RUFUS M. ROLLE, PETITIONER V. UNITED STATES POSTAL SERVICE No. 90-6949 In The Supreme Court Of The United States October Term, 1990 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Federal Circuit Brief For The Respondent In Opposition OPINIONS BELOW The judgment of the court of appeals (Pet. App. A1) is unreported. The decision of the Merit Systems Protection Board (Pet. App. E1-5) is reported at 44 M.S.P.R. 323. JURISDICTION The judgment of the court of appeals was entered on November 6, 1990. Pet. App. A2. The petition for a writ of certiorari was filed on January 28, 1991. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether the court of appeals erred in affirming the Merit Systems Protection Board's dismissal of petitioner's petition for enforcement on the ground that he had already received all of the relief to which he was entitled. STATEMENT 1. On January 18, 1987, petitioner was removed by the Postal Service from his position as Distribution Clerk at the main post office in Fort Pierce, Florida, on the grounds that he was mentally unfit for duty and that he had made threats to a supervisor. Pet. App. E4, G1-G2, G8-G9. Petitioner appealed his removal to the Merit Systems Protection Board (MSPB or Board), claiming that his removal was in retaliation for his union activities and constituted discriminatory treatment based on his race and alleged handicap. In an initial decision issued in May 1987, an administrative law judge (ALJ) rejected petitioner's claims that his removal was retaliatory and discriminatory. Pet. App. G11-G13. The ALJ found that although the agency had proved that petitioner suffered from a mental disease or defect, it failed to show by a preponderance of the evidence that the condition rendered petitioner unfit for continued employment. Pet. App. G8. The ALJ sustained the agency's remaining charge that petitioner had made inappropriate comments and threats to a supervisor, but concluded that, based on petitioner's past work record and lengthy employment with the Postal Service, his removal was unwarranted. Pet. App. G13-G14. The ALJ therefore ordered the Postal Service to convert the removal to a 60-day suspension, retroactive to the date of the improper removal. Pet. App. G14-G15. The Postal Service was also ordered to award back pay and benefits to petitioner in accordance with its regulations. Pet. App. G15. Both the agency and petitioner sought review of the initial decision before the MSPB see 5 C.F.R. 1201.114, but the Board adopted the ALJ's decision as its final decision in an order issued on January 25, 1988. Gov't C.A. Br. App. 86. /1/ The Postal Service thereafter reinstated petitioner on the agency's payroll, but placed him on administrative leave pending a psychiatric examination. Gov't C.A. Br. App. 82-83. Petitioner then petitioned the MSPB for enforcement of its order, alleging that the Postal Service's refusal to allow him to return to duty was not in compliance with the Board's order. Gov't C.A. Br. App. 83. Petitioner also alleged that he had not received back pay and that his leave had not been restored. The Board dismissed the petition, finding that the Postal Service had submitted evidence showing that petitioner had been returned to active duty on May 10, 1988, that he had been awarded back pay, and that his leave had been restored. Gov't C.A. Br. App. 68. Petitioner appealed to the Federal Circuit and the court of appeals reversed, holding that the MSPB had abused its discretion in failing to rule on petitioner's request for an extension of time to submit evidence to rebut the Postal Service's evidence of compliance. Pet. App. C1-C2. 2. Following the MSPB's reinstatement of the petition for enforcement on its docket, petitioner argued that the Postal Service was not in compliance with the Board's final decision because he was due overtime pay, night differential pay, and holiday pay for the period of time that he was placed on administrative leave before his removal. He also claimed that he was entitled to interest on his back pay award. Finally, petitioner contended that he was underpaid back pay by 32 hours for the period March 19 to March 27, 1987. In rejecting petitioner's arguments, the MSPB held, first, that petitioner was not entitled to any adjustment to his pay while he was on administrative leave because "the wrongful personnel action was the removal not the agency's placement of (petitioner) on administrative leave." Pet. App. E2. The Board next held that petitioner was not entitled to interest on his back pay award. It stated that while interest on back pay is appropriately awarded to an employee who prevails in a suit against the Postal Service under Title VI of the Civil Rights Act of 1964, 42 U.S.C. 2000e, petitioner was not the victim of discrimination. Thus, any support for an award of interest had to rest on the Postal Service's regulations. Pet. App. E3. The MSPB held that petitioner's claim lacked merit, because the Postal Service regulations in effect at the time that the MSPB had issued its decision awarding back pay did not authorize the payment of interest. Ibid. Finally, with respect to petitioner's contention that he was owed 32 hours of additional back pay, the MSPB stated that the agency's evidence of compliance was sufficient to conclude that no additional back pay was due petitioner. /2/ The Federal Circuit affirmed without opinion in an unpublished per curiam judgment. Pet. App. A1. ARGUMENT The gravamen of petitioner's claim is that the MSPB erred in refusing to award him interest on his back pay award pursuant to the Back Pay Act, 5 U.S.C. 5596(b). Pet. 6-8. That claim does not warrant review by this Court. As amended in 1987, /3/ the Back Pay Act permits the employees of certain federal agencies who are affected by an unjustified personnel action to receive back pay with interest under some circumstances. The MSPB has ruled, however, that the Postal Service is not an "agency" subject to the Back Pay Act. Norvell v. USPS, 38 M.S.P.R. 563, 568-569 n.4 (1988); accord Thrasher v. USPS, 40 M.S.P.R. 582, 584 (1989). That conclusion is consistent with the decisions of the courts that have addressed this question, see White v. Bloomberg, 501 F.2d 1379, 1381 n.2 (4th Cir. 1974); Knuckles v. Bolger, 490 F. Supp. 1291, 1296 (E.D. Mo. 1980), and follows directly from the relevant statutes. The Back Pay Act limits its definition of "agency" to: "(1) an Executive Agency; (2) the Administrative Office of the United States Courts; (3) the Library of Congress; (4) the Government Printing Office; and (5) the government of the District of Columbia." 5 U.S.C. 5596(a). For purposes of Title 5, the term "Executive agency" means "an Executive department, a Government corporation, and an independent establishment." 5 U.S.C. 105. The "Executive Department(s)" are identified at 5 U.S.C. 101, and the Postal Service is not on that list. The Postal Service is also specifically excluded from the definition of an "independent establishment" at 5 U.S.C. 104. Moreover, the Postal Service is not a "Government corporation," 5 U.S.C. 105, because the Service was created as "an independent establishment of the executive branch of the Government of the United States," 39 U.S.C. 201. Finally, with exceptions not relevant here, Congress abrogated the application of any federal law dealing with employees "to the exercise of the powers of the Postal Service," 39 U.S.C. 410(a), an abrogation that would include the Back Pay Act. Accordingly, the MSPB was correct in stating that, because there was no discrimination involved in this case, /4/ any support for an award of interest on back pay would have to rest on the Postal Service's own regulations. As the Board noted, Section 436.62 of the Postal Service's Employee and Labor Relations Manual, /5/ which became effective on October 20, 1988, currently provides for the payment of interest on a back pay award when interest is expressly awarded in a settlement agreement or decision. Gov't C.A. Br. App. 88 (quoting regulation). No such express award, however, was made here. Moreover, the Service's regulations did not become effective until well after the period covered by this back pay award, and after the issuance of the Board's decision awarding back pay to petitioner. The regulations also do not state that they are to be applied retroactively. In these circumstances, the MSPB correctly determined that petitioner was not entitled to interest on his back pay award. See Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 208 (1988) ("(r)etroactivity is not favored in the law" and "congressional enactments and administrative rules will not be construed to have retroactive effect unless their language clearly requires this result"). See also Kaiser Aluminum & Chemical Corp. v. Bonjorno, 110 S. Ct. 1570, 1577 (1990). /6/ CONCLUSION The petition for a writ of certiorari should be denied Respectfully submitted. KENNETH W. STARR Solicitor General STUART M. GERSON Assistant Attorney General WILLIAM KANTER JEFFRICA JENKINS LEE Attorneys APRIL 1991 /1/ While the parties' respective petitions for review were pending before the MSPB, petitioner filed a complaint in district court seeking to compel the Postal Service to reinstate him and pay him back pay and benefits. In an order issued on August 27, 1987, the court dismissed the complaint sua sponte for failure to exhaust administrative remedies. Pet. App. D1-D3. /2/ The Board explained, Pet. App. E4: When the (petitioner's) removal was changed to suspension, the agency was ordered to suspend (petitioner) for sixty days retroactive to the effective date of his removal. Although the (petitioner) was removed on January 18, 1987, the agency continued to pay him for one week after the effective date of his removal. When the removal was changed to a sixty-day suspension, the agency started the first day of the suspension on January 25, 1987, the first day after the removal that the (petitioner) did not get paid. The sixtieth day after January 25, 1987 was March 26, 1987. This explains why the (petitioner) did not get paid between March 19 and March 26, 1987. See Declaration of Nancy Taber, Dec. 6, 1989 * * *. /3/ Pub. L. No. 100-202, Section 101(m), 101 Stat. 1329 (1987). /4/ It does not appear that petitioner challenged the Board's holding that his removal was not discriminatory. /5/ Section 436.62 provides that "(i)nterest is paid on back pay only when it is expressly awarded in a settlement agreement or decision." Pursuant to 39 C.F.R. 211.2(a)(2), the Employee and Labor Relations Manual, among other publications, constitutes the regulations of the Postal Service. /6/ Nor is there any merit in petitioner's contention that this Court should grant certiorari to review the Board's refusal, in ruling on his petition for enforcement, to reverse its prior order substituting his removal with a 60-day suspension. The ALJ found sufficient evidence to sustain the Postal Service's charge that petitioner had made inappropriate comments and threats to a supervisor to warrant a 60-day suspension from duty. Pet. App. G10, G13. The MSPB adopted that finding, and petitioner did not challenge it on appeal within the time allowed for doing so. In any event, a petition for enforcement of the Board's order is not an appropriate vehicle for having that very order set aside.