Petition for Review of an Order of the Merit Systems Protection Board.
Pell, Posner and Coffey, Circuit Judges.
This is an appeal from the Merit Systems Protection Board's order denying the petitioner's request for attorney's fees under 5 U.S.C. § 7701(g). The Merit Systems Protection Board found that they had the authority to award attorney's fees to the petitioner under 5 U.S.C. § 7701(g), but that an award of attorney's fees was not warranted in this case. The Office of Personnel Management asserts that the Board did not have the authority to award attorney's fees regardless of the merits of the petitioner's case because an appeal of the Office of Personnel Management's decision relating to retirement benefits (in this case disability benefits) is governed by 5 U.S.C. § 8347(d) and that section fails to contain any language authorizing an award of attorney's fees.
The petitioner, Norman D. Dawson, was employed by the United States Postal Service as an urban mail carrier in 1955, and some twenty-three years later in 1978, he was transferred and assigned to rural carrier duties. On January 10, 1980, Mr. Dawson applied for early retirement under the disability provisions of the Civil Service Act stating: "work is mentally and physically detrimental to my health -- These conditions began in 1978 -- Mentally upsetting working conditions prevent me from performing my duties." He further supported his application for retirement disability benefits with a statement by a phychiatrist that Dawson was suffering from "depressive neurosis." On March 18, 1980, the Chief of the Retirement Claims Division of the United States Civil Service Commission denied Dawson's application for early retirement on the grounds that "total disability for useful and efficient service in the above position [Rural Letter Carrier] is not shown. . . . Since the retirement law does not authorize benefits based on partial disability, your application cannot be approved at this time." Thereafter, Dawson requested the Office of Personnel Management to reconsider its disallowance of his claim for disability retirement benefits, and the Medical Director of the Office of Personnel Management (OPM) sustained the original decision that Dawson was not entitled to early retirement benefits finding that Dawson was not permanently disabled. After reviewing all of the data the petitioner presented in support of his application for disability benefits, the Medical Director concluded that "there are no clinical findings which [adequately] document a physical impairment incompatible with retention in your position or performance of your assigned duties."
In August of 1980, Mr. Dawson appealed OPM's decision to the Merit Systems Protection Board, requesting the Board to set aside OPM's disallowance of benefits. After a hearing, an examiner for the Board reversed the Medical Director and the Chief of the Retirement Claims Division and found that the record was sufficient to establish that Dawson was "totally disabled for useful and efficient service in the position of Rural Carrier. Accordingly, I find that OPM's reconsideration decision is not supported by a preponderance of the evidence, and OPM's decision is hereby reversed."
After the Board's decision became final, Dawson filed a motion for attorney's fees pursuant to 5 U.S.C. § 7701 (g)(1). In a decision dated October 22, 1981, the presiding official held that OPM's denial of Dawson's disability retirement "was clearly without merit" as "OPM articulated no reason or basis for denying [Dawson's] disability retirement claim . . . . Furthermore, OPM completely disregarded [Dawson's] subjective complaints as mere annoyances and discomforts." Because "OPM knew or should have known that its reconsideration decision could not possibly be sustained on the established record," the presiding official concluded that "the interest of justice warrants the award of reasonable attorney's fees in this case," and ordered the Office of Personnel Management to remit $2,480.46 to Dawson's attorneys.
The decision awarding Dawson attorney's fees became final on November 26, 1981, and thereafter, on December 15, 1981, the Office of Personnel Management filed a petition for review with the Board asserting that the Board was without statutory authority to award attorney's fees when dealing with an appeal of an OPM disability retirement decision. The Board dismissed OPM's petition as untimely as it was filed after the Board's decision became final on November 26th.*fn1 The Board reopened the appeal on its own motion*fn2 based on 5 C.F.R. § 1201.117,*fn3 and held that attorney's fees are only available to disability retirement applicants when the Office of Personnel Management initiates the initial proceedings, and since Dawson initiated this disability retirement proceeding, he was not entitled to attorney's fees. Dawson appeals the Board's denial of his attorney's fees.
The petitioner contends that the Board was without authority to reopen his case and reverse its prior decision, as the case was not reopened until after the Board's October 22nd decision granting attorney's fees became final on November 26th. It is Dawson's position that the Board was without the authority to reopen its October 22nd decision and ultimately deny his request for attorney's fees because OPM failed to file its petition for review nor did the Board reopen his case on its own motion until after the decision became final.
When the Board reopened Dawson's case on its own motion, the Board complied with the express terms of 5 U.S.C. § 7701(e)(1)(B) which provides that the decision of the Board "shall be final unless. . . the Board reopens and reconsiders a case on its own motion." The regulations establishing the rules of practice and procedure before the Board provide, inter alia :
"The Board may reopen and reconsider a decision of a presiding official on its own motion at any time, notwithstanding any other provisions of this part."
5 C.F.R. § 1201.117 (emphasis added). Upon our examination of the enabling statute and the Board's interpretative regulation, we are unable to find any language that places a time limit on the Board's authority to reopen a case on its own motion. Under the clear and unambiguous language of 5 C.F.R. § 1201.117, the Board had ample authority to "reopen and reconsider [the] decision of a presiding official on its own motion at any time " even though the thirty-five day filing period of 5 C.F.R. § 1201.113 had elapsed. The Board's authority in this respect is in keeping with the general rule that administrative agencies have the power to reconsider decisions on their own initiative ...