United States Merit Systems Protection Board

Case Report for March 26, 2010

These summaries are descriptions prepared by individual MSPB employees. They do not represent official summaries approved by the Board itself, and are not intended to provide legal counsel or to be cited as legal authority.  Instead, they are provided only to inform and help the public locate Board precedents.



Appellant: Diane R. Smith

Agency: Department of the Navy

Decision Number: 2010 MSPB 55

Docket Number: PH-0432-09-0135-A-1

Issuance Date: March 22, 2010

Action Type: Attorney Fee Request

Attorney Fees - Costs

The agency filed a petition for review (PFR) of an addendum initial decision granting the appellant’s motion for attorney fees. The appellant filed an appeal of the agency’s performance-based removal action and prevailed. Citing 5 U.S.C.  7701(g)(2) as the applicable legal authority, the appellant’s attorney then filed a request for attorney fees, which included a request for deposition transcription costs. Although the agency disputed the amount of attorney fees that should be awarded, it did not object to the request for reimbursement of deposition transcription costs or contest the appellant’s assertion of the governing legal authority. The administrative judge found that the appellant was entitled to attorney fees, but that the authority for awarding them was 5 U.S.C.  7701(g)(1) rather than  7701(g)(2), which applies only when there has been a finding of prohibited discrimination. The judge reduced the amount of attorney fees by $8,137.50, but awarded the deposition transcription costs. On PFR, the agency contends that the award of deposition transcription costs is inappropriate under 5 U.S.C.  7701(g)(1).

Holdings: The Board granted the agency’s PFR and affirmed the initial decision as modified, reversing the award of deposition transcription costs:

1. Although the Board will not ordinarily consider an argument raised for the first time on PFR, absent a showing that it is based on new and material evidence, it will do so if not correcting the initial decision would require the payment of public funds in contravention of a federal statute.

2. It is well-established that the Board is not authorized under 5 U.S.C.  7701(g)(1) to award deposition costs to a prevailing party.

Appellant: Eric Wiggins

Agency: Department of the Air Force

Decision Number: 2010 MSPB 56

Docket Number: AT-0752-09-0691-I-1

Issuance Date: March 23, 2010

Appeal Type: Adverse Action by Agency

Action Type: Removal

Board Procedures/Authorities
- Dismissals – Failure to Prosecute
Timeliness – PFR

The appellant petitioned for review of an initial decision that dismissed his removal appeal for failure to prosecute.

Holdings: The Board granted the appellant’s PFR, vacated the initial decision, and remanded the appeal to the regional office for further adjudication:

1. Although the appellant’s PFR was submitted 4 minutes after the filing deadline, the Board found good cause for the minimal filing delay based on evidence of this pro se appellant’s efforts to make a timely electronic filing.

2. The administrative judge abused his discretion by dismissing the appeal for failure to prosecute.

a. The severe sanction of dismissal with prejudice for failure to prosecute should not be imposed against a pro se appellant who has made incomplete responses to the Board’s orders, but has not exhibited bad faith or evidenced any intent to abandon his appeal.

b. The administrative judge’s frustration with the appellant is understandable. The appellant failed to obey the judge’s order compelling discovery, the order requiring him to file a prehearing submission, and was unavailable for a telephonic conference. Nevertheless, he participated in 1 telephonic conference, asserted affirmative defenses, and filed 3 timely if incomplete responses to the administrative judge’s order on affirmative defenses. Under the circumstances, the appellant did not exhibit bad faith or evidence an intent to abandon his appeal.

Appellant: Amber M. Rothlisberger

Agency: Department of the Army

Decision Number: 2010 MSPB 57

Docket Number: CH-3443-09-0061-B-1

Issuance Date: March 23, 2010

Timeliness – PFR

The appellant petitioned for review of a remand initial decision that dismissed her appeal of an indefinite suspension as untimely filed. The PFR was filed 14 days after the deadline for timely filing. The appellant did not respond to the notice of the Clerk of the Board regarding timeliness.

Holdings: The Board dismissed the appellant’s PFR as untimely filed without good cause shown for the delay in filing.