Julius Sebock v. Office of Personnel Management

874 F.2d 801, 1989 U.S. App. LEXIS 14704, 1989 WL 47438

• Court: Court of Appeals for the Federal Circuit
• Decided: May 10, 1989
• Docket: 88-3383
• Status: Published

Opinions

BISSELL, Circuit Judge.

Julius Sebock appeals the final decision of the Merit Systems Protection Board (Board), Docket No. SF831L87A0757, denying his request for attorney fees. We affirm.

BACKGROUND

Sebock, a marine machinery mechanic at the Mare Island Naval Shipyard, suffered on-the-job back injuries in 1976 and 1984. He applied for and was denied disability retirement by the Office of Personnel Management (agency). On appeal, the Board reversed the agency’s decision and ordered the agency to approve Sebock’s disability retirement. Sebock v. Office of Personnel Management, Docket No. SF831L8710757, slip op. at 7 (MSPB Oct. 21, 1987).

Sebock then filed a motion for attorney fees pursuant to 5 U.S.C. § 7701(g)(1) (1982) for work performed in connection with his successful appeal to the Board. The Administrative Judge (AJ) denied Se-bock’s petition, concluding that Sebock had “failed to prove that fees are awardable in the interest of justice.” Sebock v. Office of Personnel Management, Docket No. SF831L8710757., slip op. at 4 (MSPB March 24, 1988). The Board denied Sebock’s petition for review. Sebock v. Office of Personnel Management, 37 M.S.P.R. 416 (1988).

ISSUE

Whether Sebock has established entitlement to attorney fees under 5 U.S.C. § 7701(g)(1).

OPINION

To recover attorney fees under 5 U.S.C. § 7701(g)(1), a movant must show that he is the prevailing party and that the fees are warranted in the interest of justice. 5 U.S.C. § 7701(g)(1); Sterner v. Department of the Army, 711 F.2d 1563, 1565-66 (Fed.Cir.1983). Because there is no question that Sebock was the prevailing party on appeal, only the latter requirement is at issue.

In Allen v. United States Postal Service, 2 MSPB 582, 593, 2 M.S.P.R. 420, 434-35 (1980), the Board described several non-exclusive categories of cases in which the interest of justice might require an award of attorney fees. See Sterner, 711 F.2d at 1570 (Allen guidelines reasonable and firmly based in the statute and legislative history). The Board also instructed that the movant’s petition for fees should “set forth all considerations relied upon to demonstrate that the statutory requirements for an award have been met, substantiated by affidavits or other documentary evidence wherever there is a question of fact to be resolved (other than those already litigated on the merits).” Allen, 2 MSPB at 594, 2 M.S.P.R. at 436. We agree with that standard of proof and hold that Sebock was unsuccessful in meeting that burden here.

Sebock’s petition for attorney fees included a declaration by Sebock’s attorney, a declaration by Sebock, declarations by various local attorneys suggesting a reasonable hourly rate for the area, Se-bock’s attorney’s “latest fee awards,” and the log entries showing time spent on Se-bock’s case. The declaration by Sebock’s attorney explores the attorney’s background, the attorney’s method of recording time, the manner in which clients are handled and the burden of expenses incurred in the attorney’s practice. That declaration also laments over the fact that a federal agency “has numerous personnel and resources available when preparing for a case,” and “[w]in, loose, [sic] or draw the [a]gency’s attorneys and personnel are paid.” Although Sebock argues on appeal that because the agency knew or should have known that it would not prevail, Se-bock did not present evidence or argument concerning the interest of justice issue anywhere in the 51-page petition. The entire petition, instead, was directed to justifying Sebock’s attorney’s hourly rate. This court will generally not consider arguments made for the first time on appeal. Synan v. Merit Sys. Protection Bd., 765 F.2d 1099, 1101 (Fed.Cir.1985).

Sebock failed to raise with specificity the agency actions meeting the criteria of the Allen categories or to direct the Board’s attention to any evidence supporting an award of attorney fees. The Board is not required to wade through the entire record to determine if the evidence demonstrates any basis for concluding that fees are warranted in the interest of justice. Accordingly, the Board’s denial of attorney fees is

AFFIRMED.