                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     KENNETH B. HOLSEY,                              DOCKET NUMBER
                  Appellant,                         AT-0752-13-0060-A-1

                  v.

     DEPARTMENT OF JUSTICE,                          DATE: December 2, 2014
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Michael B. King, Jonesboro, Georgia, for the appellant.

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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

                                     BACKGROUND
¶2        On September 21, 2012, the agency indefinitely suspended the appellant
     from his Correctional Officer position pending an investigation into allegations
     of introduction of contraband and bribery.     Holsey v. Department of Justice,
     MSPB Docket No. AT-0752-13-0060-I-1, Initial Appeal File (IAF), Tab 1 at 7-9
     of 13. The appellant filed a Board appeal challenging the indefinite suspension.
     IAF, Tab 1. While the appeal was pending, the agency sent the appellant a letter
     dated December 21, 2012, notifying him that it had rescinded the indefinite
     suspension. IAF, Tab 10 at 7. On January 4, 2013, the agency filed a motion to
     dismiss the appeal as moot based on the rescission of the indefinite suspension.
     Id. at 4-6. By initial decision dated January 18, 2013, the administrative judge
     dismissed the appeal for lack of jurisdiction based on her finding that the appeal
     had been rendered moot. IAF, Tab 11, Initial Decision.
¶3        The appellant filed a petition for review of the initial decision. Holsey v.
     Department of Justice, MSPB Docket No. AT-0752-13-0060-I-1, Petition for
     Review File, Tab 1.       The Board found that the record was insufficient to
                                                                                       3

     determine whether the appeal was moot and issued a nonprecedential order dated
     October 29, 2013, remanding the appeal to the regional office for further
     adjudication. Id., Tab 8, Remand Order.
¶4        On remand, the administrative judge issued an order to show cause dated
     March 26, 2014, in which she stated that, based on her review of the record, it
     did not appear that the agency had paid the appellant interest for the back pay it
     owed him. Holsey v. Department of Justice, MSPB Docket No. AT-0752-13-
     0060-B-1, Remand Appeal File (RAF), Tab 6. The administrative judge ordered
     the agency to clarify whether it paid the appellant the required interest and, if it
     did, to provide proof of payment. Id. The agency submitted a response to the
     order on April 4, 2014, and an update to its response on April 14, 2014. RAF,
     Tabs 9-10. In its update, the agency asserted that it paid the appellant interest on
     his back pay on April 7, 2014, and it provided proof of payment. RAF, Tab 10.
¶5        On April 15, 2014, the administrative judge issued a remand initial decision
     dismissing the appeal as moot based on her finding that the agency had fully
     restored the appellant to the status quo ante.     RAF, Tab 11, Remand Initial
     Decision (RID). The remand initial decision became the Board’s final decision
     on May 20, 2014, when neither party filed a petition for review. RID at 5.
¶6        While   his   indefinite   suspension   appeal   was    pending   before   the
     administrative judge on remand, the appellant filed a motion for attorney fees, as
     well as a supplemental motion for attorney fees. Attorney Fees File (AFF), Tabs
     1, 3. In support of his motion, the appellant argued that he is entitled to attorney
     fees because he was the prevailing party on appeal, he is due lost wages and
     benefits, and he incurred reasonable attorney fees. AFF, Tab 1 at 2, Tab 3 at 3.
     The agency filed a response in opposition to the appellant’s motion. AFF, Tab 4.
     On July 15, 2014, the administrative judge issued an initial decision finding that
     the appellant is not entitled to attorney fees because his indefinite suspension
     appeal was dismissed as moot. AFF, Tab 5, Initial Decision.
                                                                                        4

¶7        The appellant has filed a petition for review of the initial decision. Petition
     for Review (PFR) File, Tab 1. The agency has filed a response in opposition to
     the petition for review. PFR File, Tab 3.

                                        ANALYSIS
¶8        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). Under Buckhannon Board and Care Home, Inc. v. West Virginia
     Department of Health and Human Resources, 532 U.S. 598, 604 (2001), 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 v. Department of Veterans
     Affairs, 115 M.S.P.R. 413, ¶ 11 (2010). A party prevails when actual relief on
     the merits of his claim materially alters the legal relationship between the parties
     by modifying one party’s behavior in a way that directly benefits the other. Id.
¶9        On review the appellant advances two arguments in support of his claim
     that he is entitled to attorney fees. First, he contends that he was the prevailing
     party in the initial proceedings in this appeal because the Board found in its
     October 29, 2013 remand order that the administrative judge had erred by
     dismissing his indefinite suspension appeal as moot and remanded the case for a
     determination as to whether the appellant had received all the relief he was
     entitled to receive had he prevailed on the merits of his appeal. PFR File, Tab 1
     at 4, 6. Second, the appellant asserts that he was also the prevailing party on
     remand because the administrative judge found that the agency had not paid the
     appellant the interest owed to him and directed the agency to pay the interest due
                                                                                        5

      on his lost wages, and the agency paid him interest as directed by the
      administrative judge. Id.
¶10        The appellant has apparently misconstrued the administrative judge’s March
      26, 2014 order to show cause.        Contrary to the appellant’s assertion, the
      administrative judge did not find that the agency had not paid the appellant the
      interest owed to him, nor did she order the agency to pay the appellant that
      interest. RAF, Tab 6. Rather, as noted above, the administrative judge found
      that it did not appear that the agency had paid the appellant the interest for the
      back pay it owed him, and she ordered the agency to clarify whether it paid him
      that interest. Id.
¶11        Further, even if the administrative judge’s finding that it did not appear that
      the agency had paid the appellant the interest owed to him could be construed as
      a preliminary conclusion that the agency had failed to pay the appellant that
      interest, such a conclusion would not entitle him to attorney fees. See Sacco v.
      Department of Justice, 317 F.3d 1384, 1386 (Fed. Cir. 2003) (preliminary
      conclusions, such as those set forth in an administrative judge’s Order and
      Summary, neither establish judicial imprimatur nor constitute a court-ordered
      change in the legal relationship of the parties so as to permit an attorney fees
      award).
¶12        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. In this case, there is
      no final decision of the Board on the merits that awards the appellant any relief
      and materially changes the legal relationship of the parties.         The Board’s
      October 29, 2013 remand order is not a final decision and did not result in a
      material alteration of the legal relationship of the parties. The April 15, 2014
      remand initial decision, which became the Board’s final decision when neither
      party petitioned for review, merely dismissed the appeal as moot. See Sanchez v.
      Department of Homeland Security, 116 M.S.P.R. 183, ¶ 7 (2010) (an appellant
                                                                                       6

whose removal appeal is dismissed as moot is not a “prevailing party” eligible
for attorney fees). The appellant has not identified any Board or court precedent
that entitles him to prevailing party status under the facts of the case. 2
Accordingly, the administrative judge correctly denied the appellant’s motion for
attorney fees.

                 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).



2
  To the extent that the appellant is arguing that he is the prevailing party because the
agency provided him with the relief he was seeking in this appeal, he appears to be
relying on a catalyst theory of recovery. Under that theory, an appellant may be the
prevailing party when, after the filing of an appeal, the agency voluntarily grants the
relief sought, the administrative judge dismisses the appeal as moot, and the relief is
causally related to the initiation of the appeal. See Sacco v. Department of Justice,
90 M.S.P.R. 225, ¶ 6 (2001), aff’d, 317 F. 3d 1384 (Fed. Cir. 2003). The Supreme
Court in Buckhannon, 532 U.S. at 605-10, ruled that the catalyst theory is not a
permissible basis upon which to award attorney fees because it allows an award where,
even though a lawsuit brought about a voluntary change in one party’s conduct, there is
no judicially-sanctioned change in the parties’ legal relationship. Sacco, 90 M.S.P.R.
225, ¶ 7.
                                                                                  7

     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
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.
