Robert Southerland v. Department of Defense

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

2014 MSPB 88

Docket No. SF-0752-09-0864-A-1

Robert Southerland,

Appellant,

v.

Department of Defense,

Agency.

December 18, 2014

Cindy Fox, Esquire, San Francisco, California, for the appellant.

Christine J. Kim, Esquire, Stockton, California, for the agency.

BEFORE

Susan Tsui Grundmann, Chairman

Anne M. Wagner, Vice Chairman

Mark A. Robbins, Member

OPINION AND ORDER

¶1 The appellant has filed a petition for review of an addendum initial

decision that denied his motion for attorney fees. For the following reasons, we

DENY the petition for review, AFFIRM the addendum initial decision as

modified to further discuss the Equal Employment Opportunity Commission

(EEOC) cases cited by the appellant, and DENY the fee petition.

2

BACKGROUND

¶2 The procedural history of this matter is somewhat complicated and we

recite the pertinent facts from our decision in Southerland v. Department of

Defense, 119 M.S.P.R. 566 (2013). The agency suspended the appellant for

30 days based on a charge of insubordination due to his failure to provide

requested medical documentation, and he filed a Board appeal. Id., ¶¶ 2-5; see

Southerland v. Department of Defense, MSPB Docket Nos. SF-0752-09-0864-I-1,

SF-0752-09-0864-I-2. Subsequently, the agency removed the appellant based on

the following charges: (1) insubordination for not providing requested medical

documentation; (2) 1 hour of absence without leave (AWOL) on August 25, 2009;

and (3) failure to request leave in accordance with established procedures.

Southerland, 119 M.S.P.R. 566, ¶ 7. The appellant filed a Board appeal

challenging the removal action. Id.; see Southerland v. Department of Defense,

MSPB Docket No. SF-0752-10-0111-I-1. The administrative judge joined the

suspension and removal appeals for hearing purposes. Southerland, 119 M.S.P.R.

566, ¶ 8 n.2. The administrative judge, among other things, sustained the AWOL

and failure to request leave charges, did not sustain either of the insubordination

charges, found that the appellant proved his affirmative defense of disability

discrimination in the removal action, and reversed the agency’s actions. Id., ¶ 8.

The Board affirmed the administrative judge’s findings regarding the AWOL and

failure to request leave charges, but vacated the administrative judge’s findings

regarding the insubordination charges because he failed to make necessary

credibility determinations. Id., ¶ 9. The Board also remanded the appellant’s

claim of disability discrimination, finding, in pertinent part, that the

administrative judge’s consideration of the appellant’s disability discrimination

claim under the Americans with Disabilities Act Amendments Act of 2008

(ADAAA) should not employ a mixed-motive analysis, but instead, should apply

a “but for” analysis. Id.

3

¶3 On remand, the administrative judge sustained both insubordination

charges, found that the appellant did not prove his disability discrimination claim

in the removal action, and affirmed the 30-day suspension and removal. Id.,

¶¶ 10-11; see Southerland v. Department of Defense, MSPB Docket Nos.

SF-0752-09-0864-B-1, SF-0752-10-0111-B-1, Remand File, Remand Initial

Decision (Jan. 20, 2012). The Board, with Member Robbins concurring, affirmed

the administrative judge’s decision to sustain both insubordination charges, and it

upheld the suspension and removal actions. Southerland, 119 M.S.P.R. 566,

¶¶ 12-15, 32. The Board also affirmed the administrative judge’s finding in the

removal action that the appellant was “regarded as” disabled. Id., ¶¶ 16-17. 1 The

Board, relying on an EEOC decision, found that a mixed-motive analysis does

apply to disability discrimination claims arising under the ADAAA, and it

overruled its prior decision in this regard. Id., ¶¶ 18-21. The Board further found

that the deciding official’s statement in the decision letter in the removal action

constituted direct evidence of a discriminatory motive, but the agency

demonstrated by clear and convincing evidence that it would have taken the same

action against him absent the discriminatory motive. Id., ¶¶ 22, 26-32. 2 Neither

party filed an appeal of the Board’s decision, and it became the final decision of

the Board.

¶4 The appellant filed a petition for attorney fees, arguing that, pursuant

to 5 U.S.C. § 7701(g)(2), the appellant was the prevailing party, there was a

finding of discrimination, and fees in the amount of $57,818.00 were reasonable.

1

The Board stated that it did not need to consider whether the agency’s decision to

suspend the appellant for 30 days was motivated by disability discrimination because

the appellant did not challenge on review the administrative judge’s statement in the

remand initial decision that he was alleging only that the removal action was motivated

by disability discrimination. Id., ¶ 26 n.7.

2

The Board noted that, under such circumstances, an appellant “may” be entitled to

attorney fees and costs. Id., ¶ 23 (citing 42 U.S.C. § 2000e-5(g)(2)(B)).

4

See Southerland v. Department of Defense, MSPB Docket No. SF-0752-09-0864-

A-1, Attorney Fee File (AFF), Tab 1. The agency opposed the fee petition,

arguing instead that the appellant was not a prevailing party and, pursuant

to 5 U.S.C. § 7701(g)(1), the interests of justice do not warrant payment of such

fees. AFF, Tab 3.

¶5 The administrative judge issued an addendum initial decision, which denied

the fee petition. AFF, Tab 6, Initial Decision (ID). In pertinent part, the

administrative judge noted that, although the Board found evidence of a

discriminatory motive, it ultimately concluded that the appellant did not prove his

affirmative defense of disability discrimination. ID at 4. The administrative

judge considered the appellant’s citation to EEOC cases that found that an

appellant is a prevailing party for fee purposes when there is a finding of

discrimination in a mixed-motive case, even though the appellant did not receive

any personal relief because there was clear and convincing evidence that the

agency would have taken the same action regardless of the discriminatory motive.

The administrative judge did not find these cases persuasive, however, stating

that the Board “has not yet done so.” ID at 4-6. Moreover, the administrative

judge determined that the agency was “clearly” the prevailing party and the

appellant “obtained no relief whatsoever altering the parties’ legal relationship.”

ID at 6. Therefore, he found that the appellant cannot be considered the

prevailing party for purposes of an award of attorney fees pursuant to 5 U.S.C.

§ 7701(g)(2). ID at 6. Alternatively, the administrative judge determined that,

even if the appellant could be considered a prevailing party, he would still deny

the petition for fees because the appellant achieved minimal success. See ID

at 6-7.

¶6 The appellant has filed a petition for review, and the agency has filed a

response. Southerland v. Department of Defense, MSPB Docket No.

SF-0752-09-0864-A-1, Petition for Review (PFR) File, Tabs 1, 3. The appellant

reiterates that the EEOC has found that an appellant could be considered a

5

prevailing party for fee purposes when there is a finding of discrimination in a

mixed-motive case, and he asserts that the Board must defer to the EEOC on this

issue, which he claims is a matter of discrimination, not civil service, law. PFR

File, Tab 1 at 2-3.

ANALYSIS

¶7 The appellant bears the burden of establishing his entitlement to an award

of attorney fees. Brenner v. Department of the Interior, 119 M.S.P.R. 399, ¶ 6

(2013) (citing Parker v. Office of Personnel Management, 75 M.S.P.R. 688, 691

(1997)). The appellant relies on 5 U.S.C. § 7701(g)(2) as the statutory authority

for the Board to award attorney fees in this matter. See AFF, Tab 1.

Section 7701(g)(2) states that, if an employee “is the prevailing party and the

decision is based on a finding of discrimination prohibited under

section 2301(b)(1) of this title, 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)).” 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.”

¶8 In his motion for attorney fees, the appellant asserted that the Board made a

finding of disability discrimination, which was prohibited under 5 U.S.C.

§ 2302(b)(1)(D). See AFF, Tab 1 at 4-5. 3 For the purposes of our analysis, we

assume without deciding that the Board’s finding that the deciding official’s

3

The appellant’s motion for attorney fees bears the docket numbers of the remanded

suspension and removal appeals. See AFF, Tab 1. Although he acknowledged that the

Board made findings on the discrimination issue in the removal action, see id. at 1, it is

unclear from the attorney’s Summary of Time submission whether he is seeking fees for

work performed in the suspension matter, see AFF, Tab 1, Exhibit 3. To the extent that

the appellant may be seeking fees for his attorney’s work in the suspension matter under

5 U.S.C. § 7701(g)(2), he is not entitled to or eligible for such an award in the absence

of a finding of discrimination.

6

statements in the decision letter regarding the removal were “direct evidence of a

discriminatory motive,” Southerland, 119 M.S.P.R. 566, ¶ 22, constitutes a

“finding of discrimination” under 5 U.S.C. § 7701(g)(2). The following

questions remain: (1) Is the appellant a “prevailing party”? and (2) If so, is the

appellant entitled to fees?

The appellant is not a prevailing party and, thus, he is not entitled to an award of

attorney fees as a matter of civil service law.

¶9 Civil service case law is clear: an appellant is, or is not, a prevailing party

for purposes of 5 U.S.C. § 7701(g) in the case as a whole, and whether he 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); see

Baldwin v. Department of Veterans Affairs, 115 M.S.P.R. 413, ¶ 11 (2010)

(finding that the determination of an award of attorney fees is based upon the

Board’s final decision and whether, by the final decision, the appellant is a

prevailing party). 4 Indeed, the U.S. Court of Appeals for the Federal Circuit and

the Board have expressly adopted the standard set forth by the U.S. Supreme

Court that an appellant is considered to have prevailed in a case and to be entitled

to attorney fees only if he obtains an “enforceable order” resulting in a “material

alteration of the legal relationship of the parties.” Baldwin, 115 M.S.P.R. 413,

¶ 11 (citing Buckhannon Board & Care Home, Inc. v. West Virginia Department

4

In Baldwin and Driscoll, the Board considered fee petitions made pursuant to 5 U.S.C.

§ 7701(g)(1), which states, in relevant part, that the Board “may require payment by the

agency involved of reasonable attorney fees incurred by an employee . . . if the

employee . . . is the prevailing party and the Board . . . determines that payment by the

agency is warranted in the interest of justice.” Because the Board has held that

section 7701(g)(2) is not a separate basis upon which an appellant may be entitled to a

fee award, but rather only provides how the amount of a fee award authorized under

subsection (g)(1) can be calculated, Burch v. Department of Homeland Security,

109 M.S.P.R. 426, ¶ 15 (2008), we find that the Board’s definition of “prevailing party”

in Baldwin and Driscoll is equally applicable to fee petitions made pursuant to 5 U.S.C.

§ 7701(g)(2).

7

of Health & Human Resources, 532 U.S. 598, 604 (2001)); see Sacco v.

Department of Justice, 317 F.3d 1384, 1387 (Fed. Cir. 2003) (acknowledging the

U.S. Supreme Court’s standard in Buckhannon for determining prevailing party

status under 5 U.S.C. § 7701(g)(1)). 5 Thus, an appellant “prevails” when actual

relief on the merits of his claim materially alters the legal relationship between

the parties by modifying the agency’s behavior in a way that directly benefits the

appellant. See Baldwin, 115 M.S.P.R. 413, ¶ 11. Moreover, the extent of relief

that an appellant receives on his claim does not affect whether the appellant is a

prevailing party. Id.; see Farrar v. Hobby, 506 U.S. 103, 112-15 (1992) (finding

that a plaintiff who wins nominal damages is a prevailing party under 42 U.S.C.

§ 1988, but awarding no fees because of the minimal success that was achieved). 6

¶10 As discussed above, the appellant, in the removal appeal, obtained only a

finding that the deciding official’s statements in the decision letter constituted

direct evidence of disability discrimination, but the Board ultimately determined

that the agency proved by clear and convincing evidence that it still would have

removed him absent its improper consideration of his medical condition, and it

concluded that the appellant did not prove his affirmative defense of disability

discrimination. See Southerland, 119 M.S.P.R. 566, ¶¶ 22, 26-32. Moreover, the

Board sustained all charges against the appellant in the removal appeal, and it

upheld the removal action. See id., ¶¶ 9, 12-15, 32. Thus, the appellant achieved

5

In fact, even beyond civil service law, the Federal Circuit has consistently recognized

the Buckhannon rule that prevailing party status is obtained only if there is “an actual,

court-ordered alteration in the legal relationship [between] the parties.” Chapman Law

Firm Co. v. Greenleaf Construction Co., 490 F.3d 934, 939 (Fed. Cir. 2007); see Rice

Services, Ltd. v. United States, 405 F.3d 1017, 1025 (Fed. Cir. 2005).

6

In Farrar, 506 U.S. at 109-12, the U.S. Supreme Court evaluated the civil rights

attorney fees provision at 42 U.S.C. § 1988, which, like 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.”

8

no actual relief and there was no material alteration of the legal relationship

between the parties. For these reasons, we conclude that he was not a prevailing

party under 5 U.S.C. § 7701(g). Cf. Driscoll, 116 M.S.P.R. 662, ¶ 9 (finding that

the appellant was a prevailing party because his cross petition for review, though

unsuccessful, was filed in support of a single litigation that culminated in an

enforceable final decision against the agency that changed the legal relationship

between the parties).

¶11 The appellant asks the Board to defer to the EEOC’s apparent

determination that, in a mixed-motive case, an appellant is considered a

prevailing party even if the agency proved by clear and convincing evidence that

it would have taken the action against him regardless of the discriminatory

motive, and even in the absence of any award of personal relief. See PFR File,

Tab 1 at 2-3 (citing Bell v. Department of the Navy, EEOC Appeal No.

0720080024, 2008 WL 2662585 (June 25, 2008); Call v. Department of

Transportation, EEOC Appeal No. 0720070017, 2007 WL 3244166 (Oct. 25,

2007); Volz v. Department of Justice, EEOC Appeal No. 07A10026, 2002 WL

1999046 (Aug. 23, 2002)).

¶12 It is true that, as a matter of law, the Board generally defers to the EEOC

on issues of substantive discrimination law unless the EEOC’s decision rests on

civil service law for its support or is so unreasonable that it amounts to a

violation of civil service law. Southerland, 119 M.S.P.R. 566, ¶ 20. Yet, the

Board has consistently decided that it must follow the precedent of the highest

court in the land, the U.S. Supreme Court, which has repeatedly declined to find

that the EEOC’s interpretive guidelines have the force of law or to give those

guidelines deference under Chevron, U.S.A., Inc. v. Natural Resources Defense

Council, Inc., 467 U.S. 837 (1984). University of Texas Southwestern Medical

Center v. Nassar, 133 S. Ct. 2517 (2013); Vance v. Ball State University, 133 S.

Ct. 243 (2013); Hosanna–Tabor Evangelical Lutheran Church & School v. Equal

Employment Opportunity Commission, 132 S. Ct. 694, 707 (2012). We shall

9

continue that prudent, judicious, and long-standing course of action in this case

and will look to the EEOC’s guidance as merely instructive, rather than

controlling.

¶13 Finally, the appellant, by this argument, assumes that an EEOC decision

regarding an attorney fees award must constitute a decision on an issue of

substantive discrimination law. We cannot agree. Generally speaking, an

attorney fees award is a remedy that could be available to individuals in a case,

but only after a decision on the merits or after the substantive issues have been

resolved; determinations on an entitlement to an award of attorney fees

should not be confused with the substantive matter of a case itself. See, e.g.,

Luciano Pisoni Fabbrica Accessori Instrumenti Musicali v.

United States, 837 F.2d 465, 467 (Fed. Cir. 1988) (finding that a decision on an

award of attorney fees is a judgment independent of the result on the merits and is

reached by an examination of the government’s position and conduct through the

Equal Access to Justice Act “prism,” not by redundantly applying whatever

substantive rules governed the underlying case) (citing Federal Election

Commission v. Rose, 806 F.2d 1081, 1090 (D.C. Cir. 1986)).

Upon consideration of the facts of this case, the Board exercises its discretion

under 5 U.S.C. § 7701(g) to find that the appellant is not entitled to attorney fees.

¶14 Even if we were to find that the appellant is a prevailing party, and that the

Board’s prior decision in the removal appeal constitutes a finding of

discrimination, we conclude that the circumstances of this matter are sufficiently

similar to the circumstances in Arnold v. Department of the Air

Force, 94 M.S.P.R. 17, ¶¶ 18-21 (2003), so as to warrant the same outcome. 7 For

7

The appellant states on review that the Board in Arnold “acknowledged that the issue

of who is the prevailing party when discrimination is found is a matter of discrimination

law, not civil service law.” PFR File, Tab 1 at 3. The appellant does not identify a

specific passage for this proposition, and we do not agree that Arnold stands for this

proposition.

10

instance, the appellant, like Mr. Arnold, has not been reinstated to his position or

placed in any other position as a result of Board proceedings, nor has he received

back pay. See id., ¶ 25. 8 Indeed, the appellant has achieved no relief whatsoever,

and the only possible outcome in his favor was a single determination in the

removal appeal that the deciding official’s statements in the decision letter

constituted direct evidence of a discriminatory motive; however, the

administrative judge properly noted in the addendum initial decision that the

Board found that the appellant did not ultimately prove his affirmative defense of

disability discrimination, and it upheld the removal. We have considered the

appellant’s “degree of success,” see Arnold, 94 M.S.P.R. 17, ¶ 26 (citing Farrar,

506 U.S. at 114-15), but we conclude that his success in the removal action

could not even be described as minimal. Exercising our discretion and authority

pursuant to 5 U.S.C. § 7701(g)(2), we therefore conclude that the appellant is not

entitled to fees for any work performed by his counsel in the removal appeal.

ORDER

¶15 This is the final decision of the Merit Systems Protection Board in this

matter. Title 5 of the Code of Federal Regulations, section 1201.113(c) (5 C.F.R.

§ 1201.113(c)).

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

You have the right to request review of this final decision by the

United States Court of Appeals for the Federal Circuit. You must submit your

request to the court at the following address:

8

The appellant correctly notes on review that there are other procedural irregularities in

Arnold that were not present in this matter, see PFR File, Tab 1 at 4-5, but we find that

these differences are immaterial.

11

United States Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, DC 20439

The court must receive your request for review no later than 60 calendar days

after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec. 27,

2012). If you choose to file, be very careful to file on time. The court has held

that normally it does not have the authority to waive this statutory deadline and

that filings that do not comply with the deadline must be dismissed. See Pinat v.

Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).

If you need further information about your right to appeal this decision to

court, you should refer to the federal law that gives you this right. It is found in

Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.

Dec. 27, 2012). You may read this law as well as other sections of the

United States Code, at our website, http://www.mspb.gov/appeals/uscode/htm.

Additional information 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, and 11.

If you are interested in securing pro bono representation for your court

appeal, you may visit our website at http://www.mspb.gov/probono for a list of

attorneys who have expressed interest in providing pro bono representation for

Merit Systems Protection Board appellants before the court. The Merit Systems

12

Protection Board neither endorses the services provided by any attorney nor

warrants that any attorney will accept representation in a given case.

FOR THE BOARD:

______________________________

William D. Spencer

Clerk of the Board

Washington, D.C.