The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SOCIAL SECURITY DOCKET NUMBER
ADMINISTRATION, CB-7521-13-0182-T-1
Petitioner,
v.
DATE: December 30, 2014
GERALD I. KRAFSUR,
Respondent.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Brian Seinberg, Esquire, and Richard V. Blake, Atlanta, Georgia, for the
petitioner.
Meeka S. Drayton, Esquire, Seattle, Washington, for the petitioner.
Sharese M. Reyes, Esquire, Baltimore, Maryland, for the petitioner.
Charlton R. DeVault, Jr., Esquire, Kingsport, Tennessee, for the
respondent.
BEFORE
Susan Tsui Grundmann, Chairman
Anne M. Wagner, Vice Chairman
Mark A. Robbins, Member
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
FINAL ORDER
¶1 The respondent has filed a petition for review of the initial decision, which
dismissed the agency’s complaint seeking to suspend the respondent for 120 days.
Generally, we grant petitions such as this one only when: the initial decision
contains erroneous findings of material fact; the initial decision is based on an
erroneous interpretation of statute or regulation or the erroneous application of
the law to the facts of the case; the judge’s rulings during either the course of the
appeal or the initial decision were not consistent with required procedures or
involved an abuse 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. See
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, and based on the
following points and authorities, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review. Except as expressly MODIFIED by
this Final Order, we AFFIRM the initial decision.
¶2 The respondent is an Administrative Law Judge (ALJ) in the agency’s
Office of Disability Adjudication and Review. In April 2013, the
agency-petitioner filed a complaint with the Board seeking to suspend the
respondent for 120 days based on charges of neglect of duty and conduct
unbecoming an ALJ. Initial Appeal File (IAF), Tab 1 at 6-13. In May 2014, the
petitioner filed a pleading indicating that it wished to withdraw its complaint or,
in the alternative, to have its complaint dismissed without prejudice. IAF, Tab 44
at 5. The ALJ assigned to adjudicate the complaint granted the petitioner’s
motion to dismiss without prejudice. IAF, Tab 49, Initial Decision at 3. A week
after the ALJ dismissed the suspension complaint, the petitioner filed a new
Board complaint seeking to remove the respondent based on a single charge of
neglect of duty. Social Security Administration v. Krafsur, MSPB Docket No.
3
CB-7521-14-0016-T-1, Complaint (May 29, 2014). The conduct that is the
subject of the removal complaint took place between June 2013 and May 2014,
id. at 10-11, and therefore the suspension and removal complaints do not involve
any of the same conduct.
¶3 The respondent has filed a timely petition for review of the initial decision
dismissing the suspension complaint, arguing that the ALJ should have dismissed
the complaint with prejudice and should have awarded him attorney fees. Petition
for Review (PFR) File, Tab 1 at 2, 28. He also argues that the ALJ should have
recused himself. Id. at 25-28. The petitioner has responded in opposition to the
petition for review, PFR File, Tab 9, and the respondent has filed a reply, PFR
File, Tab 10. 2
¶4 The respondent does not argue that the suspension complaint should not
have been dismissed at all; rather, he argues that the ALJ erred in dismissing the
complaint without prejudice. PFR File, Tab 1 at 18-22. Because the petitioner
clearly indicated that it no longer wished to pursue disciplinary action against the
respondent based on the conduct set forth in the suspension complaint, we find
that the appropriate disposition of the complaint is to DISMISS it as
WITHDRAWN, as was requested in the alternative by the petitioner.
¶5 The respondent also argues that he is entitled to attorney fees for work
performed in response to the suspension complaint. PFR File, Tab 1 at 22-25.
However, the respondent’s entitlement to attorney fees is not properly before the
Board at this stage in the proceedings because the Board has not yet issued a final
decision. See Galatis v. U.S. Postal Service, 109 M.S.P.R. 651, ¶ 14 (2008)
(citing 5 C.F.R. § 1201.203(d)). A motion for attorney fees can be filed within 60
days after the Board issues a final decision. 5 C.F.R. § 1201.203(d).
2
The respondent has moved for leave to supplement his petition for review with
newly-discovered evidence. PFR File, Tab 5. Because he has not established that the
evidence he seeks to submit would warrant a different outcome in this matter, his
motion is denied.
4
¶6 Although we do not reach the question of the respondent’s entitlement to
attorney fees at this time, we note that in order to be entitled to an award of
attorney fees, a party must establish, among other things, that he was the
prevailing party. Baldwin v. Department of Veterans Affairs, 115 M.S.P.R. 413,
¶ 10 (2010) (citing 5 U.S.C. § 7701(g)(1)). The Board has held that prevailing
party status “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). 3
¶7 Finally, the respondent argues that the ALJ was biased against him because
of the ALJ’s prior employment history and his rulings during this proceeding.
PFR File, Tab 1. We find that the respondent’s allegations do not overcome the
presumption of honesty and integrity that accompanies administrative
adjudicators. See White v. Social Security Administration, 76 M.S.P.R. 303, 308
(1997), aff’d, 152 F.3d 948 (Fed. Cir. 1998) (Table).
¶8 Accordingly, the ALJ’s initial decision is AFFIRMED as MODIFIED by
this Order. The petitioner’s complaint is DISMISSED as WITHDRAWN.
NOTICE TO THE RESPONDENT REGARDING
YOUR FURTHER REVIEW RIGHTS
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 have the right to
request the United States Court of Appeals for the Federal Circuit to review this
final decision. You must submit your request to the court at the following
address:
United States Court of Appeals
for the Federal Circuit
3
The Board has held that it may award attorney fees under the Equal Access to Justice
Act (EAJA) to the prevailing party in Board proceedings seeking disciplinary actions
against ALJs. National Labor Relations Board v. Boyce, 51 M.S.P.R. 295, 299-300
(1991) (citing 5 U.S.C. § 504). In applying the EAJA, the Board considers prior
judicial interpretations of the term “prevailing party” under other fee-shifting statutes.
Boyce, 51 M.S.P.R. at 300-01.
5
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
6
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.