United States Federal Circuit

Government employee's petition for review of a decision of the Merit Systems Protection Board (MSPB) denying his request for attorney fees based on the Back Pay Act associated with an earlier, interim appeal to the circuit court, is denied where: 1) based on the binding authority of Phillips v. General Services Administration, 924 F.2d 1577 (Fed. Cir. 1991), the MSPB correctly found that it did not have authority to grant the fee petition for work done before the circuit court; but 2) in light of Congress's clear intent for a party in petitioner's position to have an opportunity to apply for fees not only before the agency but also on judicial appeal, the circuit court provides a mechanism by which he can now apply to the court for attorney fees authorized by the Back Pay Act.

Appellate Information

• Decided 01/12/2009
• Published 01/12/2009

Judges

• BRYSON, Circuit Judge., Before BRYSON, DYK, and PROST, Circuit Judges.

Court

• United States Federal Circuit

Counsel

• For Appellant:
  
• Kristin D. Alden, Kraft Eisenmann Alden, PLLC, of Washington, DC, argued for petitioner.


• For Appellees:
  
• Scott D. Austin, Senior Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for respondent.   On the brief were Gregory G. Katsas, Assistant Attorney General, Jeanne E. Davidson, Director, Martin F. Hockey, Jr., Assistant Director, and Hillary A. Stern, Senior Trial Counsel.