       NOTE: This disposition is nonprecedential.

  United States Court of Appeals
      for the Federal Circuit
                ______________________

               SHAWNTAI T. JONES,
                   Petitioner,

                           v.

          DEPARTMENT OF THE ARMY,
                  Respondent.
             ______________________

                      2014-3065
                ______________________

   Petition for review of the Merit Systems Protection
Board in No. AT-0752-12-0426-A-1.
                ______________________

             Decided: November 12, 2014
               ______________________

   PETER C. LOWN, Peter C. Lown, P.C., of Stockbridge,
Georgia, for petitioner.

    JOSEPH E. ASHMAN, Trial Attorney, Commercial Liti-
gation Branch, Civil Division, United States Department
of Justice, of Washington, DC, for respondent. With him
on the brief were STUART F. DELERY, Assistant Attorney
General, ROBERT E. KIRSCHMAN, JR., Director, and
STEVEN J. GILLINGHAM, Assistant Director.
                 ______________________
2                                            JONES   v. ARMY



    Before PROST, Chief Judge, MAYER and LOURIE, Circuit
                          Judges.
PER CURIAM.
     Shawntai T. Jones (“Jones”) appeals from the final de-
cision of the Merit Systems Protection Board (“the Board”)
denying her motion for an award of attorney fees. See
Jones v. Dep’t of the Army, No. AT-0752-12-0426-A-1
(M.S.P.B. Nov. 8, 2013) (“Opinion”). Because the Board
did not err in denying Jones’s motion for an award of
attorney fees, we affirm.
                       BACKGROUND
    Jones was employed by the Army as a biological sci-
ence technician in the Criminal Investigation Command
located in Atlanta, Georgia. On March 21, 2012, the
Army removed her from her position for alleged miscon-
duct. She appealed the removal action to the Board, filed
an Equal Employment Opportunity (“EEO”) complaint,
and submitted a claim for unemployment compensation
benefits to the Georgia Department of Labor (“GDOL”).
On December 18, 2012, a GDOL Administrative Hearing
Officer ruled that Jones was entitled to unemployment
compensation benefits.
    On December 21, 2012, Jones entered into a settle-
ment agreement with the Army in which the Army agreed
to set aside its removal action against Jones and allow her
to retire from Federal service. In return, Jones agreed to
withdraw her Board appeal, EEO complaint, and “any
claim before any other State or Federal administrative
body or court.” Appellee’s App. 44. The parties submitted
the settlement agreement to the Board, which accepted
the agreement and dismissed the appeal. Jones v. Dep’t of
the Army, No. AT-0752-12-0426-I-2 (M.S.P.B. Jan. 3,
2013).
   After signing the settlement agreement, Jones took no
additional action with respect to her claim for unemploy-
JONES   v. ARMY                                           3



ment compensation benefits, but the Army appealed the
benefits ruling within GDOL. On February 15, 2013,
GDOL ruled that Jones was not entitled to unemployment
compensation benefits.
    In March 2013, the Army filed a petition at the Board
for enforcement of the settlement agreement, alleging
that Jones had failed to abide by the agreement by not
withdrawing her claim for unemployment compensation
benefits. In an initial decision, the Administrative Judge
(“AJ”) found that Jones’s benefits claim remained pending
and granted the Army’s petition. Jones v. Dep’t of the
Army, No. AT-0752-12-0426-C-1 (M.S.P.B. Apr. 12, 2013).
Jones then withdrew her claim for unemployment com-
pensation benefits, and her attorney filed a notice of
compliance with the Board.
    On review, the Board overturned the AJ’s initial deci-
sion and dismissed the Army’s petition for enforcement.
Jones v. Dep’t of the Army, No. AT-0752-12-0426-X-1
(M.S.P.B. Aug. 13, 2013). The Board concluded that the
provision in the settlement agreement requiring Jones to
withdraw her claim for unemployment compensation
benefits violated Georgia law, which prohibited such
waivers. According to the Board, the provision was there-
fore void and unenforceable.
     Jones subsequently filed a motion at the Board seek-
ing attorney fees incurred in opposing the Army’s petition
for enforcement of the settlement agreement. In an initial
decision, the AJ denied Jones’s motion for attorney fees.
Opinion at 1. The AJ determined that, although Jones
was the prevailing party in the enforcement action and
she incurred attorney fees relating to that action, “none of
the legal work for which she was billed contributed to the
ultimate outcome of the case.” Id. at 5. The AJ found
that Jones’s attorney billed no hours and filed no plead-
ings between the date that the attorney notified the Board
of Jones’s compliance with the initial decision and the
4                                            JONES   v. ARMY



date that the Board issued its final order. Id. at 6. The
AJ found that “the Board’s order amounted to a stroke of
good fortune for [Jones] which was completely unconnect-
ed to any legal work performed by her attorney.” Id. at 6–
7. Jones did not seek review of the initial decision, and
the decision became final.
   Jones appealed to this court. We have jurisdiction
pursuant to 28 U.S.C. § 1295(a)(9).
                       DISCUSSION
    The scope of our review in an appeal from a Board
decision is limited by statute. We can only set aside the
Board’s decision if it was “(1) arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with
law; (2) obtained without procedures required by law,
rule, or regulation having been followed; or (3) unsupport-
ed by substantial evidence.” 5 U.S.C. § 7703(c); see Briggs
v. Merit Sys. Prot. Bd., 331 F.3d 1307, 1311 (Fed. Cir.
2003). We accord “great deference to the Board . . . on
questions of entitlement to attorney fees.” Dunn v. Dep’t
of Veterans Affairs, 98 F.3d 1308, 1311 (Fed. Cir. 1996).
     An employee challenging an agency’s adverse em-
ployment action may recover reasonable attorney fees if
the employee is a prevailing party and the payment of
attorney fees is warranted in the interest of justice. 5
U.S.C. § 7701(g)(1). In determining whether attorney fees
are warranted in the interest of justice, we consider five
non-exclusive factors first articulated in Allen v. U.S.
Postal Service, 2 M.S.P.B. 582, 592–93 (1980) (the “Allen
factors”). Dunn, 98 F.3d at 1311. The five Allen factors
are:
    (1) Whether the agency engaged in a prohibited
    personnel practice; (2) [w]hether the agency action
    was clearly without merit or wholly unfounded, or
    the employee is substantially innocent of the
    charges; (3) [w]hether the agency initiated the ac-
JONES   v. ARMY                                          5



   tion in bad faith; (4) [w]hether the agency commit-
   ted a gross procedural error that prolonged the
   proceeding or severely prejudiced the employee;
   (5) [w]hether the agency knew or should have
   known that it would not prevail on the merits
   when it brought the proceeding.
Id. at 1312. The burden is on the petitioner to “show that
justice warrants the award.” Id. at 1311.
    Jones argues that she is entitled to attorney fees
under the Equal Access to Justice Act (“EAJA”), 28 U.S.C.
§ 2412, because she was a prevailing party and the Ar-
my’s position was not substantially justified. Jones also
contends that, under the fifth Allen factor, the Army
either knew or should have known that the waiver provi-
sion was void at the time the parties signed the agree-
ment. Jones further argues that the claim raised in the
Army’s enforcement petition was moot from the outset
because there was no longer an existing GDOL claim to be
withdrawn.
    The government responds that the Board rationally
concluded that an award was not warranted because
Jones sought attorney fees for legal work performed by
her attorney that did not contribute to her status as a
prevailing party in the Army’s enforcement action. The
government argues that there is no evidence that the
Army either knew or should have known that the waiver
provision was void, and in fact, Jones, the Army, and the
AJ considered the waiver in the settlement agreement to
be valid at the time the Army initiated the enforcement
action.
     We agree with the government that the Board did not
err in denying Jones’s motion for attorney fees. As an
initial matter, the award of attorney fees in this case is
governed by § 7701(g)(1), not the EAJA, 28 U.S.C. § 2412.
The EAJA only applies to an award of attorney fees in
6                                            JONES   v. ARMY



civil actions brought in federal court in which the United
States is a party:
    [A] court shall award to a prevailing party other
    than the United States fees and other expens-
    es . . . incurred by that party in any civil action
    (other than cases sounding in tort), including pro-
    ceedings for judicial review of agency action,
    brought by or against the United States in any
    court having jurisdiction of that action . . . .
28 U.S.C. § 2412. As such, “[i]t is well-settled that the
law does not permit . . . an attorney fees award under the
EAJA for legal services rendered before the Board.”
Massa v. Dep’t of Defense, 833 F.2d 991, 992 (Fed. Cir.
1987).
     Under § 7701(g)(1), the Board did not err by conclud-
ing that attorney fees were not warranted in the interest
of justice. Although the Board overturned the AJ’s initial
decision and dismissed the Army’s enforcement action,
Jones’s attorney performed no work that contributed to
the Board’s dismissal of the Army’s enforcement action.
As the Board correctly found, Jones’s attorney billed no
hours and filed no pleadings between the date that the
attorney notified the Board of Jones’s compliance with the
initial decision and the date that the Board issued its
final order. The AJ’s conclusion that Jones’s attorney
should have to have contributed in some manner to her
ultimate success is consistent with § 7701(g)(1), which
makes an award of fees to a prevailing party discretion-
ary, rather than mandatory. See Dunn, 98 F.3d at 1311
(“Under the express terms of section 7701(g)(1), however,
[petitioners] do not receive fees merely because they
prevailed before the arbitrator.”).
    Jones argues that, under the fifth Allen factor, the
Army knew that its enforcement action would be unsuc-
cessful, but there is no evidence in the record to support
that assertion. The burden is on Jones to demonstrate
JONES   v. ARMY                                        7



that an award of attorney fees is warranted in the inter-
est of justice, id., but Jones has failed to provide any
evidence that the Army was aware or should have been
aware of Georgia’s waiver prohibition at the time the
Army initiated the action. Jones, the Army, and the AJ
all considered the provision to be valid at the time the
Army initiated the enforcement action.
    And finally, although Jones contends that the claim
raised in the Army’s enforcement petition was moot from
the outset because there was no longer an existing GDOL
compensation claim to be withdrawn, the Board found
that the compensation claim remained pending before the
GDOL. Jones fails to point to any evidence in the record
indicating that the claim did not remain under considera-
tion by the GDOL.
    Thus, the Board did not err in denying Jones’s motion
for an award of attorney fees. We have considered her
remaining arguments and conclude that they are without
merit. For the foregoing reasons, the decision of the
Board is affirmed.
                      AFFIRMED
                         COSTS
   No costs.
