Melinda Gibson v. Department of the Army ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MELINDA GIBSON, DOCKET NUMBER
Appellant, NY-0752-22-0028-A-1
v.
DEPARTMENT OF THE ARMY, DATE: March 20, 2024
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Neil C. Bonney , Esquire, and Laura A. O’Reilly , Esquire, Virginia Beach,
Virginia, for the appellant.
John B. Gupton , Esquire, and Felix Lizasuain , Esquire, Kingshill, Virgin
Islands, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
¶1 The agency has filed a petition for review of the addendum initial decision,
which granted the appellant’s motions for attorney fees and costs in the amount of
$96,735.00. On petition for review, the agency disagrees with the administrative
judge’s determination that the Board has the authority to order the U.S. Virgin
Islands National Guard (VING)’s Adjutant General to provide relief. Attorney
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
Fee Petition for Review (AFPFR) File, Tab 1 at 6-18. 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 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. 2 5 C.F.R.
§ 1201.113(b).
¶2 On review, the agency maintains that pursuant to the decision of the
U.S. Court of Appeals for the Federal Circuit (Federal Circuit) in Singleton v.
Merit Systems Protection Board, 244 F.3d 1331 (Fed. Cir. 2001), the Board
cannot grant the appellant relief because it lacks authority over the VING
Adjutant General. AFPFR File, Tab 1 at 10-16; Attorney Fees File (AFF), Tab 4
at 7-10. However, the holding in Singleton that the Board lacks the authority to
issue enforceable orders to remedy improper employment actions taken against
National Guard dual status technicians has been abrogated by Congress’s changes
to 32 U.S.C. § 709, enacted as part of the National Defense Authorization Act for
Fiscal Year 2017, Pub. L. No. 114-328, § 932, 130 Stat. 2000, 2363-64 (2016).
See Erdel v. Department of the Army, 2023 MSPB 27, ¶¶ 10-16. Moreover,
2
After the record closed on review, the appellant submitted two motions to provide
supplemental authority and supplement her response to the agency’s petition for review.
AFPFR File, Tabs 5, 7. The agency has responded to the first of these motions. AFPFR
File, Tab 6. Due to our findings here, we deny the motions.
3
contrary to the agency’s argument, Singleton only applied to dual status National
Guard technicians. The agency concedes that the appellant was a Title 5
employee and not a dual status National Guard technician. AFPFR File, Tab 4
at 5. Thus, even if Singleton had not been abrogated, it would not be controlling
here. See Erdel, 2023 MSPB 27, ¶¶ 11-16. Accordingly, we agree with the
administrative judge’s finding that the Board may order relief in this appeal.
AFF, Tab 6, Addendum Initial Decision (AID) at 6-8.
On review, the parties do not challenge any of the administrative judge’s
findings regarding the fee award factors or the amount of the fees and costs
awarded. AFPFR File, Tabs 1, 3-4. To establish entitlement to an award of
attorney fees under 5 U.S.C. § 7701(g)(1), an appellant must show that (1) she
was the prevailing party; (2) she incurred attorney fees pursuant to an existing
attorney-client relationship; (3) an award of attorney fees is warranted in the
interest of justice; and (4) the amount of attorney fees claimed is reasonable. See
Caros v. Department of Homeland Security, 122 M.S.P.R. 231, ¶ 5 (2015). The
administrative judge found that the appellant established that she was the
prevailing party, that an attorney-client relationship existed, that the award of
attorney fees was warranted in the interest of justice due to the agency’s due
process violations and gross procedural errors, and that both the hourly rate and
hours claimed by the appellant’s attorneys were reasonable. AID at 8-15. The
administrative judge reduced the appellant’s request for costs by $2,045.50 when
she excluded the appellant’s request for deposition and copying expenses. AID
at 14-15. Neither party has disputed any of those findings on review, and we
decline to disturb them. 3
3
In the agency’s December 22, 2022 reply to the appellant’s response to the agency’s
petition for review, the agency “requests that the [Board] review the Initial Decision in
[the removal appeal] and reverse the aforesaid Initial Decision and dismiss the
[a]ppellant’s appeal of her removal by the [a]gency.” AFPFR, Tab 4 at 5 n.2. This
request is denied. An attorney fees proceeding is an addendum proceeding in which the
Board does not reconsider the merits of its final decision in the underlying appeal.
Matthews v. Social Security Administration , 104 M.S.P.R. 130, ¶ 8 (2006) (citing
Yorkshire v. Merit Systems Protection Board, 746 F.2d 1454, 1458 (Fed. Cir. 1984)
4
ORDER
¶3 We ORDER the agency to pay the attorney of record $96,735.00 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)).
¶4 We also ORDER the agency to tell the appellant and the attorneys 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 attorneys to provide all necessary information that the agency requests to help
it carry out the Board’s Order. The appellant and the attorneys, if not notified,
should ask the agency about its progress. See 5 C.F.R. § 1201.181(b).
¶5 No later than 30 days after the agency tells the appellant or the attorneys
that it has fully carried out the Board’s Order, the appellant or the attorneys may
file a petition for enforcement with the office that issued the initial decision on
this appeal, if the appellant or the attorneys believe that the agency did not fully
carry out the Board’s Order. The petition should contain specific reasons why the
appellant or the attorneys believe 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 4
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
(“the [Board’s] decision on the fee motion is an addendum to the decision on the merits
and not a reconsideration of the evidence in a new light”)). The initial decision
reversing the appellant’s removal was issued on July 11, 2022, and became the final
decision of the Board when neither party petitioned the Board for review. Gibson v.
Department of the Army, MSPB Docket No. NY-0752-22-0028-I-1, Initial Decision
at 1-2, 34; see 5 C.F.R. § 1201.113.
4
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
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.
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.
6
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
7
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. 5 The court of appeals must receive your petition for
5
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
8
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
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.
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.
9
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: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.