Joyce v. Department of the Air Force, 83 M.S.P.R. 666 (1999)
Overruling its recent decision in Joyce v. Department of the Air Force, 74 M.S.P.R. 112, the Board held here that in order to act on the merits of a case, it must make a preliminary determination of jurisdiction; thus, attorney fees cannot be awarded in the absence of such a finding, such as where an agency rescinds its action early in the appeal proceeding. The Board’s decision, however, reaffirmed its prior holdings that an appellant may be a prevailing party where, after filing his appeal, the agency voluntarily granted the relief sought, the administrative judge dismissed the appeal as moot, and the relief was causally related to the initiation of the appeal.
 

Santella & Jech v. Office of Special Counsel & Internal Revenue Service, 86 M.S.P.R. 48 (2000), OPM pet. for reconsideration filed June 13, 2000
This case is the first to hold that the Office of Special Counsel is "the agency involved" under 5 U.S.C. § 1204(m)(1), so that it, not the employing agency, may be required to pay attorney fees. The case also holds that the section is not retroactive, and applies only to portions of a case that occurred after October 29, 1994; that "prevailing party" under section 1204(m) is the same as under 5 U.S.C. § 7701(g); and that in applying the warranted-in-the-interest-of-justice test found in both laws, the "substantially innocent" category may be applied to 1204(m) cases as it is under chapter 77.
 

Auker v. Department of Defense, 86 M.S.P.R. 468 (2000)
The language of 5 U.S.C. § 1221(g)(2) clearly states that the Board is without authority to award fees under it, absent a finding that a prohibited personnel practice was committed; however 5 U.S.C. § 7701(g)(1) covers all cases that come before the Board, including IRA appeals. Thus, fees may be awarded in an IRA appeal under 5 U.S.C. § 7701(g)(1) under circumstances that would not permit an award under 5 U.S.C. § 1221(g).
 

Thomas v. United States Postal Service, 86 M.S.P.R. 635 (2000)
This decision holds, for the first time, that the expense of computer research is compensable in connection with an application for attorney fees. In other rulings relative to the reasonableness of an attorney fee award, the Board found that clerical work is not normally compensated at attorney rates, but that it may be where it is found to be "indistinguishable from the legal work," and that the Board may make an award for reasonable and necessary long distance faxes, but where counsel charged a fixed rate for sending faxes locally, such charges are not an out-of-pocket expense that may be awarded.

(The Board later reaffirmed this ruling, on reconsideration, 87 M.S.P.R. 331 (2000).)
 

Raney v. Federal Bureau of Prisons, 222 F.3d 927 (Fed. Cir. 2000) (en banc)
The Court held that the Back Pay Act permits, and ethical considerations do not bar, the award of market-rate fees for work by union attorneys when such fees are deposited into a separate fund controlled exclusively by lawyers and the fund is used solely to support litigation on behalf of employee’s rights.
 

Sacco v. Department of Justice, 90 M.S.P.R. 37 (2001)
Nichols v. Department of Veterans Affairs, 89 M.S.P.R. 554 (2001)
The appellant must be a prevailing party in order to be entitled to an attorney fee award. The Board, in accordance with the majority of the circuit courts that had examined the issue, had previously awarded fees under the catalyst theory, which allows an award based on a defendant’s voluntary change in conduct, without judicial sanction. However, in Buckhannon Board and Care Home, Inc. v. West Virginia Department of Health & Human Resources, 531 U.S. 1004, the Supreme Court rejected that theory as a basis for an award and held instead that an enforceable judgment on the merits or a court-ordered consent decree is necessary for "prevailing party" status and an award of attorney fees. Accordingly, in these appeals, the Board found that there is no basis for distinguishing "prevailing party" under 5 U.S.C. § 7701(g)(1). It therefore overruled Board cases relying on the catalyst theory for awarding fees, including Joyce v. Air Force, 83 M.S.P.R. 666, and followed the Supreme Court’s decision. Applying the new rule to the instant cases, the Board held that because the appellants’ appeals on the merits were dismissed as moot when the agencies unilaterally rescinded the actions appealed, they were not prevailing parties and were not entitled to fee awards.
 

Buckhannon v WVA, 121 S.Ct. 1835, May 29, 2001.  The "catalyst theory" is not a permissible basis for the award of attorney fees.  Instead, fees may be awarded only to a "prevailing party" which is one who been awarded some relief by a court.  Where a defendant voluntarily changes his conduct (such as an agency rescinding a personnel action), although perhaps accomplishing what the plaintiff sought to achieve (such as an employee seeking reversal of a removal action), such an action does not make the plaintiff a prevailing party and no fees may be awarded in such a case. 
 

Nichols v VA, 89 MSPR 554, September 4, 2001.   The Board applies Buckhannon v WVA where prior to completion of hearing, the agency fully rescinded the employee's suspension, without a decision on the merits.  Accordingly, the employee could not be a "prevailing party" and no attorney fees could be awarded.   Same result in Sacco v Justice, 90 MSPR 225, October 18, 2001.
 

Santella Jech v OSC/IRS, 90 MSPR 172, September 21, 2001.  Rejecting OPM's petition for reconsideration, the Board upholds its previous decision awards attorney fees against the Office of Special Counsel (OSC) in a case where the two employees were found substantially innocent of the disciplinary charges brought against them by the OSC.  OPM is now arguing before the Federal Circuit that the Board's decision fails to recognize the unique role of the OSC and ignores the Congressional intent that OSC vigorously enforce the Whistleblower Protection Act and not be discouraged from such enforcement by the potential liability for an assessment of fees.
 

Pawn v USDA, SE0752960211A-1, December 12, 2001.   The employee was convicted and incarcerated for violation of a Hawaii state law regarding improper storage of firearms.  He was subsequently removed because he was unavailable for work and unable to perform his duties, which required possession of a firearm.  When his criminal conviction was overturned by the Hawaii Supreme Court (based on the failure to suppress improperly obtained evidence), the Board found that the agency's charges were "inextricably intertwined" with the criminal conviction and ordered the agency to cancel the removal action.  It then found the employee to be "substantially innocent" and eligible for an award of attorney fees.