The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MARY A. MILLER, DOCKET NUMBER
Appellant, SF-0752-11-0766-A-3
v.
DEPARTMENT OF THE INTERIOR, DATE: March 30, 2016
Agency,
and
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Edward H. Passman, Esquire, Washington, D.C., for the appellant.
Mike Gieryic, Esquire, Anchorage, Alaska, for the Department of
the Interior.
Becky C. Ronayne, Esquire, and Robert J. Girouard, Esquire, Washington,
DC, for the Office of Personnel Management.
BEFORE
Susan Tsui Grundmann, 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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 appellant has filed a motion for attorney fees, seeking $10,532.06 from
the Office of Personnel Management (OPM). For the following reasons, we
DENY the motion for attorney fees because the appellant was not a prevailing
party.
BACKGROUND
¶2 The procedural history of the underlying chapter 75 appeal is lengthy, but
we summarize the relevant portions herein. The appellant filed a Board appeal
after the agency removed her for failing to accept a management-directed
reassignment, and she asserted several affirmative defenses. Miller v.
Department of the Interior, 2013 MSPB 27, ¶ 2. 2 In a January 6, 2012 initial
decision, the administrative judge upheld the removal, finding that the agency
proved the charge by preponderant evidence and that the appellant did not prove
any of her affirmative defenses. Id., ¶ 3. After the appellant filed a petition for
review, the Board, in an April 3, 2013 Opinion and Order, vacated the initial
decision, found that the agency action did not promote the efficiency of the
service, reversed the removal, and ordered the agency to reinstate the appellant to
her former position. Id., ¶¶ 4, 10-11. On May 13, 2013, the Board reopened the
case, vacated its earlier Opinion and Order, and issued a new Opinion and Order,
still vacating the initial decision and reversing the removal. Miller v. Department
of the Interior, 119 M.S.P.R. 438, ¶¶ 1-2 (2013).
¶3 The OPM Director petitioned the Board for reconsideration of its May 13,
2013 Opinion and Order. Miller v. Department of the Interior, 120 M.S.P.R. 426,
¶ 1 (2013). In a December 6, 2013 Opinion and Order, the Board denied the
2
The Board’s opinion in Miller v. Department of the Interior, published in the advance
sheet for Westlaw at 119 M.S.P.R. 221, was withdrawn from the bound volume because
it was vacated.
3
Director’s petition, and affirmed as modified its prior Opinion and Order. Id.,
¶¶ 1, 25.
¶4 On December 13, 2013, the appellant filed a motion for attorney fees
against OPM. Miller v. Department of the Interior, MSPB Docket No. SF-0752-
11-0766-A-3, Attorney Fee File (A-3 AFF), Tabs 1, 3, 10. The Director of OPM
subsequently petitioned the U.S. Court of Appeals for the Federal Circuit (Federal
Circuit) for judicial review of the Board’s December 6, 2013 Opinion and Order.
A-3 AFF, Tab 11; see Cobert v. Miller, 800 F.3d 1340, 1342 (Fed. Cir. 2015).
¶5 On September 2, 2015, the Federal Circuit reversed the Board’s decision
and remanded the matter to the Board with instructions to instate the
administrative judge’s initial decision as the final decision of the Board. Cobert,
800 F.3d at 1342, 1351. In compliance with the Federal Circuit’s instruction, the
Board issued a Final Order, vacating its December 6, 2013 Opinion and Order,
and instating the January 6, 2012 initial decision as the final decision of the
Board. Miller v. Department of the Interior, MSPB Docket No. SF-0752-11-
0766-M-1, Final Order, ¶ 5 (Dec. 31, 2015).
ANALYSIS
¶6 The appellant filed her motion for attorney fees pursuant
to 5 U.S.C. § 7701(g)(1). A-3 AFF, Tab 1. This provision states that the Board
may require payment 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. In attorney fee motions arising
under 5 U.S.C. § 7701(g)(1), 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 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.”
Baldwin v. Department of Veterans Affairs, 115 M.S.P.R. 413, ¶ 11 (2010)
(citing, among other cases, Buckhannon Board & Care Home, Inc. v. West
4
Virginia Department of Health & Human Resources, 532 U.S. 598, 604 (2001)).
The determination of an award of attorney fees is based upon the final decision of
the Board and whether, by the final decision, the appellant is a prevailing party.
Baldwin, 115 M.S.P.R. 413, ¶ 11.
¶7 The Board’s December 31, 2015 final decision in the chapter 75 appeal
instated the initial decision that upheld the appellant’s removal. Under these
circumstances, we find that the appellant is no longer a prevailing party. See,
e.g., Kye v. Defense Logistics Agency, 82 M.S.P.R. 399, ¶ 10 (1999) (discussing
an intervening U.S. Supreme Court decision that resulted in the agency’s removal
action being sustained and finding that the appellant is not a prevailing party);
Lokos v. Equal Employment Opportunity Commission, 70 M.S.P.R. 33, 36 (1996)
(holding that the appellant was “no longer the prevailing party” after the U.S.
District Court for the Western District of Texas determined that the agency
properly demoted him and overturned the Board’s final decision reversing the
demotion). We therefore deny her motion for attorney fees. 3
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
This decision constitutes the Board’s final decision in this matter. 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:
3
In light of our disposition, we deny as moot OPM’s motion to dismiss the pending fee
petition. A-3 AFF, Tab 4.
5
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 U.S. 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
6
prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f)
and 29 U.S.C. § 794a.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.