                                                                                                                           Opinions of the United
1999 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-2-1999

McDougal-Saddler v. Secretary Labor
Precedential or Non-Precedential:

Docket 98-1068




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1999

Recommended Citation
"McDougal-Saddler v. Secretary Labor" (1999). 1999 Decisions. Paper 189.
http://digitalcommons.law.villanova.edu/thirdcircuit_1999/189


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 1999 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
Filed July 2, 1999

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 98-1068

CLEOPATRA McDOUGAL-SADDLER

       Appellant

v.

ALEXIS M. HERMAN, Secretary,
U.S. Department of Labor,

       Appellee

ON APPEAL FROM THE
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
(D.C. No. 97-1908)
District Judge: Honorable Jan E. DuBois

Argued October 8, 1998

Before: McKEE, RENDELL, Circuit Judges, and
DEBEVOISE, Senior District Judge*

[Filed: July 2, 1999]

Jeffrey P. Zeelander [Argued]
1608 Walnut Street,
Suite 1300
Philadelphia, PA 19103-5407



_________________________________________________________________

*Honorable Dickinson R. Debevoise, United States Senior District Judge
for the District of New Jersey, sitting by designation.
       Richard B. Cappalli
       Klein Hall
       1719 N. Broad Street
       Philadelphia, PA 19122

        Counsel for Appellants

       Karen B. Kracov [Argued]
       Assistant United States Attorney

       Michael R. Stiles
       United States Attorney

       James G. Sheehan
       Assistant United States Attorney
       Chief, Civil Division

       Nadine M. Overton
       Assistant United States Attorney

       615 Chestnut Street, Suite 1250
       Philadelphia, PA 19106-4476

        Counsel for Appellees

OPINION OF THE COURT

DEBEVOISE, Senior District Judge:

Appellant, McDougal-Saddler, appeals the district court's
order granting the motion of Cynthia Metzler, Acting
Secretary, United States Department of Labor ("DOL")1 to
dismiss the complaint for lack of subject matter
jurisdiction. We have jurisdiction over this appeal pursuant
to 28 U.S.C. S 1291.

In an earlier opinion we affirmed the district court on the
ground that McDougal-Saddler lacked standing to bring
this action. Upon her petition for panel rehearing we
vacated that opinion and asked for supplemental briefing.
We will now affirm, holding that by virtue of 5 U.S.C.
S 8128(b) the district court did not have jurisdiction.
_________________________________________________________________

1. Alexis M. Herman is presently United States Secretary of Labor.

                                 2
I. The Facts

On May 14, 1982 McDougal-Saddler, then a 39-year old
U.S. Postal Service distribution clerk, filed a claim with the
Office of Workers' Compensation Program ("OWCP") for an
injury to her back, upper neck and shoulder sustained on
May 8 when handling trays of mail. On June 24 the OWCP
began payment of compensation for temporary total
disability. Dr. David S. Schwartz, a Board-certified internist
and cardiologist, began treating McDougal-Saddler on
August and diagnosed cervical and lumbosacral strains. He
found his patient to be totally disabled.

After a February 1985 fitness-for-duty evaluation,
McDougal-Saddler was offered and accepted reemployment
as a distribution clerk with limited duties. She returned to
work on March 31, 1985 but again stopped working on
April 5, stating that because of pain in her neck, shoulder,
arm and back she could not continue. Dr. Schwartz
examined her the next day; he diagnosed cervical and
lumbar strain and stated she was totally disabled.

On May 7, McDougal-Saddler filed a claim for a
traumatic injury to her neck, shoulders and upper and
lower back sustained on April 5 when casing mail. On May
20 the OWCP again began payment of compensation for
temporary total disability. In a June 17, 1985 report Dr.
Schwartz diagnosed cervical radiculopathy. In a May 22,
1986 report he diagnosed chronic pain syndrome including
chronic lumbosacral strain and chronic cervical strain. In
an April 10, 1987 report Dr. Schwartz wrote, "Because of
chronic debilitating pain and limited range of motion due to
muscle stiffness and spasm, despite intensive physical
therapy and medication, [McDougal-Saddler] is totally
disabled from work at this time and for the near indefinite
future."

The OWCP referred McDougal-Saddler to Dr. William H.
Simon, a Board-certified orthopedic surgeon for a second
opinion. In a May 4, 1987 report Dr. Simon diagnosed
cervical and lumbar discogenic syndrome with cervical and
lumbar nerve root irritation. He concluded that "[t]here is
no evidence that she sustained any acute injury that is
responsible for this but that she has a slowly developing

                               3
degenerative condition which limits the amount of work
that she can do."

On December 31, 1987 the OWCP notified McDougal-
Saddler that it proposed to terminate her compensation on
the ground that her disability resulting from her
employment injuries had ceased. In response McDougal-
Saddler submitted another report of Dr. Schwartz in which
he stated that her symptoms were "specifically due" to her
May 8, 1982 injury and that her April 5, 1985 injury
"added to her previous cervical and lumbosacral strain."

Effective November 20, 1988 the OWCP terminated
McDougal-Saddler's compensation on the ground that the
weight of the medical evidence established that her
disability from her employment injuries ceased by that
date. After a hearing an OWCP hearing representative
found in a February 21, 1989 decision that McDougal-
Saddler had not been afforded due process because she
had not been provided with a copy of Dr. Simon's May 4,
1987 report. The hearing representative remanded the case
for reinstatement of compensation and a re-evaluation by
Dr. Simon.

At Dr. Simon's request a Board-certified radiologist
performed a computerized tomography scan of McDougal-
Saddler's lumbosacral and cervical spine. On the basis of
the resulting report Dr. Simon revised his original opinion,
stating in a November 15, 1989 report, "we now have
objective evidence that this patient has cervical discogenic
abnormalities beyond degenerative changes both in her
neck and back."

Based on the entirety of the reports which had been
submitted to it, the OWCP found that there was a conflict
of medical opinion. On October 22, 1991, it referred the
case to Dr. John T. Williams, a Board-certified orthopedic
surgeon, to resolve the conflict. The OWCP purported to act
pursuant to the provisions of 5 U.S.C. S 8123(a), which
provides: "If there is disagreement between the physician
making the examination for the United States [Dr. Simon]
and the physician of the employee [Dr. Schwartz], the
Secretary shall appoint a third physician who shall make
an examination." According to the Federal (FECA)

                                4
Procedure Manual, "The [Employees' Compensation Appeals
Board] has stated that `an impartial specialist's report is
entitled to greater weight than other evidence of record as
long as his conclusion is not vague, speculative or
equivocal and is supported by substantial medical
reasoning'." Part Two, Chapter 2-810.11 c.(2).

Dr. Williams conducted a physical examination of
McDougal-Saddler, reviewed the medical records and in a
March 4, 1992 report stated, among other things, that
"what we are seeing here is the progression of degenerative
joint and degenerative disc disease over a period of
approximately seven years secondary to the normal wear
and tear on the body and the aging process. The work-
related injury did not cause the degenerative pathology first
noted in 1987."

The OWCP terminated McDougal-Saddler's compensation
on September 20, 1992, concluding that the weight of the
medical evidence, represented by Dr. Williams's reports,
established that the effects of her April 5, 1985 and May
11, 1982 injuries had ceased. On appeal an OWCP hearing
representative found in a November 24, 1993 decision that
the opinion of Dr. Williams, the impartial medical specialist,
resolved the conflict of medical opinion and established that
the effects of the 1982 and 1985 injuries had ceased by
September 20, 1992. By letter dated February 27, 1995
McDougal-Saddler requested reconsideration, contending,
among other things, that Dr. Williams was not an impartial
medical specialist entitled to special weight because Dr.
Simon's November 15, 1989 report did not conflict with the
conclusions of Dr. Schwartz. The OWCP denied the request
for reconsideration, and McDougal-Saddler appealed to the
Employees' Compensation Appeals Board ("ECAB").

The ECAB authored a detailed opinion. It weighed the
evidence which had been developed during the years
following McDougal-Saddler's original injury in May 1982.
It contrasted the qualifications of Drs. Williams and
Schwartz and analyzed the basis and reasoning of their
respective reports. It found "that the weight of the medical
evidence establishes that [McDougal-Saddler's] disability
related to her May 8, 1982 and April 5, 1985 employment
injuries ended by September 20, 1992."

                               5
The ECAB, however, agreed with McDougal-Saddler's
contention that Dr. Williams was not an impartial medical
specialist because at the time of his appointment there was
no conflict of medical opinion.

The consequence which the ECAB attributed to the
denial of impartial medical specialist status to Dr. Williams
was ". . . the reports of Dr. Williams are thus not entitled
to the special weight afforded to the opinion of an impartial
medical specialist resolving a conflict of medical opinion
. . ." The ECAB treated Dr. Williams's reports in the same
manner as it treated the other medical evidence, giving it
no special deference. It weighed the totality of the evidence
and on March 20, 1996 affirmed the decision of the OWCP.
Thereafter it denied a petition for reconsideration.

McDougal-Saddler contends that the procedures leading
to the denial of her benefits were in violation of the clear
mandate of 5 U.S.C. S 8123(a) which provides in relevant
part:

       If there is disagreement between the physician making
       the examination for the United States and the
       physician of the employee, the Secretary shall appoint
       a third physician who shall make an examination.
       (emphasis added).

This mandate is implemented by regulation:

       If there should be disagreement between the physician
       making the examination on the part of the United
       States and the injured employee's physician, the Office
       shall appoint a third physician, qualified in the
       appropriate specialty, who shall make an
       examination . . . . (emphasis added).

20 C.F.R. S 10.408.

The ECAB's opinion held that Dr. Williams was not an
impartial expert because there was no conflict of medical
opinion at the time his opinion was sought. Thus the
"disagreement between the physician making the
examination for the United States and the physician of the
employee" arose at the time Dr. Williams rendered his
opinion. Notwithstanding the dictate of S 8123(a), the ECAB
did not require appointment of "a third physician". Instead

                               6
it weighed the evidence before it, affirmed the decision of
the OWCP terminating compensation and later denied a
petition for reconsideration.

Notwithstanding the explicit language of S 8123(a) and
implementing regulations, OWCP weighs the medical
reports when determining whether to appoint a third
physician. In its Federal (FECA) Procedural Manual and in
practice, according to McDougal-Saddler, OWCP appoints a
third physician only "where the analysis of the evidence
demonstrates conflicting opinions or conclusions which are
supported almost equally." Generally "[c]areful analysis of
the medical evidence should allow for resolution of most
issues without resorting to a referee or `impartial'
specialist." (Federal (FECA) Procedure Manual, Part Two,
Chapter 2-810-11 a, App. 53).

It is difficult to square this weighing process with the
S 8123(a) mandate that "[i]f there is disagreement [between
the government and employee physicians] the Secretary
shall appoint a third physician." (emphasis added).

McDougal-Saddler filed in the district court a complaint
and petition for declaratory and injunctive relief, alleging
that DOL has adopted procedures that violate the statutory
directive regarding the appointment of a third physician.

II. The District Court Opinion

The DOL moved to dismiss McDougal-Saddler's complaint
for lack of subject matter jurisdiction, relying on 5 U.S.C.
S 8128(b) which provides:

       (b) The action of the Secretary or his designee in
       allowing or denying a payment under this subchapter
       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
       United States or by a court by mandamus or
       otherwise.

McDougal-Saddler urged in opposition to the motion to
dismiss that two exceptions to the prohibition on judicial

                                 7
review applied. She asserted that the bar did not apply
because she presented evidence of a cognizable
constitutional violation. She asserted further that the bar
did not apply because the actions of the DOL violated a
clear statutory mandate.

The district court rejected McDougal-Saddler's
constitutional claims. It held that FECA PM 2-810-11a
providing for a weighing of the medical evidence before
appointing a third physician was simply an interpretive rule
clarifying the word "disagreement" in S 8123(a) and
therefore did not require public notice or a public comment
period to be valid. Its application to McDougal-Saddler did
not violate her due process rights or otherwise create a
cognizable constitutional claim. McDougal-Saddler does not
challenge this ruling in her appeal.

The district court assumed for the purposes of its
decision that a violation of a clear statutory mandate
creates subject matter jurisdiction for a court to hear a
case brought under FECA. It found, however, that because
the ECAB interpretation was plausible, there was no such
violation, holding:

       The Court concludes that FECA PM 2-810 instructs
       claims examiners in how to determine whether a
       "disagreement" between physicians exists, and that
       defendant's interpretation of 5 U.S.C. S 8123(a), using
       FECA PM 2-810, is plausible. Under that
       interpretation, it was appropriate for ECAB to decide
       plaintiff's claim based on the weight of the medical
       evidence. ECAB did not violate a clear statutory
       mandate in evaluating plaintiff 's claim. The statute did
       not, under the facts presented, require ECAB to
       remand the case for the appointment of an
       independent physician to conduct an examination of
       plaintiff.

The court granted DOL's motion to dismiss.

III. Discussion

The statutory provision at issue here provides that "[t]he
action of the Secretary or his designee in allowing or

                                8
denying a payment is - (1) final and conclusive for all
purposes with respect to all questions of law and fact; and
(2) not subject to review by another official of the United
States or by a Court by mandamus or otherwise." 5 U.S.C.
S 8128(b). Although Congress is ordinarily presumed to
have intended judicial review of agency action, "Congress is
absolutely free to limit the extent to which it consents to
suit" against the United States or its instrumentalities.
Clinton County Com'rs v. United States E.P.A., 116 F.3d
1018, 1025 (3d Cir. 1997) cert. denied sub nom. Arrest the
Incinerator Remediation (A.I.R.), Inc., 118 S.Ct. 687. 139
L.Ed.2d 633 (1998).

The starting point for the determination of Congress's
intent is the language of the statute. See New Rock Asset
Partners, L.P. v. Preferred Entity Advancements, Inc., 101
F.3d 1492, 1498 (3d Cir. 1996). In the present case there
can hardly be plainer language than that which S 8128(b)
employs. The Supreme Court has referred to S 8128(b) as
an example of language that Congress uses when it
"intends to bar judicial review altogether." Lindahl v. Office
of Personnel Management, 470 U.S. 768, 779-780, 105
S.Ct. 1620, 84 L.Ed.2d 674 (1985).

The question whether a statute precludes judicial review
"is determined not only from its express language, but also
from the structure of the statutory scheme, its objectives,
its legislative history, and the nature of the administrative
action involved." Block v. Community Nutrition Institute, 467
U.S. 340, 345, 104 S.Ct. 2450, 81 L.Ed.2d 270 (1984).
Both McDougal-Saddler and the DOL have reviewed the
legislative history of FECA and in particular the evolution of
S 8128(b). Each side argues that the legislative history
supports its position.

In Czerkies v. United States Dep't of Labor, 73 F.3d 1435
(7th Cir. 1996), Chief Judge Posner examined the same
history and found that it "reveals the limited scope of the
door-closing provision." Id. at 1440, and that adoption of
the provision "may well have been an accident." Id. at 1441.
That case, however, concerned a constitutional challenge to
action of the DOL. The court held that "[t]he history of the
Federal Employees Compensation Act provides no basis for
rebutting the presumption of judicial review of

                               9
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."
Id. at 1441. Although the district court had jurisdiction to
hear Czerkies' constitutional claim, the Supreme Court
affirmed the judgment dismissing the suit because the
constitutional claim was insubstantial.

Unlike Czerkies the present appeal does not involve a
constitutional claim. The district court held that adoption
and compliance with the provisions in the procedural
Manual providing for a weighing of the medical evidence did
not violate McDougal-Saddler's due process rights or
otherwise create a cognizable constitutional claim.
McDougal-Saddler does not challenge that conclusion on
this appeal, and we are not required to decide whether
S 8128(b) would deprive a district court of jurisdiction to
hear such a claim.

It is necessary to decide whether an asserted violation of
a clear statutory mandate constitutes a second exception to
the statutory bar. We conclude that there is nothing in the
legislative history which would permit a departure from the
unequivocal language of S 8123(b) to review such an
asserted violation, and that the decisions of our court
preclude such a departure.

McDougal-Saddler relies primarily upon two United
States Supreme Court cases, Oestereich v. Selective Serv.
Sys., 393 U.S. 233, 89 S.Ct. 414, 21 L.Ed.2d 402 (1968)
and Leedom v. Kyne, 358 U.S. 184, 79 S.Ct. 180, 3 L.Ed.2d
210 (1958). In Oestereich the draft law gave a "plain and
unequivocal" service exemption to students preparing for
the ministry. Notwithstanding the exemption, Oestereich's
draft board reclassified him I-A as a form of discipline when
he returned his registration certificate to protest the
Vietnam War. Oestereich brought suit in the United States
District Court to restrain his induction. Unambiguously
S 10(b)(3) of the Military Service Act of 1967 provided that
"No judicial review shall be made of the classification or
processing of any registrant by local boards, appeal boards,
or the President, except as a defense to a criminal
prosecution instituted under section 12 of this title, after
the registrant has responded either affirmatively or

                               10
negatively to an order to report for induction . . .." The
Court declined to apply S 10(b)(3) literally, holding that
"[s]ince the exemption granted divinity students is plain
and unequivocal . . . pre-induction judicial review is not
precluded . . . ." 393 U.S. at 238-239.

In Leedom the National Labor Relations Board included
both professional and nonprofessional employees in a
collective bargaining unit in clear violation of the National
Labor Relations Act. The association representing the
professional employees brought suit in the United States
District Court challenging the NLRB's action. The NLRA
permitted judicial review of a Board certification order by a
petition for enforcement or review of an order made under
S 10(c) of the Act restraining an unfair labor practice; the
Board argued that its order was not otherwise subject to
judicial review. The Court held that the review provisions of
the NLRA did not preclude an action "to strike down an
order of the Board made in excess of its delegated powers
and contrary to a specific prohibition in the Act." 358 U.S.
at 188.

More recent decisions of the Supreme Court and of our
Court establish that Oestereich has not been extended
beyond its particular facts and that the Kyne "clear
statutory mandate" exception will not be applied when the
statute provides clear and convincing evidence that
Congress intended to deny district court jurisdiction. In
Board of Governors of Fed. Reserve Sys. v. MCorp Fin., Inc.,
502 U.S. 32, 112 S.Ct. 459, 116 L.Ed.2d 358 (1991),
MCorp sought to enjoin administrative proceedings
instituted against it by the Federal Reserve Board on the
ground that the proceedings were in excess of the Board's
authority. It relied upon the Kyne doctrine to overcome the
statutory bar to district court jurisdiction. The Court
advanced two reasons for applying the statutory bar
notwithstanding a claim of violation of a clear statutory
mandate. First, MCorp had an alternative means of review.
Second:

       . . . [a] related factor distinguishing this litigation from
       Kyne is the clarity of the congressional preclusion of
       review in FISA. In Kyne, the NLRB contended that a
       statutory provision that provided for judicial review

                               11
       implied, by its silence, a preclusion of review of the
       contested determination. By contrast, in FISA Congress
       has spoken clearly and directly: "[N]o court shall have
       jurisdiction to affect by injunction or otherwise the
       issuance or enforcement of any [Board] notice or order
       under this section." 12 USC S 1818(i)(1) (1988 ed, Supp
       II) [12 USCS S 1818(i)(1)] (emphasis added). In this way
       as well, this litigation differs from Kyne.

        Viewed in this way, Kyne stands for the familiar
       proposition that "only upon a showing of `clear and
       convincing evidence' of a contrary legislative intent
       should the courts restrict access to judicial review."
       Abbot Laboratories v. Gardner, 387 US 136, 141, 18 L
       Ed 2d 681, 87 S Ct 1507 (1967). As we have explained,
       however, in this case the statute provides us with clear
       and convincing evidence that Congress intended to
       deny the District Court jurisdiction to review and
       enjoin the Board's ongoing administrative proceedings.

502 U.S. at 44 (footnote omitted).

In Hindes v. F.D.I.C., 137 F.3d 148, 164 (3d Cir. 1998),
we noted the "limited exception to a statute's withdrawal of
jurisdiction where the plaintiff claims that the agency acted
in a blatantly lawless manner or contrary to a clear
statutory prohibition" and emphasized "that an integral
factor in determining the applicability of the exception is
the clarity of the statutory preclusion."

In Clinton County plaintiffs sued the United States
Environmental Protection Agency ("EPA") to enjoin EPA
from proceeding with a trial burn and incineration remedy.
The district Court dismissed for lack of subject matter
jurisdiction, citing statutory provisions precluding judicial
review until EPA's remedial activities were completed.
Rejecting plaintiffs' contention that under the Kyne doctrine
violation of a clear statutory prohibition constituted an
exception to the statutory bar, we stated "[s]ubsequent
cases have refined the Kyne doctrine. In Briscoe v. Bell, 432
U.S. 404, 97 S.Ct. 2428, 53 L.Ed.2d 439 (1977), the Court
held that jurisdiction to review agency action allegedly in
excess of statutory authority cannot be inferred when
language in the statute itself expressly forecloses judicial

                               12
review . . . . More recently, in Board of Governors v. MCorp
Financial, Inc., . . . the [Supreme] Court reiterated that a
right to judicial review under Kyne may be inferred only if
there is no clear statutory prohibition of such review." 116
F.3d at 1028-1029.2

The language of S 8128(b) provides clear and convincing
evidence that Congress intended to deny the district courts
jurisdiction to review decisions of the DOL. The language is
broad enough to include both policy or rule making
decisions of the Secretary as well as individual benefit
determinations. Paluca v. Secretary of Labor, 813 F.2d 524,
527-28 (1st Cir.), cert. denied sub nom. Roberts v. Secretary
of Labor, 484 U.S. 943, 108 S.Ct. 328, 98 L.Ed.2d 355
(1987).

McDougal-Saddler seeks to distinguish MCorp, Hindes
and Clinton County from the present case, arguing that (i)
MCorp, the CERCLA case (Clinton County) and the FIRREA
case (Hindes) each involves claims with language, history
and function very different from those applicable in FECA
cases and (ii) in MCorp, Hindes and Clinton County some
form of relief was available in future proceedings. The
principles of statutory construction set forth in those cases,
however, are equally applicable here, regardless of the
context. When a plaintiff seeks to rely upon the Kyne
doctrine these circumstances are insufficient to overcome a
clear statutory prohibition of judicial review such as
S 8128(b).
_________________________________________________________________

2. In dicta four circuits have stated S 1331 jurisdiction exists to review
claims that OWCP policy violated clear statutory commands. See Staacke
v. United States Secretary of Labor, 841 F.2d 278, 281-82 (9th Cir.
1988), citing Oestereich v. Selective Serv. Sys. , 393 U.S. 233, 89 S.Ct.
414, 21 L.Ed.2d 402 (1968) and Leedom v. Kyne, 358 U.S. 184, 79 S.Ct.
180, 3 L.Ed.2d 210 (1958) (finding no clear statutory command);
Woodruff v. United States Dep't of Labor, 954 F.2d 634, 639-40 (11th Cir.
1992); (same); Brumley v. United States Dep't of Labor, 28 F.3d 746 (8th
Cir. 1994), cert. denied, 513 U.S. 1082, 115 S.Ct. 734, 130 L.Ed.2d 637
(1995) (same); Hanauer v. Reich, 82 F.3d 1304, 1307-09 (4th Cir. 1996).
These opinions, however, predate our Court's opinions in Hindes and
Clinton County.

                               13
IV. Conclusion

For the foregoing reasons, we will affirm the district
court's order granting the DOL's motion to dismiss the
complaint.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

                               14
