Leon H. White v. Warren M. Bloomberg, Postmaster, United States Post Office Department to Be Known as the United States Postal Service

WIDENER, Circuit Judge

(concurring and dissenting) :

I concur with the majority in allowing interest to be recovered against the Postal Service under' the “sue and be sued” provisions of 29 U.S.C. § 401(1), although I would add the caveat that the Postal Service is not a governmental corporation (as it was treated by the district court) in the sense that the Reconstruction Finance Corporation is, but is rather an “independent establishment of the executive branch” performing a function which only the federal government may perform or delegate. 39 U.S. C. § 201; Lawhorn v. Lawhorn, 351 F.Supp. 1399, 1400 (S.D.W.Va.1972). I *1387also note that, construing the phrase “sue and be sued,” this court has previously decided a very nearly identical case, allowing interest on a judgment against the Federal Housing Administrator on the ground that the United States, as an insurer, had agreed to be sued, and recovery of interest is an ordinary incident of suit on an insurance contract. Ferguson v. Union Nat’l. Bank of Clarksburg, 126 F.2d 753, 759 (4th Cir. 1942). The Federal Housing Administrator, in Ferguson, obviously was a part of the executive branch of the government as is the Postal Service here, neither being a governmental corporation. Cf. 39 U.S.C. § 201; 48 Stat. Part I, p. 1246. The Secretary of Housing and Urban Development has since been substituted. See 12 U.S.C.A. § 1702 and notes.

As to the mitigation issue, I must respectfully dissent.

The district court, I believe, was not factually correct in its assertion that the judgment was not, and would not be, reopened. Thus, the majority, relying on the statement by the district court that it refused to reopen the judgment, has reached the incorrect conclusion that the Postal Service has failed to properly raise the mitigation issue. The record on appeal contains an order of the district court dated November 2, 1972, which I would construe as reopening the case to specifically consider the amount of back pay due plaintiff under the order of June 23, 1972.1 It is, then, apparent that the mitigation issue was raised, and the issue was not only raised, it was argued continually by correspondence from both parties to the court until the May 4, 1973 opinion and order were filed. I also note that the district court, although noting it would not reopen the judgment under F.R.C.P. 60(b), despite having already done so, nevertheless proceeded to decide the mitigation issue on the merits, and concluded that the plaintiff had met his burden of mitigation by “doing what is reasonable” in seeking administrative and judicial review of his discharge. Although I am of opinion this holding on the merits as to mitigation is not in accordance with the statutes, regulations, and case law on the subject, especially in its reliance on Schwartz and Urbina, in both of which cases the employee was either actually at work or seeking work by way of mitigation, this is not my principal complaint.

Whether the judgment was reopened or not, I think the district court erred in holding, contrary to the statutes and regulations, that the Postal Service was precluded from raising any issue relating to the amount of the award after the order of June 23rd became final. The district court, in the order of June 23rd, as it properly should not have, did not compute the amount, so the Postal Service then did just as the statutes and regulations require and began the computation. Indeed, had the district court, in its order of June 23rd, computed the amount, as it did later, absent prior administrative determination, its authority so to do was precluded by the statute *1388and regulations prescribed by specific authority of the statute.

This case is controlled by the Back Pay Act, 5 U.S.C. § 5596. Section 5596(b) provides that “An employee of an agency who ... is found by appropriate authority ... to have undergone an unjustified or unwarranted personnel action that has resulted in the withdrawal or reduction of all or a part of the pay,” etc., “(1) is entitled, on correction of the personnel action, to receive for the period for which the personnel action was in effect an amount equal to all or any part of the pay” to which he would have been entitled, less any amounts earned by him through other employment during the period. Section 5596(c) provides, in pertinent part: “The Civil Service Commission shall prescribe regulations to carry out this section.”

Pursuant to § 5596(c), the Civil Service Commission has prescribed such regulations which are found in 5 CFR §§ 550.801, .802, .803 and .804. The regulations provide, in § 550.803(c)(2), that an “appropriate authority” is “a court having jurisdiction to make a determination that a personnel action is unjustified or unwarranted.” The court, in this case, of course, was the district court from which this appeal was taken, which made the determination that the personnel action complained of by the plaintiff was unjustified or unwarranted.

The regulations then continue, § 550.-804(a), “[w]hen an appropriate authority corrects an unjustified or unwarranted personnel action, the agency shall recompute for the period covered by the corrective action the pay . . . .” [Italics added] Tke Back Pay Act, then, and the regulations specifically promulgated thereunder provide: First, the corrective action going to the merits of the personnel action; and, second, an administrative computation of back pay.

I am of opinion the statute and regulations are clear, that they allow no variation from the set procedure prescribed, and that the district court had no authority to compute the back pay to the plaintiff absent prior administrative determination, or at least an opportunity to the Postal Service to make an administrative determination.

For a case reciting the proper method to be used in the ascertainment of back pay, see Floyd v. Resor, 409 F.2d 714 (5th Cir. 1969), in which case, after ordering the reinstatement of the employee, the district court retained jurisdiction of the matter of the back pay but deferred its judgment on the merits of the question of the amount of back pay until the amount had been computed by administrative action.

The holding of the majority in this ease, that a district court may proceed directly to the merits of the amount of the back pay absent a prior administrative determination, or opportunity therefor, not only is contrary to the plain words of the statute and the specifically authorized regulations, but may only go to further clutter up and needlessly encumber the dockets of already overloaded district courts. Even aside from the statute and regulation requirements, absent some compelling reason not shown by this record, I am unable to grasp the logic of allowing a resort to the district court when a previous administrative determination is available. Like the majority in its dictum concerning primary jurisdiction, I do not reach the question of whether or not exhaustion of administrative remedies may be required. See Myers v. Bethlehem Corp., 303 U.S. 41, esp. 50-53, 58 S.Ct. 459, 82 L.Ed. 638 (1938).

. The full text of the order :

“MR. CLERIC:

In view of certain matters that have been raised in this case with regard to the amount of back pay which the plaintiff is entitled to receive under the Order of this Court, the official court file in this case should be reopened.

It is so ORDERED, this 2nd day of November, 1972.”

While the order in certain circumstances might be viewed merely as a direction to the clerk for administrative or statistical purposes, parts of two subsequent letters from the court to the attorneys make its meaning clear, or at least make clear that the matter of mitigation was before the court for consideration on its merits.

Letter of November Ilf, 1912

“Tentatively, it would appear to me that the government does have a right to raise the issue of mitigation for the period beginning October 31, 1971 and ending June 29, 1972.”

Letter of December 1, 1912

“(2) I believe that an evidentiary hearing, either at the administrative or judicial level, will be required to determine the issue of mitigation.”