United States Merit Systems Protection Board

Case Report for August 27, 2010


Note:
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.


BOARD DECISIONS

 

Appellant: Shauan Morris

Agency: Department of Veterans Affairs

Decision Number: 2010 MSPB 162

Docket Number: AT-0752-09-0918-I-1

Issuance Date: August 10, 2010

Appeal Type: Adverse Action by Agency

Action Type: Removal

In a non-precedential Final Order, the Board affirmed an initial decision that dismissed an appeal for lack of jurisdiction on the basis that the appellant had breached the terms of a last chance agreement that included a waiver of appeal rights. In a dissenting opinion, Vice Chairman Wagner expressed her view that the appellant made a non-frivolous allegation of jurisdiction.

Appellant: Donald T. McDougall, Esq.

Agency: Social Security Administration

Decision Number: 2010 MSPB 163

Docket Number: PH-0752-09-0619-I-1

Issuance Date: August 13, 2010

Actions Against ALJs

The appellant, an administrative law judge, filed an appeal with the Board’s Northeast Regional Office alleging that his retirement was involuntary. The Board’s administrative judge found that the appellant failed to establish that his retirement was involuntary and dismissed the appeal for lack of jurisdiction.

Holdings: The Board vacated the initial decision and reassigned the appeal to an administrative law judge for adjudication:

1. Actions against administrative law judges differ from those in adverse action appeals by other federal employees, which are governed by subchapter II of chapter 75 of the United States Code. Actions against administrative law judges are governed by the Administrative Procedures Act, which requires that an appeal be presided over by the full Board, one or more Board members, or an administrative law judge.

2. Because the administrative judge lacked authority to adjudicate this appeal, the initial decision must be vacated and the matter assigned to an administrative law judge for adjudication.

Appellant: Gwendolyn G. Lewis

Agency: Office of Personnel Management

Decision Number: 2010 MSPB 164

Docket Number: DA-844E-09-0152-X-1

Issuance Date: August 17, 2010

Case Type: Compliance Referral

Compliance

This case was before the Board based on the administrative judge’s Recommendation finding that OPM was not in compliance with a final Board decision that ordered it to grant the appellant’s application for disability retirement.

Holding: Finding that the agency is now in compliance with its obligations, the Board dismissed the petition for enforcement.

Appellant: Karen S. Engel

Agency: United States Postal Service

Decision Number: 2010 MSPB 165

Docket Number: DE-0752-08-0356-X-1

Issuance Date: August 17, 2010

Case Type: Compliance Referral

Compliance

This case was before the Board based on the administrative judge’s Recommendation finding the agency in partial noncompliance with the terms of a settlement agreement that resolved the underlying appeal.

Holding: Finding that the agency is now in compliance with the settlement agreement, the Board dismissed the petition for enforcement as moot.

Appellant: Muqtadir Mubdi

Agency: U.S. Postal Service

Decision Number: 2010 MSPB 166

Docket Number: SF-0353-09-0668-I-1

Issuance Date: August 18, 2010

Appeal Type: Restoration to Duty

Action Type: After Recovery From Compensable Injury

Restoration to Duty

The appellant petitioned for review of an initial decision that denied his request for restoration as a partially recovered employee. This appeal involves the agency’s National Reassessment Process (NRP) Pilot Program, in which management reviews the assignments of those performing limited duty following partial recovery from a work-related injury to ensure that the assignments are consistent with employees’ medical restrictions and contain only “operationally necessary tasks.” If a limited duty assignment does not meet these criteria, and if management is unable to identify operationally necessary tasks available within the employee’s work restrictions, the employee is sent home until such work becomes available or his medical restrictions change. After the appellant was sent home under the NRP Pilot Program, he filed a Board appeal claiming that the agency violated his restoration rights as a partially recovered employee under 5 C.F.R. part 353, and that the agency had failed to accommodate his medical condition. The initial decision found that the appellant was not entitled to corrective action because he did not establish that the agency acted arbitrarily or capriciously in denying restoration. She further found that the appellant did not establish his affirmative defense of disability discrimination.

In his petition for review, the appellant argues that the agency failed to search the entire commuting area for available work.

Holdings: The Board granted the appellant’s petition for review, vacated the initial decision, and remanded the appeal for further adjudication:

1. In the case of a partially recovered employee, i.e., one who cannot resume the full range of regular duties but has recovered sufficiently to return to part‑time or light duty or to another position with less demanding physical requirements, an agency must make every effort to restore the individual to a position within his medical restrictions and within the local commuting area. An individual who is partially recovered from a compensable injury may appeal to the MSPB for a determination of whether the agency is acting arbitrarily and capriciously in denying restoration.

2. For restoration purposes, the local commuting area is the geographic area in which an individual lives and can reasonably be expected to travel back and forth daily to his usual duty station. The question of what constitutes a local commuting area is one of fact.

3. Remand is necessary because the initial decision did not specifically address the agency’s obligation to consider the entire local commuting area or define the local commuting area relevant in the appellant’s restoration claim.

4. The appellant’s disability discrimination claim is properly before the Board despite the existence of an EEOC class action. On remand, the administrative judge should address whether the agency failed to accommodate the appellant’s disability as required by the Rehabilitation Act.

Appellant: Manuel C. Carlos

Agency: United States Postal Service

Decision Number: 2010 MSPB 167

Docket Number: SF-0353-09-0548-I-2

Issuance Date: August 18, 2010

Appeal Type: Restoration to Duty

Action Type: After Recovery From Compensable Injury

Restoration to Duty

The appellant petitioned for review of an initial decision that denied his request for restoration as a partially recovered employee, and found that the appellant failed to establish his affirmative defense of disability discrimination. As in Mubdi, this case involves the application of the agency’s National Reassessment Process (NRP) Pilot Program.

Holdings: The Board granted the appellant’s petition for review, vacated the initial decision, and remanded the appeal for further adjudication:

1. The appellant’s restoration claim must be remanded because the initial decision did not include a specific finding defining the relevant local commuting area.

2. As the appellant did not allege any error by the administrative judge in adjudicating his claim of disability discrimination, the remand proceedings need not address that claim further.

Appellant: Delores G. Moore

Agency: Office of Personnel Management

Decision Number: 2010 MSPB 168

Docket Number: PH-844E-09-0599-I-1

Issuance Date: August 18, 2010

Appeal Type: FERS - Employee Filed Disability Retirement

Action Type: Retirement/Benefit Matter

Jurisdiction
Mootness

The appellant petitioned for review of an initial decision this dismissed her appeal as moot. The basis for this disposition was that, during processing of the appeal, OPM rescinded its reconsideration decision and stated that it was granting the appellant’s application for disability retirement.

Holding: The Board granted the appellant’s petition for review and affirmed the initial decision as modified, dismissing the appeal for lack of jurisdiction. The Board found that the appeal was not moot, because the record did not reflect that OPM had actually awarded the appellant disability retirement, but that the rescission of OPM’s reconsideration decision deprived the Board of jurisdiction.

Appellant: Cory D. Voorhis

Agency: Department of Homeland Security

Decision Number: 2010 MSPB 169

Docket Number: DE-0752-08-0199-C-1

Issuance Date: August 18, 2010

Appeal Type: Adverse Action by Agency

Action Type: Suspension - More than 14 Days

Board Procedures/Authorities
- Dismissals
Mootness

The appellant petitioned for review of a compliance initial decision that dismissed his petition for enforcement as withdrawn. During adjudication, the appellant stated that it appeared that the agency was now in compliance and he had no objection to the appeal being dismissed as moot. The initial decision dismissed the appeal as withdrawn.

Holdings: The Board granted the appellant’s petition for review and dismissed the petition for enforcement as moot.

Appellant: Luis A. Guzman

Agency: Department of Veterans Affairs

Decision Number: 2010 MSPB 170

Docket Number: PH-0752-09-0193-I-1

Issuance Date: August 20, 2010

Appeal Type: Adverse Action by Agency

Action Type: Removal

Whistleblower Protection Act
Board Procedures/Authorities
- Authority of Administrative Judges
- Sanctions
Defenses - Waiver

The appellant petitioned for review of an initial decision that affirmed his removal based on 4 charges of misconduct. In his appeal, the appellant asserted an affirmative defense of retaliation for whistleblowing, stating that he had witnessed “mistreatment, abuse, neglect and downright apathy” by some employees towards patients and “corruption, fraudulent acts, [and] conflict of interest” perpetrated by management, which he brought to the attention of facility’s Director and the agency’s Inspector General. Neither the administrative judge’s acknowledgment order nor any later order set forth the elements of proof for any affirmative defense, and failed to address whistleblowing issues in substance. After a hearing, the administrative judge found that the agency had proven its charges by preponderant evidence, that the agency established a nexus between the charges and the efficiency of the service, and that the removal penalty was within the bounds of reasonableness. In a footnote to the initial decision, the judge explained that, although the appellant appeared to have been raising a claim of retaliation for whistleblowing, he had not filed any discovery motions or prehearing submissions related to such a defense, and the judge deemed this affirmative defense to have been waived. In his petition for review, the appellant argued that the administrative judge erred by dismissing his affirmative defense of reprisal for whistleblowing.

Holdings: The Board granted the appellant’s petition for review, affirmed the initial decision insofar as it found that the appellant committed the charged conduct and that the removal penalty was reasonable, but vacated the decision insofar as it deemed the claim of retaliation for whistleblowing to have been waived, and remanded that claim for adjudication:

1. The agency established that the appellant committed the charged conduct, the removal action promoted the efficiency of the service, and the penalty of removal was reasonable.

2. The administrative judge abused her discretion when she found that the appellant had waived his whistleblower reprisal claim.

a. An administrative judge should not impose sanctions unless they are necessary to serve the ends of justice. While the judge did not use the term “sanctions” in finding that the appellant had waived his affirmative defense of whistleblowing, that finding amounted to the imposition of a sanction.

b. The appellant did not waive his defense of reprisal for whistleblowing.

3. Remand is necessary because the administrative judge never informed the appellant of his burden and elements of proof for establishing a claim of reprisal for whistleblowing. On remand, the judge must provide proper Burgess notice, hold a new hearing regarding this affirmative defense, and allow the appellant to conduct limited discovery and present prehearing submissions, witnesses and exhibits solely pertaining to the whistleblowing issue.

4. The appellant should not have received notice of appeal rights for a mixed-case appeal.

Appellant: Linton V. Powell

Agency: Office of Personnel Management

Decision Number: 2010 MSPB 171

Docket Number: DC-0831-10-0408-I-1

Issuance Date: August 23, 2010

Action Type: Retirement/Benefit Matter

Retirement
Jurisdiction
Timeliness - PFA

The appellant petitioned for review of an initial decision that dismissed his appeal of an OPM decision denying his application for a deferred retirement annuity. In a September 2003 initial decision, OPM denied the appellant’s request for a deferred annuity on the basis that he lacked the requisite creditable service. Although the appellant did not file a formal request for reconsideration of this initial decision, he contacted OPM at least twice regarding the denial of his request, and received two letters from OPM officials, one in December 2003, and one in December 2007. The latter stated that the appellant was ineligible for a deferred retirement annuity because he lacked the requisite 5 years of creditable service, and because he had received a refund for his retirement deductions in 2006. The appellant filed an appeal with the Board in March 2010. The administrative judge issued an initial decision dismissing the appeal for lack of jurisdiction on the basis that the appellant failed to establish that OPM had issued a final decision on his request for an annuity.

Holdings: The Board denied the appellant’s petition for review, reopened the appeal on its own motion, reversed the initial decision, and remanded the appeal to the regional office for further adjudication:

1. The Board generally has jurisdiction to adjudicate an individual’s rights and interests under the Civil Service Reform Act only after OPM has rendered a reconsideration decision on the issue in question. Nevertheless, the Board may take jurisdiction over a retirement appeal where the appellant has made repeated requests for such a decision and the evidence indicates that OPM does not intend to issue a reconsideration decision.

2. The Board found that OPM’s December 2007 letter constituted a final, appealable decision on the appellant’s application for a deferred annuity, and the Board has jurisdiction to consider the merits of the appellant’s claim.

3. On remand, the administrative judge should determine whether the appellant was timely filed, and if not, whether he has established good cause for the delay in filing.

Appellant: Patricia C. White

Agency: United States Postal Service

Decision Number: 2010 MSPB 172

Docket Number: AT-3330-09-0887-I-1

Issuance Date: August 23, 2010

Appeal Type: Veterans Employment Opportunities Act

VEOA
Jurisdiction
Failure to State a Claim

The appellant petitioned for review of an initial decision that dismissed her VEOA appeal for failure to state a claim upon which relief can be granted. This appeal was separately docketed in connection with restoration and USERRA appeals the appellant had filed. In the restoration appeal, the appellant challenged the agency’s determination that it had no work within her medical restrictions as an employee who had partially recovered from a compensable injury. In this VEOA appeal, the appellant appeared to allege that the agency violated her preference rights by assigning work to non-preference eligible employees but not to her. Without holding a hearing, the administrative judge found that the Board has jurisdiction over the VEOA appeal, but dismissed it for failure to state a claim upon which relief can be granted, finding that the appellant was not entitled to veterans’ preference in the context of transferring between jobs with the agency.

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

1. The administrative judge failed to address the appellant’s claims that the agency violated her preference rights in the context of a reduction in force and an application for reemployment. The record on these issues is not sufficiently developed for the Board to make findings on them on review.

2. The appellant failed to establish jurisdiction over any of her VEOA claims because she did not show that she exhausted her administrative remedy with the Department of Labor with respect to the particular agency actions at issue. It would be inappropriate to dismiss the appeal for lack of jurisdiction, however, because the appellant was not notified of this jurisdictional defect.

3. To the extent that the appellant failed to establish jurisdiction over her appeal, dismissal for failure to state a claim upon which relief can be granted was not a proper disposition. Such a dismissal is only proper with respect to an appeal within the Board’s jurisdiction.

Appellant: Laura A. Hunt

Agency: Office of Personnel Management

Decision Number: 2010 MSPB 173

Docket Number: CH-0831-09-0791-C-1

Issuance Date: August 24, 2010

Action Type: Retirement/Benefit Matter

Jurisdiction

The appellant petitioned for review of an initial decision that denied her petition for enforcement. The underlying appeal was dismissed for lack of jurisdiction when OPM informed the Board that it had completely rescinded its reconsideration decision. In her petition for enforcement, the appellant asked for the Board’s assistance in obtaining a reconsideration decision from OPM. Based on evidence that OPM issued a reconsideration decision following the filing of the compliance action, the administrative judge issued an initial decision denying the petition for enforcement.

Holdings: The Board denied the appellant’s petition for review, reopened the appeal on its own motion, and dismissed the petition for enforcement for lack of jurisdiction:

1. The Board has no authority to order enforcement if it lacks jurisdiction over the underlying appeal.

2. Because the appellant’s underlying appeal was dismissed for lack of jurisdiction, the petition for enforcement for enforcement of the initial decision should also have been dismissed for lack of jurisdiction.

Appellant: Donald Shapiro

Agency: Department of Veterans Affairs

Decision Number: 2010 MSPB 174

Docket Number: PH-0752-10-0175-I-1

Issuance Date: August 24, 2010

Appeal Type: Adverse Action by Agency

Action Type: Suspension - Indefinite

Dismissals – Appeal Withdrawn
Mixed Case Procedures

The appellant petitioned for review of an initial decision that dismissed his appeal as withdrawn. After filing an appeal of a suspension, the appellant withdrew his appeal, stating that he intended to pursue the matter through an EEO process with his agency’s Office of Resolution Management. The administrative judge issued an initial decision dismissing the appeal. On petition for review, the appellant states that he withdrew his Board appeal based on the mistaken belief that his dispute with the agency could and would be pursued through the EEO process. His EEO complaint was dismissed, however, on the basis that his election to proceed before the Board was binding and irrevocable.

Holdings: The Board granted the appellant’s petition for review, vacated the initial decision, reinstated the appeal, and remanded it to the regional office for adjudication:

1. Generally, an appellant’s withdrawal of an appeal is an act of finality that has the effect of removing the appeal from the Board’s jurisdiction. However, the Board may relieve the appellant of the consequences of his decision to withdraw the appeal where the decision was based on incorrect or misleading information.

2. In this case, it appears that the appellant’s decision to withdraw was the result of a misunderstanding concerning mixed case procedures.

a. When an employee who has been affected by an action that is appealable to the Board believes that the action was the result of prohibited discrimination, he must elect between filing a mixed case complaint with the agency or filing a mixed case appeal directly with the Board, and whichever is filed first is considered an election to proceed in that forum. Once a complainant elects to proceed before the Board, the withdrawal of his Board appeal does not negate his prior election.

b. The appellant withdrew his Board appeal based on the belief that what had thus far been and informal EEO activity constituted a binding election to proceed before the agency. Under these circumstances, reinstatement of the appeal is appropriate.

Appellant: Pemiton E. Gregory

Agency: Department of the Army

Decision Number: 2010 MSPB 175

Docket Number: DC-0752-09-0426-I-1

Issuance Date: August 25, 2010

Appeal Type: Adverse Action by Agency

Action Type: Reduction in Grade/Rank/Pay

Adverse Action Charges
- Sexual Misconduct/Harassment

Both parties petitioned for review of an initial decision that reversed the appellant’s demotion and suspension and found that the appellant failed to prove his affirmative defenses. The agency demoted the appellant and suspended him for 21 days based on charges of violating two agency policies, one dealing with sexual harassment, and one dealing with employees’ right to work in a “Hostile Fee Environment.” The administrative judge found that the policy language cited in the charges was sufficiently similar to that of Title VII of the Civil Rights Act of 1964 prohibiting the creation of a “hostile work environment” to require the agency to meet the Title VII standard as an element of its sexual harassment charge, i.e., the agency had to prove both that unwelcome sexual conduct occurred and that the conduct created a hostile work environment. After conducting a hearing, the administrative judge issued an initial decision finding that the appellant engaged in inappropriate conduct that was worthy of discipline, but that, instead of charging the appellant with inappropriate conduct, the agency elected to charge him with violating its sexual harassment and hostile work environment policies, and the agency failed to prove these charges under the Title VII standard. The administrative judge rejected as unproven the appellant’s affirmative defenses of harmful error and racial discrimination, both of which were based on a contention that the agency imposed a disparate penalty against him in comparison to another manager who he alleged committed similar offenses.

Holdings: The Board affirmed the initial decision as modified, still reversing the appellant’s demotion and suspension, and finding that the appellant failed to prove his affirmative defense of racial discrimination:

1. The administrative judge correctly applied the Title VII sexual harassment standard to both charges.

a. Contrary to the agency’s argument, the administrative judge did not sua sponte apply the Title VII sexual harassment standard without providing the agency with notice and an opportunity to respond.

b. Where an agency charges an employee with violating its hostile work environment sexual harassment policy and that policy tracks the language of Title VII’s regulations, the proper standard for judging the alleged misconduct is that of Title VII, even though the agency policy does not explicitly reference Title VII regulations.

c. The agency policy, although somewhat vague and addressing both racial and sexual harassment, still required proof that the actions created a hostile work environment, and statements in the agency policy contained language very similar to the Title VII standard of 29 C.F.R.  1604.11(a), which defines sexual harassment as unwelcome conduct when, inter alia, the conduct creates an intimidating, hostile, or offensive working environment.

2. After analyzing the evidence, the Board concluded that the administrative judge correctly found that the agency failed to prove both charges under the Title VII standard.

3. The appellant failed to show that the administrative judge committed prejudicial error in finding his affirmative defense of racial discrimination unproven.

a. The question to be resolved is whether the appellant produced sufficient evidence to show that the agency’s proffered reason was not the actual reason for the adverse action and that the agency intentionally discriminated against him because of race.

b. The appellant’s sole basis for alleging discrimination was that a comparison employee received more favorable treatment for similar misconduct. For other employees to be deemed similarly situated for purposes of an affirmative defense of discrimination based on disparate treatment, all relevant aspects of the appellant’s employment situation must be nearly identical to those of the comparison employee.

c. The administrative judge erroneously represented that the agency’s failure to charge the comparator with similar misconduct, as opposed to whether he engaged in such misconduct, was a factor showing that the appellant and comparator were not similarly situated. It is also true that the comparator and the appellant were both supervised by the same individual. Nevertheless, the appellant failed to explain how the specific charges levied against him, which involved alleged sexual misconduct against two women on several occasions, are sufficiently similar to the single incident of alleged retaliation by the comparator.

Appellant: Cyril L. Edwards

Agency: United States Postal Service

Decision Number: 2010 MSPB 176

Docket Number: NY-0752-09-0137-I-1

Issuance Date: August 25, 2010

Appeal Type: Adverse Action by Agency

Action Type: Reduction in Grade/Rank/Pay

Penalty - Mitigation

The appellant petitioned for review of an initial decision that sustained the agency’s action reducing his grade and pay. Although the agency stated that it based its adverse action on 1 charge with 3 specifications, the administrative judge determined that the action was based on 3 separate charges, and found that the agency only proved 1 charge: that the appellant used his assigned government credit card for personal reasons. She found that the reduction in grade and pay was within the bounds of reasonableness based on the single sustained charge. On petition for review, the appellant contests the judge’s finding that reduction in grade and pay is a reasonable penalty.

Holdings: The Board granted the appellant’s petition for review and affirmed the initial decision as modified, mitigating the penalty to a 60-day suspension:

1. Where the Board sustains only some of the charges brought by the agency, the Board may mitigate the agency’s penalty to the maximum reasonable penalty under certain circumstances, including when the deciding official failed to demonstrate that he considered any specific, relevant mitigating factors before deciding upon a penalty, or when the chosen penalty exceeds the bounds of reasonableness.

2. The deciding official failed to properly consider the appellant’s claim, which the Board found credible, that he was not on notice that his actions were improper. The appellant said he thought personal use of a government credit card was frowned upon, but that he was unaware that it was specifically prohibited, and that he thought it was acceptable if he paid the full balance before the due date.

3. The Board noted evidence that actual severity of the demotion was harsher than the deciding official believed it would be, and that, when asked what his decision would have been if he had only sustained the charge of misusing the credit card, the deciding official speculated that he would have considered “maybe reducing to the craft or possibly a long term suspension.”

4. Although the sustained misconduct was serious, in consideration of the deciding official’s misunderstanding regarding the extent of the demotion and weighing the other factors, the Board found that a 60-day suspension is the maximum reasonable penalty under the circumstances of this case.

Appellant: Raymond Sanchez, Jr.

Agency: Department of Homeland Security

Decision Number: 2010 MSPB 177

Docket Number: DE-0752-08-0289-A-1

Issuance Date: August 26, 2010

Appeal Type: Adverse Action by Agency

Action Type: Attorney Fee Request

Attorney Fees – Prevailing Party

The appellant petitioned for review of an addendum initial decision that denied his request for attorney fees. The appeal of the agency’s original removal action against the appellant was resolved by settlement agreement. The agency subsequently removed the appellant a second time based on a new, but related, misconduct charge. The appeal of the second removal was dismissed without prejudice pending the outcome of the appellant’s petition for enforcement, in which he contended that the second removal action constituted a breach of the settlement agreement in the first removal action. In a precedential decision, 110 M.S.P.R. 573 (2009), the Board agreed with this contention, and ordered the agency to cancel the second removal. The administrative judge then reinstated the second removal appeal, but dismissed it as moot because the appellant had received all of the relief that he could have received had he adjudicated his appeal and prevailed. The appellant’s attorney then filed the instant request for attorney fees in connection with his appeal of the second removal action. The administrative judge denied the request, finding that it was barred by a provision in the agreement settling the first removal appeal.

Holdings: The Board granted the appellant’s petition for review and affirmed the initial decision as modified, finding that the appellant was not entitled to attorney fees because he was not a prevailing party:

1. The appeal underlying the request for attorney fees was dismissed as moot, and it is well settled that the dismissal of an appeal as moot amounts to a dismissal for lack of jurisdiction. Where an appeal is dismissed for lack of jurisdiction, the Board is without authority to order any relief and no order exists for the Board to enforce. Thus, the appellant did not receive any relief in the second removal action appeal and he is not a prevailing party in that case.

2. The Board rejected the appellant’s argument that his success in his petition for enforcement renders him a prevailing party in this case because this case is inextricably intertwined with his petition for enforcement. In effect, the appellant is asserting entitlement to attorney fees under a modified catalyst theory, which was rejected by the Supreme Court in Buckhannon Board & Care Home, Inc. v. West Virginia Department of Health & Human Resources, 532 U.S. 598 (2001), and by the Board in subsequent cases.

3. Contrary to the appellant’s argument, the Board’s decision in Mynard v. Office of Personnel Management, 108 M.S.P.R. 58 (2008), does not support his position. In Mynard, the Board found that a party may establish prevailing party status in a compliance action without obtaining an enforceable order or consent decree “so long as the relief the party achieves carries with it sufficient judicial or, in this case, Board imprimatur.” However, neither the Board nor its reviewing court has held that a party may use a favorable order in a separate case to establish prevailing party status in a case that has been dismissed as moot.

COURT DECISIONS

Non-precedential Decisions

The U.S. Court of Appeals for the Federal Circuit issued non-precedential decisions in the following cases:

Remple v. Department of Health & Human Services, No. 2010-3067 (August 6, 2010) (MSPB Docket Nos. SF-1221-08-0562-W-2, SF-0752-09-0148-I-1) (affirming the Board’s decision, which dismissed the appeals as settled)

King-Ellis v. U.S. Postal Service, No. 2010-3005 (August 9, 2010) (MSPB Docket No. DA-0752-09-0005-I-1) (affirming, per Rule 36, the Board’s decision, which sustained the appellant’s reduction in grade)

Schoeman v. Merit Systems Protection Board, No. 2009-3297 (August 9, 2010) (MSPB Docket No. AT-0831-09-0378-I-1) (affirming, per Rule 36, the Board’s decision, which dismissed an appeal from an OPM reconsideration decision for lack of jurisdiction)

Lodge v. Equal Employment Opportunity Commission, No. 2010-3076 (August 10, 2010) (MSPB Docket No. AT-4324-09-0911-I-1) (affirming the Board’s decision, which denied the appellant’s request for corrective action under USERRA)

Wright v. Office of Personnel Management, No. 2010-3075 (August 13, 2010) (MSPB Docket No. AT-844E-09-0742-I-1) (affirming the Board’s decision, which affirmed OPM’s determination that the appellant failed to prove her entitlement to disability retirement benefits)