Amicus Curiae Brief — Cutright v. United States, 113 S. Ct. 71 (1992) (No. 91-1897)

JUL 2

No. 91-1897

DFE OF TNE CLERK

In The

Supreme Court of the United States

October Term, 1992

¢

MARVIN D. CUTRIGHT,

Petitioner,

V.

UNITED STATES OF AMERICA,

Respondent.

¢

Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Federal Circuit

+

BRIEF OF AMICUS CURIAE UNITED STATES

COURT REPORTERS ASSOCIATION IN

SUPPORT OF PETITIONER MARVIN D. CUTRIGHT

¢

STerHEN M. Josern

ToserH, Ropison & ANDERSON, P.A.

209 East William, Suite 800

Wichita, Kansas 67202-4013

(316) 262-0667

Attorney for Amicus Curiae

COCKLE LAW BRIEF PRINTING CO, (800) 225-4964

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED

1. Whether appointed federal court reporters are

full-time employees of the government who are entitled

to benefits under the Annual and Sick Leave Act, 5 U.S.C.

§ 6301.

2. Whether the deprivation of vested annual and

sick leave benefits constitutes an improper taking of

property in violation of the due process clause of the

Constitution of the United States when those benefits are

deprived by a government agency’s administrative fiat

which is contrary to a clear and unambiguous statute of

the United States Congress.

ii

LIST OF PARTIES

The parties to the proceedings below and before this

Court are:

1. Marvin D. Cutright, an individual; and

2. The United States of America.

The United States Court Reporters Association

(“USCRA”) submits this Brief Amicus Curiae in support of

the Petition of Marvin D. Cutright. All parties in this

matter have consented to the filing of this Brief as

required by Supreme Court Rule 37.2. Those consents

accompany this Brief.

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TABLE OF CONTENTS

Page

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[eines Gr AMICUS CURIAE ...............555 1

pumas OFr ARGUMENT.............0..0e5005: 2

See 3

I. APPOINTED FEDERAL COURT REPORTERS

ARE EMPLOYEES WITHIN THE MEANING OF

THE ANNUAL AND SICK LEAVE ACT....... 3

Il. THE REFUSAL TO CREDIT APPOINTED

FULL-TIME FEDERAL COURT REPORTERS

WITH LEAVE ACT BENEFITS IS A DEPRIVA-

TION OF PROPERTY WITHOUT DUE PRO-

EN ha pans wn ese ces cnchenccsensens 10

Ne a ERLE AREA G AERA EKER D ARE H DS 11

iv

TABLE OF AUTHORITIES

Page

Cases

Board of Regents of State Colleges v. Roth, 408 U.S.

564, 92 S. Ct. 2701, 33 L.Ed.2d 548 (1972)......... 11

Cain v. United States, 77 F. Supp. 505 (N.D. IIL.

REE knees oe CENGR VE Se eee ea tae Ot oa 8

Goldhaber v. Foley, 519 F. Supp. 466 (E.D. Pa. 1981)

LAG Se RM AREN ESS CAME EEN Tae eho e ae ee eee Foe a 5, 6, 10

Goutos v. United States, 212 Ct. Cl. 95, 552 F.2d 922

Pee SR. TPS ee Vo oa ve ven EN SE ESA 4

Horner v. Acosta, 803 F.2d 687 (Fed. Cir. 1986)........ 4

Sauer v. United States, 173 Ct. Cl. 642, 354 F.2d 302

We i SE caer tabetha ae 8

CONSTITUTIONAL PROVISIONS

U.S. Constitution, Amendment V.................... 11

STATUTES

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FR SNE oss son dk oes a vob ce cena 11

FR Te OE ccs ae peace ere erences 11

We Se Fs on 5 an ee cs 5k ge eee ee ea nuh han ter 1, 4, 9

We Ci, DFO a ow ek cone sevcieeracacksceeucs 4

SOUS. 6 PI ook ies skeen. 4

TABLE OF AUTHORITIES - Continued

Page

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OTHER AUTHORITIES

Guide to Judiciary Policies and Procedures: Court

Reporter's Manual, Vol. VI, Ch. 5................... 7

Legislative History

of P.L. 95-519, 92 Stat. 4160 ........ 6

The United States Court Reporters Association

(“USCRA”) respectfully prays, in support of Marvin D.

Cutright, that a writ of certiorari issue to review the

Order and Opinion of the United States Court of Appeals

for the Federal Circuit entered in this proceeding on

January 14, 1992 (Rehearing denied on March 5, 1992).

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INTEREST OF THE AMICUS CURIAE

The United States Court Reporters Association

(“USCRA”) was formed in 1945 and has been committed

since that time to serving and representing the interests

of federal reporters throughout the United States appoin-

ted under 28 U.S.C. § 753. The USCRA is governed by a

Board of Directors composed of one federal reporter from

each circuit. There are approximately 650 federal repor-

ters serving the federal courts in this country.

The United States Court of Appeals for the Federal

Circuit held on January 14, 1992, that Marvin D. Cutright,

a retired federal court reporter and Petitioner herein, was

a “part-time” employee who was excluded from Leave

Act coverage prior to 1984 because he was not assigned a

“regular tour of duty during the administrative work

week.”! (See Appendix A of Marvin D. Cutright’s Petition

for Writ of Certiorari). Since this ruling will affect many

of its members, the USCRA files this brief in support of

Petitioner.

' In January, 1984, court reporters were given a “regular

tour of duty” as part of their assignments, purportedly in an

attempt to justify the government's argument that court repor-

ters have always been “part-time” employees.

In so ruling, the United States Court of Appeals for

the Federal Circuit changed a long-standing presumption

that Leave Act benefits are to be afforded to all federal

workers absent a specific statutory exception. The lower

court allowed the Administrative Office of the United

States Courts, by agency fiat, to unilaterally redefine the

terms and conditions of the Leave Act to exclude an

entire class of federal employees from coverage without a

Congressional mandate to permit the exclusion.

The lower court’s holding also deprives Petitioner,

and potentially other federal court reporters, of vested

property rights in violation of the Constitution of the

United States.

This Brief of Amicus Curiae is respectfully submitted

in support of Marvin D. Cutright’s Petition for Writ of

Certiorari. USCRA believes that this Honorable Court

should remedy the clear injustice done to Mr. Cutright

and should reverse a ruling that casts doubt on the appli-

cability of the Leave Act to all federal reporters by

improperly classifying them as “part-time” employees

despite their employment records as appointed full-time,

salaried federal employees.

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SUMMARY OF ARGUMENT

Leave Act benefits are afforded to the vast majority

of federal workers. Only those expressly excluded by

Statute are not entitled to receive benefits. Court

reporters are not among any of the specifically-enumer-

ated exceptions to Leave Act coverage. 5 U.S.C.

§ 6301(2)(i)-(xiii).

The United States’ position is clearly erroneous and

overreaching. Most, if not all federal reporters, including

Marvin D. Cutright, should be recognized as full-time

employees both prior to January, 1984, and subsequently.

There is no need to give federal reporters a “regular tour

of duty” in order to make them eligible for Leave Act

benefits. Such a reclassification was, and is, a sham to

avoid paying full-time reporters their entitlements under

the Leave Act. The government has admitted that court

reporters should be recognized as having full-time status

and has implicitly and expressly recognized the full-time

nature of a court reporter’s appointment by virtue of its

past conduct.

Failure to acknowledge a federal reporter’s rights to

vested Leave Act benefits constitutes an unwarranted

and unconstitutional deprivation of property without due

process of law since those rights are mandated by Con-

gress and are a part of the important benefits court repor-

ters have an interest in receiving.

¢

ARGUMENT

I. APPOINTED FEDERAL COURT REPORTERS ARE

EMPLOYEES WITHIN THE MEANING OF THE

ANNUAL AND SICK LEAVE ACT.

The government contends that Marvin D. Cutright

and, by implication, other federal reporters are excluded

from coverage under the Leave Act because they were not

placed on a “regular tour of duty” prior to 1984 as

required by § 6301(2)(B)(ii) of the Leave Act, 5 U.S.C.

§ 6301(2). The “regular tour of duty” exception applies

only to part-time employees, according to the explicit

language of § 6301. Therefore, if an employee works full-

time for the government, the “regular tour of duty”

exception does not apply.

The vast majority of appointed? federal court repor-

ters are full-time employees of the government. The

Court Reporter’s Act, 28 U.S.C. § 753, which authorizes

the appointment and use of official court reporters by

district courts, gives absolutely no indication that appoin-

ted court reporters are to be treated as part-time

employees. On the contrary, a fair reading of the Court

Reporter’s Act supports the full-time nature of their

appointments. For example, the Act itself distinguishes

between reporters “appointed” by a district court and

reporters who are hired for “temporary service.” 28

U.S.C. § 753(a). Furthermore, the Court Reporter’s Act

mandates that each appointed reporter “shall receive an

annual salary to be fixed from time to time by the Judicial

Conference of the United States.” 28 U.S.C. § 753(e). As

indicated, infra, this annual salary reflects 40 hours of

work per week - a full-time schedule. Additionally, sub-

section (g) of the Court Reporter’s Act provides for

employment of reporters on a contract basis (rather than

appointment) in certain situations. 28 U.S.C. § 753(g).

Again, this supports the distinction between full-time

appointed reporters and those employed on a temporary

Or part-time basis.

2 It has been held that appointment to federal service is

sine qua non evidence of employment status. See Horner v.

Acosta, 803 F.2d 687 (Fed. Cir. 1986); Goutos v. United States, 212

Ct. Cl. 95, 552 F.2d 922 (Ct. Cl. 1976).

The courts have also drawn a clear distinction

between full-time reporters, i.e. those appointed pursuant

to the Court Reporter’s Act, and “contract” or part-time

reporters. In Goldkaber v. Foley, 519 F. Supp. 466 (E.D. Pa.

1981), a bankruptcy judge and two court reporters serv-

ing the bankruptcy court brought an action seeking to

enjoin the Administrative Office of the United States

Courts from putting into effect a court reporting contract

with reporters hired on a part-time basis to replace the

“full-time salaried employees.” While the court con-

cluded that, in the bankruptcy context, full-time reporters

could be replaced with part-time “contract” reporters by

the Administrative Office, it made a clear distinction

between “full-time salaried” reporters appointed by the

court and part-time “contract” reporters hired by the

Administrative Office. In allowing the “full-time” repor-

ters to be replaced by “contract” reporters, the court saw

a difference between reporters appointed pursuant to the

Bankruptcy Reform Act, see 28 U.S.C. § 773(a), and the

Court Reporter’s Act. In the court’s opinion, the Bank-

ruptcy Reform Act is permissive with respect to the

appointment of full-time reporters, whereas the Court

Reporter’s Act is mandatory in the sense that it requires

the appointment of at least one full-time salaried reporter

for each district court. 519 F. Supp. at 477. The Federal

Circuit’s opinion below, however, denies the existence of

such full-time salaried reporters.

Thus, even the courts have recognized the full-time

status of appointed, salaried court reporters. Indeed, the

Administrative Office of the United States Courts, the

agency involved in the present case, implicitly acknowl-

edged this distinction by seeking to replace salaried

employees with part-time employees in bankruptcy

courts in Goldhaber.

As set forth at length in Marvin D. Cutright’s Peti-

tion, the Leave Act is very explicit in setting forth catego-

ries of federal employees which are not to be included in

the Leave Act. 5 U.S.C. § 6301(2). Indeed, Congress goes

to great length to specifically exclude different types of

employees (e.g., teacher, librarian, physician). Official

court reporters are not explicitly excluded from coverage.

Even though Congress had ample opportunity to exclude

court reporters from Leave Act coverage when it

amended it in 1978, it failed to do so.? If Congress had

intended to exclude court reporters from Leave Act cov-

erage, it had the ability and opportunity to do so in 1978.

Its failure to create a specific exclusion is strong evidence

supporting coverage of federal court reporters.

As pointed out in Marvin D. Cutright’s Petition, it

appears that the United States has long recognized the

clarity of the Leave Act statute. (See Appendices E-H of

Marvin D. Cutright’s Petition). Statements such as “it is

clear in our view that this procedure [of excluding court

staff from Leave Act coverage] is improper under the law

(Appendix F of Petition, pp. 52a-53a)” and that the Leave

3 Clause (XII) to subsection (2)(B), excluding “any officer

of the legislative or judicial branch who is appointed by the

President” from Leave Act coverage. The express congressional

purpose of the amendment was to “clarify existing law by

specifically excepting all presidentially appointed officers in

the legislative and judicial branches from the annual and sick

leave provisions” of the Act. Legislative History of P.L. 95-519, 92

Stat. 4160. Congress also noted that the Annual and Sick Leave

Act applies “to the vast majority of federal employees.” Id.

Act “clearly places all employees of the judicial branch

under the provisions of the law except for judges appoin-

ted by the President” (Appendix G to the Petition, p. 61a)

clearly demonstrate the government’s knowledge of the

administrative error involved in failing to include court

reporters and other full-time employees in the Leave Act

system prior to 1984. Thus the United States, while pub-

licly contending that there was a “clear” exclusion of

federal court reporters as “part-time employees,” secretly

acknowledged in internal correspondence and legal mem-

oranda that employees such as court reporters should

have been included in the leave system, and that their

exclusion was erroneous.

The United States’ conduct supports the position that

Marvin D. Cutright and other federal reporters were full-

time employees prior to 1984. For example, earning state-

ments issued by the Administrative Office clearly indi-

cate that appointed reporters were considered full-time

employees. As exemplified in the earnings statements

submitted with Mr. Cutright’s Petition (Appendix J, pp.

75a-83a), Mr. Cutright and other appointed reporters

were paid an annual salary (as required by the Court

Reporter’s Act) which was reflected on the statements.

The statements further reflect payment for two full work

weeks (totalling 80 hours), another tacit admission of a

reporter’s full-time status.

Furthermore, the Guide to Judiciary Policies and Pro-

cedures: Court Reporter's Manual, published by the Admin-

istrative Office, states that all official court reporters who

have completed ten years of full-time service as a court

reporter for a United States District Court shall receive a

longevity increase in pay. Court Reporter’s Manual, Vol. VI,

Ch. 5 (see Appendix B to Marvin D. Cutright’s Petition, p.

22a). This constitutes a further tacit recognition by the

government that court reporters should be treated as full-

time employees. In fact, Marvin D. Cutright and most

other court reporters who the government contends were

“part-time” reporters, received and are receiving long-

evity increases based on the above provision. (See Appen-

dix J to Marvin D. Cutright’s Petition, p. 73a).

While this Honorable Court has not addressed the

issue of administrative attempts to circumvent the statu-

tory language of the Leave Act, the lower courts have

found such attempts to be improper. For example, in Cain

v. United States, 77 F. Supp. 505 (N.D. Ill. 1948),4 the court

rejected the Comptroller General’s report that secretaries

and law clerks were part-time employees. The District

Court held that the language of the Leave Act is plain,

clear and unequivocal, and does not specifically exclude

judicial secretaries or law clerks. It noted that “Con-

gress ... should make the exception, not the Comptroller

General or the courts.” 77 F. Supp. at 508. See also, Sauer v.

United States, 173 Ct. Cl. 642, 354 F.2d 302 (Ct. Cl. 1965)

(an auditor of the Court of Claims was entitled to lump

sum distribution for accumulated leave upon retirement).

In the present case, the United States is unable to

point to any specific exception excluding federal court

reporters from Leave Act coverage. Instead, in an attempt

to circumvent congressional intent and general rules of

4 In an effort to avoid repetition, USCRA refers the Court

to the more complete analysis of Cain set forth in Marvin D.

Cutright’s Petition.

Statutory construction, the government attempts to

“pigeon hole” court reporters into an exception to the

definition of employee which, it is respectfully submitted,

has no applicability whatsoever to court reporters.

Despite the overwhelming evidence to the contrary,

the United States and the lower court concluded that

appointed federal court reporters are part-time

employees solely because they are able to augment their

incomes by receiving compensation from private sources.

First, the government fails to explain how the ability to

receive compensation from private sources translates into

an exclusion under the Leave Act. “Freelancing” is not

barred by statute or regulation. Federal court reporters

fall squarely within the Leave Act definition of

“employee,” and unless Congress sees fit to amend the

Act to make a specific exclusion, any employee falling

with in the parameters of that definition is entitled to

Leave Act benefits.

Additionally, the Court Reporter’s Act, 28 U.S.C.

§ 753, specifically authorizes the collection of fees for

transcripts requested by the parties, “at rates prescribed

by the court subject to the approval of the Judicial Con-

ference.” 28 U.S.C. § 753(f). Thus, Congress envisioned

the ability of court reporters to collect private compensa-

tion over and above the salary paid by the United States,

and in fact regulated the amount of that compensation via

the supervision of the courts and the Judicial Conference.

Yet Congress did not see fit to specifically designate court

reporters as part-time employees or to expressly exclude

reporters from the broad coverage of the Leave Act.

While the United States will seek to have the Court take

10

“judicial notice” of the “fact” that court reporters “free-

lance,” there is absolutely nothing in the record before

this Court to confirm this “fact,” let alone any evidence

that any “freelancing” impinges on their duties to the

district courts.

In any event, it is respectfully submitted that any

such “freelancing” is irrelevant to the issues before this

Court. By virtue of their employment with the federal

government and their receipt of a full-time salary, court

reporters are obligated to perform services for the gov-

ernment, and indeed perform vital full-time services for

the government. See Goldhaber v. Foley, 519 F. Supp. 466,

482 (E.D. Pa. 1981) (“The court is well aware of the value

of a court reporter who is not only competent but also

loyal and accountable to the court.”). This does not mean,

however, that a reporter’s “free time” should be

restricted or that the productive use of that “free time”

should enable the government to circumvent the clear

entitlement to Leave Act benefits.

II. THE REFUSAL TO CREDIT APPOINTED FULIL-

TIME FEDERAL COURT REPORTERS WITH

LEAVE ACT BENEFITS IS A DEPRIVATION OF

PROPERTY WITHOUT DUE PROCESS OF LAW.

Despite the Administrative Office’s insistence to the

contrary, Congress, the courts and, indeed, the Adminis-

trative Office (by way of admissions set forth above)

clearly intended federal court reporters to fall within the

broad definition of “employee” as defined by 5 U.S.C.

§§ 2105 and 6301. Furthermore, Congress intended to

11

create an entitlement or property right to Leave Act bene-

fits for all eligible employees. See 5 U.S.C. §§ 6303(a) and

6307.

Of course, it is fundamental that a person who has a

property right cannot be deprived of that right without

due process of law. U. S. Const., Amend. V; Board of

Regents of State Colleges v. Roth, 408 U.S. 564, 92 S. Ct.

2701, 33 L.Ed.2d 548 (1972).

Yet that is precisely what the government agency

involved here is attempting to do by unilaterally refusing

to make payment of statutory benefits to their loyal full-

time employees.

CONCLUSION

For the reasons set forth above, the United States

Court Reporter’s Association, as amicus curiae, respect-

fully requests this Honorable Court to grant Marvin D.

Cutright’s Petition for Writ of Certiorari to permit a reso-

lution of important issues affecting not only Mr. Cutright,

but all federal court reporters whose benefits have been

or will be deprived by a government agency’s improper

denial of statutory, constitutional, and contractual rights.

Respectfully submitted,

STEPHEN M. JoserH

JoserH, Rospison & ANDERSON, P.A.

209 East William, Suite 800

Wichita, Kansas 67202-4013

(316) 262-0667

Attorney for Amicus Curiae

United States Court

Reporters’ Association