Wilson v. Turnage
| Decision Date | 20 May 1986 |
| Docket Number | No. 85-2270,85-2270 |
| Citation | 791 F.2d 151 |
| Parties | Robert M.T. WILSON, Appellant, v. Thomas TURNAGE, Director, Selective Service System, Appellee. Appeal |
| Court | U.S. Court of Appeals — Federal Circuit |
George M. Chuzi, Kalijarvi & Chuzi, Washington, D.C., argued, for appellant. With him on brief was June D.L. Kalijarvi.
Robert A. Reutershan, Asst. Director, Commercial Litigation Branch, Dept. of Justice, Washington, D.C., argued, for appellee. With him on brief were Richard K. Willard, Acting Asst. Atty. Gen. and David M. Cohen, Director.
Before BALDWIN, Circuit Judge, COWEN, Senior Circuit Judge, and SMITH, Circuit Judge.
Appellant, Robert M.T. Wilson, appeals from a decision of the United States District Court for the District of Columbia, which denied his application for attorney fees under the Back Pay Act, 5 U.S.C Sec. 5596 (1982). For the reasons to be set forth, we affirm.
In 1978, the appellant, Wilson, worked as an Operations Evaluation Specialist, GS-13, with the Selective Service System (Selective Service or agency). He was responsible for analyzing and evaluating the agency's ability to mobilize forces in the event of a national emergency. As a result of this work, he became concerned that the agency was unable to meet the statutory preparedness requirements established in section 10(h) of the Military Selective Service Act, 50 U.S.C. app. Sec. 460(h).
Between November 6 and November 25, 1978, after his superiors had apparently ignored his efforts to address the problem, Wilson delivered material outlining his concern over military preparedness to the Secret Service detail at the White House for transmittal to President Carter. The Secret Service informed the agency of Wilson's correspondence with the President, and provided the agency with copies of the material Wilson had delivered.
Shortly thereafter, Wilson's supervisor reviewed some of the correspondence with the Chief of Mental Health Services at Malcolm Grow Air Force Medical Center, who advised that Wilson's mental health should be further evaluated. To that end, by letter of November 28, 1978, the Administrative and Logistics Manager of the Selective Service directed Wilson to undergo a psychiatric fitness-for-duty examination, and placed him on enforced sick leave status effective immediately, pending receipt of the evaluation report.
Wilson refused to submit to an examination, and on April 25, 1979, the agency applied to the Office of Personnel Management (OPM) for an agency-filed disability retirement for Wilson. However, the OPM remanded the application to the agency, because it had failed to comply with the conditions for filing such an application. Specifically, the OPM found that the agency failed to make a preliminary determination that Wilson's performance, attendance, or behavior were below an acceptable level. Furthermore, the OPM found that the agency had not made a prima facie case that his service was not useful or efficient. The OPM decision stated that the letters Wilson had written to the President were not the type of behavior which related directly to his performance or constituted a basis for separation.
After the agency resubmitted the application for disability retirement on August 23, 1979, the OPM again remanded it to the agency, stating that the agency still had not complied with the requisite procedures for retiring Wilson. Again, the OPM stated that the evidence submitted by the agency was not substantive evidence which clearly and convincingly showed Wilson's inefficiency. The OPM suggested that because of the lapse of time, the agency should consider terminating the application and, at the very least, restore Wilson to active duty status while proceeding with the application. The agency did neither.
While the agency was pursuing the application for disability retirement, Wilson sought several avenues of relief. First, on February 27, 1979, he filed an administrative appeal with the Merit Systems Protection Board (MSPB or Board). The MSPB, however, dismissed the appeal, stating that the enforced sick leave imposed was not used in a personal, disciplinary-type situation, and thus, was not a suspension appealable to the MSPB under the civil service laws. Subsequently, Wilson appealed the MSPB's decision to the United States Court of Claims, but, as hereinafter noted, that appeal was eventually withdrawn, pursuant to a settlement agreement between Wilson and the Selective Service.
Second, also on February 27, 1979, Wilson filed a complaint with the Office of the Special Counsel to the MSPB, alleging harassment and retaliation. On October 23, 1979, the Office of Special Counsel released the report of its investigation in which it found that Selective Service had violated several laws and regulations in the actions taken against Wilson. The Special Counsel specifically noted that the agency was remiss in its "capricious attitude toward Mr. Wilson and in its failure to consider his due process rights * * *." The Special Counsel found, however, that the evidence did not reveal that the agency's actions were the result of reprisals against Wilson for his disclosure of information relating to the Selective Service.
Third, on April 4, 1979, Wilson filed a complaint in the United States District Court for the District of Columbia, seeking injunctive relief against the agency and requesting restoration to his former position. Although the district court had originally granted Wilson's request for a temporary restraining order on April 5, 1979, it vacated that order on April 11, 1979. After the district court denied Wilson's reapplication for a temporary restraining order, Wilson appealed. On April 25, 1979, a panel of the United States Court of Appeals for the District of Columbia Circuit granted Wilson's request for an injunction to maintain the status quo, but later the court lifted that order. The appeal remained pending until it was withdrawn as part of the settlement agreement.
On December 7, 1979, the agency and Wilson reached a settlement agreement. Although not admitting a violation of any law, the agency nevertheless reinstated Wilson to active duty status as Writer/Editor, GS-13, effective December 10, 1979, and retroactive to November 28, 1978. The agency also agreed to restore all of his annual and sick leave used during the enforced leave period, to pay all back pay for the period of leave, to reimburse him for benefits he would have earned retroactive to November 28, 1978, and to expunge from his records any reference to the directive that he undergo a psychiatric fitness-for-duty examination. For his part, Wilson agreed to dismiss his appeal in the District of Columbia Circuit, his action in the district court, and his suit in the Court of Claims. Under the settlement agreement, the parties left for further negotiations, and if necessary, for decision by an appropriate court, Wilson's request for attorney fees and costs.
On June 23, 1981, Wilson filed a motion with the district court for an award of attorney fees under the Back Pay Act, 5 U.S.C. Sec. 5596. Following a report and recommendation by a magistrate, the district court denied the request and held that since an administrative proceeding was pending as of November 28, 1978, an award of attorney fees was barred by the "Savings Provision" of the Back Pay Act. As part of the Civil Service Reform Act of 1978 (CSRA), Pub.L. No. 95-454, Sec. 702, 92 Stat. 1111, 1216, Congress had amended the Back Pay Act to authorize the award of reasonable attorney fees related to a personnel action. 5 U.S.C. Sec. 5596(b)(1)(A)(ii) (1982). The CSRA became effective on January 11, 1979, but included the following Savings Provision:
No provision of this Act * * * shall affect any administrative proceedings pending at the time such provision takes effect. Orders shall be issued in such proceedings and appeals shall be taken therefrom as if this Act had not been enacted.
Pub.L. No. 95-454, Sec. 902(b), 92 Stat. 1224 (codified at 5 U.S.C. Sec. 1101 note (1982)).
Wilson appealed the district court's decision to the District of Columbia Circuit, which initially held that the Savings Provision did not bar an award of attorney fees to him. Wilson v. Turnage, 750 F.2d 1086 (D.C.Cir.1984). The case was remanded to the district court for a determination of an appropriate amount, but before the district court acted on the remand, the District of Columbia Circuit, sua sponte, vacated its decision and transferred the case to this court. Wilson v. Turnage, 755 F.2d 967 (D.C.Cir.1985).
The Back Pay Act, as amended by the CSRA, provides in pertinent part:
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, to receive for the period for which the personnel action was in effect--
* * *
* * *
(ii) reasonable attorney fees related to the personnel action * * *.
5 U.S.C. Sec. 5596(b)(1)(A)(ii) (1982).
The primary issue to be decided in this appeal is whether the letter of November 28, 1978, which directed the appellant to undergo a psychiatric evaluation and placed him on leave, was an "administrative proceeding pending" within the meaning of the Savings Provision of the CSRA. 1 The term "administrative proceeding" is not defined in the CSRA, and its...
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