Anthony Caros v. Department of Homeland Security

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

2015 MSPB 16

Docket No. PH-0752-12-0402-A-2

Anthony Caros,

Appellant,

v.

Department of Homeland Security,

Agency.

February 23, 2015

Rosemary Dettling, Esquire, Washington, D.C., for the appellant.

Jeane Yoo, Esquire, and Laurel L. Poe, Esquire, Baltimore, Maryland, 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 and the agency has filed a

cross petition for review of the addendum initial decision, which awarded

attorney fees in the amount of $67,765.88. We DENY the petition for review and

the cross petition for review and AFFIRM the addendum initial decision.

BACKGROUND

¶2 The agency removed the appellant from service. See Caros v. Department

of Homeland Security, MSPB Docket No. PH-0752-12-0402-I-2, Initial Decision

(Jan. 18, 2013). However, after holding a hearing, the administrative judge

2

reversed the removal and ordered the appellant’s reinstatement. Id. at 2, 21. The

agency filed a petition for review of that decision. See Caros v. Department of

Homeland Security, MSPB Docket No. PH-0752-12-0402-I-2, Final Order (Feb.

25, 2014). We affirmed the initial decision to the extent that it found that the

agency failed to meet its burden of proving the charges, and reversed it to the

extent that it found that the appellant proved his claim of retaliation for his prior

equal employment opportunity (EEO) activities. 1 Id. at 1-2.

¶3 While the agency’s petition for review in the underlying appeal was

pending, the appellant filed a petition for attorney fees. See Caros v. Department

of Homeland Security, MSPB Docket No. PH-0752-12-0402-A-1 (A-1), Attorney

Fee File (AFF), Tab 1. The administrative judge dismissed the petition as

premature. A-1, AFF, Tab 4. At a more appropriate time, the appellant filed a

second petition for attorney fees. See Caros v. Department of Homeland

Security, MSPB Docket No. PH-0752-12-0402-A-2 (A-2), AFF, Tab 1.

¶4 In his fee petition, the appellant sought compensation for 268 hours at a

rate of $510 per hour, as well as $1,385.53 in costs, for a total of $138,380.03.

Id. at 2, 6, 8. The administrative judge approved an award in the amount of

$67,765.88. A-2, AFF, Tab 6, Addendum Initial Decision (AID) at 1. He did so

after finding that $250, rather than $510, was the reasonable billing rate, and after

finding that $765.88 for the cost of a deposition transcript was not recoverable. 2

See AID at 9-11. The appellant has filed a petition for review. A-2, Petition for

Review (PFR) File, Tab 1. The agency has filed a response and cross petition for

review. PFR File, Tab 3. The appellant has not filed a response.

1

Although not relevant to the instant fee petition, the appellant has also filed a petition

for enforcement regarding the appropriate back pay award, which remains pending. See

Caros v. Department of Homeland Security, MSPB Docket No. PH-0752-12-0402-C-1.

2

Neither party has challenged the administrative judge’s award of costs, and therefore

we do not revisit it here.

3

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) he was the prevailing party; (2) he

incurred attorney fees pursuant to an existing attorney-client relationship; (3) an

award of fees is warranted in the interest of justice; and (4) the amount of fees

claimed is reasonable. Driscoll v. U.S. Postal Service, 116 M.S.P.R. 662, ¶ 7

(2011). At no point has the agency disputed the first three elements. See A-2,

AFF, Tab 4; PFR File, Tab 3. Accordingly, we limit our discussion to the

element in dispute—the reasonableness of the amount of fees claimed.

The appellant failed to demonstrate any error in the administrative judge’s

finding that $250 was a reasonable hourly rate.

¶6 The appellant argues that the administrative judge erred in awarding fees at

an hourly rate of $250, rather than the $510 requested. PFR File, Tab 1 at 7-11.

The agency argues that the administrative judge’s use of $250 as the hourly rate

was appropriate. PFR File, Tab 3 at 4, 9-10. We find no reason to disturb the

initial decision on this point. 3

¶7 As stated above, the appellant must show that the attorney fees claimed are

reasonable. See Driscoll, 116 M.S.P.R. 662, ¶¶ 7, 10. Where it is agreed that a

specific fee be paid to an attorney for legal services rendered on behalf of an

3

The appellant argues that the administrative judge erred in failing to adjust the hourly

rate for inflation. PFR File, Tab 1 at 10-11. However, the appellant d id not argue

below that he was entitled to an adjusted award, and the administrative judge therefore

did not address this issue. A-2, AFF, Tab 1; see AID; see also 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). In any case, the Board has held that attorney fees awarded under 5 U.S.C.

§ 7701(g)(1), as is the case here, may not be enhanced, either by applying an attorney’s

current rate retroactively or by granting interest on fees, to account for delay in

payment. Krape v. Department of Defense, 97 M.S.P.R. 430, ¶ 10 (2004). Therefore,

we do not find such an adjustment appropriate.

4

appellant in a Board case, the Board presumes that the amount agreed upon

represents the maximum reasonable fee which may be awarded.

Krape, 97 M.S.P.R. 430, ¶ 12. This presumption is rebuttable by convincing

evidence that the agreed-upon rate was not based on marketplace considerations

and that the attorney’s rate for similar work was customarily higher, or by

showing that she had agreed to such a rate only because of the employee’s

reduced ability to pay and that her customary fee for similar work was

significantly higher. Id.

¶8 The fee agreement between the appellant and his attorney lists two options

for structuring legal fees—an hourly rate or a flat fee. A-1, AFF, Tab 1 at 31-32. 4

Next to the hourly rate option, “N/A” is inserted, and next to the flat fee option,

the appellant’s name is inserted. Id. Therefore, it is evident that the appellant

and his attorney agreed to the flat fee option for payment. Nevertheless, both

options are relevant.

¶9 The hourly rate option, which was not selected, included a minimum

retainer fee of $3,500, and an hourly billing rate of $250. Id. It would have

required the appellant to seek lodestar fees from the agency if he prevailed,

without any mention of the Laffey Matrix. 5 Id. at 32. The lodestar is the scheme

4

The retainer agreement is available in both the initial request for attorney fees, wh ich

was dismissed as premature, and the second request, which is currently before us. A-1,

AFF, Tab 1 at 31-35; A-2, AFF, Tab 1 at 30-34. The copy contained in the second

request is distorted where it discusses requesting the agency to pay fees at the current

Laffey rate. A-2, AFF, Tab 1 at 31. Therefore, we cite to the copy contained in the first

request. A-1, AFF, Tab 1 at 32.

5

The Laffey Matrix is a schedule of hourly rates allowed by the U.S. District Court for

the District of Columbia in Laffey v. Northwest Airlines, Inc., 572 F. Supp. 354, 371,

374-75 (D.D.C. 1983), reversed in relevant part, 746 F.2d 4, 24-25 (D.C. Cir. 1984)

(holding that an attorney’s customary billing rate, and not a matrix purporting to reflect

the “true value” of the attorney’s services, is the appropriate starting point for

determining the reasonable hourly rate), overruled by Save Our Cumberland Mountains,

Inc. v. Hodel, 857 F.2d 1516, 1524 (D.C. Cir. 1988) (holdin g that the prevailing market

rate is the appropriate basis for calculating fees for private attorneys who represent

5

for determining a reasonable fee award in a case where, as here, the prevailing

party did not obtain all requested relief, and is calculated by multiplying the

hours reasonably spent on the litigation by a reasonable hourly rate. Guy v.

Department of the Army, 118 M.S.P.R. 45, ¶ 8 (2012) (citing Hensley v.

Eckert, 461 U.S. 424, 433 (1983)). The flat fee option, which was selected,

included a retainer fee of $3,000 and another $3,000 in other fees, with no hourly

billing. A-1, AFF, Tab 1 at 32. Yet, it also differed from the hourly rate option

by stating that, if the appellant prevailed, he was to seek Laffey fees from the

agency. Id. Both fee structures included a provision claiming that the rates were

reduced because of the attorney’s “commitment to civil rights.” A-1, AFF, Tab 1

at 32. However, neither gave any indication that the appellant was responsible

for paying Laffey rates, so long as the attorney-client relationship remained

intact. See id. at 31-34. In fact, under the applicable flat fee structure, the

appellant was not responsible for paying anything out of his pocket beyond

$6,000 under any scenario, absent a breakdown in the attorney-client

relationship. 6 See id. at 32. For example, had the Board found in favor of the

appellant, but nonetheless found an award of attorney fees not to be in the interest

individuals “at reduced rates reflecting non-economic goals”). It purports to show the

prevailing market rates for attorneys in the District of Columbia. Bywaters v. United

States, 670 F.3d 1221, 1226 & n.4 (Fed. Cir. 2012). The U.S. Attorney’s Office for the

District of Columbia maintains an updated version of the matrix. See A-2, AFF, Tab 1

at 29. The Board has found that an attorney’s customary billing rate, rather than the

market rate of recovery, is the appropriate rate for private attorneys who charge below

the prevailing community rate in connection with Board appeals, noting that there is no

public policy to encourage the filing of adverse action appeals. Brown v. Department of

Health & Human Services, 50 M.S.P.R. 523, 530 (1991) (rejecting the application of the

rationale of Save Our Cumberland Mountains to Board appeals).

6

The agreement stated, “After these [$6,000] are paid, client will not be charged

additionally [sic] legal fees.” A-1, AFF, Tab 1 at 32. It went on to state that, “in the

event of a successful resolution, the agency will be charged,” and that the appellant

agreed to request fees at the current Laffey rates. I d.

6

of justice, the retainer agreement did not require that the appellant pay the

attorney anything beyond the previously paid $6,000. 7 See id.

¶10 The agency argued, and the administrative judge found, that the maximum

reasonable fee was the $250 per hour listed as an option in the retainer

agreement. 8 See, e.g., A-2, AFF, Tab 4 at 7-8; PFR File, Tab 3 at 10; AID at 9.

We agree.

¶11 A contract for services that contains an hourly rate is strong evidence of

the local market rate because the client freely agreed to pay that rate. Willis v.

U.S. Postal Service, 245 F.3d 1333, 1340 (Fed. Cir. 2001). Here, the fee

structure agreed to was not hourly billing at $250 per hour. However, the

contract seems to have provided that as an option, albeit an option not selected.

See A-1, AFF, Tab 1 at 31-32. In addition, the appellant’s attorney acknowledges

that she did offer a billing rate of $250 per hour to some clients who agreed to be

billed monthly and pay even if they lost their cases. PFR File, Tab 1 at 8.

¶12 In contrast, the attorney’s affidavit asserts that she billed the appellant’s

case at the rate of $510 per hour. A-2, AFF, Tab 1 at 28. It characterizes this as

her customary rate, reasonable and consistent with the Laffey Matrix. 9 Id. The

7

The Board has found it appropriate to base a fee award on the lodestar amount even if

the fee agreement called for a flat fee. See generally Ruble v. Office of Personnel

Management, 96 M.S.P.R. 44, ¶ 13 n.* (2004). Therefore, we find it appropriate to

calcu late fees in this appeal using the lodestar amount despite the flat fee arrangement

that the appellant and his counsel selected.

8

Although the agency has conceded that $250 per hour was a reasonable billin g rate,

the agency errs to the extent that it argues that this was the agreed upon billing rate.

Compare A-2, AFF, Tab 4 at 7 (asserting that the appellant agreed to $250 per hour),

and PFR File, Tab 3 at 11 (same), with A-1, AFF, Tab 1 at 31-32 (selecting the flat fee

billing option rather than the $250 per hour billing option).

9

The Laffey Matrix included in the appellant’s fee petition lists $510 as the hourly rate

for attorneys with 20 or more years of experience in the years 2013-2014. A-2, AFF,

Tab 1 at 29.

7

affidavit also asserts that “when they are able to pay,” the attorney customarily

charges clients in employment cases at rates “similar to those set out in the Laffey

Matrix.” Id. The affidavit, though, is lacking in that it fails to identify even a

single case in which she charged a client $510 per hour or any other comparable

rate. Instead, the affidavit points to two Board cases where respondent agencies

reportedly paid the appellant’s attorney Laffey rates as part of a settlement

agreement, and several Equal Employment Opportunity Commission (EEOC)

cases in which she was reportedly awarded Laffey rates. Id. at 27. We do not

find that this evidence outweighs the specific evidence that the customary rate

was, in fact, $250 per hour. Cf. Andrus v. General Services

Administration, 56 M.S.P.R. 681, 686 (1993) (finding that an administrative

judge erred in relying on fees awarded to an appellant’s counsel in addendum

initial decisions in other appeals because such decisions were not precedential).

This evidence includes both the fee agreement and the attorney’s admission on

petition for review that she “did offer some employees the rate of $250 an hour.”

A-1, AFF, Tab 1 at 31-32; PFR File, Tab 1 at 8.

¶13 To the extent that the appellant’s attorney suggest s that she would have

charged the appellant $510 per hour but instead offered a reduced rate due to the

appellant’s inability to pay, the administrative judge rightly found that this claim

is not supported by the record. See PFR File, Tab 1 at 5, 7, 9; AID at 9; cf.

Ishikawa v. Department of Labor, 26 M.S.P.R. 258, 260 (1985) (counsel

successfully rebutted the presumption that the agreed upon rate was the maximum

fee awardable by showing that she had agreed upon that rate only because of the

employee’s reduced ability to pay and that her customary fee for similar work

was significantly higher). On review, the appellant disputes this finding by

pointing to the underlying removal appeal and purported testimony that the

appellant had no income. PFR File, Tab 1 at 9. Again, we are not persuaded.

We recognize that an employee appealing his removal may be without an income

for some period of time. But that, by itself, does not constitute sufficient

8

evidence that this appellant was billed at less than $510 per hour due to a reduced

ability to pay. Moreover, as discussed above, the retainer agreement asserts that

the appellant was provided a reduced rate because of his attorney’s commitment

to civil rights. See A-1, AFF, Tab 1 at 31-32. It contains no indication that the

rate was the result of an inability to pay.

¶14 With the petition for review, the appellant submitted an affidavit from

another attorney in the community who practices before the Board, describing his

billing practices. PFR File, Tab 1 at 13-15; see 5 C.F.R. § 1201.203(a)(2)-(3) (in

addition to the fee agreement and a statement of the attorney’s customary billing

rate for similar work, a fee petition also must include evidence that the rate is

consistent with the prevailing community rate for similar services in the

community in which the attorney ordinarily practices). The petition argues that

this constitutes new evidence, not previously available, despite due diligence.

PFR File, Tab 1 at 9-10. According to the appellant’s attorney, she previously

sought out attorneys who prevailed before the Board, but was unable to locate

any. Id. at 9. We are not persuaded that due diligence was exercised given that

Board decisions are publicly available on the internet, at

http://www.mspb.gov/decisions/decisions.htm, and list the names of the parties’

representatives. With little effort, the appellant’s attorney should have

determined that she could contact identified prevailing appellants’ attorneys at

any time. Accordingly, we will not consider this allegedly new evidence. See

Avansino v. U.S. Postal Service, 3 M.S.P.R. 211, 214 (1980) (under 5 C.F.R.

§ 1201.115, the Board generally will not consider evidence submitted for the first

time with the petition for review absent a showing that it was unavailable before

the record was closed despite the party’s due diligence).

¶15 In conclusion, the appellant bore the burden of showing that the requested

fees were reasonable, including providing evidence of his attorney’s customary

rate and that the rate was consistent with the prevailing rate for similar services

in the community in which the attorney ordinarily practices. 5 C.F.R.

9

§ 1201.203(a)(3); see Driscoll, 116 M.S.P.R. 662, ¶¶ 7, 10 (an appellant must

show, inter alia, that the amount of attorney fees claimed is reasonable); Coleman

v. Department of Transportation, 21 M.S.P.R. 596, 602 (1984) (the burden of

establishing the reasonableness of hours and rates claimed is on the moving

party). Based on the evidence discussed above, we find no error in the

administrative judge’s determination that the appellant was entitled to fees at a

rate of $250 per hour, rather than the requested $510 per hour. See AID at 9; see

also Howard v. Office of Personnel Management, 79 M.S.P.R. 172, ¶ 7 (1998)

(the administrative judge who decided the case on the merits after a hearing is in

the best position to evaluate the evidence submitted by counsel to determine the

quality of representation afforded and whether the amount requested is

reasonable).

The agency failed to demonstrate any error in the administrative judge’s finding

that 268 hours of attorney time was reasonable.

¶16 The agency argues in its cross petition, as it did below, that the number of

hours billed was unreasonable and inaccurate. PFR File, Tab 3 at 14-18. We find

that the agency failed to establish any error warranting further review.

¶17 The party seeking an award of fees should submit evidence supporting the

hours worked and exclude hours that are excessive, redundant, or otherwise

unnecessary. Driscoll, 116 M.S.P.R. 662, ¶ 11. The administrative judge need

not automatically accept claimed hours, but may disallow hours for duplication,

padding, or frivolous claims, and impose fair standards of efficiency and

economy of time. Id.

¶18 The agency’s arguments mirror those already asserted below. Compare

A-2, AFF, Tab 4 at 8-12, with PFR File, Tab 3 at 14-18. According to the

agency, the hours billed for some tasks, such as the 26 hours associated with the

preparation of the fee petition, are excessive. PFR File, Tab 3 at 14-15. The

agency also disputes the hours billed on August 24, 2012, alleging that billing for

calls between the appellant and his attorney and billing for a telephone deposition

10

are duplicative. Id. at 15-17. Finally, the agency contends that the descriptions

provided with some of the billed hours are vague and inadequate. Id. at 17-18.

¶19 Contrary to the agency’s arguments, the administrative judge found that the

268 hours attributed to the appellant’s case were not excessive, the billing

descriptions of services were not inadequate, and all the claimed time, including

phone calls, was reasonable. AID at 10. Where, as here, the administrative judge

held a hearing on the merits of the underlying appeal, he is in the best position to

evaluate the documentation submitted by counsel to determine whether the

amount requested is reasonable and the quality of the representation afforded.

Sprenger v. Department of the Interior, 34 M.S.P.R. 664, 669 (1987). The

agency has not provided any new, previously unavailable evidence, and has

alleged no legal or procedural error, or abuse of discretion by the administrative

judge. See 5 C.F.R. § 1201.115 (stating the bases for granting a petition for

review). We are unable to discern such error, and see no reason to disturb the

administrative judge’s factual findings that the hours charged were reasonable.

See McKenna v. Department of the Navy, 108 M.S.P.R. 404, ¶ 14 (2008)

(declining to disturb an administrative judge’s findings regarding the

reasonableness of the hours charged in connection with a motion for attorney fees

in light of the absence of any legal error or new, previously unavailable

evidence); Broughton v. Department of Health & Human Services, 33 M.S.P.R.

357, 359 (1987) (there is no reason to disturb the administrative judge’s

conclusions when they reflect that the administrative judge considered the

evidence as a whole, drew appropriate inferences, and made reasoned

conclusions).

Because the underlying appeal is a mixed case, we provide mixed-case appeal

rights in this decision regarding attorney fees.

¶20 A mixed-case appeal is an appeal filed directly to the Board that alleges

that an appealable agency action was effected, in whole or in part, because of

discrimination on the basis of race, color, religion, sex, national origin, disability,

11

age, genetic information, or reprisal. Mills v. U.S. Postal Service, 119 M.S.P.R.

482, ¶ 7 (2013); 5 C.F.R. § 1201.151. Judicial review of mixed-case appeals lies

in a federal district court of competent jurisdiction. 5 U.S.C. §§ 7702(a)(1),

7703(b)(2); Kloeckner v. Solis, 133 S. Ct. 596, 603-04, 607 (2012); 5 C.F.R.

§ 1201.157. Alternatively, an appellant can seek administrative review of a

mixed case before the EEOC. 5 U.S.C. § 7702(b), (e)(3). For nonmixed-case

appeals governed by the procedures of 5 U.S.C. § 7701, a party may seek judicial

review in the U.S. Court of Appeals for the Federal Circuit. 5 U.S.C.

§ 7703(b)(1)(A); 5 C.F.R. § 1201.157.

¶21 Historically, the Board provided notice of mixed-case appeal rights in its

final decision only when the Board actually decided a claim of discrimination.

Cunningham v. Department of the Army, 119 M.S.P.R. 147, ¶ 10 (2013). In all

other cases, including one in which a claim of discrimination was raised but not

decided, the Board provided notice of nonmixed appeal rights. Id. The Board

reversed course, however, after the Supreme Court’s Kloeckner decision. Id.,

¶¶ 11-14. In Kloeckner, the Court noted that cases of discrimination “subject to”

5 U.S.C. § 7702 are those in which the appellant “has been affected by an action

which [he] may appeal to the Merit Systems Protection Board” and “alleges that a

basis for the action was discrimination prohibited by” one of the listed statutes.

133 S. Ct. at 603-04 (quoting 5 U.S.C. § 7702(a)(1)(A), (B)). The Court held that

such cases must be filed in district court, not the Federal Circuit, even when the

Board decides the case on procedural grounds. Kloeckner, 133 S. Ct. at 604, 607.

¶22 After Kloeckner, the Board determined that it would provide notice of

mixed-case appeal rights in all cases in which the appellant was affected by an

action appealable to the Board and alleged prohibited discrimination, regardless

of whether the Board decided the claim of discrimination. Cunningham,

119 M.S.P.R. 147, ¶ 14; see, e.g., Stringer v. U.S. Postal Service, MSPB Docket

No. CH-0752-14-0207-I-1, Final Order at 2 (July 21, 2014) (providing notice of

mixed-case appeal rights where the appellant’s appeal was dismissed as

12

untimely); Barazzone v. Department of Army, MSPB Docket No. PH-315H-12-

0114-I-1, Final Order at 2 (April 5, 2013) (same); Brisson v. Department of

Veterans Affairs, MSPB Docket No. DE-0432-09-0384-I-1, Final Order at 2

(Feb. 25, 2013) (same). The Board continues to provide notice of nonmixed-case

appeal rights in all cases dismissed by the Board on jurisdictional grounds,

including cases in which the appellant raised a discrimination claim. Conforto v.

Merit Systems Protection Board, 713 F.3d 1111, 1117-19 (Fed. Cir. 2013) 10; see

Bean v. U.S. Postal Service, 120 M.S.P.R. 447, ¶ 12 (2013) (finding that when

jurisdiction is in doubt and an appeal has been dismissed on procedural grounds,

nonmixed-case appeal rights apply); Johnson v. U.S. Postal Service,

120 M.S.P.R. 87, ¶ 12 (2013) (nonmixed-case appeal rights apply where an

appellant withdraws her discrimination claim before the administrative judge

issues a decision).

¶23 In light of Kloeckner and its progeny, we now consider whether addendum

proceedings for attorney fees stemming from a mixed case require notice of

mixed-case appeal rights. We conclude that they do.

¶24 Here, the appellant’s underlying appeal included an allegation that the

agency retaliated against him based on his prior EEO activity. See Caros, MSPB

Docket No. PH-0752-12-0402-I-2, Final Order at 6-9. Accordingly, the Board

provided the appellant with notice of mixed-case appeal rights with the decision

on that underlying appeal. Id. at 11-12. The addendum initial decision currently

before the Board on review concerns the appellant’s petition for attorney fees, not

the merits of his original claim against the agency. The fact remains, however,

that the appellant’s petition for attorney fees stems from a mixed case. As the

10

In Conforto, the Federal Circuit explained that Kloeckner did not affect its prior case

law regarding the Board’s jurisdictional dismissals and that it has jurisdiction over a

petition when the Board dismisses for lack of jurisd iction. 713 F.3d at 1117-18. Here,

the appellant’s petition for attorney fees was not dismissed on jurisdictional grounds.

13

Federal Circuit observed when presented with similar circumstances in Schultz v.

Merit Systems Protection Board, No. 2012-3142, 2014 WL 6462265, at *1 (Fed.

Cir. Sept. 17, 2013), the Supreme Court’s Kloeckner decision is not ambiguous:

a federal employee should seek judicial review in district court, not in the Federal

Circuit, when he claims that an agency action violates an anti-discrimination

statute, and he should follow the same course in ancillary proceedings that stem

from such a claim. We agree. 11

¶25 Accordingly, the Board will provide notice of mixed-case appeal rights in

all addendum proceedings for attorney fees stemming from mixed-case appeals,

regardless of whether the Board decided the underlying claim of discrimination.

ORDER

¶26 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(c) (5 C.F.R.

§ 1201.113(c)).

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

You have the right to request further review of this final decision.

Discrimination Claims: Administrative Review

You may request review of this final decision on your discrimination

claims by the Equal Employment Opportunity Commission (EEOC). See Title 5

of the United States Code, section 7702(b)(1) (5 U.S.C. § 7702(b)(1)). If you

submit your request by regular U.S. mail, the address of the EEOC is:

11

Although the Federal Circuit has designated the order in Schultz as nonprecedential,

it is well-established that the Board may follow a nonprecedential Federal Circuit

decision, where, as here, it finds it to be persuasive. Dean v. Office of Personnel

Management, 115 M.S.P.R. 157, ¶ 14 (2010).

15

Office of Federal Operations

Equal Employment Opportunity Commission

P.O. Box 77960

Washington, D.C. 20013

If you submit your request 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, NE

Suite 5SW12G

Washington, D.C. 20507

You should send your request to EEOC no later than 30 calendar days after

your receipt of this order. If you have a representative in this case, and your

representative receives this order before you do, then you must file with EEOC no

later than 30 calendar days after receipt by your representative. If you choose to

file, be very careful to file on time.

Discrimination and Other Claims: Judicial Action

If you do not request EEOC to review this final decision on your

discrimination claims, you may file a civil action against the agency on both your

discrimination claims and your other claims in an appropriate United States

district court. See 5 U.S.C. § 7703(b)(2). You must file your civil action with

the district court no later than 30 calendar days after your receipt of this order. If

you have a representative in this case, and your representative receives this order

before you do, then you must file with the district court no later than 30 calendar

days after receipt by your representative. If you choose to file, be very careful to

file on time. 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

16

prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e5(f)

and 29 U.S.C. § 794a.

FOR THE BOARD:

______________________________

William D. Spencer

Clerk of the Board

Washington, D.C.