Hagmeyer v. Department of Treasury, 86-1136

• Decision Date: 16 January 1987
• Docket Number: No. 86-1136,86-1136
• Citation: 809 F.2d 1581
• Parties: John G. HAGMEYER, Petitioner, v. DEPARTMENT OF the TREASURY, Respondent. Appeal
• Court: U.S. Court of Appeals — Federal Circuit

Page 1581

809 F.2d 1581

John G. HAGMEYER, Petitioner, v. DEPARTMENT OF the TREASURY, Respondent.

Appeal No. 86-1136.

United States Court of Appeals Federal Circuit.

Jan. 16, 1987.

Peter J. Carre, Washington, D.C., submitted for petitioner.

Mary L. Jennings, Associate Gen. Counsel for Litigation, Merit Systems Protection Bd., Washington, D.C., argued for the Merit Systems Protection Bd. With her on brief were Llewellyn M. Fischer, Acting Gen. Counsel, Marsha E. Mouyal, Reviewer for Litigation and Stephanie M. Conley.

David M. Cohen, Director, Commercial Litigation Branch, Dept. of Justice, Washington, D.C., argued for Dept. of The Treasury. With him on brief were Richard K. Willard, Acting Asst. Atty. Gen., Robert A. Reutershan and Stephen J. McHale.

Before MARKEY, Chief Judge, FRIEDMAN, RICH, DAVIS, SMITH, NIES, NEWMAN, BISSELL and ARCHER, Circuit Judges.

ORDER

ARCHER, Circuit Judge.

In this appeal of the denial by the Merit Systems Protection Board (MSPB or board) of attorney's fees, the board was initially designated as respondent, consistent with the decisions of this court in Hopkins v. Merit Systems Protection Board, 725 F.2d 1368 (Fed.Cir.1984), and Peterson v. Department of Energy, 737 F.2d 1021 (Fed.Cir.1984). On May 28, 1986, the board filed a motion to reform the caption by substituting the Department of the Treasury as respondent. In doing so, it advanced an interpretation of Peterson that would call for the board to be the respondent "in attorney fee cases only when they involve the articulation of a new rule of law by the Board...." Otherwise, the board proposed that the employing agency would be named respondent.

The board's motion, while seeking to reconcile Peterson with its approach for determining the proper respondent, inherently raised the question of whether or not Peterson and, in turn, Hopkins, on which Peterson relied, had been properly decided. The correctness of those decisions had also been questioned in recent decisions of this court in Van Fossen v. Merit Systems Protection Board, 788 F.2d 748, 751 n. 8 (Fed.Cir.1986), and Keely v. Merit Systems Protection Board, 793 F.2d 1273, n. * (Fed.Cir.1986). See also Howell v. Merit Systems Protection Board, 785 F.2d 282 (Fed.Cir.1986); Tiffany v. Department of the Navy, 795 F.2d 67 (Fed.Cir.1986).

On August 21, 1986, this court issued an order requesting further briefing by the board and from the Department of Justice, as representative of the Treasury Department and other employing agencies, on the question of proper respondent. Pursuant to order, this issue was heard by the court, in banc, on January 5, 1987.

The court has concluded, in banc, that MSPB is not the proper party respondent in appeals to this court in cases in which the appellate jurisdiction of the board under 5 U.S.C. Sec. 7701 (1982) was invoked, or was sought to be invoked, by a petitioner to...