Edward R. Baldwin, Appellant,
v.
Louis W. Sullivan, M.D., Secretary, Department of the Health and Human Services, Agency.

Request No. 
05910016
Appeal No. 01903079
Agency No. SSA-457-87, SSA-273-88

April 12, 1991

DENIAL OF REQUEST TO REOPEN

INTRODUCTION

On September 21, 1990, Edward R. Baldwin (hereinafter referred to as appellant), through his representative, initiated a request to the Equal Employment Opportunity Commission (EEOC) to reopen and reconsider the decision in Edward R. Baldwin v. Louis W. Sullivan, M.D., Secretary, Department of Health and Human Services, EEOC Appeal No. 01903079 (Sept. 18, 1990). EEOC Regulations provide that the Commission may, at its discretion, reopen and reconsider any previous decision when the party requesting reopening submits written argument or evidence which tends to establish one or more of the following criteria: 29 C.F.R. 1613.235(b)(1) (new and material evidence is available that was not readily available when the previous decision was issued); 29 C.F.R. 1613.235(b)(2) (the previous decision involved an erroneous interpretation of law or regulation, or a misapplication of established policy); and 29 C.F.R. 1613.235 (b)(3) (the decision is of such exceptional nature as to have effects beyond the actual case at hand). Appellant appears to base his request on 29 C.F.R. 1613.235(b)(1), (2), and (3). For the reasons set forth herein, appellant's request is denied.

ISSUE PRESENTED

The issue presented herein is whether the Commission's previous decision correctly found that the agency properly denied appellant's request for attorney's fees and costs on the grounds that he did not meet the criteria of a 'prevailing party.'

BACKGROUND

At the time of the instant events appellant was employed in the agency's Office of Central Operations (OCO) at the International Program Service Center, Social Security Administration, Baltimore, Maryland, as a Claims Authorizer, GS-11.

In a complaint dated August 25, 1987, (Complaint No. 1) appellant alleged that he was discriminated against based on his sex (male), race (Caucasian), religion (Catholic) and in reprisal for his prior EEO activity when he was not selected for various permanent positions or developmental details as an Analyst or Claim Authorizer Technical Assistant (CATA) from April 1986 to July 1987. In this formal complaint, appellant requested, as a remedy for the complaint a 'permanent reassignment outside of OCO at Headquarters in Woodlawn to OPI or OSR or OCPR.' Complaint File No. 1 Exhibit (Ex.) D. [FN1]

While Complaint No. 1 was being processed, appellant filed a second formal complaint dated March 31, 1988 (Complaint No. 2) alleging that in reprisal for his prior EEO activity: he failed to receive notification of developmental job assignments, details and permanent vacancies from his supervisors, and that he failed to receive a quality step increase award for the 'Outstanding'performance appraisal he received for the rating period which ended on September 30, 1987. Appellant requested as a remedy on this formal complaint 'promotion to the GS-12 level at Headquarters with back pay to the date of my first complaint, or to be reassigned out of OCO at the GS-11 level to any position for which my generalized X-118 experience qualifies me for. ' Complaint File No. 2, Ex. D.

 The agency separately investigated Complaint Nos. 1 and 2 and issued two separate notices of proposed disposition finding no discrimination had occurred. Appellant requested an investigative hearing with regard to each of his complaints. Complaint Nos. 1 and 2 were consolidated for further processing. At the prehearing conference, settlement negotiations ensued which culminated in the resolution of both complaints through a settlement agreement signed by the parties on March 20, 1990. This agreement stated that in exchange for the withdrawal of appellant's complaints, the agency agreed to give appellant 'priority consideration for a 120-day detail in a GS-11 position in the Office of International Operations, Office of Disability and International Operations Social Security Administration'; and to raise appellant's 1989 performance evaluation to the 'Outstanding' level by changing one element from 'Excellent' to 'Outstanding.' This agreement also stated that the agency would not provide appellant with any monetary benefit or award as a result of this appraisal change. The settlement agreement did not contain any provision for the payment of appellant's attorney's fees and costs. The agreement also stated that it did not represent any admission of discrimination towards appellant by the agency.

Appellant's attorney sent a petition for attorney's fees dated May 30, 1990 to the agency for work performed between November 1987 and May 1990. Appellant's counsel also provided the agency with an itemized statement of hours and services accrued in the handling of the case, an affidavit regarding his experience, training and billing rates and affidavits from other federal employment law attorneys concerning their customary billing rates. On June 7, 1990, the agency's Acting Director sent a letter to appellant's attorney which noted that the settlement agreement contained no provision regarding the payment of attorney's fees and that the agreement also provided that it was entered into in recognition of the fact that continuation of the complaint would provide no benefit to either appellant or the agency. Consequently, the letter indicated that there was no basis upon which the agency could either consider the fee petition or award attorney's fees to appellant's counsel. No appeal rights were given. On June 18, 1990, appellant's counsel indicated that he was filing a 'timely Notice of Appeal pursuant to 29 C.F.R. 1613.231 of the Commission's Regulations from a decision by the Department of Health and Human Services denying the payment of attorney's fees.'

Appellant's counsel also submitted to the Commission, with a July 9, 1990 letter, a copy of the application for attorney's fees which had been submitted to the agency by appellant as well as a supplemental request for attorney's fees. In response, the agency submitted a July 23, 1990 Brief in opposition to appellant's appeal to the Commission, in which the agency argued, inter alia, that appellant was not the prevailing party because he did not succeed on any significant issue in litigation, which achieved some of the benefit sought in bringing suit. Appellant's counsel was mailed a copy of the agency's brief. No response to the agency's brief was received by the Commission.

The Commission's previous decision found that appellant had failed to establish that he was a prevailing party because the settlement agreement did not provide him with either of the remedies he had consistently demanded throughout the processing of his complaints, either a promotion to the GS-12 level or a permanent reassignment out of OCO. Thus, our previous decision affirmed what it deemed to be the agency's final decision denying payment of attorney's fees and costs. Appellant's request to reopen followed. In his request, appellant's attorney asserts, for the first time, that the Commission's previous decision improperly failed to remand the case to the agency for the issuance of a final agency decision on the merits of the request for attorney's fees. While acknowledging that he was aware that the agency had articulated its reasons for denial of the fee petition in a brief filed with the Commission, appellant's attorney argues that because the agency had not issued an FAD, appellant was not aware of the agency's position when he filed his appeal to the Commission.

Appellant's attorney also argues in his request that the Commission's decision was in error in finding that appellant was not the prevailing party. In support of this assertion, appellant's attorney submits two affidavits to prove that appellant did prevail. He indicates that the facts set out in these affidavits would have been those proffered if the agency had issued an FAD. Appellant's attorney also asserts that new and material evidence is available that was not readily available when the previous decision was issued, in that appellant did not have the opportunity to file his position relative to whether he is the prevailing party. As attachments to his request, appellant's attorney proffers: 1) the agency's June 7, 1990 letter; 2) an affidavit from the Executive Vice President of the Local Union; 3) an affidavit from the appellant; 4) the agency instructions covering performance awards which indicate that an employee with an outstanding rating should receive an award; and 5) a performance award scale. In the affidavit of the union official, he states his belief that appellant was the prevailing party because he received a 1989 'Outstanding' performance rating which can be carried over to subsequent years based on an agreement between the agency and the union that the appraisals of certain union officials such as appellant would be carried over from year to year unless their status changed. He indicated that pursuant to agency policy, employees who receive 'Outstanding 'performance ratings are given High Quality Increases and cash awards and are much more competitive for promotional opportunities. Appellant averred in his affidavit that he was a prevailing party because his 1989 appraisal would be carried over to 1990 under the union agreement based on his union official status and because he agreed to forego the retroactive performance award under the settlement agreement in favor of an award for the 1990 appraisal year and for future appraisal years. Appellant proffered no formal written documentation of the alleged union/management agreement or of his actual receipt of either a 'carry over'type of 'Outstanding' appraisal or performance award.

ANALYSIS AND FINDINGS

The Commission may, in its discretion, reopen and reconsider any previous decision when the party requesting reopening submits written argument or evidence which tends to establish that any one or more of the criteria of 29 C.F.R. 1613.235(b) are met. Appellant has not met the stated criteria for reopening the previous decision.

We agree with appellant's attorney that our prior decision inadvertently assumed that the letter sent to him from the agency's Acting Director of Human Resources denying his petition for attorney's fees, was a final agency decision, when in fact it was not. Consequently, our previous decision should have remanded the attorney's fees issue to the agency for issuance of a final agency decision pursuant to 29 C.F.R. 1613.221. [FN2] However, we also note that appellant's attorney, who professes to have attained a certain degree of knowledge of the operation of the Commission's regulations, at no time prior to the instant request, indicated to the Commission that he was not appealing from a final agency decision. Nor is there any record that appellant's counsel requested that such an FAD be issued by the agency. Further, we note that the 'notice of appeal' filed by appellant's counsel specifically indicated that he was appealing pursuant to 29 C.F.R. 1613.231 of the Commission's Regulations from a decision by the agency. The provision of the regulations cited by appellant's attorney deals specifically with the right to appeal to the Commission from the agency's FAD.

While appellant argues in his request that this case should be remanded for issuance of an FAD because of our previous decision's error, we are not persuaded that a remand is appropriate at this stage of processing. While appellant argues that he was deprived of an opportunity to respond to the agency's reasons for the denial of his petition, by the absence of an FAD, we find that appellant was made aware of the agency's position on this issue through his admitted receipt of the agency's brief on the matter over a month before the Commission issued its previous decision, but that he did not make any attempt at either responding to it or alerting the Commission that his arguments had not been heard. Since our previous decision was issued, however, appellant has been given a full and fair opportunity to respond to the arguments presented by the agency to the Commission. In fact, appellant's attorney indicates in his request, that he presently proffers before the Commission the evidence that he would have submitted if the agency had issued a final agency decision finding that he is not a prevailing party. We will fully consider this evidence and the arguments made by appellant in our present decision. Thus, we find the error made in our previous decision to be harmless and an insufficient basis upon which to remand this case under the circumstances presented herein.

We will now address the merits of appellant's assertion in his request that our previous decision erred in finding that he was not a prevailing party. In this respect, we find appellant's arguments to be unpersuasive. Appellant's attorney submits an affidavit from appellant which asserts that he is a prevailing party based upon an award he may receive for a performance appraisal he may receive based upon an agreement for which there is no formal written corroboration offered. Both of appellant's complaints, as well as the position appellant took in early settlement negotiations at the counseling stage of Complaint No. 2, indicate that appellant requested as a remedy, no less than promotion to the GS-12 level at Headquarters with backpay or a permanent reassignment to a position outside of OCO. Appellant received neither of these requested remedies in the March 20, 1990 settlement agreement. The only relief afforded to appellant in this agreement was priority consideration for a temporary detail and the upgrading of his 1989 performance rating without an accompanying award. Appellant has not indicated that he has in fact received such a detail as of the present date.

Further, appellant's complaint requested a reassignment which denotes permanence, not a detail, which indicated only temporary status. As our previous decision already stated, appellant's 'Outstanding' rating was not for the year which appellant had mentioned in Complaint No. 2 ending in September 1987, and did not give him the performance award he claimed he was unjustly denied. While appellant claims that he will receive such an award in 1990, based upon a 1990 Outstanding appraisal he will receive pursuant to a union/management agreement, we find that the mere possibility of such relief is too tenuous a basis upon which to find that appellant's complaint was its 'catalyst,' pursuant to the legal test applied by our previous decision. This test was cited in Miller v. Staats, 706 F.2d 336, 341 (D.C. Cir. 1983), and requires that, in order to establish that appellant is a prevailing party for the purpose of a threshold entitlement to attorney's fees, the appellant must first have substantially received the relief he sought when he initiated his EEO complaint. See also Hensley v. Eckerhart, 461 U.S. 424, 433 (1983) (Plaintiffs considered prevailing parties if they 'succeed on any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit.'). Second, appellant's EEO action must have been the catalyst motivating the agency to provide the relief granted. Miller, 706 F.2d at 341.While we find, unlike our previous decision, that appellant's complaint was the catalyst motivating the agency to provide the relief granted in the subject settlement agreement, appellant has failed to demonstrate through his arguments and attachments accompanying his request to reopen, that he has met the first prong of the Miller test. Finally, we note that appellant has not presented new and material evidence pursuant to 29 C.F.R. 1613.235(b)(1)., sufficient to justify reopening on that basis. Nor has appellant shown that our previous decision was of such exceptional nature as to have effects beyond the actual case at hand pursuant to 29 C.F.R. 1613.235(b) (3).

CONCLUSION

After a review of the appellant's request to reopen, the previous decision, and the entire record, the Commission finds that the appellant's request fails to meet the criteria of 29 C.F.R. 1613.235(b) it is the decision of the Commission to deny the appellant's request. The decision of the Commission EEOC Appeal No. 01903079, as clarified herein, remains the Commission's final decision in this matter. There is no further right of administrative appeal on a decision of the Commission on a Request to Reopen.

STATEMENT OF APPELLANT'S RIGHTS - ON REQUEST TO REOPEN

RIGHT TO FILE A CIVIL ACTION

You are hereby notified that there is no further right of appeal from a decision of the Commission on a Request to Reopen. You have the right to file a civil action in an appropriate United States District Court WITHIN THIRTY (30) DAYS of the date that you receive this decision. As to any claim based on the Age Discrimination in Employment Act of 1967 (29 U.S.C. 633a), you MAY have up to six years after the right of action first accrued in which to file a civil action. See Lehman v. Nakshian, 453 U.S. 156 (1981); 29 U.S.C. 633a(f); and 28 U.S.C. 2401(a). If you file a civil action, YOU MUST NAME THE PERSON WHO IS THE OFFICIAL AGENCY HEAD OR DEPARTMENT HEAD AS THE DEFENDANT IN THE COMPLAINT. Agency or department means the national organization, and not the local office, facility or department in which you might work. DO NOT JUST NAME THE AGENCY OR DEPARTMENT. You must also state the title of the official agency head or department head. Failure to provide the NAME AND OFFICIAL TITLE of the agency head or department head, may result in the dismissal of your case. Fed. R. Civ. P. 25(d) (2).

RIGHT TO REQUEST COUNSEL (R990)

If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request that the Court appoint an attorney to represent you and that the Court permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney does not extend your time in which to file a civil action. Both the request and the civil action MUST BE FILED WITHIN THIRTY (30) DAYS from the date you receive the Commission's decision.

FOR THE COMMISSION:

Frances M. Hart
Executive Officer
Executive Secretariat

[FN1]. The EEO Counselor's report also states that appellant was seeking a permanent reassignment outside of OCO and that he rejected the agency's informal settlement offer of a 120 day detail as a CATA, indicating he would only accept a permanent Analyst or CATA position or a reassignment out of OCO.

[FN2]. See Edward P. Stanewicz v. Louis W. Sullivan, M.D., Secretary, Department of Health and Human Services, EEOC Appeal No. 01902331 (August 10, 1990) (The Commission remands attorney's fees issue to agency for issuance of an FAD).