                          UNITED STATES OF AMERICA
                       MERIT SYSTEMS PROTECTION BOARD


     BARRY AHURUONYE,                                DOCKET NUMBER
                 Appellant,                          DC-0752-13-0384-A-1

                  v.

     DEPARTMENT OF THE INTERIOR,                     DATE: April 21, 2015
                 Agency.



             THIS FINAL ORDER IS NO NPRECEDENTIAL 1

           Barry Ahuruonye, Hyattsville, Maryland, pro se.

           Josh C. Hildreth, Washington, D.C., for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                                 Mark A. Robbins, Member


                                       FINAL ORDER

¶1        The appellant has filed a petition for review of the addendum 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 or the erroneous application of the law to the facts of the case; the

     1
        A nonprecedential order is one that the Board has determined does not add
     sign ificantly 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 Parties may cite nonprecedential orders,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

     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. We AFFIRM
     the addendum initial decision.        However, we MODIFY the initial decision to
     apply the proper standard for evaluating whether the appellant is entitled to an
     award of attorney fees, still finding that he is not entitled to such an award, and to
     provide the appellant with mixed-case appeal rights. See Caros v. Department of
     Homeland Security, 122 M.S.P.R. 231, ¶ 25 (2015).
¶2           The appellant was terminated from his position as a GS-12 Grants
     Management Specialist in which he served under a term appointment. On appeal,
     the parties reached an agreement pursuant to which, inter alia, the agency agreed
     to reinstate the appellant, and the appeal was dismissed as settled. 2 Ahuruonye v.
     Department of the Interior, MSPB Docket No. DC-0752-13-0384-I-1, Initial
     Decision at 2 (Apr. 13, 2013).          Subsequently, the appellant, represented by
     counsel, filed a petition for enforcement (PFE) of the settlement agreement.
     After receiving the agency’s response to the PFE, the administrative judge
     informed the appellant that it appeared the matters he had raised were moot, but
     she afforded him an additional opportunity to explain why he believed any other
     matters remained unresolved. In response, the appellant argued that he was owed
     $3,030.72 in interest on the back pay amount he had received, and that he should
     have been promoted to a GS-13. The agency explained and provided evidence to

     2
         The appellant appeared pro se before the Board in this addendum matter.
                                                                                             3

     show that it had computed that the appellant was entitled to $205.36 in interest
     and had paid him that amount.         In denying the PFE, the administrative judge
     agreed with the agency’s interest calculations and further found that the appellant
     had failed to support his claim that he was entitled to be promoted to a higher
     grade. Ahuruonye v. Department of the Interior, MSPB Docket No. DC-0752-13-
     0384-C-1, Initial Decision at 1-8 (Mar. 28, 2014).          That decision became the
     Board’s final decision when neither party filed a petition for review.
¶3         The appellant then timely filed a pro se petition for attorney fees. Attorney
     Fees Initial Appeal File (AFIAF), Tab 1. He argued that fees were warranted in
     the interest of justice because the agency knew or should have known that it
     would not prevail on the merits concerning his assignment upon being reinstated. 3
     Id. at 11-12.    The appellant’s attorney filed a “Memorandum in Support for
     Amended Motion for Counsel Fees” in which he argued that the agency had failed
     to timely demonstrate its full compliance with the settlement agreement, id.,
     Tab 3 at 2-4, and that the appellant should be considered a prevailing party
     because “the Agency did not feel compelled to comply with the settlement
     agreement until after the Appellant hired counsel to file a petition for
     enforcement,” id. at 9.     The appellant’s attorney further argued that fees were
     warranted in the interest of justice, id. at 9-10, and that the fees he sought were
     reasonable, id. at 1, 10-11.       In a subsequent pleading, the appellant again
     challenged the agency’s compliance with the settlement agreement, id., Tab 4

     3
       The appellant also argued that the agency was not in compliance with the settlement
     agreement as to other matters, AFIAF, Tab 1 at 4-10, most of which, it appears, were
     raised in his PFE but apparently not adjudicated to his satisfaction. Under these
     circumstances, the appellant’s proper course of action would have been to file a petition
     for review of the compliance initial decision, but he failed to do so. To the extent there
     are other matters of alleged noncompliance that the appellant d id not raise in h is PFE,
     he may raise them in a new PFE to be filed with the regional office. We make no
     findin g as to the timeliness of any such PFE. See Phillips v. Department of Homeland
     Security, 118 M.S.P.R. 515, ¶ 11 (2012) (a PFE alleging breach of a settlement
     agreement must be filed within a reasonable amount of time of the date the petitioning
     party becomes aware of the breach).
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     at 1-2, repeating his attorney’s claim that the agency only complied with the
     administrative judge’s order because the appellant filed a PFE, id. at 4.
¶4           In her addendum initial decision (AID), the administrative judge found that
     the appellant was not a prevailing party in connection with his PFE. Id., Tab 5,
     AID at 4. Accordingly, she denied his motion for attorney fees. AID at 1, 4.
¶5           The appellant has filed a petition for review, 4 Petition for Review (PFR)
     File, Tab 1, and a supplement, id., Tab 2. The agency has filed a response, id.,
     Tab 4, to which the appellant has replied, id., Tab 5.
¶6           On review, the appellant challenges certain of the administrative judge’s
     findings, PFR File, Tab 1 at 7-20, but he does not specifically dispute the
     administrative judge’s finding that he was not a prevailing party in his PFE and
     therefore is not entitled to attorney fees, 5 id., Tabs 1-2, 5.
¶7           In finding that the appellant was not a prevailing party and therefore not
     entitled to an award of attorney fees, the administrative judge relied upon the
     Supreme Court’s decision in Buckhannon Board & Care Home, Inc. v. West
     Virginia Department of Health & Human Resources, 532 U.S. 598 (2001). There,
     the Court interpreted the “prevailing party” standard contained in the attorney

     4
         The appellant appears pro se on petition for review.
     5
       With his petition for review, the appellant has submitted portions of several affidavits
     that were prepared in connection with an equal employment opportunity complaint he
     filed, PFR File, Tab 1 at 24-27, 30-34, 48-50, d iscovery documents from one of several
     appeals he filed from the agency’s denial of h is within-grade increase, id. at 36-38, a
     position description for his position at the GS-13 level, id. at 41-46, and a
     September 30, 2014 Office of Inspector General (OIG) report, id. at 54-118. These
     documents are neither new nor material and we have therefore not considered them.
     See Avansino v. U.S. Postal Service, 3 M.S.P.R. 211, 214 (1980); see also Russo v.
     Veterans Administration, 3 M.S.P.R. 345, 349 (1980). The appellant also alleges that
     he disclosed wrongdoing to the OIG by an individual invo lved in his term ination who
     then retaliated against him. PFR File, Tab 2. We are aware that the appellant has filed
     an individual right of action (IRA) appeal against the agency that is pending in the
     Board’s Washington Regional Office. Ahuruonye v. Department of the Interior, MSPB
     Docket No. DC-1221-14-0911-W-1. If th is current claim is not included in the pending
     IRA appeal, and if the appellant wishes to pursue it before the Board, he must first file
     a complaint with the Office of Special Counsel.
                                                                                    5

     fees provisions of the Fair Housing Amendments Act of 1988 and the Americans
     with Disabilities Act of 1990 to allow an award of fees only when a party has
     been awarded some relief by the court. Buckhannon, 532 U.S. at 601, 604. The
     Court stated, “[E]nforceable judgments on the merits and court-ordered consent
     decrees create the material alteration of the legal relationship of the parties’
     necessary to permit an award of attorney fees.” Id. (quoting Texas State Teachers
     Ass’n v. Garland Independent School Dist., 489 U.S. 782, 792-93 (1989)). The
     Court specifically rejected the “catalyst theory,” whereby a party could be found
     to have prevailed based on the opposing party’s voluntary change of conduct after
     the filing of a lawsuit, as a viable basis to award attorney fees. Buckhannon,
     532 U.S. at 605.
¶8            However, noting that Buckhannon involved a request for attorney fees
     relating to the merits phase, the Board in Mynard v. Office of Personnel
     Management, 108 M.S.P.R. 58, ¶¶ 11, 13 (2008), considered whether the same
     “prevailing party” standard should apply equally to an award of attorney fees
     relating to the compliance phase of a Board appeal where the appellant’s efforts
     do not result in an enforceable order or a Board-approved settlement. The Board
     concluded that its oversight of the parties’ compliance efforts provides the PFE
     process with sufficient Board imprimatur to allow an appellant to qualify as a
     “prevailing party” under 5 U.S.C. § 7701(g) even in the absence of a Board order
     finding the agency in noncompliance or an agreement executed by the parties to
     settle compliance matters. Mynard, 108 M.S.P.R. 58, ¶ 17.
¶9            To show that he is the prevailing party in the compliance phase of the
     proceedings, an appellant must establish, among other things, that the agency
     materially breached the Board’s enforceable order or settlement agreement at
     issue.     Shelton v. Environmental Protection Agency, 115 M.S.P.R. 177, ¶ 12
     (2010). A material breach is one that relates to a matter of vital importance and
     goes to the essence of the contract. Young v. U.S. Postal Service, 113 M.S.P.R.
     609, ¶ 10 (2010).      In cases where the agency complies with the settlement
                                                                                        6

      agreement during the pendency of the PFE, the appellant is not required to
      establish that the agency’s eventual compliance was causally related to his PFE in
      order to establish that he is the prevailing party. Shelton, 115 M.S.P.R. 177, ¶ 12.
      Although the appellant bears the ultimate burden of proving the agency’s
      noncompliance, the agency bears the burden of producing relevant, material, and
      credible evidence of its compliance. Id.
¶10        On review, the appellant states that he “do[es] not wish to revisit the back
      pay issue.” PFR File, Tab 1 at 7. We construe this statement to mean that the
      appellant does not now allege that the agency materially breached the agreement
      regarding the back pay he received, including the interest. He does, however,
      claim that the agency breached the agreement by not granting him his “Time-in-
      Grade” promotion to GS-13, arguing that, because he has completed 52 weeks at
      GS-12, step 2, he should have advanced to GS-13. Id., Tab 5. In support of his
      claim, he cites to 5 C.F.R. § 300.604 for the proposition that time in grade is a
      requirement for a specified amount of time that employees must spend in a grade
      before they are eligible for promotion. PFR File, Tab 1 at 8. The appellant’s
      reliance is misplaced. Eligibility for promotion is not the same as entitlement to
      promotion.   The appellant has not shown that the settlement agreement which
      required the agency to reinstate him to his position at GS-12, step 1, otherwise
      entitled him to be promoted to GS-13.       Cf.   Thomas v. U.S. Postal Service,
      73 M.S.P.R. 120, 126 (1997) (when the Board reverses an appealable action, an
      employee is entitled to a promotion in a compliance proceeding only when some
      provision of law mandates it or he establishes that he would, in fact, have been
      promoted).
¶11        Similarly, the appellant challenges the administrative judge’s statement
      that, although the appellant had initially argued in his PFE that the agency placed
      him under a different supervisor upon his reinstatement, during the pendency of
      the PFE, when the appellant indicated that he did not want a change of supervisor,
      it took action to place him under his original supervisor (noting that the appellant
                                                                                         7

      had remained at all times in the same position with the same position
      description). AID at 3 n.1. The appellant asserts that, for a period of time after
      he was reinstated, he did not perform duties related to the processing of grants.
      He has not shown, however, that the settlement agreement requiring the agency to
      reinstate him precluded the agency from temporarily modifying his duties.
¶12        Because the appellant failed to show that the agency materially breached the
      settlement agreement by failing to promote him to GS-13 or by temporarily
      modifying his duties, he has not shown that he is the prevailing party in the
      compliance proceeding for purposes of being entitled to attorney fees.           See
      Shelton, 115 M.S.P.R. 177, ¶ 12. To the extent the administrative judge erred in
      her analysis of this issue, she reached the right result and therefore any such error
      did not prejudice the appellant’s substantive rights. See Panter v. Department of
      the Air Force, 22 M.S.P.R. 281, 282 (1984).

                      NOTICE TO THE APPELLANT REGARDING
                         YOUR FURTHER REVIEW RIGHTS
            The initial decision, as supplemented by this Final Order, constitutes the
      Board’s final decision in this matter. 5 C.F.R. § 1201.113. 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:
                                                                                    8

                           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 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
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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.
