Hagmeyer v. Department of Treasury

• Citation: 852 F.2d 531
• Decision Date: 30 June 1988
• Docket Number: No. 86-1136,86-1136
• Parties: John G. HAGMEYER, Petitioner, v. DEPARTMENT OF the TREASURY, Respondent. Appeal
• Court: United States Courts of Appeals. United States Court of Appeals for the Federal Circuit

Page 531

852 F.2d 531

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

Appeal No. 86-1136.

United States Court of Appeals, Federal Circuit.

June 30, 1988.

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

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

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

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

ARCHER, Circuit Judge.

This court, sitting in banc, heard arguments on the Merit Systems Protection Board's (MSPB or board) Motion to Reform the Caption in this petition for judicial review of the board's denial of attorney fees. ¹ In an Order dated January 16, 1987, we determined that the Department of the Treasury (Treasury), not the MSPB, is the proper party respondent. The Order further provided that in future appeals to this court the MSPB should not be named as respondent where its appellate jurisdiction under 5 U.S.C. Sec. 7701 (1982) was invoked, or was sought to be invoked, by a petitioner. This in banc action overrules our holdings in Hopkins v. Merit Sys. Protection Bd., 725 F.2d 1368 (Fed.Cir.1984), and Peterson v. Department of Energy, 737 F.2d 1021 (Fed.Cir.1984). These cases have been the authority for naming the MSPB as respondent in appeals of its decisions relating to timeliness and attorney fees. Similarly overruled is the extension of the Hopkins rule and rationale as the basis for naming the MSPB respondent in appeals of its decisions dismissing for lack of jurisdiction. See, e.g., McCarley v. Merit Sys. Protection Bd., 757 F.2d 278 (Fed.Cir.1985).

The MSPB's Motion to Reform the Caption was filed because, as it stated:

We believe that Peterson should not be read as broadly as it has been, but that it more correctly stands for the proposition that the Board is the proper respondent in attorney fee cases only when they involve the articulation of a new rule by the Board, such as the method of calculating fees. Under this construction of Peterson, the interests of employees and the employing agencies, as well as those of the Board will be protected.

Since this interpretation of Peterson appeared to be without precedent and contrary to footnote 3 of Hopkins (see 725 F.2d at 1372-73 n. 3), we ordered the MSPB and the Department of Justice (Justice), as counsel before this court for Treasury (and other employing agencies), to file supplemental briefs on the proposed reading of Peterson and the implications on the underlying Hopkins decision. After briefing, the case was argued before this court, in banc, and the following Order was issued on January 16, 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 the board. Thus, the MSPB should not be named as the respondent in an appeal from the denial of attorney's fees by the board or in an appeal from a dismissal by the board for lack of jurisdiction or for untimeliness.

Accordingly, IT IS ORDERED that

1. The MSPB's motion to reform the caption filed on May 28, 1986 is granted. The merits briefs filed herein by the Department of the Treasury shall be treated as the briefs of respondent and those of the MSPB shall be treated, in the absence of a motion to intervene, as briefs amicus curiae.

2. The MSPB shall continue to be the respondent in all other cases which have been docketed with that caption as of the date of this order.

3. Hereafter, the MSPB shall not be the respondent in an appeal to this court from a decision of the MSPB 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 the board.

Hagmeyer v. Department of the Treasury, 809 F.2d 1581, 1582 (Fed.Cir.1987).

Background

Under 5 U.S.C. Sec. 7703(a)(1) (1982) any employee or applicant for employment who is adversely affected or aggrieved by a final order or decision of the MSPB may obtain judicial review. Except for mixed cases, the review is in this court. See 5 U.S.C. Sec. 7703(b)(1) (1982) and 28 U.S.C. Sec. 1295 (1982).

In Hopkins, petitioner sought review of the board's decision dismissing a request for attorney fees on the grounds of untimeliness. Both the MSPB and Justice raised the matter of the proper respondent. Hopkins, 725 F.2d at 1369-70. Although two prior cases, Phillips v. United States Postal Serv., 695 F.2d 1389, 1390 n. 2 (Fed.Cir.1982), and Rosano v. Department of the Navy, 699 F.2d 1315, 1316 n. 4 (Fed.Cir.1983), had indicated by way of footnote without extended discussion that the MSPB should be the respondent in appeals from dismissals by the board for untimeliness and lack of jurisdiction, the court in Hopkins treated the issue essentially as one of first impression.

In Hopkins the applicable statute, 5 U.S.C. Sec. 7703, was set out with the emphasis as indicated below:

(a)(1) Any employee or applicant for employment adversely affected or aggrieved by a final order or decision of the Merit Systems Protection Board may obtain judicial review of the order or decision.

(2) The Board shall be the named respondent in any proceeding brought pursuant to this subsection, unless the employee or applicant for employment seeks review of a final order or decision issued by the Board under section 7701. In review of a final order or decision issued under section 7701, the agency responsible for taking the action appealed to the Board shall be the named respondent.

Hopkins, 725 F.2d at 1371. The court reasoned, with respect to the emphasized language of the statute, that the employing agency

has not been "responsible for taking the action appealed to the Board"; indeed, no such agency action regarding attorney fees has occurred. Rather, the MSPB has acted by rejecting the fee request on the basis of its own appellate procedural regulations, properly promulgated pursuant to the authority Congress provided under section 7701(a). In such a situation involving purely the MSPB's own appellate procedures, where the employing agency has had no responsibility or involvement whatsoever, logic dictates that Congress intended the MSPB to be named respondent, and that the exception for the agency, a mere bystander in this case, does not apply.

Id. at 1371-72.

The court also found in Hopkins that the legislative history was ambiguous. The court said that "one could interpret [the legislative history] as supporting our reading of the statute...." Id. at 1372. However, the court also noted that it could, as well, be inferred that even where procedural issues are involved in section 7701 cases the agency remains the respondent before the court. The touchstone enunciated by the court for determining who is to be named respondent is "the agency responsible for taking the action." Id.

Finally, in a footnote, the court opined that the MSPB should be respondent where the attorney fee issue was determined on the merits by the board, although it recognized the opposite construction was entirely possible because a request for attorney fees is filed under section 7701(g)(1). Id. at 1372-73 n. 3.

It seems clear from the opinion that the court was concerned with establishing a rule that could be utilized by litigants in captioning their filings with the court. Selection of the proper rule, however, was apparently deemed by the court to be somewhat a matter of choice.

Following the footnote in Hopkins, but expressly noting that it was dictum, another panel of this court in Peterson held that the MSPB properly should be added as a party respondent in an appeal from the method the MSPB employed in the calculation of a fee award. It found that the MSPB was "responsible for taking the action in issue according to the statute, i.e., selecting the method of calculation." Peterson, 737 F.2d at 1022.

In spite of an apparent desire by the Hopkins panel to establish a workable rule, that decision has generated some confusion and/or criticism in later cases as illustrated below.

In Howell v. Merit Sys. Protection Bd., 785 F.2d 282 (Fed.Cir.1986), after an initial decision sustaining the agency action, petitioner filed an untimely appeal to the full board. In the order dismissing the appeal, the board stated that it was the final order of the MSPB and that "the initial decision would become final" in five days from the date of the order. Howell, 785 F.2d at 283. Howell petitioned this court for review, challenging the presiding official's decision on the merits as well as the MSPB's decision denying the appeal because of the untimely filing. The MSPB asserted before this court that untimely filing was the sole issue. When queried by this court concerning the merits, MSPB contended that its instruction to Howell had been erroneous and that it was too late for petitioner to challenge the presiding official's decision on the merits. MSPB argued that an untimely appeal to the full board, which is denied, does not revive the merits, the merits having become final under 5 C.F.R. Sec. 1201.113 thirty-five days after the presiding official's initial decision was issued. The MSPB accordingly advanced no defense on the merits. This court, believing that MSPB was bound by its instruction to Howell, treated the merits as conceded, and reversed. Howell, 785 F.2d at 283-84.

The MSPB's position...