concurring.
I join in the opinion of the majority but I do so, in part, because of the issues raised by Lindahl’s petition for review which are not discussed in the other opinions. Lindahl seeks judicial review essentially of two issues: (1) the fact of his disability and (2) the failure of the MSPB to impose the burden of proof on OPM as required by 5 U.S.C. § 7701(c). The “question of disability” is clearly precluded by 5 U.S.C. § 8347(c) from judicial review. I do not agree, if the majority so holds, that all aspects of a disability claim are precluded from judicial review, although the claimant would have to seek relief through a different forum since our appellate review is limited to involuntary mental disability cases.
The second argument merely illustrates the error of the MSPB in attempting to force all disability claims into § 7701. MSPB admittedly does not follow § 7701 in a case such as this one. However, a statutorily imposed burden of proof cannot be conveniently ignored.
Since the thrust of appellant’s petition is to obtain judicial review of the fact of his disability, I would not transfer the case to the United States Claims Court, as appellant asks. Judicial review of that question is precluded.
DAVIS, Circuit Judge, with whom FRIEDMAN, KASHIWA and SMITH, Circuit Judges, join, dissenting.In my view the 1980 amendment of 5 U.S.C. § 8347 did not lessen or abolish the very narrow judicial review that has been accorded to disability retirement matters at least since 1956.1 The legislative objective, *406rather, was to expand judicial review in the special area of involuntary mental-disability-retirement. I join, therefore, with the several courts of appeals that have come to the same conclusion. Parodi v. MSPB, 690 F.2d 731 (9th Cir.1982); McCard v. United States, 702 F.2d 978 (11th Cir.1983); Turner v. OPM, 707 F.2d 1499 (D.C.Cir., 1983); Pitzak v. Office of Personnel Management, 710 F.2d 1476 (10th Cir.1983); see also Lancellotti v. OPM, 704 F.2d 91 (3rd Cir.1983).2 Because of these recent opinions, which cover the ground, I shorten my statement.
The core of it is that (a) the standard of narrow judicial review had been utilized for many years when Congress considered the 1980 amendment;3 (b) Congress was made quite aware of that standard during its consideration of the 1980 amendment; (c) the whole focus of that Congressional consideration was the over-narrowness of that standard for involuntary mental disability cases; (d) no one seems to have suggested that, for other types of disability cases, the existing standard should be lessened or all review abolished (indeed, the then Director of OPM expressly told Congress that the prior standard would continue for non-mental disability cases, see Turner v. OPM, supra, 707 F.2d at 1503-04); (e) there is nothing in the Committee reports or the floor discussion suggesting that the prior judicial standard was no longer to be followed in the non-mental area; and (f) no change was made in the wording of the “finality” clause (except for the special provision for mental disability and express authorization for review by the MSPB).
In the face of that history, it is hard for me to think that, in explicitly expanding review for mental cases, Congress silently withdrew for non-mental cases the limited judicial review that had long been allowed. To paraphrase what the Supreme Court said in Merrill Lynch, Pierce, Fenner & Smith v. Curran, 456 U.S. 353, 381-2, 102 S.Ct. 1825, 1841, 72 L.Ed.2d 182 (1982) (a recent Supreme Court decision holding that the reenactment and enlargement of another federal statute had incorporated a prior judicial gloss): “it is abundantly clear” that the Scroggins standard “was a part of the ‘contemporary legal context’ in which Congress legislated” in 1980. “In that context, the fact that a comprehensive reexamination and significant amendment” of the disability retirement legislation “left intact the statutory provisions under which the federal courts” had developed and used the Scroggins standard “is of itself evidence that Congress affirmatively intended to preserve that remedy.” When the “finality” language was retained and embodied in the 1980 amendment, that language carried with it the existing judicial interpretation.
By the same token it is improper to decide now (as the majority intimates should be done) that the Scroggins reading was incorrect when first adopted in 1956 (and since followed) and should be jettisoned regardless of Congress’ position in 1980. Because Congress “affirmatively intended [in 1980] to preserve” that standard we cannot and should not now rule to the contrary.
For these reasons,4 the motion to dismiss should be denied and petitioner accorded *407the right to have his claim tested under the so-called Scroggins standard.
EDWARD S. SMITH, Circuit Judge, with whom FRIEDMAN, DAVIS, and KASHIWA, Circuit Judges, join, dissenting.I fully join Judge Davis’ dissent, but I write separately because I believe it particularly important, at the threshold of this court’s existence, to consider the overall statutory structure of the civil service provisions as they relate to this court’s appellate jurisdiction. I am especially mindful that, under the Federal Courts Improvement Act of 1982, this court is now the only circuit-level forum for petitioners seeking judicial review of most agency actions under the civil service laws. With the majority’s result, I fear, we have adopted an unnecessarily cautious and restrictive approach to our nation-wide jurisdiction in this area.
I.
The comprehensive appellate framework established over the considerable period of time between enactment of the Civil Service Reform Act of 1978 and the Federal Courts Improvement Act of 1982 — and constructed by more than one Congress — does not present a model of clarity or. singularity of purpose. Specifically, the statutory interrelationships are significantly preordained depending upon the section of the code through which one enters in search of the various paths of appeal through this maze. The majority has entered the maze through a portal which mandates a dead end; it errs by failing properly to consider and weigh the merits of the other paths.
A.
Beginning at section 7703(a)(1),1 which is the jurisdictional provision for the Federal Circuit in the Civil Service Reform Act, this court has exclusive jurisdiction (see 28 U.S.C. § 1295(a)(9)) over “a final order or decision of the Merit Systems Protection Board” (emphasis supplied). An express exception to this inclusive jurisdiction is for discrimination cases, in section 7703(b)(2). Possible or partial exceptions may also be found in the civil service provisions dealing with review of Special Counsel cases2 and Senior Executive Service removals.3 Furthermore, section 7703(d) provides that the director of the Office of Personnel Management (OPM) may petition for review of “any final order or decision of the Board” (emphasis supplied) and that the Federal Circuit may hear any such case.4
*408Section 7703(a)(2) also has implications for the jurisdiction of the MSPB and this court. It differentiates between the procedures to be followed in review of final orders or decisions “issued by the Board under section 7701” and those to be followed in review of other MSPB decisions. See Phillips v. USPS, 695 F.2d 1389,1390 n. 2 (Fed.Cir.1982). Thus the MSPB has not one but a plurality of jurisdictional bases for its actions, and it is important to see what each is.
Section 7701(a) is clearly the main basis— it covers in essence all appealable agency adverse actions — and we have held that our jurisdiction of section 7701(a) actions is “plenary.” Rosano v. Department of the Navy, 699 F.2d 1315, 1317 (Fed.Cir.1983). Section 7701(a) is expressly made the jurisdictional basis for actions under sections 4303(e) (actions based on unacceptable performance), 7513(d) (adverse actions taken to promote the efficiency of the service), 7121(e) (grievance procedures), 7543(d) (actions against senior executives), and 3593 and 3595 (reinstatement or reduction in force in the Senior Executive Service). Section 5335(c) (withholding of periodic step increase), though it mentions no jurisdictional basis, has been held to be appealable under section 7701. Meyer v. Department of Health & Human Services, 666 F.2d 540, 544-45 (Ct.C1.1981). Likewise, many actions made appealable to the MSPB by OPM regulation (see section 7701(a), 5 C.F.R. § 1201.3(a)(8)) would be appealed under section 7701, though the regulations do not specifically mention it. See, e.g., 5 C.F.R. § 351.901 (reduction in force); 5 C.F.R. § 300.104(a) (employment practices). Finally, section 8347(d)(2) (OPM mental disability) determinations are expressly reviewed under section 7701(a).
Non-7701(a) cases would include, first, section 7702 (discrimination) cases which do not come to the Federal Circuit at all. Secondly, section 8347(d)(1) (OPM physical disability) determinations are also heard by the MSPB, but are either reviewed, as I see it, under Scroggins standards, i.e., a lower
standard than for section 7701, or, as the majority sees it, not at all, i.e., a much lower standard than 7701. Thirdly, those non-7701(a) cases referred to in section 7703(a)(2), then, must include actions pursuant to sections 1206(c) and (h) (special counsel actions) and possibly 3592 (removal from the Senior Executive Service).5 Finally, MSPB decisions regarding award of attorney’s fees under section 7701(g)(1) do not originate in an agency but are nevertheless reviewable by this court. See, e.g., Sterner v. Department of the Army, 711 F.2d 1563 (Fed.Cir.1983).
To sum up, if one starts with section 7703(a)(1), one finds that this court has jurisdiction of all MSPB decisions except discrimination cases and possibly certain Special Counsel and Senior Executive Service cases. MSPB decisions fall into five categories — section 7701(a), non-7701(a) (i.e., those indicated by section 7703(a)(2)), physical disability determinations, attorney’s fees awards, and discrimination — each of which categories has a different (or no) standard of review in this court.
B.
Starting instead at section 7701(a), the provision for MSPB jurisdiction, one immediately notes that its language is as broad as (or broader than) the provision for Federal Circuit jurisdiction in section 7703(a)(1). The MSPB has jurisdiction of “any action which is appealable to the Board under any law, rule, or regulation” (emphasis supplied). Based on this plain language, the MSPB has taken the position that 7701 is an umbrella provision, encompassing all substantive rights to appeal. In other words, all non-discrimination claims are funneled through section 7701 review by the board and thence to the Federal Circuit.
It is tempting to accept this view, for, since we have held that our section 7701(a) review authority is “plenary” (Rosano), this view would obviate the need for these many pages attempting to unravel the jurisdic*409tional knot before us. I agree with the majority, however, that careful statutory construction cannot bring us to such an elegant conclusion. For example, if all review were either under section 7701 or 7702, then section 7703(a)(2) would be meaningless in suggesting non-7701 appeals to the Federal Circuit. Sections 1206, 1207, 3592, and 8347(d)(1), which expressly or apparently provide independent appeal routes to the MSPB, would be overridden.
C.
As to another alternate route, if one begins at section 8347, as the majority does, it seems immediately apparent that section 7701 does not apply to section 8347(d)(1) (physical disability) actions. Legislative history aside, the structure of subsections (c) and (d) makes it plain that a difference in treatment is intended between paragraphs (1) and (2): that MSPB reviews mental disability ((d)(2)) under 7701, while it reviews physical disability ((d)(1)) under (d) (1) itself, with procedures prescribed by the MSPB. There is therefore a conflict here with the plain language of section 7701(a), which covers “any action * * * appealable to the Board under any law.” (Emphasis added.)
Moreover, as the majority discusses, the statute provides that mental disability ((d)(2)) cases are not only to be reviewed by the MSPB under section 7701 but also “shall be subject to judicial review under section 7703.” Since this language is absent from the physical disability (d)(1) provision, the majority not unreasonably concludes that Congress meant to deny section 7703 judicial review to (d)(1) physical disability cases. The majority finds conclusive statutory support for this view in the section 8347(c) “finality clause.”6
Viewed in isolation, then, section 8347 would suggest an appellate structure different from that suggested either by the MSPB or Federal Circuit provisions. Yet, even if one did not question the wisdom of
determining overall appellate structure from a small part of the whole rather than from one of the broader appellate provisions, the conflict remains.
II.
As the foregoing demonstrates, under the civil service laws the appellate structure can be a relative thing. By concentrating on section 8347, the majority has not eliminated or avoided anomaly but has fallen victim to this relativism and implicitly created an anomalous system which, even if it is the best one (which I do not believe), fails to account for the difficulties it engenders.
The most significant anomaly, to my mind, is the conflict between the majority’s holding of no review and the plenary authority of the Federal Circuit to review as set out in section 7703(a)(1). Section 7703 contains broad and inclusive language. The Senate Report on the Civil Service Reform Act states that this section “applies to judicial review of all final orders or decisions of the Board * * S.Rep. No. 969, 95th Cong., 2d Sess. 62, reprinted in 1978 U.S. Code Cong. & Ad.News 2723, 2784 (emphasis supplied). Under the Federal Courts Improvement Act, the entire jurisdiction created by section 7703 devolved upon this court. H.R.Rep. No. 312 at 18 (“jurisdiction * * * over all appeals from the Merit Systems Protection Board” (emphasis supplied)); S.Rep. No. 275, 97th Cong., 2d Sess. 21, reprinted in 1982 U.S.Code Cong. & Ad. News 11, 31 (“jurisdiction of any appeal from a final order or final decision of the Merit Systems Protection Board” (emphasis supplied)). There is absolutely no reason to believe — and numerous reasons to doubt— that Congress intended this court to approach its MSPB jurisdiction with the extreme caution practiced by the majority.
A more particular anomaly is created by the majority with respect to section 7703(d) —OPM petition for review of any MSPB decision. I have already noted that the majority too easily implies a total lack of *410judicial review for voluntary retirees in physical disability cases, notwithstanding the fact that in almost a quarter century of experience under the Scroggins formula there has been no jamming of the courthouse door by the few fingers that have grasped it. Amazingly enough, the majority also chooses this opportunity to preclude judicial review in these cases for OPM as well. This despite the express language of section 7703(d) — “any final order or decision” — and the absence in the briefs and arguments of any in-depth discussion of section 7703(d) and its purpose. In order to vest its decision with an aura of consistency the majority not only closes the courthouse door on the fingers of individuals but slams it shut on OPM in 8347(d)(1) cases. Had it not, a reasonable reader of section 7703(d) would be astonished to find that discretionary review of these cases in this court is available to OPM, whereas an individual has no review.
While I readily admit that anomalies in this complex area abound, in my view the better approach is, as I explain below, to let stand the limited Scroggins-level review for individuals as well as the plain language of section 7703(d) pertaining to OPM review. This approach results in equal if not greater consistency than the majority’s all-or-nothing stand, since the level of review OPM may receive in this court parallels that of the individual under Scroggins: both aim to catch the worst abuses of the administering agency. See S.Rep. No. 969 at 64, 1978 U.S.Code Cong. & Ad.News at 2786.
Another anomaly resulting from the majority’s position is that it results in denial of review to a class of persons — “individual[s]” under section 8347(d)(1) — broader than that granted under sections 7703 and 7701— “employee[s] or applicants] for employment.” At least with the Scroggins approach, these “individual[s]” (presumably including at least beneficiaries of employees) receive some type of review, although less than the full 7703 review for “employee[s] or applicant[s] for employment.” Anomalies exist either way, but I believe my approach results in less injustice.
Finally, the majority’s result is at odds with the broad language of section 7701. Section 7701 covers “any action which is appealable to the Board under any law”; section 8347 fits within “any law.” Since all section 7701 actions are reviewable by this court, a conflict arises, for which, unfortunately, the majority offers unsatisfactory explanation.
III.
Given the opposing yet, when viewed in isolation, reasonable results which obtain when one tackles this statutory construction problem beginning at each of the above three starting points, a thoughtful person might conclude that either result (jurisdiction or no jurisdiction) is proper. However, tipping the scales in favor of at least some sort of review is, in my opinion, the law of the land that, absent clear and convincing evidence of congressional intent to preclude the important right to judicial review, review must be granted. Abbott Laboratories v. Gardner, 387 U.S. 136, 140-41, 87 S.Ct. 1507, 1511, 18 L.Ed.2d 681 (1967); Dunlop v. Bachowski, 421 U.S. 560, 567, 95 S.Ct. 1851, 1857, 44 L.Ed.2d 377 (1975). When the Abbott Laboratories presumption of review is combined with the 1980 activities of Congress in amending section 8347(d), which Judge Davis has succinctly described in his dissent, and the overall appellate framework I have attempted to describe here, I am firmly persuaded that at a minimum Congress intended the Scrog-gins-level of review to apply to physical disability cases. For this court not only to hold, as the majority does, that section 7703 review does not apply here, but to back-, track and eliminate even the barest of Scroggins-type review, is an unnecessary abdication of our jurisdictional and statutory responsibilities. The majority’s holding, totally barring review in these cases, will apply to all petitioners who would seek circuit court review for, under the Federal *411Courts Improvement Act, it is only this court to which they may now turn.7
IV.
I respectfully dissent, and presume to submit the following diagram of the appellate structure created by the Civil Service Reform Act and the Federal Courts Improvement Act, which harmonizes as much as possible all of the provisions of the acts. (To accommodate the majority’s position one need only make the dashed lines solid and remove the Scroggins and OPM references.) This diagram is, of course, not the definitive word of this court in this complex area, but I hope that it may serve as a useful analytical tool for those entering this maze of appellate jurisdiction.
*412s
O
s O
. See Ellmore v. Bruckner, 236 F.2d 734, 736-37 (D.C.Cir.), cert. denied, 352 U.S. 955, 77 S.Ct. 329, 1 L.Ed.2d 244 (1956); Murphy v. Wilson, 236 F.2d 737 (D.C.Cir.1956); Smith v. Dulles, 236 F.2d 739, 740, 742 (D.C.Cir.), cert. denied, 352 U.S. 955, 77 S.Ct. 329, 1 L.Ed.2d 244 (1956); Gaines v. United States, 158 Ct.Cl. 497, 502, cert. denied, 371 U.S. 936, 83 S.Ct. 309, 9 L.Ed.2d 271 (1962); Scroggins v. United States, 397 F.2d 295, 297, 184 Ct.Cl. 530,-, cert. denied, 393 U.S. 952, 89 S.Ct. 376, 21 L.Ed.2d 363 (1968); McGlasson v. United *406States, 397 F.2d 303, 307, 184 Ct.Cl. 542,-(1968); McFarland v. United States, 517 F.2d 938, 942-3, 207 Ct.Cl. 38, 45-48 (1975), cert. denied, 423 U.S. 1049, 96 S.Ct. 776, 46 L.Ed.2d 638 (1976); Allen v. United States, 571 F.2d 14, 215 Ct.Cl. 524 (1978); Fancher v. United States, 588 F.2d 803, 806, 218 Ct.Cl. 504, 509-10 (1978); Polos v. United States, 621 F.2d 385, 391-2, 223 Ct.Cl. 547, 559-60 (1980).
. In Campbell v. OPM, 694 F.2d 302 (1983), the Third Circuit seemed to view the 1980 amendment as abolishing all judicial review in non-mental disability retirement cases, but the later ruling in Lancellotti appears to have qualified Campbell by according judicial review to legal rulings bearing on disability retirement pay. 704 F.2d at 96-98.
. This standard is often called “Scrogginstype” review but it actually goes back about a dozen years before Scroggins was decided. See supra note 1.
. These reasons apply a fortiori to the amendment made by the Civil Service Reform Act of 1978, as to which there is not the slightest indication of any purpose to change the then-existing standard of review.
. All section references are to title 5, U.S.C., except where otherwise indicated.
. Sections 1206 and 1207 concern Special Counsel investigations or prohibited personnel practices and hearings and decisions thereon. Section 1206(c) gives the Special Counsel authority to request the MSPB to take action on a prohibited personnel action; § 1206(g) requires the Special Counsel, if it determines that disciplinary action should be taken against an employee, to proceed according to § 1207; § 1206(h) authorizes the Special Counsel to seek corrective action before the MSPB for a pattern of prohibited personnel practices not otherwise appealable to the MSPB under § 7701; and § 1207(c) provides an employee subject to disciplinary action under § 1206(g) with the right to obtain judicial review of a final order of the MSPB in the appropriate regional circuit. I do not attempt to sort out here to which circuit court (this court or regional circuits) appeals for various types of Special Counsel cases go. Suffice it to say, however, that the matter is more complex than the majority, citing § 1207 only, has suggested.
. Section 3592, concerning removal from the Senior Executive Service, allows a career appointee to request, in certain circumstances, an informal hearing before an official appointed by the MSPB, but denies that appointee the right to initiate an action with the MSPB under § 7701. The majority summarily concludes from this provision that the career appointee has neither MSPB nor court appeal rights in these circumstances. While this may be correct (i.e., there may not be “a final order” of the MSPB), I am not prepared to so quickly hold without proper examination of congressional intent and the structure of this provision. (For example, §§ 3593 and 3595 authorize career appointees to appeal certain Senior Executive Service reinstatement or reduction-in-force actions under § 7701 to the MSPB.)
. It seems clear that “a” in § 7703(a)(1) means “any,” and so would achieve parallelism with subsection (d)(1). Such interpretation, however, is not necessary to my views.
. See notes 2 and 3, supra.
. So persuasive is the so-called “finality clause” in the majority’s view, however, that it proceeds to the next and, to my mind, wholly unnecessary step of abolishing even the longstanding Scroggins review. I respectfully part company with the majority at this point.
. Certainly courts should not strain for jurisdiction where it plainly does not exist, but that “canon” loses some strength where there is a long history of some jurisdiction. Furthermore, it should not be forgotten that, although the Federal Circuit is not “The Civil Service Court” any more than it is “The Public Contracts Court,” or even “The Patent Court,” Congress has assembled this bench of judges with broad and diverse backgrounds for the purpose, among others, of establishing as much uniformity as practicable in the civil service area. That legislative policy would be defeated if we choose the path of least jurisdiction when there is no clear mandate to do so. Indeed, there is strong evidence in the legislative history of the Federal Courts Improvement Act that the presumption should be in favor of jurisdiction in those areas where Congress has expressly spoken for and created a court for the purpose of advancing uniformity.