Sims v. Department of the Navy, 83-628

• Decision Date: 15 July 1983
• Docket Number: No. 83-628,83-628
• Citation: 711 F.2d 1578
• Parties: Glenn H. SIMS, Petitioner, v. DEPARTMENT OF THE NAVY, Respondent.
• Court: U.S. Court of Appeals — Federal Circuit

Page 1578

711 F.2d 1578

Glenn H. SIMS, Petitioner, v. DEPARTMENT OF THE NAVY, Respondent.

No. 83-628.

United States Court of Appeals, Federal Circuit.

July 15, 1983.

Blake Chambers, Washington, Ind., argued, for petitioner.

Robert G. Giertz, Washington, D.C., argued, for respondent. With him on the brief were J. Paul McGrath, Asst. Atty. Gen., David M. Cohen, Director and Thomas W. Petersen, Asst. Director, Washington, D.C.

Before MARKEY, Chief Judge, and DAVIS and BALDWIN, Circuit Judges.

DAVIS, Circuit Judge.

Petitioner Glenn H. Sims asks review of the final order (September 28, 1982) of the Merit Systems Protection Board (MSPB or board) denying him attorney fees for litigation before the MSPB. We affirm.

I

Sims, a civilian employee of the Department of the Navy, was removed on August 31, 1979 from his position as an instrument mechanic at the Naval Weapons Support Center in Crane, Indiana. ¹ On appeal to the MSPB, he admitted the substance of the charges but maintained that the penalty of removal was too harsh. The MSPB's presiding official sustained the agency removal action in an initial decision on November 20, 1979. On review by the board itself, the MSPB mitigated the removal to a 10-day suspension, finding that the presiding official's analysis was in conflict with its decision in Douglas v. Veterans Administration, 5 MSPB 313 (1981), because "the record here fails to demonstrate that the agency considered the consistency of the penalty it imposed on appellant with those imposed upon other employees for similar offenses", even though his "misconduct was premeditated and cannot be condoned."

Sims subsequently was denied an award of the attorney fees incurred in these actions, first by the presiding official and then by the board on review, on the basis that no entitlement to attorney fees was established under either the Back Pay Act, 5 U.S.C. § 5596(b), or the Civil Service Reform Act, 5 U.S.C. § 7701(g)(1). The board agreed with the presiding official that an award was not "warranted in the interest of justice" under the Civil Service Reform Act because "the agency's action was not 'clearly without merit,' " see Allen v. U.S. Postal Service, 2 MSPB 582 (1980), and that entitlement under the Back Pay Act was to be measured by the same "interest of justice" standard.

Petitioner claims the MSPB erred in denying him the fees because (1) an award of attorney fees is mandated by the Back Pay Act without reference to the "interest of justice" standard of section 7701(g) of the Civil Service Reform Act, (2) alternatively, the award is "warranted in the interest of justice", and (3) the amount of fees requested is reasonable. We deal in turn with the first two points; it is unnecessary to reach the third.

II

Although a purely facial examination of the Back Pay Act suggests some support for petitioner's position on that piece of legislation, a more thorough look in light of the legislative history indicates otherwise. Provision for attorney fees was added to the relief previously available under the Back Pay Act by the Civil Service Reform Act of 1978, Pub.L. No. 95-454, § 702, 92 Stat. 1111, 1216 (codified at 5 U.S.C. § 5596(b)(1)(A)(ii) (Supp. V 1981)). Section 5596(b)(1)(A)(ii) in pertinent part now states:

(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--

(A) is entitled, on correction of the personnel action, for the period for which the personnel action was in effect--

* * *

* * *

(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 I of the Foreign Service Act of 1980, shall be awarded with standards established under Section 7701(g) of this title; and ...

Petitioner contends that this section establishes two different standards for the award of attorney fees in back pay cases in which an employee meets the criteria set out in subsection (b)(1). In those cases "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 I of the Foreign Service Act of 1980," reasonable attorney fees "shall be awarded" in accordance with 5 U.S.C. § 7701(g)(1) of the Civil Service Reform Act. Section 7701 regulates the MSPB's appellate procedures. Under § 7701(g)(1), the board "may require payment by the agency involved of reasonable attorney fees incurred by an employee or applicant for employment if the employee or applicant is the prevailing party" when the board determines that "payment by the agency is warranted in the interest of justice, including any case in which a prohibitive personnel practice was engaged in by the agency or any case in which the agency's action was clearly without merit." (Emphasis added.)

In all other Back Pay Act cases, Sims says, the provision requires that "the employee--is entitled ...--[to] reasonable attorney fees....", without any qualification. (Emphasis added.) Thus, he argues, because his case does not involve a "decision relating to an unfair labor practice...." (or other specified type), he is entitled to the award of reasonable attorney fees without regard to the "interest of justice" standard.

We disagree with this reading of the statute. First of all, the statutory language is not unequivocal; the wording of § 5596(b)(1)(A)(ii), supra, does not clearly restrict the application of the "interest of justice" standard under § 7701(g)(1) to decisions relating to unfair labor practices, etc. The Pay Act's attorney fees provision does not state that fees are to be awarded according to that standard only "with respect to" any decision relating to unfair labor practices, etc. It simply says "... with respect to ...", which could be interpreted to mean "including, but not limited to ...".

Absent any other indication of the meaning of this ambiguous provision, petitioner's interpretation would not be unreasonable. But the legislative history demonstrates that Congress clearly intended awards of attorney fees under both provisions to be guided by the same "interest of justice" standard. The Conference Report on the Civil Service Reform Act discussed this issue as follows:

The Senate bill authorizes attorneys' fees to be awarded in appeals cases by a hearing officer whenever the employee prevails and the officer determines that the agency's action was taken in bad faith or in cases where a discrimination under the Civil Rights Amendment of 1964 has occurred.

The House amendment authorizes attorneys' fees in any case where the officer determines that payment "is warranted" or in a case involving a discrimination under the Civil Rights Amendment of 1964.

The conference substitute (Sections 7701(g) and 5596(b)(1)(A)(ii)) authorizes attorneys' fees in cases where employee prevails on the merits and the deciding official determines that attorneys' fees are warranted in the interest of justice, including a case involving a prohibitive personnel practice or where the agency's action was clearly without merit. The reference to these two types of cases is illustrative only and does not limit the official from awarding attorneys' fees in other kinds of cases.

H.R.Conf.Rep. No. 1717, 95th Cong., 2d Sess. 142 (1978), reprinted in 4 U.S.Cong. and Admin.News 2723, 2876 (1978) (emphasis added). (Note the express reference in the report to section 5596(b)(1)(A)(ii), the very Back Pay Act provision we are interpreting.)

Even if we were to agree with petitioner that there is no apparent ambiguity in the words of § 5596, it would be appropriate to review the legislative history, as we have done here, to be certain of Congress' intent. As noted in Train v. Colorado Public Interest Research Group, 426 U.S. 1, 10, 96 S.Ct. 1938, 1942, 48 L.Ed.2d 434 (1976):

"When aid to construction of the meaning of words, as used in the statute, is available, there certainly can be no 'rule of law' which forbids its use, however clear the words may appear on 'superficial examination.' " United States v. American Trucking Ass'ns., 310 U.S. 534, 543-544, 60 S.Ct. 1059, 1064, 84 L.Ed. 1345 (1940) (footnotes omitted). See Cass v. United States, 417 U.S. 72, 77-79, 94 S.Ct. 2167, 2170-2171, 40 L.Ed.2d 668 (1974). See generally Murphy, Old Maxims Never Die: The "Plain Meaning Rule" and Statutory Interpretation in the "Modern" Federal Courts, 75 Col.L.Rev. 1299 (1975).

The District of Columbia Circuit likewise has recently given weight to this same Back Pay Act legislative history. In Crowley v Schultz, 704 F.2d 1269, 1274 (D.C.Cir.1983), that court held that the "Savings Clause" of the Civil Service Reform Act applies to that part of the Reform Act which grants attorney fees in Back Pay Act cases (i.e., § 5596(b)(1)(A)(ii)) as well as cases falling under § 7701(g). ² At issue was whether this provision required reversal of the district court's grant of Crowley's request for attorney fees in a Back Pay Act action that was commenced prior to passage of the Act. The district court had reasoned that the savings provision did not apply to Back Pay Act cases, and had awarded attorney fees on the theory--now espoused by petitioner Sims here--that § 5596(b)(1)(A)(ii) mandated such an award without qualification.

In reversing the district court, the Court of Appeals concluded that "[t]here is no reason to suppose that ... judicial relief...