David Neal v. Office of Personnel Management ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DAVID L. NEAL, DOCKET NUMBER
Appellant, DE-0845-14-0222-A-1
v.
OFFICE OF PERSONNEL DATE: February 15, 2024
MANAGEMENT,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
David J. Holdsworth , Esquire, Sandy, Utah, for the appellant.
Cynthia Reinhold , and Tanisha Elliott Evans , Washington, D.C., for the
agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
The appellant has filed a petition for review of the addendum initial
decision, which denied his motion for attorney fees. On petition for review, the
appellant reargues that he is a prevailing party and that he is entitled to attorneys’
fees. Generally, we grant petitions such as this one only in the following
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
circumstances: 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 administrative
judge’s rulings 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. 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, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
To establish entitlement to an award of attorney fees under 5 U.S.C.
§ 7701(g)(1), an appellant must show that: (1) he was the prevailing party; (2) he
incurred attorney fees pursuant to an existing attorney-client relationship; (3) an
award of fees is warranted in the interest of justice; and (4) the amount of fees
claimed is reasonable. Driscoll v. U.S. Postal Service, 116 M.S.P.R. 662, ¶ 7
(2011); Baldwin v. Department of Veterans Affairs , 115 M.S.P.R. 413, ¶ 11
(2010). To be considered a “prevailing party” under this standard, an appellant
must show that he obtained a material alteration of the legal relationship between
the parties through an enforceable final judgment on the merits or a settlement
agreement entered into the record for the purposes of enforcement by the Board.
Sanchez v. Department of Homeland Security, 116 M.S.P.R. 183, ¶ 10 (2010). In
attorney fee motions arising under 5 U.S.C. § 7701(g)(1), the Board has expressly
adopted the standard set forth by the U.S. Supreme Court that an appellant is
considered to have prevailed in a case and to be entitled to attorney fees only if
he obtains an “enforceable order” resulting in a “material alteration of the legal
relationship of the parties.” Baldwin, 115 M.S.P.R. 413, ¶ 11. An appellant is, or
is not, a prevailing party in the case as a whole, and whether he may be deemed a
3
prevailing party depends on the relief ordered in the Board’s final decision.
Driscoll, 116 M.S.P.R. 662, ¶ 9.
Regarding the appellant’s argument that he is a prevailing party and is
entitled to attorneys’ fees because the Office of Personnel Management (OPM)
took a number of voluntary actions as a result of his attorney’s representation,
including waiving collection of a $65,920 disability annuity benefit overpayment,
in Buckhannon Board and Care Home, Inc. v. West Virginia Department of
Health and Human Resources, 532 U.S. 598 (2001), the U.S. Supreme Court
considered whether the term “prevailing party,” as used in fee-shifting statutes,
includes a party that has failed to secure a judgment on the merits or a
court-ordered consent decree but has nonetheless achieved the desired result
because the lawsuit brought about a voluntary change in the defendant’s conduct.
The Court determined that it does not, specifically rejecting the so-called
“catalyst theory” as a permissible basis for an award of attorney fees, whereby a
party could be found to have prevailed based on the opposing party’s voluntary
change of conduct after the filing of a lawsuit. Id. at 605. The Board has
specifically adopted the standard set forth in Buckhannon for purposes of the
attorney fee provisions of 5 U.S.C. § 7701(g)(1). Sacco v. Department of Justice,
90 M.S.P.R. 37, ¶¶ 9-10 (2001).
As relevant here, the Board has not issued a final decision on the merits
that awards the appellant any relief or that materially alters the legal relationship
between the parties. Baldwin, 115 M.S.P.R. 413, ¶ 11. Instead, the final decision
in the underlying Board appeal denied the petition for review and affirmed the
initial decision affirming OPM’s reconsideration decision. Neal v. Office of
Personnel Management, MSPB Docket No. DE-0845-14-0222-I-2, Final Order
(July 20, 2022). Consequently, we agree with the administrative judge’s
conclusion that the appellant is not a prevailing party and thus is not entitled to
an award of attorneys’ fees. Therefore, we DENY the petition for review and
4
AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R.
§ 1201.113(b).
NOTICE OF APPEAL RIGHTS 2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
2
Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
5
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision—including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board, 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. 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
6
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC 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 a request for review to the EEOC 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, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
7
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction. 3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
3
The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
8
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.