UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
KEENAN HILLARY, DOCKET NUMBER
Appellant, DC-0432-16-0041-A-1
v.
DEPARTMENT OF DATE: January 27, 2023
TRANSPORTATION,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Julie E. Rook Gold, Esquire, Silver Spring, Maryland, for the appellant.
Mindy A. Kaiden, Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the addendum initial
decision, which denied his motion for attorney fees. 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
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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 app eal, 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 The administrative judge denied the appellant’s request for attorney fees
because he failed to prove that he was the prevailing party and that attorney fees
were in the interest of justice. Attorney Fee File (AFF), Tab 6, Addendum Initial
Decision (AID) at 4-12. On petition for review, the appellant challenges both of
these findings. Petition for Review (PFR) File, Tab 1 at 6 -9. Because we agree
that an award of attorney fees would not be in the interest of justice, we need not
determine whether the appellant was the prevailing party. See McGuire v. U.S.
Postal Service, 13 M.S.P.R. 158, 159 n.2 (1982).
¶3 An award of attorney fees may be warranted in the interest of justice when,
for example: (1) the agency engaged in a prohibited personnel practice; (2) the
agency action was clearly without merit or wholly unfounded, or the employee
was substantially innocent of the charges; (3) the agency initiated the action in
bad faith; (4) the agency committed a gross procedural error; or (5) the agency
knew or should have known that it would not prevail on the merits. Allen v. U.S.
Postal Service, 2 M.S.P.R. 420, 434-35 (1980). These criteria apply equally in
cases when a settlement is reached prior to a decision on the merits. Vann v.
Department of the Navy, 38 M.S.P.R. 411, 414 (1988).
3
¶4 The appellant first argues that an award of attorney fees is in the interest of
justice because to deny fees when the parties reach a settlement agreement but
reach an impasse regarding fees would discourage settlement, which is against
public policy. PFR File, Tab 1 at 8. However, echoing the U.S. Supreme Court,
the Board has found that “the purposes of settlement will largely be lost if the
fees proceeding becomes the first [major litigation] in settled cases.” Vann,
38 M.S.P.R. at 414 n.2 (citing Hensley v. Eckerhart, 461 U.S. 424, 437 (1983)).
The Board has therefore emphasized “that the parties should make every effort,
during the course of their negotiations, to settle any potential liability for f ees as
well.” Id. Furthermore, as the administrative judge noted, the agency may have
declined to settle if doing so would have required it to pay the appellant’s
attorney fees. AID at 11-12. Accordingly, we find the appellant’s argument to be
without merit. See Hutchison v. U.S. Postal Service, 38 M.S.P.R. 491, 494-95
(1988) (finding that an award of attorney fees was not in the interest of justice,
despite the appellant obtaining prevailing party status as a result of a settlement),
aff’d, 871 F.2d 1097 (Fed. Cir. 1989) (Table); see also Stringer v. Department of
the Treasury, 27 M.S.P.R. 644, 644 n.* (1985) (finding that an agency’s
agreement not to oppose an appellant’s request for attorney fees does not affect
an appellant’s burden of establishing that an award of fees is justified).
¶5 The appellant also argues that an award of attorney fees is in the interest of
justice because the agency committed a gross procedural error. PFR File, Tab 1
at 8-9. He notes that the deciding official admitted that a lack of evidence
indicating that the appellant wanted to improve his performance was material t o
the decision to remove him. AFF, Tab 1 at 6. The appellant asserts that he was
never notified that the deciding official considered this fact to be material and
was not provided the opportunity to produce evidence of his willingness to
improve his performance. PFR File, Tab 1 at 8-9. The appellant alleges that his
due process rights were therefore violated. Id. at 9.
4
¶6 However, in his reply to the proposal notice, the appellant argued that he
was “both willing and able to improve his performance” and a sserted that his
second-level supervisor’s allegation that he “[could not] or [would] not” improve
his performance was without merit. Initial Appeal File, Tab 4 at 58. A deciding
official does not violate an employee’s due process rights when he consider s
issues raised by an employee in his reply to the proposed adverse action and then
rejects those arguments in reaching a decision. Mathis v. Department of State,
122 M.S.P.R. 507, ¶ 9 (2015). An employee is not entitled to know the particular
weight the deciding official will attach to his arguments raised in reply to the
proposal notice. Id. Accordingly, we find that the appellant failed to prove that
the agency committed a gross procedural error. For the reasons set forth above,
we deny the appellant’s motion for attorney fees.
NOTICE OF APPEAL RIGHTS 2
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 appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following 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.
2
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.
5
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 par ticular
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
6
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. ____ , 137 S. Ct. 1975 (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, nation al 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:
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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 describe d 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
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
3
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
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
8
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
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.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
FOR THE BOARD: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.