Markey v. United States

27 Fed. Cl. 615, 2 Am. Disabilities Cas. (BNA) 519, 1993 U.S. Claims LEXIS 264, 61 Empl. Prac. Dec. (CCH) 42,202, 1993 WL 25539
CourtUnited States Court of Federal Claims
DecidedFebruary 5, 1993
DocketNos. 91-1446C, 91-1544C
StatusPublished
Cited by8 cases

This text of 27 Fed. Cl. 615 (Markey v. United States) is published on Counsel Stack Legal Research, covering United States Court of Federal Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Markey v. United States, 27 Fed. Cl. 615, 2 Am. Disabilities Cas. (BNA) 519, 1993 U.S. Claims LEXIS 264, 61 Empl. Prac. Dec. (CCH) 42,202, 1993 WL 25539 (uscfc 1993).

Opinion

OPINION

HORN, Judge.

These related cases are before the court on defendant’s motions to dismiss for lack of subject matter jurisdiction, pursuant to Rule 12(b)(1) of the Rules of the United States Court of Federal Claims (RCFC).1 In support of its motions, the defendant asserts that this court lacks the requisite jurisdiction to entertain plaintiffs’ claims for interest on the backpay awards ordered by the Equal Employment Opportunity Commission (EEOC), pursuant to the Rehabilitation Act'. (See 29 U.S.C. § 794 (1988).) Plaintiffs, in their complaints, however, attempt to rely on the Back Pay Act, 5 U.S.C. § 5596 (1988), and regulations promulgated thereunder at 29 C.F.R. § 550.801, and following sections, to confer jurisdiction upon this court to award interest on the EEOC awards, pursuant to 28 U.S.C. § 1491 (1988).

The backpay awards on which the plaintiffs seek interest resulted from the retroactive reinstatement of plaintiffs following an administrative determination by the EEOC that plaintiffs had suffered discrimination pursuant to the Rehabilitation Act. The EEOC initially awarded interest to plaintiffs Markey, Lopetrone and Stewart on their backpay awards, but, upon reconsideration, refused to include interest as part of the award. Plaintiffs Collier and Grgich, however, were denied interest on their original backpay awards by the EEOC. Each of the plaintiffs seek relief in this court in the amount of interest allegedly due on the backpay awards ordered by the EEOC. Plaintiffs, Markey, Lopetrone and Stewart, filed a consolidated complaint with this court. Shortly thereafter, plaintiffs Collier and Grgich filed a separate consolidated complaint. After a thorough review of the filings in this case, and after hearing oral argument, the court concludes that it lacks jurisdiction to consider plaintiffs’ claims. Accordingly, the defendant’s motions to dismiss the complaints of plaintiffs Richard A. Markey, John B. Lopetrone, Gary L. Stewart, Garnet R. Collier, and Anton J. Grgich are, hereby, GRANTED.

FACTS

There is no disagreement between the parties regarding the facts of this case. Nor is there any substantial difference in the relevant facts presented by each of the five plaintiffs now before the court. In fact, at the oral argument, plaintiffs’ attorney acknowledged the similarity of the issues in the five cases by introducing himself to the court as “Richard Haggart, on behalf of the plaintiffs in the consolidated cases.”2

Plaintiffs, Richard Markey, John Lopetrone, Gary Stewart, Garnet Collier, and Anton Grgich, applied for federal civilian positions at Elmendorf Air Force Base in Anchorage, Alaska. Plaintiffs submitted their applications for employment as follows: Garnet Collier and Anton Grgich in March, 1984; Richard Markey in Novem[618]*618ber, 1983; and John Lopetrone in August, 1984. The record does not reflect the precise date on which Gary Stewart submitted an application, although the record does indicate that his application was denied in November 1983. The Department of the Air Force had previously identified the positions for which the plaintiffs applied as hazardous noise positions and, therefore, required applicants for these positions to meet certain hearing requirements.3 Although plaintiffs were interviewed and selected for the positions, plaintiffs did not meet those hearing requirements, and the agency refused to hire them.

The plaintiffs each filed administrative complaints with the Air Force, alleging that they had been discriminated against on the basis of a physical handicap (hearing impairment), in violation of section 501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 791, et seq. Following an investigation and a hearing on each complaint, the agency found no discrimination. Plaintiffs, therefore, each initiated timely appeals to the Equal Employment Opportunity Commission (EEOC) from the final decision of the Air Force.

The EEOC reversed the Air Force’s decisions, finding that the agency had discriminated against the plaintiffs based on their handicaps in violation of 29 U.S.C. § 791. Specifically, the EEOC found that each plaintiff met the definition of a qualified handicapped person, 29 C.F.R. §§ 1613.702(a)(2), 1613.702(a)(3) and 1613.702(f), capable of safely performing the duties of the positions for which each had applied without reasonable accommodation. The EEOC ordered the agency to appoint each plaintiff retroactively to the position applied for (plaintiff Markey — Equipment Specialist (Electronics), plaintiff Lopetrone — Carpenter, plaintiff Stewart— Heavy Mobile Equipment Mechanic, plaintiff Collier — Engineering Equipment Operator, and plaintiff Grgich — Engineering Equipment Operator) from the date the plaintiffs would have entered on duty. The EEOC further ordered payment to each plaintiff of backpay and other benefits. In the eases of plaintiffs Markey, Lopetrone and Stewart, the EEOC ordered: “The agency is directed to award each appellant backpay, interest, and other benefits in accordance with 29 C.F.R. § 1613.271.” In the cases of plaintiffs Collier and Grgich, the EEOC Order directed that: “[t]he agency is ORDERED to issue checks to the appellants for the appropriate amount of backpay and other benefits, under pertinent Office of Personnel Management Regulations, ...” The Collier and Grgich Order also stated: “[Reasonable attorneys fees shall be awarded in accordance with 29 C.F.R. 1613.271(d).” The EEOC did not, however, address the issue of interest in the Collier & Grgich Opinion. Following the EEOC’s Order of May 16, 1991, the agency retroactively appointed the plaintiffs to the positions for which they had been selected, plaintiff Markey as of November 29, 1983, plaintiff Lopetrone as of August 29, 1984, plaintiff Stewart as of November 1, 1983, plaintiff Collier as of April 2,1984 and plaintiff Grgich as of May 11, 1984.

Although in its initial disposition of the appeals of John Lopetrone, Richard Mar-key and Gary Stewart, the EEOC awarded interest in addition to backpay, upon reconsideration, the full Commission concluded in its Decision on Reconsideration regarding plaintiffs Markey, Lopetrone and Stewart, that the previous decision, although correct in other respects, was in error regarding the previous EEOC Order to pay interest. On reconsideration, the EEOC wrote:

Citing Library of Congress v. Shaw, 478 U.S. 310 [, 106 S.Ct. 2957, 92 L.Ed.2d 250] (1986), the agency argues that the Commission’s previous decision incorrectly ordered the agency to pay interest on the backpay awards. In 1985, the Commission adopted a policy statement on [619]

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27 Fed. Cl. 615, 2 Am. Disabilities Cas. (BNA) 519, 1993 U.S. Claims LEXIS 264, 61 Empl. Prac. Dec. (CCH) 42,202, 1993 WL 25539, Counsel Stack Legal Research, https://law.counselstack.com/opinion/markey-v-united-states-uscfc-1993.