Hambsch, Iii v. United States

Decision Date01 May 1989
Docket NumberNo. 88-6120,88-6120
Citation109 S.Ct. 1969,490 U.S. 1054,104 L.Ed.2d 437
PartiesAnthony R. HAMBSCH, III, v. UNITED STATES
CourtU.S. Supreme Court

On petition for writ of certiorari to the United States Court of Appeals for the Federal Circuit.

The petition for a writ of certiorari is denied.

Memorandum of Justice STEVENS respecting the denial of the petition for writ of certiorari.

There are times when it is important to emphasize the fact that an order denying a petition for a writ of certiorari is not a ruling on the merits of any question presented by the petition. See Singleton v. Commissioner, 439 U.S. 940, 942, 99 S.Ct. 335, 337, 58 L.Ed.2d 335 (1978) (STEVENS, J., respecting the denial of certiorari). In my opinion, this is such an occasion.

Justice O'CONNOR, with whom Justice SCALIA and Justice KENNEDY join, dissenting.

In this case, the Court of Appeals has misread a statute designed to protect the rights of a class of federal workers and misapplied our decision in United States v. Testan, 424 U.S. 392, 96 S.Ct. 948, 47 L.Ed.2d 114 (1976). The result is a jurisdictional ruling which even respondent here, the United States, does not defend. The Solicitor General has informed this Court that the United States views the jurisdictional holding of the Court of Appeals as plainly wrong and asks that its decision be vacated and remanded. See Brief for United States 6-7. Because the error is plain, and because it carries the clear potential of compounding itself in the Back Pay Act jurisprudence of the Court of Appeals for the Federal Circuit, I would grant the petition and summarily reverse the judgment below.

Petitioner, a former member of the United States Secret Service Uniformed Division (USSSUD), was involved in a motorcycle accident while allegedly responding to a call for relief at 1310 L Street, N.W., in Washington, D.C., which is the headquarters of the Secret Service. As he and a fellow officer were passing through a private alley on motorcycles, an automobile exited from an underground garage and struck petitioner's motorcycle, pinning him underneath his vehicle. Petitioner received immediate medical care, and later underwent corrective surgery for damage to his left knee. After the accident, in order to receive paid administrative leave, petitioner requested a determination that the accident occurred in the performance of his duties. Such a determination was critical to petitioner's rights under 5 U.S.C. § 6324(a), which provides: "Sick leave may not be charged to the account of a member of the Metropolitan Police force or the Fire Department of the District of Columbia, the United States Park Police force, or the Executive Protective Service force for an absence due to injury or illness resulting from the performance of duty." Pursuant to agency regulations, an investigation and subsequent review by the Administrative Review Board were conducted. The agency determined that under its regulations petitioner's injury did not occur in "the performance of duty" due to the fact that he was in violation of local traffic regulations and USSSUD regulations at the time of the accident. Petitioner was thus denied administrative leave for the period of his convalescence, and after his sick leave was exhausted, he was placed on leave without pay.

Petitioner subsequently brought this action in the United States Claims Court, seeking a determination that he was erroneously denied paid administrative leave by the agency and was thus entitled to an award of backpay for the period in question. Petitioner premised the Claims Court's jurisdiction on that portion of the Tucker Act now codified at 28 U.S.C. § 1491(a)(1), which provides generally that the United States Claims Court "shall have jurisdiction to render judgment upon any claim against the United States founded . . . upon . . . any Act of Congress." The "Act of Congress" upon which petitioner relied was the Back Pay Act, 5 U.S.C. § 5596, which provides in pertinent part:

"(b)(1) An employee of an agency who . . . is found by appropriate authority under applicable law, rule, regulation, or collective bargaining agreement, to have been affected by an unjustified or unwarranted personnel action which has resulted in the withdrawal or reduction of all or part of the pay, allowances, or differentials of the employee—

"(A) is entitled . . . [to] . . .

"(i) an amount equal to all or any part of the pay, allowances or differentials, as applicable, which the employee nor- mally would have earned or received dur ng the period if the personnel action had not occurred."

In essence, petitioner claimed that 5 U.S.C. § 6324(a) was an "applicable law" within the meaning of the Back Pay Act and that the allegedly erroneous denial of his request for paid administrative leave was an "unwarranted personnel action" which entitled him to an award of lost wages against the United States. The Claims Court ruled against petitioner on the merits, finding that the agency's decision that petitioner was not injured in the performance of his duties was supported by substantial evidence and not legally arbitrary or capricious. 12 Cl.Ct. 744 (1987).

On appeal, the Court of Appeals for the Federal Circuit did not reach the merits of petitioner's claims. 857 F.2d 763 (1988). Instead that court ruled that the Claims Court lacked jurisdiction over this action. Relying on our decision in United States v. Testan, supra, the Court of Appeals held that "consent to suit against the United States for back pay must be 'unequivocally expressed' and . . . 5 U.S.C. § 6324 does not express such consent." 857 F.2d, at 764. The Court of Appeals also relied on its earlier decision in Hambsch v. United States, 848 F.2d 1228 (1988), where it stated: "[T]he parties often speak of section 6324 as if it requires that police officers be placed on administrative leave if injured in the performance of duty, yet the statute doesn't say that. It says they must not be placed on sick leave. This implication from a negative may indicate an intent to create liability for back pay for violation, but it is hard to say that it does so 'unequivocally.' " Id., at 1231. The Court of Appeals vacated the decision below and remanded to the Claims Court with instructions to dismiss petitioner's complaint for want of jurisdiction. 857 F.2d, at 765.

In United States v. Testan, we dealt with a claim by Government employees that they had erroneously been classified in a pay grade lower than those who did substantially identical work in the same agency. We held that neither the Classification Act, 5 U.S.C. § 5101 et seq., nor the Back Pay Act could trigger the Tucker Act jurisdiction of the former Court of Claims in the circumstances of that case. We noted that "the Back Pay Act, as its words so clearly indicate, was intended to grant a monetary cause of action only to those who were subjected to a reduction in their duly appointed emoluments or position." 424 U.S., at 407, 96 S.Ct., at 957. The plaintiffs in Testan were not such employees because they were not claiming a right "to receive only the salary of the position to which [they were] appointed"; rather they sought reclassification into a new position and pay grade. Thus Testan makes clear, and our subsequent cases have...

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4 cases
  • Swedlund v. Foster
    • United States
    • South Dakota Supreme Court
    • January 15, 2003
    ... ... of any rights, privileges, or immunities secured by the Constitution and laws of the United States caused by any person acting under color of any statute, ordinance, regulation, custom, or ... ...
  • Matos v. Hove, 94 Civ. 9343 (JES).
    • United States
    • U.S. District Court — Southern District of New York
    • September 25, 1996
    ...744, 750 (1987), vacated for lack of subject matter jurisdiction, 857 F.2d 763 (Fed.Cir.1988), and cert. denied, 490 U.S. 1054, 109 S.Ct. 1969, 104 L.Ed.2d 437 (1989). Moreover, Matos's abuse of process, fraud and defamation claims are barred by the Federal Torts Claims Act ("FTCA"), 28 U.S......
  • Hamilton v. Merit Systems Protection Bd.
    • United States
    • U.S. Court of Appeals — Federal Circuit
    • January 26, 1996
    ...with any other jurisdictional issue. See Hambsch v. United States, 857 F.2d 763, 764-65 (Fed.Cir.1988), cert. denied, 490 U.S. 1054, 109 S.Ct. 1969, 104 L.Ed.2d 437 (1989). In Wallace, 728 F.2d at 1458 n. 2, this court noted that the time for filing an appeal to the MSPB was fixed only by r......
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    • United States
    • U.S. Court of Appeals — Federal Circuit
    • August 10, 1992
    ...jurisdiction over a complaint before addressing the merits. Hambsch v. United States, 857 F.2d 763, 765 (Fed.Cir.1988), cert. denied, 490 U.S. 1054 (1989). Pro se plaintiffs are not expected to frame issues with the precision of a common law pleading. Roche v. USPS, 828 F.2d 1555, 1558 (Fed......

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