                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     THOMAS M. DEESE,                                DOCKET NUMBER
                  Appellant,                         AT-0831-10-0065-A-2

                  v.

     OFFICE OF PERSONNEL                             DATE: November 21, 2014
       MANAGEMENT,
                   Agency.



                THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Patrick J. Deese, Esquire, Melbourne, Florida, for the appellant.

           Delores A. Saunders, Washington, D.C., for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                              Anne M. Wagner, Vice Chairman
                                 Mark A. Robbins, Member


                                       FINAL ORDER

¶1         The appellant has filed a petition for review of the initial decision, which
     denied his motion for attorney fees. Generally, we grant petitions such as this
     one only when: the initial decision contains erroneous findings of material fact;
     the initial decision is based on an erroneous interpretation of statute or regulation

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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     or the erroneous application of the law to the facts of the case; the 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. See 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, and based on the following points and authorities, 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 initial decision, which is now the Board’s final decision.              5 C.F.R.
     § 1201.113(b).
¶2         The appellant appealed the Office of Personnel Management’s (OPM)
     reconsideration decision to deny his application for a child’s survivor annuity.
     MSPB Docket No. AT-0831-10-0065-I-1, Initial Appeal File (IAF), Tab 1. After
     an administrative judge affirmed OPM’s denial, the Board granted the appellant’s
     petition for review, vacated the initial decision, and remanded the matter to OPM
     for further development of the record and the issuance of a new reconsideration
     decision. See Deese v. Office of Personnel Management, 116 M.S.P.R. 166, ¶ 1
     (2011). The Board concluded that OPM erred when it issued its decision based
     on whether the appellant was, rather than is, incapable of self-support because of
     a mental or physical disability incurred before age 18. Id., ¶¶ 8-9.
¶3         In May 2011, the appellant filed a motion for attorney fees. MSPB Docket
     No. AT-0831-10-0065-A-1, Attorney Fee File (AFF-I), Tab 1. The administrative
     judge denied the motion, finding that, even if the Board’s remand of the matter to
     OPM was sufficient to qualify the appellant as the prevailing party, attorney fees
     were not warranted in the interest of justice. AFF-I, Tab 9, Initial Decision (ID-I)
     at 3-8. The appellant did not file a petition for review.
                                                                                              3

¶4         More than 2 years later, in October 2013, the appellant submitted a “motion
     for partial summary judgment” that was treated as a petition for enforcement. 2
     MSPB Docket No. AT-0831-10-0065-C-1, Compliance File (CF), Tab 1.                     The
     administrative judge issued an order, directing the appellant to show cause why
     his filing should not be dismissed for failure to comply with the Board’s
     regulations regarding the contents of a petition for enforcement. CF, Tab 3 at 2.
     Because the appellant did not respond to the show cause order, the administrative
     judge dismissed the petition for enforcement.          CF, Tab 7, Compliance Initial
     Decision (CID) at 1-2. The appellant did not file a petition for review.
¶5         In January 2014, the appellant filed a second motion for attorney fees.
     MSPB Docket No. AT-0831-10-0065-A-2, Attorney Fee File (AFF-II), Tab 1.
     The administrative judge issued a show cause order, directing the appellant to
     submit argument and evidence to demonstrate why his second motion for attorney
     fees should not be barred under the doctrine of res judicata. AFF-II, Tab 5 at 1-2.
     The appellant responded. AFF-II, Tab 6. The administrative judge denied the
     appellant’s second motion for attorney fees.          AFF-II, Tab 7, Initial Decision
     (ID-II). The appellant has filed a petition for review with an argument identical
     to that which he provided below. Compare Petition for Review (PFR) File, Tab 1
     at 10-19, with AFF-II, Tab 6 at 1-10. The agency has not filed a response.
     The appellant’s second motion for attorney fees for work performed in the
     underlying annuity appeal is barred by res judicata.
¶6         The appellant argues that res judicata is not applicable to his second motion
     for attorney fees because his first request was “void, as the case had been
     remanded to the Agency and therefore jurisdiction was lacking.” PFR File, Tab 1


     2
       OPM responded to the motion by indicating that it had begun to comply with the
     Board’s order in the underlying annuity appeal, but inadvertently routed the appellant’s
     file for storage, rather than processing, resulting in significant delay. CF, Tab 5 at 4-5.
     Therefore, OPM submitted evidence and argument that it had finally complied with the
     Board’s March 2011 order in December 2013. CF, Tab 6 at 4-6.
                                                                                       4

     at 14. He goes on to argue that his first motion for attorney fees was premature,
     but done to protect his position. Id. at 15-16. We disagree.
¶7        Res judicata, or claim preclusion, prevents parties from litigating claims
     that were brought or could have been brought in a prior action.          Carson v.
     Department of Energy, 398 F.3d 1369, 1375 (Fed. Cir. 2005). It applies if the:
     (1) prior decision was rendered by a forum with competent jurisdiction; (2) prior
     decision was a final decision on the merits; and (3) same cause of action and
     same parties or their privies were involved in both cases. Id.
¶8        In arguing against the application of res judicata, the appellant seems to
     erroneously conflate the Board’s jurisdiction over the underlying annuity appeal
     with its authority to consider his first motion for attorney fees. See PFR File,
     Tab 1 at 14-16.     Under 5 C.F.R. § 831.110, the Board has no jurisdiction to
     decide an issue without a final decision from OPM.          Salarzon v. Office of
     Personnel Management, 44 M.S.P.R. 588, 593 (1990), aff’d, 925 F.2d 1479 (Fed.
     Cir. 1991) (Table). Therefore, because OPM used the wrong legal standard in the
     underlying annuity appeal, the Board lacked jurisdiction to resolve the remaining
     annuity issues in the first instance. Deese, 116 M.S.P.R. 166, ¶¶ 9-10. However,
     the appellant has failed to cite any authority for the proposition that this somehow
     divested the Board of jurisdiction regarding his first motion for attorney fees, and
     we are aware of none.
¶9        The Board’s authority to award attorney fees is not unlimited.             E.g.
     Coradeschi v. Department of Homeland Security, 109 M.S.P.R. 591, ¶ 8 (2008)
     (the Board lacks the authority to award attorney fees incurred in connection with
     an appeal of a Board decision to the Federal Circuit), aff’d, 326 F. App’x 566
     (Fed. Cir. 2009).    However, pursuant to 5 U.S.C. § 7701(g), an appellant is
     entitled to an award of attorney fees if he shows that an attorney-client
     relationship existed pursuant to which counsel rendered legal services on the
     appellant’s behalf in connection with a Board proceeding; the appellant was the
     prevailing party; an award of attorney fees is warranted in the interest of justice;
                                                                                            5

      and the fees requested are reasonable.         See Holmes v. Office of Personnel
      Management, 99 M.S.P.R. 330, ¶ 6 (2005).
¶10         Although the administrative judge found that attorney fees were not
      warranted in the interest of justice when he considered the appellant’s first
      motion for fees, he did not rule that the Board lacked jurisdiction to consider the
      motion.   See ID-I at 3-8.     That decision became final on November 1, 2011,
      because the appellant did not file a petition for review, see ID-I at 8, and the
      appellant has failed to show why that decision should not preclude him from
      bringing the same claim, against the same party, a second time. Accordingly, we
      affirm the administrative judge’s finding that the second motion for attorney fees,
      for work performed in the underlying annuity appeal, is barred by res judicata. 3
      See ID-II at 3.
      The appellant was not entitled to attorney fees in conjunction with his compliance
      petition.
¶11         The administrative judge found that the appellant was not entitled to
      attorney fees 4 for the work performed in his compliance appeal because he was
      not a prevailing party. ID-II at 4. We agree.

      3
        The appellant asserted that the Equal Access to Justice Act (EAJA) was intended to
      supplement the Board’s authority to award attorney fees under 5 U.S.C. § 7701.
      AFF-II, Tab 1 at 3, Tab 6 at 8; PFR File, Tab 1 at 17. To the extent that this argument
      was intended to bolster his claim for attorney fees under 5 U.S.C. § 7701 for the
      underlying annuity appeal, the argument is unavailing because res judicata applies. To
      the extent that the appellant’s argument can be construed as an assertion that he is
      entitled to EAJA fees for any portion of his case, the administrative judge properly
      found that the EAJA does not apply. See ID-II at 3, n.2. While the Board has
      recognized a limited exception in cases involving actions against administrative law
      judges, see National Labor Relations Board v. Boyce, 51 M.S.P.R. 295, 299-300 (1991),
      the Board has otherwise held that the EAJA does not provide authority for an award of
      attorney fees or costs by the Board, Chin v. Department of the Treasury, 55 M.S.P.R.
      84, 85-86 (1992).
      4
        We note that although the second motion for attorney fees indicated that an accounting
      for approximately 175 hours in attorney time would be provided within 30 days, no
      such accounting was ever submitted to the record. See AFF-II, Tab 1 at 3; see generally
      5 C.F.R. § 1201.203(a)(1) (a motion for attorney fees must include accurate and current
      time records). Therefore, the record only contains an accounting for the $3,498.77 in
                                                                                        6

¶12         The determination of attorney fees regarding an initial cause of action does
      not foreclose consideration of subsequent fee petitions based upon compliance
      efforts. Arthur v. Department of Army, 26 M.S.P.R. 341, 342 (1985). However,
      as detailed above, an appellant seeking attorney fees must show that an
      attorney-client relationship existed pursuant to which counsel rendered legal
      services on the appellant’s behalf in connection with a Board proceeding; the
      appellant was the prevailing party; an award of attorney fees is warranted in the
      interest   of   justice;     and   the   fees   requested   are   reasonable.   See
      Holmes, 99 M.S.P.R. 330, ¶ 6.
¶13         In Mynard v. Office of Personnel Management, 108 M.S.P.R. 58, ¶ 17
      (2008), the Board held that oversight of compliance efforts provides the petition
      for enforcement process with sufficient Board approval to allow an appellant to
      qualify as a “prevailing party” for purposes of attorney fees under 5 U.S.C.
      § 7701(g)(1) even in the absence of a Board order finding the agency in
      noncompliance or an agreement executed by the parties to settle compliance
      matters. However, in Mynard, the petition for compliance was dismissed as moot
      because the agency complied with the Board’s order while the petition was
      pending.   Id., ¶ 3.       In contrast, the appellant’s “motion for partial summary
      judgment” was dismissed because it failed to comply with the Board’s regulations
      governing petitions for enforcement, and the appellant failed to respond to a show
      cause order to correct the issue. CID at 1-2. Therefore, the appellant’s motion
      did not result in any Board approval of the appellant’s claim of noncompliance
      sufficient to alter the legal relationship of the parties. Cf. Sanchez v. Department
      of Homeland Security, 116 M.S.P.R. 183, ¶¶ 11-12 (2010) (declining to order
      attorney’s fees in connection with an appeal that was dismissed as moot after the
      appellant received the relief he sought as the result of a separate appeal).
      Accordingly, we affirm the administrative judge’s finding that the appellant was

      “legal and necessary costs” attributable to the underlying appeal. See AFF-II, Tab 1
      at 3, 32-35.
                                                                                  7

not a prevailing party in the compliance phase of his appeal and, therefore, he
was not entitled to attorney fees for that work.

                 NOTICE TO THE APPELLANT REGARDING
                    YOUR FURTHER REVIEW RIGHTS
      You have the right to request review of this final decision by the United
States Court of Appeals for the Federal Circuit. You must submit your request to
the court at the following address:
                          United States Court of Appeals
                              for the Federal Circuit
                            717 Madison Place, N.W.
                             Washington, DC 20439

      The court must receive your request for review no later than 60 calendar
days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec.
27, 2012). If you choose to file, be very careful to file on time. The court has
held that normally it does not have the authority to waive this statutory deadline
and that filings that do not comply with the deadline must be dismissed. See
Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
      If you need further information about your right to appeal this decision to
court, you should refer to the federal law that gives you this right. It is found in
Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
Dec. 27, 2012). You may read this law as well as other sections of the United
States   Code,    at   our   website,    http://www.mspb.gov/appeals/uscode.htm.
Additional information 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, and 11.
      If you are interested in securing pro bono representation for your court
appeal, you may visit our website at http://www.mspb.gov/probono for a list of
attorneys who have expressed interest in providing pro bono representation for
                                                                           8

Merit Systems Protection Board appellants before the court. The Merit Systems
Protection Board neither endorses the services provided by any attorney nor
warrants that any attorney will accept representation in a given case.




FOR THE BOARD:                            ______________________________
                                          William D. Spencer
                                          Clerk of the Board
Washington, D.C.
