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Kean v. Stone

filed: February 20, 1991; As Amended February 26, 1991.


On Appeal From the United States District Court for the Middle District of Pennsylvania; D.C. Civil No. 89-01404.

Becker, Nygaard, Circuit Judges and Louis H. Pollak, District Judge.*fn*

Author: Pollak



POLLAK, District Judge

Several years ago the plaintiff was fired from his federal job. By petition to the Merit Systems Protection Board (MSPB), plaintiff protested the firing. Alter protracted administrative proceedings, the plaintiff prevailed: it was determined that the federal agency for which plaintiff worked had, in firing him, discriminated against him on account of a handicap. Accordingly, plaintiff was ordered reinstated with back pay. Then plaintiff petitioned the MSPB for an order fixing a fee, to be paid by the defendant agency, to compensate plaintiff's attorney for his successful services. The MSPB agreed that a fee was owing, but the award was substantially lower than plaintiff thought warranted. Plaintiff appealed the award to the federal district court for the Middle District of Pennsylvania, the district that embraces the situs of plaintiff's federal employment. That court granted the government's motion to dismiss for lack of jurisdiction: parsing the complex statutory provisions governing judicial review of MSPB decisions, the court concluded that, in a situation in which the allegedly discriminatory character of plaintiff's discharge had been resolved in plaintiff's favor at the administrative level and would not be judicially reexamined, review of an MSPB attorney-fee award lay not in a district court but in the Court of Appeals for the Federal Circuit.

Plaintiff has appealed to this court from that jurisdictional determination. To put the relevant legal issues in proper context, we think it will be useful to begin by outlining in some detail the proceedings which constitute the background for plaintiff's fee application.

A. Plaintiff's Discharge

Over seven years ago -- on December 16, 1983 - Gary Kean, an alcoholic civilian employee of the Army, was fired from his job at the New Cumberland (Pa.) Army Depot. That event precipitated litigation which has threaded its way through two federal agencies -- the Merit Systems Protection Board (MSPB) and the Equal Employment Opportunity Commission (EEOC) - before coming to court.

Kean was fired because, in the morning of September 20, 1983, he phoned the New Cumberland Army Depot to report that he had a severe stomach-ache and could not come to work. The next day, September 21, 1983, Kean did come to work and brought with him a physician's statement, dated "9/21/83," reciting that Kean "was ill today with abdominal upset -- possible appendicitis." But Kean's superiors viewed Kean's phone report of the previous day as a falsehood -- an anticipatory cover-up for a day's tavern-drinking which culminated in an arrest for driving while intoxicated. The falsehood was perceived as culpable because it appeared calculated to gain a day of sick leave when Kean was not in fact unable to work; and the falsehood was perceived as doubly culpable because it appeared repetitive of a false report three months earlier that had led to a five-day suspension. Before Kean's superiors determined what new discipline to impose, Kean agreed to enter a residential alcohol treatment program that Army personnel authorities had been pressing Kean to enroll in for over a year. Kean completed the program on October 31, 1983. On November 1, 1983 -- the very next day -- the Army announced its intention to terminate Kean's employment on the basis of the September 20, 1983, misrepresentation. Kean's answer to the charges failed to change the Army's mind, and on December 5, 1983, the Army made the discharge final, effective December 16, 1983.

B. Proceedings Before the MSPB and the EEOC

Kean, represented by an attorney on the legal staff of his union, the American Federation of Government Employees (AFGE), promptly challenged his discharge by initiating a proceeding before the Merit Systems Protection Board (MSPB). Kean contended that (1) the Army had not established the falsehood of the September 20, 1983, stomach-ache report, and (2) the Army had not properly accommodated Kean's alcoholism and hence had discriminated against him on the basis of a handicap, in contravention of Section 501 of the Rehabilitation Act of 1973, 29 U.S.C. § 791. At the first level of Board inquiry into the challenged agency action, Kean was in part successful: the MSPB administrative law judge ("Presiding Official" in MSPB parlance) held against Kean on his discrimination claim but concluded that the Army had not demonstrated that Kean did not have a disabling stomach-ache on September 20, 1983. However, on the Army's appeal to the Board proper, the decision of the administrative law judge was reversed: the Board did not disturb the holding that Kean had not been discriminated against; but the Board did conclude that the Army had demonstrated the falsity of Kean's September 20 report by a preponderance of the evidence and that discharge was a not unreasonable sanction. Kean v. Department of the Army, 24 M.S.P.R. 226 (1984).

On December 10, 1984 - almost exactly a year after his termination - Kean filed with the Equal Employment Opportunity Commission (EEOC) a petition seeking review of that portion of the MSPB ruling that found against Kean on his discrimination claim. On March 11, 1988, the EEOC issued an opinion announcing and explaining "the decision of the Commission to differ with the Board decision":

Virtually immediately after his misconduct in September 1983, petitioner sought the intensive assistance which had previously been advised. The agency granted petitioner's leave request with full knowledge that petitioner would utilize the leave to participate in a residential treatment program. There is no indication in the record that petitioner was advised that he would be terminated for his misconduct, but the agency would permit him to obtain treatment while still technically employed and, thus, presumably entitled to certain insurance benefits. Rather, the proposal to remove petitioner had not yet been issued and no decision had been reached regarding the appropriate disciplinary decision.

Given that the agency had acquiesced in petitioner's decision to seek treatment prior to the making of any disciplinary decision, the Commission finds that the agency was obligated to provide petitioner with the opportunity to demonstrate the effectiveness of the accommodation it offered him. Consequently, the agency should have notified petitioner that its disciplinary decision would be deferred pending a reasonable period during which petitioner must show a favorable response to the treatment he received.

Accordingly, the Commission does not reach the question of whether the agency could have immediately terminated petitioner after the September 1983 incident without granting any request for additional accommodation. As the accommodation had already been sought and granted, such a question becomes irrelevant.

Accordingly, the Commission referred Kean's case back to the Board. On July 1, 1988, the MSPB issued an opinion announcing that it concurred in the EEOC decision for the reason that, pursuant to its holding in Ignacio v. United States Postal Service, 30 M.S.P.R. 471, 486 (Spec. Pan. 1986), the Board deemed itself bound by Commission interpretations of discrimination law, as distinct from civil service law. Therefore, the Board ordered the Army to "cancel the appellant's [Kean's] removal and to restore the appellant retroactively effective December 16, 1983," and "to award back pay and benefits."

Thus, at long last - four-and-a-half years after the event - the MSPB decision of July 1, 1988, resolved the merits of Kean's claim in his favor. The decision also set the stage for further litigation, an initial phase of which is now before this court.

That further litigation addresses the question of payment by the Army for the 31.5 hours of legal services performed by Kean's attorney in overturning Kean's wrongful discharge. A petition for an order directing such additional relief was filed with the MSPB soon after the Board rendered its final decision sustaining Kean's claim. The statutory basis for the application was 5 U.S.C. § 7701(g):

(g)(1) Except as provided in paragraph (2) of this subsection, the Board or an administrative law judge or other employee of the Board designated to hear a case, may require payment by the agency involved of reasonable attorney fees incurred by an employee or applicant for employment if the employee or applicant is the prevailing party and the Board, administrative law judge, or other employee (as the case may be) determines that payment by the agency is warranted in the interest of justice, including any case in ...

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