Opinion

Derrick Smith v. Office of Personnel Management

Court: Merit Systems Protection Board
Filed: Apr 27, 2026
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 40.3%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

DERRICK E. SMITH, DOCKET NUMBER

Appellant, SF-0842-24-0330-A-1

OFFICE OF PERSONNEL DATE: April 27, 2026

MANAGEMENT,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Daniel K.R. Maharaj , Esquire, Tampa, Florida, for the appellant.

Jo Antonette Bell , Carla Robinson , and Eva Ukkola , Washington, D.C.,

for the agency.

BEFORE

Henry J. Kerner, Vice Chairman

James J. Woodruff II, Member

FINAL ORDER

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

decision, which denied his petition for attorney fees. On petition for review, the

appellant reasserts that fees are warranted in the interest of justice. Generally, we

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

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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. Therefore, we DENY the petition for review and

AFFIRM the addendum initial decision, which is now the Board’s final decision.

5 C.F.R. § 1201.113(b).

The appellant’s petition for attorney fees followed an initial decision that

reversed a reconsideration decision by the Office of Personnel Management

(OPM) finding that the appellant was not entitled to a redetermined annuity at age

62 under the Federal Employees Retirement System (FERS) and remanding the

matter to OPM for the recalculation of a redetermined annuity. Smith v. Office of

Personnel Management, MSPB Docket No. SF-0842-24-0330-I-1, Initial Appeal

File (IAF), Tab 21, Initial Decision (ID). That initial decision, which became the

Board’s final decision, found that OPM’s statutory interpretation of 5 U.S.C.

§ 8452 was incorrect and thus its position that the appellant was not entitled to a

redetermined annuity was incorrect. ID.

In his petition for attorney fees, the appellant is required to establish,

among other things, that an award of fees is warranted in the interest of justice.

See 5 U.S.C. § 7701(g)(1); Morley v. Department of Veterans Affairs, 2024 MSPB

17, ¶ 5. In Allen v. U.S. Postal Service, 2 M.S.P.R. 420, 434-35 (1980), the

Board identified the following five non-exclusive categories for determining

whether an award of attorney fees may be warranted in the interest of justice:

(1) the agency engaged in a prohibited personnel practice; (2) the agency action

was clearly without merit or wholly unfounded, or the employee was substantially

innocent of the charges; (3) the agency initiated the action in bad faith; (4) the

agency committed a gross procedural error; or (5) the agency knew or should

have known that it would not prevail on the merits. In the addendum initial

decision, the administrative judge found that attorney fees are not warranted

under Allen category (2) or (5), because OPM’s position was based on a

reasonable, albeit incorrect, interpretation of the statute and was not conclusory.

Smith v. Office of Personnel Management, MSPB Docket No. SF-0842-24-0330-

A-1, Attorney Fee File (AFF), Tab 4, Addendum Initial Decision (AID) at 8. The

administrative judge further found that none of the other Allen categories are

applicable. AID at 5, 9.

We find no error in the addendum initial decision. On review, the

appellant cites Davis v. Office of Personnel Management, 64 M.S.P.R. 6, 11-12

(1994), for the proposition that OPM’s misinterpretation of the retirement statute

entitles him to attorney fees under Allen category (5). Petition for Review (PFR)

File, Tab 1 at 13. We are unpersuaded. In Davis, the Board found that OPM

should have known that it would not prevail on the merits of the case because, as

was noted in the initial decision on the merits, OPM failed to provide a

reasonable and supportable explanation for its disallowance of the appellant’s

disability retirement application. 64 M.S.P.R. at 11-12. Here, the administrative

judge did not find OPM’s position to be unsupported; he found that it was based

on a reasonable, albeit incorrect, interpretation of the statute and was not

conclusory. ID at 14-21; AID at 8. Accordingly, the administrative judge

correctly found that this was not a case in which OPM knew or should have

known that it would not prevail on the merits. 2 AID at 9.

In addition, the appellant reargues that attorney fees are warranted under

Allen category (3), which pertains to an agency’s initiation of an action in bad

faith, including where the agency’s action was brought to harass the employee or

to exert improper pressure on the employee to act in certain ways, and Allen

category (4), which pertains to a gross procedural error by the agency which

prolonged the proceeding or severely prejudiced the employee. IAF, Tab 1 at 18;

PFR File, Tab 1 at 17; see Allen, 2 M.S.P.R. at 434-35. As the administrative

judge correctly noted in the addendum initial decision, the Board has held that

these categories are less relevant in disability retirement appeals, which are

initiated by the employee and not the agency. Kent v. Office of Personnel

Management, 33 M.S.P.R. 361, 366-67 (1987); AID at 5. Moreover, considering

the appellant’s arguments, we find that these categories are not satisfied. AID

at 9. While the appellant generally takes issue with the fact that OPM provided

him with inconsistent guidance and delayed in the processing of his request for a

redetermined annuity, we find no indication that it acted in bad faith, nor do we

find that any delay constituted a gross procedural error. PFR File, Tab 1 at 8-9,

17; see, e.g., IAF, Tab 7 at 29-30, 43-44, 50, Tab 10 at 5-7, 25-28, 45-57. Thus,

the appellant has not proven that fees are warranted in the interest of justice under

any of the Allen categories, and we affirm the addendum initial decision.

The Board has found that, in the limited number of retirement attorney fee cases where

no facts are in dispute, the dispositive issue is legal, and OPM is unable to be

persuasive about its statutory application, as is the case here, only Allen category (2) is

applicable. Shirley v. Office of Personnel Management, 36 M.S.P.R. 179, 181-82

(1988); see also Babakitis v. Office of Personnel Management, 60 M.S.P.R. 35, 37

(1993); Obremski v. Office of Personnel Management, 31 M.S.P.R. 554, 556 (1986); but

see Davis, 64 M.S.P.R. at 10-13 (finding that category 5 also applies in this situation).

In any event, we agree with the administrative judge that neither category (2) nor (5) is

satisfied.

NOTICE OF APPEAL RIGHTS 3

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).

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.

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:

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 following