UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ETHEL G. BROOKS, DOCKET NUMBER
Appellant, AT-0752-14-0579-A-1
v.
DEPARTMENT OF VETERANS DATE: January 6, 2017
AFFAIRS,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Brenda Jackson-Patterson, Esquire, Jackson, Mississippi, for the appellant.
Johnston B. Walker, Jackson, Mississippi, 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 initial decision, which
denied her motion for attorney fees in connection with the appeal of her demotion
which was resolved pursuant to settlement. Generally, we grant petitions such as
this one only when: the initial decision contains erroneous findings of material
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
fact; the initial decision is based on an erroneous interpretation 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 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. 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 initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
¶2 On appeal of her one-grade demotion based on charges of misconduct, the
appellant and the agency entered into a settlement agreement on June 12, 2015.
Initial Appeal File (IAF), Tab 65. As relates to the matter now under review, the
agreement stated that “[it] does not cover attorney fees” and that “[a]ny claim for
attorney fees will be submitted to the MSPB and/or [the assigned administrative
judge] in compliance with any and all Orders, laws, or regulations that pertain to
or govern attorney fee petitions.” Id. On June 15, 2015, the administrative judge
dismissed the appeal as settled. IAF, Tab 16, Initial Decision at 2. That decision
became the Board’s final decision on July 20, 2015, when neither party filed a
petition for review.
¶3 The appellant filed a timely motion for attorney fees in the amount of
$250,000. Attorney Fee File (AFF), Tab 1. In response, the agency argued that
fees were not warranted in the interest of justice and that, in any event, the fees
requested were not reasonable. AFF, Tab 2.
¶4 The administrative judge issued an initial decision denying the appellant’s
motion for fees. AFF, Tab 14, Addendum Initial Decision (AID) at 1, 17. The
administrative judge found that the appellant was the prevailing party, and that
3
she incurred fees pursuant to an attorney-client relationship, AID at 3-5, but that
she did not show that an award of attorney fees was warranted in the interest of
justice, AID at 5-8. The administrative judge further found that, even if the
appellant had shown that fees were warranted in the interest of justice, the fees
requested were grossly excessive and therefore she failed to show that they were
reasonable. AID at 8-17.
¶5 The appellant has filed a petition for review, Petition for Review (PFR)
File, Tab 1, the agency has responded, PFR File, Tab 3, and th e appellant has
filed a reply, PFR File, Tab 3.
¶6 On review, the appellant first argues that the administrative judge
improperly denied her motion for recusal. PFR File, Tab 1 at 4-5. In filing her
motion during the attorney fee proceeding below, the appellant argued that the
administrative judge showed bias, prejudice, and harassment throughout the
processing of the case and at the hearing, 2 AFF, Tab 8, that she denied certain
motions, and that she created an intimidating atmosphere and exhibited a strong
appearance of partiality, id. at 5-6. In denying the appellant’s motion, the
administrative judge initially found that it was not in compliance with the Board’ s
regulations in that it was not in affidavit or sworn statement form. 3 AFF, Tab 13
at 2-3. Nonetheless, the administrative judge considered the motion, noting that
most of the appellant’s arguments involved events that occurred prior to the
parties’ arriving at settlement, and finding that, if the appellant believed that the
administrative judge should recuse herself, the appellant was required to raise the
2
The parties reached settlement during the second day of hearing. AFF, Tab 13.
3
Claiming that she was unaware that her motion was required to be i n affidavit form,
PFR File, Tab 1 at 5, the appellant has submitted such an affidavit on review, id. at
18-19. However, in acknowledging the demotion appeal, the administrative judge
referred the appellant to the Board’s regulations at 5 C.F.R. part 1201 for detailed
information on Board procedures, IAF, Tab 2 at 5, and 5 C.F.R. § 1201.42 clearly
provides that the reasons for a motion for disqualification of an administrative judge
must be set out in an affidavit or a sworn statement. In any event, even though the
appellant’s motion was not in proper form, the administrative judge considered it.
4
issue as soon as she became aware of it. Id. at 3; 5 C.F.R. § 1201.42. Moreover,
the administrative judge questioned why, if she believed the administrative judge
was not impartial, the appellant specifically agreed, under the settlement, that the
administrative judge would rule on the attorney fees matter. AFF, Tab 13 at 3.
¶7 The Board’s regulations provide that failure to request certification of an
interlocutory appeal from an administrative judge’s denial of a moti on asking the
administrative judge to withdraw on the basis of personal bias or other
disqualification is considered a waiver of the request for withdrawal. 5 C.F.R.
§ 1201.42(c). Because the appellant did not request certification of an
interlocutory appeal as to this matter, she is considered to have waived her
request for withdrawal, and we will not further address it.
¶8 Next, the appellant argues on review that fees are warranted in the interest
of justice because the agency engaged in a prohibited personnel practice,
specifically, retaliation. PFR File, Tab 1 at 6. The appellant did not raise this
argument as a basis for fees below, and therefore we do not address it. Banks v.
Department of the Air Force, 4 M.S.P.R. 268, 271 (1980). In any event, while
attorney fees are authorized by 5 U.S.C. § 7701(g)(2) when the appellant is the
prevailing party in an appeal under 5 U.SC. § 7701 and the Board’s decision is
based on a finding of discrimination prohibited under 5 U.S.C. § 2302(b)(1),
5 C.F.R. § 1201.202(a)(2), the parties here resolved the appeal by settlement, and
therefore the administrative judge did not issue a decision on the merits in which
a finding on such a claim would have been required. 4
¶9 Next, the appellant claims on review that fees are warranted because the
agency committed gross procedural error. PFR File, Tab 1 at 7-11. While the
appellant did not raise this argument below, the agency did, submitting that “[t]he
4
For the same reasons, we need not consider the appellant’s claims on review that fees
are warranted in the interest of justice because the agency action was clearly without
merit or wholly unfounded, or the appellant was substantially innocent of the charges,
and the agency initiated the action in bad faith. PFR File, Tab 1 at 6 -7.
5
impetus for settling [the appeal] was an arguable procedural error,” although n ot a
gross procedural error. AFF, Tab 2 at 6. According to the agency, the employee
who prepared the evidence file testified at the hearing that she did not include, in
the file she created for the appellant, a document reviewed by the deciding
official, prompting the agency to settle the appeal because of app rehension as to a
potential due process violation. AFF File, Tab 11 at 6. The administrative judge
addressed the issue, finding that the agency’s error did not establish a due process
violation in the absence of any showing that the document not provided to the
appellant was so substantial or likely to cause prejudice that “no employee can
fairly be required to be subjected to a deprivation of property under such
circumstances.” AID at 7 (citing Ward v. U.S. Postal Service, 634 F.3d 1274,
1279 (Fed. Cir. 2011)). On review, the appellant merely speculates that the
agency would not have settled the case but for the testimony regarding the
document. PFR File, Tab 1 at 7. Such speculation, however, does not support a
finding that fees are warranted in the interest of justice based on gross procedural
error committed by the agency as to the document referenced at the hearing. 5
See Shelton v. Office of Personnel Management, 42 M.S.P.R. 214, 219 (1989)
(even a finding of harmful procedural error does not necessarily warrant a finding
of gross procedural error such as is required to warrant a fee award), aff’d, 904
F.2d 46 (Fed. Cir. 1990).
¶10 Finally, on review, the appellant disputes the administrative judge’s finding
that fees are not warranted in the interest of justice because the appellant failed to
show that the agency knew or should have known that it would not prevail on the
merits when it brought the proceeding. PFR File, Tab 1 at 12. The administrative
judge found that the agency convened a three-member committee to investigate
5
On review, the appellant argues that fees also are warranted in the interest of justice
based on gross procedural error because, she claims, the agency failed to give her a
copy of the Administrative Investigation Board findings to assist her in her defense.
PFR File, Tab 1 at 7, Tab 4 at 5. The appellant did not raise this argument as a basis
for fees below, and therefore we need not address it. Banks, 4 M.S.P.R. at 271.
6
the incidents that formed the basis of the misconduct charges brought against the
appellant, that the committee members interviewed numerous witnesses who were
present during the two incidents in question, IAF, Tab 6, Subtab 4e, that, based
on the results of the investigation, the agency had sufficient evidence to bring the
charges, and that there was no indication that the agency should have known that
it would not prevail on the merits when it brought the proceeding against the
appellant, AID at 6-7. On review, the appellant merely states that it was “error”
for the administrative judge to find no such evidence. PFR File, Tab 1 at 12.
However, she failed to show that the agency never possessed any credible,
probative evidence to support the action taken. See, e.g., Gensburg v.
Department of Veterans Affairs, 80 M.S.P.R. 187, ¶ 7 (1998). Therefore, the
appellant has not shown that the administrative judge erred in finding that the
appellant failed to show that the agency knew or should have known that it would
not prevail on the merits when it brought the proceeding.
¶11 We conclude that the appellant has not shown that the administrative judge
erred in finding that an award of attorney fees is not warranted in the interest of
justice. 6
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the
U.S. 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
6
Based on this finding, we do not address the administrative judge’s alternative finding
that the fees requested were not reasonable, or the appellant’s challenge on review to
that finding. See, e.g., Griffith v. Department of Agriculture, 96 M.S.P.R. 251, ¶¶ 18-19
(2004).
7
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 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
Merit Systems 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: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.