On petition for writ of certiorari to the United States Court of
Appeals for the Federal Circuit.
The petition for a writ of certiorari is denied.
Memorandum of Justice STEVENS respecting the denial of the
petition for writ of certiorari.
There are times when it is important to emphasize the fact that
an order denying a petition for a writ of certiorari is not a
ruling on the merits of any question presented by the petition. See
Singleton v. Commissioner,
439 U.S.
940, 942, 337 (1978) ( STEVENS, J., respecting the denial of
certiorari). In my opinion, this is such an occasion.
Justice O'CONNOR, with whom Justice SCALIA and Justice KENNEDY
join, dissenting.
In this case, the Court of Appeals has misread a statute
designed to protect the rights of a class of federal workers and
misapplied our decision in United States v. Testan,
424 U.S. 392d 114 (1976).
The result is a jurisdictional ruling which even respondent here,
the United States, does not defend. The Solicitor General has
informed this Court that the United States views the jurisdictional
holding of the Court of Appeals as plainly wrong and asks that its
decision be vacated and remanded. See Brief for United States 6- 7.
Because the error is plain, and because it carries the clear
potential of compounding itself in the Back Pay Act jurisprudence
of the Court of Appeals for the Federal Circuit, I would grant the
petition and summarily reverse the judgment below.
Petitioner, a former member of the United States Secret Service
Uniformed Division (USSSUD), was involved in a motorcycle accident
while allegedly responding to a call for relief at 1310 L Street,
N.W., in Washington, D.C., which is the headquarters of the Secret
Service. As he and a fellow officer were passing through a private
alley on motorcycles, an automobile exited from
Page 490 U.S.
1054 , 1055
an underground garage and struck petitioner's motorcycle,
pinning him underneath his vehicle. Petitioner received immediate
medical care, and later underwent corrective surgery for damage to
his left knee. After the accident, in order to receive paid
administrative leave, petitioner requested a determination that the
accident occurred in the performance of his duties. Such a
determination was critical to petitioner's rights under 5 U.S.C.
6324(a), which provides: "Sick leave may not be charged to the
account of a member of the Metropolitan Police force or the Fire
Department of the District of Columbia, the United States Park
Police force, or the Executive Protective Service force for an
absence due to injury or illness resulting from the performance of
duty." Pursuant to agency regulations, an investigation and
subsequent review by the Administrative Review Board were
conducted. The agency determined that under its regulations
petitioner's injury did not occur in "the performance of duty" due
to the fact that he was in violation of local traffic regulations
and USSSUD regulations at the time of the accident. Petitioner was
thus denied administrative leave for the period of his
convalescence, and after his sick leave was exhausted, he was
placed on leave without pay.
Petitioner subsequently brought this action in the United States
Claims Court, seeking a determination that he was erroneously
denied paid administrative leave by the agency and was thus
entitled to an award of backpay for the period in question.
Petitioner premised the Claims Court's jurisdiction on that portion
of the Tucker Act now codified at 28 U.S.C. 1491(a)(1), which
provides generally that the United States Claims Court "shall have
jurisdiction to render judgment upon any claim against the United
States founded . . . upon . . . any Act of Congress." The "Act of
Congress" upon which petitioner relied was the Back Pay Act, 5
U.S.C. 5596, which provides in pertinent part:
"(b)(1) An employee of an agency who . . . 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 . . . [to] . . .
"(i) an amount equal to all or any part of the pay, allowances
or differentials, as applicable, which the employee nor-
Page 490 U.S.
1054 , 1056
mally would have earned or received dur ng the period if the
personnel action had not occurred."
In essence, petitioner claimed that 5 U.S.C. 6324(a) was an "
applicable law" within the meaning of the Back Pay Act and that the
allegedly erroneous denial of his request for paid administrative
leave was an "unwarranted personnel action" which entitled him to
an award of lost wages against the United States. The Claims Court
ruled against petitioner on the merits, finding that the agency's
decision that petitioner was not injured in the performance of his
duties was supported by substantial evidence and not legally
arbitrary or capricious. 12 Cl.Ct. 744 (1987).
On appeal, the Court of Appeals for the Federal Circuit did not
reach the merits of petitioner's claims.
857
F.2d 763 (1988). Instead that court ruled that the Claims Court
lacked jurisdiction over this action. Relying on our decision in
United States v. Testan, supra, the Court of Appeals held that
"consent to suit against the United States for back pay must be
'unequivocally expressed' and . . . 5 U.S.C. 6324 does not express
such consent." 857 F.2d, at 764. The Court of Appeals also relied
on its earlier decision in Hambsch v. United States,
848 F.2d
1228 ( 1988), where it stated: "[T]he parties often speak of
section 6324 as if it requires that police officers be placed on
administrative leave if injured in the performance of duty, yet the
statute doesn't say that. It says they must not be placed on sick
leave. This implication from a negative may indicate an intent to
create liability for back pay for violation, but it is hard to say
that it does so 'unequivocally.' " Id., at 1231. The Court of
Appeals vacated the decision below and remanded to the Claims Court
with instructions to dismiss petitioner's complaint for want of
jurisdiction. 857 F.2d, at 765.
In United States v. Testan, we dealt with a claim by Government
employees that they had erroneously been classified in a pay grade
lower than those who did substantially identical work in the same
agency. We held that neither the Classification Act, 5 U.S.C. 5101
et seq., nor the Back Pay Act could trigger the Tucker Act
jurisdiction of the former Court of Claims in the circumstances of
that case. We noted that "the Back Pay Act, as its words so clearly
indicate, was intended to grant a monetary cause of action only to
those who were subjected to a reduction in their duly appointed
emoluments or position." 424 U.S., at 407. The
Page 490 U.S.
1054 , 1057
plaintiffs in Testan were not such employees because they were
not claiming a right "to receive only the salary of the position to
which [ they were] appointed"; rather they sought reclassification
into a new position and pay grade. Thus Testan makes clear, and our
subsequent cases have reaffirmed, that the Back Pay Act itself is
an explicit consent to suit by the United States as to a claim by a
federal employee that the pay or emoluments of his or her position
have been wrongfully withheld in violation of an "applicable law,
rule, regulation, or collective bargaining agreement." See, e.g.,
United States v. Hopkins,
427 U.S.
123, 128, 2511 (1976) ("The Back Pay Act is the means by which
appointed employees subjected to unjustified personnel action are
given a cause of action against the United States"); accord, Bush
v. Lucas,
462 U.S.
367, 385, n. 25, 2415, n. 25, 76 L. Ed. 2d 648 (1983); Bowen v.
Massachusetts,
487
U.S. 879, 905-906, n. 42, 2738, n. 42 (1988). It follows that
the Court of Appeals erred in searching for an explicit waiver of
immunity from suit in 6324; that explicit waiver is found in the
Back Pay Act itself. The Court of Appeals' interpretation of Testan
would render the Back Pay Act a nullity, for rarely if ever will an
agency personnel regulation or collective bargaining agreement
contain an express waiver of the sovereign immunity of the United
States. The p oper inquiry is simply whether the employee alleges
the violation of a statute, rule, or provision of a collective
bargaining agreement which has resulted in the unlawful withholding
of compensation to which he or she would otherwise be entitled.
There is little doubt that the violation of 5 U.S.C. 6324
alleged by petitioner here is exactly the type of "unwarranted
personnel action" addressed by the Back Pay Act. As the Claims
Court put it: "In 5 U.S.C. 6324, Congress established a statutory
right to administrative leave rather than sick leave to members of
the USSSUD where an absence is due to an injury or illness
resulting from the performance of duty." 12 Cl.Ct., at 749. Section
6324 appears in Subchapter 2 of Chapter 63 of Title 5 which is
entitled "Other Paid Leave" and stands in contradistinction to
Subchapter 1 of Chapter 63 which covers "Annual and Sick Leave."
Moreover, the legislative history of 6324, which was originally
enacted in 1964, indicates that Congress intended to prohibit the
taxing of sick leave against USSSUD employees injured in the
performance of their duties in order to make clear their
entitlement to paid administrative leave. Congress expressed
concern that such
Page 490 U.S.
1054 , 1058
employees were often required to use annual leave or leave
without pay for nonwork-related illnesses because they were
obligated to expend their sick leave on job-related injuries. See
H.R.Rep. No. 1220, 88th Cong., 2d Sess ., 1 (1964). Indeed, the
Secretary of the Treasury, who is charged with promulgating
regulations implementing 6324, understands that section to create
an entitlement to administrative paid leave where it is determined
that the injury occurred in the performance of the officer's
duties. See USSSUD Manual, chs. 2.7.22 and 2.7.23. Further, the
District of Columbia Court of Appeals, which has had occasion to
interpret 6324 as it applies to members of the District of Columbia
Police and Fire Departments, likewise understands that section to
require that employees injured in the performance of their duties
be placed on administrative paid leave. See Brown v. Jefferson,
451 A.2d 74, 75 (1982). The Court of Appeals' contrary
interpretation of 6324 leads to incongruous results. It imputes to
Congress an intent to deny to employees injured in the performance
of their duties, and only such employees, the right to take sick
leave. Thus, an employee injured at home would be entitled to
expend available sick leave, while an employee injured in the
performance of his or her duties would be prohibited by statute
from taking such leave and thus would have to expend annual leave
or go on leave without pay.
In my view, the jurisdictional holding of the Court of Appeals
is quite clearly wrong, and as the Solicitor General points out,
this jurisdictional error will preclude review in a rather large
class of cases falling within its scope. Brief for United States 7.
Moreover, the Court of Appeals' misinterpretation of our decision
in Testan threatens to do continuing damage as that court searches
for explicit waivers of the sovereign immunity of the United States
in agency personnel rules and collective bargaining agreements. For
these reasons, I would reverse the judgment of the Court of Appeals
and remand this case for further proceedings not inconsistent with
the principles enunciated above. In this regard, I note that the
Court of Appeals made passing reference to the possible
applicability of our decision in United States v. Fausto,
484 U.S. 439 (1988), to
petitioner's claims. 857 F.2d, at 764. Because the Court of Appeals
did not rest its judgment on that ground, and because the Solicitor
General explicitly disclaims any reliance on Fausto in this Court,
see Brief for United States 4, n. 6, I express no opinion on this
issue.
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