Oliveira v. United States

11 Cl. Ct. 101, 1986 U.S. Claims LEXIS 786
CourtUnited States Court of Claims
DecidedOctober 10, 1986
DocketNo. 212-85C
StatusPublished
Cited by5 cases

This text of 11 Cl. Ct. 101 (Oliveira v. United States) is published on Counsel Stack Legal Research, covering United States Court of Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Oliveira v. United States, 11 Cl. Ct. 101, 1986 U.S. Claims LEXIS 786 (cc 1986).

Opinion

ORDER ON PLAINTIFF’S MOTION FOR ATTORNEY FEES AND EXPENSES

WHITE, Senior Judge.

This case having been concluded by a settlement, the plaintiff has now filed with the court an application for reimbursement of attorney fees and other expenses under the Back Pay Act, 5 U.S.C. § 5596 (1982), or, alternatively, under the Equal Access to Justice Act, 28 U.S.C. § 2412 (1982 Supp. Ill 1985). The defendant has filed a response in opposition to the application, and the plaintiff has replied to the defendant’s response.

Stipulated Facts

According to the joint stipulation of facts filed by the parties, the plaintiff, Ferdinand Oliveira, worked as a warehouseman at the Homestead Air Force Base (Homestead) in Florida from July 27, 1966, until June 9, 1978.

On September 10, 1976, the plaintiff received from his supervisor, Orris E. Skjervem, a letter of reprimand for insubordination.

On May 21, 1977, Mr. Skjervem suspended the plaintiff for 5 days, again on a charge of insubordination.

On April 14, 1978, Mr. Skjervem proposed to higher authority that the plaintiff be separated from the government service for alleged insubordination. The plaintiff responded to the charge by means of a letter dated May 4, 1978.

On June 2, 1978, the plaintiff was officially removed from his position at Homestead.

On September 27 and 28 of 1978, pursuant to the plaintiff’s request, the Federal Employee Appeals Authority (FEAA) of the former Civil Service Commission held a hearing on the plaintiff’s involuntary separation from the government service. On November 27, 1978, the FEAA affirmed the plaintiff’s removal from his position as a warehouseman at Homestead.

Judicial Proceedings

On February 20, 1980, the plaintiff filed an action against the United States in the United States District Court for the Southern District of Florida. There, the plaintiff alleged that the action of the FEAA in sustaining his separation from the service was arbitrary and capricious, or, alternatively, that his termination was an unwarranted personnel action entitling him to relief under the Back Pay Act. On November 18,1982, the District Court granted the Government’s motion for summary judgment, thereby affirming the agency’s action and dismissing the case. Oliveira v. United States, No. 80-470, slip op. (S.D. Fla., Nov. 18, 1982).

The plaintiff appealed the District Court’s decision to the United States Court of Appeals for the Eleventh Circuit on March 28, 1983. In response to an argument by thé Government that the Eleventh Circuit did not have jurisdiction over the case, that court transferred the appeal to the United States Court of Appeals for the Federal Circuit on June 18, 1984. Oliveira v. United States, 734 F.2d 760, 761 (11th Cir.1984).

In the Federal Circuit, the United States maintained that the District Court acted without jurisdiction in purporting to review the plaintiff’s claim concerning reinstatement and back pay. The Government contended that the Federal Circuit should remand the case to the District Court with instructions for it to vacate its opinion and transfer the case to the United States [103]*103Claims Court. The Federal Circuit did so, while also ordering a trial de novo in the Claims Court on whether the plaintiffs right to associate with and speak for blacks, as well as his right to equal protection of the law, had been violated. Oliveira v. United States, 765 F.2d 155 (Fed. Cir.1985).

The plaintiff filed his complaint in this court on April 25, 1985. In his complaint here, the plaintiff alleged that he was discharged from his job at Homestead in retaliation for his exercise of free speech and free association rights, and he argued that the FEAA’s decision should be set aside as arbitrary and capricious.

On June 2, 1986, the parties filed with this court a stipulation for the entry of judgment in favor of the plaintiff pursuant to their out-of-court settlement. The court thereupon entered judgment for the plaintiff on June 6, 1986.

Claim Under Back Pay Act

The Back Pay Act was amended by section 702 of the Civil Service Reform Act of 1978 (Pub.L. No. 95-454, 92 Stat. 1111, 1216) to permit the recovery of attorney fees (but not other expenses) under the Back Pay Act, 5 U.S.C. § 5596(b)(l)(A)(ii) (1982). The Civil Service Reform Act of 1978, however, contained a “savings provision” (set out as a note under 5 U.S.C. § 1101 (1982)), which states that the amendment to the Back Pay Act permitting the recovery of attorney fees does not apply to any administrative proceeding pending on January 11, 1979, the effective date of the Civil Service Reform Act of 1978.

The initial question to be decided in this case is whether the plaintiffs claim was pending on January 11, 1979.

The plaintiff asserts that he obtained a final decision from the FEAA on November 27, 1978, and, consequently, that he did not have any administrative proceeding pending on January 11, 1979. On that basis, the plaintiff contends that the Back Pay Act, as amended effective January 11, 1979, applies to his case.

The plaintiffs argument, however, must fail because it improperly construes the meaning of “pending,” as used in the Back Pay Act following the amendment of January 11, 1979. Although the plaintiff had received a final administrative decision before January 11, 1979, the administrative decision in his case was still subject to judicial review on January 11, 1979. Indeed, the plaintiff actually sought, and obtained, judicial review after January 11, 1979.

In this respect, the plaintiffs situation is similar to that of the appellant Wilson in the case of Wilson v. Turnage, 791 F.2d 151 (Fed.Cir.1986). The Federal Circuit said (id. at 155) that, as the language of the Back Pay Act, as amended, did not show the intent of Congress concerning situations where final administrative decisions were rendered before January 11, 1979, but those decisions were still subject to judicial review on January 11, 1979, it was felt that the appellate court should be guided by the regulation promulgated by the Merit Systems Protection Board in construing and implementing the “savings provision” enacted by Congress when it amended the Back Pay Act to permit the payment of attorney fees.

That regulation provides as follows:

(b) Administrative proceedings and appeals therefrom. No provision of the Civil Service Reform Act shall be applied by the Board in such a way as to affect any administrative proceeding pending at the effective date of such provision. "Pending” is considered to encompass existing proceedings and appeals before the Board or its predecessor agencies, that were subject to judicial review

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Bluebook (online)
11 Cl. Ct. 101, 1986 U.S. Claims LEXIS 786, Counsel Stack Legal Research, https://law.counselstack.com/opinion/oliveira-v-united-states-cc-1986.