Mary A. Miller v. Department of the Interior ( 2016 )


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  •                       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    THIS FINAL ORDER IS NONPRECEDENTIAL 1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    A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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.
    

Document Info

Filed Date: 3/30/2016

Precedential Status: Non-Precedential

Modified Date: 4/18/2021