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LONG v. FRANK

December 23, 1992

JAMES A. LONG, Plaintiff,
v.
ANTHONY M. FRANK, POSTMASTER GENERAL, Defendant.



The opinion of the court was delivered by: I. LEO GLASSER

MEMORANDUM AND ORDER

 GLASSER, United States District Judge:

 Plaintiff pro se James Long filed his complaint in this age discrimination action in November of 1990. He alleges that the United States Postal Service (the "Postal Service" or the "Agency") terminated his employment in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 623. As a result of this wrongful termination, Long seeks overtime pay with interest and compensation for the legal services he has received to date.

 In this motion, the government, on behalf of Postmaster General Anthony M. Frank, asserts that Long's age discrimination claims should be dismissed with prejudice as barred by the doctrines of res judicata and collateral estoppel. Arguing that plaintiff seeks relief identical to that which he previously sought in his appeal to the Federal Circuit and that his claim for this relief arises out of the same transaction that formed the basis for the Federal Circuit claims, the government contends that it is entitled to summary judgment. Plaintiff responds by arguing, in essence, that the Federal Circuit lacked jurisdiction over any claims relating to discriminatory conduct -- including those for overtime back pay and attorneys fees. *fn1" For the following reasons, this court hereby grants in part and denies in part defendant's motion for summary judgment.

 FACTS

 A consideration of the somewhat entangled history of plaintiff Long's action is essential to deciding this motion. On July 20, 1982, the Postal Service issued a Notice of Proposed Removal informing Long that they intended to terminate his employment as a letter carrier on the grounds that he had assaulted a fellow worker. (Declaration of Charles Dudek, Appeals Review Coordinator, P 3(a) & Exh. A) *fn2" Shortly thereafter -- on August 6, 1982, to be precise -- the Postal Service issued a letter of Decision. (Dudek Decl. P 3(b) & Exh. B) This letter stated that the Service had considered Long's response to the charges against him but found that his removal was necessary "to promote the efficiency of the Service." Long was advised that his employment would end on August 27, 1982 and that he had the right to appeal this decision to the Merit Systems Protection Board ("MSPB"). (Dudek Decl. P 3(b) & Exh. B) This Board is an adjudicative body which hears administrative appeals of adverse personnel actions rendered against federal employees. See generally United States v. Fausto, 484 U.S. 439, 443-49, 98 L. Ed. 2d 830, 108 S. Ct. 668 (1988) (discussing MSPB).

 On August 16, 1982, Long filed an EEO complaint with his employer. (Dudek Decl. P 4 & Exh. C) He also filed a grievance under his collective bargaining agreement (denied on September 16) and an appeal with the MSPB. On April 19, 1983, the MSPB reduced plaintiff's dismissal to a 30-day suspension. (Dudek Decl. P 6 & Exh. E) Long then filed a complaint with the EEOC on April 25, 1983, alleging (1) discrimination on the basis of race and reprisal (prior EEO complaints) in violation of Title VII and (2) discrimination based on his age of 44 years in violation of the ADEA. On July 18, 1983, the Postal Service issued a Notice of Settlement to plaintiff which showed that he was paid $ 9,331.49 in back pay, spanning the period from August 27, 1982 -- the date of his dismissal -- to April 29, 1983 -- the date of his reinstatement, less the thirty-day suspension period. (Dudek Decl. P 8 & Exh. G) On September 27, 1983, the MSPB issued an addendum decision dismissing Mr. Long's request for attorneys fees on the ground that it was not timely filed. (Dudek Decl. P 9 & Exh. H)

 In a decision rendered nearly two years later on September 20, 1985 -- the EEOC found that the Postal Service had discriminated against plaintiff by terminating his employment for reasons related to his race and his prior involvement in EEOC proceedings; however, the Commission found no evidence that this termination was based on his age. (Dudek Decl. Exh. I) The EEOC ordered the Postal Service to compensate Long for the 30-day suspension period and also awarded reasonable attorneys fees. (Dudek Decl. Exh. I) This opinion was affirmed, with slight modification, upon the Agency's request for rehearing. (Dudek Decl. P 11 & Exh. J) *fn3"

 Despite initially denying as untimely plaintiff's fee request, the MSPB issued an addendum on June 12, 1987 awarding $ 6,525 to plaintiff's attorney, Philip Kaplan, in accordance with the EEOC order. (Dudek Decl. P 12 & Exh. K) Both this sum and the back pay award were paid by September of 1987. (Dudek Decl. PP 13-14 & Exhs. L, M) The MSPB responded to Long's subsequent claims for overtime back pay and payment of the fee award to him personally (as opposed to his attorney) by denying the overtime request and determining that the fees were properly paid to Mr. Kaplan. (Dudek Decl. PP 16-17 & Exhs. O, P) With respect to plaintiff's request for direct payment of the fee award, the MSPB stated:

 The record in this and the previous appeals shows that the appellant's attorney fees were paid by the agency. The enclosures with the present complaint do not negate or dispute the fact that there was payment. The fees were paid to the attorney, who represented the appellant in his appeal before the Board. The payment was made in accordance with the initial decision. The appellant did not seek a petition for review.

 The award was made in accordance with the rule that an award of attorney fees must be made to the attorney. Jensen v. Department of Transportation, 858 F.2d 721, 724 (Fed. Cir. 1988); Blessin v. Department of the Navy, 26 M.S.P.R. 615, 617 (1985). Recovery of attorney fees by a client from his attorney must be sought in a forum other than the Board. Jensen, 858 F.2d at 724; McAlear v. Merit Systems Protection Board, 806 F.2d 1016, 1017 (Fed. Cir. 1986)

 (Dudek Decl. Exh. O at 4) The MSPB denied the motion for overtime back pay as untimely based on the following reasoning:

 The appellant seeks overtime pay for a nine-month period in 1982 and 1983. the agency responded to this appeal with a motion to dismiss as untimely. It submitted its recapitulations of payment dated July 18, 1983 (gross payment, $ 14,156.55; net payment, $ 9,331.49) and August 26, 1987 (gross payment, $ 1,753.24; net payment, $ 1,114.51). Agency file, exhibits 1 and 2, case file, tab 3. . . .

 The appellant has utilized the Board's enforcement procedures regarding attorney fees. He has also utilized the appeals process to EEOC. He is familiar with the appeal process and questions of timeliness. In part, in the case at bar, he seeks overtime payments from the EEOC decision that reversed the thirty-day suspension. It is the EEOC proceeding that resulted ...


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