Price v. Social Security Administration
398 F.3d 1322
Fed. Cir.
2005
Check Treatment
Docket

*1 1322 (1924), Objections waivable, the Court considered

68 L.Ed. 748 to venue are and the following provision addressed any objection whether United States has waived jurisdiction venue: “Jurisdiction of such in venue the Western District of Texas. actions be court of the unnecessary shall This makes it for the employer in the defendant district which court to address whether the district court principal resides or in which his office is concluding erred in principal place 384, 44 located.” Id. S.Ct. 391. of partnership business of each is not in foregoing provision, venue the Western According- District Texas. the Court stated: ly, this court reverses the district court’s regarding jurisdiction order and remands

Congress pursued policy has of in- the case for a determination on the merits. vesting the federal courts with a jurisdiction general expressed terms

applicable alike to all of them and of COSTS regulating by separate provi- the venue Each party shall bear its own costs. designating particular sions district REVERSED and REMANDED sued, in which a defendant shall be such as the district which he is an inhabit-

ant or in he has a place of busi-

ness, provision is not intended — ... jurisdiction general affect the §

District as defined in 24 Courts [the conferring general jurisdiction],

statute only prescribe the venue for ac- brought tions under act new PRICE, Petitioner, Elizabeth A. part. which it is a v. 384-85, 391; Id. at 44 see S.Ct. also Pan Pipe handle E. Line v. Fed. Co. Power SOCIAL SECURITY Comm’n, 324 U.S. 65 S.Ct. 89 ADMINISTRATION, (1945) (finding 1241 L.Ed. that a statute Respondent. providing appeal appeals to the court of No. 04-3062. has “its company principal place where venue); of business” addresses accord United States of Appeals, Court Browner, Nat’l Fed’n v. Wildlife Federal Circuit. (D.C.Cir.2001). Like the situation Feb. 2005. Co., grants Panama Railroad the tax code general jurisdiction to the district courts in particular § U.S.C. actions IRS,

brought against pre and has location for

scribed suitable venue 6226(a)(2).

Therefore, “principal place of busi- 6226(a)(2) language

ness” in 26 U.S.C. provision. interpretation

a venue This language is also consistent with the

legislative history, provisions context TEFRA,

within and the relevant case law.

count of perjury an administrative hear- ing before making one count of in determining false statement for use eli- *3 gibility Security for Social benefits. indictment, Based SSA in paid Ms. Price administrative leave and sought authorization suspend indefinitely. 13, 1999, On October Ms. Kator, Kator, J. Michael Parks & Weis- convicted. Responding to Ms. er, P.L.L.C., DC, of Washington, argued conviction, Price’s Bar the State of Califor- petitioner. nia suspended Ms. prac- Price’s license to Blank, Kelly Litigation B. Commercial 4, tice law 2000. effective March SSA Division, Branch, Civil United States De- determined that longer quali- Ms. Price no Justice, DC, of partment Washington, of fied to be an administrative law argued respondent. on With her without a practice license to law. There- Keisler, D. brief were Peter Assistant At- fore, SSA Ms. Price on absent with- General, Cohen, Director, torney David M. (AWOL) out official leave status. Ms. McCarthy, and Patricia M. Assistant Di- Price remained on AWOL status from rector. on the Of counsel brief was Shawn 4, 2000, March voluntarily until she retired McGruder, Attorney, S. Office of the Gen- 3, on June 2000. Counsel, Security eral Social Administra- Ms. Price filed a complaint with the tion, Baltimore, Maryland. of alleging Board constructively RADER, Judge, Before Circuit suspended by placing her on AWOL FRIEDMAN, Judge, Senior Circuit obtaining status without first BRYSON, Judge. Circuit 15, 2000, approval. September On Chief Judge Streb issued an Opinion by for the court filed Circuit initial awarding decision Ms. Price back Dissenting opinion RADER. filed 4, 2000, pay with March interest from by Senior Circuit FRIEDMAN. Admin., June 2000. Price v. Soc. Sec. (M.S.P.B. No. CB-7521-00-0015-T-1 RADER, Judge. Circuit 2000) (Initial Decision). Sept.15, appeals A. Price Elizabeth the decision Price later filed a motion for Systems of the Merit Protection Board $16,631. conducting After an addendum (Board) denying her motion for attorney motion, proceeding Ms. Price’s Admin Price, Sec. Admin. v. Social istrative Law Hermele awarded Ms. (M.S.P.B. 2003) (Final M.S.P.R. 337 Deci $14,284.50. fees of Price v. ). sion Because the Board properly deter Admin., Soc. Sec. No. CB-7521-00-0015 mined that an of attorney award fees to (M.S.P.B. 2001) (Addendum Nov.7, A-1 Ms. Price is not in the justice, interest of Decision). parties Both petitioned the this court affirms. Board to review the fee award. The Board reversed the Addendum Decision I. because Ms. Price did not show that the an justice” worked as administrative required “interest of a fee award. law judge Security 6-7; with the Social Admin- Final op. at see 5 (SSA). 7703(c) (2000) May (interest istration On a feder- standard). al grand jury indicted Ms. Price on one ;of justice” est standard section II. 587-94, 2 7701(g)(1). 2 M.S.P.R. statute, this court’s review By The found that “the Board is 420. limited. A Board final decision is accorded substantial discretion deter- unless it is: may not be set aside decision mining when an award is warranted.” (1) capricious, an abuse arbitrary or at 591. The Board set forth five ‘Allen discretion, not in accordance or otherwise markers” factors” as “directional for deter- (2) law; procedure obtained without mining when fees is law, rule, regulation having by or required appropriate. Id. at 593. Ms. Price followed; by unsupported sub- been justice” that she meets the “interest of *4 7703(c). § 5 stantial evidence. U.S.C. (“the agen- under Allen factors 1 standard § 7701(g)(1) 5 U.S.C. personnel prae- in a cy engaged ‘prohibited (“the attorney award of fees before governs ”), ‘clearly the ticé’ action was (“the ”) the Board: agency without merit’ com- ‘gross procedural mitted a error’ which Board, or an administrative law [T]he ‘prolonged proceeding’ ‘severely the or employee of the Board judge or other id. This court prejudiced’ employee’’), case, may require a designated to hear arguments in addresses each of Ms. Price’s of rea- by agency involved payment turn. by an attorney fees incurred sonable ... employee ... if the employee First, argues that Board, ad- party and the prevailing [or] in attorney award of fees is the interest of ... determines ministrative law a prohibit because SSA committed is warrant- payment by agency that Ms. Price contends personnel practice. ed justice, including ed in the interest dispute that that SSA’s the Board did prohibited personnel in any ease which prohibited personnel actions constituted engaged by in practice was Contrary to Ms. Price’s asser practice. iii in which the any case tion, found that specifically the Board clearly action was without merit. Judge Streb Chief Board’s “The constraint principal engaged that “did not find [SSA] to determine 7701(g)(1) section discretion Rather, practice. he prohibited personnel arises from

when an award is warranted provide ap found that did [SSA] duty to exercise discretion suspend pellant with fair before necessarily includes the reasonably, which her, violating appellant’s thus stat ing explanation a rational duty to articulate rights under 5 U.S.C. utory procedural Ser., 2 Allen v. Postal each award.” U.S. right process.” and her to due 582, 592, (July 2 M.S.P.R. 420 slip op. (emphasis Final 1980). Moreover, petitioner’s motion for added). to hold: The Board went on an award of fees must be evaluat there is no “Where vantage point original “from the ed underlying ap personnel practice in the Merit presiding official.” Yorkshire v. grant attorney peal, the Board will not (Fed. Bd., 1454, 1458 Sys. Prot. Tellingly, Ms. fees on that basis.” Cir.1984). in her initial theory Price did not raise this fees, raises the petition court must determine whether This relying on Administra justice” by on appeal Price has met the “interest of in Hermele’s tive Law standard for an award Allen, Decision. interpreted the “inter- Addendum the Board by finding which, this one in as Administrative Law to due process, SSA violated acknowledged, Hermele ques- Chief Administrative tion pre-suspension whether a hearing was necessarily found SSA committed a required was “novel” and the suspension (cid:127) practice. prohibited personnel She relies “had some merit and was founded on some 2302(b)(12) (2000), on 5 U.S.C. legal reasonable basis.” Addendum Deci- prohibited personnel practice defines a sion, op., at 4. We therefore do not any taking personnel include action that agree with Ms. Price that the first factor any system “the merit princi- violates requires an award of this ples contained in 2301 of section this title.” case. turn, sys- Section defines merit Ms. Price next challenges principles principle tems to include the that SSA’s actions in sus employees that “[a]ll should receive fair pending her “clearly were not without equitable treatment in all aspects of merit” under the second Allen factor.* As personnel management proper Yorkshire, court explained the sec regard privacy for their and constitutional *5 rather, ond Allen factor punitive; “is not it 2301(b)(2) (2000). rights.” 5 U.S.C. is an effort to minimize the burden an Thus, she that the denial of a due unsubstantiated places accusation in process hearing necessarily constitutes a (cit employees.” nocent 746 F.2d at 1457 prohibited personnel practice. She further ing Sterner v. Dep’t Army, 711 F.2d points out that the Board’s fee (Fed.Cir.1983)). Addressing statute, 7701(g)(1), specifically 5 U.S.C. factor, this Administrative Law Judge refers to a case in which Hermele properly found that considering personnel practice was committed and thus indictment, Ms. Price’s criminal conviction calls for an award subsequent disbarment, If accepted, argument Ms. Price’s would seriously “cannot be considered ‘substan any mean that denial of a due process tially charges against innocent’ of the her.” give rise to an automatic would Decision, Addendum slip op. at 4. award,

right fee an contrary highly would be to the discretion- Depart cites Wilson v. ary fact-specific nature of the Board’s Navy, (1991), ment 51 M.S.P.R. 146 if fee determinations. Even Ms. the proposition that pro SSA’s failure to a due process is violation vide adverse action protections mandates necessarily prohibited person- results of fees. readily Wilson is distin award do practice, agree guished nel we from Ms. Price’s case. In Wilson deprived of its is discretion over the Board found that an fees was any fees in case which a due within the interest of process hearing is improperly “clearly denied. without merit” rubric because the That particularly true in a agency’s case as failure to afford petitioner such * Although cross-appeal Although Ms. Price failed to the Board did not address Ms. Board, arguments to the this court's case al regarding Price's the second Allen factor, argue presented lows Ms. Price to all issues this court treats the issue it as if during See, proceeding. Bosley the addendum See been affirmed without Board comment. Bd., FERC, Sys. e.g., (Fed. v. Merit Prot. 162 F.3d James v. (Fed.Cir.1998) (allowing Cir.1985) petitioner argue (treating an unmodified decision of all issues raised in the initial presiding re official as the final decision of gardless Board). appealed Board). of whether to the petitioner analyzing was so error has on the when protections action adverse position whether an error rises to the that the lacking in merit “gross procedural on level of a error.” appeal.” sustained not have been “could contrast, Administrative at 154. Id. supports Substantial evidence im- found that “the Judge Hermele Law procedural that SSA’s er- merit and was had some proper suspension “gross was not a error.” procedural ror legal basis.” on some reasonable founded Decision, op. at 7. Final SSA removed at 4. slip op. SSA’s Addendum merely paid Price from status for Ms. at least a chance of position had legal three months. She recovered that lost and was not being appeal sustained on interest, pay, plus through petition agen- as was the without merit completely Thus, proce- filed with the Board. SSA’s evi- in Wilson. Substantial cy’s position error “no dural under Administrative supports dence than any- more burden given on this issue Hermele’s granted one who seeks and is relief from reliance on the “novel issue and [SSA’s] evidence, the Board.” Id. Substantial OPM,” that Ms. Price which advised SSA therefore, supports “ready, willing longer no considered was procedural error the SSA’s and able” work. “gross.” , argument final is that Ms. Price’s III. “gross procedural error” committed support’s Allen factor. Under this Because evidence under the fourth substantial *6 factor, findings if the that Ms. Price not attorney fees are warranted the is attorney entitled to an award of fees in the “gross procedural a error” agency commits first, second proceeding” the or “se interest “prolonged Allen, factors, court affirms employee. or fourth Allen verely prejudiced” the attorney 420. Ms. Price’s the Board’s denial of M.S.P.R. essentially argument under this factor is COSTS the

an invitation for this court to overrule Board to existing requiring case law the bear its own costs. party Each shall weigh gravity procedural both the AFFIRMED peti on the error and the burden (requiring id. the Board tioner. See FRIEDMAN, Judge, Senior Circuit the error and the weigh both dissenting. peti and burden inflicted on the prejudice the I vacate and remand for would tioner); Logistics Agency, Swanson v. Def. the prohib- Board to consider merits the 115, 118 (same); accord M.S.P.R. personnel practice ited issue. FERC, 127, 132 Woodall v. 33 M.S.P.R. decision, (1987). In the first Chief Administra- that the Board did not find that the agency’s procedural the tive Law weigh should not prohibited per- agency had committed prejudice error with the and burden one of the touch- only practice, which is petitioner, on the but should consider sonnel under the Board’s Allen decision error. This court declines stones the party determining prevailing whether a to rewrite the law for Ms. Price’s invitation decided attorney fees. He “gross procedural the error” Al is entitled governing case, ruling that only the merits of Price’s The Board has broad discre len factor. her improperly suspended procedural the effect a tion consider hearing and finding good by judge without administrative law in the first status, placing her AWOL proceeding cause should preclude different ad- contrary to 5 7521. There judge ministrative law from making such a no reason for him to address the finding the second proceeding. The two Although fee issue. Board denied a Board cases the support Board cites to its decision, petition to review his if the Board ruling situation, do not the present address decision, rule, had reversed that there would merely apply the settled have been no occasion to decide the attor- where finding there is no of a prohibited ney question. fee personnel practice, the Board will not fees. Since there was no review, After the Board denied prohibited practice in- personnel sought attorney fees. Administrative Law volved in proceeding, the first it is difficult granted Judge Hermele why to understand the first administrative justice. as in the interest of He held that judge’s failure to make a “by providing Appellant with (which dictum) that point would have been opportunity hearing for a fair before sus- preclude should a different administrative months, pending pay her without for three judge from finding prohibited personnel Agency clearly engaged ‘prohibit- in a practice in subsequent ed personnel practice,’ which violated her which that issue arose. Although the process.” to due Board has a strong interest in ensuring award, reversing fee that a second administrative law judge accepted agency’s argument guess does not second rulings reverse judge “the administrative law erred in of the first administrative law agency] engaged [the case, in the same this is not that prohibited personnel practice by pro- situation. viding appellant an opportunity Although the Board has broad discretion for a suspending before her.” The in how it proceedings conducts its and in Board stated: prescribing procedural it rules will fol- Where there no finding *7 low, the ruling that Administrative Law personnel practice underlying ap in an precluded Hermele was from find- peal, grant the Board will not ing that agency a prohibited committed fees on that v. Depart basis. See Vann personnel practice because of a failure of Navy, ment 38 M.S.P.R. Chief Administrative (1988) (where n. 5 no underlying there is is, so find in my the earlier agency engaged view, unpersuasive. prohibited personnel practice, the Board rely will not category this Allen The determination whether there has grant fees); Ryan see also v. prohibited personnel been a practice is for Administration, Veterans 33 M.S.P.R. the Board to make the first instance. I (1987) (accord). Therefore, the would vacate the Board’s holding that it administrative in the open was not portion by basing of the case erred Hermele to make such a finding and re- an attorney fees award mand to the Board to consider the merits a prohibited committed of that issue. personnel practice.

The ruling unconvincing.

The gave why no reason the lack of

a finding of a prohibited personnel practice