                      UNITED STATES OF AMERICA
                   MERIT SYSTEMS PROTECTION BOARD


MARY A. MILLER,                                 DOCKET NUMBER
             Appellant,                         SF-0752-11-0766-A-3

             v.

DEPARTMENT OF THE INTERIOR,                     DATE: March 30, 2016
            Agency,

                    and

OFFICE OF PERSONNEL
  MANAGEMENT,
              Agency.



        THIS FINAL ORDER IS NONPRECEDENTIAL 1

      Edward H. Passman, Esquire, Washington, D.C., for the appellant.

      Mike Gieryic, Esquire, Anchorage, Alaska, for the Department of
        the Interior.

       Becky C. Ronayne, Esquire, and Robert J. Girouard, Esquire, Washington,
        DC, for the Office of Personnel Management.


                                      BEFORE

                          Susan Tsui Grundmann, Chairman
                             Mark A. Robbins, Member


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   A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

                                        FINAL ORDER

¶1            The appellant has filed a motion for attorney fees, seeking $10,532.06 from
     the Office of Personnel Management (OPM).            For the following reasons, we
     DENY the motion for attorney fees because the appellant was not a prevailing
     party.

                                        BACKGROUND
¶2            The procedural history of the underlying chapter 75 appeal is lengthy, but
     we summarize the relevant portions herein. The appellant filed a Board appeal
     after the agency removed her for failing to accept a management-directed
     reassignment, and she asserted several affirmative defenses.                Miller v.
     Department of the Interior, 2013 MSPB 27, ¶ 2. 2 In a January 6, 2012 initial
     decision, the administrative judge upheld the removal, finding that the agency
     proved the charge by preponderant evidence and that the appellant did not prove
     any of her affirmative defenses. Id., ¶ 3. After the appellant filed a petition for
     review, the Board, in an April 3, 2013 Opinion and Order, vacated the initial
     decision, found that the agency action did not promote the efficiency of the
     service, reversed the removal, and ordered the agency to reinstate the appellant to
     her former position. Id., ¶¶ 4, 10-11. On May 13, 2013, the Board reopened the
     case, vacated its earlier Opinion and Order, and issued a new Opinion and Order,
     still vacating the initial decision and reversing the removal. Miller v. Department
     of the Interior, 119 M.S.P.R. 438, ¶¶ 1-2 (2013).
¶3            The OPM Director petitioned the Board for reconsideration of its May 13,
     2013 Opinion and Order. Miller v. Department of the Interior, 120 M.S.P.R. 426,
     ¶ 1 (2013). In a December 6, 2013 Opinion and Order, the Board denied the



     2
       The Board’s opinion in Miller v. Department of the Interior, published in the advance
     sheet for Westlaw at 119 M.S.P.R. 221, was withdrawn from the bound volume because
     it was vacated.
                                                                                        3

     Director’s petition, and affirmed as modified its prior Opinion and Order. Id.,
     ¶¶ 1, 25.
¶4         On December 13, 2013, the appellant filed a motion for attorney fees
     against OPM. Miller v. Department of the Interior, MSPB Docket No. SF-0752-
     11-0766-A-3, Attorney Fee File (A-3 AFF), Tabs 1, 3, 10. The Director of OPM
     subsequently petitioned the U.S. Court of Appeals for the Federal Circuit (Federal
     Circuit) for judicial review of the Board’s December 6, 2013 Opinion and Order.
     A-3 AFF, Tab 11; see Cobert v. Miller, 800 F.3d 1340, 1342 (Fed. Cir. 2015).
¶5         On September 2, 2015, the Federal Circuit reversed the Board’s decision
     and remanded the matter to the Board with instructions to instate the
     administrative judge’s initial decision as the final decision of the Board. Cobert,
     800 F.3d at 1342, 1351. In compliance with the Federal Circuit’s instruction, the
     Board issued a Final Order, vacating its December 6, 2013 Opinion and Order,
     and instating the January 6, 2012 initial decision as the final decision of the
     Board.      Miller v. Department of the Interior, MSPB Docket No. SF-0752-11-
     0766-M-1, Final Order, ¶ 5 (Dec. 31, 2015).

                                          ANALYSIS
¶6         The      appellant   filed   her   motion   for    attorney   fees    pursuant
     to 5 U.S.C. § 7701(g)(1). A-3 AFF, Tab 1. This provision states that the Board
     may require payment of reasonable attorney fees incurred by an employee if the
     employee is the prevailing party and the Board determines that payment by the
     agency is warranted in the interest of justice. In attorney fee motions arising
     under 5 U.S.C. § 7701(g)(1), the Board has expressly adopted the standard set
     forth by the U.S. Supreme Court that an appellant is considered to have prevailed
     in a case and to be entitled to attorney fees only if she 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)
     (citing, among other cases, Buckhannon Board & Care Home, Inc. v. West
                                                                                        4

     Virginia Department of Health & Human Resources, 532 U.S. 598, 604 (2001)).
     The determination of an award of attorney fees is based upon the final decision of
     the Board and whether, by the final decision, the appellant is a prevailing party.
     Baldwin, 115 M.S.P.R. 413, ¶ 11.
¶7         The Board’s December 31, 2015 final decision in the chapter 75 appeal
     instated the initial decision that upheld the appellant’s removal.      Under these
     circumstances, we find that the appellant is no longer a prevailing party. See,
     e.g., Kye v. Defense Logistics Agency, 82 M.S.P.R. 399, ¶ 10 (1999) (discussing
     an intervening U.S. Supreme Court decision that resulted in the agency’s removal
     action being sustained and finding that the appellant is not a prevailing party);
     Lokos v. Equal Employment Opportunity Commission, 70 M.S.P.R. 33, 36 (1996)
     (holding that the appellant was “no longer the prevailing party” after the U.S.
     District Court for the Western District of Texas determined that the agency
     properly demoted him and overturned the Board’s final decision reversing the
     demotion). We therefore deny her motion for attorney fees. 3

                     NOTICE TO THE APPELLANT REGARDING
                        YOUR FURTHER REVIEW RIGHTS
           This decision constitutes the Board’s final decision in this matter.      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:




     3
      In light of our disposition, we deny as moot OPM’s motion to dismiss the pending fee
     petition. A-3 AFF, Tab 4.
                                                                                 5

                           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
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 U.S. 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
                                                                        6

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.
