# Office of Personnel Management v. Richmond/Concurrence Stevens

* Court Documents
* Case Syllabus
* Opinion of the Court
* Concurring Opinions White Stevens
* Dissenting Opinion Marshall
Justice STEVENS, concurring in the judgment.
Although I join the Court's judgment, I cannot accept its reasoning. The Appropriations Clause of the Constitution has nothing to do with this case. Payments of pension benefits to retired and disabled federal servants are made "in Consequence of Appropriations made by Law" even if in particular cases they are the product of a mistaken interpretation of a statute or regulation. The Constitution contemplates appropriations that cover programs-not individual appropriations for individual payments. The Court's creative reliance on constitutional text is nothing but a red herring.
The dispute in this case is not about whether an appropriation has been made; it is instead about what rules govern administration of an appropriation that has been made. Once the issue is appropriately framed, it quickly becomes obvious that the Court's resolution of it is untenable. Three hypothetical changes in the facts of this case will illustrate the error in the Court's approach. Assume, first, that the forfeiture involved a permanent and total loss of pension benefits rather than a 6-month hiatus. Suppose also that respondent was a disabled serviceman, totally incapable of productive work, who was promised that his benefits would be unaffected if he enlisted in the Reserve forces to show his continuing commitment to his country. Finally, assume that respondent was activated briefly for the sole purpose of enhancing his earnings, thereby depriving him of his pension permanently. Would the Court apply the harsh rule against estoppel that it announces today? I think not. Unless it found in the statute some unambiguous abrogation of estoppel principles, the Court would apply them to nullify the forfeiture. In doing so, the Court would construe the statute in a way consistent with congressional intent and would ensure that the Executive administered the funds appropriated in a manner consistent with the terms of the appropriation.
This case, however, does not involve such extreme facts. Respondent's loss of benefits was serious but temporary, and, even if we assume that respondent was not adequately compensated for the stress of his increased workload, his additional earnings certainly mitigated the shortfall in benefits. I agree with Justice MARSHALL that there are strong equities favoring respondent's position, but I am persuaded that unless the 5-to-4 decision in Federal Crop Ins. Corporation v. Merrill, 332 U.S. 380, 68 S.Ct. 1, 92 L.Ed. 10 (1947), is repudiated by Congress or this Court, this kind of maladministration must be tolerated. I think the case is closer to Schweiker v. Hansen, 450 U.S. 785, 101 S.Ct. 1468, 67 L.Ed.2d 685 (1981), and Heckler v. Community Health Services of Crawford County, Inc., 467 U.S. 51, 104 S.Ct. 2218, 81 L.Ed.2d 42 (1984), than to Moser v. United States, 341 U.S. 41, 71 S.Ct. 553, 95 L.Ed. 729 (1951), and United States v. Pennsylvania Industrial Chemical Corp., 411 U.S. 655, 93 S.Ct. 1804, 36 L.Ed.2d 567 (1973). Accordingly, I concur in the Court's judgment but not its opinion.
Justice MARSHALL, with whom Justice BRENNAN joins, dissenting.
Respondent, a recipient of a federal disability annuity, was unsure whether he could accept limited overtime work without forfeiting his right to disability payments. He went to his former Government employer seeking an answer, asked the right questions, received an answer in the form of both oral advice and an official Government publication, and relied on that answer. Unfortunately, the publication the Government gave Richmond was years out of date, and the oral information was similarly erroneous. In this case, we must decide who should bear the burden of the Government's error.
The majority hints that it is unsympathetic to Richmond's claim that he was treated unfairly, ante, at 416, but it does not rule on that basis. Rather, the majority resolves the issue by holding as a general rule that a litigant may not succeed on a claim for payment of money from the Treasury in the absence of a statutory appropriation. Although the Constitution generally forbids payments from the Treasury without a congressional appropriation, #fn-s that proposition does not resolve this case. Most fundamentally, Richmond's collection of disability benefits would be fully consistent with the relevant appropriation. And even if the majority is correct that the statute cannot be construed to appropriate funds for claimants in Richmond's position, petitioner may nonetheless be estopped, on the basis of its prelitigation conduct, from arguing that the Appropriations Clause bars his recovery. Both the statutory construction and the estoppel arguments turn on the equities, and the equities favor Richmond, see 862 F.2d 294, 299 (CA Fed.1988). I therefore dissent.
* As the majority notes, the Appropriations Clause generally bars recovery from the Treasury unless the money sought " 'has been appropriated by an act of Congress.' " Ante, at 424 (quoting Cincinnati Soap Co. v. United States, 301 U.S. 308, 321, 57 S.Ct. 764, 770, 81 L.Ed. 1122 (1937)). The majority acknowledges that Congress has appropriated funds to pay disability annuities in 5 U.S.C. § 8348(a), ante, at 424, but holds that the fund created is intended for the payment of benefits only "as provided by" law, ante, at 424 (quoting § 8348(a)(1)(A)). Section 8337(d) provides that a disability annuity terminates when the annuitant's earning capacity is restored and that such capacity is "deemed restored" if in any calendar year the annuitant makes more than 80% of the current rate of pay of the position he left. The majority contends on the basis of this provision that paying benefits to an annuitant who has exceeded the 80% limit would violate the Appropriations Clause because such benefits are not "provided by" the statute.
The Court need not read the statute so inflexibly, however. When Congress passes a law to provide a benefit to a class of people, it intends and assumes that the Executive will fairly implement that law. Where necessary to effectuate Congress' intent that its statutory schemes be fully implemented, this Court therefore often interprets the apparently plain words of a statute to allow a claimant to obtain relief where the statute on its face would bar recovery. Indeed, petitioner itself suggests that the Court was engaging in just such a brand of statutory interpretation in Moser v. United States, 341 U.S. 41, 47, 71 S.Ct. 553, 556, 95 L.Ed. 729 (1951). Brief for Petitioner 40; Reply Brief for Petitioner 7. The relevant statute in Moser provided that a request by an alien for exemption from military service precluded him from becoming a citizen. 341 U.S., at 42-43, n. 5, 71 S.Ct., at 553-554, n. 5 (quoting 55 Stat. 845, 50 U.S.C.App. § 303(a) (1946 ed.)). The Court interpreted the statute to mean that, "as a matter of law, the statute imposed a valid condition on the claim of a neutral alien for exemption; petitioner had a choice of exemption and no citizenship, or no exemption and citizenship." 341 U.S., at 46, 71 S.Ct., at 556. Moser was erroneously informed by the State Department that a claim for exemption would not bar him from later obtaining citizenship, and he relied on that advice. Ibid. In those circumstances, the Court decided, despite the absence of any such provision on the face of the statute, that "nothing less than an intelligent waiver [of the right to citizenship] is required by elementary fairness." Id., at 47, 71 S.Ct., at 556. The Court therefore held that Moser's claim for exemption did not bar him from later becoming a citizen.
Moser was not an aberration. Where strict adherence to the literal language of the statute would produce results that Congress would not have desired, this Court has interpreted other statutes to authorize equitable exceptions though the plain language of the statute suggested a contrary result. In Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 102 S.Ct. 1127, 71 L.Ed.2d 234 (1982), for example, we held that a statute requiring that a plaintiff file a suit under Title VII of the Civil Rights Act of 1964 (Title VII) within 90 days of the alleged unlawful employment practice was "subject to waiver, estoppel, and equitable tolling." Id., at 393, 102 S.Ct., at 1132 (footnote omitted). See also, e.g., Hallstrom v. Tillamook County, 493 U.S. 20, 27, 110 S.Ct. 304, 309, 107 L.Ed.2d 237 (1989). Similarly, in Crown, Cork & Seal Co. v. Parker, 462 U.S. 345, 103 S.Ct. 2392, 76 L.Ed.2d 628 (1983), we interpreted Title VII's requirement that suits be filed within 90 days of receiving a notice of right to sue from the Equal Employment Opportunity Commission to be subject to tolling in appropriate circumstances, notwithstanding that the statute on its face did not allow exceptions. See also Burnett v. New York Central R. Co., 380 U.S. 424, 85 S.Ct. 1050, 13 L.Ed.2d 941 (1965) (limitations provision in Federal Employers' Liability Act is subject to tolling).
Respect for Congress' purposes in creating the federal disability annuity system and principles of elementary fairness require that we read the statute in this case as not barring Richmond's claim. Perhaps "[t]he equities do not weigh in favor of modifying statutory requirements when the procedural default is caused by petitioners' 'failure to take the minimal steps necessary' to preserve their claims." Hallstrom, supra, 493 U.S., at 27-28, 110 S.Ct., at 309 (quoting Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 466, 95 S.Ct. 1716, 1723, 44 L.Ed.2d 295 (1975)). But the equities surely do weigh in favor of reading the disability annuity statute to authorize payment of the claim of an annuitant rendered ineligible for benefits by his reliance on misinformation from the responsible federal authorities. Cf. Baldwin County Welcome Center v. Brown, 466 U.S. 147, 151, 104 S.Ct. 1723, 1725, 80 L.Ed.2d 196 (1984) (suggesting that a party should not be able to claim that a statute of limitations bars a suit "where affirmative misconduct on the part of a defendant lulled the plaintiff into inaction").
Even if the majority is correct that the statute does not itself require an exception where the Executive has misled a claimant, Richmond should still prevail. Although petitioner has an Appropriations Clause argument against any claim for money not authorized by a statutory appropriation, a court is not invariably required to entertain that argument. A number of circumstances may operate to estop the Government from invoking the Appropriations Clause in a particular case. For example, this Court's normal practice is to refuse to consider arguments not presented in the petition for certiorari. See, e.g., Radio Officers v. NLRB, 347 U.S. 17, 37, n. 35, 74 S.Ct. 323, 334, n. 35, 98 L.Ed. 455 (1954). This Court customarily applies a similar rule to questions that were not raised in the Court of Appeals. See, e.g., Delta Air Lines, Inc. v. August, 450 U.S. 346, 362, 101 S.Ct. 1146, 1155, 67 L.Ed.2d 287 (1981). These rules apply to all arguments, even those of constitutional dimension. See, e.g., Holland v. Illinois, 493 U.S. 474, 487, n. 3, 110 S.Ct. 803, 811, n. 3, 107 L.Ed.2d 905 (1990) (refusing to consider equal protection claim on the ground that it was not presented in petition for certiorari). Thus, had the Government failed to raise the argument on which it now prevails either in its petition for certiorari or in the Court of Appeals, we likely would have refused to consider it. Of course, we would have had the power to consider the claim. See, e.g., Teague v. Lane, 489 U.S. 288, 300, 109 S.Ct. 1060, 1069, 103 L.Ed.2d 334 (1989) (deciding case on basis of argument "raised only in an amicus brief"). We would not, however, have been obligated to do so.
The grounds on which a court may refuse to entertain an argument are many, but most have an equitable dimension. The courts' general refusal to consider arguments not raised by the parties, for example, is founded in part on the need to ensure that each party has fair notice of the arguments to which he must respond. Cf. ibid. (justifying departure from rule that arguments not raised by parties will not be considered in part on grounds that issue was raised in amicus brief and that argument was "not foreign to the parties, who have addressed [the argument] with respect to [another of petitioner's claims]"). Thus, the Appropriations Clause's bar against litigants' collection of money from the Treasury where payment is not authorized by statute may not be enforced in a particular case if a court determines that the equities counsel against entertaining the Government's Appropriations Clause argument.
The question here is thus similar to ones that we have posed and answered in any number of recent cases, see ante, at 421-422 (summarizing cases): should petitioner in this case be barred from invoking the statutory eligibility requirement (and through it, the Appropriations Clause) because Richmond's ineligibility for benefits was due entirely to the Government's own error? The majority refuses to answer this question. The Court of Appeals addressed it directly, concluding that the facts in this case were so "unusual and extreme" that the Government should be estopped from applying the statutory restrictions to bar Richmond's recovery. I agree with the Court of Appeals' ruling.
The majority argues that policy concerns justify its general refusal to apply estoppel against petitioner in cases in which a claimant seeks unappropriated funds from the Treasury. Such a rule is necessary, says the majority, to protect against "fraud and corruption" by Executive Branch officials. Ante, at 427. If such officials are "displeased" with a statute, the argument goes, they may misinform the public as to the statute's meaning, thereby binding the Government to the officials' representations. Ante, at 428. The majority's concern with such dangers is undercut, however, by its observation that "Government agents attempt conscientious performance of their duties." Ante, at 433. The majority also contends that even if most claims of equitable estoppel are rejected in the end, "open[ing] the door" to such claims would impose "an unpredictable drain on the public fisc." Ante, at 433. The door has been open for almost 30 years, with an apparently unnoticeable drain on the public fisc. This reality is persuasive evidence that the majority's fears are overblown.
Significant policy concerns would of course be implicated by an indiscriminate use of estoppel against the Government. But estoppel is an equitable doctrine. As such, it can be tailored to the circumstances of particular cases, ensuring that fundamental injustices are avoided without seriously endangering the smooth operation of statutory schemes. In this case, the Federal Circuit undertook a thorough examination of the circumstances and concluded that denying Richmond his pension simply because he followed the Government's advice would be fundamentally unjust.
The majority does not reject the court's findings on the facts but rejects Richmond's claim on the theory that, except where the Constitution requires otherwise, see n., supra, equitable estoppel may not be applied against the Government where the claimant seeks unappropriated funds from the Treasury. This Court has never so much as mentioned the Appropriations Clause in the context of a discussion of equitable estoppel, cf., e.g., Heckler v. Community Health Services of Crawford County, Inc., 467 U.S. 51, 60, 104 S.Ct. 2218, 2224, 81 L.Ed.2d 42 (1984) (considering constitutional objections to applying estoppel against the Government in context of claim for payment from the Treasury contrary to an appropriation, but nowhere mentioning the Appropriations Clause), nor has the majority's theory ever before been discussed, much less adopted, by any court. This lack of precedent for the majority's position is not surprising because the Appropriations Clause does not speak either to the proper interpretation of any statute or to the question whether the Government should be estopped from invoking the Clause in a particular case. I dissent.