Fitzgerald v. UNITED STATES CIVIL SERVICE COM'N

• Decision Date: 29 December 1975
• Docket Number: Civ. A. No. CA 74-319.
• Citation: 407 F. Supp. 380
• Parties: A. Ernest FITZGERALD, Plaintiff, v. UNITED STATES CIVIL SERVICE COMMISSION et al., Defendants.
• Court: U.S. District Court — District of Columbia

407 F. Supp. 380

A. Ernest FITZGERALD, Plaintiff, v. UNITED STATES CIVIL SERVICE COMMISSION et al., Defendants.

Civ. A. No. CA 74-319.

United States District Court, District of Columbia.

December 29, 1975.

John Bodner, Jr., Washington, D. C., for plaintiff.

Michael J. Ryan, Asst. U. S. Atty., for defendants.

OPINION AND ORDER

BRYANT, District Judge.

This matter is now before the Court on plaintiff's Motion For Summary Judgment and Defendant's Motion To Dismiss Or, In The Alternative, For Summary Judgment. The action is brought as an appeal from a final administrative decision of the Board of Appeals and Review of the Civil Service Commission denying plaintiff Fitzgerald an award of costs and attorneys' fees for the protracted administrative proceedings before the Commission. This Court has jurisdiction of the action pursuant to 5 U.S.C. §§ 701 et seq. Plaintiff having exhausted his administrative remedies, the matter is now properly before this Court for decision.

This action is the latest round in what is now a marathon six-year battle between A. Ernest Fitzgerald and his Pentagon and Civil Service Commission adversaries. On January 5, 1970, immediately following his testimony before the Congress regarding the already-massive cost overruns in the development and production of the Air Force's C-5A cargo plane,¹ Fitzgerald was fired by the Air Force, purportedly by reason of the abolition of his position through a reduction-in-force and the unavailability of another appropriate position within the Department. Fitzgerald appealed his removal to the Civil Service Commission, contending that he was illegally fired from his job in retaliation for his testimony about the C-5A. The Commission granted him a hearing but refused to open it to the press and public. Only after judicially ordered to do so did the Commission open the hearings.² Finally, on September 18, 1973, almost four years after his initial separation, the Commission ordered Fitzgerald restored, retroactively to the date of his dismissal,

to the position from which he was improperly separated, or to any other position of like grade, salary and tenure in the Excepted Service and with the same or similar qualifications requirements as his former position. (Decision of September 18, 1973, p. 20).

Significantly, the Commission specifically found that

the decision to abolish Mr. Fitzgerald's position and to separate him by reduction-in-force was influenced by, and resulted from, reasons that were personal to the appellant; and . . . we find his separation by reduction-in-force to be improper, inappropriate and contrary to the spirit, intent and letter of the Commission's regulation. (Decision of September 18, 1973, p. 20).

Instead of complying with this order, however, the Air Force placed Fitzgerald in a newly-created position. Fitzgerald appealed that reassignment to the Commission, claiming that it violated the Commission's order by not restoring him to a position of equal seniority and status. After his appeal was denied at each level of the Commission, Fitzgerald was forced to return to this Court for relief.³ He was again vindicated, and the case was remanded to the Commission for further proceedings.⁴

Fitzgerald has, at each stage of his proceedings before the Commission, requested the award of costs and attorneys' fees for those proceedings. At each stage the Commission has denied that request, claiming that it is without power to determine and order the compensation of reasonable costs and attorneys' fees to an illegally fired veteran preference eligible employee. It is the Commission's authority to make such an award to a preference eligible veteran employee under the "corrective action" provision of 5 U.S.C. § 7701 which is the sole issue in this action. There being no genuine issue of material fact, the matter is ripe for summary judgment.

Many of the government's arguments in this case either miss the point entirely or misconstrue the legal question at issue here. This case does not in any way concern the inherent or equitable power of a federal district court to award costs or attorneys' fees for litigation before it. The cases cited by the government to show that the Court may not award fees here are therefore wholly inapposite. Specifically, those cases such as Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975) and Pyramid Lake Paiute Tribe of Indians v. Morton, 163 U.S.App.D.C. 90, 499 F.2d 1095 (1974), cert. denied 420 U.S. 962, 95 S.Ct. 1351, 43 L.Ed.2d 439 holding that the federal courts in civil actions have no general authority to award attorneys' fees are simply not determinative of the question of sub judice. The proceedings for which fees are asked are not a civil action, and the plaintiff does not ask the Court to award the fees but rather to declare that the Civil Service Commission may award fees and costs for administrative proceedings before it.

Likewise inapposite is 28 U.S.C. § 2412, which prohibits the award of fees and costs by the Court in litigation before it. Again, the government's argument here misconstrues the nature of the question.

What is in fact controlling here is the holding of the Court of Appeals for this Circuit in the case of Turner v. Federal Communications Commission, 169 U.S.App.D.C. 113, 514 F.2d 1354 (1975). That case holds that an administrative agency cannot grant attorneys' fees to a party in proceedings before it absent a statutory grant of such authority by the Congress. What is at issue in this case, therefore, is whether Congress has given the Commission that authority in the instant situation.

Fitzgerald, recognizing all of the foregoing, contends that the requisite statutory authority is found in 5 U.S.C. § 7701, which provides:

§ 7701. Appeals of preference eligibles

A preference eligible employee as defined by section 7511 of this title is entitled to appeal to the Civil Service Commission from an adverse decision under section 7512 of this title of an administrative authority so acting. The employee shall submit the appeal in writing within a reasonable time after receipt of notice of the adverse decision, and is entitled to appear personally or through a representative under regulations prescribed by the Commission. The Commission, after investigation and consideration of the evidence submitted, shall submit its findings and recommendations to the administrative authority and shall send copies of the findings and recommendations to the appellant or his representative. The administrative authority shall take the corrective action that the Commission finally recommends. (emphasis added).

This section was originally enacted as § 14 of the Veterans' Preference Act, ch. 287, June 27, 1944, 58 Stat. 390, as amended by the Act of August 4, 1947, ch. 447, 61 Stat. 723. It was originally codified as section 863 of Title 5, and was recodified as section 7701 in 1966, P.L. 89-554, 80 Stat. 530. The codifications made no substantive changes in § 14 of the Veterans' Preference Act (VPA), as amended. See, S.Rept. 1380 on H.R. 10104, 89th Cong., 2nd Sess., at pp. 20-21.

The specific issue for decision, then, is whether Congress' broad grant of authority to the Commission to take "corrective action" to remedy and protect against adverse action by federal agencies against their veteran preference eligible employees authorized it to award attorneys' fees and costs in certain cases, or whether as the government argues the Court should narrow that broad grant of authority and hold that the Commission may not under any circumstances make such an award.

This question appears to be one of first impression; the Court has found no cases where the question here presented was at issue. Indeed, in only one case, Wettre v. Hague, 74 F.Supp. 396 (D.Mass., 1947), rev'd on other grounds, 168 F.2d 825 (1st Cir., 1948), is the issue of attorneys' fees even mentioned in any connection with the VPA. In that case the Court speculates that counsel fees might not be recoverable, but it is not clear that this dictum was even addressed to the VPA § 14 issue at all. The question before that Court inter alia was whether it should enjoin the Navy from carrying out certain personnel actions (demotions), before plaintiffs had pursued their administrative remedies before the Civil Service Commission. A provision of the Administrative Procedure Act in force at that time, 5 U.S.C. § 1009(d), permitted the Court to enjoin such personnel actions if they would constitute irreparable injury, and it was in this context that the Court remarked upon the question of attorneys' fees — the harm of temporary demotions was not sufficiently irreparable to justify an injunction, despite the fact that plaintiffs "presumably" could not recoup counsel fees even if the Commission ruled in their favor. It is clear that the present issue was not posed in Wettre, and that the discussion there was in no way intended as a holding on the meaning of § 14. This is especially the case in that the Wettre dictum lacks the sharp analysis of policy that characterizes Judge Wyzanski's holdings and makes them so properly influential.

The Commission cites two cases, Vitarelli v. United States, 279 F.2d 878, 150 Ct.Cl. 59 (1960) and Middleton v. United States, 175 Ct.Cl. 786 (1966) for the proposition that Fitzgerald is barred from any monetary relief but back pay in this situation.⁵ Those cases, however, are not concerned with the question at bar; rather, they deal with the question of whether attorneys' fees are deductible from interim earnings in the computation of the amount due after an award under the Back Pay Act, 5 U.S.C. § 5596(b)(1). Since, as will be seen shortly, the Commission may award back pay to veterans preference eligibles under § 14 rather than, or in addition to, under the Back Pay Act, these cases are not relevant to the proper construction of § 14.

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