UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

BARBARA WILEY,

Appellant,

v.

OFFICE OF PERSONNEL 

MANAGEMENT,

Agency.

DOCKET NUMBER

DC-0843-15-0925-A-1

DATE: July 27, 2022

THIS FINAL ORDER IS NONPRECEDENTIAL1

Stephen Domenic Scavuzzo, Esquire, McLean, Virginia, for the appellant.

Tynika Faison Johnson, Washington, D.C., for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

Tristan L. Leavitt, Member

FINAL ORDER

¶1 The appellant has filed a petition for review of the addendum initial 

decision, which denied her motion for attorney fees. Generally, we grant 

petitions such as this one only when: the initial decision contains erroneous 

findings of material fact; the initial decision is based on an erroneous 

 

1 A nonprecedential order is one that the Board has determined does not add 

significantly to the body of MSPB case law. Parties may cite nonprecedential orders, 

but such orders have no precedential value; the Board and administrative judges are not 

required to follow or distinguish them in any future decisions. In contrast, a 

precedential decision issued as an Opinion and Order has been identified by the Board 

as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2

interpretation of statute or regulation or the erroneous application of the law to 

the facts of the case; the administrative judge’s rulings during either the course of 

the appeal or the initial decision were not consistent with required procedures or 

involved an abuse of discretion, and the resulting error affected the outcome of 

the case; or new and material evidence or legal argument is available that, despite 

the petitioner’s due diligence, was not available when the record closed. Title 5 

of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). 

After fully considering the filings in this appeal, we conclude that the petitioner 

has not established any basis under section 1201.115 for granting the petition for 

review. Therefore, we DENY the petition for review. Except as expressly 

MODIFIED by this Final Order to address the appellant’s argument that the 

Board should award her attorney fees as a sanction against the agency, we 

AFFIRM the initial decision.

DISCUSSION OF ARGUMENTS ON REVIEW

¶2 The appellant previously filed a pro se appeal of a final decision of the 

Office of Personnel Management (OPM) that found her daughter ineligible for 

child survivor benefits. Wiley v. Office of Personnel Management, MSPB Docket 

No. DC-0843-15-0207-I-1, Initial Appeal File (0207 IAF), Tab 1. The 

administrative judge issued an initial decision that vacated OPM’s final decision, 

finding that the regulation OPM relied upon in denying the benefits was contrary 

to statute and, thus, invalid. 0207 IAF, Tab 11, Initial Decision (0207 ID) at 3-5.

She therefore remanded the matter to OPM for further adjudication and the 

issuance of a new final decision. 0207 ID at 6. Neither party petitioned for 

review, and the initial decision became the Board’s final decision.

¶3 Thereafter, OPM issued a second final decision, again finding the 

appellant’s daughter ineligible for child survivor benefits. Wiley v. Office of 

Personnel Management, MSPB Docket No. DC-0843-15-0925-I-1, Initial Appeal 

File (0925 IAF), Tab 1 at 4-7. The appellant obtained counsel and appealed 
3

OPM’s decision to the Board. 0925 IAF, Tabs 1, 4. While the appeal was 

pending, OPM rescinded its decision and the administrative judge consequently 

issued an initial decision dismissing the appeal for lack of jurisdiction. 

0925 IAF, Tab 10, Initial Decision.

¶4 After the second initial decision became final when neither party petitioned 

for review, the appellant filed a motion for attorney fees incurred during her 

second Board appeal. Wiley v. Office of Personnel Management, MSPB Docket 

No. DC-0843-15-0925-A-1, Attorney Fees File (AFF), Tab 1. She informed the 

Board that OPM had issued a decision awarding child survivor benefits to her 

daughter and that, because OPM reversed its initial denial of benefits as a result 

of her filing the Board appeal, she was entitled to an award of attorney fees. Id.

at 4-5. The administrative judge issued an addendum initial decision denying the 

motion, finding that the appellant was not entitled to an award of attorney fees 

because she was not a prevailing party under Buckhannon Board & Care Home,

Inc. v. West Virginia Department of Health & Human Resources, 532 U.S. 598

(2001). AFF, Tab 8, Addendum Initial Decision (AID) at 3-4.

¶5 The appellant has filed a petition for review, and the agency has responded 

in opposition. Petition for Review (PFR) File, Tabs 1, 3. In her petition for 

review, the appellant does not challenge the administrative judge’s finding that 

she was not a prevailing party under Buckhannon, and we discern no basis to 

disturb that finding. Rather, the appellant argues that she is entitled to an award 

of attorney fees as a sanction against OPM for its failure to comply with the 

administrative judge’s first initial decision, 0207 ID. PFR File, Tab 1 at 4-6. We 

find this argument unavailing.

¶6 Here, although the appellant is seeking a sanction against OPM for 

noncompliance, she did not seek compliance with the Board by filing a petition 

for enforcement. Even if she had sought compliance, however, the Board is not 

authorized to impose an award of attorney fees as a sanction in compliance 

proceedings; it is limited to the sanction of withholding the pay of the agency 
4

employee responsible for the lack of compliance. 5 U.S.C. § 1204(e)(2)(A);

see Tubesing v. Department of Health & Human Services, 115 M.S.P.R. 327, ¶ 21 

(2010). Moreover, the Board has held that the purpose of sanctions in compliance 

proceedings is to obtain compliance and that, once compliance is achieved, 

sanctions are inappropriate. Martin v. Department of Justice, 86 M.S.P.R. 13, ¶ 2 

(2000). Therefore, because the appellant asserts that OPM has complied with the 

first initial decision, it would be inappropriate for the Board to impose sanctions

in this case even if her request had been made during the course of compliance 

proceedings.

¶7 In addition, as correctly noted by the administrative judge, although the 

appellant was the prevailing party in her first appeal, she appeared pro se and thus 

is not entitled to claim attorney fees based on that decision. AID at 4 n.2 ; Holmes 

v. Office of Personnel Management, 99 M.S.P.R. 330, ¶ 6 (2005) (explaining that, 

to be entitled to an award of attorney fees, an appellant must prove an 

attorney-client relationship). Accordingly, we find that the appellant has 

provided no basis to disturb the administrative judge’s finding that she is not 

entitled to an award of attorney fees.

NOTICE OF APPEAL RIGHTS2

The initial decision, as supplemented by this Final Order, constitutes the 

Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain 

review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of 

your claims determines the time limit for seeking such review and the appropriate 

forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following 

summary of available appeal rights, the Merit Systems Protection Board does not 

provide legal advice on which option is most appropriate for your situation an d 

 

2

Since the issuance of the initial decision in this matter, the Board may have updated 

the notice of review rights included in final decisions. As indicated in the notice, the 

Board cannot advise which option is most appropriate in any matter.
5

the rights described below do not represent a statement of how courts will rule 

regarding which cases fall within their jurisdiction. If you wish to seek review of 

this final decision, you should immediately review the law applicable to your 

claims and carefully follow all filing time limits and requirements. Failure to file 

within the applicable time limit may result in the dismissal of your case by your 

chosen forum. 

Please read carefully each of the three main possible choices of review 

below to decide which one applies to your particular case. If you have questions 

about whether a particular forum is the appropriate one to review your case, you 

should contact that forum for more information. 

(1) Judicial review in general. As a general rule, an appellant seeking 

judicial review of a final Board order must file a petition for review with the U.S. 

Court of Appeals for the Federal Circuit, which must be received by the court 

within 60 calendar days of the date of issuance of this decision. 5 U.S.C. 

§ 7703(b)(1)(A). 

If you submit a petition for review to the U.S. Court of Appeals for the 

Federal Circuit, you must submit your petition to the court at the 

following address: 

U.S. Court of Appeals 

for the Federal Circuit 

717 Madison Place, N.W. 

Washington, D.C. 20439 

Additional information about the U.S. Court of Appeals for the Federal 

Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular 

relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is 

contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. 

If you are interested in securing pro bono representation for an appeal to 

the U.S. Court of Appeals for the Federal Circuit, you may visit our website at 

http://www.mspb.gov/probono for information regarding pro bono representation 
6

for Merit Systems Protection Board appellants before the Federal Circuit. The 

Board neither endorses the services provided by any attorney nor warrants that 

any attorney will accept representation in a given case. 

(2) Judicial or EEOC review of cases involving a claim of 

discrimination. This option applies to you only if you have claimed that you 

were affected by an action that is appealable to the Board and that such action 

was based, in whole or in part, on unlawful discrimination. If so, you may obtain 

judicial review of this decision—including a disposition of your discrimination 

claims—by filing a civil action with an appropriate U.S. district court (not the 

U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you 

receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems 

Protection Board, 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a 

representative in this case, and your representative receives this decision before 

you do, then you must file with the district court no later than 30 calendar days

after your representative receives this decision. If the action involves a claim of 

discrimination based on race, color, religion, sex, national origin, or a disabling 

condition, you may be entitled to representation by a court‐appointed lawyer and 

to waiver of any requirement of prepayment of fees, costs, or other security. See

42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. 

Contact information for U.S. district courts can be found at their respective 

websites, which can be accessed through the link below: 

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx. 

Alternatively, you may request review by the Equal Employment 

Opportunity Commission (EEOC) of your discrimination claims only, excluding 

all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the 

EEOC’s Office of Federal Operations within 30 calendar days after you receive

this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, 

and your representative receives this decision before you do, then you must file 
7

with the EEOC no later than 30 calendar days after your representative receives

this decision. 

If you submit a request for review to the EEOC by regular U.S. mail, the 

address of the EEOC is: 

Office of Federal Operations 

Equal Employment Opportunity Commission 

P.O. Box 77960 

Washington, D.C. 20013 

If you submit a request for review to the EEOC via commercial delivery or 

by a method requiring a signature, it must be addressed to: 

Office of Federal Operations 

Equal Employment Opportunity Commission 

131 M Street, N.E. 

Suite 5SW12G 

Washington, D.C. 20507 

(3) Judicial review pursuant to the Whistleblower Protection 

Enhancement Act of 2012. This option applies to you only if you have raised 

claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or 

other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). 

If so, and your judicial petition for review “raises no challenge to the Board’s 

disposition of allegations of a prohibited personnel practice described in 

section 2302(b) other than practices described in section 2302(b)(8), or 

2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial 

review either with the U.S. Court of Appeals for the Federal Circuit or any court 

of appeals of competent jurisdiction.3The court of appeals must receive your 

 

3

The original statutory provision that provided for judicial review of certain 

whistleblower claims by any court of appeals of competent jurisdiction expired on 

December 27, 2017. The All Circuit Review Act, signed into law by the President on 

July 7, 2018, permanently allows appellants to file petitions for judicial review of 

MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals 

for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. 

The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 

132 Stat. 1510. 
8

petition for review within 60 days of the date of issuance of this decision. 

5 U.S.C. § 7703(b)(1)(B). 

If you submit a petition for judicial review to the U.S. Court of Appeals for 

the Federal Circuit, you must submit your petition to the court at the 

following address: 

U.S. Court of Appeals 

for the Federal Circuit 

717 Madison Place, N.W. 

Washington, D.C. 20439 

Additional information about the U.S. Court of Appeals for the Federal 

Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular 

relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is 

contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. 

If you are interested in securing pro bono representation for an appeal to 

the U.S. Court of Appeals for the Federal Circuit, you may visit our website at 

http://www.mspb.gov/probono for information regarding pro bono representation 

for Merit Systems Protection Board appellants before the Federal Circuit. The 

Board neither endorses the services provided by any attorney nor warrants that 

any attorney will accept representation in a given case. 

Contact information for the courts of appeals can be found at their 

respective websites, which can be accessed through the link below: 

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.

FOR THE BOARD:

Washington, D.C.

 /s/ for 

Jennifer Everling

Acting Clerk of the Board