                         UNITED STATES OF AMERICA
                      MERIT SYSTEMS PROTECTION BOARD
                                      2014 MSPB 88

                            Docket No. SF-0752-09-0864-A-1

                                  Robert Southerland,
                                        Appellant,
                                             v.
                                Department of Defense,
                                         Agency.
                                    December 18, 2014

           Cindy Fox, Esquire, San Francisco, California, for the appellant.

           Christine J. Kim, Esquire, Stockton, California, for the agency.



                                         BEFORE

                            Susan Tsui Grundmann, Chairman
                            Anne M. Wagner, Vice Chairman
                               Mark A. Robbins, Member



                                 OPINION AND ORDER

¶1         The appellant has filed a petition for review of an addendum initial
     decision that denied his motion for attorney fees. For the following reasons, we
     DENY the petition for review, AFFIRM the addendum initial decision as
     modified to further discuss the Equal Employment Opportunity Commission
     (EEOC) cases cited by the appellant, and DENY the fee petition.
                                                                                               2

                                        BACKGROUND
¶2           The procedural history of this matter is somewhat complicated and we
     recite the pertinent facts from our decision in Southerland v. Department of
     Defense, 119 M.S.P.R. 566 (2013).            The agency suspended the appellant for
     30 days based on a charge of insubordination due to his failure to provide
     requested medical documentation, and he filed a Board appeal. Id., ¶¶ 2-5; see
     Southerland v. Department of Defense, MSPB Docket Nos. SF-0752-09-0864-I-1,
     SF-0752-09-0864-I-2. Subsequently, the agency removed the appellant based on
     the following charges: (1) insubordination for not providing requested medical
     documentation; (2) 1 hour of absence without leave (AWOL) on August 25, 2009;
     and (3) failure to request leave in accordance with established procedures.
     Southerland, 119 M.S.P.R. 566, ¶ 7.            The appellant filed a Board appeal
     challenging the removal action. Id.; see Southerland v. Department of Defense,
     MSPB Docket No. SF-0752-10-0111-I-1.             The administrative judge joined the
     suspension and removal appeals for hearing purposes. Southerland, 119 M.S.P.R.
     566, ¶ 8 n.2. The administrative judge, among other things, sustained the AWOL
     and failure to request leave charges, did not sustain either of the insubordination
     charges, found that the appellant proved his affirmative defense of disability
     discrimination in the removal action, and reversed the agency’s actions. Id., ¶ 8.
     The Board affirmed the administrative judge’s findings regarding the AWOL and
     failure to request leave charges, but vacated the administrative judge’s findings
     regarding the insubordination charges because he failed to make necessary
     credibility determinations. Id., ¶ 9. The Board also remanded the appellant’s
     claim    of   disability   discrimination,    finding,   in   pertinent   part,   that   the
     administrative judge’s consideration of the appellant’s disability discrimination
     claim under the Americans with Disabilities Act Amendments Act of 2008
     (ADAAA) should not employ a mixed-motive analysis, but instead, should apply
     a “but for” analysis. Id.
                                                                                          3

¶3         On remand, the administrative judge sustained both insubordination
     charges, found that the appellant did not prove his disability discrimination claim
     in the removal action, and affirmed the 30-day suspension and removal.             Id.,
     ¶¶ 10-11; see Southerland v. Department of Defense, MSPB Docket Nos.
     SF-0752-09-0864-B-1, SF-0752-10-0111-B-1, Remand File, Remand Initial
     Decision (Jan. 20, 2012). The Board, with Member Robbins concurring, affirmed
     the administrative judge’s decision to sustain both insubordination charges, and it
     upheld the suspension and removal actions.          Southerland, 119 M.S.P.R. 566,
     ¶¶ 12-15, 32. The Board also affirmed the administrative judge’s finding in the
     removal action that the appellant was “regarded as” disabled. Id., ¶¶ 16-17. 1 The
     Board, relying on an EEOC decision, found that a mixed-motive analysis does
     apply to disability discrimination claims arising under the ADAAA, and it
     overruled its prior decision in this regard. Id., ¶¶ 18-21. The Board further found
     that the deciding official’s statement in the decision letter in the removal action
     constituted direct evidence of a discriminatory motive, but the agency
     demonstrated by clear and convincing evidence that it would have taken the same
     action against him absent the discriminatory motive. Id., ¶¶ 22, 26-32. 2 Neither
     party filed an appeal of the Board’s decision, and it became the final decision of
     the Board.
¶4         The appellant filed a petition for attorney fees, arguing that, pursuant
     to 5 U.S.C. § 7701(g)(2), the appellant was the prevailing party, there was a
     finding of discrimination, and fees in the amount of $57,818.00 were reasonable.


     1
       The Board stated that it did not need to consider whether the agency’s decision to
     suspend the appellant for 30 days was motivated by disability discrimination because
     the appellant did not challenge on review the administrative judge’s statement in the
     remand initial decision that he was alleging only that the removal action was motivated
     by disability discrimination. Id., ¶ 26 n.7.
     2
       The Board noted that, under such circumstances, an appellant “may” be entitled to
     attorney fees and costs. Id., ¶ 23 (citing 42 U.S.C. § 2000e-5(g)(2)(B)).
                                                                                      4

     See Southerland v. Department of Defense, MSPB Docket No. SF-0752-09-0864-
     A-1, Attorney Fee File (AFF), Tab 1.       The agency opposed the fee petition,
     arguing instead that the appellant was not a prevailing party and, pursuant
     to 5 U.S.C. § 7701(g)(1), the interests of justice do not warrant payment of such
     fees. AFF, Tab 3.
¶5         The administrative judge issued an addendum initial decision, which denied
     the fee petition.   AFF, Tab 6, Initial Decision (ID).      In pertinent part, the
     administrative judge noted that, although the Board found evidence of a
     discriminatory motive, it ultimately concluded that the appellant did not prove his
     affirmative defense of disability discrimination.   ID at 4.   The administrative
     judge considered the appellant’s citation to EEOC cases that found that an
     appellant is a prevailing party for fee purposes when there is a finding of
     discrimination in a mixed-motive case, even though the appellant did not receive
     any personal relief because there was clear and convincing evidence that the
     agency would have taken the same action regardless of the discriminatory motive.
     The administrative judge did not find these cases persuasive, however, stating
     that the Board “has not yet done so.” ID at 4-6. Moreover, the administrative
     judge determined that the agency was “clearly” the prevailing party and the
     appellant “obtained no relief whatsoever altering the parties’ legal relationship.”
     ID at 6.    Therefore, he found that the appellant cannot be considered the
     prevailing party for purposes of an award of attorney fees pursuant to 5 U.S.C.
     § 7701(g)(2). ID at 6. Alternatively, the administrative judge determined that,
     even if the appellant could be considered a prevailing party, he would still deny
     the petition for fees because the appellant achieved minimal success.      See ID
     at 6-7.
¶6         The appellant has filed a petition for review, and the agency has filed a
     response.    Southerland v. Department of Defense, MSPB Docket No.
     SF-0752-09-0864-A-1, Petition for Review (PFR) File, Tabs 1, 3. The appellant
     reiterates that the EEOC has found that an appellant could be considered a
                                                                                             5

     prevailing party for fee purposes when there is a finding of discrimination in a
     mixed-motive case, and he asserts that the Board must defer to the EEOC on this
     issue, which he claims is a matter of discrimination, not civil service, law. PFR
     File, Tab 1 at 2-3.

                                           ANALYSIS
¶7         The appellant bears the burden of establishing his entitlement to an award
     of attorney fees. Brenner v. Department of the Interior, 119 M.S.P.R. 399, ¶ 6
     (2013) (citing Parker v. Office of Personnel Management, 75 M.S.P.R. 688, 691
     (1997)). The appellant relies on 5 U.S.C. § 7701(g)(2) as the statutory authority
     for the Board to award attorney fees in this matter.                 See AFF, Tab 1.
     Section 7701(g)(2) states that, if an employee “is the prevailing party and the
     decision   is   based    on    a   finding    of   discrimination    prohibited    under
     section 2301(b)(1) of this title, the payment of attorney fees shall be in
     accordance with the standards prescribed under section 706(k) of the Civil Rights
     Act of 1964 (42 U.S.C. § 2000e-5(k)).” The provision at 42 U.S.C. § 2000e-5(k)
     states that the court, “in its discretion, may allow the prevailing party . . . a
     reasonable attorney’s fee . . . as part of the costs.”
¶8         In his motion for attorney fees, the appellant asserted that the Board made a
     finding of disability discrimination, which was prohibited under 5 U.S.C.
     § 2302(b)(1)(D). See AFF, Tab 1 at 4-5. 3 For the purposes of our analysis, we
     assume without deciding that the Board’s finding that the deciding official’s


     3
       The appellant’s motion for attorney fees bears the docket numbers of the remanded
     suspension and removal appeals. See AFF, Tab 1. Although he acknowledged that the
     Board made findings on the discrimination issue in the removal action, see id. at 1, it is
     unclear from the attorney’s Summary of Time submission whether he is seeking fees for
     work performed in the suspension matter, see AFF, Tab 1, Exhibit 3. To the extent that
     the appellant may be seeking fees for his attorney’s work in the suspension matter under
     5 U.S.C. § 7701(g)(2), he is not entitled to or eligible for such an award in the absence
     of a finding of discrimination.
                                                                                            6

     statements in the decision letter regarding the removal were “direct evidence of a
     discriminatory motive,” Southerland, 119 M.S.P.R. 566, ¶ 22, constitutes a
     “finding of discrimination” under 5 U.S.C. § 7701(g)(2).                The following
     questions remain: (1) Is the appellant a “prevailing party”? and (2) If so, is the
     appellant entitled to fees?

     The appellant is not a prevailing party and, thus, he is not entitled to an award of
     attorney fees as a matter of civil service law.
¶9         Civil service case law is clear: an appellant is, or is not, a prevailing party
     for purposes of 5 U.S.C. § 7701(g) in the case as a whole, and whether he may be
     deemed a prevailing party depends on the relief ordered in the Board’s final
     decision.   Driscoll v. U.S. Postal Service, 116 M.S.P.R. 662, ¶ 9 (2011); see
     Baldwin v. Department of Veterans Affairs, 115 M.S.P.R. 413, ¶ 11 (2010)
     (finding that the determination of an award of attorney fees is based upon the
     Board’s final decision and whether, by the final decision, the appellant is a
     prevailing party). 4 Indeed, the U.S. Court of Appeals for the Federal Circuit and
     the Board have expressly adopted the standard set forth by the U.S. Supreme
     Court that an appellant is considered to have prevailed in a case and to be entitled
     to attorney fees only if he obtains an “enforceable order” resulting in a “material
     alteration of the legal relationship of the parties.” Baldwin, 115 M.S.P.R. 413,
     ¶ 11 (citing Buckhannon Board & Care Home, Inc. v. West Virginia Department


     4
       In Baldwin and Driscoll, the Board considered fee petitions made pursuant to 5 U.S.C.
     § 7701(g)(1), which states, in relevant part, that the Board “may require payment by the
     agency involved of reasonable attorney fees incurred by an employee . . . if the
     employee . . . is the prevailing party and the Board . . . determines that payment by the
     agency is warranted in the interest of justice.” Because the Board has held that
     section 7701(g)(2) is not a separate basis upon which an appellant may be entitled to a
     fee award, but rather only provides how the amount of a fee award authorized under
     subsection (g)(1) can be calculated, Burch v. Department of Homeland Security,
     109 M.S.P.R. 426, ¶ 15 (2008), we find that the Board’s definition of “prevailing party”
     in Baldwin and Driscoll is equally applicable to fee petitions made pursuant to 5 U.S.C.
     § 7701(g)(2).
                                                                                             7

      of Health & Human Resources, 532 U.S. 598, 604 (2001)); see Sacco v.
      Department of Justice, 317 F.3d 1384, 1387 (Fed. Cir. 2003) (acknowledging the
      U.S. Supreme Court’s standard in Buckhannon for determining prevailing party
      status under 5 U.S.C. § 7701(g)(1)). 5 Thus, an appellant “prevails” when actual
      relief on the merits of his claim materially alters the legal relationship between
      the parties by modifying the agency’s behavior in a way that directly benefits the
      appellant. See Baldwin, 115 M.S.P.R. 413, ¶ 11. Moreover, the extent of relief
      that an appellant receives on his claim does not affect whether the appellant is a
      prevailing party. Id.; see Farrar v. Hobby, 506 U.S. 103, 112-15 (1992) (finding
      that a plaintiff who wins nominal damages is a prevailing party under 42 U.S.C.
      § 1988, but awarding no fees because of the minimal success that was achieved). 6
¶10         As discussed above, the appellant, in the removal appeal, obtained only a
      finding that the deciding official’s statements in the decision letter constituted
      direct evidence of disability discrimination, but the Board ultimately determined
      that the agency proved by clear and convincing evidence that it still would have
      removed him absent its improper consideration of his medical condition, and it
      concluded that the appellant did not prove his affirmative defense of disability
      discrimination. See Southerland, 119 M.S.P.R. 566, ¶¶ 22, 26-32. Moreover, the
      Board sustained all charges against the appellant in the removal appeal, and it
      upheld the removal action. See id., ¶¶ 9, 12-15, 32. Thus, the appellant achieved


      5
        In fact, even beyond civil service law, the Federal Circuit has consistently recognized
      the Buckhannon rule that prevailing party status is obtained only if there is “an actual,
      court-ordered alteration in the legal relationship [between] the parties.” Chapman Law
      Firm Co. v. Greenleaf Construction Co., 490 F.3d 934, 939 (Fed. Cir. 2007); see Rice
      Services, Ltd. v. United States, 405 F.3d 1017, 1025 (Fed. Cir. 2005).
      6
        In Farrar, 506 U.S. at 109-12, the U.S. Supreme Court evaluated the civil rights
      attorney fees provision at 42 U.S.C. § 1988, which, like 42 U.S.C. § 2000e-5(k), states
      that the court “in its discretion, may allow the prevailing party . . . a reasonable
      attorney’s fee as part of the costs.”
                                                                                      8

      no actual relief and there was no material alteration of the legal relationship
      between the parties. For these reasons, we conclude that he was not a prevailing
      party under 5 U.S.C. § 7701(g). Cf. Driscoll, 116 M.S.P.R. 662, ¶ 9 (finding that
      the appellant was a prevailing party because his cross petition for review, though
      unsuccessful, was filed in support of a single litigation that culminated in an
      enforceable final decision against the agency that changed the legal relationship
      between the parties).
¶11         The appellant asks the Board to defer to the EEOC’s apparent
      determination that, in a mixed-motive case, an appellant is considered a
      prevailing party even if the agency proved by clear and convincing evidence that
      it would have taken the action against him regardless of the discriminatory
      motive, and even in the absence of any award of personal relief. See PFR File,
      Tab 1 at 2-3 (citing Bell v. Department of the Navy, EEOC Appeal No.
      0720080024, 2008 WL 2662585 (June 25, 2008); Call v. Department of
      Transportation, EEOC Appeal No. 0720070017, 2007 WL 3244166 (Oct. 25,
      2007); Volz v. Department of Justice, EEOC Appeal No. 07A10026, 2002 WL
      1999046 (Aug. 23, 2002)).
¶12         It is true that, as a matter of law, the Board generally defers to the EEOC
      on issues of substantive discrimination law unless the EEOC’s decision rests on
      civil service law for its support or is so unreasonable that it amounts to a
      violation of civil service law. Southerland, 119 M.S.P.R. 566, ¶ 20. Yet, the
      Board has consistently decided that it must follow the precedent of the highest
      court in the land, the U.S. Supreme Court, which has repeatedly declined to find
      that the EEOC’s interpretive guidelines have the force of law or to give those
      guidelines deference under Chevron, U.S.A., Inc. v. Natural Resources Defense
      Council, Inc., 467 U.S. 837 (1984). University of Texas Southwestern Medical
      Center v. Nassar, 133 S. Ct. 2517 (2013); Vance v. Ball State University, 133 S.
      Ct. 243 (2013); Hosanna–Tabor Evangelical Lutheran Church & School v. Equal
      Employment Opportunity Commission, 132 S. Ct. 694, 707 (2012).          We shall
                                                                                             9

      continue that prudent, judicious, and long-standing course of action in this case
      and will look to the EEOC’s guidance as merely instructive, rather than
      controlling.
¶13         Finally, the appellant, by this argument, assumes that an EEOC decision
      regarding an attorney fees award must constitute a decision on an issue of
      substantive discrimination law.         We cannot agree.      Generally speaking, an
      attorney fees award is a remedy that could be available to individuals in a case,
      but only after a decision on the merits or after the substantive issues have been
      resolved; determinations on an entitlement to an award of attorney fees
      should not be confused with the substantive matter of a case itself. See, e.g.,
      Luciano        Pisoni      Fabbrica      Accessori     Instrumenti      Musicali       v.
      United States, 837 F.2d 465, 467 (Fed. Cir. 1988) (finding that a decision on an
      award of attorney fees is a judgment independent of the result on the merits and is
      reached by an examination of the government’s position and conduct through the
      Equal Access to Justice Act “prism,” not by redundantly applying whatever
      substantive rules governed the underlying case) (citing Federal Election
      Commission v. Rose, 806 F.2d 1081, 1090 (D.C. Cir. 1986)).

      Upon consideration of the facts of this case, the Board exercises its discretion
      under 5 U.S.C. § 7701(g) to find that the appellant is not entitled to attorney fees.
¶14         Even if we were to find that the appellant is a prevailing party, and that the
      Board’s prior decision in the removal appeal constitutes a finding of
      discrimination, we conclude that the circumstances of this matter are sufficiently
      similar   to    the     circumstances   in   Arnold   v.   Department     of   the   Air
      Force, 94 M.S.P.R. 17, ¶¶ 18-21 (2003), so as to warrant the same outcome. 7 For

      7
        The appellant states on review that the Board in Arnold “acknowledged that the issue
      of who is the prevailing party when discrimination is found is a matter of discrimination
      law, not civil service law.” PFR File, Tab 1 at 3. The appellant does not identify a
      specific passage for this proposition, and we do not agree that Arnold stands for this
      proposition.
                                                                                              10

      instance, the appellant, like Mr. Arnold, has not been reinstated to his position or
      placed in any other position as a result of Board proceedings, nor has he received
      back pay. See id., ¶ 25. 8 Indeed, the appellant has achieved no relief whatsoever,
      and the only possible outcome in his favor was a single determination in the
      removal appeal that the deciding official’s statements in the decision letter
      constituted   direct   evidence     of   a   discriminatory    motive;    however,     the
      administrative judge properly noted in the addendum initial decision that the
      Board found that the appellant did not ultimately prove his affirmative defense of
      disability discrimination, and it upheld the removal.          We have considered the
      appellant’s “degree of success,” see Arnold, 94 M.S.P.R. 17, ¶ 26 (citing Farrar,
      506 U.S. at 114-15), but we conclude that his success in the removal action
      could not even be described as minimal. Exercising our discretion and authority
      pursuant to 5 U.S.C. § 7701(g)(2), we therefore conclude that the appellant is not
      entitled to fees for any work performed by his counsel in the removal appeal.

                                               ORDER
¶15          This is the final decision of the Merit Systems Protection Board in this
      matter. Title 5 of the Code of Federal Regulations, section 1201.113(c) (5 C.F.R.
      § 1201.113(c)).

                         NOTICE TO THE APPELLANT REGARDING
                            YOUR FURTHER REVIEW RIGHTS
             You have the right to request review of this final decision by the
      United States Court of Appeals for the Federal Circuit. You must submit your
      request to the court at the following address:




      8
        The appellant correctly notes on review that there are other procedural irregularities in
      Arnold that were not present in this matter, see PFR File, Tab 1 at 4-5, but we find that
      these differences are immaterial.
                                                                                 11

                          United States Court of Appeals
                              for the Federal Circuit
                            717 Madison Place, N.W.
                             Washington, DC 20439

The court must receive your request for review no later than 60 calendar days
after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec. 27,
2012). If you choose to file, be very careful to file on time. The court has held
that normally it does not have the authority to waive this statutory deadline and
that filings that do not comply with the deadline must be dismissed. See Pinat v.
Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
      If you need further information about your right to appeal this decision to
court, you should refer to the federal law that gives you this right. It is found in
Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
Dec. 27, 2012).     You may read this law as well as other sections of the
United States Code, at our website, http://www.mspb.gov/appeals/uscode/htm.
Additional        information       is     available       at      the       court’s
website, www.cafc.uscourts.gov. Of particular relevance is the court's “Guide for
Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of
Practice, and Forms 5, 6, and 11.
      If you are interested in securing pro bono representation for your court
appeal, you may visit our website at http://www.mspb.gov/probono for a list of
attorneys who have expressed interest in providing pro bono representation for
Merit Systems Protection Board appellants before the court. The Merit Systems
                                                                         12

Protection Board neither endorses the services provided by any attorney nor
warrants that any attorney will accept representation in a given case.



FOR THE BOARD:


______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.
