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, 97 S.Ct. 980, 986, 51 L.Ed.2d 192 (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, 95 S.Ct. 2457, 2465, 45 L.Ed.2d 522 (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, 94 S.Ct. 1160, 1168-69, 39 L.Ed.2d 389 (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, 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, 569 F.2d 607, 620-22 (D.C.Cir.1977).
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 1348*1348 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, 102 S.Ct. 1650, 1654-55, 72 L.Ed.2d 12 (1982) (similar purpose found in Medicare review provisions); Johnson v. Robison, 415 U.S. at 370, 94 S.Ct. at 1167 (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, 97 S.Ct. at 986; 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).
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, 105 S.Ct. 1487, 1496, 84 L.Ed.2d 494 (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).
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.
[Rodrigues v. Donovan, 769 F.2d. 1344 (1985)]