554 F. 2d 1186 - Fitzgerald v. United States Civil Service Commission

The sole question for review is whether section 14 of the Veterans' Preference Act of 1944, as amended in 1947, 5 U.S.C. § 7701, authorizes the Civil Service Commission to award attorney's fees to a wrongfully discharged federal employee entitled to protection under the Act.1 Appellee, a "veteran preference eligible employee," was terminated from his job with the Air Force. He appealed his discharge to the Civil Service Commission, seeking reinstatement and, inter alia, attorney's fees. Following a lengthy proceeding,2 the Commission found in favor of appellee but concluded that it was not authorized to award attorney's fees.3 Appellee brought suit in the district court challenging the decision regarding attorney's fees. The district court found in favor of appellee, granting his motion for summary judgment. The court concluded that authority to award attorney's fees could be found in the language of section 14 directing the appropriate administrative agency to take "the corrective action that the Commission finally recommends." 407 F.Supp. 380 (D.D.C.1975). We hold that attorney's fees are not awardable under § 14 because that section does not contain the requisite express waiver of sovereign immunity.

There is no mention in § 14 of monetary relief in general, or attorney's fees in particular. Consequently, the argument that § 14 authorizes attorney's fees had to proceed under the more general "corrective action" language. Viewing this language as a "broad grant" of remedial authority,407 F.Supp. at 383, the district court first noted that nothing in the legislative history of the Act indicated that it did not encompass attorney's fees, id. at 383-84.4 Indeed, the two policies underlying the Act making aggrieved veterans whole and providing veterans extra protection in federal employment required that "corrective action" be read broadly. Id. at 386. Secondly, the district court reasoned that since "corrective action" had properly been read to authorize the award of backpay,5 " then Congress must have intended to allow a broad scope for the Commission's corrective action authority," id. at 384, broad enough to allow for attorney's fees.

In essence, the district court determined that, in the absence of contrary legislative history, the general language of § 14 should be construed broadly so that the statutory goals would be fully promoted. Although general remedial statutes running against private defendants are often construed in this manner,6 a combination of factors requires a different result in this case. Not only does appellee seek money damages against the government,7 but the particular recovery requested, attorney's fees, is, under our longstanding legal tradition, ordinarily not awarded to a prevailing party.

The United States, as sovereign, "is immune from suit save as it consents to be sued . . . and the terms of its consent to be sued in any court define that court's jurisdiction to entertain the suit." United States v. Sherwood, 312 U.S. 584, 586, 61 S.Ct. 767, 769, 85 L.Ed. 1058 (1941). In a case decided subsequent to the issuance of the district court opinion, United States v. Testan, 424 U.S. 392, 96 S.Ct. 948, 47 L.Ed.2d 114 (1976), the Supreme Court held that "a waiver of the traditional sovereign immunity 'cannot be implied but must be unequivocally expressed.' " Id. at 399, 96 S.Ct. at 954. In applying that principle, the Court held that, in the absence of an express waiver, backpay could not be awarded under an act the stated purpose of which was "to provide a plan for classification of positions whereby . . . the principle of equal pay for substantially equal work will be followed." Id. at 399, 96 S.Ct. at 954, quoting 5 U.S.C. § 5101.

Testan casts considerable doubt on the district court's decision. On its face, § 14 does not appear to constitute a general waiver of sovereign immunity.8 However, even if the phrase "corrective action" can be construed to authorize award of backpay, it does not follow that attorney's fees are therefore awardable. "In the United States, the prevailing litigant is ordinarily not entitled to collect a reasonable attorneys' fee from the loser." Alyeska Pipeline Co. v. Wilderness Society, 421 U.S. 240, 260, 95 S.Ct. 1612, 1616, 44 L.Ed.2d 141 (1975). The import of Alyeska and Testan, we believe, is that a general waiver of sovereign immunity should not be construed to extend to attorney's fees unless Congress has clearly indicated that it should. The statutory provision generally authorizing recovery of costs against the United States or any agency thereof, 28 U.S.C. § 2412 (1970), specifically excludes "the fees and expenses of attorneys" from awards permissible under that section. See 421 U.S. at 246, 265-68 & n.42, 95 S.Ct. at 1626 (awards of attorneys' fees against the United States, "if allowable at all, must be expressly provided for by statute"). Since the only support for finding a waiver of sovereign immunity with respect to attorney's fees is implied, rather than express, we hold that § 14 of the Veterans' Preference Act does not authorize the award of such fees to a prevailing complainant.9CONCLUSION

To deny attorney's fees under § 14, the district court feared, "would make a mockery and a sham of the mandate of Congress, and in cases like the present one would make those rights meaningless." 407 F.Supp. at 386-87. Unfortunately this may be correct. However, since Congress has not expressly waived the government's immunity, appellee's redress must come from the Congress, not the courts.

Reversed.