| Subject: RE Sovereign or Person Article false court reference |
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James
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Date Posted: 09:08:27 04/25/11 Mon
Hello,
There appears to be a case being quoted that I'm finding in several articles and forum postings which appeared in your article Sovereign or Person. I have heard stories of false court decisions making their way into postings and referred to as fact. A quick search brought up the transcript of the case which has nothing to do with the subject. I am referring to the following quote:
All codes, rules and regulations are applicable to the government
authorities only, not human/Creators in accordance with God’s laws. All
codes, rules and regulations are unconstitutional and lacking in due
process …” Rodriques v. Ray Donavan (U.S. Department of Labor), 769 F.
2d 1344, 1348 (1985)
Here is the court case. If I missed the above quote somewhere, please let me know as this was a person convicted of tax fraud and revolved around government disability benefits that were stopped.
Rodrigues v. United States Secretary of Labor, 769 F.2d
1344 (9th Cir. 08/26/1985)
[1] UNITED STATES COURT OF APPEALS FOR THE
NINTH CIRCUIT
[2] No. 84-1712
[3] 1985.C09.40322 ; 769
F.2d 1344
[4] decided: August 26, 1985.
[5] SHERWOOD T. RODRIGUES,
PLAINTIFF-APPELLANT, v. UNITED STATES
SECRETARY OF LABOR, RAYMOND J. DONOVAN,
ET AL., DEFENDANTS-APPELLEES
[6] Appeal from the United States District Court for the
Northern District of California, Robert P. Aguilar, District
Judge, Presiding.
[7] Sherwood T. Rodrigues, Pro Per, Sunnyvale,
California; Judith D. Lazenby, Esq., Sunnyvale, California,
for Plaintiff-Appellant.
[8] Sandra Willis, AUSA, San Francisco, California, for
Defendants-Appellees.
[9] Wallace, Kennedy, and Fletcher, Circuit Judges.
[10] Author: Fletcher
[11] FLETCHER, Circuit Judge:
[12] Rodrigues challenges the termination of his workers’
compensation benefits, contending that he has been
deprived of due process. The district court dismissed his
claim for lack of subject matter jurisdiction, on the basis
that Rodrigues had failed to exhaust available administrative
remedies. We reverse and remand.
[13] I. FACTS
[14] From January 1969 to July 1972, Sherwood Rodrigues
was employed as a bank examiner with the Federal Home
Loan Bank Board. In November 1972, Rodrigues filed a
claim with the Office of Workers’ Compensation Programs,
United States Department of Labor (OWCP). OWCP
determined that Rodrigues was totally disabled and
awarded compensation for his disability from December 9,
1971.
[15] In the fall of 1977, the Internal Revenue Service (IRS)
began investigating Rodrigues for tax evasion. The IRS
concluded that Rodrigues had been employed as an
accountant and had received earnings from 1971 through
1979. The IRS communicated this to OWCP and also
referred the matter to the United States attorney, who
brought criminal charges against Rodrigues for failure to file
tax returns, 26 U.S.C. § 7203 (1982), and for filing false
claims for disability payments with the Department of
Labor, 18 U.S.C. §§ 287, 1920 (1982).
[16] On July 19, 1979, before Rodrigues was tried on the
criminal charges, OWCP notified Rodrigues by letter that
his disability benefits had been suspended. The OWCP
letter also asked him to submit a statement detailing his
employment and earnings since 1971. Through counsel,
Rodrigues responded that he had not worked for anyone
since he left government employment and that he had not
had any employment earnings. Rodrigues also requested a
hearing concerning “why he [had] been disqualified for
further benefits.”
[17] OWCP responded by letter that Rodrigues had not
been disqualified for further benefits, but that they merely
were suspended pending resolution of the criminal action.
The letter stated, “If Mr. Rodrigues is found not guilty of
the charges, appropriate benefits will be reinstated.” The
letter did not mention Rodrigues’s request for a hearing.
[18] In September 1982, the criminal action against
Rodrigues was concluded. Rodrigues was convicted after a
jury trial on the tax return charges, but the government
agreed to dismiss the charges relating to false disability
claims in return for Rodrigues’s agreement not to appeal his
conviction on the other counts. OWCP did not reinstate
Rodrigues’s benefits, however. Instead, it initiated an
investigation of Rodrigues’s employment and earnings
through the Office of Inspector General (OIG). Rodrigues
asserts that from 1979 onward, he made numerous efforts
to have his benefits reinstated and repeatedly received
reassurances from OWCP personnel that a decision was
imminent. But, as of November 1983, sixteen months after
the conclusion of the criminal action, OWCP had not
issued any formal decision.
[19] Rodrigues’s counsel demanded that a final decision be
rendered. Finally, on December 27, 1983, based on
“additional information” obtained from the OIG
investigation,*fn1 OWCP issued a decision formally
rejecting Rodrigues’s claim for benefits. The stated reason
for the termination was that Rodrigues was employable and
had been employed in the field of public accounting. The
decision letter stated that OWCP had reached its
conclusions based on “evidence of record,” but the letter
did not set forth what that evidence was.
[20] OWCP issued a second decision on January 9, 1983,
concluding that Rodrigues had been overpaid benefits in
the amount of $97,163.76 for the period from 1971 to 1979
because he “failed to report his employment activities
correctly.”
[21] Rodrigues requested administrative hearings with
regard to both OWCP decisions. Then, on February 6,
1984, Rodrigues filed this action in the district court,
seeking injunctive relief to compel the Secretary to reinstate
benefits from September 1982, until an administrative
hearing could be held. The complaint alleged that OWCP’s
handling of Rodrigues’s claim had violated fifth amendment
due process.
[22] The district court denied Rodrigues’s motion for a
preliminary injunction and, on its own motion, dismissed
the action for lack of subject matter jurisdiction. Rodrigues
timely appealed.
[23] While the case has been on appeal to this court,
OWCP has advised Rodrigues that an administrative
hearing will be held on his claims.
[24] II. DISCUSSION
[25] The district court concluded that it lacked subject
matter jurisdiction because Rodrigues had not exhausted
his administrative remedies. Jurisdiction and exhaustion in
this case, however, are separate issues, and the district
court should have treated them as such. See United States
v. California Care Corp., 709 F.2d 1241, 1248 (9th Cir.
1983); SEC v. G.C. George Securities, Inc., 637 F.2d 685,
688 & n.4 (9th Cir. 1981); Montgomery v. Rumsfeld, 572
F.2d 250, 252-53 (9th Cir. 1978). We address these issues
separately here.
[26] A. Jurisdiction
[27] Rodrigues’s compensation claim arose under the
Federal Employees Compensation Act (FECA), 5 U.S.C.
§§ 8101-8151 (1982), which provides:
[28] The action of the Secretary or his designee in allowing
or denying a payment under this subchapter is — (1) final
and conclusive for all purposes and with respect to all
questions of law and fact; and (2) not subject to review by
another official of the United States or by a court by
mandamus or otherwise.
[29] 5 U.S.C. § 8128(b) (1982). The Secretary contends
this provision divested the district court of jurisdiction to
hear this action. We disagree.
[30] Courts have long indulged in a presumption favoring
judicial review of agency action. The Supreme Court has
stated that “only upon a showing of ‘clear and convincing
evidence’ of a contrary legislative intent should the courts
restrict access to judicial review.” Abbott Laboratories v.
Gardner, 387 U.S. 136, 141, 87 S. Ct. 1507, 18 L. Ed. 2d
681 (1967); accord Lindahl v. Office of Personnel
Management, 470 U.S. 768, 84 L. Ed. 2d 674, 105 S. Ct.
1620, 470 U.S. 768, 105 S. Ct. 1620, 1627 84 L. Ed. 2d
674 (1985); Dunlop v. Bachowski, 421 U.S. 560, 568, 44 L.
Ed. 2d 377, 95 S. Ct. 1851 (1975). The “clear and
convincing evidence” standard is not talismanic. See Block
v. Community Nutrition Institute, 467 U.S. 340, 81 L. Ed.
2d 270, 104 S. Ct. 2450, 104 S. Ct. 2450, 2454, 81 L. Ed.
2d 870 (1984). The question is one of congressional intent;
whether a statute precludes judicial review “is determined
not only from its express language, but also from the
structure of the statutory scheme, its objectives, its
legislative history, and the nature of the action involved.”
Id. at , 104 S. Ct. at 2454 (citations omitted), quoted in
Lindahl v. Office of Personnel Management, 105 S. Ct. at
1627.
[31] Section 8128(b) of FECA precludes judicial review of
an action of the Secretary “in allowing or denying a
payment.” The conduct of the Secretary that Rodrigues
challenges in this action is not the “allowing or denying [of]
a payment,” but rather the manner in which his claim was
decided. He contends that he has been denied procedural
due process. He does not seek to have his disability claim
decided by the district court. He is not arguing in any
respect the merits of his underlying compensation claim.
Rodrigues’s procedural challenge is entirely collateral to his
underlying substantive claim for benefits. See Boettcher v.
Secretary of Health & Human Services, 759 F.2d 719, 721
(9th Cir. 1985); cf. Heckler v. Ringer, 466 U.S. 602, 80 L.
Ed. 2d 622, 104 S. Ct. 2013, (1984) (challenge to
procedures was “inextricably intertwined” with claim for
benefits, therefore claim should not be separated into
procedural and substantive elements).
[32] The presumption in favor of judicial review is
especially strong in cases in which constitutional challenges
are raised. “Constitutional questions obviously are unsuited
to resolution in administrative hearing procedures and,
therefore, access to courts is essential to the decision of
such questions.” Califano v. Sanders, 430 U.S. 99, 109, 51
L. Ed. 2d 192, 97 S. Ct. 980 (1977). Indeed, if Congress
intended to preclude judicial review of the constitutionality
of a statutory procedural scheme, that likely would raise a
substantial question concerning the constitutionality of the
statute itself. Weinberger v. Salfi, 422 U.S. 749, 762, 45 L.
Ed. 2d 522, 95 S. Ct. 2457 (1975). Several cases have
refused to read statutory finality provisions to preclude
review of constitutional claims. See, e.g., Johnson v.
Robison, 415 U.S. 361, 373-74, 39 L. Ed. 2d 389, 94 S.
Ct. 1160 (1974); Rosen v. Walters, 719 F.2d 1422, 1423
(9th Cir. 1983); Parodi v. Merit Systems Protection Board,
702 F.2d 743, 745-49 (9th Cir. 1982); Humana, Inc. v.
Califano, 191 U.S. App. D.C. 368, 590 F.2d 1070, 1080-81
(D.C. Cir. 1978); Trinity Memorial Hospital, Inc. v.
Associated Hospital Service, Inc., 570 F.2d 660, 665-67
(7th Cir. 1977); Ralpho v. Bell, 186 U.S. App. D.C. 368,
569 F.2d 607, 620-22 (D.C. Cir. 1977).
[33] The structure of FECA and the language of section
8128(b) convince us that Congress’s intent was that the
courts not be burdened by a flood of small claims
challenging the merits of compensation decisions, see, e.g.,
Soderman v. United States Civil Service Commission, 313
F.2d 694, 695 (9th Cir. 1962) (per curiam), cert. denied,
372 U.S. 968, 83 S. Ct. 1089, 10 L. Ed. 2d 131 (1963), and
that the Secretary should be left free to make the policy
choices associated with disability decisions. Cf. United
States v. Erika, Inc., 456 U.S. 201, 208-10, 72 L. Ed. 2d
12, 102 S. Ct. 1650 (1982) (similar purpose found in
Medicare review provisions); Johnson v. Robison, 415
U.S. at 370 (similar purpose found in finality provision of
veterans’ benefits statute). We do not read the statute to
take the “extraordinary” step of foreclosing jurisdiction
over constitutional claims. See Califano v. Sanders, 430
U.S. at 109; see, e.g., Allen v. Faragasso, 585 F. Supp.
1114, 1118 n.3 (N.D. Cal. 1984) (court decided challenges
to OWCP procedures but refused to consider merits of
compensation decision).
[34] Although a mere allegation of a constitutional violation
would not be sufficient to avoid the effect of a statutory
finality provision, see Reid v. Engen, 765 F.2d 1457, 1461
(9th Cir. 1985), the record before us indicates that
Rodrigues may have cognizable due process claims.
Rodrigues does not make a facial attack on the
constitutionality of the FECA procedures themselves, but,
instead, asserts that the procedures are unconstitutional as
applied to him. Given the Secretary’s failure to provide a
hearing after the suspension of benefits, despite
Rodrigues’s request for one, and the Secretary’s
considerable delay in deciding Rodrigues’s claim, we do
not find the due process challenges insubstantial. See
Cleveland Board of Education v. Loudermill, 470 U.S. 532,
84 L. Ed. 2d 494, 105 S. Ct. 1487, (1985) (“At some point,
a delay in the post-termination hearing would become a
constitutional violation.” (citation omitted)); Kelly v.
Railroad Retirement Board, 625 F.2d 486, 490-91 (3d Cir.
1980).
[35] We do not mean by this to express any opinion on the
ultimate merit of Rodrigues’s due process claims. We defer
to the district court in the first instance. We simply
conclude that, on the basis of the record before us,
Rodrigues’s due process contentions appear to be more
than mere allegations included in the complaint to create
jurisdiction where none would exist otherwise.
[36] B. Exhaustion of Administrative Remedies
[37] Our cases consistently have held that, unless statutorily
mandated, application of the exhaustion doctrine lies in the
sound discretion of the district court. Reid v. Engen, 765
F.2d at 1462; United States v. California Care Corp., 709
F.2d at 1248; Southeast Alaska Conservation Council, Inc.
v. Watson, 697 F.2d 1305, 1309 (9th Cir. 1983); Aleknagik
Natives Ltd. v. Andrus, 648 F.2d 496, 500 (9th Cir. 1980);
Montgomery v. Rumsfeld, 572 F.2d at 253-54. The
judicially-created exhaustion doctrine does not limit
jurisdiction; rather, it permits courts to decide whether to
exercise jurisdiction. See United States v. California Care
Corp., 709 F.2d at 1248; Stauffer Chemical Co. v. FDA,
670 F.2d 106, 107 (9th Cir. 1982).
[38] FECA clearly does not require exhaustion of
administrative remedies as a prerequisite to a district court’s
jurisdiction. As we noted above, FECA precludes federal
jurisdiction with regard to the merits of a compensation
claim. 5 U.S.C. § 8128(b); see, e.g., Soderman v. United
States Civil Service Commission, 313 F.2d at 695; see also
Reep v. United States, 557 F.2d 204, 207 (9th Cir. 1977)
(failure to exhaust FECA remedies barred suit under
Federal Tort Claims Act). But we hold today that FECA
was not intended to preclude jurisdiction over a due
process challenge, such as the one Rodrigues raises here.
[39] Just as the nature of Rodrigues’s claim in this action
avoids the effect of FECA’s finality provision, the nature of
the claim also makes it somewhat ill-suited for application
of the exhaustion doctrine. Exhaustion typically is thought
of as a precondition to a review of the merits of an agency
determination, but, as we must emphasize again, Rodrigues
is not seeking review of the merits of the Secretary’s
decision.
[40] Still, the considerations that inform the exhaustion
doctrine are not completely out of place here. Exhaustion
of administrative remedies ordinarily is required to
[41] prevent[] premature interference with agency
processes, so that the agency may function efficiently and
so that it may have an opportunity to correct its own errors,
to afford the parties and the courts the benefit of its
experience and expertise, and to compile a record which is
adequate for judicial review.
[42] Weinberger v. Salfi, 422 U.S. at 765; see also
Montgomery v. Rumsfeld, 572 F.2d at 253. Some of these
policies are implicated here. In particular, review at this
point may be premature and the record as it now stands
may be inadequate for judicial review of Rodrigues’s due
process claim.*fn2
[43] First, it is not entirely clear what relief Rodrigues is
seeking. The thrust of his complaint seems to be that he
wants a hearing concerning the overpayment and
termination decisions, and retroactive reinstatement of
benefits until such a hearing is held. But the Secretary has
now notified Rodrigues that he will have a hearing, and, in
fact, that hearing already may have taken place.*fn3
[44] If reinstatement of benefits pending a hearing is the
only relief that Rodrigues seeks and a hearing has been
held, it may be that this case is now moot. On the other
hand, if Rodrigues seeks or is entitled to other relief or if he
contends that the hearing he was given still does not satisfy
due process requirements, it may be that he has now
sufficiently exhausted administrative remedies and the case
should go forward in the district court.
[45] If the hearing Rodrigues was promised has not taken
place, or if it has taken place but no decision has been
issued, it may be appropriate for the district court to retain
jurisdiction in order to ensure that Rodrigues is given the
process he is due.
[46] In sum, then, whether it is prudent to require
exhaustion in this case depends on precisely what relief
Rodrigues is seeking, where his compensation claim stands
in the administrative process, and whether subsequent
administrative hearings, if they have occurred, have affected
Rodrigues’s claims.
[47] Given the vagaries of this case, we are in no position
to say whether requiring exhaustion would be wise. In any
event, the determination whether to require exhaustion is a
matter committed in the first instance to the district court’s
discretion. The district court, having construed exhaustion
as jurisdictional and having dismissed on that basis, has not
exercised its discretion.*fn4 Under these circumstances, the
appropriate course is to remand to allow the district court
the opportunity to exercise its discretion. See Stratman v.
Watt, 656 F.2d 1321, 1326 (9th Cir. 1981), cert. dismissed,
456 U.S. 901, 72 L. Ed. 2d 170, 102 S. Ct. 1744 (1982);
SEC v. G.C. George Securities, Inc., 637 F.2d at 688 &
n.3; Montgomery v. Rumsfeld, 572 F.2d at 254. We do not
preclude the possibility that the district court after a review
of the facts may find this case moot.
[48] III. CONCLUSION
[49] We conclude that the district court had jurisdiction
over Rodrigues’s action. We remand to the district court to
allow it to consider whether to exercise that jurisdiction or
to require exhaustion or to fashion such other relief as may
be indicated.
[50] REVERSED and REMANDED.
[51] Disposition
[52] REVERSED and REMANDED.
——————————————————————————–
Opinion Footnotes
——————————————————————————–
[53] *fn1 The record does not show what this additional
information was or whether OIG issued a report of its
investigation and findings.
[54] *fn2 Here, we refer to the inadequacy of the record,
not in the sense of lack of factual determinations going to
the merits of Rodrigues’s compensation claim, but rather in
the sense of lack of facts as to exactly what process the
Secretary has or will afford Rodrigues (the type of hearing,
the reasons for delay, etc.).
[55] *fn3 It was scheduled for the week of April 22-26,
1985.
[56] *fn4 The district court may decide to require
exhaustion, or it may decide to exercise its jurisdiction and
allow the action to proceed. Alternatively, the court might
retain jurisdiction over the case, but stay its own
proceedings pending administrative review. See
Montgomery v. Rumsfeld, 572 F.2d at 254.
19850826
© 1998 VersusLaw Inc.
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