97-11243. Opportunity To File Amicus Briefs in Swentek v. Office of Personnel Management, MSPB Docket No. DC-831E-94-0584-A-1

[Federal Register Volume 62, Number 84 (Thursday, May 1, 1997)]
[Notices]
[Page 23800]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-11243]


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MERIT SYSTEMS PROTECTION BOARD


Opportunity To File Amicus Briefs in Swentek v. Office of 
Personnel Management, MSPB Docket No. DC-831E-94-0584-A-1

AGENCY: Merit Systems Protection Board.

ACTION: The Merit Systems Protection Board is providing interested 
parties with an opportunity to submit amicus briefs on whether the 
Board may grant attorney fees to prevailing appellants under two new 
criteria proposed by the appellant in Swentek v. Office of Personnel 
Management, MSPB Docket No. DC-831E-94-0584-A-1.

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SUMMARY: The appellant in Swentek v. Office of Personnel Management, 
MSPB Docket No. DC-831E-94-0584-A-1, filed a Board appeal of the 
reconsideration decision of the Office of Personnel Management (OPM) 
dismissing his application for a disability retirement annuity as 
untimely filed. The apparently mentally incompetent appellant was 
represented by pro bono counsel obtained for him under French v. Office 
of Personnel Management, 810 F.2d 1118, 1120 (Fed. Cir. 1987), reh'g 
denied, 823 F.2d 489 (Fed. Cir. 1987). The Board reversed OPM's 
reconsideration decision, finding that the filing deadline should be 
waived because of the appellant's mental incompetence during the filing 
period.
    In his pending attorney fees motion, the appellant has argued that 
attorney fees are warranted in the interest of justice under 5 U.S.C. 
Sec. 7701(g)(1). He has proposed two criteria for awarding fees in 
addition to those set forth in Allen v. U.S. Postal Service, 2 M.S.P.R. 
420, 434-35 (1980). He describes those two criteria as follows:
    1. Where the appellant presented to OPM some evidence of mental 
incompetence and OPM failed to pursue the matter by undertaking 
prehearing discovery and did not actively contest the claim of mental 
incompetence at the Board hearing; and
    2. Where the evidence of current mental incompetence persuaded the 
Board to seek counsel for the appellant. See French, 810 F.2d at 1120; 
French v. Office of Personnel Management, 37 M.S.P.R. 496, 499 (1988).
    The Board is inviting interested parties to submit amicus briefs 
addressing whether the Board may grant fees under these criteria.
DATES: All briefs in response to this notice shall be filed with the 
Clerk of the Board on or before May 30, 1997.

ADDRESSES: All briefs shall include the case name and docket number 
noted above (Swentek v. Office of Personnel Management, MSPB Docket No. 
DC-831E-94-0584-A-1) and be entitled ``Amicus Brief.'' Briefs should be 
filed with the Office of the Clerk, Merit Systems Protection Board, 
1120 Vermont Avenue, N.W., Washington, DC 20419.

FOR FURTHER INFORMATION CONTACT:
Shannon McCarthy, Deputy Clerk of the Board, or Matthew Shannon, 
Counsel to the Clerk, [phone].

    Dated: April 25, 1997.
Robert E. Taylor,
Clerk of the Board.
[FR Doc. 97-11243 Filed 4-30-97; 8:45 am]
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