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12/28/84 Robert M. T. Wilson, v. Thomas Turnage

December 28, 1984

ROBERT M. T. WILSON, APPELLANT

v.

THOMAS TURNAGE, ACTING DIRECTOR, SELECTIVE SERVICE SYSTEM 1984.CDC.336 DATE DECIDED: DECEMBER 28, 1984



UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

Appeal from the United States District Court for the District of Columbia (D.C. Civil Action No. 79-0971).

APPELLATE PANEL:

Tamm and Edwards, Circuit Judges, and MacKinnon, Senior Circuit Judge. Opinion for the court filed by Circuit Judge Tamm.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE TAMM

Appellant Robert M. T. Wilson challenges the district court's denial of attorney's fees under the Back Pay Act, 5 U.S.C. § 5596 (1982). In a memorandum opinion and order issued October 26, 1983, the district court held that the Savings Clause of the Civil Service Reform Act of 1978 (Reform Act) precluded an award of fees. Although the Reform Act amended the Back Pay Act to provide for awards of attorney's fees in cases of unjustified personnel actions taken against federal employees, the Savings Clause makes the new law inappliable to "administrative proceedings" pending as of January 11, 1979. Wilson contends that the district court erred in its finding that a November 28, 1978 letter from appellee Selective Service System directing him to undergo a psychiatric examination and placing him on sick leave status pending the results constituted an "administrative proceeding" for purposes of the Savings Clause. Because we find that the November 28 directive constituted a "personnel action" and not an "administrative proceeding," we reverse the decision of the district court and remand for a determination of the amount of attorney's fees owed appellant pursuant to 5 U.S.C. 5596(b)(1)(ii). I. BACKGROUND

Appellant Robert M. T. Wilson worked for the Selective Service System as an Operations Evaluation Specialist responsible for analyzing the agency's ability to mobilize in the event of a national emergency. In the course of his work, Wilson became concerned that his agency was unable to meet the statutory preparedness requirements prescribed by section 10(h) of the Military Selective Service Act, 50 U.S.C. App. 460(h) (1982). After his superiors ignored his attempts to bring this problem to their attention, Wilson in November 1978 delivered to the White House Secret Service detail a letter and supporting documents criticizing the agency's lack of military preparedness. Wilson requested that the materials be given to President Carter, but the Secret Service instead returned the letter and documents to the Selective Service.

On November 28, 1978, the Selective Service sent Wilson a letter directing him to submit to a psychiatric fitness-for-duty examination and placing him on sick leave status pending receipt of the psychiatric report. *fn1 The letter stated that the agency was requiring the examination "based upon a study of your recent communications addressed to the President." Joint Appendix at 32.

In February 1979, Wilson filed an administrative appeal with the Merit Systems Protection Board (the Board or MSPB). The Board, however, held that it had no jurisdiction to hear the appeal because Wilson's leave was not a suspension or action imposed for disciplinary reasons.

On April 4, 1979, Wilson sued the Selective Service in the district court alleging a violation of his First Amendment rights and seeking a temporary restraining order, injunctive relief, and restoration to his former position with full benefits. Following a series of actions in both the district court and this court, *fn2 as well as an investigation by the Office of Special Counsel, *fn3 the parties settled the dispute in December 1979. The settlement reinstated Wilson with back pay and full benefits but reserved the issue of his entitlement to attorney's fees.

On June 23, 1981, Wilson filed a motion with the district court for attorney's fees and costs under the Back Pay Act. Following a report and recommendation by a magistrate, the district court denied Wilson's request and held that, because an administrative proceedings was pending as of the November 28, 1978 letter, an award of attorney's fees under the Back Pay Act was barred by application of the Savings Clause. J.A. at 6. Wilson appeals, arguing that "administrative proceeding" must be distinguished from "personnel action" as those terms are used in the Reform Act. Wilson contends that because the November 28 letter constituted a personnel action and no judicial or administrative actions were instituted prior to January 11, 1979 the Savings Clause does not apply to bar an award of fees. II. ARGUMENT

The primary issue in this appeal is whether the November 1978 letter from the Selective Service System directing Wilson to undergo psychiatric evaluation and placing him on leave was an "administrative proceeding" for purposes of the Savings Clause of the Civil Service Reform Act of 1978.

The Back Pay Act, 5 U.S.C. § 5596, is a waiver of the government's sovereign immunity for relief in cases of improper personnel actions taken against federal employees. *fn4 In 1978, as part of the Civil Service Reform Act, Congress amended the Back Pay Act to include awards of "reasonable attorney fees related to the personnel action." 5 U.S.C. 5596(b)(1)(ii) (1982).

The Reform Act became effective on January 11, 1979, but it included a Savings Clause which provides that

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 ...


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