Avegene L. Simmons, Petitioner, v. Merit Systems Protection Board, Respondent, 768 F.2d 323 (Fed. Cir. 1985)

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U.S. Court of Appeals for the Federal Circuit - 768 F.2d 323 (Fed. Cir. 1985)

July 18, 1985

Herbert Levenstein, Dross & Levenstein, Temple Hills, Md., argued for petitioner.

David Kane, Merit Systems Protection Bd., Washington, D.C., argued for respondent. With him on brief were Evangeline W. Swift, Gen. Counsel, Mary L. Jennings, Associate Gen. Counsel for Litigation, Marsha Mouyal and Joseph J. Ellis, Washington, D.C.

Before RICH, DAVIS and NEWMAN, Circuit Judges.

DAVIS, Circuit Judge.

The issue is whether Williams v. Office of Personnel Management, 718 F.2d 1553 (Fed. Cir. 1983)--holding that the Merit Systems Protection Board (MSPB or Board) lacks authority to award attorney fees to a federal employee who has prevailed on his claim of entitlement to disability retirement1 --is any longer good law after the decision of the Supreme Court in Lindahl v. Office of Personnel Management, --- U.S. ----, 105 S. Ct. 1620, 84 L. Ed. 2d 674 (1985). We hold that Lindahl, taken together with our jurisdictional holding in Bronger v. OPM, 740 F.2d 1552, 1554-1556 (Fed. Cir. 1984), sufficiently undermine the foundations of Williams as to such fees in retirement cases, and call rather for the opposite conclusion.

Petitioner Simmons was a Custodial Laborer with the General Services Administration. She applied to the Office of Personnel Management (OPM) for physical disability retirement. After OPM denied her application, the MSPB regional office reviewed that denial and granted disability retirement. The full MSPB denied review.2 

In June 1984, petitioner filed a timely motion for payment of attorney fees. The MSPB regional office dismissed for lack of jurisdiction, relying on this court's Williams decision, supra. This appeal ensued. We delayed consideration of the appeal pending the Supreme Court's disposition of Lindahl. After that case came down, we asked the parties for supplementary briefs re Lindahl 's effect on Williams. These arguments have been received and considered.

Williams, following "in [this court's] Lindahl footsteps," held that we lack jurisdiction to review the grant or non-grant of attorney fees in disability retirement cases. 718 F.2d at 1554, 1557. The Supreme Court's Lindahl decision expressly held otherwise as to this court's jurisdiction over appeals from MSPB disability retirement decisions themselves.3  In reaching this conclusion, the Court took pains to spell out the various considerations--statutory text, legislative history, policies of sound judicial administration--pointing to the result that this court now has exclusive jurisdiction over all appeals (except in discrimination matters) from the MSPB. See --- U.S. at ---- - ----, 105 S. Ct. at 1633-1638. It indisputably follows from the Supreme Court's decision and discussion in Lindahl that Williams' following of this court's Lindahl footsteps (as to our jurisdiction) was also overruled. We therefore have jurisdiction of the current appeal.

The more important and complex issue is whether the MSPB has been given authority to award attorney fees to an employee prevailing on her claim for disability retirement. The only express statutory provision authorizing the MSPB to award attorney fees is 5 U.S.C. § 7701(g), which is part of the Civil Service Reform Act of 1978. Subsection (g) (1) provides:

Except as provided in paragraph (2) of this subsection [dealing with attorney fees in discrimination cases], the Board, or an administrative law judge or other employee of the Board designated to hear a case, may require payment by the agency involved of reasonable attorney fees incurred by an employee or applicant for employment if the employee or applicant is the prevailing party and the Board, administrative law judge or other employee (as the case may be) determines that payment by the agency is warrented in the interest of justice, including any case in which a prohibited personnel practice was engaged in by the agency or any case in which the agency's action was clearly without merit.

The bottom-line is whether this subsection, an integral part of Sec. 7701, applies to a federal employee seeking disability retirement.

Williams ruled that the subsection did not cover those employees, but that ruling was largely based on, and influenced by, the Lindahl decision of this court4  which had specifically held that the MSPB considered disability retirement cases solely under 5 U.S.C. § 8347(d) (1), not at all under Sec. 7701. While the Supreme Court's Lindahl decision did not pass directly upon that particular problem, the Court did (a) disagree with several of the reasons this court had given for coming to the conclusion that Sec. 7701 did not apply at all, (b) specifically point out that our Bronger decision, 740 F.2d 1552, 1554-56 (1984), and the MSPB itself had applied Sec. 7701 (at least to some extent), and (c) make it clear that the Supreme Court left the issue of Sec. 7701 entirely open. In these circumstances, we think Williams should be reexamined anew apart from the emanations of our earlier Lindahl decision (which has been superseded by the Supreme Court's decision). We now proceed to that reexamination.

First, this court has already specifically held that an employee seeking non-disability retirement falls under Sec. 7701. In Bronger v. Office of Personnel Management, 740 F.2d 1552 (1984), we ruled that an employee asking non-disability retirement proceeds before the MSPB under Sec. 7701. 740 F.2d at 1554-56.5  From the procedural and jurisdictional point of view, there is now absolutely no difference between seekers of non-disability retirement (like Bronger) and those requesting disability retirement. Both types obtain their right to appeal to the MSPB from 5 U.S.C. § 8347(d) (1):

Subject to paragraph (2) [concerning mental disability] of this subsection, an administrative action or order affecting the rights or interests of an individual or of the United States under this subchapter [relating to all civil service retirement] may be appealed to the Merit Systems Protection Board under procedures prescribed by the Board.

Aside from the "finality clause" of Sec. 8347(c)--which is discussed in Lindahl and applies only to physical disability retirement--there is no statutory difference in treatment between Bronger 's non-disability retirement claim and present petitioner's disability claim. In particular, there is no statutory difference with respect to the type and course of proceedings within the MSPB (though there is a substantive difference due to the "finality clause"). Bronger therefore is precedent of this court that Sec. 7701 applies here--and Bronger is now in conflict with Williams.

It is also very significant that the MSPB applies Sec. 7701 procedures to retirement claims (including disability ones). See 5 C.F.R. Sec. 1201.3(a) (6) and, Secs. 1201.11 et seq.; and this court's Lindahl decision, 718 F.2d at 398-99 ("In connection with appeals to MSPB like Lindahl's, MSPB has by regulation elected to employ Sec. 7701 procedures"). In Chavez v. Office of Personnel Management, 6 MSPB 343, 348-49, 6 M.S.P.R. 404, 411-13 (1981), a physical disability retirement claim, the Board said: "Since subsection 8347(d) clearly is a 'law' under which applicants in disability retirement cases may submit an appeal to the Board, said appeals are necessarily governed by Section 7701. * * * The [Civil Service] Reform Act contains no provision for Board consideration of 'appeals,' whether authorized under that Act or under some other statutory or regulatory authority, which are not governed by Section 7701."6 

The Board's use of Sec. 7701 procedures for retirement cases is especially important because Sec. 8347(d) (1), supra --the statute specifically authorizing appeals to the MSPB on retirement matters--provides for such an appeal "under procedures prescribed by the Board " [emphasis added]. The procedures prescribed and used are definitely those of Sec. 7701.

Once we recognize that Sec. 7701 applies and has been applied to petitioner's disability retirement claim, we cannot exclude application of subsection (g) (1) of Sec. 7701--set forth supra --authorizing attorney fees (at least for employees and applicants for employment) to the prevailing party "in the interest of justice." The statutory terms are all-inclusive; there is no exclusion, in the text of the subsection or its legislative history, of any type or class of case. Retirement claims are necessarily covered, and there is nothing to suggest their omission. The canon that waivers of statutory immunity are strictly construed can have no impact on such a broad and literally-encompassing provision which fully covers the present case.

It has been said by some advocates (see the Supreme Court's Lindahl opinion, U.S. at ----, 105 S. Ct. at 1633-1634) that chapter 77 of Title 5, of which Sec. 7701 is one part, applies only to adverse actions, but the Supreme Court's Lindahl decision, invoking Sec. 7703(b) (1) (another part of chapter 77) as giving this court jurisdiction over disability retirement appeals, shows the error of that general postulate. The Board's employment of Sec. 7701 procedures in retirement cases likewise conflicts with that restricted view.

The upshot of our reexamination (in the light of the Supreme Court's Lindahl decision and of Bronger) is that petitioner is entitled to have her fee application considered by the MSPB under Sec. 7701(g) (1). The case must be remanded to the MSPB for that consideration. Of course, we intimate nothing as to her right to recover under that subsection.



And also holding that this court has no jurisdiction over an appeal from the MSPB's denial of such fees


At first, the MSPB's field office sustained OPM's disallowance, and the full MSPB denied review. Petitioner then appealed to the District of Columbia Circuit (which at that time had non-exclusive jurisdiction of such an appeal) which remanded to the MSPB for the taking of additional evidence. Simmons v. Office of Personnel Management, 684 F.2d 1033 (D.C. Cir. 1982). It was on remand from the District of Columbia Circuit that Ms. Simmons prevailed


The Court held: "Accordingly we conclude that MSPB decisions concerning retirement disability claims are reviewable in the first instance by the Federal Circuit pursuant to the jurisdictional grants in 5 U.S.C. § 7703(b) (1) and 28 U.S.C. § 1295(a) (9)." --- U.S. at ----, 105 S. Ct. at 1638


The Williams opinion said that the "complex jurisdictional and statutory construction issues" before it "were closely tied to and indeed dependent upon the outcome" of this court's Lindahl case (718 F.2d at 1554); that "we follow today in Lindahl 's footsteps by holding that this court likewise lacks jurisdiction" over MSPB attorney fee decisions (718 F.2d at 1554); that Lindahl had decided for this court that the MSPB considered physical disability cases under section 8347(d), not section 7701(a) (718 F.2d at 1554); and that the Williams opinion "follow [s] Lindahl 's lead" by examining the plain language of the statute (718 F.2d at 1555). Williams also referred to "the plain language of the statute, read in light of Lindahl " (718 F.2d at 1556) and rejected an argument because it was too dependent "in light of Lindahl " on implication and inference (718 F.2d at 1557)


Bronger is now on petition for rehearing by this court, but not on the "jurisdictional" question discussed at 740 F.2d at 1554-56, which includes the discussion of Sec. 7701. The rehearing petition challenges solely the Bronger decision on the merits ("The Military Service")


Section 7701(a) begins: "An employee, or applicant for employment, may submit an appeal to the Merit Systems Protection Board from any action which is appealable to the Board under any law, rule, or regulation."