Thomson v. Merit Systems Protection Bd.

• Decision Date: 11 September 1985
• Docket Number: No. 84-1410,84-1410
• Citation: 772 F.2d 879
• Parties: Martin A. THOMSON, Petitioner, v. MERIT SYSTEMS PROTECTION BOARD, Respondent, and Department of the Navy, Intervenor. Appeal
• Court: U.S. Court of Appeals — Federal Circuit

Page 879

772 F.2d 879

Martin A. THOMSON, Petitioner, v. MERIT SYSTEMS PROTECTION BOARD, Respondent, and Department of the Navy, Intervenor.

Appeal No. 84-1410.

United States Court of Appeals, Federal Circuit.

Sept. 11, 1985.

Theodore M. Lieverman, Philadelphia, Pa., argued for petitioner.

Calvin Morrow, Merit Systems Protection Bd., Washington, D.C., argued for respondent Merit Systems Protection Bd. With him on the brief were Evangeline W. Swift, Gen. Counsel and Mary L. Jennings, Gen. Counsel for Litigation.

John S. Groat, Commercial Litigation Branch, Dept. of Justice, Washington, D.C., argued for intervenor Dept. of the Navy. With him on the brief were Richard K. Willard, Acting Asst. Atty. Gen., David M. Cohen, Director and Thomas W. Petersen.

Before DAVIS, BENNETT and BISSELL, Circuit Judges.

DAVIS, Circuit Judge.

This is another case testing the refusal by the Merit Systems Protection Board (Board or MSPB) to award attorney fees to a federal employee who has prevailed before the Board on the adverse action charge against him. ¹ Before us, the Board asks that we remand the fee matter for reconsideration, while the Navy (the employing agency) seeks affirmance of the denial of fees. The employee asks outright reversal and award of fees. We agree with the Board, vacate its fee decision and remand to the Board.

I.

Petitioner Thomson, a ship's tank tester in the Philadelphia Navy Yard, was removed from his position for three times threatening his supervisors and for sleeping on duty. On his appeal to the MSPB, the presiding official determined, on conflicting evidence, that the Navy did not prove that Thomson had threatened the supervisors but found that he had slept on his job. That official therefore reversed the removal and imposed a penalty of five days' suspension (the maximum sanction for a first offense of sleeping on duty). The petitioner and the agency both sought review by the full Board. In an opinion and order, the MSPB declined any review. Review of the agency's petition was denied because Navy materials said to show petitioner had lied at the hearing (as to sleeping) were presented much too late and the presiding official's determinations of credibility (as to the alleged threats against the supervisors) should not be disturbed. Neither party sought review in this court of the Board's decision on the merits.

Thomson then applied to the Board for attorney fees under 5 U.S.C. Sec. 7701(g)(1). The same presiding official held that petitioner was the prevailing party and that the requested attorney fees had been incurred, but denied those fees as not warranted in the interest of justice. The full MSPB declined review in a form order. After Thomson appealed the fee denial to this court, the MSPB moved to have the fee case remanded to it for further consideration. ² 2] The Navy intervened and opposed remand; petitioner also opposed. This court's motions panel summarily denied remand. On the arguments before this merits panel the MSPB, both in brief and oral argument, has again asked for remand and the Navy has opposed (requesting affirmance). Petitioner continues to seek outright reversal and allowance of fees.

II.

In her fee decision, the presiding official committed two cardinal legal errors in deciding that the interest-of-justice element of Sec. 7701(g)(1) did not warrant award of any fees. First, she contented herself with determining, on the basis solely of the evidence before the Navy, that the Navy's initial action was not clearly without merit or wholly unfounded and that Thomson was not substantially innocent--even though petitioner also definitely placed his fee request on the assertion that he was substantially innocent of the threatening charges on the basis of the evidence adduced at the MSPB hearing and reflected in that decision. Our subsequent Yorkshire decision (not yet issued at the time of the presiding official's fee decision) has made it clear that category 2 of the MSPB fee scheme (announced in Allen v. U.S. Postal Service, 2 MSPB 582, 2 M.S.P.R. 420 (1980))--as distinguished from category 5--"refers to the result of the case in the Board, not to the evidence and information available prior to the hearing." 746 F.2d at 1457. The factors bearing on the reasonableness of the agency's action at the agency stage are "irrelevant under the category 2 standard of substantial innocence." Id. "When dealing with the 'substantially innocent' standard for award of attorney's fees, the question of the agency's original fault [or lack of fault] need never arise." Id. ³ For that reason, the presiding official in the current case erred in resting her determination of substantial innocence (of the charge of threatening supervisors) wholly on the evidence before the agency and its action in considering removal. ⁴

Second, the presiding official was wrong in laying down the per se rules "that cases decided primarily on the basis of credibility do not warrant fee awards," "and that the interests of justice are not served by a fee award in factually close cases." There is no warrant in the Civil Service Reform Act or its legislative history or this court's decisions for such dogmatic per se pronouncements. Yorkshire itself concerned judgments of credibility made by the presiding official who had heard the testimony. 746 F.2d 1459. There is simply no general rule against fee awards where the case turns on credibility. As for "factually close" cases, we do not say that the closeness of the evidence cannot ever be considered, as one factor, in determining whether the employee was substantially innocent of the charges. We hold, however, that all "factually close" cases do not automatically fall into the class in which fees are not available in the interest of justice.

III.

Because of the presiding official's legal errors--each of which was significant in the determination of substantial innocence--we cannot merely...