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June 25, 1997

JANET RENO, Attorney General of the United States; DORIS MEISSNER, Commissioner of the Immigration and Naturalization Service, Defendants.

The opinion of the court was delivered by: HURD


 Presently before the court is plaintiff's petition for a writ of mandamus, sought to compel the defendants to comply with this court's judgment entered on May 31, 1996. Defendants submitted opposition to the petition, and plaintiff replied to the opposition. Oral argument was heard on February 13, 1997, in Utica, New York. At the directive of the court, defendants submitted written opposition to the exhibits proffered by plaintiff at oral argument.

 Although familiarity with the May 31, 1996, Memorandum-Decision and Order *fn1" ("May 1996 order") is assumed, relevant background facts will be recounted.

 In 1985 the plaintiff filed a complaint with the Equal Employment Opportunity Commission ("EEOC") alleging discrimination based upon gender occurring in May of that year. In August 1989 the EEOC issued a final determination that the Immigration and Naturalization Service ("INS") had discriminated against the plaintiff based upon her gender. The EEOC ordered a "make whole" remedy, including, but not limited to, back pay plus interest and lost benefits. INS was to have reported its corrective action within sixty days. The INS did not appeal this order.

 Seven months after the EEOC ordered the make whole remedy in August 1989, INS tendered back pay to plaintiff, which was an underpayment of approximately $ 40,000.00. Six months later INS made another payment to plaintiff, constituting the full amount of back pay due. INS continued, however, to refuse to pay interest on the back pay award. Plaintiff finally received the interest due on this back pay award, after filing suit in federal court and receiving a grant of summary judgment against the INS.

 Following a two-day bench trial, held on November 21-22, 1995, this court found that INS failed to comply with the EEOC remedy by failing to 1) provide plaintiff with a nondiscriminatory placement; 2) restore lost benefits, such as insurance, savings plan, and pension plan; and 3) meet the technical reporting requirements for corrective action. Moreover, the defendants retaliated against the plaintiff for attempting to obtain compliance with the EEOC make whole remedy. Accordingly, judgment was entered for the plaintiff and against the defendants, and the defendants were ordered to 1) pay back pay plus interest for the appropriate period, the amount of which was delineated by the court; 2) reinstate plaintiff to a nondiscriminatory placement, at a grade level and location delineated by the court; 3) provide plaintiff the opportunity to elect health and life insurance benefits upon her reinstatement; 4) place appropriate documents in plaintiff's personnel file indicating continuing service since 1985, and expunge references to her EEOC complaint in those records, as delineated by the court; *fn2" 5) credit plaintiff with appropriate amounts of annual leave and sick leave which she would have accumulated; 6) establish a Federal Employees Retirement System ("FERS") basic annuity account, including INS and plaintiff's contributions; *fn3" 7) establish a Thrift Savings Plan ("TSP") account for plaintiff, permit plaintiff to elect additional contributions, and deposit the appropriate amounts in the account. *fn4" See id. at 1223-24.

 II. Procedural Posture

 As an initial matter, defendants oppose plaintiff's petition and seek to strike it as an improper appeal, or deny the petition as without basis in law or fact if the petition is construed as a motion to alter or amend the judgment. Defendants argue that pursuant to Federal Rule of Civil Procedure 81(b), writs of mandamus are abolished. *fn5" Defendants further argue that a proper petition for writ of mandamus must be filed in the court of appeals pursuant to Federal Rule of Appellate Procedure 21. Alternatively, if the petition is construed as a motion under Federal Rule of Civil Procedure 59, defendant argues that it must be denied as untimely and improper because plaintiff does not seek a new trial. Finally, if the petition is construed as a motion under Rule 60, defendants argue that it should be denied as seeking relief outside the original judgment.

 In reply, the plaintiff, who has prosecuted this action pro se, requests that her petition be renamed to conform with any legal requirement which is necessary to provide the relief sought.

 To accept defendants' position would be to leave the plaintiff without a remedy and to emasculate the court. It is simply common sense that when a court orders a defendant to provide plaintiff a remedy that is justified and within the law, the court must have the power to assure that the defendant complies with the order. Otherwise, neither the remedy nor the original order would have meaning. Despite the evident veracity of this proposition, defendants' arguments will be considered.

 Federal Rule of Appellate Procedure clearly is inapplicable in this situation. Appellate Rule 21 provides an avenue to obtain review of a trial court's action, or to order the trial court to act when it has failed to do so. See Fed. R. App. P. 21. Here there is a judgment against defendants with which they allegedly have not complied. The relief sought by plaintiff is an order to defendants to comply with the judgment, which is outside the scope of available relief under Appellate Rule 21.

 Title 28, Section 1361 of the United States Code confers original jurisdiction on the district courts "of any action in the nature of mandamus to compel an officer or employee of the United Sates or any agency thereof to perform a duty owed to the plaintiff." Also, Federal Rule of Civil Procedure 70 provides in part "if a judgment directs a party . . . to perform any other specific act and the party fails to comply within the time specified, the court may direct the act to be done at the cost of the disobedient party by some other person appointed by the court . . . . The court may also in proper cases adjudge the party in contempt." See Gilbert v. Johnson, 490 F.2d 827, 829-30 (5th Cir. 1974)(per curiam)(Rule 70 motion in action for unlawful dismissal against Veteran's Administration officials proper; defendants failed to pay money judgment, provide letter of charges, hold hearing, pay salary, and provide tasks commensurate with plaintiff's medical specialty as ordered by the court).

 Here, both defendants are employees of the United States or an Agency of the United States. Further, the defendants do have a duty to the plaintiff to comply with the prior judgment.

 Additionally, a judgment was previously rendered for the plaintiff and against the defendants. The plaintiff alleges that defendants have failed to fully comply with that judgment. Thus, another person may be directed to comply with the judgment, at the cost of the defendants. See Fed. R. Civ. P. 70. Furthermore, in a case such as this where the plaintiff has waited for twelve years for the vindication of her rights, it would certainly be appropriate to hold defendants in contempt should it be found that defendants have failed to comply with the prior order. See id.

 Accordingly, exercise of jurisdiction over plaintiff's petition for a writ of mandamus is proper. See 28 U.S.C. § 1361. Further, it is unnecessary to rename the petition.


 The plaintiff complains that defendants have failed to comply with the May 1996 order with respect to her back pay award, employment documents, and retirement accounts. Each will be considered seriatim.

 A. Night Differential and Overtime

 The INS designated $ 3,990.02 of plaintiff's back pay award as overtime pay. (See Def.'s Opp'n Ex. 3.) Plaintiff now argues that the $ 3,990.02 is significantly less than the amount she would have earned as overtime, due to the mandatory nature of overtime for immigration inspectors. Plaintiff further argues that she would have earned night differential pay, as immigration inspectors are required to work some evening hours. The plaintiff cites 5 U.S.C. § 5596, which provides that back pay awards due to unjustified personnel actions should include any applicable allowances and differentials which would have been earned but for the unjustified personnel action. The plaintiff requests clarification of her entitlement to overtime and night differential pay for the period of her back pay award.

 The defendants argue that any additional night differential and overtime pay is unjustified, as it was not included in the judgment. The defendants again state that the back pay award included $ 3,990.02 in overtime pay.

 First, how the INS concluded that the back pay award included $ 3,990.02 in overtime pay is mystifying. No overtime was specified in the back pay award. Plaintiff was awarded $ 154,036.54, plus interest, in basic pay covering the period from December 13, 1991, to June 30, 1996.

 Second, the time to set forth all elements of damages is at trial. At trial, the plaintiff failed to adduce evidence regarding night differential and overtime pay. *fn6" Accordingly, the back pay award was made based upon evidence presented at trial. This back pay award was for basic salary only, and did not include overtime or night differential pay. Further, to now add overtime or night differential elements to plaintiff's back pay award would be tantamount to altering the judgment. Such an alteration would be contrary to the Federal Rules of Civil Procedure. The back pay award, consisting of basic salary only, with no overtime or night differential pay, must stand.

 Finally, TSP and FERS contributions are calculated based upon basic salary. Accordingly, the pay statement provided by INS to plaintiff reflecting $ 3,990.02 in overtime pay must be corrected to reflect 100% basic salary and zero overtime. Further, the TSP and FERS contributions from the back pay award must be recalculated based upon a correct basic salary amount.

 B. Employment Documents

 The INS prepared performance appraisals for plaintiff reflecting a "fully satisfactory" performance level. Officer Corps ratings were also prepared reflecting increasing experience levels over the years. However, no rating points were given for classifications such as awards, Officer Corps Activities, and community service. (See Defs.' Opp'n Ex. 5.)

 Plaintiff argues that the performance appraisal and officer corps rating forms provided by INS for her personnel file were improperly completed, and that some documents needed for promotion or transfer have not been provided. Additionally, plaintiff argues that a mere "fully successful" performance appraisal and the low scores reflected on her officer corps ratings will preclude her from attaining any future promotion or transfer. On the other hand, defendants argue that the records provided completely conform to the order; these records are all that is needed to seek promotion or transfer; and any additional comments cannot be added because, in fact, plaintiff did not work during the period covered by the appraisals.

 The May 1996 order required defendants to "prepare annual performance appraisals and officer corps ratings reflecting a minimum 'fully successful' level of performance for the period of May 26, 1985, until the date of plaintiff's reinstatement." 928 F. Supp. at 1223. The performance appraisals provided by INS clearly meet the requirements set forth in the order. To require any rating higher than "fully successful" and an addition of comments regarding plaintiff's work during a period in which she did not actually work would be to require the INS to engage in pure speculation. The court will not engage in such speculation, nor require the INS to do so. See Sands v. Runyon, 28 F.3d 1323, 1331 (2d Cir. 1994)( "Circumstances are few in which a court can properly order an employer to sweeten a plaintiff's personnel file with praise of the employee's talents, abilities, and work habits--which affirmations might not even be true.") Further, the INS has represented, by sworn affidavit ...

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