Boyd v. Department of Labor

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
THASHA A. BOYD,
Petitioner,
v.
DEPARTMENT OF LABOR,
Respondent.
__________________________
2012-3021
__________________________
Petition for review of the Merit Systems Protection
Board in consolidated Case Nos. AT0752100687-P-1 and
AT0752100687-I-1.
____________________________
Decided: April 9, 2012
____________________________
THASHA A. BOYD, of Kennesaw, Georgia, pro se.
CARRIE A. DUNSMORE, Trial Attorney, Commercial
Litigation Branch, Civil Division, United States Depart-
ment of Justice, of Washington, DC, for respondent. With
her on the brief were TONY WEST, Assistant Attorney
General, JEANNE E. DAVIDSON, Director, and REGINALD T.
BLADES, JR., Assistant Director.
__________________________
BOYD v. LABOR 2
Before RADER, Chief Judge, PLAGER and LOURIE, Circuit
Judges.
PER CURIAM.
Thasha A. Boyd appeals from the final decision of the
Merit Systems Protection Board (“the Board”) reversing
the Department of Labor’s (“DOL”) action demoting Boyd
from GS-12 to a GS-11 and denying her request for attor-
ney’s fees. Boyd v. Dep’t of Labor, Nos. AT-0752-10-0687-
I-1 and AT-0752-10-0687-P-I (M.S.P.B. Mar. Sept. 1,
2011). Because the Board correctly reversed the demotion
and denied the request for attorney’s fees, we affirm.
BACKGROUND
Boyd was employed as an Immigration Services Offi-
cer (GS-11) working for the U.S. Citizenship and Immi-
gration Service. She was then promoted to Immigration
Program Analyst (GS-12) at the DOL. Shortly thereafter,
the DOL determined that she lacked the requisite one
year of specialized experience to qualify for the position,
demoting her to Workforce Development Specialist (GS-
11). Boyd appealed to the Board.
The administrative judge (“AJ”) reversed the DOL’s
action, finding that DOL had violated Boyd’s due process
rights by failing to provide her with prior notice of the
demotion and an opportunity to respond, which she was
entitled to because she had already begun performing her
duties as an Immigration Program Analyst. The AJ
ordered the agency to restore Boyd to her previous posi-
tion, provide back pay with interest, and adjust Boyd’s
benefits.
Boyd subsequently filed a motion with the Board for
compensatory damages. The AJ issued an acknowledge-
ment order, describing the Board’s jurisdictional limits to
award compensatory damages and ordering Boyd to
3 BOYD v. LABOR
address the Board’s authority to award the requested
relief. Boyd then withdrew her motion and submitted a
motion for attorney’s fees. The AJ denied Boyd’s motion
for compensatory damages because it lacked authority to
award such relief without a showing of intentional em-
ployment discrimination, which was not claimed by Boyd,
and did not address the motion for attorney’s fees.
Boyd appealed the decisions to the full board as well
as a denial of her request for additional discovery. With
regard to the demotion, Boyd argued that the AJ failed to
consider the merits of her allegations that the agency had
committed a prohibited personnel practice, falsified
documents, and took an action not in accordance with law.
The Board affirmed the initial decision regarding her
demotion. It rejected Boyd’s argument that the AJ should
have addressed the merits of her claim because no new,
previously unavailable, evidence was presented and
because the AJ made no error in law or regulation. The
Board held that the denial of Boyd’s discovery requests
was harmless because the Board ruled in Boyd’s favor.
The Board also held that the AJ should have dismissed
the compensatory damages appeal as withdrawn because
Boyd had clearly and unequivocally withdrawn that
request in lieu of seeking attorney’s fees. The Board
vacated the initial decision and dismissed the compensa-
tory damages appeal as withdrawn, with prejudice to
refiling. The Board then analyzed Boyd’s motion for
attorney’s fees, finding that because Boyd was pro se
throughout the appeal and because the evidence pre-
sented did not show an attorney-client relationship, she
was not entitled to attorney’s fees. This appeal followed.
DISCUSSION
The scope of our review in an appeal from a Board de-
cision is limited. We can set aside the Board’s decision
BOYD v. LABOR 4
only if it was “(1) arbitrary, capricious, an abuse of discre-
tion, or otherwise not in accordance with law; (2) obtained
without procedures required by law, rule, or regulation
having been followed; or (3) unsupported by substantial
evidence.” 5 U.S.C. § 7703(c); see Briggs v. Merit Sys. Prot.
Bd., 331 F.3d 1307, 1311 (Fed. Cir. 2003).
Boyd argues that the Board failed to address her alle-
gation that the agency committed prohibited personnel
practices—the merits of her claims—and the denial of her
requests for additional discovery. She also argues that
the Board improperly denied her motion for consulting
attorney’s fees, which she argues were supported by her
credit card statements.
The government argues that Boyd no longer has a
case or controversy because she prevailed in her case,
receiving all the relief to which she was entitled. In
addition, the government argues that because the AJ
decided the case on due process grounds, he did not have
to reach the merits. The government also posits that the
failure of the Board to permit additional discovery was at
most harmless error in light of the fact that Boyd pre-
vailed. Finally, the government argues that Boyd, who
was undisputedly pro se, did not adequately provide
evidence of an attorney-client relationship to support an
award of attorney’s fees.
We agree with the government that Boyd lacks stand-
ing to appeal the final decision reinstating her position
with back pay and benefits. Our judicial power of review
created under Article III § 2 of the Constitution extends
only to actual “cases” or “controversies.” To establish
standing to sue, Article III § 2 requires that a party must,
“at an irreducible minimum,” show: (1) “that he person-
ally has suffered some actual or threatened injury as a
result of the putatively illegal conduct”; (2) that “the
5 BOYD v. LABOR
injury fairly can be traced to the challenged action”; and
(3) that the injury “is likely to be redressed by a favorable
decision.” Valley Forge Christian Coll. v. Ams. United for
Separation of Church & State, Inc., 454 U.S. 464, 472
(1982) (citations omitted). Boyd has not shown that she
has been adversely affected or aggrieved by the Board’s
decision. Indeed, she received the relief she requested,
reinstatement, back pay, and benefits.
Furthermore, because the demotion case was decided
on due process grounds, the AJ properly did not reach the
merits. As we held in Stone v. FDIC.:
[W]here a serious procedural curtailment
mars an adverse personnel action which
deprives the employee of pay, the court
has regularly taken the position that the
defect divests the removal (or demotion)
of legality, leaving the employee on the
rolls of the employing agency and entitled
to his pay until proper procedural steps
are taken toward removing or disciplining
him. In that situation, the merits of the
adverse action are wholly disregarded.
Stone v. FDIC, 179 F.3d 1368, 1377 (Fed. Cir. 1999)
(quoting Ryder v. United States, 585 F.2d 482, 487–88 (Ct.
Cl. 1978)). That procedural defect has “divest[ed] the
[demotion] of legality” in this case, in effect leaving Boyd
“on the rolls of the employing agency and entitled to [her]
pay,” subject to further action involving proper procedural
steps. Id. At this point, Boyd is entitled to a new, consti-
tutionally correct, demotion procedure if the agency
chooses to take such action. As she is currently in her
position and has not been demoted, she no longer has
standing before the Board. Similarly, the failure of the
BOYD v. LABOR 6
Board to let her take additional discovery is, likewise,
harmless error because she prevailed in her case.
As for Boyd’s appeal regarding attorney’s fees, the
Board may, in its discretion, order the payment of attor-
ney fees to an appellant if the appellant is a “prevailing
party” and the Board “determines that payment by the
agency is warranted in the interest of justice.” 5 U.S.C. §
7701(g)(1); Sterner v. Dep’t of Army, 711 F.2d 1563, 1566
(Fed. Cir. 1983). The court in Sterner additionally indi-
cated, however, that “[o]ther factors, like existence of an
attorney-client relationship . . . are of course also neces-
sary ingredients” for an award of attorney fees. Id. In the
case of a pro se litigant, an appellant may not recover fees
under section 7701(g)(1) for work performed by a nonat-
torney, including herself. Here, it is undisputed that
Boyd proceeded pro se. Boyd submitted a chart of ex-
penses and corresponding credit card charges in support
of her motion for attorney’s fees. However, none of that
evidence supports a conclusion that an attorney-client
relationship was formed or that the charges were related
to this case. Murdrich v. Dep’t of Agric., 92 M.S.P.R. 413,
418 (2002); Johnson v. Dep’t. of Interior, 24 M.S.P.R. 209,
211–12 (1984). Thus the Board’s determination that Boyd
had not established an attorney-client relationship was
supported by substantial evidence.
We have considered Boyd’s remaining arguments and
do not find them persuasive. We therefore conclude that
the Board did not err in reversing the demotion and
denying attorney’s fees. Accordingly, we affirm.
AFFIRMED