Mary Kontogeorge, Petitioner, v. Office of Personnel Management, Respondent, 907 F.2d 159 (Fed. Cir. 1990)

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U.S. Court of Appeals for the Federal Circuit - 907 F.2d 159 (Fed. Cir. 1990) June 18, 1990

Before MARKEY, Chief Judge, BENNETT, Senior Circuit Judge, and SAMUEL CONTI, Senior District Judge.* 

DECISION

PER CURIAM.


Mary Kontogeorge appeals from the final decision of the Merit Systems Protection Board (board), Docket No. NY083187A0247-1 (M.S.P.B. October 6, 1989), affirming the administrative judge's (AJ) initial decision dismissing without prejudice her motion for attorney fees. We affirm.

OPINION

The board's dismissal without prejudice of Kontogeorge's motion for attorney fees was not an abuse of discretion considering the pending state court action between Kontogeorge and her attorney involving whether and in what amount attorney fees are due the attorney. Kontogeorge does not dispute that she "explained to the judge that it would be a good idea to wait for the outcome of this case [the state action]." See Petitioner's Brief at 21 (Petition for Review of Initial Decision Dated January 11, 1989).

As the board indicated, Kontogeorge may refile her appeal according to the instructions given by the AJ: " [A]ppellant is granted leave to refile this appeal no later than ten days after the entrance of judgment by the relevant state court disposing of appellant's obligations, if any, to her attorney." Initial Decision at 2 (M.S.P.B. January 11, 1989).

Kontogeorge's requests for reimbursement of miscellaneous copying and correspondence expenses incurred in this action and for interest on attorney fees is raised for the first time on appeal and cannot be considered by us. Further, we do not reach the issue of coercion because due to the dismissal without prejudice, there is no final decision on the merits.

 *

Senior District Judge Samuel Conti of the Northern District of California, sitting by designation