490 U.S. 1054 (1989)

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U.S. Supreme Court

HAMBSCH v. U.S. , 490 U.S. 1054 (1989)

490 U.S. 1054

Anthony R. HAMBSCH, III,
UNITED STATES. No. 88-6120.

Supreme Court of the United States

May 1, 1989

On petition for writ of certiorari to the United States Court of Appeals for the Federal Circuit.

The petition for a writ of certiorari is denied.

Memorandum of Justice STEVENS respecting the denial of the petition for writ of certiorari.

There are times when it is important to emphasize the fact that an order denying a petition for a writ of certiorari is not a ruling on the merits of any question presented by the petition. See Singleton v. Commissioner, 439 U.S. 940, 942, 337 (1978) ( STEVENS, J., respecting the denial of certiorari). In my opinion, this is such an occasion.

Justice O'CONNOR, with whom Justice SCALIA and Justice KENNEDY join, dissenting.

In this case, the Court of Appeals has misread a statute designed to protect the rights of a class of federal workers and misapplied our decision in United States v. Testan, 424 U.S. 392d 114 (1976). The result is a jurisdictional ruling which even respondent here, the United States, does not defend. The Solicitor General has informed this Court that the United States views the jurisdictional holding of the Court of Appeals as plainly wrong and asks that its decision be vacated and remanded. See Brief for United States 6- 7. Because the error is plain, and because it carries the clear potential of compounding itself in the Back Pay Act jurisprudence of the Court of Appeals for the Federal Circuit, I would grant the petition and summarily reverse the judgment below.

Petitioner, a former member of the United States Secret Service Uniformed Division (USSSUD), was involved in a motorcycle accident while allegedly responding to a call for relief at 1310 L Street, N.W., in Washington, D.C., which is the headquarters of the Secret Service. As he and a fellow officer were passing through a private alley on motorcycles, an automobile exited from

Page 490 U.S. 1054 , 1055

an underground garage and struck petitioner's motorcycle, pinning him underneath his vehicle. Petitioner received immediate medical care, and later underwent corrective surgery for damage to his left knee. After the accident, in order to receive paid administrative leave, petitioner requested a determination that the accident occurred in the performance of his duties. Such a determination was critical to petitioner's rights under 5 U.S.C. 6324(a), which provides: "Sick leave may not be charged to the account of a member of the Metropolitan Police force or the Fire Department of the District of Columbia, the United States Park Police force, or the Executive Protective Service force for an absence due to injury or illness resulting from the performance of duty." Pursuant to agency regulations, an investigation and subsequent review by the Administrative Review Board were conducted. The agency determined that under its regulations petitioner's injury did not occur in "the performance of duty" due to the fact that he was in violation of local traffic regulations and USSSUD regulations at the time of the accident. Petitioner was thus denied administrative leave for the period of his convalescence, and after his sick leave was exhausted, he was placed on leave without pay.

Petitioner subsequently brought this action in the United States Claims Court, seeking a determination that he was erroneously denied paid administrative leave by the agency and was thus entitled to an award of backpay for the period in question. Petitioner premised the Claims Court's jurisdiction on that portion of the Tucker Act now codified at 28 U.S.C. 1491(a)(1), which provides generally that the United States Claims Court "shall have jurisdiction to render judgment upon any claim against the United States founded . . . upon . . . any Act of Congress." The "Act of Congress" upon which petitioner relied was the Back Pay Act, 5 U.S.C. 5596, which provides in pertinent part:

"(b)(1) An employee of an agency who . . . is found by appropriate authority under applicable law, rule, regulation, or collective bargaining agreement, to have been affected by an unjustified or unwarranted personnel action which has resulted in the withdrawal or reduction of all or part of the pay, allowances, or differentials of the employee-

"(A) is entitled . . . [to] . . .

"(i) an amount equal to all or any part of the pay, allowances or differentials, as applicable, which the employee nor- [490 U.S. 1054 , 1056]

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