UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JEFFREY W. TAM, DOCKET NUMBER
Appellant, SF-0752-13-4272-C-2
v.
UNITED STATES POSTAL SERVICE, DATE: September 13, 2016
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Jeffrey W. Tam, Alameda, California, pro se.
Jeremy M. Watson, San Francisco, California, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the compliance initial
decision, which denied his petition for enforcement of the Board’s award of
attorney fees. 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
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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 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, 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 compliance initial decision, which is now the
Board’s final decision. 5 C.F.R. § 1201.113(b).
¶2 On January 23, 2015, the administrative judge issued an initial decision
reversing the agency’s removal action. Tam v. U.S. Postal Service, MSPB Docket
No. SF-0752-13-4272-I-3, Initial Decision (Jan. 23, 2015). The administrative
judge found that the appellant had not proven his claims of discrimination and
retaliation for equal employment opportunity activity, but she ordered the agency
to cancel the removal action, restore the appellant retroactively, and pay him back
pay and benefits. Id. Because neither party filed a petition for review of that
initial decision, it became the final decision of the Board on February 27, 2015.
Id.
¶3 On March 23, 2015, the appellant petitioned for an award of attorney fees
and costs incurred during his successful appeal of the removal action. Tam v.
U.S. Postal Service, MSPB Docket No. SF-0752-13-4272-A-1, Attorney Fees File
(AFF), Tab 1. On June 1, 2015, the administrative judge issued an addendum
initial decision directing the agency to pay $7,791.58 in attorney fees and costs to
the appellant’s former attorney of record, who had represented him for a period of
time during the removal appeal. AFF, Tab 6, Attorney Fees Initial Decision.
Neither party filed a petition for review of the June 1, 2015 Attorney Fees Initial
Decision, which became the final decision of the Board on July 6, 2015. Id.
3
¶4 Meanwhile, in April 2015, the appellant filed a petition for enforcement of
the Board’s order reversing the removal action. Tam v. U.S. Postal Service,
MSPB Docket No. SF-0752-13-4272-C-1. In the course of that proceeding, the
appellant raised an additional claim that the agency had not complied with the
attorney fee award. The Board forwarded the appellant’s claim of noncompliance
with the attorney fee award to the regional office for docketing as a separate
petition for enforcement. Tam v. U.S. Postal Service, SF-0752-13-4272-C-2,
Compliance File (C-2 CF), Tab 1.
¶5 The administrative judge then issued an acknowledgment order, in which
she directed the agency to provide evidence of compliance with the attorney fee
award. C-2 CF, Tab 2. The agency responded by providing a copy of a letter,
dated June 15, 2015, transmitting a check in the amount of $7,791.58 to the
appellant’s former attorney. C-2 CF, Tab 4. The appellant did not dispute that
the agency had paid the fee award, but indicated that he had an ongoing dispute
with his former attorney as to what portion of the fee award should be remitted to
him. C-2 CF, Tabs 5-6. He also raised various issues concerning the agency’s
compliance with the Board’s order in Tam, MSPB Docket No.
SF‑0752‑13‑4272‑I‑3. C-2 CF, Tab 6. On March 30, 2016, the administrative
judge issued a compliance initial decision denying the appellant’s petition for
enforcement of the attorney fee award. C-2 CF, Tab 8, C-2 Compliance Initial
Decision . This petition for review followed. Compliance Petition for Review
(CPFR) File, Tab 1.
¶6 On review, the appellant contends that the administrative judge was “not
fair and equitable” to him because of his ethnicity. Id. at 1‑3. In making a claim
of bias or prejudice against an administrative judge, a party must overcome the
presumption of honesty and integrity that accompanies administrative
adjudicators. Oliver v. Department of Transportation, 1 M.S.P.R. 382, 386
(1980). Furthermore, an administrative judge’s conduct during the course of a
4
Board proceeding warrants a new adjudication only if the administrative judge’s
comments or actions evidence “a deep-seated favoritism or antagonism that would
make fair judgment impossible.” Bieber v. Department of the Army, 287 F.3d
1358, 1362-63 (Fed. Cir. 2002) (quoting Liteky v. United States, 510 U.S. 540,
555 (1994)). The appellant has not pointed to any evidence that the
administrative judge was biased or prejudiced against him, or that she displayed
favoritism or antagonism in the proceedings below.
¶7 The appellant also contends that the agency failed to comply with the
Board’s order in Tam, MSPB Docket No. SF-0752-13-4272-I-3, regarding back
pay interest, health insurance premiums, and retroactive overtime and holiday
pay. CPFR File, Tab 1 at 1-2. These matters were raised by the appellant in his
petition for enforcement of that order, Tam, MSPB Docket
No. SF‑0752‑13‑4272‑C‑1, and are not at issue in this proceeding.
¶8 The appellant requests, moreover, that the Board reopen and review his
removal appeal. CPFR File, Tab 1 at 4. The Board only exercises its discretion
to reopen in unusual or extraordinary circumstances, such as when a change in the
law results in a conflict between the holding in a decision and controlling
precedent or statute, misrepresentation or fraud is discovered after the issuance of
the initial decision, or the interests of justice warrant a different outcome based
on the weight of the evidence. Lugo v. Department of the Navy, 96 M.S.P.R. 95,
¶ 6 (2004), aff’d, 128 F. App’x 145 (Fed. Cir. 2005). Furthermore, in considering
whether to exercise its discretion to reopen an appeal, the Board must balance the
desirability of finality against the public interest in reaching the correct result.
Id. The Board’s authority to reopen an appeal under 5 C.F.R. § 1201.117 is thus
limited by the requirement that such authority be exercised “within a short period
of time,” which is usually measured in weeks, not years. Miller v. Department of
the Army, 113 M.S.P.R. 572, ¶ 10 (2010). Here, the Board’s final decision in the
removal appeal was issued more than a year and a half ago, and the appellant has
5
not shown the existence of unusual or extraordinary circumstances that would
justify reopening that appeal.
¶9 Finally, as discussed above, it is undisputed that the agency promptly paid
the appellant’s former attorney of record the full amount of the attorney fee
award. We therefore discern no error in the administrative judge’s decision to
deny the appellant’s petition for enforcement in this case.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS 2
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 U.S. 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:
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
2
The administrative judge did not provide the appellant with notice of his mixed-case appeal
rights. This was error, but it does not constitute reversible error because we notify the appellant
of his mixed-case appeal rights in this final order. See Grimes v. U.S. Postal Service,
39 M.S.P.R. 183, 186–87 (1988).
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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
prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and
29 U.S.C. § 794a.
FOR THE BOARD: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.