Carmen I. Mulero-Echevarria v. OPM, No. NY-844E-00-0340-A-1 (December 4, 2002).

The appellant is not the "prevailing party" for an award of attorney fees when the administrative judge dismisses the appeal as moot.

OPM denied the appellant's application for disability retirement and denied the appellant's request for reconsideration. The appellant appealed to the Board. During the course of the appeal, OPM reversed its earlier decision to deny the appellant disability retirement benefits and, instead, approved the appellant's retirement application. After finding that the Board had jurisdiction over the appeal, the administrative judge dismissed the appeal as moot. The appellant then filed a motion for attorney fees and the administrative judge granted this motion. OPM filed a petition for review of the administrative judge's decision to grant the appellant attorney fees.

An appellant must show that she is the "prevailing party" to establish her entitlement to an award of attorney fees in a Board appeal. The administrative judge in this appeal applied the "catalyst theory" of recovery to determine whether the appellant was the prevailing party. Under the catalyst theory, an appellant may be the prevailing party when, after the filing of an appeal, the agency voluntarily grants the relief sought, the administrative judge dismisses the appeal as moot, and the relief is causally related to the initiation of the appeal.

The Supreme Court, in Buckhannon Board and Care Home, Inc. v. West Virginia Department of Health and Human Resources, 532 U.S. 598 (2001), ruled that the catalyst theory is not a permissible basis upon which to award attorney fees because it allows an award where, even though a lawsuit brought about a voluntary change in one party's conduct, there is no judicially-sanctioned change in the parties' legal relationship. The Court held that a "prevailing party" is one who has been awarded some relief by the court or who has gained a settlement agreement enforced through a consent decree. The Court found that "enforceable judgments on the merits and court-ordered consent decrees create the 'material alteration of the legal relationship of the parties' necessary to permit an award of attorney's fees."

The Court of Appeals in the present case denied the appellant's claim that Buckhannon did not apply to the present case. Because OPM voluntarily reversed its decision, the administrative judge dismissed the appeal as moot, without a decision on the merits. Since there was no award granted on the merits, nor was there a settlement agreement, there was no basis upon which to award attorney fees.