Opinion

David Neal v. Office of Personnel Management

Court: Merit Systems Protection Board
Filed: Feb 15, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 15.3%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

DAVID L. NEAL, DOCKET NUMBER

Appellant, DE-0845-14-0222-A-1

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THIS FINAL ORDER IS NONPRECEDENTIAL 1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

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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

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

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:

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. 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