The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JONATHAN BOWLES, DOCKET NUMBER
Appellant, AT-0752-14-0169-I-1
v.
GOVERNMENT PRINTING OFFICE, DATE: January 16, 2015
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL *
Bobby Devadoss, Esquire, Dallas, Texas, for the appellant.
Thomas Kelly, Esquire, Washington, D.C., for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Anne M. Wagner, Vice Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed his removal appeal as moot. 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
*
A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
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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 and AFFIRM
the initial decision, which is now the Board’s final decision. 5 C.F.R.
§ 1201.113(b).
¶2 Effective October 28, 2013, the agency removed the appellant from his
position within the agency. Initial Appeal File (IAF), Tab 1 at 7-8. The appellant
appealed his removal to the Board and requested a hearing. IAF, Tab 1. The
agency submitted a notice of reinstatement informing the appellant and the
administrative judge that the removal had been cancelled and the appellant
retroactively reinstated to his former position within the agency. IAF, Tab 7. In
an initial decision issued without holding the requested hearing, the
administrative judge dismissed the appeal as moot. IAF, Tab 14, Initial Decision
(ID) at 1, 4-5.
¶3 The appellant has filed a petition for review of the initial decision. Petition
for Review (PFR) File, Tab 1. The agency has responded in opposition. PFR
File, Tab 3.
¶4 The Board’s jurisdiction is determined by the nature of an agency’s action
against a particular appellant at the time an appeal is filed with the Board, and an
agency’s unilateral modification of its action after an appeal has been filed cannot
divest the Board of jurisdiction unless the appellant consents to such divestiture
or unless the agency completely rescinds the action being appealed. Himmel v.
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Department of Justice, 6 M.S.P.R. 484, 486 (1981); see Vidal v. Department of
Justice, 113 M.S.P.R. 254, ¶ 4 (2010). When an agency cancels or rescinds an
action after the action has been appealed, the Board may dismiss the appeal as
moot. Vidal, 113 M.S.P.R. 254, ¶ 4. For an appeal to be rendered moot, an
appellant must receive all of the relief that he could have received if the matter
had been adjudicated and he had prevailed. Id. An agency’s expression of its
intent to provide such relief is not sufficient to establish that the appeal is moot.
Id. An appeal is not truly moot until all appropriate relief has been provided. Id.
¶5 In his petition for review, the appellant reiterates his argument that he has
not been made whole because his “health benefits were never fully and properly
reinstated by the agency.” PFR File, Tab 1 at 6; see IAF, Tab 10 at 6. The
agency submitted a declaration from a Human Capital Manager as confirmation
that the health insurance carrier had reinstated the appellant’s health insurance.
IAF, Tab 12 at 5. The appellant did not file a response disputing this part of the
declaration. See ID at 2-3. The administrative judge found that “[t]he agency
has . . . demonstrated that it has taken all necessary action to reinstate the
appellant’s health benefits.” ID at 4. On review, the appellant fails to provide a
reason to disturb this finding. See Crosby v. U.S. Postal Service, 74 M.S.P.R. 98,
105-06 (1997) (finding no reason to disturb the administrative judge’s findings
when the administrative judge considered the evidence as a whole, drew
appropriate references, and made reasoned conclusions).
¶6 Although the appellant contended that “part of making him whole would
also require the agency to pay his legal fees,” the administrative judge properly
held that the appellant is not entitled to an award of attorney fees because he is
not a prevailing party. IAF, Tab 13 at 4; see ID at 4. An appellant must show
that he is the “prevailing party” to establish his entitlement to an award of
attorney fees in a Board appeal. 5 U.S.C. § 7701(g)(1); Sacco v. Department of
Justice, 90 M.S.P.R. 225, ¶ 6 (2001), aff’d, 317 F.3d 1384 (Fed. Cir. 2003). An
appellant who shows that he obtained a material alteration of the legal
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relationship between the parties through an enforceable final judgment on the
merits or a settlement agreement entered into the record for the purposes of
enforcement by the Board is a “prevailing party” under 5 U.S.C. § 7701(g)(1).
Sanchez v. Department of Homeland Security, 116 M.S.P.R. 183, ¶ 10 (2010).
¶7 The appellant argues on review that, for policy reasons, the Board should
not allow the agency to “unilaterally rescind disciplinary actions at the last
minute without paying the Appellant’s legal fees, after the appellant had already
incurred significant legal cost in defending the said discipline” because “it would
amount to nullifying the Board’s authority to order and enforce agencies to pay
attorney’s fees in all cases.” PFR File, Tab 1 at 7. He further contends that
“allowing the agencies to do this will deter federal employees from bringing forth
genuine cases that falls [sic] within the Boards [sic] jurisdiction.” Id. The
Supreme Court of the United States has considered and rejected similar
arguments. Buckhannon Board and Care Home, Inc. v. West Virginia Department
of Health & Human Resources, 532 U.S. 598, 608 (2001); see Mulero-Echevarria
v. Office of Personnel Management, 93 M.S.P.R. 154, ¶ 5 (2002). The Board has
previously applied Buckhannon to cases where the agency voluntarily and
unilaterally changed its position after the appellant filed a Board appeal. See,
e.g., Sacco, 90 M.S.P.R. 225, ¶ 8 (finding that the agency unilaterally rescinded
the alleged adverse action after the appellant appealed). Moreover, “[g]iven the
clear meaning of ‘prevailing party’ in the fee-shifting statutes,” the Board need
not determine which way these various policy arguments cut. Buckhannon,
532 U.S. at 610; see Mulero-Echevarria, 93 M.S.P.R. 154, ¶ 5.
¶8 Accordingly, the appellant has received all appropriate relief and the
administrative judge properly dismissed his appeal as moot.
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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:
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
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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.