Appeal from Merit Systems Protection Board, MSPB Docket Nos. SF08318510833, SF08318510624. ON PETITION FOR ATTORNEY FEES.
Before MARKEY, Chief Judge, FRIEDMAN, Circuit Judge, and BALDWIN, Senior Circuit Judge.
Betty J. Money (Betty) seeks attorney fees and expenses incurred in her intervention in Gloria Money's (Gloria's) petition for review of a Merit Systems Protection Board (MSPB or board) decision awarding Betty a survivor annuity. We affirmed the board decision in Money v. Office of Personnel Management, 811 F.2d 1474 (Fed. Cir. 1987). Betty also seeks attorney fees incurred in her successful appeal to the board from an Office of Personnel Management (OPM) reconsideration decision. Betty bases her petition on the Equal Access to Justice Act, 28 U.S.C. § 2412(d). We deny the petition in all respects.
As recited in detail in our earlier opinion, Betty and Gloria both applied to OPM in 1983 for the survivor annuity to which the widow of Hubert Money was entitled under 5 U.S.C. § 8341(d). OPM initially awarded the annuity to Betty. On reconsideration, OPM awarded the annuity to Gloria. Betty appealed to the MSPB. After a hearing, in which OPM did not participate, the presiding official reversed OPM's reconsideration decision and ordered OPM to award the annuity to Betty. The full board denied Gloria's petition for review. Gloria appealed to this court, which granted Betty permission to intervene. Betty argued, as did OPM, that the board's decision should be affirmed. This court affirmed the board's determination that Betty was entitled to the annuity.
Betty filed a timely request in this court for attorney fees and expenses under the Equal Access To Justice Act (EAJA), 28 U.S.C. § 2412(d). Betty requests all attorney fees and expenses incurred in seeking her annuity from July 1985, when she appealed to the MSPB, through March 10, 1987, when she submitted this fee application.
OPM opposes Betty's application, arguing that she is not a prevailing party under the EAJA in the proceedings before this court, and that the EAJA does not apply to Betty's appeal to the MSPB.
Whether Betty, in her intervention before this court, is a "prevailing party" under the Equal Access To Justice Act, 28 U.S.C. § 2412(d).
1. Intervention Before This Court
The EAJA provides, in 28 U.S.C. § 2412(d)(1)(A).
Except as otherwise specifically provided by statute, a court shall award to a prevailing party other than the United States fees and other expenses . . . incurred by that party in any civil action ( . . . ), including proceedings for judicial review of agency action, brought by or against ...