                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     AMALIE MUNSON,                                  DOCKET NUMBER
                 Appellant,                          SF-0752-13-1073-A-1

                  v.

     DEPARTMENT OF THE ARMY,                         DATE: July 15, 2015
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Neil C. Bonney, Esquire, Virginia Beach, Virginia, for the appellant.

           Kevin D. Cox, Herlong, California, for the agency.

           Tiffany J. Hall, Warren, Michigan, for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                                 Mark A. Robbins, Member


                                       FINAL ORDER

¶1         The agency has filed a petition for review of the initial decision, which
     granted the appellant’s request for $1,540 in additional attorney fees incurred
     after filing a petition for enforcement of a settlement agreement that resolved the
     underlying appeal. For the reasons discussed below, we GRANT the agency’s

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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     petition for review and REVERSE the initial decision. We DENY the appellant’s
     petition for additional attorney fees.

                      DISCUSSION OF ARGUMENTS ON REVIEW
¶2         On October 22, 2013, the parties entered into a negotiated settlement
     agreement (NSA) resolving the appellant’s removal appeal.              Munson v.
     Department of the Army, MSPB Docket No. SF-0752-13-1073-I-1, Initial Appeal
     File (IAF), Tab 18. In relevant part, the NSA provided that the agency would pay
     the appellant’s counsel “reasonable attorney fees in an amount as determined by
     the Administrative Judge upon application of a fee motion,” and that such amount
     would be “in full settlement of all claims of attorney fees and expenses related in
     any way to this case” and would constitute a “full and final resolution of the
     matter of attorney fees and costs.”      Id. at 5. In a November 20, 2013 initial
     decision, the administrative judge found Board jurisdiction over the appeal,
     entered the NSA into the record for purposes of enforcement, and dismissed the
     appeal as settled. IAF, Tab 23, Initial Decision (ID). The administrative judge
     did not make a determination of reasonable attorney fees; rather, in the initial
     decision, she set out the following course of action, to which the parties had
     agreed, to determine reasonable attorney fees and costs:
           (1) the appellant will submit her request for payment of attorney fees
           and expenses to the agency; (2) the agency will respond to the fee
           request within 15 calendar days, stating the amount of attorney fees
           and expenses that it deems reasonable and intends to pay; and (3) if
           the appellant disagrees with the agency’s response, she may file a
           petition for enforcement (PFE) asking the Board to enforce [the
           attorney fee provision] of the settlement agreement.
     ID at 2.
¶3         The parties did not agree on an amount of reasonable attorney fees and the
     appellant filed a petition for enforcement on December 31, 2013, seeking, in
                                                                                      3

     pertinent part, $41,697.41 in attorney fees and costs. 2 Munson v. Department of
     the Army, MSPB Docket No. SF-0752-13-1073-C-1, Compliance File (CF), Tab 1
     at 109.     In response, the agency asserted that the appellant’s petition for
     enforcement should be dismissed because the agency was in compliance with the
     NSA and the administrative judge had not yet rendered a decision on the fee
     motions in the underlying appeal. CF, Tab 3 at 5. In a September 19, 2014
     compliance initial decision, the administrative judge ordered the agency to pay
     $41,122.13 in attorney fees and costs, i.e., the requested amount of $41,697.41
     less $575.28 in disallowed costs. CF, Tab 9, Compliance Initial Decision (CID)
     at 7.
¶4           Neither party petitioned for review of the compliance initial decision, and
     the case was referred to the Board’s Office of General Counsel to obtain
     compliance. See Munson v. Department of the Army, MSPB Docket No. SF-0752-
     13-1073-X-1, Final Order at 2 (Jan. 12, 2015) (Final Order). The Board found the
     agency in compliance and dismissed the petition for enforcement. Id.
¶5           The appellant then filed a petition for attorney fees seeking an additional
     $1,540 for work done on the appeal subsequent to filing the petition for
     enforcement, including correspondence regarding attorney fees, review of the
     compliance initial decision and final order, and preparation of the petition for
     additional fees. Munson v. Department of the Army, MSPB Docket No. SF-0752-
     13-1073-A-1, Attorney Fee File (AFF), Tab 1 at 10-13. The administrative judge
     issued an acknowledgment order setting forth the appellant’s burden of proof and

     2
       The appellant submitted two “amended summar[ies] of fees and expenses” requesting
     different amounts—$41,337.41 and $41,697.41, respectively—as attachments with her
     petition for enforcement. See Munson v. Department of the Army, MSPB Docket No.
     SF-0752-13-1073-C-1, Compliance File (CF), Tab 1 at 4-15, 20, 109-10. Although the
     administrative judge mentioned that the appellant requested $41,337.41 in fees and
     costs, he ultimately based the fee award on the higher figure. See CF, Tab 9,
     Compliance Initial Decision (CID) at 4, 7. This amount included the original fee
     request of $38,737.41 plus additional fees for work done between November 15, 2013,
     and December 31, 2013, less $1,200 in connection with an earlier billing error. CF,
     Tab 1 at 109-10; IAF, Tab 19 at 22.
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     affording the agency 30 days to respond to the appellant’s motion. AFF, Tab 2
     at 2-3.    The agency did not submit any response.        The administrative judge
     granted the petition and found that the appellant was entitled to the requested
     fees.     AFF, Tab 5, Attorney Fee Initial Decision (AFID) at 3.        The agency
     petitioned for review, arguing that it has been in compliance with the NSA at all
     times and that the appellant was not entitled to any additional attorney fees.
     Petition for Review (PFR) File, Tab 1 at 6-7.         The appellant responded in
     opposition, and the agency submitted a reply to the appellant’s response. PFR
     File, Tabs 2, 4.
¶6           As noted, the agency did not respond below to the appellant’s petition for
     additional fees. Ordinarily, 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.
     Banks v. Department of the Air Force, 4 M.S.P.R. 268, 271 (1980). However, the
     Board has noted that Banks did not involve a Board order directing the payment
     of public funds in contravention of any federal statute. Smith v. Department of
     the Navy, 113 M.S.P.R. 430, ¶ 6 (2010). Here, the appellant’s fee petition arises
     under 5 U.S.C. § 7701(g)(1), which governs the attorney fees award in an adverse
     action appeal, such as this one. 5 U.S.C. § 7701(a); Sanchez v. Department of
     Homeland Security, 116 M.S.P.R. 183, ¶ 9 (2010); see CID at 1. Because we find
     that the administrative judge’s order would erroneously require the agency to pay
     funds that are not authorized under 5 U.S.C. § 7701(g)(1), we will address the
     agency’s argument. See Smith, 113 M.S.P.R. 430, ¶ 6.
¶7           Pursuant to 5 U.S.C. § 7701(g)(1), the Board may require an agency to pay
     reasonable attorney fees incurred by an employee, including fees incurred during
     litigation of a petition for enforcement, if the employee is the prevailing party and
     the Board determines that such payment is warranted in the interest of justice.
     Shelton v. Environmental Protection Agency, 115 M.S.P.R. 177, ¶ 7 (2010). An
     appellant bears the burden of proving her entitlement to attorney fees by showing
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     that: (1) an attorney-client relationship existed and fees were incurred; (2) she is
     the prevailing party; (3) an award of fees is warranted in the interest of justice;
     and (4) the fees are reasonable. Id., ¶ 12. Here, the administrative judge found
     that the first three factors were undisputed and that the fees claimed were
     reasonable; thus, he concluded that the appellant satisfied her burden of proving
     her entitlement to additional attorney fees in connection with her petition for
     enforcement. AFID at 2-3. The agency argues, though, that the appellant is not
     entitled to additional fees because she was not a prevailing party in the
     compliance proceedings. See PFR File, Tab 1 at 7, Tab 4 at 5, 8.
¶8          To show that she is the prevailing party in the compliance phase of the
     proceedings, an appellant must establish that the agency materially breached the
     Board’s enforceable order or the settlement agreement at issue.                         See
     Shelton, 115 M.S.P.R. 177, ¶ 12; see also Greco v. Department of the
     Army, 852 F.2d 558, 561 (Fed. Cir. 1988) (stating that “[r]ecovery of attorney
     fees   is   limited    to   those     areas   where   respondent   has   been   found    in
     noncompliance”).        A material breach is one that relates to a matter of vital
     importance and goes to the essence of the contract.                Young v. U.S. Postal
     Service, 113 M.S.P.R. 609, ¶ 10 (2010). Here, the appellant contends that the
     agency breached the settlement agreement by not paying reasonable attorney fees
     until ordered to do so by the Board. PFR File, Tab 2 at 5-6. In support, she relies
     on the compliance final order stating that the compliance initial decision found
     “the agency noncompliant with a settlement agreement.” Id. at 5. But the agency
     argues that it was never noncompliant with the settlement agreement or a Board
     order and that it timely paid attorney fees and costs after the administrative judge
     rendered his decision. See PFR File, Tab 1 at 7, Tab 4 at 7-8.
¶9          A settlement agreement is a contract, and, as such, will be enforced in
     accord      with      contract      law.      Allen    v.   Department     of    Veterans
     Affairs, 112 M.S.P.R. 659, ¶ 7 (2009), aff’d, 420 F. App’x 980 (Fed. Cir. 2011).
     As discussed above, the NSA specifically provided that the agency would pay the
                                                                                            6

      appellant’s counsel “reasonable attorney fees in an amount as determined by the
      Administrative Judge upon application of a fee motion.” IAF, Tab 18 at 5. In our
      view, the agency’s obligation to pay fees did not arise until the administrative
      judge determined the amount owed under the agreement. The parties have not
      claimed, nor do we discern, that there is any other reasonable interpretation of
      this provision. See ID at 2-3 (reflecting that the parties agreed that the appellant
      would request fees, the agency would respond, and she could file a petition for
      enforcement if she disagreed with the agency’s response).                   Thus, the
      administrative judge’s determination of reasonable fees was not the result of a
      material breach of the agreement by the agency.
¶10         The administrative judge issued a determination of reasonable attorney fees
      on September 19, 2014, and the agency paid this amount to the appellant on
      November 18, 2014. See Final Order at 2. Thus, the agency paid the appellant
      “reasonable attorney fees” in the amount determined by the administrative judge
      within 2 months of the triggering event, which we find is a reasonable amount of
      time. See, e.g., Shelton, 115 M.S.P.R. 177, ¶ 23 (finding that the agency did not
      breach the settlement agreement by paying the $61,000 in costs and attorney fees
      78 days after entering into the agreement). Therefore, we find no merit to the
      appellant’s claim that the agency was noncompliant with the original settlement
      agreement or that the agency failed to timely pay the fees ordered by the
      administrative judge. 3 See PFR File, Tab 2 at 6. We conclude that, because the

      3
         The compliance initial decision did not find the agency noncompliant with its
      obligation under the NSA to pay reasonable attorney fees. See CID. Rather, pursuant
      to the NSA and the procedure prescribed by the initial decision dismissing the appeal as
      settled, the compliance initial decision simply determined reasonable attorney fees and
      costs incurred in the underlying appeal. See ID at 2-3; see also CID. Thus, the
      compliance final order mischaracterized the compliance initial decision insofar as it
      stated that the compliance initial decision found the agency in noncompliance with the
      NSA. See Final Order at 1-2. As such, the appellant’s reliance on the compliance final
      order in support of her entitlement to additional attorney fees in unavailing; the
      compliance final order does not establish that the agency breached the NSA or that she
      was a prevailing party.
                                                                                               7

      appellant has failed to show that the agency materially breached the settlement
      agreement, she has not shown that she was the prevailing party in the compliance
      proceeding   for     purposes     of   being    entitled   to   attorney   fees.       See
      Shelton, 115 M.S.P.R. 177, ¶ 12.

                                                  ORDER
¶11        In light of the foregoing, we REVERSE the attorney fee initial decision and
      DENY the appellant’s petition for additional attorney fees.

                       NOTICE TO THE APPELLANT REGARDING
                          YOUR FURTHER REVIEW RIGHTS
           This Final Order is the Board’s final decision in this matter.                5 C.F.R.
      § 1201.113. You have the right to request the United States Court of Appeals for
      the Federal Circuit to review this final decision. 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
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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 an appeal to the
United States 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 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.
