Crowley v. Shultz, s. 81-2213

• Decision Date: 12 April 1983
• Docket Number: Nos. 81-2213,81-2352 and 82-1007,s. 81-2213
• Citation: 227 U.S.App.D.C. 140,704 F.2d 1269
• Parties: James D. CROWLEY, et al. v. George P. SHULTZ, Secretary of State, et al., Appellants. James D. CROWLEY, et al. v. George P. SHULTZ, et al., Appellants. James D. CROWLEY, et al., Appellants v. George P. SHULTZ, Secretary of State, et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1269

704 F.2d 1269

227 U.S.App.D.C. 140

James D. CROWLEY, et al. v. George P. SHULTZ, Secretary of State, et al., Appellants.

James D. CROWLEY, et al. v. George P. SHULTZ, et al., Appellants.

James D. CROWLEY, et al., Appellants v. George P. SHULTZ, Secretary of State, et al.

Nos. 81-2213, 81-2352 and 82-1007.

United States Court of Appeals District of Columbia Circuit.

Argued Sept. 17, 1982.

Decided April 12, 1983.

Appeals from the United States District Court for the District of Columbia (D.C. Civil Action No. 74-00494).

John Oliver Birch, Asst. U.S. Atty., Washington, D.C., with whom Stanley S. Harris, U.S. Atty., Royce C. Lamberth, Kenneth M. Raisler and Whitney Adams, Asst. U.S. Attys., Washington, D.C., were on the brief for Shultz, Secretary of State, et al., appellants in Nos. 81-2213 and 81-2352 and cross-appellees in No. 82-1007. R. Craig Lawrence, Asst. U.S. Atty., Washington, D.C., also entered an appearance for Shultz, Secretary of State, et al.

Lawrence Speiser, Washington, D.C., with whom John P. Racin, Washington, D.C., was on the brief, for James D. Crowley, et al., appellees in Nos. 81-2213 and 81-2352 and cross-appellants in No. 82-1007.

Ronda L. Billig and Mark T. Wilson, Washington, D.C., entered appearances for the appellee, Estate of Harold O. Smith.

Before WRIGHT, EDWARDS and BORK, Circuit Judges.

Opinion for the Court filed by Circuit Judge BORK.

Separate Statement of Circuit Judge BORK.

BORK, Circuit Judge:

This case concerns an award of attorneys' fees under 5 U.S.C. Sec. 5596 (1976 & Supp. V 1981) (the Back Pay Act). Provision for attorneys' fees was added to the relief available under the Back Pay Act by the Civil Service Reform Act of 1978, Pub.L. No. 95-454, Sec. 702, 92 Stat. 1111, 1216 (codified at 5 U.S.C. Sec. 5596(b)(1)(A)(ii) (Supp. V 1981)). Included in the Reform Act was a Savings Clause, which limited the Act's retroactive applicability to certain proceedings commenced prior to its passage. Pub.L. No. 95-454, Sec. 902, 92 Stat. 1223-24 (codified at 5 U.S.C. Sec. 1101 note (Supp. V 1981)). The district court below granted appellees ¹ attorneys' fees pursuant to the Back Pay Act. Appellants urge that this was inappropriate, arguing that the Savings Clause makes fees unavailable to these appellees, who instituted their suit before the Reform Act was passed. We agree that the Savings Clause applies, and reverse the order of the district court.

I.

This attorneys' fees litigation grows out of a suit in the district court challenging the State Department's "overcomplement" system, a personnel practice that has since been abolished. Under the overcomplement system, certain employees, while not terminated, were placed in what the appellees described in their complaint as "limbo": their positions were abolished and they were not selected for promotions or other forms of advancement. Joint Appendix ("J.A.") at 23. No notice was given to employees placed in overcomplement status, nor were they afforded any opportunity to challenge their disfavored status. Appellees filed suit in the district court in March 1974, seeking damages and an injunction against the overcomplement system.

In June 1977, the district court granted appellees' motion for partial summary judgment. The order enjoined the overcomplement system, which the court found to deny appellees various employment rights, including the process rights usually associated with adverse personnel actions, J.A. at 67-70. Subsequent to the June 1977 decree, the parties entered into an arrangement for settlement of some damage claims and litigation of the rest before a Special Master.

In proceedings before the Special Master, appellees sought attorneys' fees for the litigation, claiming under the Back Pay Act as amended by the Reform Act. Appellants opposed the demand for fees, but the Special Master recommended that the district court order a fee award. ² The district court approved the Special Master's finding that fees should be available, Crowley v. Muskie, 496 F.Supp. 360, 363-64 (D.D.C.1980), and entertained a motion to fix the amount of the fee award. After further proceedings (during which appellants renewed their challenge to the propriety of the fee grant), the district court accepted most of appellees' fee request, and entered orders in September and December of 1981 granting approximately $163,000 in attorneys' fees to various appellees. The State Department appealed the grant of fees, reiterating its claim that the Savings Clause should have been interpreted to block any fee award. Employee plaintiffs appealed the district court's order to the extent that it denied certain claims in their fee petition. Because we find that the Back Pay Act, as amended by the Reform Act, should not be read to grant appellees any fees, we do not address the various arguments as to the quantum of fees appropriate.

II.

Appellees suggest that we lack jurisdiction to consider their entitlement to attorneys' fees. According to the appellees' theory, the district court's May 1980 order, which found that fees should be awarded but did not fix an amount, was final and appealable. The appellants noted an appeal from this order, but obtained dismissal of that appeal and instead pursued this one, which challenges both the propriety and the amount of the fee award. Appellees argue that appellants' failure to press their earlier appeal deprives us of jurisdiction over the issue addressed by the May 1980 order.

We cannot accept appellees' argument in either of the two forms it may take. Appellees appear to contend that the May 1980 order was collateral and appealable, relying on Memphis Sheraton Corp. v. Kirkley, 614 F.2d 131 (6th Cir.1980) (fee award which does not fix amount is appealable as collateral order). This argument relies first on what appears to be dictum in Memphis Sheraton, where the court did not actually decide the fee issue it held to be appealable, but remanded the case for other reasons, and second on the highly dubious proposition that failure to appeal a collaterally reviewable order precludes appellate consideration of the collateral issue when the entire case is before the appeals court, see 15 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure: Jurisdiction Sec. 3911, at 498-99 (1976) (collateral order should be reviewable when issued and when whole case is appealed).

Nor are we willing to adopt the other form of appellees' argument: that an order granting fees is itself final by way of being litigation-terminating, and the subsequent fixing of the amount of fees is collateral. This approach, which would encourage multiple appeals, is particularly inappropriate in a case such as this where the quantum of fees is a major issue. Appellees' argument was rejected by the en banc Third Circuit in Croker v. Boeing Co., 662 F.2d 975, 983-84 (3d Cir.1981), which specifically disapproved a case on which appellees rely on this point, Delong Corp. v. Raymond Int'l, Inc., 622 F.2d 1135 (3d Cir.1980). Boeing Co. v. Van Gemert, 444 U.S. 472, 481 n. 7, 100 S.Ct. 745, 751 n. 7, 62 L.Ed.2d 676 (1980), where attorneys' fees were to be awarded out of an already-fixed judgment fund, is not to the contrary. We have jurisdiction to hear this appeal.

III.

Appellees make their claim for attorneys' fees under the remedial authority of the Back Pay Act, which grants certain specified relief to

(b)(1) An employee of an agency who, on the basis of a timely appeal or an administrative determination (including a decision relating to an unfair labor practice or a grievance) 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--....

5 U.S.C. Sec. 5596(b)(1) (Supp. V 1981). The Reform Act expanded this relief to include "reasonable attorney fees related to the personnel action." Pub.L. No. 95-454, Sec. 702, 92 Stat. 1216 (codified at 5 U.S.C. Sec. 5596(b)(1)(A)(ii) (Supp. V 1981)). Application of the Reform Act to actions commenced before passage of that Act (such as this suit) is limited by the Savings Clause. If the Savings Clause applies to that part of the Reform Act which grants attorneys' fees in Back Pay Act cases, appellants will prevail. We find that it does.

The savings provision of the Reform Act provides in pertinent part: ³

(b) No provision of this Act shall affect any administrative proceedings pending at the time such provision takes effect. Orders shall be issued in such proceedings and appeals shall be taken therefrom as if this Act had not been enacted.

Pub.L. No. 95-454, Sec. 902(b), 92 Stat. 1224 (codified at 5 U.S.C. Sec. 1101 note (Supp. V 1981)). Our first inquiry, then, is whether the suit in the district court was an "administrative proceeding" or an appeal therefrom.

The Back Pay Act states that relief, including attorneys' fees, is available when an "appropriate authority" finds that there was an "unjustified or unwarranted personnel action" and that finding is "on the basis of a timely appeal or an administrative determination." It is accepted practice for district courts to grant relief under the Back Pay Act even in suits that are not appeals from an administrative determination under any statutorily established appeal procedure. The instant case is just such a proceeding, ⁴ and the State Department does not challenge the applicability of the Back Pay Act. For the purpose of this case, we read the Back Pay Act as supplying a remedy in suits in the district courts such as this one. We must inquire, then, whether the meaning assigned to certain words in the Back Pay Act should also be assigned to them in the Reform Act's Savings Clause, when the question is the applicability of the latter to the former.

The natural first response to this...