Attorney Fees for Compliance Proceeding

In Mynard v. Office of Personnel Management, 2008 MSPB 23 (1/31/08), the appellant petitioned for review of the initial decision dismissing his motion for attorney fees relating to the merits phase of his retirement appeal as untimely filed and denying his motion for attorney fees relating to the compliance phase of his appeal on the basis that his petition for enforcement did not result in the issuance of an enforceable judgment. The MSPB held in a split decision that the award of attorney fees for the compliance phase of a Board appeal is not precluded even if the appellant’s compliance efforts do not result in an enforceable order or a Board-approved settlement agreement that materially alters the legal relationship of the parties.

The MSPB derives its authority to award attorney fees with respect to the compliance phase of a Board appeal from the same provision that authorizes the Board to award attorney fees with respect to the merits phase. See 5 U.S.C. §7701(g)1(1); see also, Garstkiewicz v. U.S. Postal Service, 981 F.2d 528, 530 (Fed. Cir. 1992). 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. See Kerr v. National Endowment for the Arts, 726 F.2d 730, 732-33 (Fed. Cir. 1984). Thus, a compliance proceeding is a continuation of the original action. See Greco v. Dept. of the Army, 852 F.2d 558, 561 (Fed. Cir. 1988).

Since 5 U.S.C. §7701 (g)(1) includes a “prevailing party” requirement, the Board generally requires appellants to establish that they prevailed with a compliance matter to be eligible for an award of attorney fees for work their attorneys performed applicable to the compliance phase of Board appeals. See e.g., Garstkiwicz, 981 F.2d at 530; Thomas v. U.S. Postal Service, 87 M.S.P.R. 331 (2000). However, the recovery of attorney fees is limited to those areas where the agency is found in noncompliance with the settlement agreement. If noncompliance occurs, and the terms of settlement included the agency’s agreement to pay reasonable attorney fees and expenses, then attorney fees must be awarded for the attorney’s efforts in enforcing the agency’s compliance. Id.

In Mynard, the MSPB found that a party may achieve “prevailing party” status for the purposes of qualifying for an award of attorney fees under a fee-shifting statute without obtaining an enforceable judgment on the merits or a court-ordered consent decree so long as the relief achieved carries with it sufficient judicial or Board imprimatur. The Board held that its oversight of the parties’ compliance efforts provides sufficient Board imprimatur to allow an appellant to qualify as a “prevailing party,” under 5 U.S.C §7701(g)(1), even in the absence of a Board order finding the agency in noncompliance or an agreement executed by the parties to settle compliance matters.

* This information is provided by the attorneys at Passman & Kaplan, P.C., a law firm dedicated to the representation of federal employees worldwide. For more information on Passman & Kaplan, P.C., go to https://www.passmanandkaplan.com.