shaw bransford & roth case law update

Board Rules No Immediate Attorney Fees Award after Agreeing to Reopen Prior Opinion

In 2012, the Merit Systems Protection Board joined two adverse action appeals concerning an employee’s placement on enforced leave and sustained an MSPB administrative judge’s reversal of the enforced leave periods.

The matter was remanded to the administrative judge for “further adjudication of the affirmative defenses raised in both appeals.” After the full Board’s decision, the employee filed a petition for enforcement, claiming that the agency had failed to pay her back pay for the periods she was on now-reversed enforced leave. The administrative judge denied the petition, finding that the agency was at that point in compliance with the Board’s decision. According to the administrative judge, even though the enforced leave had been reversed and the matter remanded to the administrative judge for adjudication of the employee’s affirmative defenses, the enforcement proceeding was premature because the Board’s decision did not specifically order the agency to issue any back pay. The employee petitioned for review of the administrative judge’s initial compliance decision, and alternatively requested that the Board reopen its prior decision and specifically order “immediate relief in the form of the 20 weeks back pay.” That petition was denied, but the Board did indeed reopen the prior Opinion and Order and modified it by ordering the agency to pay the employee the correct amount of back pay. Subsequently, the employee filed a motion seeking attorney fees for the compliance proceeding as a “prevailing party.” The administrative judge denied the motion for attorney’s fees, finding that the employee was not a prevailing party in the compliance proceedings, and therefore ineligible. The employee petitioned the full Board for review of the administrative judge’s initial decision. On October 7, 2015, the Merit Systems Protection Board denied the employee’s petition for review and affirmed the administrative judge’s addendum initial decision.

The Board traced the history of attorney fee-shifting under the Civil Service Reform Act of 1978, in which Congress “specifically authorized the recovery of reasonable attorney fees for employees who are prevailing parties in Board proceedings.” Citing the U.S. Supreme Court’s holding in Buckhannon Board & Care Home, Inc. v. West Virginia Department of Health and Human Resources, 532 U.S. 598 (2001) that a party must have “obtained an enforceable judgment” resulting in a “material alteration of the legal relationship” between the parties in order to qualify as a “prevailing party,” the Board explained that appellants who have shown that they have received an enforceable final judgment on the merits or a settlement agreement that is entered into the record for enforcement purposes have been considered prevailing parties by the Board.

Discussing the applicability of Buckhannon to eligibility for attorney fee awards as a prevailing party in “a compliance or enforcement proceeding before the Board,” the Board cited Mynard v. Office of Personnel Management, 108 M.S.P.R. 58 (2008), a case in which the Board found an employee eligible as a prevailing party without an enforceable judgment on the merits of the compliance proceeding because the employee had achieved relief through “sufficient Board imprimatur,” or approval. In Mynard, for example, the Board did not find the Agency in noncompliance, but it did oversee the parties’ compliance efforts.

However, the Board distinguished Mynard from this case, stating that because the Board denied the petition for enforcement on the merits (because the original Opinion and Order never ordered back pay, the agency did not fail to honor the order), the employee had not achieved “any degree of relief that could make her a prevailing party for purposes of recovering the attorney fees she incurred during the enforcement proceeding. The Board noted that the employee had “yet to petition for an award of fees incurred in connection with the merits phase of her joined appeals,” and that it was only addressing the petition for an award of fees stemming from the petition for enforcement and compliance proceeding. In essence, because the Board found that the compliance proceeding was resolved in the Agency’s favor (in that the Agency had not failed to comply with a non-existent order for back pay), the employee was not eligible for attorney fees at this stage of the matter’s litigation.

But the Board also stated that the employee was a prevailing party in connection “with her success in persuading the Board to exercise its discretion under 5 C.F.R. § 1201.118 to reopen its prior Opinion and Order and obtain further relief in her underlying appeals.” The Board held that because “a request to reopen is part of the prior appeal subject to the request, and not an independent appeal, should the appellant establish an entitlement to an award of attorney fees in the merits phase of her joined appeals, she would also establish an entitlement to an award of attorney fees incurred in connection with her efforts in reopening and obtaining further relief as to those appeals.”

For the above stated reasons, the Board denied the employee’s petition for review and affirmed the administrative judge’s addendum initial decision.

Read the full case: John Doe v. Pension Benefit Guaranty Corporation


This case law update was written by Conor D. Dirks, associate attorney, Shaw Bransford & Roth, PC.

For thirty years, Shaw Bransford & Roth P.C. has provided superior representation on a wide range of federal employment law issues, from representing federal employees nationwide in administrative investigations, disciplinary and performance actions, and Bivens lawsuits, to handling security clearance adjudications and employment discrimination cases.

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