                          UNITED STATES OF AMERICA
                       MERIT SYSTEMS PROTECTION BOARD


     YOSUP J. CHOI,                                  DOCKET NUMBER
                         Appellant,                  SF-0752-14-0449-A-1

                  v.

     DEPARTMENT OF THE NAVY,                         DATE: April 14, 2015
                 Agency.



             THIS FINAL ORDER IS NO NPRECEDENTIAL 1

           A. Brian Henson, Esquire, Decatur, Georgia, for the appellant.

           Joshua Roever, China Lake, California, for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                                 Mark A. Robbins, Member


                                       FINAL ORDER

¶1        The appellant has filed a petition for review of the initial decision, which
     denied his motion for attorney fees. Generally, we grant petitions such as this
     one only when: the initial decision contains erroneous findings of material fact;
     the initial decision is based on an erroneous interpretation of statute or regulation
     or the erroneous application of the law to the facts of the case; the judge’s rulings

     1
        A nonprecedential order is one that the Board has determined does not add
     sign ificantly to the body of MSPB case law. Parties may cite nonprecedential orders,
     but such orders have no precedential value; the Board and administrative judges are not
     required to follow or distinguish them in any future decisions. In contrast, a
     precedential decision issued as an Opinion and Order has been identified by the Board
     as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
                                                                                        2

     during either the course of the appeal or the initial decision were not consistent
     with required procedures or involved an abuse of discretion, and the resulting
     error affected the outcome of the case; or new and material evidence or legal
     argument is available that, despite the petitioner’s due diligence, was not
     available when the record closed. See Title 5 of the Code of Federal Regulations,
     section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this
     appeal, and based on the following points and authorities, we conclude that the
     petitioner has not established any basis under section 1201.115 for granting the
     petition for review. Therefore, we DENY the petition for review and AFFIRM
     the initial decision, but we MODIFY it to provide the appellant with mixed-case
     appeal rights. See Caros v. Department of Homeland Security, 122 M.S.P.R. 231,
     ¶ 25 (2015).
¶2        From August 7, 2012, to December 30, 2012, the agency carried the
     appellant on sick leave based on a request from his physician. Near the end of
     that period, the agency asked the appellant to submit documentation clearing him
     to return to duty. MSPB Docket No. SF-0752-14-0430-I-1, Initial Appeal File
     (IAF), Tab 6 at 78, 108-09, 126. When he did not do so, the agency offered him a
     fitness-for-duty (FFD) examination to which he agreed. 2        Id. at 93-97.    The
     psychologist who examined him determined that he was not fit for duty, and
     another psychologist who reviewed updated documentation concurred in that
     determination. Id. at 67-73. As a result, the agency proposed and effected the
     appellant’s removal for having failed the FFD examination. Id. at 56-60, 63-66.
     After filing an equal employment opportunity (EEO) complaint with the agency,
     id. at 47-54, the appellant filed an appeal with the Board challenging the removal
     and claiming that the agency constructively suspended him during the period from



     2
      After the appellant’s sick leave ran out, he was allowed to use the remainder of his
     annual leave, and was then placed on leave without pay pending resolution of his
     employment status.
                                                                                      3

     December 31, 2012, until May 19, 2013, the effective date of his removal, id.,
     Tab 1.
¶3         In an initial decision based on the written record, the administrative judge
     considered both actions. Id., Tab 22, Initial Decision (ID).    He found that the
     appellant reasonably believed that he had to be medically cleared before he could
     return to duty, that he was, therefore, constructively suspended, and that, because
     the period of leave lasted more than 14 days and was imposed without providing
     him minimum due process, the suspension must be reversed.         ID at 3-6.   The
     administrative judge ordered the agency to cancel the suspension and
     retroactively restore the appellant, effective December 31, 2012, until the date of
     his removal, and to pay him “the appropriate amount of back pay (if any) with
     interest” in accordance with the Office of Personnel Management (OPM)
     regulations.   ID at 14.    The administrative judge sustained the removal, ID
     at 7-13, but found unsupported the appellant’s claims of national origin and
     disability discrimination and retaliation for protected EEO activity, ID at 10-13.
     The initial decision became the Board’s final decision as to both actions when
     neither party filed a petition for review.
¶4         The appellant filed a timely motion for attorney fees based on the
     constructive suspension action. Attorney Fees Appeal File, Tab 1. In response,
     the agency challenged the motion on numerous grounds, id., Tab 3, and the
     appellant replied thereto, id., Tab 4.
¶5         In his initial decision, the administrative judge denied the fee motion. Id.,
     Tab 6, Attorney Fees Initial Decision (AFID) at 1, 4.        He assumed without
     deciding that the appellant was the prevailing party and that he incurred fees
     through an attorney-client relationship, but because he received only nominal
     relief, he did not show that fees were warranted in the interest of justice or,
     alternatively, that an award of any fees would be reasonable. AFID at 2.
¶6         The appellant has filed a petition for review, Petition for Review (PFR)
     File, Tab 1, to which the agency has responded in opposition, id., Tab 3.
                                                                                        4

¶7         On review, the appellant argues, inter alia, that fees should be awarded
     because he obtained the relief he sought, cancelation of the suspension and back
     pay. Id., Tab 1 at 3. In fact, however, at the time the appellant filed his petition
     for review, the administrative judge had already determined, in a separate
     compliance proceeding, that the appellant was not entitled to back pay because
     the agency had sufficient evidence showing that he was not ready, willing, and
     able to work during all or part of the constructive suspension period, and he did
     not show otherwise.    Choi v. Department of the Navy, MSPB Docket No. SF-
     0752-14-0449-C-1, Compliance Initial Decision at 1-4 (Nov. 18, 2014).            The
     Board has, this date, affirmed that decision. Choi v. Department of the Navy,
     MSPB Docket No. SF-0752-14-0449-C-1, Final Order at 2 (Apr. 14, 2015).
¶8         In Farrar v. Hobby, 506 U.S. 103, 114 (1992), the Court held that if a party
     is found to have prevailed, “the degree of [his] overall success goes to the
     reasonableness” of a fee award (quoting Texas State Teachers Assn. v. Garland
     Independent School District, 489 U.S. 782, 793 (1989)). The Board has followed
     that rule.   See Arnold v. Department of the Air Force, 94 M.S.P.R. 17, ¶ 20
     (2003); see also Garcia v. U.S. Postal Service, 83 M.S.P.R. 458, ¶ 7 (1999); Stein
     v. U.S. Postal Service, 65 M.S.P.R. 685, 689-90 (1994).
¶9         Here, the appellant’s retroactive restoration, which lasted only until the date
     of his removal, was technical and had no real effect on his employment status.
     As noted, he received no back pay as a result of the agency’s unjustified action,
     and back pay was what he sought inasmuch as the agency’s failure to provide it
     was the sole basis for his petition for enforcement. Any moral satisfaction the
     appellant may have received based on the administrative judge’s finding that the
     agency denied him due process in connection with the constructive suspension
     represented only nominal relief and we therefore agree with the administrative
                                                                                     5

judge that it does not support an award of attorney fees. 3 See Farrar, 506 U.S.
at 114-115; see also Jacobsen v. Department of Justice, 103 M.S.P.R. 439,
¶ ¶ 11-12 (2006), aff’d, 500 F.3d 1376 (Fed. Cir. 2007).

                NOTICE TO THE APPELLANT REGARDING
                   YOUR FURTHER REVIEW RIGHTS
     The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You have the right to
request further review of this final decision.

Discrimination Claims: Administrative Review
      You may request review of this final decision on your discrimination
claims by the Equal Employment Opportunity Commission (EEOC). See Title 5
of the United States Code, section 7702(b)(1) (5 U.S.C. § 7702(b)(1)). If you
submit your request by regular U.S. mail, the address of the EEOC is:
                          Office of Federal Operations
                   Equal Employment Opportunity Commission
                                P.O. Box 77960
                           Washington, D.C. 20013

     If you submit your request via commercial delivery or by a method
requiring a signature, it must be addressed to:
                          Office of Federal Operations
                   Equal Employment Opportunity Commission
                               131 M Street, NE
                                 Suite 5SW12G
                           Washington, D.C. 20507



3
  We note the appellant’s argument on review that fees are warranted in the interest of
justice because the agency knew or should have known that its action could not
sustained and was clearly without merit. PFR File, Tab 1 at 3-5. Because we agree
with the administrative judge’s denial of fees, we need not address the appellant’s
claim. See Driscoll v. U.S. Postal Service, 116 M.S.P.R. 662, ¶ 10 n.4 (2011) (when the
relief obtained is merely nominal, the determ ination of reasonable fees is
indistinguishable from the interest of justice analysis).
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      You should send your request to EEOC no later than 30 calendar days after
your receipt of this order. If you have a representative in this case, and your
representative receives this order before you do, then you must file with EEOC no
later than 30 calendar days after receipt by your representative. If you choose to
file, be very careful to file on time.

Discrimination and Other Claims: Judicial Action
      If you do not request EEOC to review this final decision on your
discrimination claims, you may file a civil action against the agency on both your
discrimination claims and your other claims in an appropriate United States
district court. See 5 U.S.C. § 7703(b)(2). You must file your civil action with
the district court no later than 30 calendar days after your receipt of this order. If
you have a representative in this case, and your representative receives this order
before you do, then you must file with the district court no later than 30 calendar
days after receipt by your representative. If you choose to file, be very careful to
file on time. If the action involves a claim of discrimination based on race, color,
religion, sex, national origin, or a disabling condition, you may be entitled to
representation by a court-appointed lawyer and to waiver of any requirement of
prepayment of fees, costs, or other security.      See 42 U.S.C. § 2000e-5(f) and
29 U.S.C. § 794a.




FOR THE BOARD:                             ______________________________
                                           William D. Spencer
                                           Clerk of the Board
Washington, D.C.
