U.S. Merit Systems Protection Board 
Case Report for March 16, 2012

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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.


Appellant:  Randall  Scheffler
Agency:  Department of the Army
Decision Number:  2012 MSPB 33
Docket Number:  AT-0752-10-1075-I-2
Issuance Date:  March 8, 2012
Appeal Type:  Adverse Action by Agency
Action Type:  Removal


    The issue in this case was the propriety of the agency's action removing the appellant for falsely informing coworkers, subordinates, and civic leaders in the Atlanta metropolitan area that he was a recipient of the Silver Star medal.  

Holdings:  The Board upheld the propriety of the removal, finding that there was a nexus between the charged conduct and the efficiency of the service, and that the removal penalty was within the bounds of reasonableness.  In finding that the agency established nexus, the Board disagreed with the administrative judge's finding that the misconduct interfered with or adversely affected the agency's mission.  The Board agreed with the administrative judge's finding that the appellant's conduct adversely affected management's trust and confidence in the appellant's job performance.  


Petitioner:  Thomas O. Ward
Respondent:  U.S. Postal Service
Tribunal:  U.S. Court of Appeals for the Federal Circuit
Docket Number:  2010-3021
Issuance Date:  March 12, 2012

Attorney Fees
 - Prevailing Party

    Ward applied for an award of attorney's fees and expenses under the Equal Access to Justice Act, 28 U.S.C. 2412 in connection with the court's decision in Ward v. U.S. Postal Service, 634 F.3d 1274 (Fed. Cir. 2011).  In that decision, the court found that the Board committed two legal errors in sustaining Ward's removal:  it erred in failing to address the deciding official's ex parte communications regarding Ward's alleged prior instances of misconduct; and it erred when it attempted to cure an underlying agency procedural error by performing an independent analysis of the Douglas factors instead of conducting a "harmless error" analysis.  The court remanded the case to the Board for further adjudication.  The case was settled by the parties after remand to the Board.  

Holdings:  In a per curiam Order, the court found that Ward is a "prevailing party" entitled to an award of attorney's fees:

1.  The controlling precedent in the Federal Circuit is Former Employees of Motorola Ceramic Products v. United States, 336 F.3d 1360 (Fed. Cir. 2003) (Rader, J., dissenting), which held that, where a plaintiff secures a remand requiring further agency proceedings because of alleged error by the agency, the plaintiff qualifies as a prevailing party (1) without regard to the outcome of the agency proceedings where there has been no retention of jurisdiction by the court, or (2) when successful in the remand proceedings where there has been a retention of jurisdiction.

2.  The first prong of Former Employees applies here because the court did not retain jurisdiction over the remand of Mr. Ward's case on remand to the Board.  Because administrative error required the remand to the Board, he is a prevailing party entitled to an award of attorney's fees.  

    In a concurring opinion joined by Chief Judge Rader, Judge Prost expressed the view that the Former Employees decision is contrary to Supreme Court precedent and should be overruled.  Judge Prost stated that the Supreme Court has consistently explained that some level of success on the merits must be achieved before a plaintiff can qualify as a "prevailing party" under a fee-shifting statute.  Remands ordinarily do not result in prevailing party status because thy are not grants of "relief on the merits."  Prong one of Former Employees is flawed because it does not require an analysis of whether the plaintiff's remand constituted success on the merits.  

    In a second concurring opinion, Judge Dyk expressed the view that Former Employees was correctly decided and was consistent with Supreme Court and other relevant precedent.  

Petitioner:  Susan G. Roy
Respondent:  Merit Systems Protection Board and Department of Justice
Tribunal:  U.S. Court of Appeals for the Federal Circuit
Docket Number:  2011-3107
Issuance Date:  March 15, 2012

Jurisdiction - "Employee"

    At issue in this case was whether Roy was an "employee" within the meaning of 5 U.S.C. 7511 who was entitled to appeal her termination to the Board.  From January 2000 until March 2008, Roy worked in a permanent position as an attorney with the Department of Homeland Security.  From March 2008 until November 2008, she served in an excepted temporary appointment (not to exceed 18 months) as an Immigration Judge in the Department of Justice.  In November 2008, she started a permanent excepted appointment as an Immigration Judge.  Her employment was terminated in April 2010 based on alleged misconduct.  Whether she was entitled to appeal the termination of her employment to the Board depended on whether she was an "employee" within the meaning of 5 U.S.C. 7511(a)(1)(C)(ii), i.e., an individual in the excepted service who is not preference eligible and "who has comleted 2 years of current continuous service in the same or similar positions in an Executive agency under other than a temporary appointment limited to 2 years or less."  

Holdings:  The court found that Roy was not an "employee" within the meaning of subsection 7511(a)(1)(C)(ii) at the time of her removal:

1.  Because it was undisputed that at the time of removal, Roy served in an excepted service position and was not preference eligible, the only question is whether she can satisfy the "current continuous service" requirement.

2.  Two phrases in the text of the statute are important to the analysis:  "current continuous" and "other than a temporary appointment."  The word "current" indicates that the removal date is the key date for determining whether the continuity requirement is satisfied.  The word "continuous" indicates that there cannot be a break in service.

3.  Roy's service from 2000 to March 2008 cannot be "tacked" to her service from November 2008 to April 2010 because there was a break in service during which she served in a temporary appointment excluded from coverage.  

The Court of Appeals for the Federal Circuit issued nonprecedential decisions in the following cases:

Gregory v. Merit Systems Protection Board, No. 2011-3178 (March 12, 2012) (MSPB Docket No. DC-0731-11-0018-I-1) (affirming the Board's decision, which dismissed Gregory's appeal from a failure of the General Services Administration to hire him for a job vacancy)

Cooper v. Merit Systems Protection Board, No. 2011-3240 (March 12, 2012) (MSPB Docket No. DC-1221-11-0321-W-1) (affirming the Board's decision, which dismissed Cooper's IRA appeal for lack of jurisdiction)

Sydnor v. Merit Systems Protection Board, No. 2011-3128 (March 12, 2012) (MSPB Docket No. CB-7521-10-0003-T-1) (affirming per Rule 36 the Board's decision dismissing Sydnor's appeal)

Moore v. Department of the Navy, No. 2012-3009 (March 13, 2012) (MSPB Docket No. AT-0752-10-0504-I-1) (affirming the Board's decision, which affirmed Moore's removal for misconduct)

Wade v. Merit Systems Protection Board, No. 2012-3005 (March 13, 2012) (MSPB Docket No. DA-0353-10-0418-I-1) (affirming the Board's decision, which dismissed Wade's appeal as untimely filed)

Harden-Williams v. Agency for International Development, No. 2012-3007 (March 13, 2012) (MSPB Docket No. DC-3443-11-0006-I-1) (affirming the Board's decision, which found that the agency did not violate Harden-Williams' rights relating to veteran’s preferences when it found that she was not qualified for a GS-15 Supervisory Public Health Specialist position)

Lisagor v. Department of Veterans Affairs, No. 2011-3116 (March 13, 2012) (MSPB Docket No. SF-4324-10-0886-I-1) (affirming per Rule 36 the Board's decision, which denied Lisagor's request for relief under USERRA)

Bencomo v. Department of Homeland Security, No. 2011-3106 (March 13, 2012) (MSPB Docket No. DA-0752-09-0332-I-1) (affirming per Rule 36 the Board's decision, which affirmed Bencomo's removal)

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