# Tammie Morley v. Department of Veterans Affairs

> Merit Systems Protection Board · November 20, 2024 · 2024 MSPB 17

URL: https://www.frixlaw.com/law-library/cases/10747899

## Case

- **Court:** Merit Systems Protection Board
- **Decided:** November 20, 2024
- **Citations:** 2024 MSPB 17
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 6 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10747899

## How later opinions describe it (automated extraction)

- explaining that, to establish entitlement to an award of attorney fees under 5 U.S.C. § 7701 (g)(1), an appellant must show, among other things, that he is a prevailing party

## Opinion text

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
2024 MSPB 17
Docket No. CH-0714-22-0256-A-1

Tammie Morley,
Appellant,
v.
Department of Veterans Affairs,
Agency.
November 20, 2024

Christopher Forasiepi , Esquire, and Carson S. Bailey , Esquire, Dallas,
Texas, for the appellant.

Nicholas Peluso , Esquire, Hines, Illinois, for the agency.

Stephanie Macht and Grant T. Swinger , Esquire, Westchester, Illinois, for
the agency.

BEFORE

Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member

OPINION AND ORDER

¶1 The appellant has filed a petition for review of the addendum initial
decision that denied her motion for attorney fees. For the reasons discussed
below, we DENY the petition for review and AFFIRM the initial decision. The
appellant’s motion for attorney fees is DENIED.
2

BACKGROUND
¶2 The agency (DVA or VA) removed the appellant from her position as a
Registered Respiratory Therapist under 38 U.S.C. § 714, based on the charge of
failure to meet position requirements. Morley v. Department of Veterans Affairs,
MSPB Docket No. CH-0714-22-0256-I-1, Initial Appeal File (IAF), Tab 1 at 1, 8.
The appellant appealed her removal to the Board, and the administrative judge
issued an initial decision finding that the agency proved its charge. IAF, Tab 27,
Initial Decision (ID) at 4. He also found that the appellant did not prove her
affirmative defenses that the agency retaliated against her for taking leave
authorized by the Family and Medical Leave Act or violated her constitutional
due process rights in effecting her removal. ID at 7-12. However, the
administrative judge determined that the agency failed to give bona fide
consideration to the Douglas factors in making its penalty determination and
remanded the matter to the agency to “re-issue a decision regarding the
appellant’s removal,” or, rather, “for a proper penalty determination consistent
with this decision and relevant precedent.” ID at 12-16; see also Douglas v.
Veterans Administration, 5 M.S.P.R. 280, 305-06 (1981) (articulating a
nonexhaustive list of 12 relevant factors to be considered in determining the
appropriateness of an imposed penalty). 1 The administrative judge’s initial
decision became the final decision of the Board when neither party petitioned the
Board for review. 5 C.F.R. § 1201.113.
¶3 The appellant thereafter filed a motion for attorney fees seeking $18,120.00
for the two attorneys who represented her in her removal appeal. Morley v.
Department of Veterans Affairs, MSPB Docket No. CH-0714-22-0256-A-1,
Attorney Fees File (AFF), Tab 1. The administrative judge subsequently issued

1
In 2021, the U.S. Court of Appeals for the Federal Circuit decided Connor v.
Department of Veterans Affairs, 8 F.4th 1319 (Fed. Cir. 2021), wherein it found that the
DVA and the Board must consider and apply the Douglas factors to the selection and
the review of penalties in DVA disciplinary actions taken under 38 U.S.C. § 714.
Connor, 8 F.4th at 1326-27.
3

an addendum initial decision denying the appellant’s motion, finding that the
appellant did not qualify as a “prevailing party” and, in any case, that she did not
show that an award of attorney fees was warranted in the interest of justice. AFF,
Tab 5, Addendum Initial Decision (AID) at 4-7. He thus found it unnecessary to
evaluate the reasonableness of the fees sought. AID at 7 n.2.
¶4 The appellant has filed a petition for review challenging the addendum
initial decision. Petition for Review (PFR) File, Tab 1. The agency has filed a
response. PFR File, Tab 5. The appellant has filed a reply. PFR File, Tab 6.

ANALYSIS
¶5 To establish entitlement to an award of attorney fees under 5 U.S.C.
§ 7701(g)(1), an appellant must show that: (1) she was the prevailing party;
(2) she incurred attorney fees pursuant to an existing attorney-client relationship;
(3) an award of attorney fees is warranted in the interest of justice; and (4) the
amount of attorney fees claimed is reasonable. See Caros v. Department of
Homeland Security, 122 M.S.P.R. 231, ¶ 5 (2015). On review, the appellant
reargues that she was the prevailing party, PFR File, Tab 1 at 6-10, and that she
showed that attorney fees were warranted in the interest of justice, id. at 10-12.
There is no dispute in this case that an attorney-client relationship existed, and
the appellant does not challenge the administrative judge’s finding that it was
unnecessary to evaluate the reasonableness of the fees sought. PFR File, Tab 1,
Tab 6 at 10.

The administrative judge correctly determined that the appellant was not the
prevailing party.
¶6 The determination of an award of attorney fees is based on the final
decision of the Board and whether, by the final decision, the appellant is a
prevailing party. Baldwin v. Department of Veterans Affairs, 115 M.S.P.R. 413,
¶ 11 (2010). The Board has expressly adopted the standard set forth by the
U.S. Supreme Court that an appellant is considered to have prevailed in a case
4

and to be entitled to attorney fees only if she obtains an “enforceable order”
resulting in a “material alteration of the legal relationship of the parties.” Id.
(citing Buckhannon Board and Care Home, Inc. v. West Virginia Department of
Health and Human Resources, 532 U.S. 598, 604 (2001)). A plaintiff “prevails”
when actual relief on the merits of her claim materially alters the legal
relationship between the parties by modifying the defendant’s behavior in a way
that directly benefits the plaintiff. Id. An appellant is, or is not, a prevailing
party in the case as a whole, and whether she may be deemed a prevailing party
depends on the relief ordered in the Board’s final decision. Driscoll v. U.S.
Postal Service, 116 M.S.P.R. 662, ¶ 9 (2011).
¶7 In her motion for attorney fees, the appellant argued that she was the
prevailing party because the administrative judge’s initial decision materially
altered the legal relationship between the parties by “obligating the [a]gency to
rescind its prior decision with the option of reissuing a decision which adequately
applie[d] the Douglas [f]actors.” AFF, Tab 1 at 5. She further claimed that the
agency’s first decision to remove her from her position was “no longer
enforceable.” Id. at 6. In the addendum initial decision, however, the
administrative judge concluded the opposite, reasoning that the appellant was not
the prevailing party. AID at 2. Specifically, the initial decision did not
materially alter the legal relationship between the parties because the initial
decision did not vacate the agency’s decision or direct the agency to cancel the
removal while the agency was in the process of issuing a new decision, and
because it did not directly benefit the appellant. AID at 5. The administrative
judge further explained that the initial decision did not provide the appellant with
any of the relief she requested and noted that the appellant had not challenged the
reasonableness of the agency’s penalty on appeal. AID at 5. He then analogized
the facts at issue here to those presented in a comparable Board decision. AID
at 5-6 (citing McKenna v. Department of the Navy, 104 M.S.P.R. 22, ¶¶ 2, 7
(2006) (finding that where the administrative judge ordered the agency to
5

consider the appellant’s qualification for higher-graded positions and to place him
in one if he was found to be qualified, the appellant was not the prevailing party
because he did not achieve his objective of obtaining a position at a higher grade
and remained “exactly where he was when he filed the underlying appeal”)).
¶8 On review, the appellant reargues that the initial decision materially altered
the existing relationship between her and the agency by “obligating” the agency
to “rescind” its prior decision. PFR File, Tab 1 at 7. In this regard, she asserts
that although the administrative judge emphasized that the initial decision
directed the agency to “re-issue” the prior decision instead of “rescind” it, this
distinction “is not material for the appropriate legal analysis,” and the initial
decision was an enforceable judgement that, as a matter of law, was “adequate to
constitute a material alteration” of the legal relationship between the parties. Id.
at 8. She also contends that the administrative judge erred in finding that she did
not directly benefit from the initial decision because she did not receive any of
the relief she requested. Id. at 8-9. She further asserts that she received “a
favorable outcome” in this case because a “plain reading of the instructions to the
[a]gency to ‘re-issue’ the decision to remove [her] indicates that the [a]gency
would need to rescind its prior decision before re-issuing the decision again,”
thus entitling her to “backpay, an expungement of her personnel file of the prior
decision, and reinstatement until the new decision could be issued.” Id. at 10.
¶9 The appellant’s arguments lack merit. Contrary to the appellant’s
characterizations, the initial decision in this case only vacated the agency’s
penalty analysis and remanded that specific issue back to the agency for a proper
penalty determination consistent with relevant precedent. ID at 16. As the
administrative judge correctly explained, the initial decision did not direct the
agency to vacate the appellant’s removal outright, nor did it otherwise
specifically “obligate” the agency to “rescind” its first removal decision. ID
at 16; AID at 5. The administrative judge’s order is consistent with how our
reviewing court has directed the Board to handle such cases. See, e.g., Connor v.
6

Department of Veterans Affairs, 8 F.4th 1319, 1326 (Fed. Cir. 2021) (stating that
“[a]bsent mitigation authority . . . if the Board determines that the VA failed to
consider the Douglas factors . . . the Board must remand to the VA for a
redetermination of the penalty”). Further, although the appellant emphasizes that
she believes that the administrative judge’s initial decision was an enforceable
judgement that was “adequate to constitute a material alteration” to the parties’
legal relationship, her argument ignores the full scope of what the Board
considers when determining whether an appellant is a prevailing party. PFR File,
Tab 1 at 7-8. Specifically, as stated above, an appellant prevails “ when actual
relief on the merits of [her] claim materially alters the legal relationship between
the parties by modifying the [agency’s] behavior in a way that directly benefits
the [appellant,]” considering the case as a whole. Baldwin, 115 M.S.P.R. 413,
¶ 11 (emphasis added); see also Farrar v. Hobby, 506 U.S. 103, 109-12 (1992)
(stating that a plaintiff may be considered a prevailing party if they succeed on
any significant issue in litigation that achieves some of the benefit the parties
sought in bringing suit, and that they must obtain at least some relief on the
merits of their claim); Driscoll, 116 M.S.P.R. 662, ¶ 9.
¶10 Significantly, the administrative judge here still found that the agency
proved its charge and that the appellant did not prove her affirmative defenses.
ID at 4-12. Regardless of whether the appellant specifically challenged the
reasonableness of the penalty on appeal, she did not receive any of the other
actual relief she sought—outright reversal of her removal based on the merits or
cancellation of her removal based on an alleged affirmative defense. See ID at 5;
IAF, Tab 1 at 6; Tab 25, Hearing Testimony at 29:00 (the appellant’s closing
argument). Contrary to the appellant’s claims, the initial decision did not
obviously require the agency to rescind its first removal decision, thus entitling
her to backpay, expungement of the prior decision, and reinstatement until the
new decision could be issued. PFR File, Tab 1 at 10. As stated above, we agree
with the administrative judge that the initial decision in this case did not
7

specifically obligate the agency to rescind its first removal decision, nor did it in
fact direct the agency to vacate the appellant’s removal outright. ID at 16;
Morley v. Department of Veterans Affairs, MSPB Docket No. CH-0714-22-0256-
C-1, Compliance File (CF), Tab 5, Compliance Initial Decision (CID) at 4-5; see
also In re Sang-Su Lee, 277 F.3d 1338, 1346 (Fed. Cir. 2002) (agreeing that
vacatur and remand are different forms of relief). In this regard, we agree with
the administrative judge that at the end of her appeal the appellant still found
herself in the exact same place as when she started—separated from her agency.
AID at 6; see also McKenna, 104 M.S.P.R. 22, ¶ 7. In addition, following the
initial decision, the agency updated its prior final decision and again removed the
appellant from Federal service. See CF, Tab 3 at 7.
¶11 Moreover, as the administrative judge correctly observed, although the
appellant may have obtained “some additional process” as a result of the initial
decision, she did not receive any relief on the merits of her claim. AID at 6. The
appellant did not receive a final decision from the Board on the merits that
awarded her any relief that materially changed the legal relationship of the
parties. See Baldwin, 115 M.S.P.R. 413, ¶ 11. Accordingly, we agree with the
administrative judge that the appellant was not the prevailing party and that this
finding dictates that her motion for attorney fees be denied. See AID at 6.

We agree with the administrative judge that, in any event, the appellant did not
show that attorney fees were warranted in the interest of justice.
¶12 To prove entitlement to an attorney fees award, an appellant who is a
prevailing party must also show that an attorney fees award is in the interest of
justice. Allen v. U.S. Postal Service, 2 M.S.P.R. 420, 427 (1980). An award of
attorney fees may be warranted in the interest of justice when: (1) the agency
engaged in a prohibited personnel practice; (2) the agency action was clearly
without merit or wholly unfounded, or the employee is substantially innocent of
the charges; (3) the agency initiated the action in bad faith; (4) the agency
committed a gross procedural error that prolonged the proceeding or severely
8

prejudiced the employee; or (5) the agency knew or should have known that it
would not prevail on the merits when it brought the proceeding. Id. at 434-35.
¶13 In the addendum initial decision, the administrative judge explained that,
even if the appellant had proved that she was the prevailing party, she would still
not be entitled to fees because she did not make any argument as to why fees
were warranted in the interest of justice. AID at 7. On review, the appellant
alleges that the administrative judge erred in finding that she did not make any
legal arguments regarding the interest-of-justice standard, seemingly because she
believes that this case “involved a finding” that the agency engaged in a
prohibited personnel practice under 5 U.S.C. § 2302(b)(12) by failing to follow
the procedures established in Douglas. 2 Id. at 11. Additionally, she claims that,
if the administrative judge had concerns about deficiencies in her motion for
attorney fees, then he should have afforded her an opportunity to address the
matter. PFR File, Tab 6 at 9.
¶14 As an initial matter, we agree with the administrative judge that the
appellant is not the prevailing party. Nevertheless, we find that, even viewing the
whole attorney fee file and the appellant’s legal arguments in context, the
appellant did not meet her burden. AID at 7. Although the appellant maintains
on review that the administrative judge should have afforded her an opportunity
to address this issue if he had concerns, the case that she relies on in support of
her argument concerns an administrative judge’s responsibilities when analyzing
the reasonableness of the amount of attorney fees claimed, not when assessing
whether an appellant is the prevailing party or whether they established that fees
are warranted in the interest of justice. See Guy v. Department of the Army,
118 M.S.P.R. 45, ¶ 11 (2012). In any event, the administrative judge here
properly notified the appellant of her burden to establish entitlement to fees in his

2
Under 5 U.S.C. § 2302(b)(12), it is a prohibited personnel practice to “take or fail to
take any other personnel action if the taking of or failure to take such action violates
any law, rule, or regulation implementing, or directly concerning, the merit system
principles” set forth at 5 U.S.C. § 2301.
9

acknowledgement order, and the agency specifically discussed this very issue in
detail in its response to the appellant’s motion for fees. AFF, Tab 2, Tab 3 at 7.
However, the appellant neglected to address the issue in either her motion for
attorney fees or her reply to the agency’s response. AFF, Tabs 1, 4.
Additionally, not only is the appellant’s claim that this case involved a finding
that the agency engaged in a prohibited personnel practice under 5 U.S.C.
§ 2302(b)(12) inaccurate, but she also failed to raise any such argument below.
See Banks v. Department of the Air Force , 4 M.S.P.R. 268, 271 (1980) (the Board
generally will not consider an argument raised for the first time in a petition for
review absent a showing that it is based on new and material evidence not
previously available despite the party’s due diligence). 3
¶15 This is the final decision of the Merit Systems Protection Board in this
appeal. Title 5 of the Code of Federal Regulations, section 1201.113 (5 C.F.R.
§ 1201.113).

NOTICE OF APPEAL RIGHTS 4
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 appropriate forum with which to file. 5 U.S.C. § 7703(b).
3
In the addendum initial decision, the administrative judge remarked that, even had the
appellant met the definition of a prevailing party and put forward an argument on the
interest-of-justice issue, the small degree of relief one could interpret the initial
decision as providing her was de minimis at most and insufficient to satisfy the
interest-of-justice standard. AID at 7. To this end, the appellant also alleges on review
that the administrative judge erred in stating that she “would only gain a de minimis
benefit from obtaining attorney’s fees” because, if her motion had been granted, she
would have gained significantly more than simply a de minimis benefit. PFR File,
Tab 1 at 11-12. However, the Board has held that under the interest-of-justice standard,
a fee award may not be warranted where the relief obtained is de minimis. See
Montalvo v. U.S. Postal Service, 122 M.S.P.R. 687, 694 (2015). This proposition refers
to the relief obtained through the initial decision, not relief through the awarding of
attorney fees. Id.
4
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.
10

Although we offer the following 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.
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.

(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
12

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. 5 The court of appeals must receive your petition for
5
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
July 7, 2018, permanently allows appellants to file petitions for judicial review of
13

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.

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.
14

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 .

Gina K. Grippando
Clerk of the Board
Washington, D.C.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10747899. Public record. Not legal advice.