## United States Court of Appeals for the Federal Circuit

05-5066

GERALDINE SACCO and KAREN VESTERBY, Plaintiffs-Appellants,

v.
UNITED STATES, Defendant-Appellee.

Michael J. Kator , Kator, Parks, & Weiser, P.L. L.C., of Washington, DC, argued for appellants. Gerald M. Alexander , Attorney, Commercial Litigation Branch, Civil Division, United States Department of Ju stice, of Washingt on, DC, argued for appellee. With him on the brief was Peter D. Keisler , Assistant Attorney General.
Appealed from: United States Court of Federal Claims Judge Mary Ellen Coster Williams

## United States Court of Appeals for the Federal Circuit

05-5066 GERALDINE SACCO and KAREN VESTERBY,

Plaintiffs-Appellants,

v. THE UNITED STATES, Defendant-Appellee.

__________________ _________ DECIDED: June 21, 2006

__________________ _________ Before MAYER, BRYSON, and DYK, Circuit Judges

. DYK, Circuit Judge

. Geraldine Sacco (“Sacco”) and Karen Vester by (“Vesterby”) appeal a decision of the United States Court of Federal Claims dismissing, for want of subject matter jurisdiction, their claims for attorney’s fees pursuant to the Back Pay Act, 5 U.S.C. § 5596(b)(1)(A)(ii). Sacco v. United States , 63 Fed. Cl. 424, 430 (2004). We affirm. BACKGROUND Sacco was employed as a Special Ag ent with the Drug Enforcement Agency (“DEA”). In August, 1998, she was placed on administrative leave pending completion of several months of medica l treatment and a suitability review. On December 27, 1998, after Sacco’s administrative leave an d accumulated annual and sick leave ran out, she entered absent without official leave (“AWOL”) status. On January 15, 1999, Sacco filed an appeal with the Merit Systems Protection Board (the “Board”), allegingthat the DEA had c o nstructive ly suspended her by forcing her into AWOL status. In February 1999, the DEA removed Sacc o fr om AWOL status and placed her on indefinite administrative leave ret r oactive to December 27, 1998. The DEA c onverted Sacco’s administrative leave to an indefin ite suspension on March 22, 1999. On May 14, 1999, the Board found that the DEA, by removing Sacco from AWOL status, had rescinded the alleged adverse action and dismissed Sacco ’s appeal as moot. On November 26, 1999, Sacco fil ed another appeal with the Boar d, alleging that the DEA had constructively suspended her when it did not rescind her indefinite sus pensio n after she submitted medical evidence of her fitness for duty earlier that month. In February 2000, the DEA rescinded Sacc o’ s indefinite suspens ion and placed her on non-duty status with pay retroactive to the date s he filed the medi cal evidence. At Sacco’s request, the Board dis m issed her appeal as moot. Sacco subsequently r equested attorney’s fees and expenses for both appeals from the Board pursuant to 5 U.S.C. § 7701(g). The Board denied both requests, concluding that under Buckhannon Board & Care Home, Inc. v. West Virginia Department of Health & Human Resources , 532 U.S. 598 (2001), because the DEA had voluntarily rescinded t he alleg ed adverse ac tions in bot h appe als, Sacco did not qualify as a “prevailing party” entitled to fees under the statute. We a ffirmed, holding that Buckhannon applied to section 7701(g). Sacco v. Dep’t of Justice , 317 F.3d 1384, 1387 (Fed. Cir. 2003). Vesterby was employed as an Occupationa l Health Nurse at the Sold ier s ’ and Airmen’s Home. The agency ter m inated her for unacceptable c o nduct effective August 24, 2001. Vesterby appealed to the Board, but after the agency unilaterally rescinded

05-5066 2her termination, the Board dis m issed the appeal as moot. On February 19, 2002, Vesterby sought a fee award from the Boar d under section 7701(g)(1 ). On April 19, 2002, the Board den ied her re q uest, concluding that Vest erby was not a “prevailin g party” under Buckhannon . Ves t erby appealed to this court, and we stayed the appeal pending our disposition of Sacc o’s appeal. When we issued our decision in Sacco , Vesterby withdrew her appeal. Sacco and Vesterby filed su it in the Court of Federal Claims seeking attorney’s fees for their Board appeals purs uant to the Back Pay Act. 5 U.S

. C. § 5596(b)(1)(A)(ii) (2000). The Court of Federal Claims (Judge Mary Coster Williams), relying on the Supreme Court’s decision in United States v. Fausto , 484 U.S. 439 (1988), dismissed the claims for want of subjec t matter jurisdiction. The cour t concluded that “[u]nder well entrenched precedent, the Court of Federal Claims has no jurisdiction to entertain actions seeking monetary remedies ste mming from adverse personnel actions over which the [Board] and the Federal Circuit have jurisdiction.” Sacco , 63 Fed. C l . at 428. Sacco and Vesterby timely appealed to th is court. We have jurisdiction pur suant to 28 U.S.C. § 1295(a)(3). DISCUSSI ON We review the Court of Federal Claim s’s dismissal f o r lack of jurisdiction de

novo

. Fisher v. United States , 402 F.3d 1167, 1173 (Fed. Cir. 2005) ( en banc ). The appellants contend that the Court of Federal Claim s erred in dismissing t h eir case for lack of jurisdiction. They agree t hat under t he Supreme Court’s decision in Fausto and our decis ion in Wort hington v. United States , 168 F. 3d 24 (Fed. Cir. 1999), the Court of Federal Claims lac ks jurisdic tion over any claim under the Back Pay Act

05-5066 3that could be assert ed before the Board. 1 They argue, howev er, that the Board lack ed jurisdiction over their claims. I First, the appellants assert that the Back Pay Act allows a c l aim for attorney’s fees under a catalyst theory, and that the Board would not hav e jurisdiction over such a claim. They point out that our court pr eviously entertained an appeal from a district court in a similar case without suggesting that the district court lacked jurisdiction. See , e.g. , Knigh t v. United States , 982 F.2d 1573 (Fed. Cir. 1993). Knight , of course, is not binding pr ecedent on this point becaus e the court did not address the issue. 2 W e conclude that the Back Pay Act does not prov ide for an award of attorney’s fees on a catalyst theory. A The attorney’s fees provisi on of the Back Pay Act states: An employ ee of an agency who, on the basis of a timely appeal or administrative determination (inc luding a deci si on relati ng to an unfai r labor practice or a grievance) is found by appropriate authority under applicable law, rule, regulation, or collective barga ining agreement, to have been affected by an unjustifi ed or unwarrant ed personnel action which has resulted in the withdrawal or reduction of all or part of the pay, allowances , or differentia ls of the employee . . . is entitled , on correction of the personnel action, to receive for the period for which the personnel

1 See Salinas v. United States , 323 F.3d 1047, 1048-49 (Fed. Cir. 2003); Read v. United States , 254 F.3d 1064, 1067-68 (Fed. Cir . 2001) (“ Fausto

. . . establish e d that if the [Civil Servic e] Refo rm Act gave the Board jurisdiction ov er a claim involv ing a specified subject matter or cat egory of employee, the [Court of Federal Claims] had no jurisdiction over t hat claim under the Back Pay Ac t . . . .”) ; Worthington , 168 F.3d at 26-27 (“ Fausto deprives the Court of F ederal Claims of jurisdiction over personnel actions covered by the [Civil Service Reform Act].”)

. 2 See, e.g. , Boeing N. Am., Inc. v. Roche , 298 F.3d 1274, 1282 (Fed. Cir. 2002); see also Brecht v. Abrahamson , 507 U.S. 619, 631 (1993) (reaffirming longstanding rule that if a decis ion does not “squarely address[ ] [an] issue,” a court remains “free to address the issue on the merits” in a subsequent case).

05-5066 4action was in effect . . . reasonable attorney fees relat ed to the personnel action which, with respect to any dec is ion relating to an unfair labor practice or a grievance proce ssed under a procedure negotiated in accordanc e with c hapter 71 of this title, or under chapt er 11 of title I of the Foreign Service Act of 1980, shall be awarded in acc o rdance wit h standards established under section 7701(g) of this title

. . . . 5 U.S.C. § 5596(b)(1) & (b)(1)(A)(ii) (2000) ( e mphases added). T he Back Pay Act does not explic itly include a requireme nt that the party claiming attorney’s fees be a prevailing party. But the statute does incor porate by reference t he “standards establis hed under section 7701(g),” and section 7701(g) includes a prevai ling party requirement. Section 7701(g) provides, in pertinent part, that “t he Board . . . may require payment by the agency inv o lved of r easonable attorney fees inc u rred by an employee

. . . if the employee . . . is the prevailing party and the Board . . . determines that payment by the agency is warranted in the interest of justice . . . .” (emphases added). Both section 7701(g) and the attorney’s fees provision of the Bac k Pay Act were included in the 1978 Ci vil Service Reform Act (“CSRA ”). Pub. L. No. 95-454, §§ 205, 702, 92 Stat. 1111, 12 16 (1978). The conference report explains that the provisions were intended to provide identical remedies: The conference subs titute [for the House and Senate attorney’s fees provisions] (Sections 7701(g) and 5596(b )(1)(A)(ii)) authorizes attorneys’ fees in cases where employee prev ails on the merits and the deciding official det ermines that attorneys’ f ees are warranted in the int e rest of justice . . . . H.R. Conf. Rep. 95-1717 (1978) , as reprinted in 4 U.S. Code Cong. & Admin. News 2723, 2876 (1978). T he legislative history t hus establishes that Congress intended the “prevailin g party” and “interest of justice” requirements for re covery of attorney’s fees under section 7701(g) to similarly gover n fee requests under the Back Pay Act.

05-5066 5We have long held that this provision sh ould be read to include the “prevailing party” requirement of section 7701(g). For exam ple, in Sims v. Department of the Navy , 711 F.2d 1578 (Fed. Cir. 1983), the petitioner argued that in all cases other than those “relating to an unfair labor practice or a grievanc e,” the language of the Back Pay Act fee provision ent itled employees to an award of attorney’s fees “without any qualification.” Id. at 1579-80. We rejected that cont ention and concluded, based on the plain language and legi slativ e history of the st atute, that all requests for attorney’s fee s under the Back Pay Act are governed by the standar ds of section 7701(g). Id. S o t o o , in Gavette v. Office of Personnel Managem ent , 808 F.2d 1456, 1461 (Fed. Cir. 1986), we held that a party reques ting fees under the Back Pay Act “may recover . . . if he shows that he was t he prevailing party and t hat an award of fees would be in the interest of justice.” 3 The Supreme Court in Buckhannon addres sed the quest ion of whether “a part y that has failed to secure a judgment on the merits or a court-ordered consent decree, but has nonetheless achieved the desired re sult bec ause the lawsuit brought about a

3 See also, e.g. , Morris on v. Nat’l Sci. Found. , 423 F.3d 1366, 1370 (Fed. Cir. 2005) (“Under the Back Pay Act, Morrison is entitled to reasonable attorneys fees in accordanc e with the standards established under 5 U.S.C. § 7701(g). . . . [which] provides t hat reasonable attorney fees m a y be awarded if the employ ee was the prevailing party and a fee award is ‘warranted in the interest of justice.’” (citation omitted)); Dunn v. Dep’t of Vet e rans Affairs , 98 F.3d 1308, 1311 (Fed. Cir. 1996) (“Attorney fee awards under the Back Pay Act mu st meet the standards set forth in . . . [section] 7701(g) . . . . First, [petitioners] must show t hat they prevailed on their claims

. . . . Second, [they] must s how that justice wa rrants the award.”); Massa v. Dep’t of Defense , 833 F.2d 991, 992 (Fed. Cir. 1987) (“To qualify [for attorney’s fees] under the Back Pay Act, Massa must have prev ailed before the B oard, and the award must be w a rranted in the interest of justice.”); Devin e v. Nat’l Treasury Employees Unio n , 805 F.2d 384, 385 (Fed. Cir. 1986) (“ In order to recover [attorney’s fees under the Back Pay Act], NTEU must s how that Smith was the ‘pre vailing party’ and that an award of attorney fees would be ‘in the interest of justice.’”), abrogated on other grounds , Raney v. Fed. Bureau of Prisons , 222 F.3d 927 (Fed. Cir. 2000)

.
05-5066 6voluntary change in th e defendant’s conduct,” is a “prevailing party ” under the attorney’s fees provisions of the Fair Housing Am endments Act, 42 U.S.C. § 3613(c)(2), and the Americans with Disabilitie s Act, 42 U.S.C. § 12205. Buckhannon , 532 U.S. at 600-01. 4 The court rejected this “catal yst theory” and held that a par ty must obtain either an “enforceable judgment[ ] on the merits” or a “court-ordered c ons ent decree[]” to qualify as a “prevailing party” under the statutes. Id. at 604. The Supreme Court has repeatedly made c l ear that the various federal attorney’s fees statutes should be construed to reach a unifor m result. Indep. Fed’n of Flight Attendants v. Zipes , 491 U.S. 754, 758 n.2 (1989) (“[F ]ee shifting statutes’ similar language is ‘a strong indic a tion’ t hat they are to be interpret ed alik e.” (citation omitted)); Hensley v. Eckhart , 461 U.S. 424, 433 n.7 (1983) (The Court’s interpretation of “prevailin g party” in 42 U.S.C. § 1988(b) is “generally applica b le in all cas e s in whic h Congress has authorized an aw ard of fees to a ‘prevailing par ty.’”). Thus, it follows that recovery under the Back Pay Act is not available on a catalyst theory. B The appellants offer two addi tional arguments as to why catalyst recovery sh ould be allowed. First, they point out that some of our dec is io ns interpreting th e B a ck P a y A c t held or assumed that catalyst recovery was av ailable. See, e.g. , Cuthbertson v. Merit Sys.

4 The language of the two provisions is nearly ident ical. Com pare 42 U.S.C. § 3613(c)(2) (2000) (“ In a civil action under subsection ( a ) of this section, the court, in its discretion, may allow the prev ailing party, other than the United States, a reasonable attorney’s fee and costs.”); with 42 U.S.C. § 12205 (2000) (“In any action or administrative proceeding comme nced pursuant to this chapter , the court or agency, in its discretion, may allow the pr ev ailing party, other than the United States, a reasonable attorney’s fee, including litigat ion expenses, and costs . . . .”).

05-5066 7Prot. Bd. , 784 F.2d 370, 372-73 (Fed. Cir. 1986). But these cases are obvious ly incons isten t with Buck hannon and are no longer good law. Second, the appellant s point out that the District of Columbia Circuit in Sierra Club v. Environmental Protection Agency , 322 F.3d 718, 726 (D.C . Cir. 2003), held that catalyst recovery was availabl e under the attorney’s fees pr ovisio n of the Clean Air Act , 42 U.S.C. § 7607(f), even after Buckhannon . The government chose not to address Sierra Club in its brief, and at oral argument prof essed unfamiliarit y with the case. We have reviewed that decision and fi nd it to be distinguis hable. The Sierra Club dec ision was based on an unusual circumstance: the statute did not explicitly inc l ude or incorpor ate a prev ai ling party requirement. See 322 F.3d at
721-22. 5 The Supreme Court had earlier held t hat the statute did not include a traditional prevailing party requi rement, and that catalyst recovery was available under the statute based on its legis l ative history. See Ruck elshaus v. Sierra Club , 463 U.S. 680, 686 n.8, 687 (1983). A nd the Supreme Court had not overruled (or even mentioned) Ruckelsha us in Buck hannon . The District of Columbia Circuit conclud ed that it was obligated to follow Ruckelshaus unless the Supreme Court itself overruled that decision. Sierra Club , 322 F.3d at 725-26. No comparable circumstance exists her e. The Supreme Court has never interpreted this provision of the Back Pay Ac t; there is no legis l ativ e history of the Bac k Pay Act supporting a catalyst recovery; and t he Back Pay Act does include a prevailing party requirement.

5 Section 7607(f) provides: “In any j udicial proceeding under this section, the court may award costs of litigation (including r easonable attorney and expert witness fees) whenever it determines that su ch award is appropr iate.” 42 U.S.C. § 7607(f) (2000).

05-5066 8II Finally, the appellants argue t hat the Board lacked jurisdic tion ov er their cla i ms because, under the Back Pay Act and its implementing regul ation, the Bo ard was not the “appropriate authority” to review their fee requests. They rely on the statute and 5 C.F.R. § 550.807(a), which prov ides that a request for attorney’s fees under the Bac k Pay Act “may be pres ented only to the appropria te aut hority that corrected or directed the correction of the unjustified or unwa rranted personnel action.” The appellants contend that because the agenc ies rescinded t he per sonnel actions, the agencies, not the Board, are the “appropriate authorities” to dec ide thei r fee requests, and thus that the Board lacked jurisdiction to awar d attorney’s fees. We disagree. At the time that the adverse actions her e were rescinded, the ap pellants’ claims were pending before the Board, not the agencies. The appellant s did not s e cure relief by adjudic a tory action of the agencies, but through agen cy litigation decis i ons while the matters were on appeal. Unilaterally rescind ing a pers onnel action does not constitute a “[finding] under applicable la w, rule, regulation, or c o lle ctiv e bargaining agreement” that the appellants “ha[d] been affected by an unjustified or unwarranted personnel action” under the statute. Under t hese circumstances, the agencies were not “appropriate authorities” to which fee r equests could properly be addressed. Thus, when the appellants secured reli ef at the Board level thr ough v o luntary ac tion by the agency, they were not prevailing parties at either the agencies or the Board.

05-5066 9III Under these circumstances, only the B oard has authority to consider an attorney’s fees reques t under the Back Pay Act. The Court of Federal Claims therefore lacked jurisdiction. CONCLUS ION The decision of the Court of Federal Claims is
AFFIRMED. COSTS No costs.

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