Opinion

John Doe v. Department of Veterans Affairs

Court: Merit Systems Protection Board
Filed: Jun 1, 2023
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 23.4%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

JOHN DOE, DOCKET NUMBER

Appellant, DA-0752-15-0420-A-1

DEPARTMENT OF VETERANS DATE: June 1, 2023

AFFAIRS,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Tracie Jackson, Esquire, Houston, Texas, for the appellant.

Jeffrey T. Reeder, Esquire, Dallas, Texas, for the agency.

Thomas Herpin, Esquire, Houston, Texas, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

FINAL ORDER

¶1 The agency has filed a petition for review of the addendum initial decision,

which awarded the appellant $28,104.92 in attorney fees and costs. In its petition

for review, the agency argues that, under the guidance provided by the U.S.

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).

Supreme Court’s decision in Hensley v Eckerhart, 461 U.S. 424 (1983), the

attorney fees award should be reduced on two grounds: (1) the appellant failed to

prove that the work performed on his involuntary retirement appeal, on which he

was not successful, substantially advanced the appellant’s interest in his appeal of

a denial of a within-grade increase, on which he was successful; and (2) the

appellant failed to prove the relief granted was substantial in comparison to the

relief requested. Generally, we grant petitions such as this one only in the

following circumstances: the initial decision contains erroneous findings of

material fact; the initial decision is based on an erroneous interpreta tion of statute

or regulation or the erroneous application of the law to the facts of the case; the

administrative judge’s rulings during either the course of the appeal or the initial

decision were not consistent with required procedures or involved an ab use 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. 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, we conclude that the agency has not

established any basis under section 1201.115 for granting its petition for review.

Therefore, we DENY the petition for review. Except as expressly MODIFIED to

find that fees are awarded under 5 U.S.C. § 7701(g)(2), we AFFIRM the

addendum initial decision.

¶2 The administrative judge found that fees were warranted under 5 U.S.C.

§ 7701(g)(1), which authorizes the award of fees under an interest of justice

standard and does not allow for an award of costs. However, the administrative

judge found during the merits phase of the appellant’s appeal that the appellant

established that the agency had discriminated against him on the basis of sex,

which is prohibited under Title VII of the Civil Rights Act of 1964. Doe v.

Department of Veterans Affairs, MSPB Docket No. DA-0752-15-0420-I-1, Initial

Decision at 19-25 (Sept. 26, 2016). When there is a finding of unlawful

discrimination, the award of attorney fees is properly made under 5 U.S.C.

§ 7701(g)(2). Specifically, that provision states that if an employee “is the

prevailing party and the decision is based on a finding of discrimination

prohibited under section 2302(b)(1) of [Title 5], 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)).” 5 U.S.C. § 7701(g)(2). 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 . . . .” As noted, the Board is provided with the authority to award fees

under that provision by 5 U.S.C. § 7701(g)(2). Thus, fees may be awarded by the

Board under section 7701(g)(2) if the appellant is the prevailing party. There is

no application of the interest of justice standard to such a fee award. Th erefore,

the administrative judge erred in determining whether attorney fees were

warranted under the interest of justice standard of section 7701(g)(1).

¶3 Despite the error discussed above, the administrative judge found that the

appellant met the interest of justice standard entitling him to fees and also

acknowledged that the appellant was entitled to costs under section 7701(g)(2).

Thus, notwithstanding the administrative judge’s error in determining the fee

award under the interest of justice standard of section 7701(g)(1), the appellant

has received all the fees and costs to which he was entitled under the more

inclusive standard of section 7701(g)(2). Accordingly, we find that the

administrative judge’s error did not harm the appellant’s substantive rights and

thus is not a basis to reverse the initial decision. Panter v. Department of the Air

Force, 22 M.S.P.R. 281, 282 (1984) (stating that an adjudicatory error that is not

prejudicial to a party’s substantive rights provides no basis for reversal of an

initial decision).

ORDER

¶4 We ORDER the agency to pay the attorney of record $28,104.92 in fees and

costs. The agency must complete this action no later than 20 days after the date

of this decision. Title 5 of the United States Code, section 1204(a)(2) (5 U.S.C.

§ 1204(a)(2)).

¶5 We also ORDER the agency to tell the appellant and the attorney promptly in

writing when it believes it has fully carried out the Board ’s Order and of the

actions it has taken to carry out the Board’s Order. We ORDER the appellant and

the attorney to provide all necessary information that the agency requests to help

it carry out the Board’s Order. The appellant and the attorney, if not notified,

should ask the agency about its progress. See 5 C.F.R. § 1201.181(b).

¶6 No later than 30 days after the agency tells the appellant or the attorney that it

has fully carried out the Board’s Order, the appellant or the attorney may file a

petition for enforcement with the office that issued the initial decision on this

appeal, if the appellant or the attorney believes that the agency did not fully carry

out the Board’s Order. The petition should contain specific reasons why the

appellant or the attorney believes the agency has not fully carried out the Board’s

Order, and should include the dates and results of any communications with the

agency. See 5 C.F.R. § 1201.182(a).

NOTICE OF APPEAL RIGHTS 2

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 may obtain

review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of

your claims determines the time limit for seeking such review and the appro priate

forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following

Since the issuance of the initial decision in this matter, the Board may have updated

the notice of review rights included in final decisions. As indicated in the notice, the

Board cannot advise which option is most appropriate in any matter.

summary of available appeal rights, the Merit Systems Protection Board does not

provide legal advice on which option is most appropriate for your situation and

the rights described below do not represent a statement of how courts will rule

regarding which cases fall within their jurisdiction. If you wish to seek review of

this final decision, you should immediately review the law applicable to your

claims and carefully follow all filing time limits and requirements. Failure to file

within the applicable time limit may result in the dismissal of your case by your

chosen forum.

Please read carefully each of the three main possible choices of review

below to decide which one applies to your particular case. If you have questions

about whether a particular forum is the appropriate one to review your case, you

should contact that forum for more information.

(1) Judicial review in general. As a general rule, an appellant seeking

judicial review of a final Board order must file a petition for review with the U.S.

Court of Appeals for the Federal Circuit, which must be received by the court

within 60 calendar days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(A).

If you submit a petition for review to the U.S. Court of Appeals for the

Federal Circuit, you must submit your petition to the court at the

following address:

U.S. Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, D.C. 20439

Additional information about the U.S. Court of Appeals for the Federal

Circuit 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, 10, and 11.

If you are interested in securing pro bono representation for an appeal to

the U.S. Court of Appeals for the Federal Circuit, you may visit our website at

http://www.mspb.gov/probono for information regarding pro bono representation

for Merit Systems Protection Board appellants before the Federal Circuit. The

Board neither endorses the services provided by any attorney nor warrants that

any attorney will accept representation in a given case.

(2) Judicial or EEOC review of cases involving a claim of

discrimination. This option applies to you only if you have claimed that you

were affected by an action that is appealable to the Board and that such action

was based, in whole or in part, on unlawful discrimination. If so, you may obtain

judicial review of this decision—including a disposition of your discrimination

claims—by filing a civil action with an appropriate U.S. district court ( not the

U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you

receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems

Protection Board, 582 U.S. 420 (2017). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the district court no later than 30 calendar days after your representative

receives this decision. 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 prepayment of fees, costs, or other security. See 42 U.S.C.

§ 2000e-5(f) and 29 U.S.C. § 794a.

Contact information for U.S. district courts can be found at their respective

websites, which can be accessed through the link below:

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.

Alternatively, you may request review by the Equal Employment

Opportunity Commission (EEOC) of your discrimination claims only, excluding

all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the

EEOC’s Office of Federal Operations within 30 calendar days after you receive

this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the EEOC no later than 30 calendar days after your representative receives

this decision.

If you submit a request for review to the EEOC by regular U.S. mail, the

address of the EEOC is:

Office of Federal Operations

Equal Employment Opportunity Commission

P.O. Box 77960

Washington, D.C. 20013

If you submit a request for review to the EEOC 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, N.E.

Suite 5SW12G

Washington, D.C. 20507

(3) Judicial review pursuant to the Whistleblower Protection

Enhancement Act of 2012. This option applies to you only if you have raised

claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or

other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).

If so, and your judicial petition for review “raises no challenge to the Board’s

disposition of allegations of a prohibited personnel practice described in section

2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),

(B), (C), or (D),” then you may file a petition for judicial review either with the

U.S. Court of Appeals for the Federal Circuit or any court of appeals of

competent jurisdiction. 3 The court of appeals must receive your petition for

The original statutory provision that provided for judicial review of certain

whistleblower claims by any court of appeals of competent jurisdiction expired on

December 27, 2017. The All Circuit Review Act, signed into law by the President on

review within 60 days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(B).

If you submit a petition for judicial review to the U.S. Court of Appeals for

the Federal Circuit, you must submit your petition to the court at the