Case: 21-2001 Document: 50 Page: 1 Filed: 03/07/2023
United States Court of Appeals
for the Federal Circuit
______________________
MARK EDENFIELD,
Petitioner
v.
DEPARTMENT OF VETERANS AFFAIRS,
Respondent
______________________
2021-2001
______________________
Petition for review of the Merit Systems Protection
Board in No. AT-1221-19-0440-W-2.
______________________
ON APPLICATION
______________________
NATHANIEL M. EDENFIELD, Sodhi Spoont PLLC, West
Palm Beach, FL, for petitioner. Also represented by ERIC
SODHI, Miami, FL.
DOMENIQUE GRACE KIRCHNER, Commercial Litigation
Branch, Civil Division, United States Department of Jus-
tice, Washington, DC, for respondent. Also represented by
BRIAN M. BOYNTON, CLAUDIA BURKE, PATRICIA M. MCCAR-
THY.
______________________
Before CHEN, BRYSON, and HUGHES, Circuit Judges.
Case: 21-2001 Document: 50 Page: 2 Filed: 03/07/2023
2 EDENFIELD V. DEP’T VETERANS AFFAIRS
PER CURIAM.
ORDER
Dr. Mark Edenfield seeks an award of appellate attor-
ney fees and costs under the Whistleblower Protection Act
following this Court’s opinion reversing and remanding a
judgment from the Merit Systems Protection Board. Be-
cause this Court is not authorized to award attorney fees
under this statute, we deny the application.
I
On June 3, 2021, Dr. Edenfield appealed a decision of
the Board dismissing his request for corrective action, ar-
guing that the Board erred in finding that certain disclo-
sures he made during his employment were not protected
under
5 U.S.C. § 2302(b)(8). We agreed and reversed the
Board’s determination that the disclosures were not pro-
tected and remanded the case for further proceedings. 1 Fol-
lowing that decision, Dr. Edenfield submitted the current
application asking this Court to award attorney fees and
costs under the Whistleblower Protection Act (WPA), spe-
cifically 5 U.S.C § 1221(g)(3).
II
Traditionally, “[u]nder the doctrine of sovereign im-
munity, the federal government . . . is immune to an award
of money damages, except to the extent that the govern-
ment has explicitly waived such immunity.” M.A. Morten-
son Co. v. United States,
996 F.2d 1177, 1180 (Fed. Cir.
1993) (citation omitted). Such waivers of sovereign immun-
ity must be strictly construed in favor of the federal
1 A full description of the factual and procedural
background of this case, as well as this Court’s reasoning
for reversing and remanding, can be found at Edenfield v.
Department of Veterans Affairs,
54 F.4th 1357 (Fed. Cir.
2022).
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EDENFIELD v. DEP’T VETERANS AFFAIRS 3
government. United States v. Nordic Vill. Inc.,
503 U.S. 30,
33–34 (1992). Allowing an award of attorney fees under the
WPA is a waiver of sovereign immunity, and therefore the
language of § 1221(g) must be strictly construed.
Furthermore, Federal Circuit Rule 47.7 limits this
Court’s ability to award attorney fees and reasonable ex-
penses to situations where we are authorized by law to do
so. In the absence of such statutory authorization, we lack
the ability to award attorney fees. Indeed, “[u]nder Rule
47.7, this Court must itself be authorized by law to award
attorney fees.” Gallo v. Dep’t of Transp.,
725 F.3d 1306,
1308 (Fed. Cir. 2013) (emphasis added). This Court cannot
“derive its authority to award attorney fees from the
Board’s authority to do so and must have its own statutory
authorization to award attorney fees.”
Id. at 1309.
III
Dr. Edenfield seeks an award of attorney fees only un-
der § 1221(g), which outlines the types of correction action
available to the Board in an individual right of action case
under the WPA. It provides in relevant part that:
(g)(1)(A) If the Board orders corrective action under
this section, such corrective action may include—
...
(ii) back pay and related benefits, medical costs in-
curred, travel expenses, any other reasonable and
foreseeable consequential damages, and compensa-
tory damages (including interest, reasonable ex-
pert witness fees, and costs).
(B) Corrective action shall include attorney’s fees
and costs as provided for under paragraphs (2) and
(3).
(2) If an employee . . . is the prevailing party before
the Merit Systems Protection Board, . . . the
agency involved shall be liable to the employee . . .
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4 EDENFIELD V. DEP’T VETERANS AFFAIRS
for reasonable attorney’s fees and any other rea-
sonable costs incurred.
(3) If an employee . . . is the prevailing party in an
appeal from the Merit Systems Protection Board,
the agency involved shall be liable to the em-
ployee . . . for reasonable attorney’s fees and any
other reasonable costs incurred, regardless of the
basis of the decision.
5 U.S.C. § 1221(g).
This statute clearly lays out the conditions and proce-
dure for awarding attorney fees in an individual right of
action case under the WPA. First, § 1221(g)(1)(A) explicitly
gives the Board the authority to “order corrective action.”
Next, § 1221(g)(1)(B) states that “corrective action shall in-
clude attorney’s fees and costs” in the two scenarios pro-
vided for in paragraphs (2) and (3). Section 1221(g)(2)
provides for an award of attorney fees in proceedings “be-
fore the Merit Systems Protection Board,” and § 1221(g)(3)
provides for an award of attorney fees incurred “in an ap-
peal from the Merit Systems Protection Board.” When
tracking the language of this statute, two things are clear:
first, the Board, and only the Board, has the authority to
order corrective action, including attorney fees; and second,
the authority to award attorney fees extends to proceedings
where an employee appeals a decision from the Board to
this Court, because this Court has jurisdiction over appeals
of individual right of action decisions under the WPA.
However, no part of § 1221(g) grants this Court the au-
thority to award attorney fees in an action brought under
the WPA. When construed narrowly as required by prece-
dent, the plain language of § 1221(g) only allows the Board
to award attorney fees in appeals from the Board.
Dr. Edenfield first argues that this Court is the proper
forum to grant attorney fees because “[t]he Federal Circuit
is in a better position than the [B]oard to determine the
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EDENFIELD v. DEP’T VETERANS AFFAIRS 5
amount of fees and expenses to be awarded in connection
with the appeal,” quoting our decision in Gavette v. Office
of Personnel Management,
808 F.2d 1456, 1468 (Fed. Cir.
1986). Mot. at 8–9. But in Gavette, the employee sought at-
torney fees and expenses under the Equal Access to Justice
Act (EAJA). The EAJA is an entirely different statute that
does, in fact, allow this Court to award attorney fees.
Id. at
1460–61 (quoting
28 U.S.C. § 2412(b) (allowing an award
of attorney fees and reasonable costs by “any court having
jurisdiction [over such] action”)). Unlike the EAJA, the
WPA does not contain any language that would allow us to
grant an award of attorney fees. Strictly construed, the
statute only allows the Board to grant an award of attorney
fees, and that authority cannot be extended to this Court.
Gallo,
725 F.3d at 1309.
Dr. Edenfield also argues that § 1221(g) and
5 C.F.R.
§ 1201.202, which lists various statutes that authorize the
Board to award fees, are silent as to the Board’s authority
to award fees for appeals to this Court, and therefore the
authority lies with this Court. We disagree. As discussed
above, § 1221(g)(3) specifically allows the Board to order
attorney fees in an appeal from the Board. And we have
previously recognized that the Board has the authority to
award attorney fees under § 1221(g). See Hickey v. Dep’t of
Homeland Sec.,
766 F. App’x 970, 974 (Fed. Cir. 2019) (rec-
ognizing that the Board may require a payment of attorney
fees under § 1221(g)); Carson v. Dep’t of Energy,
64 F. App’x
234, 237 (Fed. Cir. 2003) (reviewing a grant of attorney fees
by the Board in a case brought under the WPA). As to the
regulation, Dr. Edenfield is correct that it does not refer to
§ 1221(g)(3) but explicitly recites other provisions of § 1221.
The regulation, however, also explains that the recited list
of statutes is not exclusive, and thus the regulation does
not preclude the Board from awarding fees under
§ 1221(g)(3). See
5 C.F.R. § 1201.202(a) (“These statutory
authorities include, but are not limited to, the following
Case: 21-2001 Document: 50 Page: 6 Filed: 03/07/2023
6 EDENFIELD V. DEP’T VETERANS AFFAIRS
authorities . . . .” (emphasis added)). And even if both the
statute and regulation were silent on the Board’s authority
to award attorney fees, that would not change the fact that
§ 1221(g) does not grant this Court the authority to award
attorney fees in an action brought under the WPA. See Er-
ickson v. U.S. Postal Serv.,
759 F.3d 1341, 1345 (Fed. Cir.
2014) (“[T]here must be an independent statutory authori-
zation for the court to award fees.”). Because this Court
does not have independent statutory authority to grant an
award of attorney fees under the WPA, and Dr. Edenfield
has not argued for a grant of attorney fees under any other
statute, we cannot grant Dr. Edenfield’s application. 2
Accordingly,
IT IS ORDERED THAT:
Dr. Edenfield’s application for an award of appellate
attorney fees and costs is denied.
FOR THE COURT
March 7, 2023 /s/ Peter R. Marksteiner
Date Peter R. Marksteiner
Clerk of Court
2 We express no opinion as to whether Dr. Edenfield
is entitled to an award of attorney fees from the Board for
this appeal.
