Wise v. Merit Systems Protection Bd., 85-1974
| Citation | 780 F.2d 997 |
| Decision Date | 30 December 1985 |
| Docket Number | No. 85-1974,85-1974 |
| Parties | 121 L.R.R.M. (BNA) 2977 Jerris WISE, Petitioner, v. MERIT SYSTEMS PROTECTION BOARD, Respondent. Appeal |
| Court | United States Courts of Appeals. United States Court of Appeals for the Federal Circuit |
Mary Janice Lintner, Lynch, Sherman & Cox, Louisville, Ky., argued, for petitioner. With her on brief was Donald L. Cox.
Rita S. Arendal, Merit Systems Protection Board, Washington, D.C., argued, for respondent. With her on brief were Evangeline W. Swift, Gen. Counsel, Mary L. Jennings, Associate Gen. Counsel for Litigation, and Marsha E. Mouyal, Reviewer of Litigation.
Before RICH, Circuit Judge, COWEN, Senior Circuit Judge, and DAVIS, Circuit Judge.
Petitioner Jerris Wise appeals from the decisions of the Merit Systems Protection Board (MSPB or Board), 23 M.S.P.R. 666, denying his motion for attorney fees under the Civil Service Reform Act, 5 U.S.C. Sec. 7701(g)(1) (1982), and corresponding Board regulations, 5 C.F.R. Sec. 1021.37(a) (1985). We affirm the decisions of the Board because we agree that an award of attorney fees in this case is not warranted in the interest of justice.
Petitioner was an air traffic control specialist with the Department of Transportation (DOT), Federal Aviation Administration (FAA), at Standiford Field in Louisville, Kentucky. On August 3, 1981 the Professional Air Traffic Controllers Organization (PATCO) voted to strike. Petitioner attended the strike vote and was absent without leave from work that day. On August 4, 1981 1 he contacted Congressman Gene Snyder (of petitioner's district) and informed him that, along with others, he wanted to return to work but was afraid to cross the picket line. The next day Snyder telephoned Tim Cole, a congressional aide with the DOT's Office of Congressional Relations and told him of the group's desire to return to work. Cole requested a list of names from Snyder and indicated that the group could be reinstated after a security check was performed to verify strike non-participation. Petitioner's deadline for returning to work, in accordance with the President's amnesty period, was August 6, 1981. On August 7, 1981 petitioner delivered the list of names to Snyder who subsequently relayed the information to Cole. On the same day, Snyder also informed Jim Berry, Tower Chief at Standiford Field and the agency's deciding official in this case, that the group wanted to return to work. Snyder did not, however, inform Berry of his contacts with Cole in the DOT's Washington office.
On August 10, 1981 Berry issued petitioner a proposed notice of removal because he failed to (1) meet his August 6 return-to-work deadline and (2) contact the agency to explain his absence. During his oral reply to Berry, petitioner informed him of the contacts with Snyder but did not specifically state that an agreement existed between Snyder and Cole (or the agency). 2
Petitioner's removal became final on August 30, 1981. On appeal to the MSPB, the presiding official reversed the agency's decision to remove Wise. The basis of the presiding official's determination was a letter from Congressman Snyder to the chief appeals officer of the Board's Atlanta Regional Office describing Snyder's efforts on behalf of petitioner and the other controllers. On the strength of Snyder's representations, the presiding official found that, although Wise had initially participated in the strike, he had attempted through his contacts with the DOT to meet his deadline and return to work. Petitioner's subsequent motion for attorney fees, as a prevailing party, was denied in an addendum decision. The full Board declined review although it agreed that Wise was the prevailing party. The only question before us is whether an award of attorney fees to him "is warranted in the interest of justice."
Petitioner contends that an award of attorney fees is warranted in the interest of justice because (1) the FAA "knew or should have known that it would not prevail on the merits when it brought the proceeding" and (2) he is "substantially innocent of the charges" brought by the FAA. The first argument is premised on the fact that the deciding official was aware that Snyder was working with the DOT to arrange for his return to work and should have further investigated the matter. In addition, petitioner urges that he was substantially innocent of the charges brought against him because the evidence before the Board clearly showed that he did not participate in the PATCO strike and in fact attempted to return to work prior to the strike deadline.
Respondent asserts that the agency neither knew nor should have known that it would not prevail on the merits because petitioner failed to provide the agency with sufficient information that would trigger the agency's duty to investigate further the merits of the removal action. Similarly, respondent contends that petitioner was not substantially innocent of the charges brought against him because the agency had a reasonable basis for the removal action since petitioner both participated in the strike and withheld important exculpatory evidence from the agency's deciding official.
The Civil Service Reform Act of 1978, 5 U.S.C. Sec. 7701(g)(1) (1982), states that the MSPB "may require payment by the agency involved of reasonable attorney fees incurred by any employee ... if the employee ... is the prevailing party and the Board ... determines that payment is warranted in the interest of justice." (Emphasis added.) See also 5 C.F.R. Sec. 1201.37(a) (1985). It is established that there are two prerequisites that must be fulfilled before the Board will award attorney fees. Sterner v. Department of the Army, 711 F.2d 1563, 1566 (Fed.Cir.1983). Petitioner must show that he was the prevailing party and that an award of attorney fees is warranted in the interest of justice. Id.
The MSPB has set forth the following guidelines to aid in determining whether attorney fees are warranted in the interest of justice.
1. Where the agency engaged in a "prohibited personnel practice" (Sec. 7701(g)(1));
2. Where the agency's action was "clearly without merit" (Sec. 7701(g)(1)), or was "wholly unfounded," or the employee is "substantially innocent" of the charges brought by the agency;
3. Where the agency initiated the action against the employee in "bad faith," including:
a. Where the agency's action was brought to "harass" the employee;
b. Where the agency's action was brought to "exert improper pressure on the employee to act in certain ways";
4. Where the agency committed a "gross procedural error" which "prolonged the proceeding" or "severely prejudiced" the employee;
5. Where the agency "knew or should have known that it would not prevail on the merits" when it brought the proceeding.
Allen v. United States Postal Service, 2 MSPB 582, 593, 2 M.S.P.R. 420, 434 (1980) (citations omitted).
The MSPB, in Allen, emphasized that the list was not exhaustive, but illustrative and "should serve primarily as directional markers toward 'the interest of justice'--a determination which, at best, can only be approximate." Id. Petitioner backs up his request for attorney fees by focusing on category 2 and category 5.
The whole theory behind category 2's "substantially innocent" concept is that an individual who is substantially innocent of the charges brought against him, and nevertheless has a case brought against him, but is ultimately vindicated by the Board, is entitled to attorney fees in the interest of justice. In Allen, the MSPB conducted a thorough review of the legislative history of the "in the interest of justice" concept as embodied in the Civil Service Reform Act and discerned that the Congress was troubled with the inherent injustice of dragging an innocent individual through expensive and time-consuming legal proceedings. Allen, 2 MSPB at 598, 2 M.S.P.R. at 430. 3
Category 5 suggests that attorney fees are warranted in the interest of justice if the agency "knew or should have known" that it would not prevail on the merits. Under this category, the Board must Yorkshire v. Merit Systems Protection Board, 746 F.2d 1454, 1457 (Fed.Cir.1984) (emphasis added). However, "[t]he fact that the presiding official [of the MSPB] later found that...
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