ON PETITION FOR REVIEW OF AN ORDER OF THE MERIT SYSTEMS PROTECTION BOARD
Before: ADAMS, HUNTER and GARTH, Circuit Judges
This appeal involves a federal employee who was denied voluntary disability retirement by the Office of Personnel Management (OPM), in a decision affirmed by the Merit Systems Protection Board (MSPB). The employee has come before this Court to ask that the decision by the OPM be overturned. Becasue we conclude that we are without jurisdiction to hear this appeal, we do not reach the merits of her challenge.
Leola Campbell, the petitioner here, was a Communications Equipment Operator at the Defense Personnel Support Center in Philadelphia, using both a computer and a teletype. Her job required typing skills and some carrying and lifting of stacks of paper, data cards, and computer tapes. Toward the end of 1978, Campbell began to notice some tingling and numbness in her right hand. On January 23, 1979, she hit her elbow on a computer; she reported this injury to her supervisor and went to the agency infirmary. Campbell worked the balance of the week, but the pain in her elbow increased significantly, and she periodically had trouble using her hand. She testified that after hitting her elbow she had difficulty dressing herself, that she began dropping things, and that she experienced pain in her arm after attempting to do housework. It appears from appellant's testimony that these are intermittent problems, not continuous ones. Her condition was eventually diagnosed as carpal tunnel syndrome, an ailment caused by pressure on the nerves in the wrist.
Campbell applied for federal disability retirement benefits because of her condition. The application was denied by the OPM on June 10, 1980, and a request for reconsideration was rejected on November 7, 1980. Campbell then appealed to the Merit Systems Protection Board. A hearing was held at which she presented evidence that she was suffering from carpal tunnel syndrome. The MSPB presiding official upheld the decision of the OPM that Campbell was not entitled to disability retirement benefits. This determination was affirmed by the MSPB on March 5, 1982. Campbell then filed this appeal.
The statute at issue, 5 U.S.C. § 8331 et seq., provides that a federal employee may voluntarily request disability retirement benefits from the Office of Personnel Management. Decisions by the OPM may then be appealed to the Merit Systems Protection Board. 5 U.S.C. § 8347(d) (1). The Act further provides that, other than MSPB review, "the decisions of the [OPM] concerning these matters are final and conclusive and are not subject to review." 5 U.S.C. § 8347(c). The OPM contends that this porivison bars all judicial review, and the Eighth Circuit has recently adopted this position. Morgan v. OPM, 675 F.2d 196 (8th Cir. 1982). The Court of Claims, however, has read this phrase as permitting review, although such review is limited to determining whether there has been a "substantial departure from important procedural rights, misconstruction of governing legislation or some like error going to the heart of the administrative determination." Allen v. U.S., 215 Ct. Cl. 524, 571 F.2d 14 (Ct. Cl. 1976) (citing other cases). Scroggins v. U.S., 184 Ct. Cl. 530, 397 F.2d 295, 297-98 (Ct. Cl.), cert. denied, 393 U.S. 952, 21 L. Ed. 2d 363, 89 S. Ct. 376 (1968).
Gaines v. U.S., 158 Ct. Cl. 497 (1962), is the leading Court of Claims case in this area. Although Gaines does not provide a detailed explanation of the stance taken by the Court of Claims, it appears to have read into the statute a "fundamental fairness" due process concept that agency decisions normally unreviewable cannot stand if based on a failure to comply with the agency's own procedures, a misreading of the governing statute or some other error of similar magnitude, which would call into question the validity of the decision-making process. To the extent that this standard would allow even minimal judicial review of the merits of a disability determination, it would appear to be unsupported by either the language of the statute or the legislative purpose behind the voluntary disability provisions.*fn1 Because this appeal presents a challenge only to the factual determination of disability, however, we need not reach the question whether the statute bars judicial review of procedural issues as well.
Although it is well-established that Congress cannot preclude judicial review of allegedly unconstitutional agency action, Congress does have the power to preclude judicial review of non-constitutional challenges to agency actions. U.S. v. Erika, Inc., 456 U.S. 201, 102 S. Ct. 1650, 72 L. Ed. 2d 12, 50 U.S.L.W. 4399 (1982). Erika dealt with a section of the Medicare statute, 42 U.S.C. § 1395ff, which provides for judicial review in most cases of Medicare claims but which omits judicial review of one class of cases. The Court of Claims, sitting en banc, had held that the courts could review decisions involving cases omitted from the statutes review provisions. Erika, Inc. v. U.S., 225 Ct. Cl. 252, 634 F.2d 580 (Ct. Cl. 1980) (en banc). In reaching this conclusion, the Court of Claims relied on its decisions allowing review of MSPB disability retirement determinations as support for review under the Medicare statute.The Supreme Court reversed, holding that Congress had intended that no judicial review be available for that class of cases. The Supreme Court focused on the language and structure of the statute and noted that the judicial review provision was carefully drawn to exclude those cases. It also looked at the legislative history of the provision and a subsequent amendment which made clear that Congress had not intended these claims to be reviewed by the courts. Since Erika interprets a statute other than the one at issue here, it is not controlling in this appeal. It does, however, stand for the proposition that Congress may foreclose judicial review of specified agency decisions, and that the language of the statute and the legislative history are the factors to be considered in determining whether review is in fact precluded in a given case.
Prior to 1980, the disability retirement ...