Kean v. Stone

Opinion OF THE COURT I. 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.