Allen L. Mcalear, Petitioner, v. Merit Systems Protection Board, Respondent, 806 F.2d 1016 (Fed. Cir. 1986)

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U.S. Court of Appeals for the Federal Circuit - 806 F.2d 1016 (Fed. Cir. 1986)

Nov. 25, 1986

Allen L. McAlear, Bozeman, Mont., pro se.

Llewellyn M. Fischer, Acting Gen. Counsel, Mary L. Jennings, Associate Gen. Counsel for Litigation, Marsha E. Mouyal, Reviewer of Litigation and Calvin M. Morrow, Merit Systems Protection Bd., Washington, D.C., submitted for respondent.

Before DAVIS, SMITH and NIES, Circuit Judges.

DAVIS, Circuit Judge.

This appeal concerns an unpaid former lawyer for a discharged Government employee who seeks his remedy (for payment for his successful services) in the wrong forum. Petitioner McAlear, an attorney, is the prior representative of Nancy L. McBeen, a former employee of the Department of the Interior (DOI) who appealed to the MSPB to review DOI's refusal to accept the withdrawal of her resignation and DOI's separation of her from her position. The presiding official reversed her separation and ordered reinstatement. McAlear then filed a request for attorney fees which was held to be premature. Before the full Board considered the merits of the removal matter, Ms. McBeen substituted another representative for McAlear and the latter sought to withdraw from the case as well as to be permitted to refile his motion for fees. Thereafter, the full Board denied the DOI's petition for review, granted McAlear's motion to withdraw, and also his motion to be permitted to refile his fee request.

Very shortly, McBeen (acting through her new representative) and DOI settled the adverse action by a full release under which McBeen received a total of $150,000.00 in compensation, and in return she agreed voluntarily to resign from the agency (as of the effective date of the original resignation which she had withdrawn). McBeen also agreed to withdraw her pending request to the MSPB for attorney fees (and any further MSPB proceedings on this adverse action) together with the concomitant equal opportunity proceeding she had filed.1  The release provided explicitly that "McBEEN agrees to defend and hold AGENCY [DOI] harmless in any action or proceeding brought by Allen L. McAlear, McBEEN's former representative, against AGENCY which alleges any property right of McAlear in said sum of $150,000.00."After McBeen withdrew her request to the Board for attorney fees, McAlear sought from the Board attorney fees out of the $150,000.00 settlement (or, apparently, from the agency) because of the time he spent representing McBeen in the MSPB proceedings. The presiding official held that, because of the full settlement and release between McBeen and DOI and the failure of McAlear to establish that the MSPB has authority to enforce an attorney's lien, the MSPB no longer had jurisdiction to award attorney fees to McAlear, and accordingly dismissed McAlear's motion for such fees. The full Board denied review. This appeal followed.

The short of this case is that the MSPB has no jurisdiction, in the particular circumstances of this case, either to award fees to McAlear or to enforce any attorney's lien he may have against the settlement money. The Civil Service Reform Act, 5 U.S.C. § 7701(g) (1), provides for payment of attorney fees, not solely on the attorney's request, but to the "prevailing party " (emphasis added), and here Ms. McBeen, as the prevailing party, has plainly and explicitly withdrawn any request to the Board for attorney fees. That being so, there was no cognizable request for such fees before the MSPB. Petitioner McAlear, even though he is McBeen's former lawyer-representative, cannot, on his own and contrary to the expressed wishes and agreement of the prevailing party, call upon the MSPB to decide the reasonableness of his fee request or to impose a lien on the settlement funds awarded to McBeen. As indicated in the release-and-settlement agreement, his claim, if any, is against Ms. McBeen or the agency or the settlement fund--in any event, in some forum other than the Board. The latter is an administrative agency, the powers of which are restricted to the statutory authority given to it by Congress. Those powers do not include, in this situation, authority to aid an attorney whose "prevailing party" client has expressly agreed not to ask attorney fees from the MSPB.



The settlement agreement provided "that the $150,000.00 is to be paid to the order of McBEEN and her [new] representative EMPLOYMENT RIGHTS CENTER" in one check