                     NOTE: This disposition is nonprecedential.

 United States Court of Appeals for the Federal Circuit
                                      2009-3041

                                  DON A. MYNARD,

                                                           Petitioner,

                                          v.

                     OFFICE OF PERSONNEL MANAGEMENT,

                                                           Respondent.


      Don A. Mynard, of Gilbert, Arizona, pro se.

       Joseph A. Pixley, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, for respondent. With him on
the brief were Tony West, Assistant Attorney General, Jeanne E. Davidson, Director,
and Franklin E. White, Jr., Assistant Director.

Appealed from: Merit Systems Protection Board
                      NOTE: This disposition is nonprecedential.


 United States Court of Appeals for the Federal Circuit


                                       2009-3041

                                   DON A. MYNARD,

                                                 Petitioner,

                                            v.

                      OFFICE OF PERSONNEL MANAGEMENT,

                                                 Respondent.


                Petition for review of the Merit Systems Protection Board
                                  in DA0831060436-B-1.

                           ___________________________

                           DECIDED: October 16, 2009
                           ___________________________


Before BRYSON, CLEVENGER, and DYK, Circuit Judges.

PER CURIAM.

                                       DECISION

      Don A. Mynard petitions for review of a final decision of the Merit Systems

Protection Board denying his motion for attorney fees. The fee request pertains to Mr.

Mynard’s successful appeal of a reduction in his retirement pay as well as his later

efforts to enforce that order by filing a petition for enforcement. We affirm the decision

of the Board denying fees related to the merits appeal, but we reverse and remand the

decision of the Board denying fees related to the enforcement proceedings.
                                     BACKGROUND

       Mr. Mynard served on active duty in the United States Army at various times and

worked as a civilian employee with the Department of the Army until his retirement in

1994. Because he did not initially make a deposit into the Civil Service Retirement

System (“CSRS”) for his military service, the Office of Personnel Management (“OPM”)

reduced his CSRS annuity. Mr. Mynard successfully appealed that reduction to the

Merit Systems Protection Board, which reversed OPM’s action in an initial decision

dated August 28, 2006. In that decision, the Board ordered OPM, within 20 days, to

provide a means for Mr. Mynard to make a belated deposit for his military service. That

order provided, in relevant part:

       I ORDER OPM to set a time limit under 5 C.F.R. § 831.2107(a)(1), before
       which the appellant may make the deposit for his military service to his
       former employing agency. OPM must complete this action within 20 days
       after this decision becomes final. OPM is further ORDERED to inform the
       appellant in writing of all actions taken to comply with this Order and of the
       date on which it believes it has fully complied.

That initial decision became final on October 2, 2006.

       On November 15, 2006, after the 20-day period had expired, Mr. Mynard filed a

petition for enforcement (“PFE”) of the Board’s decision. On November 29, 2006, a

Board administrative judge ordered OPM to respond to the PFE. In response, OPM

stated that it was attempting to comply with the Board’s order and related that on

October 4, 2006, it had sent a form to the Defense Finance Accounting Service

(“DFAS”) to obtain the information necessary to comply with the order.                  The

administrative judge then conducted a telephone conference between the parties on

December 19, 2006, after which she instructed OPM “to do whatever is necessary to

resolve the matter as quickly as possible.” The administrative judge issued a written



2009-3041                                    2
summary of that conference and provided an opportunity for either party to object to or

supplement the summary.

      During a second conference call, on January 9, 2007, OPM advised the Board

that it had received the necessary information from DFAS and had fully complied with

the Board’s order. During that conference, the administrative judge advised the parties

that if it appeared that OPM was in compliance with the order she would issue an Order

to Show Cause informing the parties of her intention to dismiss the PFE as moot. The

administrative judge then issued the Order to Show Cause, which indicated that if Mr.

Mynard did not respond the PFE would be dismissed as moot. Mr. Mynard did not

respond, and the administrative judge dismissed the PFE on January 25, 2007.

      On February 13, 2007, Mr. Mynard filed a motion for attorney fees for work

performed during the merits phase of his appeal as well as work related to the PFE. A

March 22, 2007, show cause order advised Mr. Mynard that the portion of his request

related to the merits phase was untimely and that it did not appear that he was eligible

for fees related to the PFE because there was no enforceable judgment on the merits of

the PFE. Mr. Mynard responded that with respect to the merits phase the deadline

should be waived because he understood the deadline for filing a motion for attorney

fees to depend on the date of final settlement rather than the date of the Board’s final

decision and also because he had cooperated with OPM in the agency’s request for

additional time to comply with the Board’s order. On June 14, 2007, the administrative

judge concluded that Mr. Mynard had been informed of the deadline for filing a motion

for attorney fees and that he had not made a showing of good cause to waive the filing

deadline; the administrative judge therefore dismissed the portion of the motion related




2009-3041                                  3
to the merits phase as untimely filed. With respect to the portion of the attorney fee

request related to the PFE, the administrative judge concluded that the Supreme

Court’s decision in Buckhannon Board & Care Home, Inc. v. West Virginia Department

of Health & Human Resources, 532 U.S. 598 (2001), precluded such an award “since

no enforceable judgment was issued on the merits for purposes of a request for

attorney fees.”

       On review, the full Board affirmed the administrative judge’s determination that

the attorney fee petition relating to the merits phase was untimely. However, the Board

disagreed with the administrative judge’s conclusion that Buckhannon requires a

separate enforceable judgment on the merits. The Board concluded instead that fees

are available if “the relief the party achieves carries with it sufficient judicial, or in this

case, Board imprimatur.” The Board therefore remanded the case to the administrative

judge for further consideration. On remand, the administrative judge stated that to be a

prevailing party for attorney fee purposes in an enforcement proceeding a party must

show both that the agency was not in compliance and that the relief obtained was

caused by the initiation of the enforcement proceedings.           The administrative judge

determined that in this case Mr. Mynard had not shown that his filing of a PFE caused

OPM to comply as “OPM was already in the process of complying with the August 28,

2006 Order when the appellant filed his PFE.” Based on his finding that OPM was

already complying before the PFE was filed, the administrative judge concluded that Mr.

Mynard could not collect attorney fees for work performed during the enforcement

phase. That determination became the final decision of the Board on September 18,

2008. Mr. Mynard then brought this appeal.




2009-3041                                     4
                                      DISCUSSION

       1.   By regulation, a fee petition for work done before the Merit Systems

Protection Board generally must be filed within 60 days after the Board decision

becomes final.    See 5 C.F.R. § 1201.203(d).       Under that regulation, Mr. Mynard’s

attempt to collect fees for his efforts during the merits phase of his appeal was untimely.

The Board’s initial decision was issued on August 28, 2006, and became final on

October 2, 2006. Mr. Mynard’s fee petition was therefore due by December 1, 2006.

Because the petition was filed on February 13, 2007, it was 74 days late.

       The administrative judge concluded that no good cause was shown for Mr.

Mynard’s tardiness in making that submission pursuant to 5. C.F.R. § 1201.12, as the

time for filing a fee petition was clearly indicated on the initial decision and Mr. Mynard

was represented by counsel at all times. On appeal, the Board fully considered and

rejected Mr. Mynard’s argument that because the administrative judge granted OPM

additional time to comply with her August 28, 2006, order, he believed he would also be

afforded additional time to file his fee petition. As the Board noted, “OPM’s failure to

meet the time limits set forth in the Board’s order is irrelevant to the question of whether

the appellant acted diligently and prudently with respect to his request for attorney fees.”

       Mr. Mynard repeats the same argument on appeal, stating that “[a]t the hearing

the [administrative judge] granted an extension of time to OPM and implied the same

courtesy would be granted to appellant . . . .” However, the administrative judge’s

written summary of that conference is devoid of any reference to the granting of a time

extension for an attorney fee petition. Mr. Mynard neither objected to nor attempted to

supplement that summary when he had the opportunity to do so, and he cannot now




2009-3041                                    5
attempt to rely on statements that are not reflected in the record. Accordingly, there is

no evidence that Mr. Mynard was given reason to believe that his attorney fee

application for work during the merits phase of the appeal would be accepted beyond

the 60-day regulatory time limit. We therefore affirm the Board’s conclusion that Mr.

Mynard did not demonstrate good cause for his late filing. See Mendoza v. Merit Sys.

Prot. Bd., 966 F.2d 650, 653 (Fed. Cir. 1992) (en banc) (“[W]hether the regulatory time

limit for an appeal should be waived based upon a showing of good cause is a matter

committed to the Board’s discretion and this court will not substitute its own judgment

for that of the Board.”).

       2. Mr. Mynard also argues that he should be granted attorney fees for work

performed during the enforcement phase in preparing his petition for enforcement. The

government contends that his argument in that regard is foreclosed by the Supreme

Court’s decision in Buckhannon. In that case, which has been held applicable to fee

applications before the Board, see Sacco v. Dep’t of Justice, 317 F.3d 1384 (Fed. Cir.

2003), the Supreme Court held that a change in conduct that may have been prompted

by the lawsuit but was not the result of a court order lacked “the necessary judicial

imprimatur on the change” to render the plaintiff a “prevailing party” for purposes of an

attorney fee award. The government argues that Buckhannon’s holding that “prevailing

party” status can be obtained only where there is a judicially sanctioned change in the

legal relationship of the parties means that “the mere filing of a PFE in a board case, as

a stand alone action, does not materially alter ‘the legal relationship of the parties,’ so

as to confer ‘prevailing party’ status upon the filer.” The government relies on various

precedents of this court recognizing the Buckhannon rule that prevailing party status is




2009-3041                                   6
obtained only if there is “an actual, court-ordered alteration in the legal relationship

[between] the parties.” Chapman Law Firm Co. v. Greenleaf Constr. Co., 490 F.3d 934,

939 (Fed. Cir. 2007); see also Rice Servs., Ltd. v. United States, 405 F.3d 1017, 1025

(Fed. Cir. 2005); Brickwood Contractors, Inc. v. United States, 288 F.3d 1371, 1380

(Fed. Cir. 2003).   However, none of the cases the government cites deals with a

situation in which attorney fees are requested for work performed in enforcing a prior

judgment that altered the legal relationship between the parties, as is the case here.

      “[A] compliance proceeding is a continuation of the original action.” Greco v.

Dep’t of the Army, 852 F.2d 558, 561 (Fed. Cir. 1988). As the Board noted in this case,

      [T]he type of decisions the Board and its administrative judges may issue
      during the compliance phase of an appeal are not themselves enforceable
      decisions that alter the legal relationships of the parties; rather, the
      Board’s role in the compliance phase of an appeal is to determine whether
      the parties’ actions are in compliance with a Board order or a settlement
      agreement that altered the legal relationship of the parties during the
      merits phase of the appeal.

Therefore, courts have looked to the entirety of the appeal, including the merits phase,

to determine whether attorney fees are appropriate for work performed during the

enforcement phase. See Johnson v. City of Tulsa, Okla., 489 F.3d 1089 (10th Cir.

2007); Cody v. Hillard, 304 F.3d 767 (8th Cir. 2002); Blackman v. Dist. of Columbia, 328

F. Supp. 2d 36 (D.D.C. 2004).

      In Cody, the Eighth Circuit determined that attorney fees could be granted for

work performed in monitoring a private settlement agreement between a class of South

Dakota prisoners and the state. The court reasoned that the initial consent decree

effected the necessary court-ordered alteration in the legal relationship between the

parties and that the “earlier established prevailing party status extends to postjudgment




2009-3041                                   7
work . . . if it is a necessary adjunct to the initial litigation.” 304 F.3d at 773. The court

explained, “[t]he test is whether the later issues litigated were inextricably intertwined

with those on which the plaintiff prevailed in the underlying suit.” Id. “Reasonable

postjudgment monitoring,” the court held, is compensable. Id. at 774. In Blackman, the

district court applied that standard and awarded fees for enforcement efforts associated

with an earlier order, explaining that “an effort to secure a remedy through Court-

established procedures is—and must be—inextricably intertwined with the Court’s

conclusion that the violation existed in the first instance. Otherwise, the Opinion and

Order . . . is plaintiffs’ victory in paper only.” 328 F. Supp. 2d at 45.

       In Johnson, the Tenth Circuit rejected the argument that Buckhannon requires a

separate court order or decree related to post-judgment enforcement in order for a party

to be considered a “prevailing party” for purposes of awarding attorney fees. 489 F.3d

at 1103. The court held that measures that a party finds necessary to enforce a court’s

remedy cannot be divorced from the proceedings that led to obtaining that remedy, and

that an attorney fee award is available for enforcement activities that are necessary to

protect a judicially enforceable consent decree. Id. at 1105, citing Pennsylvania v. Del.

Valley Citizens’ Council for Clear Air, 478 U.S. 546 (1986). Thus, the court concluded,

when there is an earlier judicially sanctioned change in the parties’ legal relationship,

“attorney fees incurred for reasonable efforts to enforce that change—that is, protect the

fruits of the Decree—are compensable.”             Id. at 1108.   Together, these decisions

establish that a court’s authority to enforce its orders gives judicial imprimatur to

reasonable enforcement efforts.




2009-3041                                      8
       The government attempts to distinguish those cases on the ground that each

involved an underlying consent decree or enforceable judgment and that no such court-

ordered change is present here. But that argument ignores the fact that the Board

ordered OPM to provide Mr. Mynard with an opportunity to make a deposit into his

CSRS account within 20 days and to inform him in writing of all actions taken to comply

with the Board’s order. Like a court, the Board has authority to order corrective action

when it determines that a party is not in compliance with a Board order. See Kerr v.

Nat’l Endowment for the Arts, 726 F.2d 730, 732-33 (Fed. Cir. 1984). The Board’s order

of August 28, 2006, effected the required change in the relationship between the

parties, and the subsequent enforcement efforts are compensable because they are

linked to that order.

       The government contends that in Christina A. v. Bloomberg, 315 F.3d 990 (8th

Cir. 2003), the Eighth Circuit rejected the argument Mr. Mynard presents here.        In

Christina A., the court held that a court’s enforcement jurisdiction over a private

settlement agreement “is not enough to establish a judicial ‘imprimatur’ on the

settlement contract.”   Id. at 993.    However, the court in that case specifically

distinguished the enforcement of a private settlement agreement from the enforcement

of a consent decree, noting that “consent decrees are distinguishable from private

settlements by the means of enforcement. Consent decrees are enforceable through

the supervising court’s exercise of its contempt powers, and private settlements are

enforceable only through a new action for breach of contract.” Id. Unlike in Christina

A., where the parties had independently agreed to alter their behavior, in this case the

Board directly ordered the change in OPM’s relationship with Mr. Mynard.




2009-3041                                  9
      In response to the fee request for the enforcement efforts, the administrative

judge found that OPM was substantially in compliance with the August 28, 2006, order

based upon OPM’s assertion that prior to the 20-day time limitation in the order it had

sent forms to the Defense Finance Accounting Service to obtain the information needed

to comply with the order. While the agency representative stated to the Board that OPM

had initiated compliance efforts shortly after the Board’s order became final, OPM did

not set a time limit for Mr. Mynard to make a deposit for his military service within 20

days of the order becoming final, and it failed to keep him informed of the steps it had

taken to comply with the Board’s order, as the order directed. Therefore, even if the

steps taken by OPM constituted partial compliance with the order, it is clear that those

steps did not satisfy each of the requirements set forth in the order.       Indeed, the

government concedes that this court may conclude that there is not substantial

evidence to support the finding that that OPM was in substantial compliance with the

August 28, 2006, order.

      The government argues that we should remand this case to the Board in order to

provide it with an opportunity to supplement the record with evidence of its efforts to

comply with the Board’s order prior to the filing of the PFE. We see no justification for

giving the government a second chance to prove compliance, given that it failed to do in

the earlier proceeding before the Board even though it bore the burden of doing so. As

we explained in Garstkiewicz v. United States Postal Service, 981 F.2d 528, 530 (Fed.

Cir. 1992), “[t]he burden of compliance with the Board’s Order was not upon [the

petitioner], but upon [the agency].” Moreover, the government does not suggest that, in

remand proceedings, it would be able to show that OPM satisfied the requirement of the




2009-3041                                  10
order that it keep Mr. Mynard apprised of the steps it had taken to comply with the

Board’s order, as it appears that the first that Mr. Mynard learned of any steps that were

being taken to comply with the order was after he had filed his petition for enforcement.

We therefore conclude that the Board’s finding that Mr. Mynard was not entitled to fees

because OPM had substantially complied with the Board’s order is not supported by

substantial evidence.

      While Mr. Mynard is a prevailing party, in order to secure fees he must also

establish that an award is “warranted in the interest of justice.” 5 U.S.C. § 7701(g). The

steps OPM took on October 4, 2006, in response to the Board’s order may be pertinent

to that issue. Thus, having concluded that there is not substantial evidence supporting

a finding that OPM complied with the Board’s order, we remand to the Board for further

proceedings to determine whether a fee award is warranted in the interest of justice,

and if so to determine the appropriate amount of the award.




2009-3041                                  11
