Lepre v. Department of Labor

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.