Joaquin Capestany v. Department of Homeland Security ( 2023 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JOAQUIN CAPESTANY, DOCKET NUMBER
Appellant, DE-0752-21-0134-A-1
v.
DEPARTMENT OF HOMELAND DATE: December 15, 2023
SECURITY,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Jeffrey H. Jacobson , Tucson, Arizona, for the appellant.
Eric McNeilus , Tucson, Arizona, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the addendum initial
decision, which denied his attorney fee petition. For the reasons discussed below,
we GRANT the appellant’s petition for review, REVERSE the addendum initial
decision, and award the requested fees in the amount of $81,830.00.
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
BACKGROUND
¶2 On February 19, 2021, the agency removed the appellant on a charge of
inability to perform the essential duties of his position due to a medical condition.
Capestany v. Department of Homeland Security, MSPB Docket No. DE-0752-21-
0134-I-1, Initial Appeal File (IAF), Tab 1. The appellant filed a Board appeal on
March 3, 2021. Id. Following a hearing, the administrative judge issued an
initial decision finding that the agency failed to prove its charge. IAF, Tab 41,
Initial Decision (ID). In reaching that finding, the administrative judge
determined that the medical opinions of E.N., Psy.D., whose reports the appellant
had provided the agency prior to its final decision, and I.L., M.D., whose reports
were submitted for the first time on appeal, were due more weight than the
opinion of B.M., M.D., which the agency had relied upon in taking the removal
action. ID at 26-29. The initial decision became final on January 31, 2022, when
neither party filed a petition for review.
¶3 On March 28, 2022, the appellant filed a petition for attorney fees.
Capestany v. Department of Homeland Security, MSPB Docket No. DE-0752-21-
0134-A-1, Attorney Fee File (AFF), Tab 1. He claimed fees in the amount of
$79,130.00 and argued that an award of fees was in the interest of justice under
Allen categories (2) and (5). 2 Id. at 6-10, 12. The agency responded to the
appellant’s motion, and the appellant replied to the agency’s response, amending
his fee request to include an additional $2,250.00, for a total amount of
$81,830.00. AFF, Tabs 3-4.
¶4 On June 29, 2022, the administrative issued an initial decision denying the
appellant’s fee petition. AFF, Tab 7, Addendum Initial Decision (AID). The
2
In Allen v. U.S. Postal Service, 2 M.S.P.R. 420, 434-35 (1980), the Board listed
several examples of circumstances in which an attorney fee award would be warranted
in the interest of justice: (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 gross procedural error; or (5) the agency knew or
should have known that it would not prevail on the merits.
3
administrative judge determined that the only issue in dispute was whether an
award of fees was in the interest of justice and that only Allen categories (2) and
(5) were pertinent to that inquiry. AID at 2-3. With regard to Allen category (2),
the administrative judge found that only the “clearly without merit” subcategory
was applicable to removals based on medical inability to perform. AID at 4-7.
He further found that the removal action was not “clearly without merit,” because
his decision to reverse the action was based primarily on the report and testimony
of Dr. I.L., and “[a]t the time of [the appellant’s] removal, the agency did not
have the benefit of [Dr. I.L.’s] opinion.” AID at 7-8. The administrative judge
went on to find that an award of fees was not warranted under Allen category (5),
because there was credible, probative evidence supporting the agency’s charge at
the time it took the action. AID at 9-10.
¶5 On review, the appellant argues that the administrative judge erred in his
analysis of both Allen category (2) and category (5). Petition for Review (PFR)
File, Tab 5. The agency has filed a response, to which the appellant has replied.
PFR File, Tabs 9-10.
DISCUSSION OF ARGUMENTS ON REVIEW
¶6 To establish entitlement to an award of attorney fees under 5 U.S.C.
§ 7701(g)(1), an appellant must show that (1) he was the prevailing party; (2) he
incurred attorney fees pursuant to an existing attorney-client relationship; (3) an
award of fees is warranted in the interest of justice; and (4) the amount of fees
claimed is reasonable. Driscoll v. U.S. Postal Service, 116 M.S.P.R. 662, ¶ 7
(2011). The agency has stipulated that an attorney-client relationship existed,
that the appellant incurred fees, and that the appellant was the prevailing party.
IAF, Tab 3 at 7. As to the amount of fees incurred, the administrative judge
found that that the itemized charges and hours, as well as the hourly rate, were
reasonable on their face, and the agency does not dispute that finding on review.
AID at 3 n.2. Hence, the only issue in dispute is whether a fee award is
4
warranted in the interest of justice. The appellant contends that a fee award is
warranted in the interest of justice under Allen category (2), which applies where
the agency action was clearly without merit or wholly unfounded, or the
employee was substantially innocent of the charge; and category (5), which
applies where 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).
¶7 We find that a fee award is warranted under Allen category (2) because the
appellant was “substantially innocent” of the charge on which the removal action
was based. It is well settled that substantial innocence, in itself, is an adequate
ground for the allowance of fees even in a close case where the charges may not
have been “clearly without merit” or “wholly unfounded.” See Boese v.
Department of the Air Force, 784 F.2d 388, 391 (Fed. Cir. 1986); see also Van
Fossen v. Merit Systems Protection Board, 788 F.2d 748, 749 (Fed. Cir. 1986)
(stating that the court’s cases “make it clear that ‘substantial innocence’ is an
operative Allen guideline in and of itself”). Our precedent also makes clear that
the substantial innocence standard is not limited to charges of misconduct. See
Social Security Administration v. Goodman, 33 M.S.P.R. 325, 331 (1987)
(awarding fees under the substantial innocence standard where the agency sought
to remove an administrative judge for alleged low productivity and the Board did
not uphold the charge); Young v. Department of the Air Force, 29 M.S.P.R. 589,
590-91 (1986) (awarding fees where the appellant was substantially innocent of
the charge that she failed to meet the performance requirements for her position).
¶8 In the instant case, the administrative judge’s ruling that the substantial
innocence standard is inapplicable to a charge of medical inability to perform was
based in large part on several Board decisions. AID at 4-6; (citing Gollis v.
Department of the Navy, 54 M.S.P.R. 38 (1992), overruled on other grounds,
989 F.2d 1203 (Fed. Cir. 1993) (nonprecedential); Kent v. Office of Personnel
Management, 33 M.S.P.R. 361 (1987); and Simmons v. Office of Personnel
Management, 31 M.S.P.R. 559 (1986)). However, Kent and Simmons were
5
disability retirement appeals in which there was no charge of any kind brought
against the appellant. In Gollis, as here, the appellant was removed for medical
inability to perform, but in Gollis, the agency’s charge was sustained, and the
removal was reversed only because the appellant subsequently recovered. Thus,
the Board had no occasion in Gollis to decide whether the “substantially
innocent” prong of Allen category (2) would apply to a case such as this one,
where the agency failed to prove its charge.
¶9 Although we do not find fault with the agency’s efforts to determine
whether the appellant had a medical condition that prevented him from safely
performing his law enforcement duties, Congress did not intend the substantially
innocent standard to punish agency misconduct but “to minimize the burden an
unsubstantiated accusation places upon innocent employees.” Yorkshire v. Merit
Systems Protection Board, 746 F.2d 1454, 1457 (Fed. Cir. 1984). Here, the
agency could not sustain the fundamental basis for its removal action before the
Board, and thus, we agree with the appellant that he was substantially innocent of
the charge against him and is entitled to an award of attorney fees in the interest
of justice. 3 See Boese, 784 F.2d at 391.
ORDER
¶10 We ORDER the agency to pay the attorney of record $81,830.00 in fees.
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)).
¶11 We also ORDER the agency to tell the appellant and the attorney 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
3
In light of this finding, it is unnecessary to determine whether a fee award would also
be warranted under Allen category (5) or under the “clearly without merit” or “wholly
unfounded” prongs of Allen category (2), nor is it necessary to address the appellant’s
remaining arguments on review. See Yorkshire, 746 F.2d at 1457.
6
the attorney to provide all necessary information that the agency requests to help
it carry out the Board’s Order. The appellant and the attorney, if not notified,
should ask the agency about its progress. See 5 C.F.R. § 1201.181(b).
¶12 No later than 30 days after the agency tells the appellant or the attorney that
it has fully carried out the Board’s Order, the appellant or the attorney may file a
petition for enforcement with the office that issued the initial decision on this
appeal, if the appellant or the attorney believes that the agency did not fully carry
out the Board’s Order. The petition should contain specific reasons why the
appellant or the attorney believes 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
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
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.
7
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.
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
8
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
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
9
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
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
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
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.
10
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: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.