James B. King, Director, Office of Personnel Management, Petitioner, v. Howard L. Short, Respondent, 86 F.3d 1173 (Fed. Cir. 1996)
Annotate this CaseBefore MICHEL, Circuit Judge, COWEN, Senior Circuit Judge, and LOURIE, Circuit Judge.
ON MOTION
ORDER
MICHEL, Circuit Judge.
The Director of the Office of Personnel Management (the Director) petitions for review of an order of the Merit Systems Protection Board awarding Howard L. Short attorney fees. In the alternative, the Director moves for remand. Short moves to dismiss.
BACKGROUND
Short appealed the Office of Personnel Management's (OPM) denial of a disability retirement annuity. The AJ reversed OPM's denial of a disability retirement annuity. The Director did not seek review of that decision. Thereafter, Short sought attorney fees under 5 U.S.C. § 7701(g) (1). The AJ awarded Short $1,125 in fees. OPM petitioned for review by the Board. The Board granted OPM's petition but affirmed the AJ's award of fees. One member of the Board dissented. The Director petitions for review of the Board's decision.
The Director has recently notified the court that, before petitioning this court for review, he petitioned for reconsideration by the Board. The Board dismissed the petition for reconsideration because the Director had also filed a petition for review with this court. The dismissal was "without prejudice to its refiling in the event the Federal Circuit should deny the Director's petition on the ground that he must first seek reconsideration from the Board...."
Because the court desires the Board's views on the Director's petition for reconsideration,* we deny the Director's petition at this time and remand for the purpose of permitting the Board to decide the petition for reconsideration.
Accordingly,
IT IS ORDERED THAT:
(1) This case is remanded for the purpose of permitting the Board to decide the petition for reconsideration.
(2) OPM's petition for review is denied.
(3) OPM's motion for remand is moot.
(4) Short's motion to dismiss OPM's petition for review is denied.
(5) Each side shall bear its own costs.
The statute permitting the Director to seek review in this court, 5 U.S.C. § 7703(d), states that "the Director may not petition for review of a Board decision under this section unless the Director first petitions the Board for a reconsideration of its decision, and such petition is denied."
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