Opinion

Cecil T Wells v. Office of Personnel Management

Court: Merit Systems Protection Board
Filed: Jul 22, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 30.3%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

CECIL WELLS, DOCKET NUMBER

Appellant, CH-0841-18-0573-A-1

OFFICE OF PERSONNEL DATE: July 22, 2024

MANAGEMENT,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Cecil Wells , Columbus, Ohio, pro se.

Appeals Officer , Washington, D.C., for the agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

Henry J. Kerner, Member*

*Member Kerner did not participate in the adjudication of this appeal.

FINAL ORDER

The appellant has filed a petition for review of the addendum initial

decision, which denied his motion for attorney fees as untimely filed. Generally,

we grant petitions such as this one only in the following circumstances: the

initial decision contains erroneous findings of material fact; the initial decision is

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).

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. Therefore, we DENY the petition

for review. Except as expressly MODIFIED to clarify the length of the filing

delay, we AFFIRM the initial decision.

BACKGROUND

The appellant previously filed a Board appeal, challenging a

reconsideration decision of the Office of Personnel Management (OPM)

concerning the recalculation of his Federal Employees’ Retirement System

(FERS) annuity, which the Board dismissed for lack of jurisdiction after OPM

rescinded the reconsideration decision. Wells v. Office of Personnel

Management, Docket No. CH-0841-18-0573-I-1, Initial Decision (ID) (Feb. 22,

2019). The initial decision became the Board’s final decision on March 29, 2019.

Id. at 3.

On March 2, 2010, more than 1 year after the issuance of the initial

decision, the appellant filed a motion for attorney fees. Wells v. Office of

Personnel Management, Docket No. CH-0841-18-0573-A-1, Attorney Fee File

(AFF), Tab 1. He maintained that OPM had not responded to his latest

correspondence concerning the agency’s denial of his request for reimbursement

of legal fees and seemingly argued that he was entitled to attorney fees because

the matter concerning his annuity recalculation had been settled. Id. at 4-5. The

appellant submitted a letter from OPM dated June 26, 2019, in which an agency

representative stated that the appellant was not the prevailing party in his prior

appeal, which was dismissed following OPM’s rescission of its reconsideration

decision, and that he was not statutorily entitled to an award of attorney fees. Id.

at 7. He also submitted a letter dated August 28, 2019, in which OPM noted that

the appellant had accepted its May 23, 2019 recalculation of his FERS annuity

and denied his request for reimbursement of his attorney fees incurred concerning

the recalculation of his annuity. Id. at 6. Finally, the appellant submitted a

September 2018 fee agreement with a law firm, which noted that the appellant

had paid an initial retainer of $3,600. Id. at 8.

The administrative judge issued an order to show cause, informing the

appellant that his motion for attorney fees appeared to be untimely filed and that

he had the burden of proof on the issue of timeliness. AFF, Tab 3 at 1.

The administrative judge ordered the appellant to file evidence and argument that

his motion was timely filed or that good cause existed for the delay. Id. at 1-2.

In response, the appellant submitted into the record a May 29, 2019 email

addressed to an OPM representative and a paralegal at the Board setting forth his

belief that he was entitled to reimbursement of legal fees and attaching a copy of

the fee agreement with his attorney. AFF, Tab 4 at 4-7.

The administrative judge issued an initial decision denying the appellant’s

motion for attorney’s fees as untimely filed. AFF, Tab 6, Addendum Initial

Decision (AID) at 1, 5. He found that the appellant filed his motion for attorney

fees 314 days after the 60-day period set forth in the Board’s regulations had

expired. AID at 4. The administrative judge found that the appellant’s response

to the timeliness order contained no argument about why the Board should excuse

his filing delay. Id. Moreover, he found that the appellant’s May 29, 2019 email

in which he copied a Board paralegal could not qualify as a motion for attorney

fees and, in any event, would have been untimely by more than 30 days. Id.

Therefore, the administrative judge found that the appellant had not shown that

his motion was timely filed or established good cause for his delay. AID at 4-5.

The appellant has filed a petition for review arguing that the Board should

award him legal fees as a matter of equity and raising a new argument regarding

the initial decision in his prior appeal. Petition for Review (PFR) File, Tab 1. 2

DISCUSSION OF ARGUMENTS ON REVIEW

Under 5 C.F.R. § 1201.203(d), an attorney fees petition must be filed

within 60 days after the Board issues a final decision on the merits. See Mynard

v. Office Personnel Management, 108 M.S.P.R. 58, ¶ 7 (2008). The Board may

waive the deadline if the appellant establishes good cause for the filing delay.

See 5 C.F.R. § 1201.12. To establish good cause, a party must show that he

exercised due diligence or ordinary prudence under the particular circumstances

of the case. See Mynard, 108 M.S.P.R. 58, ¶ 7; 5 C.F.R. § 1201.12.

On petition for review, the appellant does not challenge the administrative

judge’s findings that he did not show that his motion for attorney fees was timely

filed or establish good cause for his filing delay. PFR File, Tab 1 at 4-7;

AID at 4-5. Instead, he argues for the first time on review that, although his

motion for attorney fees may have technically been untimely, his documented

legal fees were directly related to his prior appeal and, therefore, the Board

should award him attorney fees as a matter of judicial equity. PFR File, Tab 1

at 4. Moreover, he maintains for the first time on review that the initial decision

in his prior appeal granted him legal fees and encouraged the parties to negotiate

costs, but that OPM did not advise him of any obligations or responsibilities

regarding attorney fees at that time. Id.; AFF, Tab 1 at 4-8, Tab 4 at 4-7.

The Board will not consider an argument raised for the first time in a

petition for review absent a showing that it is based on new and material evidence

not previously available despite the party’s due diligence. See Banks v.

The agency has not filed a designation of representative or any other pleading in the

present appeal.

Department of the Air Force, 4 M.S.P.R. 268, 271 (1980). The appellant has

made no such showing regarding his arguments on review and offers no

explanation why he did not make these arguments during the pendency of his

appeal or address his filing delay in response to the timeliness order. PFR File,

Tab 1 at 4-7. In any event, contrary to the appellant’s assertion on review, the

initial decision dismissing the appellant’s prior Board appeal for lack of

jurisdiction did not grant him legal fees or address any negotiations of costs

between the parties. Id. at 7; ID at 1-10. Moreover, the appellant’s argument that

granting him attorney fees would be in the interest of judicial equity does not

demonstrate that he exercised due diligence or ordinary prudence under the

circumstances of his appeal. See Mynard, 108 M.S.P.R. 58, ¶ 7; 5 C.F.R.

§ 1201.12.

Here, the administrative judge found that the initial decision in the

appellant’s Board appeal was issued on February 22, 2019, and that the motion

for attorney fees was therefore due no later than April 23, 2019. AID at 4.

Because the appellant did not file his motion until March 2, 2010,

the administrative judge found his appeal untimely filed by 314 days. Id.

However, the administrative judge erroneously calculated the filing date from the

date on which the initial decision was issued and not the date on which it became

the Board’s final decision, March 29, 2019. Id.; ID at 3; see 5 C.F.R.

§ 1201.203(d). Therefore, the filing deadline for the present appeal was

May 28, 2019, and the appeal was untimely filed by 279 days. Regardless, we

discern no basis to disturb the administrative judge’s determination that the

appellant’s motion for attorney fees was untimely filed beyond the 60-day

regulatory deadline and that the appellant failed to establish good cause for his

delay.

Accordingly, we deny the petition for review and affirm as modified the

addendum initial decision.

NOTICE OF APPEAL RIGHTS 3

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 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:

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.

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

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

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. 4 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