Donovan v. United States

ADAMS, Circuit Judge,

concurring in part and dissenting in part.

Consideration of this appeal, at least for me, is framed by two circumstances which the government does not appear to dispute: First, Donovan, the appellant here, was not promoted for two years, and during that time jobs were available for which he was qualified and to which he was entitled to priority consideration under the governing regulations. Second, the failure to promote Donovan was a clear administrative error, admitted as such by the government.

Despite the fact that the deferral in promotion was “unwarranted” and “wrongful,” 1 the majority concludes that Donovan is entitled to no relief. Since I believe that certain of the relief sought by him is available, I am impelled to dissent in part.

Donovan advances two related claims: Given the fact that action by the Defense Department in accordance with its own regulations would have resulted in his appointment to a GS-9 position two years in advance of the time when he was actually appointed, Donovan asserts entitlement to back pay at the level of GS-9 for the duration of the delay. In addition, he maintains that his personnel records, which will affect his entitlement to a variety of privileges and opportunities in the future should be amended to allow him seniority credit for the two years in which he was unjustifiably kept at GS-7. These claims are best analyzed separately.

A.

The back pay claim falls most appropriately under the Federal Back Pay Act. 2 While it is not implausible to read the Back Pay Act to cover a denial of re-promotion, 3 *1211 the Supreme Court’s opinion in United States v. Testan, 424 U.S. 392 , 96 S.Ct. 948 , 47 L.Ed.2d 114 (1976) dictates that inasmuch as it is a waiver of sovereign immunity, the Back Pay Act is to be strictly construed. The Act, according to the Supreme Court, “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.” Id. at 407 , 96 S.Ct. at 957 . The spirit, if not the letter of Testan therefore appears to foreclose Donovan’s claim for back pay, and as to this issue I concur with the result reached by the majority.

B.

Such conclusion, however, does not dispose of the case, for in addition to requesting monetary damages, Donovan invokes the equitable powers of the courts to regain the two years of seniority which he was improperly denied. 4 This request, of course, stands on a different ground from his claim for back pay. For, as the Supreme Court noted in Testan , “There is a difference between prospective reclassification, on the one hand, and retroactive reclassification resulting in money damages, on the other. See Edelman v. Jordan, 415 U.S. 651 , 94 S.Ct. 1347 , 39 L.Ed.2d 662 (1974).” 5 The citation to Edelman indicates that the shield of sovereign immunity does not extend to interdict a prospective order requiring the government to comply with legal duties.

Here, the government admits that it failed to consider Donovan for promotion in direct violation of its own regulations, and has thereby, in the words of the majority, “delayed his advancement to a higher level.” 6 Although Testan may bar the award of monetary damages for lost wages in the past, nothing in the Supreme Court opinion appears to preclude a federal court from ensuring that the government does not predicate future denials of benefits or promotions on the two-year delay occasioned by its prior solecism.

While the majority opinion admits such relief “might very well” be appropriate if the regulations guaranteeing Donovan re-promotion opportunities provided no remedy in themselves, the majority adopts the position that regulations mandating that Donovan be considered for the next available vacancy shackle the exercise of our equitable powers. No case support is adduced for such a conclusion, and the language cited is at best ambiguous. The regulations require that Donovan “must ” be considered for the next available promotion, not that he “need only be” so considered. I am reluctant to conclude that the grant of a self-enforcing administrative remedy precludes the federal courts from fashioning other relief should the administrative route prove inadequate to rectify the effects of a concededly improper governmental action.

Accordingly, insofar as the dismissal of Donovan’s claim for injunctive relief regarding his personnel records is affirmed, I respectfully dissent.

. Majority opinion, page 1207.

. 5 U.S.C. § 5596 (b)(1). That Act provides a remedy for those who have “undergone an unjustified or unwarranted personnel action that has resulted in the withdrawal or reduction of . pay, allowances or differentials.”

. The regulations implementing the Back Pay Act define the “personnel action” covered by the Act to “include” but not be “limited to” “separations . . . suspensions, furlough without pay, demotions, reductions in pay and *1211 periods of enforced paid leave.” 5 C.F.R. § 550.803 (e). Even assuming that despite the wording of the regulation, the definition is limited to actions “of the same nature as those listed”, it is difficult to discern the clear distinction between an “enforced paid leave” and an unwarranted refusal to repromote.

. Donovan’s brief on appeal phrases his argument primarily in terms of a request for relief under the mandamus provisions of 28 U.S.C. § 1361 . However, his complaint makes it clear that he seeks jurisdiction under 28 U.S.C. §§ 1331 and 1346(a)(2) as well, and prays for a declaratory judgment and an appropriate implementing order under 28 U.S.C. §§ 2201 and 2202. Since, if Donovan’s claim is worth less than $10,000, the district court may exercise jurisdiction under § 1346, and if it is worth more, jurisdiction lies under § 1331, there is no reason to limit analysis to the propriety of mandamus under § 1361.

. 424 U.S. 392, at 403 , 96 S.Ct. 948 at 955 , 47 L.Ed.2d 114 .

. Majority opinion, page 1207.