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Lepre v. Department of Labor

Court: Court of Appeals for the D.C. Circuit
Date filed: 2001-12-21
Citations: 275 F.3d 59, 348 U.S. App. D.C. 280
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28 Citing Cases

                  United States Court of Appeals

               FOR THE DISTRICT OF COLUMBIA CIRCUIT

      Argued February 22, 2001   Decided December 21, 2001 

                           No. 00-5053

                      Gerald Steven Lepre, 
                            Appellant

                                v.

                      Department of Labor, 
              Employee Compensation Appeals Board, 
                             Appellee

          Appeal from the United States District Court 
                  for the District of Columbia 
                         (No. 98cv03137)

     Andrew W. Bagley, appointed by the court, argued the 
cause as amicus curiae on the side of appellant.  With him on 
the briefs was Dana C. Contratto.

     Gerald S. Lepre, appearing pro se, was on the briefs for 
appellant.

     Irene M. Solet, Attorney, U.S. Department of Justice, 
argued the cause for appellee.  With her on the brief were 
Wilma A. Lewis, U.S. Attorney at the time the brief was 
filed, John C. Hoyle, Assistant U.S. Attorney, and David W. 
Ogden, Assistant Attorney General, U.S. Department of Jus-
tice.  Daria J. Zane and R. Craig Lawrence, Assistant U.S. 
Attorneys, entered appearances.

     Before:  Rogers, Circuit Judge, Silberman and Williams*, 
Senior Circuit Judges.

     Opinion for the Court filed by Circuit Judge Rogers.

     Concurring opinion filed by Senior Circuit Judge 
Silberman.

     Rogers, Circuit Judge:  This appeal concerns the judicial 
review provision of the Federal Employees Compensation Act 
("FECA"), 5 U.S.C. s 8128(b) (1994), in a case involving the 
suspension of temporary total disability benefits to an em-
ployee for failing to appear for a required medical examina-
tion.  In rejecting Gerald Steven Lepre's claim that he never 
received notice of the examination, the Department of Labor's 
Employees' Compensation Appeals Board ("Board") relied on 
the presumption that mail sent has been received.  Lepre 
now appeals the dismissal of his complaint, contending that 
the district court erred in rejecting his due process challenge 
based on lack of notice and in ruling that s 8128(b) barred 
judicial review of his claim that the Secretary of the Depart-
ment of Labor violated the clear statutory mandate of FECA.

     We hold that s 8128(b) does not bar judicial review of 
Lepre's due process challenge to the Department's alleged 
systemic reliance on the mailbox presumption.  We further 
hold that Lepre's due process challenge is unpersuasive.  We 
do not reach the question of whether s 8128(b) bars judicial 
review of a claimed violation by the Secretary of a clear 
statutory mandate because Lepre's complaint fails to allege a 
facial violation of FECA.  Accordingly, we affirm the dismiss-
al of the complaint.

__________
     * Senior Circuit Judge Williams was in regular active service at 
the time of oral argument.

                                I.

     Under FECA, "an employee shall submit to examination by 
a medical officer of the United States, or by a physician 
designated or approved by the Secretary of Labor, after the 
injury and as frequently and at the times and places as may 
be reasonably required."  5 U.S.C. s 8123 (a).  "If the em-
ployee refuses to submit to or obstructs an examination, his 
right to compensation is suspended until the refusal or ob-
struction stops."  Id. s 8123(d).

     In November 1993, while Lepre was employed as a federal 
corrections officer in Otisville, New York, a prisoner struck 
him with a wooden industrial floor broom, causing a lumbosa-
cral strain.  Lepre filed a claim for disability benefits with 
the Department of Labor's Office of Workers' Compensation 
Programs ("OWCP"), and was awarded continuation of pay 
followed by wage loss benefits for temporary total disability 
under FECA, 5 U.S.C. ss 8101 et seq.  Lepre received 
regular payments for temporary total disability through De-
cember 13, 1994.  His benefits were interrupted for approxi-
mately ten months in 1995, after which he received compensa-
tion for the period ending March 31, 1995.  Following another 
interruption, he eventually received compensation from 
OWCP for the period between April 1, 1995, and September 
17, 1995.  Although his benefits were restored as of August 
18, 1996, when he indicated that he was willing to submit to a 
medical examination, Lepre has never received benefits for 
the period between September 18, 1995, and August 18, 1996, 
because of OWCP's position that he failed to comply with 
requests to submit to a second opinion medical examination.

     In a letter addressed to "Gerald S. Lepre" dated June 30, 
1995, OWCP informed Lepre that in order to "clarify the 
cause and extent of [your] injury-related impairment," he was 
to see a physician on August 3, 1995, and that failure to 
appear "may result in the suspension of your right to compen-
sation under Title 5 U.S.C. 8123(d) until the refusal or 
obstruction is deducted from the period for which compensa-
tion is payable."  Lepre did not appear for the medical 
appointment.  In a follow-up letter addressed to "Gerald 
Lepri" on August 14, 1995, OWCP stated that Lepre needed 
to explain why he failed to keep the appointment, and that 

"any action on your part short of full cooperation could result 
in suspension of benefits."  No response to this letter was 
ever received.  Finally, in a letter addressed to "Gerald S. 
Lepre" dated September 18, 1995, OWCP informed Lepre 
that his claim for benefits had been disallowed because of his 
failure to attend or explain his nonattendance at the sched-
uled medical examination.  All three of OWCP's letters were 
addressed to Lepre at 106 Willow Avenue, Susquehanna, PA 
18847.

     On September 20, 1995, Lepre wrote to OWCP advising of 
the problems he was having with his "claim."  He attached 
what he described as "a current set of forms" as well as his 
affidavit stating that he had complied with all prior medical 
appointments.  Although he did not expressly state in his 
affidavit that he had not received OWCP's pre-suspension 
notices, he demanded proof of service and stated that he was 
not notified, as the claims examiner averred in her findings of 
fact, of the August 3, 1995 medical examination, and that the 
presumption that he was notified had prejudiced him.  In his 
affidavit, he also stated that all future correspondence should 
be sent to him by certified mail, return receipt requested, to:

     Gerald S., Lepre, Sui Juris, Juris et de jure 
     c/o 106 Willow Avenue 
     34th Judicial district 
     Susquehanna Depot borough 
     Susquehanna, Pennsylvania commonwealth Republic 
     state 
     
OWCP treated Lepre's letter as a request for reconsideration 
of the suspension of his benefits, and denied the request on 
September 29, 1995.  OWCP did not interpret Lepre's letter 
to indicate his willingness to submit to a medical examination 
and declined to change Lepre's mailing address, because it 
would not be recognized by the U.S. Postal Service for lack of 
a zip code.

     Nearly a year later, on August 19, 1996, Lepre appealed to 
the Employees' Compensation Appeals Board, advising that 
he had not heard anything from OWCP and was willing to 
attend a medical examination if notified.  The Board denied 

Lepre's appeal and subsequent request for reconsideration.  
In determining that Lepre had failed to offer sufficient rea-
sons for failing to cooperate with the second opinion medical 
examination, the Board relied on the "mailbox rule," pursuant 
to which:

     It is presumed, in the absence of evidence to the con-
     trary, that a notice mailed to an individual in the ordi-
     nary course of business was received by that individual.  
     This presumption arises when it appears from the record 
     that the notice was properly addressed and duly mailed.  
     The appearance of a properly addressed copy in the case 
     record, together with the mailing custom or practice of 
     the Office itself, will raise the presumption that the 
     original was received by the addressee.  While in his 
     request for reconsideration, [Lepre] requested that all 
     mail be sent to another address, prior to that time, the 
     address of record was correctly used by the Office.  As 
     [Lepre] has not provided any evidence to the contrary, it 
     is presumed that he was duly notified of the scheduled 
     appointment.
     
The Board declined to consider Lepre's contention that the 
federal statutes applied by OWCP are inapplicable to him as 
a citizen of the State of Pennsylvania, stating that the Board 
"has long recognized that it is not the proper forum to 
challenge the constitutionality of an act of Congress," citing 
its decision in Christino Rodriguez, 8 ECAB 428 (1955), 
inasmuch as "[t]he exercise of jurisdiction by the federal 
courts regarding constitutional issues is calculated to directly 
uphold and preserve the principle of separation of powers."

     Lepre then filed pro se a petition in the district court 
seeking review of the Board's decision, raising both constitu-
tional and statutory claims.  Specifically, Lepre alleged that 
"he [had] never received proper notice to attend [the] medical 
examination," had notified the Department of his proper 
mailing address, and had anticipated that a new date for a 
medical examination would be set.  Asserting that his affida-
vit claiming non-receipt of the notice was unrebutted, and 

that the Department failed to offer evidence during the 
administrative proceedings that the letters had been mailed, 
much less received, Lepre sought relief in a variety of forms, 
including the award of the denied benefits, a remand with 
direction to the Board to reverse its decision, and a declara-
tion that the Secretary of the Department has a duty to 
reschedule a medical examination once the obstruction is 
removed or the claimant is willing to submit to such examina-
tion.  In moving pro se for summary judgment, Lepre chal-
lenged the constitutionality of the Board's reliance on the 
mailbox rule, as well as the adequacy of the administrative 
review procedures used to determine whether a beneficiary 
has refused to attend a medical examination, on the ground 
that they fail to afford a meaningful opportunity to be heard.

     The district court denied Lepre's motion for summary 
judgment and granted the Department's motion to dismiss for 
lack of jurisdiction under Fed. R. Civ. P. 12(b)(1).  Constru-
ing s 8128(b) to bar judicial review of the benefits determina-
tion, the district court ruled that it had jurisdiction to review 
Lepre's constitutional claims.  Assuming Lepre had a proper-
ty interest in the continued payment of FECA benefits, the 
court held that his due process rights to notice and an 
opportunity to respond were satisfied by OWCP's post-
deprivation notice of September 18, 1995, which Lepre admit-
ted receiving, and the availability of administrative reconsid-
eration and appeal.

                               II.

     On appeal, Lepre contends because an injured employee 
has a property interest in FECA benefits, due process re-
quires at a minimum that the employee receive actual notice, 
a hearing or an opportunity to be heard, and a judicial 
determination.  Lepre also contends that the Board's decision 
relied on bald assertions and conclusions of law in finding that 
he refused or obstructed the taking of a medical examination, 

without any evidence to rebut his affidavit that he did not 
receive OWCP's notices.  In contending that Congress did 
not intend for s 8128(b) to preclude review of constitutional 
claims, Lepre, assisted by amicus on appeal, focuses on the 
strong presumption of judicial review of administrative ac-
tions and Supreme Court decisions interpreting bars to judi-
cial review.  Amicus maintains that not only does the lan-
guage of s 8128(b) not specifically preclude judicial review of 
constitutional claims, the legislative history reveals no con-
gressional intent to bar such claims.  Amicus maintains fur-
ther that preclusion could lead to the potentially absurd result 
of allowing the Department to trample over FECA beneficia-
ries' constitutional rights with impunity, and that otherwise 
s 8128(b) would violate the separation of powers and the 
Fifth Amendment's Due Process Clause.  Nor, amicus con-
tends, does s 8128(b) bar review of Lepre's claim that the 
Secretary violated FECA's clear statutory mandate or ex-
ceeded her statutory authority.

                                A.

     The issue of whether the court has jurisdiction to review 
Lepre's due process and statutory mandate contentions is 
reviewed de novo.  See Ridder v. Office of Thrift Supervision, 
146 F.3d 1035, 1038 (D.C. Cir. 1998).  Although the Depart-
ment does not contest that the court has jurisdiction to 
review substantial constitutional claims, the court must make 
its own determination of its jurisdiction.  See Floyd v. Dis-
trict of Columbia, 129 F.3d 152, 155 (D.C. Cir. 1997).

     Section 8128(b) provides, in pertinent part, that:

          The action of the Secretary or h[er] designee in allow-
          ing or denying a payment under this subchapter is -
     
          (1) final and conclusive for all purposes and with re-
                spect to all questions of law and fact;  and
          
          (2) not subject to review by another official of the 
                nited States or by a court by mandamus or 
                otherwise.
          
5 U.S.C. s 8128(b) (1994).  The language of s 8128(b) is 
facially uncompromising as to the "action of the Secretary," 
but amicus maintains that it refers only to the benefits 
decision and not to the practice or procedure used in making 
decisions.  In interpreting s 8128(b)'s scope, we have signifi-
cant guidance from the Supreme Court and the law of this 
circuit.

     In Johnson v. Robison, 415 U.S. 361 (1974), the Supreme 
Court addressed whether 38 U.S.C. s 211(a) barred judicial 
review of a facial challenge to the Veterans' Readjustment 
Benefits Act of 1966, on the ground that by denying edu-
cational benefits to conscientious objectors who had complet-
ed alternative civilian service, the statute unconstitutionally 
discriminated against them and infringed upon their religious 
freedom.  Section 211(a) provided that:

     [T]he decisions of the Administrator on any question of 
     law or fact under any law administered by the Veterans' 
     Administration providing benefits for veterans and their 
     dependents or survivors shall be final and conclusive and 
     no other official or any court of the United States shall 
     have power or jurisdiction to review any such decision by 
     an action in the nature of mandamus or otherwise.
     
Because construing the review provision to foreclose judicial 
review of constitutional claims "would ... raise serious ques-
tions concerning the constitutionality of s 211(a)," the Court 
looked to see whether Congress intended such an interpreta-
tion.  Id. at 366.  Finding that "neither the text nor the scant 
legislative history of s 211(a)" sufficed to furnish the requi-
site clear and convincing evidence of congressional intent to 
prohibit judicial review of constitutional challenges to the 
statute, the Court construed the statute to permit judicial 
review of the claim.  Id. at 373-74.

     The Supreme Court has remained faithful to Robison's 
teachings.  In Webster v. Doe, 486 U.S. 592, 603 (1988), 
applying the "heightened showing" required by Robison, the 
Court held that colorable constitutional challenges to a discre-
tionary decision of the Director of the CIA to terminate an 
employee were judicially cognizable while other challenges to 

the termination were precluded.  See id. at 600, 603.  So too 
in Bowen v. Michigan Academy of Family Physicians, 476 
U.S. 667 (1986), the Court rejected the notion that statutory 
authorization of judicial review of some acts suffices to sup-
port an inference of exclusion as to others.  See id. at 672.  
Finding that the legislative history of 42 U.S.C. ss 1395ff and 
1395ii revealed an intent to preclude judicial review only of 
the amounts of benefits awarded under Part B of the Medi-
care Act, see Bowen, 476 U.S. at 676-77, the Court held there 
was no bar to judicial review of constitutional and statutory 
challenges to agency regulations.  See id. at 680.  Thereafter, 
in Traynor v. Turnage, 485 U.S. 535 (1988), the Court took 
note of Robison's reasoning, that "the prohibitions [of s 211a] 
would appear to be aimed at review only of those decisions of 
law or fact that arise in the administration by the Veterans' 
Administration of a statute providing benefits for veterans," 
415 U.S. at 367, in concluding that judicial review was not 
barred of a challenge to a Veteran's Administration regulation 
as violative of s 504 of the Rehabilitation Act.  Traynor, 485 
U.S. at 543, 545.

     Meanwhile, following the instruction in Robison, this cir-
cuit, in the so-called Ralpho trilogy, has required, when 
confronted with similarly worded statutory review provisions, 
special clarity of congressional intent to bar federal courts 
from adjudicating the merits of constitutional challenges.  In 
Ralpho v. Bell, 569 F.2d 607, 612-13 (D.C. Cir. 1977), the 
court was confronted with a challenge, not that a statute was 
unconstitutional, but that the agency implementing the stat-
ute had violated due process by relying on secret valuation 
data in ruling on a claim for compensation for destruction of a 
private residence.  It was also confronted with claims of 
nonconstitutional error.  A provision of the Micronesian 
Claims Act of 1971, 50 U.S.C. ss 2018-2020b (Supp. II 1972), 
provided that claims determinations "shall be final and con-
clusive for all purposes, notwithstanding any other provision 
of law to the contrary and not subject to review."  Id. s 2020.  

The court rejected the argument that a challenge to the 
constitutionality of agency action was sufficient to distinguish 
the case from Robison.

     [I]f legislation by Congress purporting to prevent judicial 
     review of the constitutionality of its own actions is itself 
     constitutionally suspect, legislation that frees an adminis-
     trative agency from judicial scrutiny of its adherence to 
     the dictates of the Constitution must pose grave constitu-
     tional questions as well.  Not only is it daring to suggest 
     that Congress, though subject to the checks and balances 
     of the Constitution, may create a subordinate body free 
     from constraints;  it also beggars the imagination to 
     suggest that judicial review might be less crucial to 
     assuring the integrity of administrative action than it is 
     to make certain the Congress will operate within its 
     proper sphere.  If the courts are disabled from requiring 
     administrative officials to act constitutionally, it is diffi-
     cult to see who would perform that function.
     
Ralpho, 569 F.2d at 620.  The court applied the standards of 
Robison, id. at 621, reviewing the legislative history to deter-
mine if Congress intended to cut off judicial review of consti-
tutional claims, and concluded that Congress "took such a 
drastic step ... with marked silence as to its purpose."  Id.  
In the one instance that "might suggest such a legislative 
purpose," the court noted, Congress had addressed concerns 
about Commission positions becoming "posh sinecures" 
through dilatory behavior by instructing the Commission to 
wind up its work within three years.  The court declined to 
"assume that Congress courted a constitutional confrontation 
merely to facilitate Commission adherence to a timetable, 
which is ... merely directory."  Id. at 620.  However, the 
court also found "clear evidence of congressional concern for 
the due process rights of claimants under the Act."  Id. at 
621.  Hence, consistent with a duty to avoid construing a 
statute in a manner that would bring it into conflict with the 
Constitution, the court held that "challenges of constitutional 
stature impugning action by the [agency] are cognizable in 
the federal courts."  Id. at 621-22.

     The two other parts of the trilogy, Griffith v. Federal 
Labor Relations Auth., 842 F.2d 487 (D.C. Cir., 1988), and 
Ungar v. Smith, 667 F.2d 188 (D.C. Cir. 1981), reaffirmed the 
Ralpho analysis.  In Griffith, the court observed that "[e]ven 
though constitutional attacks on a statute carry much less 
risk of trammeling other administrative system than do 
claims that a particular act of an agency was unconstitutional, 
we have extended this 'particularly rigorous' style of interpre-
tation into the latter, more treacherous area."  482 F.2d at 
487.  The court held that it had jurisdiction to review an as-
applied due process challenge under the Civil Service Reform 
Act of 1978, 5 U.S.C. ss 7122-23 (1982).  An Internal Reve-
nue Service employee who took the denial of a within-grade 
increase to arbitration succeeded in securing a retroactive 
pay increase under the Back Pay Act, 5 U.S.C. s 5596 (1982).  
The Federal Labor Relations Authority rescinded the award 
on the ground that the arbitrator had erred in applying the 
terms of the Back Pay Act.  The employee filed suit, contend-
ing (among other things) that the Authority's failure to 
remand to the arbitrator deprived her of "property" in the 
form of the pay increase, thereby infringing on her due 
process rights.  Id. at 490.  The Civil Service Reform Act 
provided for judicial review by "[a]ny person aggrieved by 
any final order of the Authority other than an order under [ ] 
section 7122 ... (involving an award by an arbitrator), unless 
the order involves an unfair labor practice under section 
7118."  5 U.S.C. s 7123(a).  The court found no specific 
evidence that Congress intended to preclude judicial review of 
constitutional claims and addressed the merits of the as-
applied due process challenge.  Id. at 495-501.

     In Ungar, the court held that it had jurisdiction of an as-
applied constitutional challenge to a denial of a request under 
the Trading with the Enemy Act, 22 U.S.C. s 1631o (1976), 
for the return of assets owned by a Hungarian pharmaceuti-
cal company that had been seized during World War II.  
Although s 1631o(c) provided that claims determinations 
were to be "final" and "not ... subject to review by any 
court," the court reiterated that "only the clearest evocation 
of congressional intent to proscribe judicial review of constitu-

tional claims will suffice to overcome the presumption that the 
Congress would not wish to court the constitutional dangers 
inherent in denying a forum in which to argue that govern-
ment action has injured interests that are protected by the 
Constitution."  Unger, 667 F.2d at 193.  A review of the 
legislative history of s 1631o(c) uncovered no reference to the 
proscription of judicial review.  See id. at 194.  Looking to 
the history of related statutes, the court found at most "scant 
assistance," id., and "failed to discover anything that might be 
considered a clear expression of Congress' desire to prevent 
courts from passing on constitutional claims of those seeking 
return of vested assets."  Id. at 196.  The court remanded 
the case for the Justice Department to establish procedures, 
consistent with due process, that provided adequate time for 
the preparation and examination of whatever probative evi-
dence was submitted to it in support of a claim.  See id. at 
198.

                                B.

     Turning to Lepre's contention that s 8128(b) does not bar 
review of his due process challenge to the mailbox rule, we 
need only look to Robison and its progeny to conclude that 
we have jurisdiction.  Although it also is clear that we have 
jurisdiction under the Ralpho trilogy's clear statement rule, 
the court, while continuing to apply the Ralpho trilogy, has 
recently raised the question whether language in Traynor, 
485 U.S. at 542-45, undermines the trilogy's premise that 
Robison was based more on ideas of special status of constitu-
tional claims than statutory language.  See McBryde v. 
Comm. to Review Circuit Council Conduct and Disability 
Orders of the Judicial Conference of the United States, 264 
F.3d 52, 59-60 (D.C. Cir. 2001), petition for en banc review 
pending.  Robison and Traynor have also spawned two lines 
of analysis on how to interpret withdrawal of jurisdiction 
provisions framed in the manner of s 8128(b):  one that 
distinguishes between constitutional and statutory claims, see 
Czerkies v. United States Dep't of Labor, 73 F.3d 1435, 1442 
(7th Cir. 1996) (en banc), and another that distinguishes 
between systemic challenges and case-specific decisions, id. at 

1443 (Easterbrook, J., concurring in the judgment).  We need 
not choose between the theories.  Because Lepre's due pro-
cess challenge focuses on a structural component of the 
FECA system itself, and not simply on an individual decision 
on a benefits claim, his challenge is both constitutional and 
systemic.

     We hold that s 8128(b) does not bar judicial review of 
Lepre's due process challenge to the mailbox rule.  This 
conclusion is consistent with the statutory language, Supreme 
Court precedent, and precedents from other circuits.  As 
amicus suggests, the language of s 8128(b) speaks only to the 
action of the Secretary "under this chapter" and does not rule 
out judicial review of constitutional challenges.  The Supreme 
Court noted in Waters v. National Ass'n of Radiation Sur-
vivors, 473 U.S. 305, 311 n.3 (1985), that "[d]espite the 
general preclusion of judicial review with respect to VA 
benefit claims, [the Supreme] Court held in Johnson v. Robi-
son, 415 U.S. 361 (1974), that the district courts have jurisdic-
tion to entertain constitutional attacks on the operation of the 
claims system."  In Traynor, the Supreme Court, observing 
that the statute at issue addressed "decisions of the Adminis-
trator," and that regulations governing such programs are not 
"decisions," distinguished between systemic challenges and 
case-specific decisions.  485 U.S. at 543-44; see also Bowen, 
476 U.S. at 678. Without exception, every other circuit to 
consider the scope of s 8128(b) has concluded that it does not 
bar judicial review of constitutional claims.  See Czerkies, 73 
F.3d at 1442 (7th Cir. en banc);  id. at 1443 (Easterbrook, J., 
concurring in the judgment);  Brumley v. United States Dep't 
of Labor, 28 F.3d 746, 747 (8th Cir. 1994) (per curiam);  
Benton v. United States, 960 F.2d 19, 22 (5th Cir. 1992) (per 
curiam);  Woodruff v. United States Dep't of Labor, 954 F.2d 
634, 639 (11th Cir. 1992) (per curiam);  Owens v. Brock, 860 
F.2d 1363, 1367 (6th Cir. 1988);  Paluca v. Secretary of Labor, 
813 F.2d 524, 525-26 (1st Cir. 1987);  Rodrigues v. Donovan, 
769 F.2d 1344, 1347-48 (9th Cir. 1985).  As the Seventh 
Circuit majority of the en banc court reasoned, to find review 
to be precluded could lead to absurd results, either allowing 
agencies to trample over claimants' constitutional rights with 

impunity or not to consider them at all.  See Czerkies, 73 
F.3d at 1442.  Although the McBryde court held that the 
statutory bar in that case extended to as-applied constitution-
al claims, 264 F.3d at 62-63, McBryde may be sui generis 
given its emphasis on redundancy, see id. at 62, as it involved 
Article III judges reviewing a challenge to the imposition of 
judicial discipline, albeit not in the usual court context;  no 
such circumstances exist in the instant case.  Alternatively, 
the element under attack - the Secretary's generic use of the 
mailbox rule - is both "structural" and "systemic," and there-
fore review is not barred by s 8128(b)'s bar on review of 
specific "action" of the Secretary.  See Czerkies, 73 F.3d at 
1444, 1446 (Easterbrook, J., concurring in the judgment).

     Furthermore, despite the "uncompromising language" of 
s 8128(b), id. at 1438, the search for congressional intent is 
neither elusive nor difficult to understand.  The analysis of 
the legislative history of s 8128(b) in Czerkies is compelling.  
A review of FECA's legislative history revealed "the limited 
scope of the door-closing provision."  Id. at 1440.  As that 
court recounted, s 8128(a) became part of FECA in 1945, as 
part of a statute that was addressing special problems arising 
out of World War II.  In particular, there was difficulty in 
determining and administering compensation for injuries sus-
tained by noncitizen employees of the federal government 
who were injured while working outside of the United States.  
Congress resolved the problem by providing in s 4 of the 
1945 legislation that the benefits commission should base 
compensation awards on local law or custom, and "near the 
end tacked on the sentence about the commission's ... action 
being final and conclusive that appears in the current stat-
ute."  Id. at 1441.  "So far as appears," the Seventh Circuit 
concluded, "the 1945 door-closing provision was intended to 
be limited to awards under section 4, the section of which it 
was the penultimate sentence - odd placement if the provision 
was intended to govern all claims under the compensation 
law."  Id.  Further, "[t]here is no indication at any stage in 
the evolution of the statute that Congress meant to enlarge 
the scope of the original limitation, let alone to curtail consti-

tutional remedies."  Id.  Only a letter from the commission's 
chairman suggested that the door-closing provision of section 
4 was intended to promote finality in payment, but that 
discussion focused on payments to employees in foreign coun-
tries where failure to comply with local custom would upset 
the employee and the local authorities.  See id. (citing S. Rep. 
No. 421, 79th Cong., 1st Sess. 5-6 (1945)).  Thus, the Seventh 
Circuit was satisfied that the door-closing provision did not 
appear to apply to claims by United States citizens.  See id. 
The court, therefore, concluded that "[t]he history of [FECA] 
provides no basis for rebutting the presumption of judicial 
review of constitutional claims."  Id.

                               III.

     Turning to the merits of Lepre's due process challenge, he 
contends that the Department's reliance on the mailbox rule, 
in conjunction with the Department's deficient post-
suspension review procedures, fails to meet the requirements 
of due process.  His challenge thus implicates no less than 
the constitutional adequacy of the systemic procedures em-
ployed by the Department in suspending FECA benefits in 
addition to the adequacy of the procedures as applied to 
Lepre himself.  Specifically, he contends that he was uncon-
stitutionally deprived of his FECA disability benefits because 
he never received OWCP's June 30, 1995 notice of the re-
quired medical examination, or its August 14, 1995 follow-up 
letter.  In addition, Lepre contends that the administrative 
reconsideration and appeal procedures failed to provide him 
with a meaningful opportunity to be heard.

     Except for certain narrow exceptions, due process general-
ly requires that a property interest in government benefits be 
preceded by adequate note and an opportunity to respond, 
either in person or in writing.  See Cleveland Bd. of Educ. v. 
Loudermill, 470 U.S. 532, 546 (1985).  The opportunity to be 
heard must be provided "at a meaningful time and in a 
meaningful manner."  Mathews v. Eldridge, 424 U.S. 319, 333 
(1976) (internal quotations omitted).  In Eldridge, the Court 
instructed, however, that "[d]ue process, unlike some legal 

rules, is not a technical conception with a fixed content 
unrelated to the time, place and circumstances....  Due 
process is flexible and calls for such procedural protections as 
the particular situation demands."  Id. at 334 (internal quota-
tions omitted).  Among the relevant factors to be considered 
in striking the appropriate balance are "the degree of poten-
tial deprivation that may be created by a particular decision," 
id. at 341, "the fairness and reliability of the existing preter-
mination procedures, and the probable value, if any, of addi-
tional procedural safeguards," id. at 343, as well as "the 
public interest ... includ[ing] the administrative burden and 
other societal costs that would be associated with requiring, 
as a matter of constitutional right," the added safeguards.  
Id. at 347.

     With respect to his as-applied challenge, Lepre does not 
contend that he was unable to present his evidence during the 
administrative review proceedings.  Rather, he relies on his 
affidavit stating that he had not received notice of the medical 
examination.  In view of the Department's failure to intro-
duce evidence that the pre-suspension notices had been 
mailed or evidence regarding OWCP's mailing practices in 
general, Lepre maintains that his affidavit was unrebutted 
and sufficed to vitiate the presumption of receipt.  He relies 
on Legile v. Dann, 544 F.2d 1 (D.C. Cir. 1976), where the 
court held that Federal Rule of Evidence 301 embodies the 
"bursting bubble" theory, whereby the presumption of deliv-
ery of mail that arises upon proof of the foundation facts 
evaporates as a rule of law in the face of contrary evidence.  
See id. at 4-6;  see generally Bratton v. The Yoder Company, 
758 F.2d 1114, 1119 (6th Cir. 1985).  An issue of fact thus 
arises when the person to whom mail is addressed denies 
receipt.  See Witt v. Roadway Express, 136 F.3d 1424, 1430 
(10th Cir. 1998);  American Cas. Co. of Reading v. Nordic 
Leasing, Inc., 42 F.2d 725, 734 (2d Cir. 1994).

     In applying the mailbox rule, the Board relied on copies of 
OWCP's three letters (each addressed to Lepre at 106 Willow 
Avenue, Susquehanna, PA 18847), as well as its knowledge of 
OWCP's customary mailing practices.  However, it appears 
from the record on appeal that there was no evidentiary 
foundation regarding OWCP's mailing practices, nor evidence 

that these particular letters had been mailed.  Presumably to 
remedy this deficiency, the Department introduced in the 
district court a declaration from the Chief of OWCP's Branch 
of Regulations, Policies, and Procedures stating that a review 
of Lepre's file indicated that "[i]n accordance with OWCP's 
established procedures for scheduling such examinations, the 
notice of examination was sent by first class mail to Lepre's 
address of record."  With this declaration, there may well 
have been sufficient evidence to support an inference in the 
district court that OWCP's notices had been mailed.  See 
Mahon v. Credit Bureau of Placer County, Inc., 171 F.3d 
1197, 1202 (9th Cir. 1999);  Meckel v. Continental Res. Co., 
758 F.2d 811, 817 (2d Cir. 1985).  The question would still 
remain, however, whether Lepre's affidavit sufficed to rebut 
the presumption that the notices had also been received by 
him.  Lepre does not contend that prior to June 30, 1995, he 
had notified OWCP of any change in his address, and the 
address set forth in his affidavit is virtually identical to the 
address of record to which OWCP had been sending its 
letters.  Cf. Mullane v. Central Hanover Bank & Trust Co., 
339 U.S. 306, 318-19 (1950);  Mennonite Bd. of Missions v. 
Adams, 462 U.S. 791, 798-800 (1983).  Further, Lepre admits 
receiving OWCP's September 18, 1995, notice of suspension of 
benefits.  Under the circumstances, some courts have con-
cluded that a mere denial of receipt is insufficient to rebut the 
presumption accorded the sender under the mailbox rule.  
See Mahon, 171 F.3d at 1202;  Kinash v. Callahan, 129 F.3d 
736, 738 (5th Cir. 1997);  McCall v. Bowen, 832 F.2d 862, 864 
(5th Cir. 1987);  Meckel, 758 F.2d at 817;  cf. Kerr v. Charles 
F. Vatterott & Co., 184 F.3d 938, 947-48 (8th Cir. 1999).

     Lepre contends, however, that in applying the mailbox rule 
the Board placed an insurmountable burden on him to prove 
a negative (i.e., that he did not receive the letters or, alterna-
tively, that OWCP never mailed the letters), thereby trans-
forming the presumption into an irrebuttable axiom.  Lepre 
further contends that as a systemic matter, such reliance on 
the mailbox rule does not comport with due process.  Indeed, 
it is difficult to conceive of what more a FECA beneficiary 
could have done to demonstrate that he had not received 

OWCP's pre-suspension notices, and on appeal the Depart-
ment's only response is that requiring OWCP to accept his 
"unsupported statement as conclusive" would compel use of 
return-receipt requested mail.  For reasons that follow, we 
need not decide whether, as a matter of due process, OWCP's 
reliance on the mailbox rule, combined with its practice of 
timely mailing notification of required medical examinations 
to the beneficiary's address of record and following up, as 
necessary, with a letter seeking an explanation and coopera-
tion prior to the suspension of benefits, strikes a fair balance 
between claimants' interests in the continued receipt of bene-
fits, the risk of unwarranted deprivations of or disruptions in 
the provision of benefits, and the need to administer disability 
benefits reliably and efficiently.  Cf. Eldridge, 424 U.S. at 
347.  See also Kerr, 184 F.3d at 948.

     Lepre contends that he was entitled to receive actual notice 
prior to the suspension of his benefits.  The Supreme Court 
established in Mullane that notice must be "reasonably calcu-
lated, under all circumstances, to apprise interested parties of 
the pendency of the action and afford them an opportunity to 
present their objections," 339 U.S. at 314, and reiterated in 
Tulsa Prof. Collection Servs. v. Pope, 485 U.S. 478 (1988), 
that "mail service is an inexpensive and efficient mechanism 
that is reasonably calculated to provide actual notice."  Id. at 
490;  see also Mennonite Bd., 462 U.S. at 800.  Consistent 
with the teachings of Mullane, courts have examined the 
surrounding circumstances to determine whether the govern-
ment has shown, not that actual successful notice occurred, 
but that it made reasonable efforts to give actual notice to the 
intended recipient.  See, for example, Covey v. Town of 
Somers, 351 U.S. 141, 146-47 (1956), involving notice to an 
incompetent person, and cases involving incarcerated persons, 
United States v. Dusenberry, 223 F.3d 422 (6th Cir. 2000), 
cert. granted in part, __ U.S. __, 121 S.Ct. 1186 (Feb. 26, 
2001);  United States v. Minor, 228 F.3d 352, 358 (4th Cir. 
2000);  United States v. One Toshiba Color Television, 213 
F.3d 147, 155 (3d Cir. 2000);  Weng v. United States, 137 F.3d 
709, 714 (2d Cir. 1998);  Small v. United States, 136 F.3d 
1334, 1337 (D.C. Cir. 1998) (citing Robinson v. Hanrahan, 409 
U.S. 38, 40 (1972)).  See also Mennonite Bd., 462 U.S. at 798 

n.4.  On the record before the district court, it is conceivable, 
particularly in view of Lepre's admission that he received the 
September 18, 1995, notice of suspension, that OWCP made 
reasonable efforts to furnish Lepre with actual pre-
suspension notice.  Neither Lepre nor amicus suggest that 
special measures to ensure actual notice were required in 
Lepre's case, as in Covey, 351 U.S. at 146-47.

     We proceed, however, on the basis that Lepre's affidavit 
sufficed to rebut the presumption arising under the mailbox 
rule, given the difficulty of expecting a FECA beneficiary to 
do more and the Department's apparent evidentiary lapse 
before the Board.  Mail sent does not always arrive at its 
destination, and some courts have viewed a sworn denial of 
receipt as sufficient to establish an issue of material fact.  
See, e.g., Witt, 136 F.3d at 1430;  American Cas. Co. of 
Reading, 42 F.2d at 734.  Thus, the question is whether, after 
rejecting the Board's reliance on the mailbox rule in the face 
of Lepre's affidavit, Lepre would prevail on his due process 
challenge.  He would not.  Where a notice is lost in the mail, 
the availability of agency reconsideration and appeal provide 
sufficient avenues of redress and rectification to meet the 
requirements of due process.  See Stuto v. Fleishman, 164 
F.3d 820, 825-27 (2d Cir. 1999);  Raditch, 929 F.2d at 480-82 
(citing Hudson v. Palmer, 468 U.S. 517, 533 (1984), and 
Parratt v. Taylor, 451 U.S. 527, 544 (1981)).  The record 
indicates that Lepre received OWCP's suspension notice, and 
he offers no more than bald assertions that the post-
suspension proceedings were "a sham" and that he did not 
have a fair opportunity to challenge OWCP's decision.  Cf. 
Stuto, 164 F.3d at 833.  In the absence of specificity, the 
court has no basis to conclude, even assuming a mistaken 
denial of benefits, that Lepre's due process rights were 
violated.  See Czerkies, 73 F.3d at 1443.  We therefore affirm 
the district court's denial of Lepre's due process challenge.

                               IV.

     Lepre also contends that the Secretary violated FECA's 
statutory mandate by failing to reschedule his medical exami-

nation after receipt of his September 20, 1995, letter and 
affidavit.  Specifically, he maintains that the Secretary's inac-
tion violated s 8123(d), pursuant to which a beneficiary's 
"right to compensation under this subchapter is suspended 
until the refusal or obstruction stops."  According to Lepre, 
his affidavit demonstrated that he never refused to submit to 
or obstructed a medical examination.  Further, Lepre main-
tains that his request that all future correspondence be sent 
by certified mail to the revised address manifested his willing-
ness to submit to a new medical examination, thereby remov-
ing any grounds for continuing to withhold his benefits.  
Relying on Leedom v. Kyne, 358 U.S. 184 (1958), amicus 
contends that judicial review of this alleged violation of 
FECA's statutory mandate is not barred by s 8128(b).

     Our analysis again begins with "the strong presumption 
that Congress intends judicial review of administrative ac-
tion," Bowen, 476 U.S. at 670, which "may be overcome 'only 
upon a showing of clear and convincing evidence of a contrary 
legislative intent.' "  Traynor, 485 U.S. at 542 (quoting Abbott 
Labs. v. Gardner, 387 U.S. 136, 141 (1967)).  As the Supreme 
Court observed, however:

     Subject to constitutional constraints, Congress can, of 
     course, make exceptions to historic practice whereby 
     courts review agency action.  The presumption of judicial 
     review is, after all, a presumption, and 'like all presump-
     tions used in interpreting statutes, may be overcome by,' 
     inter alia, 'specific language or specific legislative history 
     that is a reliable indicator of congressional intent,' or a 
     specific congressional intent to preclude judicial review 
     that is 'fairly discernible in the detail of the legislative 
     scheme.'
     
Bowen, 476 U.S. at 672 (quoting Block v. Community Nutri-
tion Inst., 467 U.S. 340, 349 (1984)).

     Even when Congress has not expressly provided for judi-
cial review, it may nonetheless be available.  See id.;  Tray-
nor, 485 U.S. at 545.  In Kyne, the Supreme Court held that 
a determination by the National Labor Relations Board that 
directly conflicted with a provision of the National Labor 

Relations Act was judicially cognizable, despite the absence of 
express authorization of judicial review of such determina-
tions.  See id. at 183-84.  The Court stated that it "cannot 
lightly infer that Congress did not intend judicial protection 
of rights it confers against agency action taken in excess of 
delegated powers."  Id. at 190.  Thereafter, in Oestereich v. 
Selective Serv. Sys. Local Bd. No. 11, 393 U.S. 233 (1968), the 
Court observed that such judicial oversight is needed to 
protect against "freewheeling agencies meting out their brand 
of justice in a vindictive manner."  Id. at 237.  Thus, where 
agency action contravenes a specific statutory prohibition and 
results in the overstepping of the agency's delegated powers, 
judicial review is not barred.  See Boire v. Greyhound Corp., 
376 U.S. 473, 480-81 (1964).  The Court subsequently stated 
in Board of Governors of the Fed. Reserve Sys. v. MCorp 
Financial, Inc., 502 U.S. 32, 43-44 (1991), that two "critical" 
factors distinguished the review provision at issue in Kyne:  
the lack of any alternative means of judicial review for the 
plaintiffs, and the lack of a clear statement of Congress's 
preclusive intent, such that the National Labor Relations 
Board was forced to "contend[ ] that a statutory provision 
that provided for judicial review implied, by its silence, a 
preclusion of review of the contested determination."  Id. at 
43-44.  In the absence of such factors, the Court held that 
the Kyne exception did not apply.  Id.;  cf. United States v. 
Fausto, 484 U.S. 439, 448-51 (1988).

     In keeping with the Supreme Court's guidance, this court 
has recognized a narrow statutory mandate exception to 
statutory bars to judicial review.  In Ralpho, the court stated 
with regard to nonconstitutional claims of error that, notwith-
standing Congress' power to "shield[ ] even the most patent 
deviation from statutory scheme from judicial redress where 
the Constitution is not implicated," the "courts have assumed 
it less likely that Congress intended to prohibit review of a 
claim that the activities of an agency are facially invalid than 
of the 'numerous discretionary, factual, and mixed questions 
of law determinations' normally underlying an agency's deci-
sionmaking process."  Ralpho, 569 F.2d at 622 (quoting Ost-
ereich, 393 U.S. at 240).  Explaining that this assumption 

reflects both a reluctance to license "free wheeling agencies 
meting out their own brand of justice," and "a nice apprecia-
tion, presumably shared by Congress, that courts of law 
possess peculiar expertise in statutory interpretation," the 
court looked "to see how far Congress desired to muzzle the 
courts and unleash the agency, and will normally disregard 
'basically lawless' agency action only when clearly instructed 
to do so."  Id.  Notably, the court observed that Congress is 
not required in order "to ensure preclusion, [to] spell out the 
boundaries of its intention with excruciating particularity," 
but is presumed to have done so "only after deliberation that 
made its intention plain."  Id. at 624.  The court found no 
such evidence of congressional intent in the statutory provi-
sion at issue (indeed "no evidence at all of the scope that 
Congress contemplated").  See id. at 625.  Accordingly, the 
court held that s 2020 did not foreclose judicial review of 
claims that the agency disregarded unambiguous statutory 
directives or constitutional commands.  Id. at 626-27;  see 
also Dart v. United States, 848 F.2d 217, 222 (D.C. Cir. 1988).  
But cf. McBryde, 264 F.3d at 63-64;  Griffith, 842 F.2d at 493.

     This court has yet to decide whether s 8128(b) precludes 
judicial review of a claim that the Secretary disregarded the 
plain letter of the law.  On the one hand, the clarity of 
Congress's preclusional intent as to the Secretary's benefits 
determinations can hardly be gainsaid.  The Supreme Court 
has referred to s 8128(b) as an example of language that 
Congress employs when it "intends to bar judicial review 
altogether."  Lindahl v. Office of Personnel Mgmt., 470 U.S. 
768, 780 n.13 (1985).  However, s 8128(b) is silent as to 
claims that the Secretary acted outside the scope of her 
statutory authority, and, as the Fourth Circuit pointed out in 
Hanauer v. Reich, 82 F.3d 1304 (4th Cir. 1996), "unlike the 
statutory scheme at issue in MCorp, [FECA] does not pro-
vide for judicial review of a final order of the Secretary."  Id. 
at 1308.  Thus, "[a]cceptance of the Secretary's argument 
that s 8128(b) precludes district courts from considering 
claims that the Secretary violated a clear statutory mandate 
would, in the words of the Supreme Court, 'wholly deprive 
[claimants] of a meaningful and adequate means of vindicat-

ing [their] statutory rights.' "  Id. at 1308-09 (quoting 
MCorp, 502 U.S. at 43).  Cf. Shalala v. Illinois Council on 
Long Term Care, Inc., 529 U.S. 1, 19 (2000);  Bowen, 476 U.S. 
at 678.  A majority of other circuits to have considered the 
issue have held that judicial review is available for clear 
violations of FECA's statutory mandate.  Compare, e.g., 
Brumley v. United States Dep't of Labor, 28 F.3d 746 (8th 
Cir. 1994);  Woodruff v. United States Dep't of Labor, Office 
of Workers Comp., 954 F.2d 634 (11th Cir. 1992) (per curiam);  
Staacke v. United States Sec'y of Labor, 841 F.2d 278 (9th 
Cir. 1988), with McDougal-Saddler v. Herman, 184 F.3d 207 
(3d Cir. 1999);  Paluca v. Secretary of Labor, 813 F.2d 524 
(1st Cir. 1987).

     We need not now decide whether such a statutory mandate 
exception exists for s 8128(b).  In Griffen the court stated 
that "review may be had only when the agency's error is 
patently a misconstruction of the Act, ... or when the agency 
has disregarded a specific and unambiguous statutory di-
rective, ... or when the agency has violated some specific 
command of the statute....  Garden-variety errors of law or 
fact are not enough."  Griffith, 842 F.2d at 493.  Lepre's 
contention amounts to an alleged "garden-variety" error by 
the Secretary, one in the nature of a factual dispute or a 
mixed question of law and fact, rather than claim of a 
statutory violation that is plain on its face.  Lepre maintains 
only that his letter and affidavit of September 20, 1995, 
should have been viewed by OWCP as an indication that he 
no longer "obstructed" or "refused" to submit to a medical 
examination, thus rendering the Secretary's failure to re-
schedule the examination and her continued suspension of his 
benefits a violation of the statute.  This is no more than a 
challenge to the assessment of Lepre's evidence.  Yet an 
examination of his September 20, 1995, letter and September 
21, 1995, affidavit shows that they do not clearly convey a 
readiness to submit to a second medical examination or a 
request for rescheduling, much less suggest a clear violation 
of a statutory mandate by the Secretary.  Cf. Senerchia v. 
United States, 235 F.3d 129, 132 (2d Cir. 2000);  Ridder, 146 
F.3d at 1040-41.  Hence, whatever discretion the Secretary 
may have to restore FECA benefits retroactively, following a 

new medical examination (despite an earlier missed medical 
examination), her refusal to do so for Lepre does not, on the 
grounds he asserts, constitute a violation of a clear statutory 
mandate, nor does it constitute a violation of Lepre's due 
process rights.

     Accordingly, we affirm the district court's denial of Lepre's 
due process challenge and the dismissal of Lepre's statutory 
challenge for lack of jurisdiction.

     Silberman, Senior Circuit Judge, concurring:  The Su-
preme Court has for a number of years, as Judge Rogers' 
collection of cases shows, demonstrated an unseemly resis-
tance to statutes that preclude, or even limit, judicial review.  
Its resistance more reflects James Buchanan's public choice 
theory, see Crawford-El v. Britton, 93 F.3d 813, 832 (D.C. 
Cir. 1996) (Silberman, J., concurring), than a fair interpreta-
tion of those statutes.  Not surprisingly, the fiercest opposi-
tion is mounted to protect the Supreme Court's authority to 
interpret the Constitution.  That authority lies at the core of 
the Supreme Court's power since, when exercised, it is virtu-
ally unchallengeable.  Thus, the Court repeatedly holds that 
statutes should not be read as depriving the federal courts of 
jurisdiction to entertain constitutional challenges purportedly 
because that reading would itself supposedly raise a serious 
constitutional question--even when that reading is the obvious 
one.  See, e.g., Johnson v. Robison, 415 U.S. 361, 366 (1974).  
Yet paradoxically, the same Supreme Court has admonished 
the Court of Appeals not to use that maxim of statutory 
interpretation unless the statute is truly capable of an alter-
nate construction.  See Commodity Futures Trading 
Comm'n v. Schor, 478 U.S. 833, 841 (1986).  If the Court 
believes that a statutory preclusion of constitutional claims is 
unconstitutional, it should so hold, but see Webster v. Doe, 486 
U.S. 592, 611 (1988) (Scalia, J., concurring in part and dissent-
ing in part), rather than engaging in this series of disingenu-
ous statutory interpretations.

     In light of these cases, we are now led to a limiting 
construction (not covering constitutional challenges--at least 
generic ones) of a statute the Supreme Court itself once 
described as using the language Congress employs when it 
intends to bar judicial review altogether.  See Lindahl v. 
Office of Personnel Mgmt., 470 U.S. 768, 780 n.13.  The 
Supreme Court has brought us to a statutory interpretation 
which is really a reductio ad absurdum.

     To be sure, because the appellant's claim can be described 
as a generic rather than an as applied challenge we need not 
decide whether we agree with the majority of the Seventh 
Circuit in Czerkies v. United States Dep't of Labor, 73 F.3d 

1435 (7th Cir. 1996) (en banc), that under this statute any 
constitutional challenge must be heard, or Judge Easter-
brook's concurrence that would limit such challenges to ge-
neric ones.  I think Judge Easterbrook has somewhat the 
better of the argument because I agree with him that virtual-
ly any plaintiff can get judicial review by clothing an ordinary 
case in constitutional garb.  I also believe the majority, by 
reasoning that only by being able to bring a case in federal 
court does a plaintiff gain constitutional protection, Czerkies, 
73 F.3d at 1442, overlooks the point that all government 
officials take an oath to the Constitution.  Although govern-
ment agencies may not entertain a constitutional challenge to 
authorizing statutes they must decide constitutional chal-
lenges to their own policies whether embodied in generic 
rules or as applied in an individual case.  See Meredith Corp. 
v. FCC, 809 F.2d 869, 872 (D.C. Cir. 1987).

     On the other hand, it must be conceded that a distinction 
between generic and as applied challenges does not emerge 
naturally from reading the statute.  And I am not sure Judge 
Easterbrook's line holds back very much litigation since 
virtually any as applied claim can be phrased--as in this case--
as a generic challenge.  Perhaps we should just give up;  I 
doubt that the Supreme Court has left us any principled 
ground upon which a Court of Appeals judge can honor a 
congressional preclusion of review of a constitutional claim.

     The most forthright reason to read the statute's preclusion 
of judicial review of "all questions of law and fact" as not 
reaching constitutional challenges is that such challenges 
have, for quite some time, not really been based on "law."  
Supreme Court decisions--particularly in the last century--
have resembled more the periodic declarations of a continuing 
constitutional convention than efforts to read the Constitution 
as a body of positive law.