Stevens v. Tennessee Valley Authority

• Decision Date: 12 July 1983
• Docket Number: No. 81-5355,81-5355
• Citation: 712 F.2d 1047
• Parties: 118 L.R.R.M. (BNA) 3201 John H. STEVENS, Plaintiff-Appellant, v. TENNESSEE VALLEY AUTHORITY, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1047

712 F.2d 1047

118 L.R.R.M. (BNA) 3201

John H. STEVENS, Plaintiff-Appellant, v. TENNESSEE VALLEY AUTHORITY, Defendant-Appellee.

No. 81-5355.

United States Court of Appeals, Sixth Circuit.

Argued May 19, 1982.

Decided July 12, 1983.

Robert S. Olive (argued), McCord & Cockrill, Knoxville, Tenn., for plaintiff-appellant.

Herbert S. Sanger, Jr., Gen. Counsel, Justin M. Schwamm, Sr., Asst. Gen. Counsel, Thomas C. Doolan (argued), Tenn. Valley Authority, Knoxville, Tenn., for defendant-appellee.

Before ENGEL, Circuit Judge, BROWN, Senior Circuit Judge and GUY, District Judge. ^*

ENGEL, Circuit Judge.

The specific issue we address in this appeal is whether any private right of action under the Veteran's Preference Act, as made applicable to United States employees in 5 U.S.C. § 3551, ¹ is subject to temporal limitations upon when suit can be brought. The trial judge, relying primarily upon Erwin v. Neal, 494 F.2d 1351 (6th Cir.1974), held the action to be time-barred by what he perceived to be Tennessee's most nearly analogous state statute of limitations, Tenn.Code Ann. § 28-3-104(a). That statute provides a one-year limitation upon actions "for injuries to the person." ²

In reversing, we borrow from what we conceive to be the most nearly applicable federal statute, that which provides identical rights to veterans returning to private, state and municipal employment. Because that statute specifically rejects state statutes of limitations, we do likewise and hold that any limitation upon a right to sue is governed by the equitable doctrine of laches. We hold that to apply state statutes of limitation to federal employees while state and private employees are expressly free of them would produce an anomalous result which Congress could not have intended.

Stevens was hired by the TVA in 1976 as a steamfitter. While so employed, he was ordered by the Tennessee Army National Guard to report for full-time training from November 29, 1978 through August 17, 1979. Stevens requested a leave of absence from his employment during this period of military service, but his request for that status was denied and his employee status was later terminated on December 13, 1978 because of his unavailability for work. On August 20, 1979, following completion of active duty service, Stevens made an application for restoration to his employment under 5 U.S.C. § 3551. The TVA refused to reinstate Stevens to his earlier position with his earlier seniority, but it did offer him employment as a "new hire." By letter of September 9, 1979, Stevens was advised that the offer of reemployment would remain open until September 19, 1979. Stevens chose, however, not to accept that offer, indicating that he could accept the position only upon Union referral. While the merits of Stevens' claim on entitlement to restoration are not before us, the dispute appears to center upon Stevens' status as an employee, and whether that status was entitled to protection under the Veteran's Preference Act as made applicable to United States employees in 5 U.S.C. § 3551.

On September 24, 1979, Stevens filed a petition with the Merits Systems Protection Board (formerly the Civil Service Commission), claiming restoration rights under both 5 U.S.C. § 3551 and 38 U.S.C. § 2024(d) and (f). The latter sections specifically give to National Guardsmen who are called into active duty for training the same reemployment rights enjoyed by other members of the Armed Forces under 38 U.S.C. § 2021. The Merit Systems Protection Board held first that it had no jurisdiction to decide Stevens' claim under 5 U.S.C. § 3551 and, second, that because Stevens was classified as a "temporary" employee of TVA at the time he left for military duty, he was not entitled to restoration under 38 U.S.C. § 2024. See 38 U.S.C. § 2021. The Board denied Stevens' request for reconsideration of its decision on October 24, 1980. Upon appeal to this Court, the Board's decision was reversed on the single ground that the Board applied an incorrect legal standard in deciding whether Stevens was a temporary employee. That case is now on remand to the Board for decision under a correct legal standard. See Stevens v. TVA, 687 F.2d 158 (6th Cir.1982).

On November 26, 1980, one month after the Board's final decision rejecting his administrative appeal, Stevens filed the present action in the United States District Court for the Eastern District of Tennessee upon the theory that 5 U.S.C. § 3551 conferred upon him a private right of action where his rights thereunder were abridged. He asked for reinstatement with full seniority, damages reflecting the difference in pay between what he earned in his employment with another employer and what he would have earned at TVA, and consequential damages for various benefits associated with employment at TVA. The TVA moved for judgment on the pleadings, claiming that Stevens' action was time-barred by the one-year limitation provision of Tenn.Code Ann. § 28-3-104 and, further, that Stevens was not entitled to the benefit of section 3551. The district court denied the motion, but after a full trial on the merits it found that suit was in fact time-barred by Tennessee's one-year statute. Stevens v. Tennessee Valley Authority, 517 F.Supp. 75 (E.D.Tenn.1981). Having so found, the trial court declined to reach the merits of Stevens' claim. Id. at 77.

I.

Stevens' action against TVA in the district court is predicated upon the assumption that 5 U.S.C. § 3551, although silent on the question, creates an implied private cause of action. Ordinarily, the failure of Congress to provide an express provision creating a cause of action under 5 U.S.C. § 3551, while at the same time having specifically provided for those reemployment rights created under 38 U.S.C. §§ 2021 and 2024, would present a difficult question concerning whether Congress intended to create such an action. However, that issue has not been raised here, and we have concluded that we are entitled to consider the issue waived. "The question of whether a cause of action exists is not a question of jurisdiction, and therefore may be assumed without being decided" in the absence of objection. Burks v. Lasker, 441 U.S. 471, 475-76, 476 n. 5, 99 S.Ct. 1831, 1835-36, 1836 n. 5, 60 L.Ed.2d 404 (1979); see Herm v. Stafford, 663 F.2d 669 (6th Cir.1981); Fogel v. Chestnutt, 668 F.2d 100 (2d Cir.1981).

II.

After a review of the briefs originally filed in this appeal and after oral argument, we requested submission of additional briefs on whether the proper statute of limitations was to be found at 28 U.S.C. § 2401(a) or (b), which provide a limitation upon when suits "against the United States" may be brought. ³ It appeared after a review of the language of § 2401, especially in light of Saffron v. Dept. of Navy, 561 F.2d 938 (D.C.Cir.1977), cert. denied, 434 U.S. 1033, 98 S.Ct. 765, 54 L.Ed.2d 780 (1978), that there might be a federal statute which specifically covered such actions. In such case it would have been inappropriate to consult Tennessee law. As Justice Frankfurter observed:

If Congress explicitly puts a limit on the time for enforcing a right which it created, there is an end of the matter. The Congressional statute of limitation is definitive. The rub comes when Congress is silent.

Holmberg v. Armbrecht, 327 U.S. 392, 395, 66 S.Ct. 582, 584, 90 L.Ed. 743 (1946) citation omitted; accord, Meeker & Lehigh v. Valley R.R. Co., 236 U.S. 412, 423, 35 S.Ct. 328, 332-33, 59 L.Ed. 644 (1915). The period of delay here is apparently 15 months. If 28 U.S.C. § 2401 is applicable, suit was timely under either subsection (a) or (b).

We recognize that since the statute of limitation is an affirmative defense, the burden would have normally been upon TVA to assert the proper statute and that, therefore, it would be inappropriate to consider a statute upon which no party has relied. At the same time, the issue of the proper statute of limitation was raised in the district court, and the case was decided on that issue. We agree with the District of Columbia Circuit it would be improper to ignore altogether a limitation if Congress has distinctly made it applicable. Thus, as did the district court in Saffron, we notice sua sponte the potential application of the statute. For the reasons which follow, however, we are satisfied that 28 U.S.C. § 2401(a) and (b) have no applicability to any actions brought in the district court against the TVA under 5 U.S.C. § 3551.

As the TVA points out in its brief, section 2401 was originally enacted in 1948 as a part of the codification of the judicial code entitled 28 U.S.C., and it combined two separate and pre-existing limitations for suits against the United States as an entity. Subsection 2401(b) was originally enacted in 1946 as section 420 of the Federal Tort Claims Act, 60 Stat. 845 ("F.T.C.A."). Section 421 of the F.T.C.A. provides that the act shall not apply to "any claim arising from the activities of the Tennessee Valley Authority", and further holds that the limitations sections apply only to "claim[s] against the United States cognizable under this title." In like manner, section 2401(a) is inapplicable to suits against the TVA. Although appearing to be general in its language, section 2401 derives from the provisions of the Tucker Act, which provides a comprehensive system for commencement of actions against the United States as an entity. The Tucker Act also specifically exempts the TVA from its operation, 28 U.S.C. § 1491 (1976); Supp. 5 (1948); Jackson v. Tennessee Valley Authority, 462 F.Supp. 45, 54 (M.D.Tenn.1978), aff'd, 595 F.2d 1120 (6th Cir.1979).

The Tucker Act exemption provision is expressly addressed to actions brought in the Court of Claims but not to those brought in district court. See 28 U.S.C. § 1491 (1976). The TVA argues, however, that it is applicable in the present case. The Tucker Act, as carefully analyzed in Saffron, supra, was designed...