James L. Hanauer v. Robert B. Reich, Secretary of Labor

States. Hanauer asserted that he intended WILLIAMS, Before HAMILTON and Secretary to move to Canada. The summari- Judges, WILLIAMS, Circuit Senior ly request, C.F.R, denied the relying on 20 Judge United States District for the Eastern 10.311, provides which lump-sum pay- Virginia, District of sitting by designation. wage-loss ment of longer benefits will no be made. Hanauer brought then this action by Vacated and published remanded seeking declaratory judgment that 20 opinion. Judge HAMILTON wrote the C.F.R. 10.311 is void because it violates 5 opinion, Judge in which WILLIAMS 8135(a). U.S.C. sought Hanauer also an Judge concurred. Senior WILLIAMS wrote requiring order pay his a concurring dissenting opinion. remaining lump benefits in a sum. The Sec- retary moved to subject dismiss for lack of OPINION or, jurisdiction, alternative, matter in the summary judgment. HAMILTON, Judge: Circuit Hanauer, James L. The district a former federal em- concluded that it had ployee receiving subject jurisdiction matter under the Federal and held that Ha- Employees’ Act, Compensation nauer was entitled to an U.S.C. individualized deter- (FECA), §§ brought 8101-93 mination of request lump-sum this action pay- against (the remaining of Labor ment of his Robert Reich benefits. Accordingly, Secretary) challenging the district court remanded refus- the ease to the al consider Hanauer’s to receive conduct such an individualized his remaining FECA benefits determination. The appeals. sum. The district court determined that the Secre-

tary violated a clear mandate in II. requiring FECA adjudications individual requests for lump-sum payment of benefits. turning Before to the merits of this Accordingly, case, the district court pause briefly remanded the we to consider whether case to the for an individualized the district court’s order is final and there adjudication of request. Hanauer’s subject The Sec- fore appellate review. We have retary appeals. Concluding jurisdiction that FECA does appeals over from final decisions not contain a clear requir- of district courts. 28 U.S.C. 1291. A dis ing an adjudication individual of Hanauer’s trict remanding court’s order a case to an payment of his remain- agency usually final, administrative not a ing benefits, we vacate appealable the district court’s decision under 28 U.S.C. decision and remand for the district court to See Culbertson v. Health & Hu subject jurisdic- Servs., (4th dismiss for lack Cir.1988). matter man tion. ifBut a district court remanding order a case subject agency by will be effective- not to review another to an administrative offi- cial of of the mer- the United States or a court ly after a resolution unreviewable mandamus or its, otherwise. purposes a final decision for the order is Sullivan, Travis v. of 28 1291. See 8128(b). Cir.1993); F.2d Cul- cf. Supreme Court described bertson, (holding that 859 F.2d at 323 8128(b) example unambiguous as an appeal over an from court had comprehensive language remanding to an because order a ease uses when it “intends to bar review final “operate[d] [a the order as a denial altogether.” 470 U.S. at 779-80 & Lindahl claim”). party’s] n. 105 S.Ct. at 1627-28 & n. 13. But even statutory language judicial when the bars appeal The decision on here is the review, recognized courts have that an im- remanding case to district court’s order this plicit exception and narrow to the bar on Secretary for an individualized determi judicial review exists for that claims nation of Hanauer’s agency scope delegated exceeded the of its remaining of This or benefits. authority or violated a clear man- after the Secre der will be unreviewable See, e.g., date. Staacke v. United States remand, tary’s on because the decision Sec Labor, (9th 278, 841 F.2d 281 retary’s “allowing denying or decision Cir.1988). exception recog- This was first ... final payment under and [FECA] 184, Kyne, nized in Leedom v. 358 U.S. subject purposes” conclusive for all and “not 180, (1958). S.Ct. 3 L.Ed.2d 210 ... or to review a court mandamus Kyne, the National Labor Relations 8128(b). Therefore, otherwise.” 5 U.S.C. Board bargaining certified collective unit remanding the district court’s order this consisting professional nonpro- of both and case to the is final and immedi employees. fessional This certification was ately appealable purposes of 28 U.S.C. provision direct conflict with a of the Na- § 1291. (NLRA). tional Labor Relations Act president organization brought a labor suit Having concluded that the district court’s against members of the Board in district immediately appealable, order is final and we court, asserting that the Board had exceeded proceed Secretary’s argument to consider the statutory authority. argued its The Board jurisdic- that the district court did not have judi- provisions establishing that the NLRA’s pay tion to review the refusal to cial of certain Board review actions remaining in a Hanauer his appeals Congress’ court of indicated intent to sum. any bar review of Board action the district Supreme disagreed, court. The Court hold- III. ing jurisdiction that the district court had “to strike down an order of the Board made in agency Courts will decline to review delegated powers contrary excess of its and only upon showing actions specific prohibition to a in the Id. [NLRA].” clearly intended to restrict access to 188, 79 S.Ct. at 183-84. review. See Lindahl v. Personnel Office of Although Kyne on the ex we have relied Management, 470 U.S. 105 S.Ct. ception challenges to allow to actions (1985). 1620, 1626-27, Here, 84 L.Ed.2d 674 ground they agen on exceeded 8128(b) Secretary argues that 5 U.S.C. see, cy’s delegated authority, e.g., Champion Congress’ judi manifests clear intent bar EPA, Corp. F.2d Int’l v. United States provides: cial That review. section (4th 182, 185-86 Cir.1988), previ have not we designee The action of the or his ously applicability Kyne considered the allowing denying payment ... or is— 8128(b). courts, exception §to Other howev er, purposes recognized Kyne exception final all and conclusive for have 8128(b). See, Staacke, respect questions applies e.g., and with to all of law and fact; (citing Kyne holding that F.2d at 281

“jurisdiction system, appeals exists where the court of was authorized [the charged violating a clear stat final board orders. But no court Labor] review utory prohibition”); jurisdiction enjoin mandate or see also had the Board’s admin- Labor, Nevertheless, Brumley Dep’t proceedings.1 v. 28 istrative United States — (8th 746, Cir.1994), denied, F.3d cert. Fifth Circuit held that the district court had -, 734, enjoin pro- 130 L.Ed.2d 637 U.S. S.Ct. the administrative (1995); Dep’t ceeding Kyne exception v. United under the States because Woodruff (11th Labor, 634, Cir.1992); plaintiff alleged promul- 954 F.2d that the Board’s Brock, 1363, gation regulation 860 F.2d Owens enforcement of the ex- Cir.1988); Fin., statutory authority. MCorp Paluca v. see ceeded (1st Cir.1987) Labor, Governors, 527-28 Inc. v. Board 900 F.2d (5th Cir.1990). (stating, considering Kyne, without 857-58 employees right appeal no “[f]ederal have reversed, Supreme holding Court compensation decisions on FECA Kyne ways. the ease differed from in two denied, grounds”), cert. 484 U.S. 108 First, Kyne, interpretation the Board’s (1987). S.Ct. 98 L.Ed.2d 355 wholly deprive the NLRA “would the union Kyne The district held that the ex- meaningful adequate of a means of vindi- ception applies here. The district court ac- cating statutory rights.” MCorp, its 8128(b) knowledged ju- generally bars 43, at MCorp, U.S. S.Ct. at 465-66. In any dicial of review action the however, statutory expressly pro- the scheme denying payment But under FECA. plaintiff meaningful vided the “with jurisdiction court district held that it had adequate opportunity judicial for review of Kyne exception to review the Sec- validity application] regu- [and of the ... retary’s denial of Hanauer’s that his lation” once the Board issued a final order. sum, remaining paid benefits be in a Second, Kyne, in Id. the Board contended because Hanauer claimed that this denial judicial that a providing statute review of statutory violated a clear in FECA. silence, implied, by certain board actions its preclusion of challenged review of the action. Secretary argues The that the district however, MCorp, In clearly pre- the statute holding Kyne excep court erred that the judicial proceeding cluded until review tion applies principal this case. He relies 44, completed. See id. at at S.Ct. ly Supreme on the decision of the Court 466. Financial, MCorp Board Governors v. Inc., 32, 459, statutory 502 U.S. S.Ct. 116 L.Ed.2d Like the scheme at issue in (1991). 8128(b) MCorp, In plaintiff, MCorp, § a bank unambiguous contains an holding company, enjoin sought preclusion judicial the Board review. But unlike the System statutory Governors of the Federal Reserve MCorp, scheme at issue in the stat- from prosecuting proceed utory administrative provide scheme at issue here does not ing against alleged judicial it for its violation of a review of a final order of the regulation. applicable banking Secretary.2 Board The consider this We distinction to regulatory system Acceptance statutes established a critical. be of the 8128(b) judicial argument review of Board actions. precludes Under this district applicable provided: Kyne exception 1. The statute is intended to address. [E]xcept provided MCorp, emphasized plaintiff the Court otherwise in this section meaningful no court shall have to affect adequate had a means of vindi- injunction or otherwise the issuance or en- cating statutory rights its claimed because it any forcement of notice or order under this eventually judicial could obtain review in the section, review, modify, suspend, or to termi- appeals. puipose Kyne ex- nate, any or set aside such notice or order. ception agency's tois ensure that an violation of 1818(i)(1). statutory a clear mandate is corrected. See 190, Kyne, 358 U.S. at 79 S.Ct. at 184-85. The Although procedures FECA contains for admin- existence of administrative review within the denying istrative review of decisions benefits, agency, laudatory, while procedures cannot substitute for see 5 U.S.C. allay judicial are not sufficient to the concerns that the review. considering claims that the Sec- S.Ct. 2781-82 & n. 81 L.Ed.2d 694 courts from statutory mandate retary (holding ambig- a clear that when a statute is violated Court, would, uous, Supreme inquiry in the words the court’s limited deter- meaningful “wholly deprive[claimants] of a mining agency’s interpretation whether vindicating adequate reasonable, [their] means of recognizing of the statute is statutory rights.” MCorp, 502 at See U.S. judiciary authority final is the on 43, 112 at 465-66. Mindful that we S.Ct. statutory issues of construction and that it lightly infer that does not “cannot reject must administrative constructions that judicial rights protection intend it confers intent). contrary congressional are to clear against agency action taken excess of dele- cursory If a review of the merits reveals that gated powers,” Kyne, 358 U.S. did not violate a clear statuto- 184-85, MCorp we conclude that S.Ct. at mandate, ry the case must be dismissed for 8128(b) compel does not us to hold that subject jurisdiction. lack of matter See precludes considering from district courts Champion, 850 F.2d at 190. these With claims that violated a clear mind, principles we review the statutory mandate. framework of FECA to determine whether has violated a clear MCorp This view of accord with mandate. interpretation MCorp. the Ninth Circuit’s rejected explicitly Ninth Circuit IV. argument MCorp, that under a statute that comprehensive FECA establishes a judicial generally precludes review necessari compensation program exclusive workers’ ly precludes review of claims that an 8116(c). employees. federal See 5 U.S.C. scope delegated exceeded the FECA, government pays Pursuant Bozarov, authority. United States v. See compensation disability for or death of an (9th 1037, Cir.1992), F.2d 1045 n. 8 cert. employee resulting personal injury from sus- denied, 1273, 917, U.S. S.Ct. performance tained while in the of official (1993). Rather, when a claim L.Ed.2d 8102(a). duty. § provided 5 U.S.C. Benefits opportunity ant would have no other for under FECA include benefits for total or meaningful adequate judicial review of a partial disability compensate for lost statutory claim exceeded its wages compensate and “schedule awards” to authority, may a district court still consider loss, use, permanent for or loss of of a mem- claim, precludes such a even if a statute body.3 ber or function of the See 5 U.S.C. general. id. review See 8124(a), §§ § 8105-07. Under 5 U.S.C. the Kyne Our conclusion that ex Secretary: ception applies inquiry here does not end our finding shall determine and make a of facts jurisdic into whether the district court had against payment and make an award for or Kyne exception tion over this case. The compensation ... of after— allowed the district court to conduct a “curso (1) by considering presented the claim ry review the merits” of the case to deter of beneficiary report and the furnished Secretary mine whether the violated a clear superior; immediate statutory Champion, mandate. See 850 F.2d (2) completing investigation as he question 186. When the statute necessary. considers capable plausible interpretations, of two hearings on Claimants are entitled to their adopt interpreta decision to one compensation representa- a claims for before tion over the other does not constitute Secretary. tive of the See 5 U.S.C. violation a clear mandate. 8124(b). § Chevron, Staacke, 282; 841 F.2d at cf. U.S.A., to award benefits has been Inc. v. Natural Resources Once decision Defense Council, Inc., rendered, is calculat- 467 U.S. 843 & n. the amount body, legs, paid pursuant parts or or for "Schedule awards” are to a of the such as arms schedule, body, compensation compen- functions of the such as which lists the loss various 8107(c). § hearing sation that will be awarded for of various or vision. See 5 U.S.C. loss monthly gate, Department employee’s Labor claims examin- ed on the basis er, 10.130, summarily § § see 20 C.F.R. denied pay. 5 U.S.C. 8105-07. These bene See ordinarily periodic request, stating pursuant Hanauer’s paid are install fits however, 10.311, “lump-sum payments § provides, 20 C.F.R. ments. See id. FECA longer obligation pay per wage-loss compensation are no consid- government’s (J.A. 16). disability brought this ered.” Hanauer then manent benefits: court, alleging action in the district that 20 may discharged lump-sum pay- be § C.F.R. 10.311 is void because it conflicts equal present value of all ment 8135(a). §with payments ... if— future (1) beneficiary monthly payment to the 8135(a) § Referring both to and to month; is less than a$50 8124(a), § the district determined (2) beneficiary is or is about to become summary denial Hanauer’s States; or a nonresident the United lumpsum payment based on 20 C.F.R. ... determines that it is § 10.311 a clear violated beneficiary. for the best interest of the adjudica requiring FECA individualized 8135(a). 5 U.S.C. requests tions of 8135(a) benefits. Our review of promul- FECA authorizes the 8124(a) us, however, convinces that neither necessary gate regulations for ad- rules clearly adju statute mandates individualized ministration and enforcement of FECA. See requests lump-sum payment dications of authority, 8149. Pursuant to this of benefits. promulgated regulations implementing lump-sum payment provi- concedes, Congress’ As Hanauer use of the 8135(a). sion of 5 Before 8135(a) “may” §in word confers discretion simply regulation tracked the grant on the to decide whether to 10.311(a) (1992). statute. See C.F.R. lump-sum payment of benefits. regulation But revised the Cantrell, See Hicks provide: 1992 to Cir.1986). however, argues, Hanauer (a)(1) In exercise of the discretion afforded 8135(a), conjunction 8124(a), 8135(a), by section the Director has deter- mandates that the exercise his dis- lump-sum payments wage- mined that [of by considering cretion the merits of each longer benefits] loss will no be made.... request lump-sum payment. for The Secre- on, among This determination is based oth- hand, tary, argues nothing on the other that er factors: 8135(a) 8124(a) § § prevents or him from (i) that The fact FECA is intended as exercising by promulgating his discretion (ii) wage-loss replacement program; The regulation providing for an across-the-board general advisability that such benefits be requests lump-sum payment denial of all for basis;

provided periodic on a wage-loss benefits. (in) high cost The associated with the Secretary’s argument The constitutes an long-term borrowing necessary that is 8135(a). entirely § plausible interpretation of pay large lump out sums. INS, Hong See Fook Mak v. 435 F.2d (1995). § 20 C.F.R. 10.311 The (2d Cir.1970) (“The J.) (Friendly, legisla- requests lump- will continue to consider for grant privi- ture’s of discretion to accord a payment of schedule See 20 awards. lege imply does not a mandate that this must 10.311(b)(1995). § C.F.R. inevitably examining done each case be

Here, wage- by identifying groups.”). Hanauer than In- was awarded FECA rather deed, disability Secretary’s permanent upheld loss benefits for a re- we have similar Hicks, sulting injury interpretation from an that occurred of another statute. See employment. provi- Subsequently, course of his he 803 F.2d at 792-93. Hicks involved a sought Supplemental Compensa- pay- decided to move to Canada and sion of the Federal funded, Act, remaining federally ment of tion benefits which created 8135(a)(2). § program The dele- state-administered benefit for ex- 13H benefits, provided rather The statute that than to determinations service members. re “may” recoupment garding of over- payment waive the the method of a state those ben if it determined payments Additionally, from beneficiaries efits. must con specified conditions were met. Id. at presented by sider “the claim beneficiary interpreted 792. The of Labor report and the [employee’s] furnished to make individual this statute allow states superior....” immediate case-by-case 8124(a)(1) added). determinations on a ba- waiver (emphasis empha The sis, requests not to consider for or to choose language report sized refers to the require repayment and to from all waivers employee’s superior” “immediate must make over-compensated. individuals who were We “[immediately injury after an to [the] em interpretation of the statute held this ployee” under 5 U.S.C. 8120. A reasonable, though even it allowed states lump-sum payment for of benefits made after requests to refuse to consider all for waivers. the claimant’s entitlement to benefits has Hicks, Accordingly, 803 F.2d at 792-93.4 been established does not involve such a 8135(a) Secretary’s interpretation al- Thus, report. plausible it is at least requests low him to refuse to consider all for 8124(a) apply requests does not lump-sum payment wage-loss is a benefits lump-sum payment of benefits made after plausible interpretation. Because the Secre- the claimant’s entitlement to benefits has tary’s interpretation plausi- of the statute is already been established. Because the Sec ble, statutory it not man- does violate clear retary’s interpretation plau of the statute is Staacke, 841 F.2d at The date. See 282. sible, it does not violate a clear 8124(a) Secretary’s interpretation of is also Staacke, mandate. See 841 F.2d at 282. argues plausible. 8124(a) only requires adjudica- individual V. employee’s tions of an entitlement to bene- fits, requests lump-sum pay- and not of summary, In FECA does not contain a employee’s ment of benefits made after the requiring clear an individ- has been entitlement established. adjudication ual of Hanauer’s 8124(a) supports lump-sum payment remaining wage- of his statute, Secretary’s argument. Under the Accordingly, loss benefits. we vacate the must “determine and make a district court’s decision and remand for the finding of facts and make an award or subject district court to dismiss for lack of against payment compensation ...” jurisdiction. matter 8124(a) added). (emphasis This language arguably refers to determinations AND VACATED REMANDED WITH of a claimant’s entitlement INSTRUCTIONS. Hicks, Co., changed had his inter- Island CreekCoal 369 n. 5 1994). pretation of the statute times. We Cir. several never- ’ Chevron, theless concluded that under "we must holding The limitation on Hicks does not af- interpretation long accord his deference so as Although fect our reliance on Hicks in this case. interpretation that is reasonable.” 803 F.2d at Secretary's requests the to refusal consider Hicks, Subsequent to 793-94. our decision in 8135(a) payment wage-loss Supreme the Court clarified that courts should case-by-case change benefits on a basis marks a agency’s statutory accord less deference to an 8135(a) policy, Secretary’s application the interpretation agency’s that conflicts with the has not been so inconsistent as to render his interpretation previous interpretation of the same statute. See implausible. of the statute See Mines, 680, Pauley BethEnergy Sullivan, 173, 186, v. Inc. 501 U.S. Rust v. 500 U.S. 111 S.Ct. 698, 2524, 2534-35, 1759, 1768-69, 111 S.Ct. 115 L.Ed.2d 604 (reject- 114 L.Ed.2d 233 “ (1991); Cardoza-Fonseca, 421, INS v. 480 U.S. ing argument agency’s interpreta- ‘the that an 30, 1207, 30, 446 n. 107 S.Ct. n. repre- 94 L.Ed.2d tion is not entitled to deference because it ” (1987). Accordingly, we have noted sharp prior interpretations' that a with sents break " the extent holds we agency, engage Hicks that must accord "nor- because ‘the in informed agency’s statutory varying interpreta- rulemaking, mal” Chevron deference to an must consider interpretation agency's policy that conflicts with the on a tions and the wisdom its continu- statute, Chevron, 862, basis’") previous interpretation ing (quoting of the same 467 U.S. at 863-64, 2791, 2791-92). longer good “Hicks is no law.” 104 S.Ct. at Malcomb

WILLIAMS, according it Judge, becomes District submitted Senior necessary that section. dissenting: to review concurring and presents respectfully I dissent. This case 8122(a) begins by stating that Subsection Secretary of question of whether the the original compensation claim for for dis- “[a]n Labor, which confronted with a statute when ability or death must be filed within three allows him to exercise broad discretion injury (emphasis years after the or death” change reviewing requests to the method of added). interpret to avoid One must statutes payments, may previously awarded benefit redundancy superfluous language; regulation mere that he instead decree therefore, adjective “original” must have no discretion and will never will exercise See, e.g., meaning. some Associ- Westfarm specified by undertake a review Sanitary Washington Com- ates v. Suburban Secretary, and now a detailed statute. The mission, Cir.1995), F.3d majority, abdication of believes States, citing v. United 510 U.S. Ratzlaf “prospective role discretion” and -, 126 L.Ed.2d 615 S.Ct. clearly express does not conflict with the (1994). Redundancy original an exists unless I of FECA. Because believe only species of claim avail- claim is not the Secretary’s action violates the clear man- (b) Although subsection refers able. statute, type of date of the and because this disability, claims for latent such claims are only prospective can be defined as discretion claims, i.e., original still claims in the first discretion, euphemism I for abuse of would The drafters of 8122 distin- instance. majori- join I affirm the district court. guished original claims and directed I, III ty’s opinion in II and sections periods apply limitation of that section from sections and V. dissent IV only. original Non-original claims claims separate analyses demonstrate that Two must therefore exist. affirmed. The the district should be Following logic of the statute and of first, Secretary’s regulation by the created Secretary’s arguments, petition pressed unintentionally argument his lump archetypal sum must be an appeal, lump on characterizes non-original claim. As counsel for the Secre- sum as a claim. The benefits new tary argument, at oral admitted Secre- findings must make detailed of fact under 5 tary required lump process would be presented a new 8124 when through § sum claim with attendant claim but has not done so this case. The fact, findings lump if the sum claim were second, using majority, the rubric of the part original made as claim. Counsel lump petition characterizes the as mere- findings required that such were not believes ly un- modification regulation, under the former which allowed Secretary may deny der While requests, belief was never lump sum awards even when the conditions courts; challenged apparently, long in the so met, of 8135 are the clear mandate lump treated sums as a may only statute indicates that he do so after claims, permissible paying original method of actual, case-specific determination However, interpretation respected. request. argu-

merits of the I address each changed lump his view on ment in turn. argu- doing, sums. In so he reinforced the sufficiently ment that a sum is distinct I. to constitute a new claim. plaintiff-respondent’s lump sum Was Secretary’s proffered request a claim? entitled The reason for his new Section “Claim,” only regulatory flip-flop lump is that sum awards dictates the form which the borrowing presented, require long claim a claim term has now shall be and which prohibitive. significant defined. There- become cost It FECA is nowhere otherwise not mention cost to the extrapolate fore one must from the treatment that 8135 does sections, and, Department appropriate as an fac- of claims in because sub- Labor other 8121(1) Secretary’s discretionary section tor for the determi- dictates that claims must be rather, nation; it is “the best interest of the the case of individuals who have re- beneficiary” government for and not of the ceived supplemental amounts Federal concerned. The Secre- compensation they which was to which were not enti- formerly appropriateness tled, tary considered the require the State is authorized to lump accounting issue: more sums a mere repay such individuals to the amounts of money in money time versus less one over supplemental such compensation Federal payment, a choice which should be neutral to agency, except the State that the State Secretary time-value calculations after agency may repayment waive such if it Secretary averaging and the effect of the as determines that— repeat player. a When the held (i) compensa- of such Federal him a position the choice was to part any tion was without fault on the wash, accounting concept, basically a mere individual, such and position respect. his deserved some non-claim (ii) repayment contrary would be longer. No equity good conscience. argu- has in effect made the Despite noting See 803 F.2d at 791. lump a ment that a sum is not mere alloca- judiciary reject “must administrative tion issue an issue of whether to increase but contrary constructions that are to clear Con- argues that a some fashion. He intent,” gressional upheld less, the Court the Sec- lump sum with leaves retary’s decision. Id. at more; otherwise, 792-93. The ma- beneficiary jority believes Hicks controls this case purportedly increased costs would not be here, because in Hicks the statute used prohibitive. Any request lump sums is permissive “may” term instead of the request thus a for increase benefits. The directive “shall.” request fundamentally a animal Even the Secre- different becomes, tary however, argue, “may” not from the first claim and does logic, unambiguously claim. own new Where allows his action. The task statutes, interpreting for benefits the first instance is an federal benefits claim, then, original lump always passed in sum which are the form of mul- subsections, non-original tiple requires global must be a claim. Hanauer has under- standing therefore filed a claim and deserves a full of the whole statute not a nar- review; single row focus on a since the failed to word. With such an one, FECA, perform understanding his action should be reversed Hicks is instructive judgment distinguishable and the of the district court af- to but from this case.

firmed. key distinguish There are two factors to general the FSCA from focus of FECA: II. they the statutes and the eras in which were majority’s analysis Does the survive dear- passed. age simple the statutes is scrutiny? only pertinent In the point telling: whereas in Hicks FSCA powers, regulatory pro- statement of FECA passed in was a time which vast may vides that “[t]he of Labor power great agen deference federal prescribe regulations necessary rules and drafters, cies was well understood the administration and of this enforcement § 8135 of when FECA became law subchapter.” (emphasis agency supremacy unanticipated. See added). decision, By majority allows 64-266, 14, Sept. Act of Pub.L. No. high- to add two words to the meaning *. The Stat. clear lighted Congressional language: repeal.” “or “may” in the 1916 statute is discretion after A request, of Hicks v. Cantrell is neces- full review of a not discre discussion Hicks, sary. altogether. The statute in the Federal tion to avoid review To believe (“FSCA”), Supplemental Compensation require presci Act otherwise would unrealistic provided: ence of the drafters.

* amounts, phrasing updated key language While the statute has been to modem lar the is unchanged. form with subsection numbers and increased dol- Co., discretionary “may” v. Island overtones of “can rule. See Malcomb Creek Coal (no by legislative agency in-

be defeated indications of 15 F.3d at 369 deference inter contrary by pretation reversing, explanation, tent to the or obvious inferences without purpose years). for 60 the from the structure or of the statute.” definition used While Sec retary’s Rodgers, lump regulations about face on sum United States U.S. (1983). egregious agency flip-flops is not as as the 103 S.Ct. L.Ed.2d 236 Malcomb, purpose changed The structure and of FECA distin- the fact he has his guish interpretation surely argument this ease from Hicks. FECA is about adds to the Second, fair, compensation against applicability Hicks efficient federal em- here. injuries suggests ployees’ is a remedial stat- fundamental fairness that where —FECA ute, interpreted broadly Congress in which should be has created a mechanism for bene test, give in fits favor of beneficiaries order to the and a claimant meets the he should statute full effect. The Internal Revenue at least be entitled to some form of review. Code, Secretary merely If part, stinginess of which FSCA was a focuses the increased i.e., tenfold, payments government; lump might instead on to the toward sums he be with remedial, all, discretion; however, if at in FSCA is favor of the his the “may” language gone beyond stinginess state. The in the cited If to arbitrariness. one-in-a-million, perfect FSCA subsection was also clause which the candidate for what, provided exception lump payments suddenly ap narrow even were subsection, general pear, rule. the would never know the contrast, injustice applying § policy FECA’s is a free-stand- ideal ing only lump perfect subsection which deals claimant —even evidence would never third, finally, discretionary sums. And over- be reviewed. And it is remarkable “may” by regulation tone of is not repeal reinforced the use of that mere could in effect FECA, places eighty year “shall” in various other old statute. Conservative including “may” principles reg 8135 itself. To switch would never elevate a act, “shall” in Congressional 8135 would remove all discretion ulation above even were regulation by from the but do questioned decision so of the not liti favor claimant, just clearly gants. Perry, which did See Thomasson v. (4th Cir.1996) J., not currently (Luttig, mean to do. As is concur structured, “may” merely ring) (validity regulation means is before the apply need not the section’s factors parties). Court even when not raised not, robotically. “May” does as the Secre- permits reg- Section 8149 believes, tary robotically entitle him to no use only FECA, ulate to enforce and administer discretion all —if at Hicks stands for that regulatory and enforcement of proposition, the case is in error and should repeal “prospec- is a nonsensical result. The be overturned. tive discretion” of 20 CFR 10.311 is no dis- end, analysis a elear-mandate comes cretion, and abuse of discretion could have no statute, impact down to the in subsec- Regulatory repeal clearer name. entirely, judge. tion or on the The statute only ais violation not of 8135 but of 8149 clearly mandates an individualized review. as well. Whether considered from sound Although language alone sustains that equitable principles or parsing the coldest view, doubly strong statute, when simply action is light power considered in 1916. wrong.

Because the violated the clear phrased by As Hanauer’s counsel at oral statute, mandate the district court argument, may appeal “tilting this well be should be affirmed. in a It undisput- windmills” certain sense. ed that this court to were remand the case

III. review, doing for an individual and after so general Some observations about the case still denied sum benefits First, claimant, are in already order. this Court has to the the Court would have no proven impenetrable that Hicks is not an review his indi- only But fact vidual case. raises bevy

larger point. Were a of Hanauers to proof

return to district court with performing pro forma individ- actually

ual review under meant deny requests,

to and did all the Court’s would reattach. The by perfunctory

cannot do sotto voce denials deny power

what this dissent would him the outright regulatory

to do fiat. If individu- meaningless, Congress’s

al review is meaningless, 8135 has now been made

clear mandate of FECA is violated.

I therefore dissent and would affirm the

district court. America,

UNITED STATES

Plaintiff-Appellee,

Mary FIKE, Douglas, Jane Eddie Franklin Douglas, Doug-

Edd C. Altonio O’Shea

las, Douglas, Jr., Elbert James Weldon

Campbell, King, Orpheus Hill, Burvon Chauncey Douglas,

Arthur Jackson Mos-

ley, Cynthia Wesley Tamplin, James

Wilson, Defendants-Appellants.

No. 93-1797. Appeals,

United States Court

Fifth Circuit.

7,May

Case Details

Case Name: James L. Hanauer v. Robert B. Reich, Secretary of Labor

Court Name: Court of Appeals for the Fourth Circuit

Date Published: May 6, 1996

Citation: 82 F.3d 1304

Docket Number: 95-2499

Court Abbreviation: 4th Cir.