                      UNITED STATES OF AMERICA
                   MERIT SYSTEMS PROTECTION BOARD


SOCIAL SECURITY                                 DOCKET NUMBER
  ADMINISTRATION,                               CB-7521-13-0182-T-1
              Petitioner,

             v.
                                                DATE: December 30, 2014
GERALD I. KRAFSUR,
              Respondent.



        THIS FINAL ORDER IS NONPRECEDENTIAL 1

      Brian Seinberg, Esquire, and Richard V. Blake, Atlanta, Georgia, for the
        petitioner.

      Meeka S. Drayton, Esquire, Seattle, Washington, for the petitioner.

      Sharese M. Reyes, Esquire, Baltimore, Maryland, for the petitioner.

      Charlton R. DeVault, Jr., Esquire, Kingsport, Tennessee, for the
        respondent.


                                      BEFORE

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




1
   A nonprecedential order is one that the Board has determined does not add
significantly 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 Parties may cite nonprecedential orders,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

                                        FINAL ORDER

¶1           The respondent has filed a petition for review of the initial decision, which
     dismissed the agency’s complaint seeking to suspend the respondent for 120 days.
     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 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. Except as expressly MODIFIED by
     this Final Order, we AFFIRM the initial decision.
¶2           The respondent is an Administrative Law Judge (ALJ) in the agency’s
     Office    of   Disability   Adjudication   and   Review.     In   April   2013,   the
     agency-petitioner filed a complaint with the Board seeking to suspend the
     respondent for 120 days based on charges of neglect of duty and conduct
     unbecoming an ALJ. Initial Appeal File (IAF), Tab 1 at 6-13. In May 2014, the
     petitioner filed a pleading indicating that it wished to withdraw its complaint or,
     in the alternative, to have its complaint dismissed without prejudice. IAF, Tab 44
     at 5.    The ALJ assigned to adjudicate the complaint granted the petitioner’s
     motion to dismiss without prejudice. IAF, Tab 49, Initial Decision at 3. A week
     after the ALJ dismissed the suspension complaint, the petitioner filed a new
     Board complaint seeking to remove the respondent based on a single charge of
     neglect of duty. Social Security Administration v. Krafsur, MSPB Docket No.
                                                                                       3

     CB-7521-14-0016-T-1, Complaint (May 29, 2014).           The conduct that is the
     subject of the removal complaint took place between June 2013 and May 2014,
     id. at 10-11, and therefore the suspension and removal complaints do not involve
     any of the same conduct.
¶3         The respondent has filed a timely petition for review of the initial decision
     dismissing the suspension complaint, arguing that the ALJ should have dismissed
     the complaint with prejudice and should have awarded him attorney fees. Petition
     for Review (PFR) File, Tab 1 at 2, 28. He also argues that the ALJ should have
     recused himself. Id. at 25-28. The petitioner has responded in opposition to the
     petition for review, PFR File, Tab 9, and the respondent has filed a reply, PFR
     File, Tab 10. 2
¶4         The respondent does not argue that the suspension complaint should not
     have been dismissed at all; rather, he argues that the ALJ erred in dismissing the
     complaint without prejudice. PFR File, Tab 1 at 18-22. Because the petitioner
     clearly indicated that it no longer wished to pursue disciplinary action against the
     respondent based on the conduct set forth in the suspension complaint, we find
     that the appropriate disposition of the complaint is to DISMISS it as
     WITHDRAWN, as was requested in the alternative by the petitioner.
¶5         The respondent also argues that he is entitled to attorney fees for work
     performed in response to the suspension complaint. PFR File, Tab 1 at 22-25.
     However, the respondent’s entitlement to attorney fees is not properly before the
     Board at this stage in the proceedings because the Board has not yet issued a final
     decision.   See Galatis v. U.S. Postal Service, 109 M.S.P.R. 651, ¶ 14 (2008)
     (citing 5 C.F.R. § 1201.203(d)). A motion for attorney fees can be filed within 60
     days after the Board issues a final decision. 5 C.F.R. § 1201.203(d).


     2
       The respondent has moved for leave to supplement his petition for review with
     newly-discovered evidence. PFR File, Tab 5. Because he has not established that the
     evidence he seeks to submit would warrant a different outcome in this matter, his
     motion is denied.
                                                                                             4

¶6         Although we do not reach the question of the respondent’s entitlement to
     attorney fees at this time, we note that in order to be entitled to an award of
     attorney fees, a party must establish, among other things, that he was the
     prevailing party. Baldwin v. Department of Veterans Affairs, 115 M.S.P.R. 413,
     ¶ 10 (2010) (citing 5 U.S.C. § 7701(g)(1)). The Board has held that prevailing
     party status “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). 3
¶7         Finally, the respondent argues that the ALJ was biased against him because
     of the ALJ’s prior employment history and his rulings during this proceeding.
     PFR File, Tab 1. We find that the respondent’s allegations do not overcome the
     presumption     of    honesty   and   integrity   that   accompanies      administrative
     adjudicators. See White v. Social Security Administration, 76 M.S.P.R. 303, 308
     (1997), aff’d, 152 F.3d 948 (Fed. Cir. 1998) (Table).
¶8         Accordingly, the ALJ’s initial decision is AFFIRMED as MODIFIED by
     this Order. The petitioner’s complaint is DISMISSED as WITHDRAWN.

                       NOTICE TO THE RESPONDENT 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 the United States Court of Appeals for the Federal Circuit to review this
     final decision.      You must submit your request to the court at the following
     address:
                                 United States Court of Appeals
                                     for the Federal Circuit


     3
       The Board has held that it may award attorney fees under the Equal Access to Justice
     Act (EAJA) to the prevailing party in Board proceedings seeking disciplinary actions
     against ALJs. National Labor Relations Board v. Boyce, 51 M.S.P.R. 295, 299-300
     (1991) (citing 5 U.S.C. § 504). In applying the EAJA, the Board considers prior
     judicial interpretations of the term “prevailing party” under other fee-shifting statutes.
     Boyce, 51 M.S.P.R. at 300-01.
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                             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
                                                                           6

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.
