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02/28/86 Arthur J. Zeizel, v. Samuel R. Pierce

February 28, 1986

ARTHUR J. ZEIZEL, APPELLANT

v.

SAMUEL R. PIERCE, SECRETARY, DEPARTMENT OF HOUSING & URBAN DEVELOPMENT, ET AL.



Before WRIGHT and EDWARDS, Circuit Judges, and DAVIS* , Circuit Judge, United States Court of Appeals for the Federal Circuit.

UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT 1986.CDC.55

Appeal from the United States District Court for the District of Columbia (D.D.C. Civil Action No. 83-1840)

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE DAVIS

Opinion for the Court filed by Circuit Judge DAVIS.

DAVIS, Circuit Judge: The District Court for the District of Columbia denied appellant Zeizel's application, under both the Back Pay Act*fn1 and the Equal Access to Justice Act *fn2 , for attorney fees incurred in his successful challenge of a 1974 denial of a within-grade pay increase. We affirm the district court because neither the Back Pay Act as it existed before the effective date of the Civil Reform Act nor the EAJA permit the award of attorney fees in this instance. I.

Arthur J. Zeizel, an Environmental Scientist, GS-15, with the Technology and Environmental Research Division of the Department of Housing and Urban Development , in Washington, D.C., was denied by his agency a within-grade pay increase on August 15, 1974. This denial came about because the agency determined that he was not performing at an acceptable level of competence. Appellant requested the agency to reconsider its competency determination since he was not given 60 days advance notice of inadequate performance. On October 11, 1974 the agency again stated that his performance was not acceptable and, after a personal presentation by appellant to the reconsideration official, affirmed the denial of the within-grade by increase.

Zeizel unsuccessfully moved for reconsideration of the decision and thereafter appealed to the then Federal Employees Appeal Authority . *fn3 On June 25, 1975 the FEAA determined that the denial of the within-grade pay increases was not in compliance with 5 C.F.R. § 531.407 and remanded the case to the agency so that there could be compliance with procedural requirements. *fn4

On September 28, 1976 the agency issued another reconsideration decision upholding appellant's supervisor's prior determinations. Appellant again appealed this decision to the FEAA. The FEAA remanded the action to the agency, finding procedural errors in the processing of the action. On appeal, however, the MSPB (which had succeeded the Civil Service Commission) determined that the remand to the agency was improper and instead remanded the case to the MSPB's Office of Appeals for a decision on the merits. On June 7, 1982 the Board's presiding official reversed the agency's decision, finding that HUD arbitrarily denied the within-grade pay increase.

On September 7, 1982 appellant filed a motion for attorney fees under both the Back Pay Act and the EAJA. The MSPB denied his request, finding that the CSRA was not applicable because appellant's administrative claims were pending on the effective date of that statute. The MSPB held therefore that it would apply the Back Pay Act as it existed prior to its amendment by the CSRA, and at that time the former Act did not authorize an award of attorney fees. The Board also held that attorney fees were not available under the EAJA. The Board reasoned that the agency and appellate administrative proceedings involved "the selection or tenure of an employee," an exception to the EAJA created by 5 U.S.C. § 554, and therefore were not the type of adjudication covered by the EAJA.

Zeizel then filed this pro se suit in the district court seeking fees, again, under both the Back Pay Act and the EAJA. *fn5 The district court granted the Government's motion to dismiss. The court held that appellant's suit for attorney fees was subject to the Savings Clause of the CSRA and therefore applied to Back Pay Act as it existed prior to the effective date of the CSRA to the detriment of appellant. Addressing appellant's claim for fees under the EAJA, the court noted that the EAJA only allows for fees for parties who prevail in an adversary adjudication as defined by 5 U.S.C. § 554. The court pointed out that section 554 excludes from coverage adjudications involving "the selection or tenure of an employee" and concluded that the MSPB -- the administrative agency now charged with interpreting this part of the statute -- had reasonably interpreted the phrase "selection or tenure" to include a denial of a within-grade pay increase. The court therefore denied appellant's request for fees under the EAJA. This appeal followed. II.

Appellant argues first that he is entitled to an award of attorney fees under the Back Pay Act, 5 U.S.C. § 5596 (b)(1) (1982). *fn6 This provision was amended in 1978 by the CSRA to permit an award of reasonable attorney fees. (See 5 U.S.C. § 5596(b)(1)(ii) (supra).) Before 1978, prevailing parties were not entitled to fees.

The 1978 amendments to the Back Pay Act are subject to a Savings Clause which declares in pertinent part:

(b) 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.

5 U.S.C. § 1101 note (1982). The effect of this clause is to limit certain employee's rights under the Back Pay Act to those rights that existed prior to 1978; thus, recovery of attorney fees in suits pending administratively prior to the passage of the CSRA is precluded. As this court explained in ...


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