Gilbert v. Fdic

• Decision Date: 03 January 1997
• Docket Number: Civil Action No. 93-0143 (RMU).
• Citation: 950 F.Supp. 1194
• Parties: Opal Renee GILBERT, Plaintiff, v. FEDERAL DEPOSIT INSURANCE CORPORATION, Defendant.
• Court: U.S. District Court — District of Columbia

950 F.Supp. 1194

Opal Renee GILBERT, Plaintiff, v. FEDERAL DEPOSIT INSURANCE CORPORATION, Defendant.

Civil Action No. 93-0143 (RMU).

United States District Court, District of Columbia.

January 3, 1997.

Gregory O'Duden, General Counsel, Elaine Kaplan, Deputy General Counsel, Barbara A. Atkin, Associate General Counsel for Appellate Litigation, National Treasury Employees Union, Washington, DC, for Plaintiff.

Roderick J. Thomas, Assistant U.S. Attorney, Washington, DC, for Defendant.

MEMORANDUM ORDER

URBINA, District Judge.

Adopting in Part and Modifying in Part Magistrate Judge Patrick J. Attridge's Report and Recommendation and Denying Plaintiff's Motion For Attorney's Fees and Prejudgment Interest

I. Introduction

This matter comes before the court upon plaintiff's motion for a de novo review of the issues addressed by Magistrate Judge Patrick J. Attridge in his Report and Recommendation issued October 31, 1995. Following the parties' settlement of plaintiff's severance pay claim, this court referred to Magistrate Judge Attridge plaintiff's motion for an award of prejudgment interest and attorney's fees. The Report and Recommendation recommends that the plaintiff's motion be denied. The principal issue before the Magistrate Judge and now before this court is whether plaintiff, who entered into a settlement agreement for severance pay in an action pursuant to 5 U.S.C. § 5595, the Severance Pay Act, based on her involuntary separation from her employment, is entitled to an award of prejudgment interest and attorney's fees under 5 U.S.C. § 5596, the Back Pay Act.

After careful consideration of the Report and Recommendation, the parties' submissions and the relevant law, the court concludes that the plaintiff is not entitled to the relief she seeks because she has failed to meet the Act's requirements. Specifically, plaintiff has not shown that "an appropriate authority" has found that she underwent an unjustified or unwarranted personnel action that resulted in the withdrawal or reduction in her pay, allowances, or differentials.

II. Background

Opal Gilbert, a former Federal Deposit Insurance Corporation (FDIC) employee, brought an action for severance pay pursuant to 5 U.S.C. § 5595, the Severance Pay Act, due to her alleged "involuntary separation" from her employment. On June 8, 1988, she received a reduction-in-force (RIF) notice from the FDIC after she refused to transfer from New York to South Brunswick, New Jersey.¹ Following an administrative appeal, she was reinstated by the FDIC and directed to report to the South Brunswick Consolidated Field Office, a location outside her commuting distance. Ms. Gilbert subsequently involuntarily resigned her employment with the FDIC.

On January 22, 1993, Ms. Gilbert filed this lawsuit, pursuant to the Severance Pay Act, seeking severance pay based on her involuntary separation. A month before trial, the parties agreed upon a settlement which provided for severance pay in the sum of $14,722.34. The agreement further provided that the court retain jurisdiction in the event that the parties could not arrive at an agreement on the issues of prejudgment interest and attorney's fees. No agreement was reached. The court referred the matter to Magistrate Judge Patrick J. Attridge.

On October 31, 1995, Magistrate Judge Attridge issued a Report and Recommendation concluding that Ms. Gilbert was not entitled to relief under the Back Pay Act. In order to obtain relief under the Back Pay Act, a plaintiff must establish that: (1) she has "undergone an unjustified or unwarranted personnel action," and (2) that the action, "resulted in the withdrawal or reduction of all or a part of [her] pay, allowances, or differentials." Donovan v. United States, 580 F.2d 1203, 1207 (3rd Cir.1978). Magistrate Judge Attridge concluded that plaintiff did not meet these prerequisites. Magistrate Judge Attridge also concluded that Ms. Gilbert was not entitled to an award of attorney's fees "in the interest of justice," under section 7701(g) of the Civil Service Reform Act. 5 U.S.C. § 5596(b)(1)(A)(ii). As a result, he recommends that Ms. Gilbert's motion for prejudgment interest and attorney's fees be denied in its entirety.

In addition, Magistrate Judge Attridge stated that even if Ms. Gilbert could meet the two-prong test of the Back Pay Act, the prejudgment interest award she seeks could not be exacted against the FDIC without a waiver of sovereign immunity. Kingston Constructors, Inc. v. WMATA, 860 F.Supp. 886, 888 (D.D.C.1994). He concluded that the plaintiff failed to establish that such a waiver existed.

Finally, Magistrate Judge Attridge concluded that the plaintiff did not have an actionable claim for attorney's fees under the Equal Access to Justice Act, 28 U.S.C. § 2412(d)(1) (EAJA). A party seeking an award of fees must submit an application to the court "within thirty days of final judgment in the action." 28 U.S.C. § 2412(d)(1)(B). The EAJA defines "final judgment" as: "[A] judgment that is final and not appealable, and includes an order of settlement." 28 U.S.C. § 2412(d)(2)(G). On February 6, 1995, the parties settled Ms. Gilbert's severance pay claim. Magistrate Judge Attridge concluded that any claim for attorney's fees by Ms. Gilbert under the EAJA is now time barred.

Ms. Gilbert now moves, pursuant to Local Rule 504(b), for a de novo review, by this court, of Magistrate Judge Attridge's conclusions.

III. Discussion²

A. Severance Pay Act

The Severance Pay Act provides for an award of severance pay to be paid in regular pay periods by the agency from which an employee is separated. 5 U.S.C. § 5596(b). To qualify for severance pay, the employee must show that she:

(1) has been employed currently for a continuous period of at least 12 months; and

(2) [was] involuntarily separated from the service, not by removal for cause on charges of misconduct, delinquency, or inefficiency.

5 U.S.C. § 5595(b)(1) and (2).

The Act also provides for a limit on the amount of severance pay that may be awarded. "Total severance pay under this section may not exceed 1 year's pay at the rate received immediately before separation." 5 U.S.C. § 5595(c). The settlement entered into between the parties as to the award of severance pay was for the full amount that the plaintiff was seeking. Notably absent in the Severance Pay Act is any provision for an award of prejudgment interest and/or attorney's fees. As a result, Ms. Gilbert relies upon the Back Pay Act in an effort to obtain an award of attorney's fees and prejudgment interest.

B. The Back Pay Act

The Back Pay Act does not create an alternative cause of action, rather it is an auxiliary measure that only operates at the relief stage. Brown v. Secretary of the Army, 918 F.2d 214, 217 (D.C.Cir.1990); see also Fields v. Harris, 522 F.Supp. 901 (W.D.Mo.1981), aff'd, 675 F.2d 219, cert. denied, 459 U.S. 869, 103 S.Ct. 153, 74 L.Ed.2d 128 (1982) (holding that the Act did not bestow an independent basis of jurisdiction upon the district court); American Federation of Government Emp., Local 41, AFL-CIO v. Califano, 453 F.Supp. 550 (D.D.C.1978) (the Act is not jurisdictional in character). The purpose of the Act is to make an employee affected by an unjustified personnel action financially whole. See S.Rep. No. 1062, 89th Cong., 2d Sess. 2 (1966), U.S.Code Cong. & Admin.News 2097. The Act, provides, in pertinent part:

(b)(1) An employee of an agency who, on the basis of a timely appeal or an administrative determination ... is found by an appropriate authority under applicable law ... 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, on correction of the personnel action, to receive for the period for which the personnel action was in effect —

(i) an amount equal to all or any part of the pay, allowances, or differentials as applicable which the employee normally would have earned or received ...

(ii) reasonable attorney fees related to the personnel action which, with respect to any decision relating to an unfair labor practice or a grievance processed under a procedure negotiated in accordance with chapter 71 of this title, or under chapter 11 of title 1 of the Foreign Service Act of 1980, shall be awarded in accordance with standards established under section 7701(g) of this title ...

5 U.S.C. § 5596(b)(1)(A)(i) and (ii) (emphasis supplied).

In order to be eligible for relief under the Back Pay Act, Ms. Gilbert must therefore establish: (1) that she has undergone an unjustified or unwarranted personnel action; and (2) that the action resulted in the withdrawal or reduction in all or part of her pay, allowances, or differentials. 5 U.S.C. § 5596(b)(1).³

Preliminarily, the court notes that the Back Pay Act clearly requires that an employee be found by an "appropriate authority" to have undergone an unwarranted or unjustified personnel action. 5 U.S.C. § 5596(b)(1); United States v. Fausto, 484 U.S. 439, 454, 108 S.Ct. 668, 677, 98 L.Ed.2d 830 (1988); see also Roepsch v. Bentsen, 846 F.Supp. 1363, 1370 (E.D.Wis.1994) (recovery under the Act is predicated upon a finding that there has been an "unjustified or unwarranted personnel action.") (internal citations omitted). In Fausto, the Supreme Court applied the pertinent regulations promulgated by the Civil Service Reform Act of 1978 (CSRA), and found that such an appropriate authority includes: "the agency itself, or the MSPB (Merit System Protection Board) or the Federal Circuit where those entities have the authority to review the agency's determination." Id. In this case, an independent determination has not been made by any authority (including this court) that Ms. Gilbert suffered an unwarranted or unjustified personnel action.⁴

In addition, Ms. Gilbert has nevertheless failed to satisfy either prong of the...