United States Merit Systems Protection Board

Case Report for December 17, 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: Marvin D. Thompson, Jr.

Agency: Department of Justice

Decision Number: 2010 MSPB 244

Docket Number: CH-0752-08-0632-A-1

Issuance Date: December 16, 2010

Appeal Type: Adverse Action by Agency

Action Type: Attorney Fee Request

Attorney Fees

The agency petitioned for review of an addendum initial decision that awarded the appellant $43,753.06 in attorney fees and costs. In the appeal on the merits, the administrative judge reversed the removal action, finding that the agency failed to prove its charge of unnecessary use of force. The appellant then filed a motion for attorney fees. The administrative judge found that an award of attorney fees was warranted in the interest of justice on the basis that the appellant was substantially innocent of the agency’s charge and that the agency knew or should have known it would not prevail, and that the appellant’s request for attorney fees and costs was reasonable. On review, the agency did not challenge the administrative judge’s conclusions that the appellant was a prevailing party and that an award of attorney fees was warranted in the interest of justice. Instead, the agency’s objections focused on the memorandum of understanding (MOU) between the appellant’s attorney and the American Federation of Government Employees (AFGE), which retained the attorney. The MOU provided that 50% to 60% of any awarded attorney fees “shall be turned over to the Union’s Litigation Representation Fund (LRF).” The agency argued that the MOU was improper in that it gave a third party (the Union) a windfall.

Holdings: The Board granted the agency’s petition for review, vacated the addendum initial decision in part, and remanded the case to the regional office for further adjudication:

1. The administrative judge erred by not addressing the agency’s argument as to the effect of the MOU on an award of attorney fees, as this argument was made during the proceeding below.

2. The MOU between the appellant’s attorney and the Union does not make it inappropriate to award attorney fees based on the attorney’s market-rate fee, so long as any fees owing to the Union under the MOU are paid into a legal representation fund meeting the criteria of Raney v. Federal Bureau of Prisons, 222 F.3d 927 (Fed. Cir. 2000) (en banc).

a. In Raney, where the employee was represented by AFGE staff attorneys, our reviewing court held that “when a legal fund is separated from other union funds and is controlled exclusively by attorneys for the sole benefit of employee litigation, such segregation eliminates ethical barriers to market rate calculation for attorney fee awards.”

b. This case is factually distinguishable from Raney in that the appellant was not represented by Union staff attorneys, but by a private attorney retained by the Union. In Raney, however, the court observed that the text of the Back Pay Act did not “differentiate between an attorney in private practice and an attorney who is employed by a non-profit legal organization, including one established by a labor union.”

c. The Board found unpersuasive the agency’s contention that a contractual arrangement like the one in this case is more ethically problematic than the arrangement approved by the court in Raney.

3. The Board determined that a remand was necessary because the record was insufficient to determine whether the Legal Representation Fund involved in this case meets the Raney criteria.

Appellant: Thomas Tubesing

Agency: Department of Health and Human Services

Decision Number: 2010 MSPB 242

Docket Number: DA-315H-08-0168-X-1

Issuance Date: December 10, 2010

Case Type: Compliance Referral


In a decision issued more than a year ago, 112 M.S.P.R. 393 (2009), the Board found that the agency had not fully complied with a final Board order that reversed the agency’s termination action and required the agency to restore the appellant to employment with back pay, interest on back pay, and other benefits. Specifically, the Board found that the agency had failed to show: that the appellant had been restored to a position substantially equivalent to the position from which he was separated; that it had made full payment of back pay and interest on back pay; that it had fully restored sick and annual leave; that it had restored the appellant’s Thrift Saving Plan (TSP) account; and that it had reinstated the his health insurance benefits.

Holdings: Based on the parties’ submission of further evidence following the previous Opinion and Order, the Board found that the agency remains in noncompliance regarding: the restoration of the appellant to a position substantially equivalent to the position from which he was separated; the restoration of the appellant’s health insurance benefits; and the restoration the appellant’s TSP account. The Board denied the appellant’s request for the imposition of sanctions, identified the agency official responsible for compliance, and stated that if the agency fails to demonstrate compliance, the Board may seek to withhold this official’s pay until the agency demonstrates compliance.

Appellant: Tanneika Berryman

Agency: Department of Veterans Affairs

Decision Number: 2010 MSPB 243

Docket Number: DC-0752-10-0329-I-1

Issuance Date: December 15, 2010

Appeal Type: Adverse Action by Agency

Jurisdiction – “Employee”

The appellant petitioned for review of an initial decision that dismissed her appeal of her termination for lack of jurisdiction on the ground that she was not an “employee” with adverse action appeal rights. The agency hired the appellant in June 2006 as a GS‑03 Nursing Assistant under 38 U.S.C.  7405(a)(1)(D) on a temporary excepted appointment not to exceed June 2008. In April 2007, the agency detailed the appellant to a Timekeeper position not to exceed July 2007 due to an on-the-job injury. In December 2009, the agency informed her that she was serving an “illegal appointment,” and converted her to a “special needs” temporary, excepted service appointment as a GS‑05 Time and Leave Clerk not to exceed January 2010, which was extended until her February 2010 termination. The administrative judge first found that the appellant could not challenge the termination of her appointment to the Nursing Assistant position, as those holding appointments under 38 U.S.C.  7405(a)(1)(D) are not “employees” entitled to appeal an adverse action. With regard to the appellant’s termination from the Time and Leave Clerk position, the judge found that the record showed that the appellant was not appointed to that position until December 2009 and terminated only 2 months later, at the end of her appointment. The judge acknowledged the appellant’s argument that she was a permanent employee as a Time and Leave Clerk, but found that the documents did not indicate “that her appointment to the time and Leave Clerk position was anything other than temporary.”

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

1. Although the administrative judge summarized the agency’s argument that the appellant’s appointment to the temporary student Nursing Assistant position was illegal, the initial decision does not show that the judge accepted the argument. An appointment is illegal only if it is made in violation of an absolute statutory prohibition and the appointee is not qualified for appointment in the civil service. The agency failed to made such a showing as it referenced only an agency handbook to support its argument.

2. The administrative judge correctly ruled that the Board lacks jurisdiction over an appeal from the termination of a temporary excepted appointment as a student Nursing Assistant under 38 U.S.C.  7405(a)(1)(D).

3. The appellant made a nonfrivolous allegation that she was an employee within the meaning of 5 U.S.C.  7511(a)(1)(C)(ii), i.e., that she had served over 2 years in the excepted service position of Time and Leave Clerk.

a. The undisputed evidence indicates that the appellant was serving in an excepted service position as a Time and Leave Clerk from the beginning of her April 2007 detail until her February 2010 termination.

b. The administrative judge appears to have implicitly found that all of the appellant’s service as a Time and Leave Clerk was a detail until December 2009. The judge should not have made such a finding without addressing the appellant’s argument that she was not on detail, but had received a permanent appointment as a Time and Leave Clerk. The appellant submitted evidence that agency officials intended to permanently appoint her to this position after her April 2007 detail ended in July 2007, and in fact believed that she had been appointed or should have been appointed to that position.


Petitioner: Kurt Chadwell

Respondent: Merit Systems Protection Board

Intervenor: Office of Personnel Management

Tribunal: U.S. Court of Appeals for the Federal Circuit

Docket Number: 2009-3302 (MSPB Docket No. DA-300A-08-0567-I-1)

Issuance Date: December 16, 2010

Employment Practices

At issue was whether OPM’s rule that an applicant may only retake the administrative law judge (ALJ) examination after one year has passed from the date that the applicant has received a final Notification of Results (NOR) was an employment practice within the meaning of 5 C.F.R.  300.101. In October 2007, Chadwell received a NOR notifying him of his successful completion of all parts of the ALJ examination, and that his name was added to the list of eligible ALJ candidates. Nine months later, OPM issued the 2008 ALJ vacancy notice. Chadwell responded to the notice, seeking to retake the ALJ test and have his rating on the register of eligibles updated based on additional experience earned since his 2007 application. OPM notified Chadwell that it would not review or process his 2008 ALJ application because one year had not passed since OPM had issued its final NOR from Chadwell’s 2007 ALJ application.

Holding: OPM’s one-year rule is not an employment practice within the meaning of 5 C.F.R.  300.101:

1. Whether the Board has jurisdiction over this case rests on whether Chadwell can demonstrate that the agency’s rule constitutes an “employment practice” under 5 C.F.R.  300.101, and that the employment practice was applied to him in violation of a basic requirement of 5 C.F.R.  300.103.

2. An employment practice is defined as any practice that affects “the recruitment, measurement, ranking, and selection of individuals for initial appointment and competitive promotion in the competitive service.” The court has held that the term has a “naturally broad and inclusive meaning” and applies to rules having a substantive or merits-based effect on a candidate’s eligibility for initial employment.

3. OPM’s one-year rule has no effect on Chadwell’s eligibility for initial appointment. Despite being ineligible to retake the ALJ examination in 2008, he remained on the list of eligibles for appointment to vacant ALJ positions based on his 2007 examination rating.

4. Chadwell’s eligibility to retake the examination in 2009 is further evidence that OPM’s rule is procedural, having no substantive or merits-based effect on consideration of his application for initial appointment.


Non-precedential Decisions

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

Murry v. Department of Justice, No. 2010-3117 (Dec. 13, 2010) (MSPB Docket No. AT-1221-10-0381-W-1) (affirming the Board’s decision, which dismissed this IRA appeal for lack of jurisdiction and because it was barred by the doctrine of res judicata)

Williams v. Department of the Air Force, No. 2010-3153 (Dec. 14, 2010) (MSPB Docket No. AT-3443-07-0858-B-3) (affirming the Board’s decision, which found that the agency did not violate the appellant’s USERRA rights)

Johnson v. Merit Systems Protection Board, No. 2010-3155 (Dec. 14, 2010) (MSPB Docket No. NY-4324-10-0135-I-1) (affirming the Board’s decision, which dismissed this USERRA claim for lack of jurisdiction)

Swineford v. Department of Transportation, No. 2010-3025 (Dec. 14, 2010) (MSPB Docket No. DC-1221-07-0032-B-2) (affirming per Rule 36 the Board’s decision, which dismissed for lack of jurisdiction an appeal alleging an involuntary retirement)

Harrison v. Department of Agriculture, No. 2010-3150 (Dec. 15, 2010) (MSPB Docket No. DC-0752-10-0191-I-1) (affirming the Board’s decision, which sustained the appellant’s removal for misconduct)

McMorrow v. Office of Personnel Management, No. 2010-3169 (Dec. 15, 2010) (MSPB Docket No. PH-844E-10-0069-I-1) (affirming the Board’s decision, which affirmed OPM’s denial of an application for disability retirement)