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.

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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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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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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 Case: 21-2001 Document: 50 Page: 5 Filed: 03/07/2023

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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

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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.