Erickson v. United States Postal Service , 759 F.3d 1341 ( 2014 )

United States Court of Appeals
for the Federal Circuit
______________________
RICHARD ERICKSON,
Petitioner,
v.
UNITED STATES POSTAL SERVICE,
Respondent.
______________________
2008-3216, 2010-3096
______________________
Petitions for review of the Merit Systems Protection
Board in Nos. AT3443070016-1-2 and AT3443070016-M-
1.
______________________
ON MOTION
______________________
MATTHEW D. ESTES, Tully Rinckey PLLC of Washing-
ton, DC, filed an application for attorney’s fees for peti-
tioner.
TARA K. HOGAN Senior Trial Counsel, Commercial
Litigation Branch, Civil Division, United States Depart-
ment of Justice, of Washington, DC, filed a response to
the petition for respondent. With her on the response
were STUART F. DELERY, Assistant Attorney General,
BRYANT G. SNEE, Acting Director, and FRANKLIN E.
WHITE, Assistant Director.
______________________
2 ERICKSON V. USPS
Before BRYSON and LINN, Circuit Judges. *
BRYSON, Circuit Judge.
The petitioner in this case, Richard Erickson, has filed
an application for attorney fees in connection with his two
appeals to this court. In his application, he sets forth four
grounds for the recovery of attorney fees and expenses.
We hold that none of the four grounds provides a legal
basis for Mr. Erickson to receive attorney fees in this case,
and we therefore deny the application.
I
Mr. Erickson, a U.S. Postal Service employee from
1988 to 2000, was a member of the Army National Guard
Reserve throughout that period. During the 12 years of
his employment, he was absent from his Postal Service
position for lengthy periods of time while he was on active
duty with the National Guard. Between 1991 and 1995
he was absent for a total of more than 22 months, and
between 1996 and 2000, he worked at the Postal Service
for only four days. In January 2000, during one of Mr.
Erickson’s periods of active duty, the Postal Service
inquired whether he intended to return to his Postal
Service job. Mr. Erickson replied that he would not report
back to work with the agency until he completed his
current tour of duty in September 2001. He stated at that
time that he preferred military service to working for the
Postal Service. Shortly thereafter, the Postal Service
removed him for excessive use of military leave. Erickson
v. U.S. Postal Serv. (Erickson I), 571 F.3d 1364, 1366-67
(Fed. Cir. 2009).
* Randall R. Rader, who retired from the position of
Circuit Judge on June 30, 2014, was a member of the
panel but did not participate in this decision.
ERICKSON V. USPS 3
Following his removal from the Postal Service, Mr.
Erickson re-enlisted with the National Guard. He re-
mained on active military duty until December 31, 2005.
In September 2006, he filed an appeal with the Merit
Systems Protection Board alleging that the Postal Service
had violated his rights under the Uniformed Services
Employment and Reemployment Rights Act of 1994
(“USERRA”) by removing him from his position based on
his military service. The Board rejected his claim under
USERRA’s reemployment rights provision, 38 U.S.C.
§ 4312, holding that he had not made a timely request for
reemployment with the agency. The Board also rejected
his claim under USERRA’s antidiscrimination provision,
38 U.S.C. § 4311, holding that Mr. Erickson’s military
service was not a motivating factor in the agency’s deci-
sion to remove him. The Board also held that Mr. Erick-
son had forfeited his reemployment rights because at the
time of his appeal his cumulative absence from the agency
exceeded the five-year limit set by USERRA. Erickson I,
571 F.3d at 1367.
On Mr. Erickson’s appeal, this court affirmed the
Board’s decision with respect to his reemployment claim,
but reversed with respect to his discrimination claim. As
to his discrimination claim, the court held that the evi-
dence was clear that Mr. Erickson’s removal was at-
tributable to his military service and that at the time of
his removal he had not been absent from his position with
the Postal Service for a total of five years. The court
remanded the case to the Board to resolve the remaining
question whether Mr. Erickson had waived his rights
under USERRA by abandoning his civilian career in favor
of a career in the military. Erickson I, 571 F.3d at 1367-
72.
On remand, the Board found that Mr. Erickson had
waived his USERRA rights by abandoning his civilian
career. Mr. Erickson again appealed to this court, argu-
ing that the Board’s findings in that regard were not
4 ERICKSON V. USPS
supported by substantial evidence. This court agreed
with Mr. Erickson that the Board’s findings were not
supported by substantial evidence. Accordingly, the court
remanded the case to the Board for further proceedings on
Mr. Erickson’s claim. Erickson v. U.S. Postal Serv. (Er-
ickson II), 636 F.3d 1353 (Fed. Cir. 2011).
In the second remand proceeding, the Board ruled in
favor of Mr. Erickson on his discrimination claim. It
granted him reinstatement with back wages and benefits
as of the date of his removal. Mr. Erickson has now filed
an application here seeking fees for his attorneys’ work in
the two appeals he took to this court.
II
In support of his application, Mr. Erickson makes four
arguments. First, he contends that the Merit Systems
Protection Board is authorized to grant fees for work in
this court under USERRA’s attorney fee statute, 38
U.S.C. § 4324(c)(4). Second, he argues that USERRA
authorizes this court to grant attorney fees for work done
on appeal, although there is no specific statute that
contains such authorization. Third, he argues that he is
entitled to an attorney fee award under the Equal Access
to Justice Act (“EAJA”), 28 U.S.C. § 2412(d). Fourth, he
seeks an attorney fee award under the attorney fee provi-
sion of the Back Pay Act, 5 U.S.C. § 5596(b)(1)(A)(ii). We
conclude that none of the four grounds on which Mr.
Erickson relies provides a basis for a fee award for work
done in this court.
A. The Merit Systems Protection Board Is
Not Authorized to Award Fees Incurred Dur-
ing Judicial Review Under USERRA
Mr. Erickson’s first argument is that the Merit Sys-
tems Protection Board has statutory authority to make a
comprehensive fee award under USERRA, which would
ERICKSON V. USPS 5
include not only fees for work done before the Board, but
also fees for work done before this court.
The statute on which Mr. Erickson relies, 38 U.S.C.
§ 4324(c)(4), authorizes the Board, in its discretion, to
award attorney fees to a successful USERRA claimant.
Although the statutory language does not expressly rule
out a fee award for work done before a reviewing court,
the focus of the statute is on work done before the Board.
Thus, the statute provides that a fee award is authorized
only if “the Board determines as a result of a hearing or
adjudication conducted pursuant to a complaint submit-
ted by a person directly to the Board . . . that such person
is entitled to an order” requiring compliance or compensa-
tion. 38 U.S.C. § 4324(c)(4).
Interpreting the USERRA fee statute as not giving
the Board authority to grant fee applications for work
done before this court is consistent with a longstanding
line of cases in which this court has held that the Board is
not authorized to grant an award of fees for work done on
appeal from a Board order. See Gallo v. Dep’t of Transp.,
725 F.3d 1306, 1309 (Fed. Cir. 2013) (“[T]his court is the
appropriate forum in which to request attorney fees
incurred in proceedings before this court.”); Ramos v.
Dep’t of Justice, 552 F.3d 1356, 1359-60 (Fed. Cir. 2009)
(the Board is not authorized under the Back Pay Act to
enter an award for work done before the court of appeals);
Phillips v. Gen. Servs. Admin., 924 F.2d 1577, 1581 (Fed.
Cir. 1991) (same); Covington v. Dep’t of Health and Hu-
man Servs., 818 F.2d 838, 840 (Fed. Cir. 1987) (the Board
lacks authority to award attorney fees for services ren-
dered in connection with judicial review); Gavette v. Office
of Pers. Mgmt., 808 F.2d 1456, 1468 (Fed. Cir. 1986) (en
banc) (EAJA request for work done on appeal must be
directed to the court of appeals).
Mr. Erickson argues that the cited cases do not speak
to attorney fees under USERRA and that this court is
6 ERICKSON V. USPS
therefore free to depart from its precedent interpreting
the fee provisions of other statutory schemes. The reason-
ing of those cited cases, however, did not depend on the
details of the particular statutory schemes. Mr. Erickson
does not provide a convincing argument as to why
USERRA is different. Instead, he states only that a rule
that forbids the Board from awarding fees for judicial
review “would conflict with a plain reading of [USERRA],
which authorizes ‘the Board’ to award fees” and would
“unduly restrict the broad equitable powers afforded a
court to vindicate veterans rights, and the liberal con-
struction given to USERRA for the benefit of those who
. . . left private life to serve their country.”
Such broad policy generalizations cannot make up for
the absence of statutory authority or override the applica-
ble case law. While statutory language unambiguously
granting the Board authority to award fees for work done
on appeal would, of course, trump prior precedents to the
contrary, there is no such unambiguous language in the
USERRA fee statute. In fact, as noted, the language of
the statute suggests the contrary.
The absence of clear statutory authority to award fees
for work on appeal is particularly telling in light of the
fact that such a statutory authorization for a fee award
against the government would constitute a waiver of
sovereign immunity. See Ruckelshaus v. Sierra Club, 463
U.S. 680, 685 (1983) (“Except to the extent it has waived
its immunity, the Government is immune from claims for
attorney’s fees.”). A waiver of sovereign immunity “must
be ‘unequivocally expressed’ in statutory text,” and “[a]ny
ambiguities in the statutory language are to be construed
in favor of immunity.” FAA v. Cooper, 132 S. Ct. 1441,
1448 (2012). Ambiguity exists “if there is a plausible
interpretation of the statute that would not authorize
money damages against the government.” Id. It is far
from clear that section 4324(c)(4) authorizes the Board to
award attorney fees for work done in the course of judicial
ERICKSON V. USPS 7
review of Board decisions. We therefore follow our prior
precedents in analogous contexts and hold that the Board
lacks statutory authority to grant an award for fees
incurred in Mr. Erickson’s appeals to this court.
B. USSERA Does Not Authorize This Court
to Grant Attorney Fees
Mr. Erickson next argues that if the Board lacks au-
thority under USERRA to grant his fee request, this court
should grant the award pursuant to USERRA because
USERRA is to be construed liberally and because “veter-
ans’ statutes are to be resolved” in favor of veterans. Mr.
Erickson admits that his “interpretation arguably con-
flicts with a purely literal reading of [38 U.S.C.] section
4324(c)(4)’s language that ‘the Board’ is authorized to
award fees.” He argues, however, that it would be “un-
tenable” for the court to interpret the statute in such a
way that provides “no avenue for a veteran to recover
legal fees at the appellate level.”
The problem with Mr. Erickson’s argument is that
this court is not authorized to award attorney fees when it
lacks statutory authorization to do so. See Fed. Cir. R.
47.7; Gallo v. Dep’t of Transp., 725 F.3d 1306, 1308 (Fed.
Cir. 2013) (“Under Rule 47.7, this court must itself be
authorized by law to award attorney fees.”). Further-
more, “this court does not derive its authority to award
attorney fees from the Board’s authority to do so.” Gallo,
725 F.3d at 1309; see also id. at 1308-09 (“[M]erely be-
cause this court is authorized to review a tribunal that is
statutorily authorized to award attorney fees, does not
mean that this court itself is authorized by that same
statute to award attorney fees in the first instance. . . .
For example, the Board in certain circumstances may
award attorney fees for work before it when attorney fees
are not available under the same statute for work done
before this court.”). Instead, there must be an independ-
ent statutory authorization for the court to award fees.
8 ERICKSON V. USPS
Id. at 1309. Because no such independent statutory
authorization exists under USERRA, the court cannot
award attorney fees under USERRA in this case.
C. Mr. Erickson Is Not Entitled to an Award
of Attorney Fees Under EAJA
Mr. Erickson next contends that he is entitled to a fee
award under EAJA. His application for EAJA fees, how-
ever, is untimely and must be denied for that reason.
A petition for EAJA fees must be filed within 30 days
of the “final judgment in the action.” 28 U.S.C.
§ 2412(d)(1)(B). In a case in which the court of appeals
remands to an agency due to agency error, without retain-
ing jurisdiction over the case, the party that sought the
remand is deemed to be the “prevailing party,” and the
30-day EAJA clock “begins to run with the remand order
itself.” Former Emps. of Motorola Ceramic Prods. v.
United States, 336 F.3d 1360, 1366 (Fed. Cir. 2003); see
also Shalala v. Schaefer, 509 U.S. 292 (1993); Ward v.
U.S. Postal Serv., 672 F.3d 1294, 1299 (Fed. Cir. 2012);
Gurley v. Peake, 528 F.3d 1322, 1326-27 (Fed. Cir. 2008).
Mr. Erickson relies on Covington v. Department of
Health and Human Services, 818 F.2d 838 (Fed. Cir.
1987), where this court granted an application for attor-
ney fees after a remand to the Board resulted in a suc-
cessful outcome for the petitioner. Covington, however,
was a 1987 case that was decided prior to Former Em-
ployees and the Supreme Court cases that Former Em-
ployees relied on in fashioning the rule that the EAJA 30-
day clock starts to run at the time of the remand (assum-
ing the remand is due to an error in the agency and the
court of appeals does not retain jurisdiction). Therefore,
Covington is no longer good law for the purpose of deter-
mining when the clock begins to run on an EAJA fee
application.
ERICKSON V. USPS 9
Mr. Erickson’s first appeal was remanded because the
Board had not addressed whether he had waived his
USERRA rights by abandoning his civilian career in favor
of a military career, which was the ground relied on by
the administrative judge who initially rejected Mr. Erick-
son’s USERRA claim. Erickson I, 571 F.3d at 1372. The
Board had instead relied on the ground that military
service was not the motivating factor behind the Postal
Service’s removal of Mr. Erickson from his position in
2000. According to the Board, the Postal Service was
motivated merely by his absence, without regard for the
reason for his absence. This court rejected the argument
that terminating an employee because of his absence due
to military service was different from terminating him
because of his military service, and it remanded the case
to the Board to consider whether Mr. Erickson had aban-
doned his civilian career, as the administrative judge had
determined. Id. at 1372.
Mr. Erickson’s second appeal was remanded because
the court found that the Board’s determination that he
had abandoned his civilian career prior to his removal
from the Postal Service in 2000 was not supported by
substantial evidence. Erickson II, 636 F.3d at 1359.
There is no need to decide whether the remand in Er-
ickson I was the result of Board error—thereby conveying
prevailing-party status on Mr. Erickson and starting a 30-
day EAJA clock—because the remand in Erickson II was
clearly the result of Board error. Mr. Erickson was there-
fore a prevailing party when the remand order issued in
Erickson II. For that reason, the 30-day EAJA clock
began to run in 2011. That clock has long since expired.
Mr. Erickson’s request for fees under EAJA is therefore
untimely.
Even if Mr. Erickson’s EAJA application were timely,
it would be without merit. EAJA authorizes a court to
award fees to a litigant in a case against the government
10 ERICKSON V. USPS
if the government’s position in the case was not “substan-
tially justified.” 28 U.S.C. § 2412(d)(1)(A). In Mr. Erick-
son’s case, the government prevailed before the Board in
the proceedings that led to both of the appeals to this
court. The cases on appeal were close, and even though
Mr. Erickson prevailed on both occasions, we are not
prepared to say that the government’s position in defend-
ing the Board’s decisions was not “substantially justified.”
Mr. Erickson would therefore not be entitled to a fee
award under EAJA even if he had filed his EAJA applica-
tions on time.
D. The Attorney Fee Provision of the Back
Pay Act Is Not Applicable to Preference Eli-
gible Postal Employees
Finally, Mr. Erickson argues that the court can and
should award attorney fees under the fee provision of the
Back Pay Act, 5 U.S.C. § 5596(b)(1)(A)(ii).
In general, the Back Pay Act has been interpreted as
authorizing the courts of appeals to award attorney fees
incurred on appeal. Gallo v. Dep’t of Transp., 725 F.3d
1306, 1309-10 (Fed. Cir. 2013); Olsen v. Dep’t of Com-
merce, 735 F.2d 558, 563 (Fed. Cir. 1984); Hoska v. U.S.
Dep’t of the Army, 694 F.2d 270, 273-74 (D.C. Cir. 1982).
The government argues, however, that the Back Pay Act
does not apply to the Postal Service, and that the provi-
sions of the Back Pay Act (including the attorney fee
provision) do not apply to Postal Service employees. Mr.
Erickson argues that the Back Pay Act in general, and the
attorney fee provision in particular, apply to preference
eligible employees in the Postal Service (i.e., certain
veterans, also referred to as “preference eligibles”), even
though those provisions do not apply to Postal Service
employees generally.
The Federal Circuit has not resolved the question
whether, or to what extent, the Back Pay Act applies to
preference eligible employees in the Postal Service. See
ERICKSON V. USPS 11
Romero v. United States, 38 F.3d 1204, 1212 (Fed. Cir.
1994) (not deciding the issue whether the Back Pay Act
applies to postal workers due to sparse record and mini-
mal argument); United States v. Connolly, 716 F.2d 882,
887 (Fed. Cir. 1983) (declining to decide whether the Back
Pay Act applies to Postal Service employees); see also
White v. Bloomberg, 501 F.2d 1379, 1381 n.2 (4th Cir.
1974) (“[T]he Back Pay Act is no longer statutorily appli-
cable to the Postal Service.”); Kellus v. United States, 13
Cl. Ct. 538, 542 n.4 (1987) (stating that the Fourth Circuit
has held that the Back Pay Act does not apply to the
Postal Service and that even though the “Federal Circuit
pretermitted deciding the question as to whether the
Back Pay Act is applicable to Postal Service employees . . .
it seems clear that the Back Pay Act” does not authorize
suit in the Claims Court). 1
1 Without regard to whether the Back Pay Act ap-
plies to them, Postal Service employees are entitled to
back pay when adverse personnel actions are reversed
because the Postal Service’s Employee and Labor Rela-
tions Manual provides for back pay in those circumstanc-
es. See Rivas v. U.S. Postal Serv., 72 M.S.P.R. 383, 391-
92 (1996). To be sure, some recent Federal Circuit deci-
sions have applied the Back Pay Act to Postal Service
employees. See Lary v. U.S. Postal Serv., 493 F.3d 1355
(Fed. Cir. 2007); Lary v. U.S. Postal Serv., 472 F.3d 1363
(Fed. Cir. 2006). Those decisions, however, have not
addressed the question whether the Back Pay Act applies
to Postal Service employees, and in particular they have
not addressed the question whether the attorney fee
provision of the Back Pay Act applies to preference eligi-
bles in the Postal Service. In fact, it does not appear that
the Back Pay Act was mentioned in the briefs of either
party in either of the Lary cases.
12 ERICKSON V. USPS
After careful consideration, we conclude that, even if
the back pay provision of the Back Pay Act applies to
preference eligible employees in the Postal Service—an
issue we need not reach to decide this case—the attorney
fee provision of that Act does not.
The analysis of this issue begins with 39 U.S.C. § 410.
That statute provides that “no Federal law dealing with
public or Federal . . . employees . . . shall apply to the
exercise of the powers of the Postal Service” unless the
law is enumerated in subsection (b) of that code provision.
The Back Pay Act is not enumerated in 39 U.S.C.
§ 410(b). That Act therefore does not apply generally to
the Postal Service.
In addition, the Back Pay Act by its own terms does
not apply to the Postal Service because the Postal Service
is not an “executive agency,” the term that is used to
define the scope of the Act’s coverage. See 5 U.S.C.
§ 5596(a). Instead, the Postal Service is defined by stat-
ute as an “independent establishment of the executive
branch.” 39 U.S.C. § 201. Although “executive agency” is
defined as “an Executive department, a Government
corporation, and an independent establishment,” 5 U.S.C.
§ 105, the term “independent establishment” is further
defined to mean “an establishment in the executive
branch (other than the United States Postal Service . . . ),”
5 U.S.C. § 104. The Postal Service is therefore not an
“executive agency” within the meaning of title 5 in gen-
eral and the Back Pay Act in particular. See also White v.
Bloomberg, 501 F.2d 1379, 1381 n.2 (4th Cir. 1974).
The inapplicability of the Back Pay Act to Postal Ser-
vice employees in general does not, however, answer the
question whether the Back Pay Act applies to preference
eligible employees in the Postal Service. The answer to
that question turns on the interpretation of 39 U.S.C.
§ 1005(a)(2), a provision of the Postal Reorganization Act,
Pub. L. No. 91-375, 84 Stat. 719, 731 (1970). Section
ERICKSON V. USPS 13
1005(a)(2) of that Act states that “[t]he provisions of title
5 relating to a preference eligible” apply to postal work-
ers. The question then becomes whether the Back Pay
Act and its fee provision are provisions of title 5 that
“relat[e] to a preference eligible.” If so, then the Back Pay
Act provides a basis for a preference eligible employee
such as Mr. Erickson to obtain an award of attorney fees
for a successful termination appeal, even though a Postal
Service employee who is not a preference eligible employ-
ee would not be entitled to such an award. 2
It is possible to read the phrase “relating to a prefer-
ence eligible” to mean “applicable to a preference eligible,”
rather than “specifically relating to a preference eligible.”
Read in the former way, the statute would include the
attorney fee provision of the Back Pay Act. But the
former meaning is not the most natural meaning of the
term “relating to.” Thus, for example, a statute that says
that everyone who purchases goods in the District of
Columbia must pay a sales tax would not naturally be
2 The government argues that section 1005(a)(2)
does not help Mr. Erickson in this case because that
section refers to the provisions of title 5 relating to prefer-
ence eligible employees, but does not refer to the provi-
sions of title 38, where USERRA is codified. That
argument misses the point. The Back Pay Act is found in
title 5, and it provides rights to any agency employee who
is found “to have been affected by an unjustified or un-
warranted personnel action” resulting in monetary loss to
the employee. 5 U.S.C. § 5596(b)(1). It does not matter
what the source of the employee’s violated right is that
makes the adverse personnel action unjustified or unwar-
ranted (e.g., USERRA); what does matter is whether the
Back Pay Act is a statute “relating to a preference eligi-
ble” so that the Act, including its attorney fee provision,
applies to such employees.
14 ERICKSON V. USPS
interpreted as statute “relating to left-handed persons,”
even though the statute would, of course, apply to left-
handers who purchase goods in the District of Columbia,
along with everyone else who does so.
In Andress v. U.S. Postal Service, 56 M.S.P.R. 501
(1993), the Merit Systems Protection Board held that “the
Back Pay Act is a provision of title 5 relating to preference
eligibles which, because of section 1005(a)(2), continues to
apply to preference eligible employees of the Postal Ser-
vice.” Id. at 508. Accordingly, the Board held that a
preference eligible employee of the Postal Service is
entitled to back pay under the Back Pay Act following the
reversal of an adverse action on appeal to the Board.
The Board began its analysis with section 14 of the
Veterans Preference Act of 1944, Pub. L. No. 78-359, 58
Stat. 387, which was construed by the Court of Claims to
provide back pay rights for veterans in the civil service.
See Wittner v. United States, 76 F. Supp. 110, 111 (Ct. Cl.
1948). Four years after the enactment of the Veterans
Preference Act of 1944, Congress explicitly provided for
back pay for veterans and extended the entitlement to
back pay to all individuals—not just veterans—who were
unjustifiably removed or suspended from federal employ-
ment. Act of June 10, 1948, Pub. L. No. 80-623, 62 Stat.
354. The Board in Andress reasoned that because back
pay was originally a right associated with preference
eligibles, and because the legislative history of section
1005(a)(2) indicated that the purpose of the statute was
to “preserve the existing rights of preference eligible
employees,” the Back Pay Act should be construed to
apply to preference eligible employees in the Postal Ser-
vice. 56 M.S.P.R. at 507-08.
The Board’s decision in Andress did not address the
right to an attorney fee award. But the Board’s ruling
that the Back Pay Act is a provision “relating to a prefer-
ence eligible” would lead to the conclusion that a Postal
ERICKSON V. USPS 15
Service preference eligible would be entitled to an attor-
ney fee award under the attorney fee provision of that
Act. However, the Board’s analysis in that regard is far
from airtight.
In particular, the statutory basis for the Board’s rul-
ing in Andress—that the Back Pay Act as a whole is a
“provision of title 5 relating to a preference eligible” is
questionable. The Back Pay Act has no special applica-
tion to veterans. Therefore, if the Board is correct that
the Back Pay Act is a statute “relating to a preference
eligible,” then any provision of title 5 is one “relating to a
preference eligible” except for those provisions that explic-
itly exclude veterans, if there are any. The Board’s read-
ing of the statute would therefore result in making the
exception set forth in section 1005(a)(2) swallow the rule:
all of title 5 would apply to preference eligibles in the
Postal Service.
That result, as odd as it would seem standing alone, is
made even more unlikely by the presence of paragraph
(4)(A)(i) in the same subsection of section 1005. That
paragraph provides that subchapter II of chapter 75 of
title 5 applies to preference eligible Postal Service em-
ployees. 39 U.S.C. § 1005(a)(4)(A)(i). Subchapter II is the
portion of title 5 that gives competitive-service employees
rights to internal procedures and a Merit Systems Protec-
tion Board appeal in the case of serious disciplinary
actions against them. If the Back Pay Act were a provi-
sion of title 5 “relating to a preference eligible,” per sec-
tion 1005(a)(2), then it is difficult to see why subchapter
II of chapter 75 would not also be a provision of title 5
“relating to a preference eligible,” since subchapter II, like
the Back Pay Act, does not explicitly refer to preference
eligible employees, except for employees in the excepted
service. See 5 U.S.C. § 7511. Yet if subchapter II were
considered a provision of title 5 “relating to a preference
eligible,” then it would already have been made applicable
to preference eligibles by section 1005(a)(2), and section
16 ERICKSON V. USPS
1005(a)(4)(A)(i) would be entirely superfluous. If Con-
gress had meant to make all of title 5 applicable to prefer-
ence eligibles, it would have been much simpler just to
say so directly rather than referring to particular provi-
sions that “relate to” preference eligibles. The Board’s
interpretation in Andress of the phrase “relating to a
preference eligible” is therefore unconvincing.
As noted, the Board’s decision in Andress relies heavi-
ly on the legislative history of the Postal Reorganization
Act of 1970. Upon examination, however, the legislative
history does not support the broad conclusion that the
Back Pay Act as a whole is applicable to preference eligi-
ble employees in the Postal Service.
Section 1005(a)(2) was the product of a floor amend-
ment added by Senator Hartke. In adding the amend-
ment, he stated that the purpose of his amendment was
“to clarify and maintain all of those rights which veterans
presently enjoy under existing law.” 116 Cong. Rec.
22337 (1970) (remarks of Sen. Hartke); accord Andress,
56 M.S.P.R. at 507. Because the Veterans Preference Act
of 1944 had been interpreted to extend back pay rights to
veterans (along with various other benefits related to
federal employment), the purpose of Senator Hartke’s
amendment seems to have been to ensure that those
rights were not reduced by the creation of the Postal
Service as an independent entity in 1970.
That is essentially how the Court of Claims interpret-
ed the 1970 statute in the only case from this court or its
predecessor that has focused on the language at issue
here. In Bredehorst v. United States, 677 F.2d 87 (Ct. Cl.
1982), a preference eligible in the Postal Service argued
that he was entitled to the same rights enjoyed by a
federal employee in the competitive service with respect
to suspensions of less than 30 days. At that time, em-
ployees in the competitive service enjoyed certain proce-
dural rights with respect to suspensions of less than 30
ERICKSON V. USPS 17
days by regulation, while the statutory protections in
subchapter II of chapter 75 of title 5—which applied to
preference eligibles in the Postal Service—did not extend
to suspensions of less than 30 days. See id. at 89-90.
The plaintiff in Bredehorst relied on Senator Hartke’s
floor remarks in arguing that the Postal Reorganization
Act should be interpreted to ensure that preference eligi-
bles in the Postal Service would not have fewer employ-
ment rights than their peers in the competitive service.
The Court of Claims, however, rejected that argument
and held, instead, that “section 1005(a)(2) does not give a
[Postal] Service preference eligible employee the same
rights as a federal employee in the competitive service but
only the rights granted to veterans by the Veterans’
Preference Act.” Bredehorst, 677 F.2d at 89. In reaching
that conclusion, the court cited a different portion of
Senator Hartke’s comments, in which he remarked that
under existing law a veteran had “the rights of appeal in
adverse actions and the releasing of employees when
reductions in the work force occur. These rights, guaran-
teed by the Veterans Preference Act of 1944, are the same
rights enjoyed by veterans in any other branch of the
competitive civil service.” 116 Cong. Rec. 22337 (1970)
(remarks of Sen. Hartke). It thus appears that Senator
Hartke’s concern was to ensure that the rights granted to
preference eligibles by the Veterans Preference Act of
1944 not be curtailed by the enactment of the Postal
Reorganization Act. See Bredehorst, 677 F.2d at 89.
The Bredehorst court thus interpreted the phrase “re-
lating to a preference eligible” in section 1005(a)(2) as
referring to provisions of title 5 that incorporated the
protections enacted in the Veterans Preference Act of
1944 and its successors. That would include the entitle-
ment to back pay found in the Back Pay Act of 1966,
which incorporated the back pay remedy made applicable
to veterans in the 1944 Act and then extended to other
civil servants by statute in 1948.
18 ERICKSON V. USPS
Those protections, however, do not include the right to
attorney fees, which was not part of the Veterans Prefer-
ence Act of 1944 or any of its successors, such as the Act
of June 10, 1948, or the Act of August 26, 1950, Pub. L.
No. 81-733, 64 Stat. 476. In fact, the right to attorney
fees was not even part of the original Back Pay Act of
1966, Pub. L. No. 89-380, 80 Stat. 94, 3 at the time the
Postal Reorganization Act (and 39 U.S.C. § 1005(a)(2))
was enacted in 1970. The attorney fee provision was not
added to the Back Pay Act until 1978, as part of the Civil
Service Reform Act of 1978, Pub. L. No. 95-454, 92 Stat.
1111, 1216. And when that was done, there was no
indication that the attorney fee provision was intended to
apply to preference eligibles in the Postal Service. There-
fore, whatever force Senator Hartke’s comments may
have had as to the entitlement of veterans to benefits
found in the Back Pay Act at that time, those comments
would not have applied to attorney fee awards in any
event.
This analysis leads us to the conclusion that the at-
torney fee provision of the Back Pay Act is not a provision
of title 5 “relating to a preference eligible” within the
meaning of 39 U.S.C. § 1005(a)(2), and therefore Mr.
Erickson is not entitled to a fee award under the Back
Pay Act.
We recognize that there is some untidiness to this
resolution of the statutory construction issue in this case.
In particular, the result we reach has the consequence
that even though one portion of the Back Pay Act (the
back pay entitlement) may be treated as a provision of
title 5 “relating to a preference eligible,” a different por-
3 The Back Pay Act of 1966 was “enacted to consoli-
date authorities for awarding back pay to employees
subjected to unjustified personnel actions.” Andress, 56
M.S.P.R. at 507 (citing legislative history).
ERICKSON V. USPS 19
tion of the same Act (the attorney fee provision) is not.
That construction of the statute, however, is the neces-
sary result of following the Bredehorst case, the sole
binding authority in this area. Moreover, the portion of
the Back Pay Act authorizing back pay can be viewed as
“relating to a preference eligible” based on its provenance
in the Veterans Preference Act of 1944, without needing
to find that all of the provisions of the Back Pay Act relate
to preference eligible employees. Notably, the result we
adopt here is not inconsistent with the actual holding of
the Board’s decision in Andress, since the Board’s decision
there dealt with back pay and not attorney fees. 4
Accordingly, we hold that Mr. Erickson is not entitled
to an attorney fee award under the Back Pay Act for work
done in this court. That, in our view, is where Congress
has left the matter. If persons in Mr. Erickson’s position
are to be made eligible for attorney fees under the Back
Pay Act, it will have to be done through congressional
action, not through what would amount to a judicial
amendment to the statute that Congress wrote. Accord-
ingly, Mr. Erickson’s application for an award of attorney
fees for work done in this court is denied.
APPLICATION DENIED
July 18, 2014
Date
4 Because this case deals with attorney fees and not
back pay, it is unnecessary for us to decide whether, in
light of the Court of Claims’ decision in Bredehorst, the
Board in Andress correctly held that the back pay remedy
of the Back Pay Act is a provision “relating to a preference
eligible” and is therefore applicable to preference eligible
employees in the Postal Service.