UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

YOSUP J. CHOI,

Appellant,

v.

DEPARTMENT OF THE NAVY,

Agency.

DOCKET NUMBER

SF-0752-14-0449-A-1

DATE: April 14, 2015

THIS FINAL ORDER IS NONPRECEDENTIAL1

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 1 A nonprecedential order is one that the Board has determined does not add 

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 Parties may cite nonprecedential orders, 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

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. SF0752-14-0449-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 determination of reasonable fees is 

indistinguishable from the interest of justice analysis).
6

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:

Washington, D.C.

______________________________

William D. Spencer

Clerk of the Board