                          UNITED STATES OF AMERICA
                       MERIT SYSTEMS PROTECTION BOARD
                                       2015 MSPB 57

                             Docket No. DC-0752-09-0881-A-1

                                         John Doe,
                                        Appellant,
                                               v.
                       Pension Benefit Guaranty Corporation,
                                             Agency.
                                      October 7, 2015

           Cori C. Cohen, Esquire, and Stephanie M. Herrera, Esquire, Silver Spring,
             Maryland, for the appellant.

           Charles B. Barksdale, Esquire, Paul Chalmers, Esquire, and Shuchi Batra,
             Esquire, Washington, D.C., for the agency.

                                         BEFORE

                             Susan Tsui Grundmann, Chairman
                                Mark A. Robbins, Member



                                  OPINION AND ORDER

¶1         The appellant has filed a petition for review of the addendum initial
     decision, which denied her motion for an award of attorney fees incurred in
     connection with a petition for enforcement. For the reasons set forth below, we
     DENY the petition for review and AFFIRM the addendum initial decision.

                                      BACKGROUND
¶2         In Doe v. Pension Benefit Guaranty Corporation, 117 M.S.P.R. 579 (2012),
     the   Board   joined   two   separate    adverse   action   appeals,   sustained   the
     administrative judge’s initial decisions reversing the appellant’s placement on
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     two periods of enforced leave, and remanded the joined appeals to the
     administrative judge for further adjudication of the affirmative defenses raised in
     both appeals. See Doe, 117 M.S.P.R. 579, ¶ 2. Shortly after the Board issued its
     decision in Doe, the appellant filed a petition for enforcement with the
     administrative judge alleging that the agency failed to pay her back pay for the
     periods of time she was on enforced leave that the Board had reversed. See Doe
     v. Pension Benefit Guaranty Corporation, MSPB Docket No. DC-0752-09-0881-
     C-1, Compliance File (CF), Tab 1. The administrative judge issued a compliance
     initial decision denying the petition for enforcement and finding the agency in
     compliance. CF, Tab 12, Compliance Initial Decision (CID). In his compliance
     initial decision, the administrative judge found that the appellant’s enforcement
     proceeding was premature because the Board’s decision in Doe did not order the
     agency to pay the appellant any lost back pay.      See CID at 3; see also Doe,
     117 M.S.P.R. 579, ¶ 53 (remanding only the affirmative defenses to the
     administrative judge for further adjudication and issuance of a remand initial
     decision with mixed-case appeal rights).
¶3         The appellant filed a petition for review of the compliance initial decision.
     See Doe v. Pension Benefit Guaranty Corporation, MSPB Docket No. DC-0752-
     09-0881-C-1, Compliance Petition for Review File, Tab 1. In her petition for
     review, the appellant challenged the administrative judge’s finding of agency
     compliance, and alternatively requested that the Board reopen its prior decision in
     Doe and “order immediate relief in the form of the 20 weeks back pay . . . for the
     improper suspensions.”    Id. at 5.   In a nonprecedential final order, the Board
     denied the appellant’s petition for review and affirmed the compliance initial
     decision, agreeing with the administrative judge that the Board’s decision in Doe
     did not order the agency to provide the appellant back pay.        Doe v. Pension
     Benefit Guaranty Corporation, MSPB Docket No. DC-0752-09-0881-C-1, Final
     Order at 4 (Nov. 19, 2013) (Final Order).     The Board, however, exercised its
     discretion under 5 C.F.R. § 1201.118, reopened its prior Opinion and Order, and
                                                                                         3

     modified Doe by ordering the agency to pay the appellant the correct amount of
     back pay for the periods of time she was on enforced leave. Id. at 4-5.
¶4            Following the issuance of the nonprecedential final order, the appellant
     filed the instant motion seeking an award of attorney fees incurred during the
     compliance proceeding as a prevailing party.         See Attorney Fee File (AFF),
     Tab 1.     The agency opposed the appellant’s fee petition, and in an addendum
     initial decision, the administrative judge denied the appellant’s motion for an
     award of attorney fees, finding that she was not a prevailing party in the
     compliance proceeding and thus not eligible to receive an attorney fees award
     under 5 U.S.C. § 7701(g)(1). AFF, Tab 6, Addendum Initial Decision (AID). In
     his addendum initial decision, the administrative judge found that, although the
     Board has held that an appellant need not secure a final Board order finding an
     agency in noncompliance to secure prevailing party status in an enforcement
     proceeding, this line of Board authority was distinguishable from the instant case,
     where the Board affirmed the denial of the petition for enforcement on the merits
     and found the agency in compliance.          AID at 5-7.   The administrative judge
     further explained that, to the extent the appellant could be deemed a prevailing
     party in connection with the request to reopen, the appellant should direct her fee
     petition to the full Board. AID at 6.
¶5            The appellant has filed a petition for review arguing that the administrative
     judge erred in concluding that she was not a prevailing party for purposes of the
     compliance proceeding because she ultimately secured the relief she sought, i.e.,
     an order from the Board that she be provided the correct back pay amount for the
     periods of time she was on enforced leave. Petition for Review (PFR) File, Tab 4
     at 9-17. The agency has filed a response in opposition, asserting that, because the
     Board affirmed the denial of the petition for enforcement on the merits, the
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     appellant cannot be a prevailing party for purposes of recovering her fees
     incurred during the compliance proceeding. 1 PFR File, Tab 7 at 11-15.

                                           ANALYSIS
     Standard of Review for Awarding Attorney Fees under 5 U.S.C. § 7701(g)
¶6         Under the “American Rule,” each party to litigation ordinarily bears its
     own attorney fees unless there is express statutory authorization to the contrary.
     See Hensley v. Eckerhart, 461 U.S. 424, 429 (1983); West v. Department of
     Energy, 24 M.S.P.R. 99, 101 (1984). In passing the Civil Service Reform Act of
     1978, Congress specifically authorized the recovery of reasonable attorney fees
     for employees who are prevailing parties in Board proceedings. See Pecotte v.
     Department of the Air Force, 55 M.S.P.R. 165, 168 (1992); see also 5 U.S.C.
     § 7701(g)(1); 5 C.F.R. § 1201.202(a). To receive an award of attorney fees under
     5 U.S.C. § 7701(g)(1), an appellant must show that: (1) she was the prevailing
     party; (2) she incurred attorney fees pursuant to an existing attorney-client
     relationship; (3) an award of attorney fees is warranted in the interest of justice;
     and (4) the amount of attorney fees claimed is reasonable.                See Caros v.
     Department of Homeland Security, 122 M.S.P.R. 231, ¶ 5 (2015). The threshold
     question in assessing an attorney fees petition is whether the appellant is eligible
     to receive such an award as a prevailing party. See Sterner v. Department of the




     1
       On review, the agency also argues that it voluntarily paid the appellant her back pay
     for the enforced leave periods before the administrative judge issued his compliance
     initial decision, thus also preventing the appellant from securing prevailing party status
     in the enforcement proceeding. See PFR File, Tab 7 at 12. The administrative judge
     rejected this argument in his addendum initial decision, see AID at 4, and for the
     reasons discussed in Mynard v. Office of Personnel Management, 108 M.S.P.R. 58, ¶ 17
     (2008), see infra ¶ 8, we agree with the administrative judge that this reasoning
     is unpersuasive.
                                                                                               5

     Army, 711 F.2d 1563, 1567 (Fed. Cir. 1983) (“The determination of who
     prevailed is . . . only a threshold test of eligibility . . . .”). 2
¶7          In Buckhannon Board & Care Home, Inc. v. West Virginia Department of
     Health & Human Resources, 532 U.S. 598 (2001), the U.S. Supreme Court held
     that, to be considered a prevailing party for purposes of a fee-shifting statute, a
     party must have “obtained an enforceable judgment” resulting in a “material
     alteration of the legal relationship” between the parties. Sanchez v. Department
     of Homeland Security, 116 M.S.P.R. 183, ¶ 10 (2010).                   Applying the standard
     articulated in Buckhannon, the Board has held that an appellant who shows that
     she 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 purposes of enforcement by the Board is a “prevailing
     party” for purposes of 5 U.S.C. § 7701(g)(1). Sanchez, 116 M.S.P.R. 183, ¶ 10.
¶8          The Board also has addressed whether an appellant is eligible for a separate
     attorney fees award as a prevailing party in a compliance or enforcement
     proceeding before the Board. See Shelton v. Environmental Protection Agency,
     115 M.S.P.R. 177, ¶ 12 (2010); Mynard v. Office of Personnel Management,
     108 M.S.P.R. 58, ¶¶ 14-15 (2008). In Mynard, the Board discussed the impact of
     Buckhannon on an appellant’s eligibility to receive a fee award in a petition for
     enforcement, and it held that a party may achieve “prevailing party” status
     without obtaining an enforceable judgment on the merits of the compliance
     proceeding so long as the relief the party achieves carries with it sufficient Board
     imprimatur. 108 M.S.P.R. 58, ¶ 16. Thus, in Mynard, the Board found that its

     2
       After determining whether the appellant is eligible to receive an attorney fees award
     under section 7701(g), the Board next considers whether the appellant has established
     an entitlement to an award of fees in the interests of justice, and if so, whether the fees
     sought are reasonable. See Sterner, 711 F.2d at 1567. Because the administrative judge
     determined that the appellant was not eligible for an award of fees under
     section 7701(g) as a prevailing party, he did not decide these latter issues. We also do
     not reach these questions on petition for review.
                                                                                           6

     oversight of the parties’ compliance efforts provides the petition for enforcement
     process with sufficient Board imprimatur to allow an appellant to secure
     prevailing party status under section 7701(g)(1) even in the absence of either a
     Board order finding the agency in noncompliance or an agreement executed by
     the parties to settle the compliance matter. Id., ¶ 17.
     The appellant is not a prevailing party in the compliance proceeding under
     section 7701(g)(1).
¶9         Applying these standards, we agree with the administrative judge that the
     appellant is not a prevailing party in the compliance proceeding under
     section 7701(g)(1).   Although the Board has found that an appellant need not
     secure a final Board order to qualify as a prevailing party in a compliance
     proceeding, see Mynard, 108 M.S.P.R. 58, ¶ 17, here, the parties did not mutually
     resolve the compliance proceeding before the Board could issue a final order.
     Rather, the administrative judge denied the appellant’s petition for enforcement
     on its merits, and the Board affirmed the administrative judge’s denial, agreeing
     that there was no order that the agency had failed to honor and finding the agency
     in compliance. 3 See Final Order at 4; CID at 5-7. Under these facts, we agree
     with the administrative judge that this case is distinguishable from Mynard, and
     that as to the compliance proceeding, the appellant did not achieve any degree of
     relief that could make her a prevailing party for purposes of recovering the
     attorney fees she incurred during that proceeding. 4         Because the appellant’s


     3
       In Mynard, the Board followed the decisions of several Federal courts of appeal that
     had distinguished Buckhannon in cases where a party seeks to enforce a court order, but
     is able to resolve the dispute before the court can render a judgment in the enforcement
     proceeding. See 108 M.S.P.R. 58, ¶¶ 10, 15-17.
     4
       We emphasize that the appellant has only petitioned for an award of fees stemming
     from her filing of the petition for enforcement and that she has yet to petition for an
     award of fees incurred in connection with the merits phase of her joined appeals. See
     infra ¶ 13 n.7. Any attorney fees award the appellant may seek in connection with the
     merits phase of her joined appeals is not before us at this time.
                                                                                             7

      compliance proceeding did not bring about a material alteration of the legal
      relationship between the parties, and because that proceeding was resolved in the
      agency’s favor with a finding of agency compliance both before the
      administrative judge and before the Board on petition for review, we agree that
      the appellant is not a prevailing party entitled to an award of fees incurred during
      the course of the compliance proceeding under 5 U.S.C. § 7701(g)(1).

      To the extent the appellant secured some degree of relief in persuading the Board
      to reopen its prior Opinion and Order in Doe, the appellant should seek such an
      award of reasonable attorney fees from the administrative judge after the Board
      issues a final decision in the merits phase of her joined appeals.
¶10         Although we find that the appellant is not a prevailing party for purposes of
      the petition for enforcement proceeding, we find that she is a prevailing party in
      connection with her success in persuading the Board to exercise its discretion
      under 5 C.F.R. § 1201.118 to reopen its prior Opinion and Order and obtain
      further relief in her underlying appeals. Because a request to reopen is part of the
      prior appeal subject to the request, and not an independent appeal, should the
      appellant establish an entitlement to an award of attorney fees in the merits phase
      of her joined appeals, she would also establish an entitlement to an award of
      attorney fees incurred in connection with her efforts in reopening and obtaining
      further relief as to those appeals. 5


      5
        The administrative judge issued a remand initial decision on June 30, 2015, denying
      the appellant’s affirmative defenses on their merits. See Doe v. Pension Benefit
      Guaranty Corporation, MSPB Docket No. DC-0752-09-0881-B-2, Tab 85, Remand
      Initial Decision. The appellant received two extensions of time to file her petition for
      review of the remand initial decision and filed her petition for review on September 18,
      2015. See Doe v. Pension Benefit Guaranty Corporation, MSPB Docket No. DC-0752-
      09-0881-B-2, Petition for Review File, Tabs 4, 9, 11. The Board thus has not yet issued
      a final decision on the merits phase of the appellant’s joined appeals, and the time to
      file a motion for attorney fees incurred therein has not yet begun. See 5 C.F.R.
      § 1201.203(d) (a motion for attorney fees must be filed as soon as possible after a final
      Board decision but no later than 60 days after the date on which a decision
      becomes final).
                                                                                     8

      Conclusion
¶11         For the foregoing reasons, the administrative judge’s denial of the
      appellant’s motion for an award of attorney fees incurred in the petition for
      enforcement is affirmed, and the appellant’s petition for review is denied.

                                            ORDER
¶12         This is the final decision of the Merit Systems Protection Board in this
      appeal. Title 5 of the Code of Federal Regulations, section 1201.113(c) (5 C.F.R.
      § 1201.113(c)).

                        NOTICE TO THE APPELLANT REGARDING
                           YOUR FURTHER REVIEW RIGHTS
            You have the right to request further review of this final decision.

      Discrimination Claims: Administrative Review
            You may request review of this final decision on your discrimination
      claims by the Equal Employment Opportunity Commission (EEOC). See Title 5
      of the United States Code, section 7702(b)(1) (5 U.S.C. § 7702(b)(1)). If you
      submit your request 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 your request 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, NE
                                       Suite 5SW12G
                                 Washington, D.C. 20507

            You should send your request to EEOC no later than 30 calendar days after
      your receipt of this order. If you have a representative in this case, and your
      representative receives this order before you do, then you must file with EEOC no
                                                                                    9

later than 30 calendar days after receipt by your representative. If you choose to
file, be very careful to file on time.

Discrimination and Other Claims: Judicial Action
      If you do not request EEOC to review this final decision on your
discrimination claims, you may file a civil action against the agency on both your
discrimination claims and your other claims in an appropriate United States
district court. See 5 U.S.C. § 7703(b)(2). You must file your civil action with
the district court no later than 30 calendar days after your receipt of this order. If
you have a representative in this case, and your representative receives this order
before you do, then you must file with the district court no later than 30 calendar
days after receipt by your representative. If you choose to file, be very careful to
file on time. 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.



FOR THE BOARD:


______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.
