect to claims its Labor, Department Rogers, Office job injuries pensation for sustained on Solicitor, DC, Washington, for Office of by Em (beyond the Federal is allowed what Programs. Compensation Workers’ itself, Lock Compensation Act see ployees States, 460 Meites, Corp. heed v. United (argued), Frack- Paul W. Mollica Aircraft 193-94, IL, man, Chicago, for Paul U.S. Burger, Mulder & (1983)) to constitutional L.Ed.2d Mollica. W. See, cess, Meyer, e.g., door-closing not barred generally. FDIC also — U.S. -, 996, 127 jurisdictional one, L.Ed.2d so statute. issue is usually vigilant government, Yet government’s are not con we bound sovereign prerogatives, concedes to assert its cession. Neither are we bound the deci immunity sovereign is not bar give But sion another circuit. we should right this. suit. It is to concede Czerkies’ weight due to the fact a number of other Act The Administrative Procedure waives 8128(b), agreed circuits that 5 have U.S.C. government’s sovereign immunity federal despite uncompromising language, its does seeking from actions of feder challenges not bar constitutional to decisions decisions, provided ac al administrative Compensation Pro Office Workers’ “money damages.” tion is not one for 5 Labor, grams. Brumley Dept. v. 28 U.S. of 702; Farms, Rose Acre Inc. v. Ma U.S.C. (8th Cir.1994) 746, curiam); (per F.3d 747 Cir.1992). 670, (7th digan, 956 F.2d 673 States, 19, (5th Benton v. 960 22 United F.2d pro Czerkies claims that he was denied due Cir.1992) curiam); (per v. U.S. Woodruff of of cess law the Office Workers’ Com Labor, (11th 634, Dept. 954 F.2d 639 Cir. of pensation Programs when it denied his claim. 1992) curiam); Brock, (per v. F.2d Owens 860 caption Although he did not his suit one as 1363, (6th Cir.1988); 1367 Paluca v. Secre denial, judicial pro for review of he is Labor, (1st tary 524, 813 F.2d 525-26 of ceeding pro penalized se and should not be Donovan, Cir.1987); Rodrigues v. 769 F.2d harshly failing for too characterize his suit (A (9th Cir.1985). panel 1347-48 of proper legal seeking terms. If he is ap of this court cited three these decisions damages monetary or other he is relief Michel, provingly in Ezekiel 66 v. F.3d by sovereign if immunity; barred he is seek (7th Cir.1995).) No circuit has disa ing an of order that the Office Workers’ greed. ought go way not out of our Compensation redetermine his entitlement create intereircuit conflicts. v. United States lay person expected he is not. No could Cir.1995). Hill, (7th 48 F.3d peel to avoid the banana on which Czerkies slipped. complaint His has handwritten does Addressing the issue under a similar same such, a request not contain for as relief (as Secretary statute noted Paluca v. merely go a statement that his should case Labor, 526), supra, 813 at F.2d we held jury trial he would like a because he will be Marozsan that the door indeed remained seeking punitive damages. full Since the Marozsan, open to constitutional claims. like sought specified, relief is not we are not Czerkies, claimed that he had been denied obliged seeking the complaint to construe as process of law in pro- due an administrative only monetary relief, say only which is to ceeding seeking in which he was benefits plainly relief to which Czerkies is not enti- (veterans’ case). sought benefits that He play tled. Rather than “Gotcha!” with some- plus a benefits “directive” that the Veterans through one who no fault of own his does comply process with the due Administration game, know the rules of the we should con- clause, 3; 852 F.2d at 1471 n. he did not seek just damages strue his suit as one not for injunctive or class-wide relief. Id. 1487-89 monetary other relief but for a also direction (dissenting opinion). was an en Marozsan Compensation that the Office of Workers’ decision, nothing happened banc has Programs process conformity his claim in it justify since was decided that would our process with due of law. in short We should overruling v. Metropolitan it. EEOC Edu- complaint making construe the as the same Inc., (7th Enterprises, cational 60 F.3d 1225 request monetary equitable dual for re- Cir.1995); (concurring opinion). id. at 1230 Marozsan, as lief held where we a running It is as if tide decisional were although monetary request for relief against Subsequent Marozsan. decisions barred, request equitable relief was door-closing whether statutes close the door not. to constitutional claims are consistent with Marozsan, government

The well concedes as with the cases under 5 (several suit, alleges a that we Czerkies’ because constitu U.S.C. have cited violation, Marozsan). namely pro- a denial due of which were decided after process ing or other rather than a direct Court. decisions of Two — U.S. -, -, -, money by the district court. One award Specter, Dalton v. not, course, need to close 128 L.Ed.2d 497 does statute Center, court to that are Refugee the doors claims McNary v. Haitian 895-97,insubstantial, 491-94, all that holds. Inc., Sugrue which is others are L.Ed.2d 1005 deny Most decisions v. our circuits. Olenhouse sister decisions re review of concern Commodity Corp., F.3d Credit relief, monetary quests for where the sover Skinner, (10th Cir.1994); F.3d v. Mace 1572-73 immunity government eign of the federal (9th Cir.1994); 858-59 Schneider statutory unless there is a waiver. bar (8th States, 1327, 1332 Cir. United —Reich, Thunder Basin Coal Co. 1994); Airways, 22 British v. PLC Shafii -, -, 771, 779-81, 127 (2d Cir.1994); Citizens Concerned F.3d hold did that a door- (8th NRC, F.2d 424-25 Nebraska closing mine-safety statute in the act blocked Cir.1992); v. United Reardon claim, nonmonetary due but the (1st Cir.1991) (en banc); 1509, 1514-17 F.2d special. agency circumstances were Airlines, Inc., F.2d 892 v. Western Edelman operators’ the in- reviewed mine claims was (9th Cir.1989); 839, Kicking Woman 845-47 mine dependent agency regulated of the (9th Hodel, 1203, 1206-07 Cir. 878 F.2d v. safety. independent agency This ad- had 1989). previously, dressed constitutional point important most decisions our in Marozsan some and —the Prior to —its ap- a federal court of the veterans’ benefits were reviewable had held that courts missing are from challenges. peals. All these features preclude law did constitutional (8th statutory in this case. If Czerk- Higgins Kelley, 824 F.2d 690 the scheme E.g., v. suit, Cir.1987) curiam). he has no ad- But have found ies cannot maintain (per we judicial in to that ministrative or forum only eases since Marozsan two decided he his litigate his claim that was denied appear to inconsistent with our deci be even (1st INS, 19, law. sion, right 24 to due of v. 41 F.3d Cir. constitutional Baez Derwinski, Corp. Reilly, v. F.2d 1994), Aluminum 927 Sugrue v. Barmet and (6th Cir.1991), (2d a statu- Cir.1994), distinguish which found and both are tory pre-enforcement to the bar constitutional Baez involved a statute that closed able. environmental-pro- deportation challenges in judicial of orders one to door executed; statutes, different; again door it is the order was not a door- tection the is after statute, open post-enforcement constitu- closing dealing with the remained to but a statute case, challenges. timing surprised, Barmet a timing of One is not tional review. if therefore, All closed cite its like Baez. doors are to Czerkies that the court did not even government’s jurisdictional concession is the decisions in Patuca or Reardon. earlier as Maroz- declined. Sugrue involved the same statute san, redescribing a all is that it held of only not the kind do think claim a constitutional claim will

benefits as challenge not barred a door- constitutional from the bar get the claimant out under challenge or closing statute a to a statute “[Cjourts door-closing do not the statute. of in regulation, challenge the kind of involved jurisdiction challenges to hear to acquire Robison, 415 U.S. Johnson merely those determinations because benefits (1974). Among points 39 L.Ed.2d challenges cloaked constitutional equally applica- emphasized in Johnson cover,” A at 11. “rhetorical terms.” F.3d the present was the fact that ble to the case id., open the door. will competent was not Veterans Administration issues and that the agreement: constitutional circuits are in door-clos- to decide

The not, history revealed no intention Congress express- do statute ing statutes unless challenges. The Su- foreclose constitutional ly provides, the door close claims, to stand for. preme Court has read Johnson provided that the claim is colorable Congress seeking principle that “where only a new hear- the broad and the claimant is judicial preclude authority decision, review consti- intends the fact that intent tutional claims its to do so must be specific Czerkies is challenging handling part clear ... to avoid the ‘serious consti- agency his case rath question’ if tutional that would a arise federal mounting general er than challenge any judicial deny were construed to statute procedures employed by agency all forum for a colorable constitutional claim.” Doe, cases is of no moment. Webster Doe, Webster supra, makes this The distinction has clear. 100 L.Ed.2d 632 The emphasized it is true been some noncon- majority opinion in Marozsan does not read eases, stitutional such as United States v. narrowly. Johnson 852 F.2d at 1472-77. Erika, Inc., describe, opinion The does not let alone char- Supreme L.Ed.2d con Court systemic general, as acterize Marozsan’s Congress cluded in that case that intend had specific opinion constitutional claims. The preclude ed to review of a class of an contains illustration those claims—a plaintiff individual Medicare claims. The had claim Veterans Administration em- lodged constitutional as well as noneonstitu- quota ployed system that limited num- objections the denial its Medicare granted, ber of benefits claims that could claim. court of appeals had dismissed suggestion id. at 1471—but no that makes insubstantial, objections the constitutional typical difference whether this is of Maroz- them, whereupon plaintiff had abandoned example san’s claims. As an a of a fortiori they played no role constitutional claim that would not be barred Court’s consideration of the case. id. See statute, door-closing the court instanc- 206 n. only S.Ct. at 1653 n. 5. The es a racial discrimination by issue decided the was Court whether the grant benefits. Id. at of 1478. None of the plaintiff judicial entitled was review of the grounds that the Marozsan offers for conclu- grounds. noneonstitutional sion that constitutional claims are barred ignore We must relevant differences anything has to do the claim with whether is between the statutes in involved Marozsan systemic applicant’s of a of violation the con- present and in the It possible case. rights of an idiosyncratic stitutional viola- by while Marozsan was not barred the door- by particular tion judge law administrative closing statute, provision of his Czerkies is officer, or other administrative and the dis- by his different The in Mar- statute. statute opinion senting emphatic that Marozsan judicial ozsan the closed door to of review seeking relief; any systemic was not sort of any by decisions “under law administered the just he wanted additional benefits for him- Veterans’ providing Administration benefits at get self. Id. 1487-89. Marozsan could not veterans,” for and the due clause reviewed, the benefits decision such id. at qualification not such a law. A similar is not only n. an order that his benefits explicit Employees Compensa- the Federal recomputed in proceed- be an administrative may implicit Act. But be in the ing from free constitutional error. Czerkies Secretary’s reference to action in award- But, Marozsan, get can no more. like he is ing or denying compensation “under this to an proceeding entitled un- interpretation application [Act].” His by contaminated a violation of the Constitu- questioned, the Act not to be but not his tion. proceeding he had such a Whether is a interpretation application of the Consti- separate question, question on the mer- tution. its. history Examination of the gone length have at of the federal such about employees’ compensation seriously we law the lim- Marozsan because take our reveals duty by precedents scope door-closing provision. ited duty to stand our —a statute, original proper discharge requires, of which enacted had con- course, get scope provision that we clear tained no with precedent. pro- review. An Marozsan establishes door- amendment made to, closing nonmonetary shut though statutes do not off vided a limitation similar less than, quite apart But sweeping claims. from one the veterans’ law from the commission’s chairman which that “in the letter It said in Marozsan. at issue report part was made a of the Senate on the in mathematical of fraud or mistake absence in, calculation, suggests that finding of facts and the 1945 statute. The letter predecessor door-closing provision in section 4 was in- [the commission of, Compensation finality Pro- promote payment to the Office of Workers’ tended (!) any pre- money grams] upon, example, the merits blood lieu of con- by Act if authorized this foreign employees under or sented ventional competent shall not supported by pay compensa- in societies in which failure to evidence by any administra- subject to other tion in accordance local custom would officer, agent accounting employee, or tive or upset employee and the local authorities. 43 Stat. of the United States.” Cong., S.Rep. No. 79th 1st Sess. 5-6 by a further present language came appear provision It does not that the But it came in in 1945. amendment apply to claims was intended to U.S. The statute of which this curious route. all, and the substitution decades citizens part was concerned with a amendment was narrowly provision of this for the more later arising out of variety special problems language of the 1924 amendment worded Among the most exotic was II. World War may have been an accident. Constitu- well determining and administer- problem hang by rights should' not such injuries ing compensation for sustained threads. govern- employees noncitizen of the federal Each statute must stand on its own working outside the United who were ment feet, pre but each is two informed Act of injured. Section 4 of the States when sumption already against mentioned slam 28, .1945, made July 59 Stat. 503-04 ming door in the face of the courthouse mainly by autho- problem provision for claims. holders of constitutional Webster designees to rizing the commission or its Doe, supra, 486 U.S. at 108 S.Ct. at compensation awards on local laws or base 2053; Lamagno, de Martinez v. Gutierrez custom, on the and near the end tacked 2227, 2231, 132 - U.S. -, -, desig- commission’s or sentence about the Sanders, Califanc being conclusive that action final and nees’ 980, 986, 51 L.Ed.2d Congress did appears in the current statute. put perspec in These decisions language of the 1924 amend- not delete the in Supreme Court’s dictum Lindahl tive the ment, appeared in another section of which Management, 470 U.S. Personnel Office of statute, by existing not the one amended the 779-80 and n. far as 4 of the 1945 So section statute. (1985); see also n. 84 L.Ed.2d 674 and door-closing provision was appears, the 1945 Marine, Gizoni, 502 Inc. v. Southwest limited to awards under sec- intended to be 486, 493, 116 L.Ed.2d 405 penulti- of which it the tion the section was involved Czerkies’ that the statutes placement provi- if the mate sentence —odd judicial review al Marozsan’s “bar case and govern claims under was intended to all sion nor Southwest together.” Neither Lindahl compensation law. The deletion of the the case. When all Marine was a constitutional door-closing provision that had added to been seeking is benefits on the that a claimant is by act the 1924 amendment the fact or law the admin of an error of basis 1966, when, part until did not occur judicial is barred al istering agency, review amendments, purely that series of technical together. in” the provision “omitted as included was statute. of the 1945 sentence section Employ history of the Federal Cong., H.R.Rep. No. 89th 1st Sess. provides Act no for Compensation basis ees (1965); see 80 Stat. 545-46 judicial presumption of rebutting the It distasteful to claims. of constitutional any stage There is no indication agency suppose that an administrative Congress statute that meant evolution of the Congress limitation, to receive from would claim original enlarge scope of the to the ignore the a license to sheer inadvertence to curtail constitutional remedies. let alone surprising not the It is is found in a Constitution. only pertinent discussion adjudicating for government procedure makes no such claim a fair his claim to emphasized case. Our decision Marozsan The decision benefits. as to whether judicial presumption against denying all ques- agency statute administered for Constitution remedies violations of the tion him to entitled benefits would remain agencies, noting the anomalous agency judi- federal subject to —and consequences of such a 852 F.2d at denial. People cial review. are entitled to their have 1476-79. The anomalies would be even proceedings claims for benefits determined in greater here at least had because Marozsan- deny that do not the claimants their federal remedy; appellate he an rights. They constitutional can enforce that appeal of his could and did the denial court, in federal entitlement as Czerkies has Appeals. to the Board Veterans’ Czerk- To contrary tried to do. conclude the would appellate any ies has no remedies kind. statute, misinterpret be to an en overrule despite banc of this court the ab- Consequences are irrelevant to any intervening change sence of of circum- interpretation It would of statutes. stances, conflict, an create intercircuit and passing suppose odd the Office of to agencies invite federal administrative to flout Compensation Programs could turn Workers’ Confining the Constitution. constitutional injured down the claim of an federal worker systemic to challenges general or rules or religious grounds, racial or on work agencies practices lighten would whatever, judicial remedy no or er have even enough workload —but not out- to remedy. an administrative This is not a race weigh allowing persons interest in some case, religion pick are we forum in to assert their constitutional rights? among choose That rights. brought by Suits the kind Maroz- approach footing would have no the stat remarkably san and have been Czerkies few ute. To hold that the district court had no despite precedent, favorable and when the jurisdiction Depart would be to hold that the casting claim in of a constitutional terms is a impuni ment Labor can discriminate with mere “rhetorical cover” for a claim bene- ty against compensation claimants door-closing fits that the statutes intend- (So grounds religion. gov of race and block, fails, ed to the suit as we are about ernment conceded in Marozsan’s case. Id. at see. 1478.) sufficiently Such a conclusion is im justify probable invoking general our “the We hold that the district court by interpretive rule honored even literalists jurisdiction had to consider Czerkies’ consti ... if a reading produces literal an claim, proceed ques tutional and we to the (we interpreter absurd result is free judge the district right whether say compelled) depart would in the di ground dismiss Czerkies’ suit on the that his rection of sense.” Central Southeast constitutional claim was insubstantial. The Lady & Southwest Areas Pension Fund v. judge only him complaint had before not the Foods, Inc., 1339, Baltimore 1345 supplementary by but also two statements (7th Cir.1992). States, See Burns v. United response in government’s Czerkies to the 129, 135-37, 2182, 2185-86, 501 111 U.S. S.Ct. filings. complaint The supplementary and 115 L.Ed.2d 123 Green Bock pre are handwritten statements documents Co., 504, Laundry 527, 109 Machine 490 U.S. pared counsel, of without assistance and ev (1989) (con 1981, 1994, 104 S.Ct. ery indulgence granted. must be docu The curring opinion). repeated this admoni however, detail, ments contain sufficient to decision, recently in another en banc this grievance. indicate the character of Czerkies’ one a unanimous one. v. Hud United States One searches these for documents vain (7th Cir.1994) (en 42 speth, F.3d 1014 any deficiency pro of indication some banc). by pro which cedures Czerkies’ claim was In pres cessed, contention, neither except Marozsan nor for a which could claim, would a ent case conclusion that the claimant process found a substantial due process prevented had been denied due of law entitle that he had been from cross-exam only him ining supervisor. to benefits. It would him to entitle his The documents

1443 limiting jurisdiction was evade laws is to replete usurp assertions claim with law, process power. due but what denied without by this appears to mean is that the Czerkies Congress has asserted its constitutional is a

wrongful of a claim denial of due denial checking power by forbidding judicial review it in process puts As he one of his of law. federal workers’ decisions: submissions, deprive person “To a disabled Secretary designee The action of the or his appropriate or [care benefits] medical allowing denying payment or under person by and or is was entitled subchapter this is— completely in government is defiance of both (1) purposes final for all and conclusive spirit of the U.S. Constitution.” letter questions and with to all law or This nature of substantive due fact; and has Mr. Czerkies a substan- claim: (2) subject to review another offi- government tive has entitlement which cial a court United States deprived him. a claim has no merit. Such mandamus or otherwise. government does not violate the Consti- mistakenly every tution time it denies a claim 8128(b). § 5 U.S.C. This statute does not appeal, Czerkies, through for On benefits. distinguish among seeking reasons for re- lawyer present whom we asked able view; it the administrative makes argument his behalf as amicus curiae final. In Lindahl v. Personnel Office of (Czerkies to appoint our offer coun- declined Management, n. 470 779-80 & U.S. him), argues for sel now Czerkies n. 84 L.Ed.2d & is, employing agen- “front his desked” —that 8128(b) gave § Court Service, cy, accept refused his the Postal example “unambiguous an and com- filing. is no hint There prehensive” language Congress uses theory process violation in com- of a due “when [it] intends bar alto- plaint documents filed district or other gether”. description was This reiterated court; too late. it comes Marine, Gizoni, Southwest Inc. U.S. 81, 90, 486, 493, 116 L.Ed.2d S.Ct. a claim This a ease of for benefits 8128(b)(1) § altogether apt. It is If terms.” “cloaked Czerkies 8128(b)(2) enough, were not adds: “We gar- has the constitutional to a affixed label really mean it!” den-variety plainly claim for benefits barred The judgment dis- U.S.C. amicus curiae contends we should missing suit is therefore his away whittle to avoid constitu problem. There is none avoid.

AFFIRMED. that, Long ago the Supreme Court held when Congress right money to recover creates a EASTERBROOK, Judge, Circuit States, may “provide from the it an KANNE, United whom Circuit MANION remedy and make exclu Judges, join, concurring in the judgment. sive.” Dismuke United dealing defining When with laws their au- 80 L.Ed. 561 S.Ct. thority, special duty courts have a to be Babcock, Accord, States v. United scrupulous Judges modest. to be often —and 464, 465, L.Ed. justify by pointing role to for a their the need Congress 1011 That is what did in political check on other actors. Statutes power. legislative § the It is within jurisdiction specifying the of are the courts (2d 708 Blanc v. 244 F.2d United judges. other actors’ checks on as we Just Cir.1957); Mitchell, v. 231 F.2d 652 Hancock Legislative insist the and Executive Tobin, (3d Cir.1956); v. Calderon respect the constitutional checks Branches (D.C.Cir.1951). 514 respect power, on their we must the con- so Any especially argument that there is constitutional- stitutional checks on be- ours — 8128(b) § exception cause other claim to statutes like judges, unlike the branches of power the government, they possess cannot be to doubts about assert the last traced jurisdiction powers. Congress the of scope word of their own To of to restrict on the 1444 (1991 7252(a). Supp.) § the inferior 38 U.S.C. courts —for until 1875 benefits.

district (1991 any general federal-question generally Supp.) 38 lacked See U.S.C. courts (1991 federal-ques §§ jurisdiction, Supp.) A new 38 and until 1980 the 7251-92. U.S.C. 511(a) jurisdiction qualified by § an amount- jurisdiction was limits the of the Article tion way in-controversy comparable one thinks III a former requirement. No courts the 211(a). § Judiciary Act violation the of 1789 colossal Sovereign III of Article on this account. A to the contest statute in Johnson was too, immunity, judicial competence; limits disagreement of with the judges play entirely in role are to the what Administrator; regula- challenge and a to a —Meyer, Congress, of see FDIC v. hands “any question tion did not raise of law or fact -, -, 1004- S.Ct. law any by under administered Veterans’ the obligation L.Ed.2d 308 the providing Administration benefits for veter- legislative decisions is not diminished the things, ans”. As Court saw Johnson (Mey claim by constitutional basis of the the raised a “under” rath- the Constitution many sovereign-immunity er and other cases any by er than “under law administered the arising deal claims under with Constitu providing Veterans’ Administration benefits tion); immunity § and invokes that veterans”, Traynor for and a claim raised judicial power by restricting grants of under the Rehabilitation Act. But the Court appear elsewhere in the States Code. United 211(a) § did not doubt that core had a proposition making application: “A decision that a law an ad of law or fact ‘under’ by decision final coexist with a statute is made the Administrator ministrative can application or provenance interpretation particular role of a some has its Robison, 361, 366-74, provision particular of the statute to a Johnson 415 U.S. set 1165-69, (1974), facts.” 415 U.S. at S.Ct. L.Ed.2d 1166. Traynor Turnage, 541- and 485 U.S. In Walters National Ass’n Radiation 1372, 1378-80, Survivors, (1988). These cases dealt 38 U.S.C. L.Ed.2d the Court wrote that 211(a), which limited veterans’ principle Johnson stands that “dis Traynor in benefits awards. Johnson and jurisdiction trict have courts to entertain con challenges, not to volved individual decisions operation stitutional attacks on the of the claims, compo but to structural veterans’ system.” 3, 105 Id. at 311 n. S.Ct. at Johnson, system con nents —in added). (emphasis 3184 n. Traynor ob itself; stitutionality Tray- of the statute 211(a) only served that dealt with “deci nor, statutory validity regulation. of a Administrator”, regula sions of the and that In case the Court concluded that each governing program tions the whole are not 211(a) did not because the stat bar review Johnson, Walters, such “decisions”. only ute concerned decisions of the Adminis Traynor distinguish systemic challenges all 211(a) provided: Section trator. case-specific from decisions —a conclusion decisions of the Administrator on [T]he thought up Court backed any question any of law or fact under law legislative history, which that Con showed administered the Veterans’ Administra- gress messing want did not the courts providing ... benefits for veterans program exposed administration or shall be final and and no other conclusive high volume claims entailed case- any official or court of the States United specific inquiries. None of the cases three power jurisdiction to shall have review distinguishes statutory from any such decision an the na- action theories; Traynor claim in was based on ture mandamus or otherwise. sys a statute. The distinction is between 211(a) part of repealed challenges. Section temic individual The Court reorganization analyzed similar statutory that created a Court Veter- has schemes Erika, Appeals way. Compare ans under I Constitu- Article of the same United States v. Inc., jurisdic- 201, 5, tion. The new court has “exclusive 456 U.S. 205-06 & n. 102 S.Ct. (1982) 5, concerning 1650, tion” to review decisions veterans’ & n. 1652-53 L.Ed.2d 12 Supreme recognized in Lindahl So the Court (no decisions of individual benefits review and Marine. Cases such as Web- Southwest program, even B of the Medicare Part under Doe, 592, 2047, v. 486 U.S. 108 S.Ct. ster v. objections), with Bowen (1988), majority em- L.Ed.2d 632 Family Physicians, Academy Michigan presumption judi- phasizes, articulate the 2133, 667, 90 L.Ed.2d 106 S.Ct. 476 U.S. do not hint that a law as cial review but (1986) implementing (reviewing regulations 8128(b) § sweeping inadequate is to over- as program). B of the Medicare Part agency come it. The statute on which F.2d 1469 Marozsan v. United permitted the Director of relied in Webster (en (7th Cir.1988) banc), cut from similar is employees the CIA to fire “whenever he shall any desire had disclaimed cloth. Marozsan necessary or advisa- deem such termination (id. award his case have us review the (50 of the ble in the interests United States” brief). 1471, his We treated quoting from 403(c)); judi- § it was silent about the U.S.C. procedures challenge as a the suit apply cial Because the APA does not role. cases, rather than as a used in all VA agency any decision “committed to discretion imple- to his case. To any specific error 701(a)(2), law”, § it did not au- 5 U.S.C. distinction, that Maroz- we held ment this question of the whether the thorize review to the he be dismissed extent san’s suit must advisable”; discharge “necessary or but was indirectly to obtain review trying 403(c) any § did not create discretion con- n. 3 case. Id. at 1471 his own decision interpretation and cerning constitutional (“Section 211(a) clearly precludes our review therefore did not affect otherwise au- review benefits decision set of the Administrator’s subject. APA on that thorized Sec- cases, particular and disability levels” 8128(b) entirely different struc- has an 1346(a)(2) § bars review 28 U.S.C. ture; it review of the decision itself forbids monetary exceeding claims district courts of committing or another issue rather than one $10,000). limitation vanishes. Today that 8128(b) §If is to administrative discretion. majority Marozsan to individual extends presumption, enough to overcome statute, broader a different under what is? process casts it free of language, and in the 8128(b) dodged on the cannot be Section My precursors in the Court. its procedures the theory that to review the general constitutional- colleagues announce to reach a deci Department Labor used “exception” to statutes that admit argument the “action of the Secre sion is not to review proceed to review a exceptions and of no allowing denying a tary designee in or his benefits case. The in an individual Judges do not review issues in payment.” interpret language of majority does not cases; they final ad 8128(b); language bypasses Oil decisions. FTC Standard ministrative 1346(a)(2) escapes Likewise 488, 232, 101 California, 449 U.S. S.Ct. Co. of mention, pu- although demand for CzerMes’ (1980). step at a Error 66 L.Ed.2d damages makes it relevant. nitive might the deci leading a decision vitiate favoring judicial review presumption “The sion; than the it is the decision rather just pre that —a action of administrative That is the process that is before the court. pre presumption, like all sumption. This Ringer, 466 U.S. 613- point of Heckler v. statutes, may interpreting sumptions 2013, 2020-22, used by specific language”. Block v. separate overcome an effort to which rebuffed into, Institute, Community 467 U.S. proce Nutrition substantive Medicare claims 349, 104 81 L.Ed.2d 270 to avoid a review- components S.Ct. order dural also, objection pro e.g., Thunder Basin Coal An to the preclusion statute. See —Reich, -, is an agency S.Ct. to make a decision cess the used Co. (1994); decision, held, Specter, Court objection Dalton v. to that 127 L.Ed.2d 29 — limit U.S. -, by the statute 128 L.Ed.2d covered and therefore is Fausto, If the Commis ing that decision. review of United States rejects a claim for Security sioner of Social 98 L.Ed.2d 830 benefits, contending that the disability a suit they come. specific as Section hearsay plexities rule, Constitution forbids reliance on hearsay lawyer apt is denying seeks review of the decision to insist that a admitting benefits. or exclud ing agreed process If evidence violated Court had with that the due clause. Perales, only lawyers Not but also courts contention in Richardson v. have devel U.S. oped ways to treat violations of statutes and 28 L.Ed.2d 842 Constitution, rules as violations of the see would have ordered a remand for another Peters, 1000, 1008-11 (7th Thomas v. hearing. My colleagues right claim the to do Cir.1995) (concurring opinion); Bates v. exactly compensation that with a workers’ (7th McCaughtry, Cir.1991), 934 F.2d 99 de decision, despite the vast difference between spite the they drumbeat of reminders that 8128(b). 405(g) 42 U.S.C. and 5 U.S.C. E.g., differ. Taylor, Gilmore v. procedures And if review of the used to make -, 2112, 2117-19, 113 S.Ct. a benefits decision is not review of the “ac- (1993); Hahn, Nordlinger L.Ed.2d 306 Secretary”, provided tion of the the remand U.S. 16 n. 2335 n. hearing pay- calls for a new rather than the (1992); L.Ed.2d 1 DeShaney Winnebago money, equally ment of then a court is within Services, County Department Social power arguments its to entertain based on 189, 202, APA). (including statutes Neither the Racine, Archie v. majority’s statute nor understanding (7th Cir.1988) (en banc). F.2d 1215-18 what it means to review an “action of the procedure details, Rules of bristle with Secretary” distinguishes according to the (and pro litigants many se lawyers) do not legal theory source of the used to call the master; they majestic generali- turn to the question. into Constitution, just ties of the as Czerkies has Practical as well as textual and historical entrée, If gives however, done. then support roots Johnson’s distinction between 8128(b) My colleagues is undone. recog- systemic single and individual decisions. A arguments nize that Czerkies’ own are stan- judicial opinion validity can settle the of a dard administrative-law contentions consti- regulation. Reviewing compensa- statute or garb. tutional Stripping away disguise business, tion decisions is a retail as courts scarcely resolving different from the suit on acquainted lung with black and social securi- merits; Congress possesses and if ty disability cases need not be reminded. power to forbid the latter exercise it has the Congress attempts When to curtail review of power to forbid thing the same with constitu- handiwork, judges its own suspicious: persiflage. to, legislature up What is the and must it be Slippery-slope arguments do not aid in the get away may allowed to with what be an interpretation §of say One could inroad on the Congress Constitution? When that, unless constitutional claims are reviewa- high-volume directs specialized business to a ble, Secretary may pursue Labor Employees’ tribunal such as Compensa- program religious discrimination, may Appeals Board or the Court of Veterans deny workers’ Re- Appeals, conserving judicial it is time for publicans doling while out funds to Demo- litigants; ground other suspi- there is no person crats. A possessed of an unreview- cion readings and no occasion for creative power may able abuse it. Does it follow that the law. any given power is argu- reviewable? This A exception constitutional to a statute such applied equally ment could be judges, who §as very high-vol- could create the only can powers abuse their but also have litigation Congress ume wanted to avoid. done so on princi- occasion. Yet there no ubiquity argu- Consider the of ple possibility that the always of error leads litigation: ments in saying modem instead of layer to an extra practice of review. A party comply the adverse did not with pardoning only appointing only Democrats or discovery obligations its under Fed.R.Civ.P. Christians federal office would violate the lawyer often insists that his client Constitution, remedy but the lies the Sen- process by denied due the lack of access to ate rather than the If Secretary courts. Labor, evidence. wrestling Instead of operating the com- of gives under a law that

1447 further, Constitution, plaintiff question for the had not say, violates him the final argument. from impeached and removed made a constitutional be he should is, power to office. Jurisdiction —that argument entertaining If the best litigation; an initial hurdle decide —is 8128(b) arguments § CzerMes’ is like jurisdiction eases within their decide courts 211(a), argument against § then the best jurisdiction asserting because than rather Rodrigues as and Paluca is that cases such ought to they that a substantive believe very hold different views about those courts v. Rich- United States considered. See 211(a) § both the first and ninth circuits —for 2940, ardson, 41 418 U.S. 211(a) permit § did not re concluded that Congress is entitled 678 L.Ed.2d deci view of individual veterans’ benefits of unconstitution- probability that the believe sions, a even when the veteran advanced sufficiently in a class of cases al conduct argument. v. constitutional See Milliken at for it would come that a search low (1st Gleason, Cir.1964); 332 F.2d 122 Ross v. interests. Section high a cost to other too (9th States, Cir.1972); 462 F.2d 618 United 8128(b) judgment, we expresses such a which (9th Walters, v. 719 F.2d 1423 Rosen respect. must Cir.1983). circuits likewise held that Other conclusion, contrary the ma reaching a In 211(a) § review of individual veter forbade in other circuits that jority relies on cases even when the veteran contended ans’ cases excep articulate a constitutional-contention violated the Constitution that the VA 8128(b), principally Rodrigues v. § tion to resolving E.g., Higgins his claim. course of (9th Donovan, 1344, 1347-48 Cir. 769 F.2d (8th Cir.1987); Pap Kelley, 824 F.2d 690 v. Labor, 1985), Secretary 813 and Paluca v. panikoloaou v. Administrator Veterans Cir.1987). (1st Neither F.2d 526-27 (2d Administration, Cir.1985); F.2d 8 762 Rodrigues said that a consti is sound. case Administration, 559 Anderson v. Veterans Secretary’s proce challenge to the tutional (5th Cir.1977); v. Unit F.2d 935 de Rodulfa “really” challenge to the award is not dures (D.C.Cir. 1240, 1257-58 ed 461 F.2d outside therefore falls of benefits 211(a) 1972). § repeal of and its Since the play, and it is incon § This is word 511(a), § replacement by the second circuit Rodrigues gave Ringer Ringer. sistent with claimants its conclusion that has reiterated citation; signal would have the correct a “ef.” courts may not obtain review the district Ringer had reversed “contra.” been Sugrue decisions. v. of individual benefits circuit, waging a appears to be ninth which (2d Cir.1994), Derwinski, cert. 26 F.3d a different rear-guard Patuca took action. — denied, -, 8128(b) is “like” It concluded that line. opposing pe When L.Ed.2d 211(a) governed Johnson. and should be Sugrue, the Solicitor for certiorari tition already given I have does For reasons (Br. 7-8): Opp. wrote General are in individual cases follow that decisions jurisdiction have Nor did the district court call for Three other decisions reviewable. Peti- petitioner’s process due claims. over Brock, F.2d brief comment. Owens perform alleges that the failure tioner (6th Cir.1988), may be read and the failure to neurological examination view, taking containing Patuca’s dicta him full regulations denying when refer attorneys’ request for fees actually about a disability violations benefits constituted an effort to rather than under the EAJA regulations were due because VA review of a workers’ obtain impeded an accu- and the violation violated Labor, Department decision. Woodruff Further, peti- of his claim. rate evaluation (11th Cir.1992), asserts Secretary argues effected tioner arguments jurisdiction constitutional hear by denying his claim. Whatever taking 8128(b) giving a reason. quoting § without claims, they are in Labor, the merits of those Brumley Department And application of challenges to the (8th Cir.1994), essence reports accu F.3d * * * particu- to a “particular provision[s] rately “it has been held that” has made (or facts” and this Court lar set of apply statuto does precluded. challenges that such clear does not address ly!) arguments Robison, Johnson v. 367 [94

S.Ct. 39 L.Ed.2d 389]

see Walters National Ass’n Radia- Survivors, 311 n. 3 [105 3184 n. 87 L.Ed.2d 220]

(1985) (jurisdiction available for “attacks ]”) operation system, of the claims [

on the added).

(emphasis

This is a correct statement of the subject, approach to this

Court’s which the

Civil Division’s brief in this case abandons. ability ordinary legal arguments to dress garb Sug-

in constitutional Czeriries —as why rue alike have done—shows the distinc- systematic personal

tion between chal-

lenges important. judges The need for power why on their own limits shows my

the distinction is I colleagues vital. wish things way.

saw the same MURREY,

Loretta as Administratrix of Murrey,

the Estate of Thomas D.

Plaintiff-Appellant, America,

UNITED STATES of

Defendant-Appellee.

No. 95-1523. Appeals,

United States Court of

Seventh Circuit.

Argued Sept. 1995.

Decided Jan. 1996.

Case Details

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

Court Name: Court of Appeals for the Seventh Circuit

Date Published: Jan 17, 1996

Citation: 73 F.3d 1435

Docket Number: 93-3391

Court Abbreviation: 7th Cir.