UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD
JOHN DOE, DOCKET NUMBER Appellant, DA-0752-15-0420-A-1
v.
DEPARTMENT OF VETERANS DATE: June 1, 2023 AFFAIRS, Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Tracie Jackson, Esquire, Houston, Texas, for the appellant.
Jeffrey T. Reeder, Esquire, Dallas, Texas, for the agency.
Thomas Herpin, Esquire, Houston, Texas, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman Raymond A. Limon, Member
FINAL ORDER
¶1 The agency has filed a petition for review of the addendum initial decision, which awarded the appellant $28,104.92 in attorney fees and costs. In its petition for review, the agency argues that, under the guidance provided by the U.S.
1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). 2
Supreme Court’s decision in Hensley v Eckerhart, 461 U.S. 424 (1983), the attorney fees award should be reduced on two grounds: (1) the appellant failed to prove that the work performed on his involuntary retirement appeal, on which he was not successful, substantially advanced the appellant’s interest in his appeal of a denial of a within-grade increase, on which he was successful; and (2) the appellant failed to prove the relief granted was substantial in comparison to the relief requested. Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpreta tion of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an ab use of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner ’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we conclude that the agency has not established any basis under section 1201.115 for granting its petition for review. Therefore, we DENY the petition for review. Except as expressly MODIFIED to find that fees are awarded under 5 U.S.C. § 7701(g)(2), we AFFIRM the addendum initial decision. ¶2 The administrative judge found that fees were warranted under 5 U.S.C. § 7701(g)(1), which authorizes the award of fees under an interest of justice standard and does not allow for an award of costs. However, the administrative judge found during the merits phase of the appellant’s appeal that the appellant established that the agency had discriminated against him on the basis of sex, which is prohibited under Title VII of the Civil Rights Act of 1964. Doe v. Department of Veterans Affairs, MSPB Docket No. DA-0752-15-0420-I-1, Initial Decision at 19-25 (Sept. 26, 2016). When there is a finding of unlawful 3
discrimination, the award of attorney fees is properly made under 5 U.S.C. § 7701(g)(2). Specifically, that provision states that if an employee “is the prevailing party and the decision is based on a finding of discrimination prohibited under section 2302(b)(1) of [Title 5], the payment of attorney fees shall be in accordance with the standards prescribed under section 706(k) of the Civil Rights Act of 1964 (42 U.S.C. § 2000e-5(k)).” 5 U.S.C. § 7701(g)(2). The provision at 42 U.S.C. § 2000e-5(k) states that the court, “in its discretion, may allow the prevailing party . . . a reasonable attorney’s fee . . . as part of the costs . . . .” As noted, the Board is provided with the authority to award fees under that provision by 5 U.S.C. § 7701(g)(2). Thus, fees may be awarded by the Board under section 7701(g)(2) if the appellant is the prevailing party. There is no application of the interest of justice standard to such a fee award. Th erefore, the administrative judge erred in determining whether attorney fees were warranted under the interest of justice standard of section 7701(g)(1). ¶3 Despite the error discussed above, the administrative judge found that the appellant met the interest of justice standard entitling him to fees and also acknowledged that the appellant was entitled to costs under section 7701(g)(2). Thus, notwithstanding the administrative judge’s error in determining the fee award under the interest of justice standard of section 7701(g)(1), the appellant has received all the fees and costs to which he was entitled under the more inclusive standard of section 7701(g)(2). Accordingly, we find that the administrative judge’s error did not harm the appellant’s substantive rights and thus is not a basis to reverse the initial decision. Panter v. Department of the Air Force, 22 M.S.P.R. 281, 282 (1984) (stating that an adjudicatory error that is not prejudicial to a party’s substantive rights provides no basis for reversal of an initial decision). 4
ORDER ¶4 We ORDER the agency to pay the attorney of record $28,104.92 in fees and costs. The agency must complete this action no later than 20 days after the date of this decision. Title 5 of the United States Code, section 1204(a)(2) (5 U.S.C. § 1204(a)(2)). ¶5 We also ORDER the agency to tell the appellant and the attorney promptly in writing when it believes it has fully carried out the Board ’s Order and of the actions it has taken to carry out the Board’s Order. We ORDER the appellant and the attorney to provide all necessary information that the agency requests to help it carry out the Board’s Order. The appellant and the attorney, if not notified, should ask the agency about its progress. See 5 C.F.R. § 1201.181(b). ¶6 No later than 30 days after the agency tells the appellant or the attorney that it has fully carried out the Board’s Order, the appellant or the attorney may file a petition for enforcement with the office that issued the initial decision on this appeal, if the appellant or the attorney believes that the agency did not fully carry out the Board’s Order.
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UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD
JOHN DOE, DOCKET NUMBER Appellant, DA-0752-15-0420-A-1
v.
DEPARTMENT OF VETERANS DATE: June 1, 2023 AFFAIRS, Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Tracie Jackson, Esquire, Houston, Texas, for the appellant.
Jeffrey T. Reeder, Esquire, Dallas, Texas, for the agency.
Thomas Herpin, Esquire, Houston, Texas, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman Raymond A. Limon, Member
FINAL ORDER
¶1 The agency has filed a petition for review of the addendum initial decision, which awarded the appellant $28,104.92 in attorney fees and costs. In its petition for review, the agency argues that, under the guidance provided by the U.S.
1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). 2
Supreme Court’s decision in Hensley v Eckerhart, 461 U.S. 424 (1983), the attorney fees award should be reduced on two grounds: (1) the appellant failed to prove that the work performed on his involuntary retirement appeal, on which he was not successful, substantially advanced the appellant’s interest in his appeal of a denial of a within-grade increase, on which he was successful; and (2) the appellant failed to prove the relief granted was substantial in comparison to the relief requested. Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpreta tion of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an ab use of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner ’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we conclude that the agency has not established any basis under section 1201.115 for granting its petition for review. Therefore, we DENY the petition for review. Except as expressly MODIFIED to find that fees are awarded under 5 U.S.C. § 7701(g)(2), we AFFIRM the addendum initial decision. ¶2 The administrative judge found that fees were warranted under 5 U.S.C. § 7701(g)(1), which authorizes the award of fees under an interest of justice standard and does not allow for an award of costs. However, the administrative judge found during the merits phase of the appellant’s appeal that the appellant established that the agency had discriminated against him on the basis of sex, which is prohibited under Title VII of the Civil Rights Act of 1964. Doe v. Department of Veterans Affairs, MSPB Docket No. DA-0752-15-0420-I-1, Initial Decision at 19-25 (Sept. 26, 2016). When there is a finding of unlawful 3
discrimination, the award of attorney fees is properly made under 5 U.S.C. § 7701(g)(2). Specifically, that provision states that if an employee “is the prevailing party and the decision is based on a finding of discrimination prohibited under section 2302(b)(1) of [Title 5], the payment of attorney fees shall be in accordance with the standards prescribed under section 706(k) of the Civil Rights Act of 1964 (42 U.S.C. § 2000e-5(k)).” 5 U.S.C. § 7701(g)(2). The provision at 42 U.S.C. § 2000e-5(k) states that the court, “in its discretion, may allow the prevailing party . . . a reasonable attorney’s fee . . . as part of the costs . . . .” As noted, the Board is provided with the authority to award fees under that provision by 5 U.S.C. § 7701(g)(2). Thus, fees may be awarded by the Board under section 7701(g)(2) if the appellant is the prevailing party. There is no application of the interest of justice standard to such a fee award. Th erefore, the administrative judge erred in determining whether attorney fees were warranted under the interest of justice standard of section 7701(g)(1). ¶3 Despite the error discussed above, the administrative judge found that the appellant met the interest of justice standard entitling him to fees and also acknowledged that the appellant was entitled to costs under section 7701(g)(2). Thus, notwithstanding the administrative judge’s error in determining the fee award under the interest of justice standard of section 7701(g)(1), the appellant has received all the fees and costs to which he was entitled under the more inclusive standard of section 7701(g)(2). Accordingly, we find that the administrative judge’s error did not harm the appellant’s substantive rights and thus is not a basis to reverse the initial decision. Panter v. Department of the Air Force, 22 M.S.P.R. 281, 282 (1984) (stating that an adjudicatory error that is not prejudicial to a party’s substantive rights provides no basis for reversal of an initial decision). 4
ORDER ¶4 We ORDER the agency to pay the attorney of record $28,104.92 in fees and costs. The agency must complete this action no later than 20 days after the date of this decision. Title 5 of the United States Code, section 1204(a)(2) (5 U.S.C. § 1204(a)(2)). ¶5 We also ORDER the agency to tell the appellant and the attorney promptly in writing when it believes it has fully carried out the Board ’s Order and of the actions it has taken to carry out the Board’s Order. We ORDER the appellant and the attorney to provide all necessary information that the agency requests to help it carry out the Board’s Order. The appellant and the attorney, if not notified, should ask the agency about its progress. See 5 C.F.R. § 1201.181(b). ¶6 No later than 30 days after the agency tells the appellant or the attorney that it has fully carried out the Board’s Order, the appellant or the attorney may file a petition for enforcement with the office that issued the initial decision on this appeal, if the appellant or the attorney believes that the agency did not fully carry out the Board’s Order. The petition should contain specific reasons why the appellant or the attorney believes the agency has not fully carried out the Board’s Order, and should include the dates and results of any communications with the agency. See 5 C.F.R. § 1201.182(a).
NOTICE OF APPEAL RIGHTS 2 The initial decision, as supplemented by this Final Order, constitutes the Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appro priate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
2 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 5
summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information.
(1) Judicial review in general. As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. 6
If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of discrimination. This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision—including a disposition of your discrimination claims—by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board, 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court-appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx. Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the 7
EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012. This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction. 3 The court of appeals must receive your petition for
3 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on 8
review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case.
July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 9
Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
FOR THE BOARD: /s/ for Jennifer Everling Acting Clerk of the Board Washington, D.C.