[00:00:02] Speaker 00: Case number 18-5330, Deborah Katz-Preschel, appellate for Sideline L. Cho and her official capacity as Secretary, partner of transportation at L. Mr. Chuzi from the Appellate, Mr. Hare from the Appellate. [00:00:19] Speaker 03: Good morning. [00:00:19] Speaker 03: Good morning, Your Honors. [00:00:21] Speaker 03: May it please the Court? [00:00:23] Speaker 03: Thank you. [00:00:23] Speaker 03: Appellant Deborah Preschel, a former air traffic controller, filed two claims of discrimination and reprisal against the FAA [00:00:32] Speaker 03: and a claim against OWCP, the Office of Worker Compensation Programs, when it violated her rights under the First Amendment, when they reduced her disability benefits because she ran for Congress, which OWCP took as a sign she was not as disabled as she claimed. [00:00:51] Speaker 05: Are you making a claim against the Workman's Compensation Bureau? [00:00:57] Speaker 05: I thought you were not. [00:00:59] Speaker 03: In Count 3, [00:01:01] Speaker 03: Judge Silberman, we are specifically claiming that the OWCP violated Ms. [00:01:08] Speaker 03: Purcell's first amendment. [00:01:09] Speaker 05: Constitutional rights. [00:01:11] Speaker 03: Yes, the constitutional claim. [00:01:13] Speaker 03: And that's the only claim, the only count that we're targeting the OWCP. [00:01:19] Speaker 03: And I want to add, because it's not necessarily clear, in 1999, OWCP awarded Ms. [00:01:27] Speaker 03: Purcell full disability benefits [00:01:29] Speaker 03: stemming from her employment with the FAA up until that time. [00:01:35] Speaker 03: Given the time constraints, we wish to focus our attention on the district court's dismissal of the constitutional claim, count three, for failure to state a claim. [00:01:46] Speaker 03: There are two issues that are not in issue in this case. [00:01:51] Speaker 03: One, the district court correctly held that it had jurisdiction over the OWCP claim [00:01:58] Speaker 03: under LePray versus Department of Labor decision of this court. [00:02:03] Speaker 03: And two, the court correctly did not question at this stage of the litigation Ms. [00:02:10] Speaker 03: Pichelle's claim that her OWCP benefits were reduced because she ran for Congress. [00:02:19] Speaker 03: Instead, the court dismissed the claim, count three, citing the Supreme Court's letter carrier's decision [00:02:27] Speaker 03: which upheld the Hatch Act and a decision of this court branch versus the Federal Communications Commission, which upheld the equal time and fairness doctrine requirements in the 1982 amendments to the Communications Act of 1934. [00:02:46] Speaker 03: Both of those decisions affirmed Congress's ability to protect the political process consistently with the First Amendment. [00:02:56] Speaker 05: What I don't understand is why is it that running for Congress exhibits a great deal of activity, physical activity, as everybody knows. [00:03:13] Speaker 05: And why isn't it legitimate for OWCP to conclude that that kind of activity is inconsistent with disability ruling? [00:03:27] Speaker 03: Well, in fact, Your Honor, as OWCP itself held, running for office is not the same as holding a job. [00:03:40] Speaker 03: The OWCP benefits are predicated on Ms. [00:03:44] Speaker 03: Pochelle's inability to work. [00:03:48] Speaker 04: In that she could not do what? [00:03:51] Speaker 03: In that she could not perform the duties of an air traffic controller. [00:03:55] Speaker 04: Namely? [00:03:56] Speaker 03: I'm sorry? [00:03:56] Speaker 04: Namely? [00:03:59] Speaker 03: Well, she suffered from various medical conditions that were associated. [00:04:06] Speaker 04: Be specific, though. [00:04:06] Speaker 03: I'm sorry? [00:04:07] Speaker 04: Be specific. [00:04:09] Speaker 03: Your Honor, the district court's record was sealed with respect to this precisely. [00:04:14] Speaker 04: Well, what I'm getting at is, as Judge Silverman has pointed out, to run for Congress takes a lot of time, energy, et cetera. [00:04:22] Speaker 04: All right? [00:04:23] Speaker 04: So if that's what she was unable to do when she was fully disabled, then it seems to me Judge Silverman makes a strong point. [00:04:36] Speaker 04: On the other hand, [00:04:38] Speaker 04: If her disability was because of some permanent condition or something that had nothing to do or could not in any way be analogized to anything remotely similar to running for Congress, then maybe it would be irrelevant. [00:04:57] Speaker 04: But that's not the way the case comes to us. [00:05:00] Speaker 03: Well, when the OWCP issued its decision granting Ms. [00:05:05] Speaker 03: Purcell's benefits for injuries sustained in the course of her employment, it was not ruling on her ability to run for Congress. [00:05:13] Speaker 04: I understand, but on the other hand, it was ruling on her ability to do the air traffic controller's job, right? [00:05:21] Speaker 03: Yes, but the air traffic controller's job demanded certain skills and... Like what? [00:05:28] Speaker 03: I'm sorry, the ability to pay attention, the ability to not be subject to sexual harassment as she was, which was a part of OWCP's decision. [00:05:43] Speaker 03: As we've pointed out in our briefs, Ms. [00:05:46] Speaker 03: Purcell prevailed in a Fourth Circuit decision that found that she had been the victim of sexual harassment. [00:05:53] Speaker 03: And the OWCP took that into account [00:05:56] Speaker 03: in terms of the conditions that she was experiencing when it found that she was totally disabled. [00:06:03] Speaker 03: I want to suggest that the disability that we're talking about is not the same as somebody who is a paraplegic, who is totally disabled. [00:06:15] Speaker 03: Senator Duckworth [00:06:17] Speaker 03: is disabled as far as the military and the VA are concerned. [00:06:22] Speaker 03: That does not mean that she could not run for office, and it doesn't mean that she can serve as a senator. [00:06:28] Speaker 03: It means that for the specific injuries that she experienced, the VA is considering her to be disabled. [00:06:37] Speaker 04: As to that job? [00:06:40] Speaker 03: To do the job of the military. [00:06:43] Speaker 04: Of the air traffic controller. [00:06:47] Speaker 04: Yes, Your Honor, but the... In other words, she could follow things on a computer, she could track flights, she could schedule things. [00:06:56] Speaker 04: Now, running for Congress, she has to schedule things. [00:07:00] Speaker 04: She can track polls as to how well she's doing. [00:07:05] Speaker 04: I mean, there is some similarity, facially. [00:07:08] Speaker 03: Your Honor, Ms. [00:07:09] Speaker 03: Pichella was evaluated consistently [00:07:13] Speaker 03: by her doctors and OWCP doctors after her disability. [00:07:17] Speaker 04: So your position is that since she was once declared to be totally disabled as an air traffic controller, she was entitled to keep that status no matter what she did. [00:07:32] Speaker 03: No. [00:07:33] Speaker 04: The rest of her life? [00:07:34] Speaker 03: No, that's not our position. [00:07:36] Speaker 04: What is your position? [00:07:37] Speaker 03: Our position is, as recently as January 2013, and this is in the record, it's not in the appeals court record, but it's in the district court record, it's document 16-2, which was a declaration filed by the government, and it pages [00:07:58] Speaker 03: We don't have the court's actual filing document, but the PDF pages were 27 to 41. [00:08:04] Speaker 03: As recently as January 2013, Ms. [00:08:08] Speaker 03: Pichelle was examined by a doctor who declared that she was still incapable of full-time work. [00:08:19] Speaker 03: OWCP went back to her and said, yes, but she ran for Congress. [00:08:24] Speaker 03: You didn't take into account that she ran for Congress. [00:08:28] Speaker 03: And that doctor said, oh, well, if she ran for Congress, then maybe she isn't completely disabled. [00:08:34] Speaker 03: What I am suggesting here is under the First Amendment, it is inappropriate to consider the fact that a person is running for Congress. [00:08:45] Speaker 03: And Judge Rogers, the running in Ms. [00:08:48] Speaker 03: Purcell's case was posting a website, which takes no effort, showing up at a forum every now and again. [00:08:58] Speaker 03: That is all that OWCP could point to and we assert that that is an improper factor in considering whether the compensation she was earning because of her injuries while a federal employee can be reduced. [00:09:14] Speaker 02: I mean that sounds an awful lot like us second guessing the merits of the disability decision. [00:09:21] Speaker 03: No, and in fact we're not asking you to second guess the merits of the disability decision. [00:09:28] Speaker 03: The only thing we can ask for on a constitutional claim such as this is that the district court remand the decision to OWCP to rule out her running for Congress and to decide based on the remaining factors [00:09:46] Speaker 03: whether her benefits should or should not be reviewed. [00:09:48] Speaker 05: But that indeed, just as my colleagues suggest, is asking us to review the OWCP opinion. [00:09:59] Speaker 05: No. [00:10:00] Speaker 05: Yes it is. [00:10:01] Speaker 05: You're saying there's a factor they considered which is inappropriate. [00:10:05] Speaker 05: They're re-remanding it back to them to excise that factor. [00:10:09] Speaker 03: You would first have to decide. [00:10:11] Speaker 03: And, you know, in the branch decision, which [00:10:14] Speaker 03: the district court relied upon, this court said the right to seek public office is undeniable. [00:10:21] Speaker 03: That's what this court said. [00:10:23] Speaker 03: What we are suggesting is just as in the cases that somebody running for Congress could not be compelled to pay a filing fee if they were indigent, that you could not put a burden on running for Congress in that manner. [00:10:43] Speaker 05: That OWCP should... Does the federal government demand somebody who's running for Congress pay student loans? [00:10:54] Speaker 05: The student loan was incurred in a different context. [00:10:58] Speaker 05: Right, before the individual ran for Congress. [00:11:01] Speaker 05: And if the individual running for Congress said, if I have to pay the student loan, I won't be able to finance the running for Congress. [00:11:09] Speaker 03: Yes, but Judge, that's... [00:11:11] Speaker 03: The student loan is an obligation that the person owes. [00:11:16] Speaker 03: We're talking about money that the government normally pays to an employee, or in the case of a filing fee, there's no money that's owed. [00:11:25] Speaker 03: This is a burden that is placed on the individual as the price of running for office. [00:11:31] Speaker 03: And the Supreme Court says you can't do that. [00:11:34] Speaker 03: You can't do that. [00:11:36] Speaker 05: And what we're suggesting... The charge is for activity. [00:11:42] Speaker 05: It wouldn't matter if it was running for office or running for a bus. [00:11:49] Speaker 03: But the OWCP did not base its decision on any physical activities that Ms. [00:11:55] Speaker 03: Pichelle might do. [00:11:56] Speaker 05: But everybody knows running for the Congress takes an enormous amount of energy and time. [00:12:01] Speaker 03: I suggest, Judge Sublamin, with all due respect, posting a website does not take an enormous amount of activity. [00:12:07] Speaker 04: What about your acknowledgment that in 2013, in this document that's not part of the record before this court, the doctor acknowledged [00:12:16] Speaker 04: that maybe running for Congress would make a difference as to whether she remained eligible for 100% disability? [00:12:26] Speaker 03: What we are suggesting is basing the decision, basing the decision on whether Ms. [00:12:32] Speaker 03: Pichelle is disabled on the fact that she ran for Congress. [00:12:38] Speaker 03: is a violation of the First Amendment. [00:12:40] Speaker 03: It imposes a burden on her ability to run for office. [00:12:45] Speaker 04: It's not that she's penalized for running for Congress. [00:12:51] Speaker 04: It's that as a result of that, she has engaged in certain activity where the government is suggesting she's no longer fully disabled. [00:13:04] Speaker 04: And she probably could do some part of the air controller traffic job. [00:13:12] Speaker 05: Or other related jobs. [00:13:14] Speaker 03: Yes, but that wasn't the basis for the OWCP decision. [00:13:19] Speaker 02: So if the facts were that in her course of her campaign, she challenged her opponent to a series of Lincoln-Douglas style debates, and they stood and debated for [00:13:31] Speaker 02: hours on end on multiple occasions, OWCP couldn't take that into consideration. [00:13:41] Speaker 03: Judge Wilkins, without going too far into this, the injuries for which Ms. [00:13:46] Speaker 03: Purcell was compensated were emotional and similar kinds of injuries, which are not implicated in running for office. [00:13:58] Speaker 03: And it's, you know, I [00:14:01] Speaker 03: She's sitting in the courtroom. [00:14:03] Speaker 03: I don't want to get into this. [00:14:05] Speaker 03: This is protected information. [00:14:07] Speaker 03: But the fact of the matter is that OWCP's reliance solely on the fact that she was a candidate without considering any of the issues that you're discussing. [00:14:18] Speaker 02: So you're saying that they could, if it were relevant to the disability determination, they could consider [00:14:27] Speaker 02: her running for office. [00:14:30] Speaker 02: If the activities that she engaged in and running for office were relevant, then it wouldn't violate the First Amendment under those circumstances. [00:14:38] Speaker 03: If there were medical records, because OWCP relies on medical records, if there were medical records that established that she had recovered sufficiently [00:14:48] Speaker 03: the emotional issues had recovered sufficiently as demonstrated by her ability to do X, Y, and Z, then yes, that might be something that OWCP legally could find. [00:15:04] Speaker 03: But by basing its decision on the mere fact that she had been a candidate is a violation of the First Amendment. [00:15:12] Speaker 02: No, but my question is, they find out that she was a candidate [00:15:18] Speaker 02: And a doctor says, OK, as a candidate, what were you doing? [00:15:22] Speaker 02: And the doctor finds out what activities she was taking place in as a candidate. [00:15:30] Speaker 02: And then the doctor bases a recommendation on that and says, well, those activities are relevant to the disability determination. [00:15:42] Speaker 02: Are you saying that's permissible or not permissible? [00:15:45] Speaker 03: What I would say, judges, and Ms. [00:15:48] Speaker 03: Pichelle was not given the opportunity to discuss that with a doctor, but what I would say is if the case is remanded for consideration of Ms. [00:15:59] Speaker 03: Pichelle's recovery or not, without consideration of the mere fact that she was a candidate, had posted a website, if OWCP says [00:16:10] Speaker 03: in the face of that, that we believe that the activities that she engaged in indicate that she has recovered, that decision by itself would be unreviewable. [00:16:22] Speaker 03: That decision is specifically carved out of judicial review by 5 U.S.C. [00:16:27] Speaker 03: 8128B. [00:16:30] Speaker 03: And that decision would not be reviewable. [00:16:33] Speaker 03: What we are here arguing, just as this court is considered on any number of occasions, is when a constitutional challenge is posed, it's the duty of the court to decide whether the constitutional issue identified by the claim was, in fact, a factor in the decision. [00:16:53] Speaker 03: And that's what we're suggesting. [00:16:57] Speaker 04: All right, why don't we hear from [00:17:00] Speaker 03: I'd rather you didn't, but nevertheless. [00:17:03] Speaker 03: Thank you. [00:17:05] Speaker 05: You didn't have a chance to raise your other two issues. [00:17:08] Speaker 05: I hope you have a chance on rebuttal. [00:17:11] Speaker 03: I don't have any time for rebuttal. [00:17:13] Speaker 03: We are prepared to, unless the court has questions, we're prepared to rest on briefs with the first two counts. [00:17:31] Speaker 04: Good morning. [00:17:32] Speaker 01: Good morning, Your Honors. [00:17:33] Speaker 01: May it please the Court, Christopher Hare, Counsel for Pellies. [00:17:38] Speaker 01: I'll start where we left off, and for Puchel's First Amendment claim, under this Court's precedent in Branch v. FCC, Puchel's right to seek political office is not implicated here. [00:17:53] Speaker 01: Pichelle offers no FECA challenge or no statutory mandate challenge to OWCP's implementation of FECA, nor does she point to a systemic constitutional issue with her disability. [00:18:08] Speaker 04: Well, that's not really her issue as she's framed it. [00:18:11] Speaker 04: So why don't you deal with her issue as she's framed it? [00:18:15] Speaker 01: I believe, Your Honor, that her argument regarding OWCP's consistency in determining wages for activities involving political office is really a challenge to the assessment of the medical evidence in support of her disability claim. [00:18:30] Speaker 04: And the question is, how would we ever know? [00:18:34] Speaker 01: Well, the discussion that we just had a moment ago dealt with [00:18:45] Speaker 01: the medical evidence that was submitted in this claim. [00:18:48] Speaker 04: Well, not really, because it's all under seal. [00:18:51] Speaker 01: Correct, Your Honor. [00:18:52] Speaker 01: So it's not a part of the record before this court. [00:18:55] Speaker 01: And while we would disagree with the characterization of evidence, what we are arguing is simply that [00:19:03] Speaker 01: There's no either OWCP rule or requirement that they set aside activities that have to do incidentally with running a congressional campaign. [00:19:15] Speaker 04: I suppose all that's in the record before us is that her disability was reduced because she ran for political office, period. [00:19:27] Speaker 04: And that's all we know. [00:19:32] Speaker 01: I'm not sure how that case would necessarily play out. [00:19:35] Speaker 01: I know it's different from the case we have here. [00:19:37] Speaker 04: Why? [00:19:38] Speaker 01: Because here we know that OWCP began the process by which it evaluates medical evidence. [00:19:48] Speaker 01: I think if you look at this claim from the FAA's perspective, where that might be all that the agency knew with respect to a campaign website or that type of information, [00:20:01] Speaker 01: and then submitted it to OWCP. [00:20:04] Speaker 01: The process by which OWCP then reopens and looks at the record of the medical evidence, I think it would be very easy to allege that the only thing that OWCP looked into was the fact of whether or not someone ran for political office. [00:20:24] Speaker 01: However, the process is much more complex than that. [00:20:27] Speaker 04: How do we know that? [00:20:29] Speaker 01: Well, you do have a window into it here, Your Honor, from our sealed filing. [00:20:33] Speaker 01: However, the allegations in the complaint make clear that the OWCP did go through its regular process, as one would expect it to do, of evaluating the medical evidence before it and permitting Pichalta to submit her own medical evidence, and indeed she did. [00:20:55] Speaker 04: So how do we avoid the danger that Judge Wilkins' question focused on? [00:21:03] Speaker 01: And I believe, if I recall Judge Wilkins' question, it had to do with... Second guessing. [00:21:11] Speaker 01: Right, I think to avoid second guessing, I think that's exactly what Congress intended when it precluded judicial review of this evidentiary determination. [00:21:23] Speaker 04: Do you think Congress meant an agency could rely on impermissible factors? [00:21:29] Speaker 01: No, I think there are constitutional protections available to a plaintiff [00:21:35] Speaker 01: where there are the types of challenges that this court wrestled with in Lepre. [00:21:40] Speaker 04: So it's one thing if the sealed record shows all kinds of things, like she was very active, she had to get up at dawn to go to these candidate forums, things like that. [00:21:53] Speaker 04: But is that the kind of record you're telling me there is? [00:21:58] Speaker 01: Well, Your Honor, yeah. [00:21:59] Speaker 01: I think what I can tell you about the record is that it wasn't simply [00:22:03] Speaker 01: just based on, as a matter of law, because you ran for political office. [00:22:08] Speaker 04: I understand that, but what was it based on other than the fact you ran for office? [00:22:12] Speaker 04: Did it address some of the things Judge Wilkins was talking about? [00:22:16] Speaker 01: Yes, Your Honor, it did. [00:22:17] Speaker 01: The Department of Labor referred Ms. [00:22:22] Speaker 01: Pichelle after review of medical evidence to a counselor who then reviewed what types of position that Pichelle would be able to... What kind of counselor? [00:22:34] Speaker 01: So this is a vocational rehabilitation officer, and I forget the exact title, I'm sorry, Your Honor, but it's an individual or professional who's responsible for determining what type of work Fichelle would be able to perform should she return to the workforce. [00:22:52] Speaker 04: And that counselor filed a report. [00:22:57] Speaker 01: exactly sure off the top of my head, Your Honor, whether or not she has a report. [00:23:00] Speaker 04: Well, I mean, what's the decision based on? [00:23:04] Speaker 01: The decision is based on her review of the... Whose review? [00:23:10] Speaker 01: Of the counselor's review of the evidence before the counselor. [00:23:14] Speaker 01: And this process just has to do with how the Department of Labor in general determines what type of work an individual might be able to perform when they return to [00:23:25] Speaker 01: performing some work. [00:23:26] Speaker 01: And I just want to clarify, this is not necessarily that Fuchel would have been able to perform the job duties of an air traffic controller. [00:23:37] Speaker 05: It's any job. [00:23:39] Speaker 01: It's any job. [00:23:40] Speaker 01: That's right. [00:23:43] Speaker 05: The disability determination is not based on her prior job. [00:23:47] Speaker 05: It's whether she could perform any job. [00:23:50] Speaker 05: And part of the reason the Fourth Circuit reversed was that [00:23:55] Speaker 05: she had suffered emotional damage because of sexual harassment. [00:24:04] Speaker 01: That's right, Your Honor. [00:24:05] Speaker 01: There are at issue here both sort of emotional injuries and physical injuries, both of which were part of the OWCP record. [00:24:13] Speaker 01: And both were sort of subject to different review as the record demonstrates, or at least the complaint demonstrates. [00:24:23] Speaker 05: You know, even if you were to accept the... Well, you would agree if OWCP said, we don't think anybody who's on disability should run for Congress because that is, in our view, an undesirable occupation for anybody on disability. [00:24:48] Speaker 05: You would recognize that would present constitutional problems. [00:24:52] Speaker 01: Indeed, I would, Your Honor. [00:24:53] Speaker 05: I think that gets to the very... All right, so then you get back to Judge Rogers' question, what determination is made that running for Congress is inconsistent with full-time disability? [00:25:09] Speaker 01: What determination by the Department of Labor? [00:25:11] Speaker 05: Yeah, no, yes. [00:25:12] Speaker 01: Yeah, I think it's really just whether or not an individual has demonstrated the ability to perform some work. [00:25:19] Speaker 05: In other words, running for Congress [00:25:23] Speaker 05: would demonstrate you would be able to perform some work, whether it's not air traffic controller, some work. [00:25:33] Speaker 01: That's correct. [00:25:34] Speaker 01: You would need to be established that you're able to perform some work. [00:25:39] Speaker 05: Because she had been granted total disability, right? [00:25:43] Speaker 01: At one point, yes, Your Honor. [00:25:45] Speaker 01: And then that was reduced to partial disability. [00:25:47] Speaker 01: And so those benefits were subject to various reductions. [00:25:51] Speaker 01: in this case. [00:25:53] Speaker 01: And I just wanted to address the OWCP cases cited in the appellant's brief do get to this issue of, well, it's not the same in terms of a wage determination or necessarily how one determines what type of work you can do [00:26:10] Speaker 01: when you review a kind of a regular nine to five job, so to speak, and running for Congress. [00:26:16] Speaker 01: We might acknowledge that they are somewhat dissimilar. [00:26:19] Speaker 01: However, you can't ignore that even though they may not be the same as an individual seeking work on the open market. [00:26:27] Speaker 01: To the extent that those activities, as here, demonstrated an individual's ability to work, it would be relevant and appropriate for the Department of Labor to review in its benefits determination. [00:26:40] Speaker 01: And we think that kind of dressing up a constitutional challenge to sort of figure out what, you know, balancing the agency conducted in that determination [00:26:52] Speaker 01: is contrary to the statute that we're dealing with here and also inconsistent with. [00:26:57] Speaker 05: Is there anything in the record that indicates that the Department of Labor was hostile to her activity because it was political? [00:27:09] Speaker 01: Well, there's nothing in the record, Your Honor. [00:27:12] Speaker 01: Of course, we're at a motion to dismiss posture. [00:27:17] Speaker 01: So there's sort of the assumption [00:27:20] Speaker 01: that there may have been. [00:27:21] Speaker 05: Is there anything in the complaint that suggests that the Department of Labor's decision was based on a political judgment? [00:27:30] Speaker 01: I believe it's limited to a conclusory allegation that the Department of Labor reduced the benefits because [00:27:38] Speaker 01: her running for office. [00:27:40] Speaker 01: And while, you know, we believe that the Tritz Declaration, which we acknowledge was filed under seal and not a part of this record necessarily, that demonstrates that that indeed wasn't the case. [00:27:51] Speaker 01: But the process here is one that involved a back and forth. [00:27:56] Speaker 05: In other words, your position is there is nothing in the complaint that suggests [00:28:02] Speaker 05: that the fact that the Department of Labor took that into account was based on a political judgment? [00:28:12] Speaker 01: That's correct, Your Honor. [00:28:13] Speaker 01: As we've noted in our brief, the [00:28:17] Speaker 01: the Department of Labor's decision in this case and the allegations pertaining to that decision are devoid of any allegation that the department had any animus towards Puchel's political activity or even running for Congress in general. [00:28:32] Speaker 01: As I noted before, we acknowledge that OWCB has wrestled with these concepts in the past, but we think it's beside the point. [00:28:39] Speaker 01: There's a demonstrated ability to work [00:28:43] Speaker 01: That is the sole purview at that juncture of the Department of Labor's consideration. [00:28:49] Speaker 01: And that's the way this played out here. [00:28:52] Speaker 01: There's nothing in the complaint that suggests that Department of Labor otherwise circumscribed the statute, circumscribed its own regulations in evaluating the evidence. [00:29:02] Speaker 01: Appellant would just rather have them not consider the evidence at all because it pertains to an activity that incidentally does implicate a constitutional right. [00:29:15] Speaker 02: So you acknowledge that this is a constitutional right? [00:29:23] Speaker 01: We acknowledge that running for political office, as the circuit has said, is a constitutional right. [00:29:29] Speaker 02: And you acknowledge that if the complaint alleges that her disability benefits were reduced solely because she ran for political office, [00:29:42] Speaker 02: would state a plausible claim of a violation of the First Amendment? [00:29:48] Speaker 01: Well, at that point, Your Honor, I think we're in the territory that we would rely on branch, or the branch decision, because where you have an incidental benefits reduction or some injury sort of unrelated to your actually being able to run for Congress, [00:30:10] Speaker 01: Your right to seek political office is simply not implicated. [00:30:15] Speaker 01: So we think we sort of fail at the first step. [00:30:18] Speaker 05: We think the complaint is inadequate. [00:30:20] Speaker 01: We think that the well-planned allegations of the complaint do not make out a constitutional claim that this court would... The complaint has more or less failed to state a claim within this court's jurisdiction to review constitutional claims. [00:30:33] Speaker 01: It's not enough, in other words, to simply point to a right to run for Congress [00:30:40] Speaker 01: and then state in a conclusory fashion that that's the only reason. [00:30:46] Speaker 02: So if she had assumed leadership of her temple as a rabbi or her church as a minister, and OWCP had said, well, doing that shows that you're not disabled. [00:31:02] Speaker 02: And so we're reducing your benefits. [00:31:05] Speaker 02: And we had the exact same complaint [00:31:09] Speaker 02: no constitutional problem. [00:31:12] Speaker 01: Well, I think in this case it would have more to do with did OWCP evaluate mental evidence or was it, you know, rather as a matter of law or just as a matter of their policy, such activities would bar the claimant from receiving any benefits. [00:31:32] Speaker 01: So if there was a policy bar or some other structural [00:31:38] Speaker 01: uh, preclusion of receiving benefits because of an issue that would otherwise be protected by the Constitution, I think that we might have a constitutional claim, and of course we don't have that issue here, nor in the hypothetical I think Your Honor suggests. [00:31:54] Speaker 02: But you say that if it's the same facts with respect to running for office under branch, the claim fails. [00:32:02] Speaker 01: Uh, yes, I think branch, you know, while of course it arose in a different context, [00:32:07] Speaker 01: the issue remains the same, that nobody ever thought you had a right to run for Congress while also receiving full disability benefits. [00:32:15] Speaker 01: There are going to be burdens along the way with respect to financial obligations or other things that really don't implicate or otherwise limit your ability to seek political office. [00:32:31] Speaker 01: Like I said, if the government were to preclude someone [00:32:36] Speaker 01: from receiving any benefits merely because they participated in some protected constitutional activity. [00:32:44] Speaker 05: Without regard to the demands on the individuals physically and mentally. [00:32:51] Speaker 01: Exactly right, Your Honor. [00:32:52] Speaker 01: What makes this case different is that there's no dispute that the Department of Labor did open an inquiry and evaluate medical evidence. [00:33:00] Speaker 01: While you might, the appellant might disagree with how that [00:33:04] Speaker 01: evaluation took place or characterized it in a different way. [00:33:07] Speaker 01: It did happen and there's no indication in the sealed record or otherwise in the complaint that the Department of Labor categorically barred Fuchel from receiving disability benefits because of her seeking political office with respect to her congressional campaign. [00:33:29] Speaker 01: I see that I'm out of time. [00:33:40] Speaker 04: All right, counsel, would you like a couple of minutes? [00:33:51] Speaker 03: Thank you. [00:33:51] Speaker 03: Mr. Hare quoted the district court's opinion when he said nobody would argue [00:33:59] Speaker 03: That nobody would argue that a person has a right to run for Congress while receiving full disability benefits. [00:34:11] Speaker 03: In fact, that would be a job for the Congress. [00:34:14] Speaker 03: It was the Congress that said in letter carriers that the federal government had a right to ensure that its employees, non-political employees, [00:34:27] Speaker 05: So your position is no matter how much activity is involved in her running for Congress, that subject is off the table. [00:34:40] Speaker 05: It's constitutionally protected. [00:34:43] Speaker 05: Your position is that the Department of Labor was not able to consider that factor at all. [00:34:50] Speaker 05: Is that correct or not? [00:34:52] Speaker 05: Please answer yes or no. [00:34:56] Speaker 05: Yes. [00:34:57] Speaker 05: If in fact, OWCP... So in other words, even if you had to run 100 miles, no, not too much, 10 miles every day, that would be irrelevant because it was running for office. [00:35:12] Speaker 03: You know, Your Honor, it's an interesting question because Congress has addressed to a certain extent... The answer is yes. [00:35:19] Speaker 03: The answer is that the fact that she was a candidate, the sole fact that she set up a website... No, no, but your point is with respect to your complaint. [00:35:31] Speaker 05: I understand your complaint to say this is a factor that cannot be considered at all. [00:35:36] Speaker 03: Yes. [00:35:37] Speaker 05: No matter how much effort it takes her. [00:35:40] Speaker 03: No. [00:35:41] Speaker 03: I'm not saying that. [00:35:43] Speaker 03: I'm saying that the fact that she had a website, which is the only factor that was... Wait, wait, wait a minute. [00:35:50] Speaker 05: I understood your complaint to say this factor could not be considered at all. [00:35:55] Speaker 05: It's constitutional... Isn't that what your complaint says? [00:35:58] Speaker 03: Yes. [00:35:59] Speaker 03: Okay. [00:36:00] Speaker 03: That's the case before us then. [00:36:03] Speaker 03: If I could just finish one more point, Jeff Rogers. [00:36:06] Speaker 03: Congress has spoken on the question of whether somebody could serve in public office while receiving disability benefits. [00:36:14] Speaker 03: It's 5 USC 8116B that says that while an OWCP recipient is receiving benefits, that person cannot accept any other salary remuneration from the United States except for services actually performed. [00:36:37] Speaker 03: In other words, if Miss Bichelle had actually won her race for Congress, OWCP could not diminish her benefits. [00:36:46] Speaker 03: The notion that it could diminish her benefits while running simply makes no sense. [00:36:57] Speaker 03: And in any event, [00:36:58] Speaker 03: It's for Congress to decide as Congress did in the letter carrier's case with respect to the Hatch Act and in the branch case with respect to the Communications Act. [00:37:07] Speaker 03: Congress carefully weighed all of these factors, the pluses and minuses of the imposition on the individual and said that there were federal issues that outweighed them. [00:37:21] Speaker 05: They did not do that. [00:37:22] Speaker 05: Are you saying the statute properly read that if someone is elected to Congress, [00:37:29] Speaker 05: and serves full time, as a matter of law, disability benefits cannot be reduced? [00:37:35] Speaker 05: Yes. [00:37:37] Speaker 05: That's the way you read that statute? [00:37:39] Speaker 03: I think the language is very clear. [00:37:43] Speaker 03: I'm not sure that's true. [00:37:46] Speaker 04: All right. [00:37:46] Speaker 04: Thank you very much. [00:37:47] Speaker 03: Thank you, Judge. [00:37:48] Speaker 04: I'll take the case under advisement.