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SMITH v. HORNER

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA


September 22, 1986

CLINTON SMITH, Plaintiff,
v.
CONSTANCE HORNER, Director, United States Office of Personnel Management, Defendant

The opinion of the court was delivered by: HARRIS

MEMORANDUM OPINION

 This matter is before the Court on defendant's motion for clarification of the Court's Memorandum Opinion of May 19, 1986, in this action. 635 F. Supp. 323. (The Order accompanying that Memorandum Opinion denied defendant's motion to dismiss.) In that Memorandum Opinion, the Court made a less than satisfactory tentative identification of the issue which was "apparently the only issue left for this Court to give de novo review to" (635 F. Supp. at 327) in plaintiff's Title VII action as a result of the United States Court of Appeals for the Federal Circuit's affirmance of the MSPB's denial of plaintiff's claim for disability benefits. *fn1"

 The Court agrees with defendant that its Memorandum Opinion contained an internal inconsistency on a question which had not been addressed specifically by the parties. Accordingly, it clarifies its Memorandum Opinion of May 19, 1986, in the following manner: the issue left for this Court to review is not whether the medical evidence met what the Federal Circuit concluded was the proper standard for awarding disability benefits, as such a review is precluded by 5 U.S.C. § 8347 (c). *fn2" Rather, plaintiff's claim of reprisal is the sole issue that plaintiff has a right to have this Court review pursuant to 5 U.S.C. § 7703(c).

 The inconsistency which was present in the Court's May 19, 1986, Memorandum Opinion resulted from the highly unusual circumstances presented by this case. Plaintiff claims herein that the denial of his disability benefits was an act of reprisal by defendant. Plaintiff proceeds in District Court under 5 U.S.C. § 7703(c), which provides in part that "in the case of discrimination . . . the employee or applicant shall have the right to have the facts subject to trial de novo by the reviewing court." *fn3" Plaintiff also had appealed the MSPB's denial of his claim for disability benefits to the Federal Circuit, which reviewed "whether there [had] been a substantial departure from important procedural rights, a misconstruing of the governing legislation, or some like error 'going to the heart of the administrative determinations.'" Lindahl v. Office of Personnel Management, 470 U.S. 768, 105 S. Ct. 1620, 1633, 84 L. Ed. 2d 674 (1985) (quoting Scroggins v. United States, 184 Ct. Cl. 530, 397 F.2d 295, 297 (Ct. Cl.), cert. denied, 393 U.S. 952, 21 L. Ed. 2d 363, 89 S. Ct. 376 (1968)). The Federal Circuit concluded there had been no such error. The Federal Circuit did not review the factual underpinnings of the disability determination, because it was precluded from doing so by 5 U.S.C. § 8347(c), which provides: "The Office [of Personnel Management] shall determine questions of disability and dependency arising under this subchapter. The decisions of the Office concerning these matters are final and conclusive and are not subject to review." The Supreme Court in Lindahl discussed § 8347(c) and concluded that the statute, while precluding judicial review of the factual underpinnings of § 8347 disability determinations, does allow review of procedure of the type described above. 105 S. Ct. at 1627, 1633.

 Plaintiff's Title VII action alleges that the denial of his disability claim was an act of reprisal; therefore, plaintiff argues, the Court must look at all of the facts de novo. However, the Court is faced with the specific statutory prohibition of § 8347(c), affirmed by the Supreme Court in Lindahl, that the factual underpinnings of disability determinations are not subject to judicial review. *fn4" The Court must accede to "the fundamental maxim of statutory construction that the terms of a more specific statute take precedence over those of a more general statute where both statutes speak to the same concerns." Union of Concerned Scientists v. Nuclear Regulatory Comm'n, 229 U.S. App. D.C. 92, 711 F.2d 370, 381 (D.C. Cir. 1983) (citing Busic v. United States, 446 U.S. 398, 64 L. Ed. 2d 381, 100 S. Ct. 1747 (1980)).

 Plaintiff argues that this Court should follow Rosenfeld v. Department of Army, 769 F.2d 237 (4th Cir. 1985). In Rosenfeld, plaintiff, a 64-year-old maintenance mechanic for the Army, brought an action in the United States District Court under the Age Discrimination in Employment Act (ADEA) alleging that he had been involuntarily retired under § 8347 (c), and that he had been denied a requested transfer because of his age or in reprisal for a prior discrimination charge. *fn5" The disability determination had no judicial review. Id. at 242. The Fourth Circuit noted that Title VII and ADEA claims receive de novo review of the facts, and held that § 8347(c) could not be used to collaterally preclude litigation of a discrimination action under the ADEA. Id. at 242. The Court remanded to the District Court for a determination of whether any genuine issue of material fact existed.

 This Court declines to reach a result comparable to that in Rosenfeld. The Rosenfeld court stated in a footnote: "Had judicial review of the Commission's decision been available, and the disability determination been affirmed on the merits by a federal court, a different question would be presented." Id. at 241 n.3. In the instant case, the administrative proceedings finding plaintiff ineligible for disability retirement benefits have been reviewed and affirmed by the Federal Circuit. Plaintiff in this case already has received judicial review of the denial of his disability claim, and the type of review that he received is the only type that is available to him. The Supreme Court's opinion in Lindahl focused on whether Congress intended to preclude judicial review of legal and procedural errors potentially made in administrative denials of disability benefits under § 8347(c), and concluded that Congress did not intend to preclude that type of review. 105 S. Ct. at 1628-33. The Lindahl opinion does not express any doubt that Congress intended § 8347(c) to preclude judicial review of factual determinations made by the Office of Personnel Management. Id. at 1628, 1633. Due to that Congressionally imposed finality provision, this Court is not free to review those factual determinations even when they are sought to be presented in the context of a Title VII claim. *fn6"

 Accordingly, the Court grants defendant's motion. The Court clarifies its Memorandum Opinion and the accompanying Order of May 19, 1986, in this case to provide that plaintiff may obtain judicial review in this Court only of his claim of reprisal brought pursuant to § 704(a) of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-3(a). An appropriate Order to this effect accompanies this Memorandum Opinion.

 In conclusion, the Court recognizes, as intimated by plaintiff on the first page of his opposition to defendant's motion, that this may well place plaintiff in the apparently anomalous position of having a theoretical potential remedy with no potential relief (i.e., plaintiff seeks disability benefits only, and it appears that the Court would be precluded by the prior proceedings and by statute from awarding plaintiff the relief he seeks if plaintiff were to prevail on his reprisal claim). That anomaly, however, is not the fault of the Court, defendant, or the controlling statutes and precedent. Rather, it is the consequence of a series of tactical judgments exercised by plaintiff and/or his counsel in the course of this exceptionally protracted litigation, with the portion in this Court being but a small part thereof. The Court shall await the parties' positions as to the future course of this case, to be received first at a status call which will be scheduled soon.

 ORDER

 Upon consideration of defendant's motion for clarification, plaintiff's opposition thereto, the two reply pleadings, and the entire record herein, it hereby is

 ORDERED, that defendant's motion is granted. It hereby further is

 ORDERED, that the Memorandum Opinion and accompanying Order of May 19, 1986, are clarified to provide that plaintiff may obtain judicial review in this Court only of his claim of reprisal brought pursuant to § 704(a) of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-3(a).

 SO ORDERED.


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