Huey v. Sullivan, 91-2908

• Decision Date: 28 January 1993
• Docket Number: No. 91-2908,91-2908
• Citation: 971 F.2d 1362
• Parties: 59 Fair Empl.Prac.Cas. (BNA) 838, 59 Empl. Prac. Dec. P 41,658 Reginald T. HUEY, Appellant, v. Louis W. SULLIVAN, M.D., Secretary of Health and Human Services, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1362

971 F.2d 1362

59 Fair Empl.Prac.Cas. (BNA) 838,

59 Empl. Prac. Dec. P 41,658

Reginald T. HUEY, Appellant, v. Louis W. SULLIVAN, M.D., Secretary of Health and Human

Services, Appellee.

No. 91-2908.

United States Court of Appeals,

Eighth Circuit.

Submitted March 10, 1992.

Decided July 30, 1992.

Rehearing and Rehearing En Banc

Denied Jan. 28, 1993.

John W. Kurtz, Kansas City, Mo., argued (Elmer C. Jackson, Jr., Kansas City, Mo., on the brief), for appellant.

Judith Marie Strong, Kansas City, Mo., argued (Alleen S. Castellani, Kansas City, Mo., on the brief), for appellee.

Before WOLLMAN and MAGILL, Circuit Judges, and WOODS, ^* District Judge.

MAGILL, Circuit Judge.

Reginald Huey appeals the district court's ¹ order denying him interest on a back pay award that he received as a result of a successful race discrimination claim. Huey also challenges the district court's refusal to grant him accountant's expenses and a portion of his attorney's fees. We affirm.

I.

Huey and his employer, the Social Security Administration (the Agency), have been engaged in a thirteen-year legal battle stemming from the Agency's failure to promote Huey to twelve different GS-12 positions for which he was qualified. As required by federal law, Huey first brought his claim of race discrimination before the Agency. When the Agency found no discrimination, Huey appealed the finding to the Equal Employment Opportunity Commission (EEOC) which remanded to the Agency for further investigation. On remand, the Agency concluded that Huey's allegations with respect to seven of the positions were untimely. With respect to the remaining five positions, the Agency found no discrimination. The Agency's supplemental investigation also revealed that numerous records relating to the promotions had been destroyed. Huey again appealed to the EEOC which upheld the Agency's finding that seven of Huey's allegations were untimely. The EEOC, however, reversed the Agency's finding of no discrimination with respect to the other five positions. The EEOC concluded that Huey had made out a prima facie case of discrimination because the Agency conceded that Huey was eligible for the five promotions, and that those given the promotions were not black. The EEOC also found that although the Agency had shown a legitimate, nondiscriminatory reason for not selecting Huey, the Agency's own actions in destroying records prevented Huey from proving that the Agency's asserted reason was a pretext. Because the Agency had a duty to preserve or reconstruct these records, the EEOC applied an adverse inference and assumed that Huey met his burden of showing pretext.

Pursuant to its authority to issue a final decision requiring the employing agency to take corrective action, ² the EEOC ordered the Agency to promote Huey to the position of his choice from among the five positions he had been denied, to pay him back pay based on the increased salary he would have received if he had been promoted to a GS-12 position, and to pay him attorney's fees. Huey then selected the position of Executive Assistant to the Principal Regional Office. Because the Agency had redefined this position in the years since Huey had originally applied for it, the Agency challenged Huey's right to receive this position and moved to reopen the EEOC decision. The EEOC granted this request, and altered its order to require the Agency to promote Huey to a GS-12 position which is substantially equivalent to any one of the five positions the Agency had previously denied Huey. This order gave the Agency, rather than Huey, the right to choose the specific position Huey would receive.

As allowed by law, Huey then brought a Title VII action in federal district court seeking enforcement of the EEOC's order. Huey also sought additional relief, including appointment to the position of his choice, back pay calculated at a GS-12 level for one year and at a GS-13 level for all succeeding years, and interest on the back pay award. Finally, Huey sought accountant's expenses incurred for calculation of the back pay amount and attorney's fees incurred at the district court level. The Agency argued that the district court could not award Huey relief beyond what the EEOC had ordered without retrying the issue of liability de novo. It conceded, however, that the court is bound by the EEOC's order with respect to its enforcement. On February 8, 1989, the district court granted Huey summary judgment on the issue of liability, rejecting the Agency's argument that it was entitled to de novo review before the court could grant additional relief. After further proceedings, the court rejected Huey's claims for relief beyond that awarded by the EEOC. It did, however, grant Huey attorney's fees for work up to the grant of partial summary judgment on February 8, 1989. 705 F.Supp. 1414. Huey now appeals the district court's denial of interest on the back pay award, accountant's expenses, and attorney's fees incurred after February 8, 1989. The Agency claims that the district court proceedings are not final, and thus this court lacks jurisdiction to hear the appeal. We conclude that we have jurisdiction, and affirm the district court's order in all respects.

II.

A. Jurisdiction

We first address the Agency's claim that we lack jurisdiction to hear the appeal. The United States courts of appeals have jurisdiction only over final decisions of the district courts. ³ 28 U.S.C. § 1291 (1988). Generally, a district court decision is final when the court "has rendered a decision that 'ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.' " Thomas v. Basham, 931 F.2d 521, 523 (8th Cir.1991) (citing Towers Hotel Corp. v. Rimmel, 871 F.2d 766, 769 (8th Cir.1989)). The Agency argues that the district court proceedings are not final because the court retained jurisdiction to review any questions that arise regarding the Agency's good faith assignment of a GS-12 position to Huey as required by the judgment. Any subsequent action brought before the district court regarding the Agency's compliance with the judgment, however, clearly is related to execution of the judgment. We do not believe that retention of jurisdiction to oversee execution of the judgment prevents the district court's decision on the merits from becoming final. See Brown Shoe Co. v. United States, 370 U.S. 294, 304-10, 82 S.Ct. 1502, 1512, 8 L.Ed.2d 510 (1962) (finding appellate jurisdiction even though the court had not yet developed a specific plan for carrying into effect its divestiture order). We thus find that we have jurisdiction to address the merits of this appeal.

B. Interest on Back Pay Award

Huey argues that he is entitled to interest on his back pay award either under the Back Pay Act, 5 U.S.C. § 5596 (1988), or under § 114 of the Civil Rights Act of 1991. We reject both these arguments. First, even assuming that the interest provisions of the Back Pay Act can supplement the relief available to a prevailing plaintiff under Title VII, we do not believe that these provisions entitle Huey to interest. In 1987, Congress amended the Back Pay Act to allow interest on back pay awards. 5 U.S.C. § 5596(b)(2). Under these amendments, an employee is entitled to interest only if the decision awarding the employee back pay was rendered on or after December 22, 1987. Pub.L. No. 100-202, § 101(m) [Title VI, § 623(b) ] (1987) (reprinted in the historical and statutory notes of 5 U.S.C. § 5596). The Agency argues that the decision awarding Huey back pay was made on May 26, 1987, well before the effective date of the amendments. We agree. On May 26, 1987, the EEOC entered its final decision in the discrimination action, granting Huey back pay based on a GS-12 pay schedule. Neither Huey nor the Agency ever challenged this award. Although Huey sought to increase this award in his subsequent court action, the district court denied this relief. Thus, the only decision awarding Huey back pay was the one made by the EEOC on May 26, 1987. Although the district court did agree to enforce this award, subsequent enforcement action does not alter the date that the award was made. See Gonzales v. Dep't of the Treasury, 46 M.S.P.R. 75 (M.S.P.B.1990); Greene v. Dep't of Health & Human Servs., 42 M.S.P.R. 192 (M.S.P.B.1989).

Second, we do not believe that § 114 of the 1991 Civil Rights Act entitles Huey to interest on his back pay award. This section waives sovereign immunity to awards of interest under Title VII. It specifically states that "the same interest to compensate for delay in payment shall be available as in cases involving nonpublic parties." Pub.L. No. 102-166, § 114, 105 Stat. 1071, 1079 (1991) (codified at 42 U.S.C. § 2000e-16(d)). The Agency paid Huey his back pay award prior to the effective date of the 1991 Act. Accordingly, any award of interest on the back pay would be a retroactive application of § 114. Congress did not specify whether courts should retroactively apply this provision. This circuit, however, recently concluded that another provision of the Civil Rights Act does not apply retroactively. See Fray v. Omaha World Herald Co., 960 F.2d 1370, 1377-78 (8th Cir.1992) (holding that § 101 is not retroactive); see also Vogel v. City of Cincinnati, 959 F.2d 594 (6th Cir.1992) (holding that Civil Rights Act of 1991 not retroactive). We believe that the reasoning of Fray is equally applicable to retroactive applications of § 114. Additionally, the policy requiring that waivers of sovereign immunity be construed strictly in favor of the United States, e.g., Ardestani v. INS, --- U.S. ----, ----, 112 S.Ct. 515, 520, 116 L.Ed.2d 496 (1991); Ruckelshaus v. Sierra Club, 463 U.S. 680, 685-86, 103 S.Ct. 3274, 3278, 77 L.Ed.2d 938 (1983), makes a finding of no retroactivity even more compelling in this case. Accordingly, we uphold the district court's denial of interest on Huey's back pay award. ⁴

C. Accountant's...