John S. Willis v. Office of Personnel Management

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
JOHN S. WILLIS,
Petitioner
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent
______________________
2020-1953
______________________
Petition for review of the Merit Systems Protection
Board in No. AT-0831-19-0476-A-1.
______________________
Decided: April 29, 2021
______________________
J ENNIE CATHRYNE BLAINE W ATSON, Swick and Shapiro,
PC, Washington, DC, for petitioner.
K ARA WESTERCAMP , Commercial Litigation Branch,
Civil Division, United States Department of Justice, Wash-
igton, DC for respondent. Also represented by BRIAN M.
BOYNTON, T ARA K. HOGAN, ROBERT EDWARD K IRSCHMAN,
J R.
______________________
Before O’MALLEY , REYNA, and STOLL , Circuit Judges.
Case: 20-1953 Document: 50 Page: 1 Filed: 04/29/2021

-- 1 of 11 --

WILLIS v. OPM 2
REYNA, Circuit Judge.
Petitioner appeals a decision of the Merit Systems Pro-
tection Board denying attorneys’ fees and costs. The Merit
Systems Protection Board found that the petitioner did not
demonstrate entitlement to an award of attorneys’ fees and
costs. Because the decision is supported by substantial ev-
idence and is not otherwise contrary to law, we affirm.
BACKGROUND
On October 31, 1998, John S. Willis retired after thirty
years as a Special Agent with the Federal Bureau of Inves-
tigation (“FBI”) and four years in the Army. J.A. 23, 89. At
that time, he was married to Donis Willis, née Suiter (here-
after “Ms. Suiter”). J.A. 94. Mr. Willis elected a survivor
annuity benefit for Ms. Suiter under the Civil Service Re-
tirement System. J.A. 89. Mr. Willis’s retirement annuity
was correspondingly reduced due to the benefit provided to
his wife. Id.
Mr. Willis and Ms. Suiter divorced on August 18, 2000.
J.A. 94. Pursuant to the terms of the divorce settlement,
Mr. Willis kept Ms. Suiter as a survivor annuitant for the
remainder of her life. J.A. 94–95, 247–53. Eventually, the
two became estranged and stopped speaking. J.A. 89.
In March 2009, Mr. Willis married his current wife, Ka-
ren Willis. J.A. 24, 89, 127. Later that month, Mr. Willis
called the Office of Personnel Management (“OPM”) to in-
quire whether he could obtain survivor annuity benefits for
his new wife. J.A. 89, 96. Mrs. Willis was present for the
call. In response to Mr. Willis’s question, the person on the
phone stated, “Absolutely not!” J.A. 89. As such, Mr. Willis
and Mrs. Willis believed that Mrs. Willis was not qualified
for survivor annuity benefits as long as Ms. Suiter was
alive. J.A. 89.
Mr. Willis was unaware that Ms. Suiter died on Decem-
ber 31, 2014. He learned of her passing three years later,
on December 8, 2017. J.A. 107. He telephoned OPM to ask
Case: 20-1953 Document: 50 Page: 2 Filed: 04/29/2021

-- 2 of 11 --

WILLIS v. OPM 3
how to obtain the survivor annuitant benefits for Mrs. Wil-
lis now that Ms. Suiter was no longer living. OPM sent
Mr. Willis a letter in December 2017 with the necessary
forms. OPM’s letter explained that for him to receive the
full annuity at an unreduced rate (that is, without Ms.
Suiter’s portion removed), he needed to have provided a
copy of Ms. Suiter’s death certificate or a copy of the divorce
order within two years of death or divorce.1 J.A. 99. Addi-
tionally, the letter explained that if he married again and
wanted to obtain survivor annuity benefits for his new
spouse, he needed to have informed OPM within two years
of the marriage. Id. According to Mr. Willis, this is the
first time that he learned of a two-year notice requirement
pertaining to both Ms. Suiter’s death and his remarriage to
Mrs. Willis.
Mr. Willis filled out the forms that OPM sent him and
submitted them on December 16, 2017. J.A. 90. On the
cover page accompanying his forms, he inadvertently iden-
tified the March 2009 phone call as having occurred in Jan-
uary 2016. See J.A. 101 (“I married Karen on 03/09/2009,
at Raleigh, Wake County, NC. I spoke to someone at OPM
by phone in 01/2016.”). After mailing in the forms, he al-
leges that he diligently inquired about the status of his re-
quests by calling OPM to follow up on January 26, 2018;
March 14, 2018; April 10, 2018; May 30, 2018; and June 6,
2018. Petitioner’s Br. 4. Each time he was purportedly told
that his request had not yet been assigned. Id. OPM’s rec-
ords reflect only one call in June 2018. J.A. 255.
On January 8, 2018, after realizing that he accidentally
signed on a line meant for an OPM representative, Mr. Wil-
lis resubmitted his forms. J.A. 90, 101–108. Rather than
1 Due to the clause in the divorce settlement,
J.A. 94–95, 247–53, Ms. Suiter’s right to survivor annuity
would not have terminated upon divorce—only upon her
death.
Case: 20-1953 Document: 50 Page: 3 Filed: 04/29/2021

-- 3 of 11 --

WILLIS v. OPM 4
correcting his error regarding the March 2009 phone call,
the cover letter to the new submission stated: “Shortly af-
ter my marriage to Karen I notified OPM of our mar-
riage[.]” J.A. 102.
On July 19, 2018, OPM denied his request because it
was not filed within two years of Ms. Suiter’s death or his
marriage to Mrs. Willis. J.A. 107, 109–10. The following
week, Mr. Willis filed a request for reconsideration of this
denial. J.A. 111. The request for reconsideration did not
identify the March 2009 call, but stated that Mr. Willis did
not “receive any notice from [OPM] that there was a time
deadline on inserting my current spouse as the beneficiary,
which I tried to do, because you had instructed me that this
could not be done while my former spouse was alive.” Id.
Upon obtaining legal counsel, Mr. Willis submitted a sup-
plemental filing in October 2018. J.A. 112–26. As to the
March 2009 call, the supplemental submission did not in-
dicate when the call occurred, but simply that “[s]hortly af-
ter marrying Karen,” Mr. Willis contacted OPM, J.A. 113,
and that he “tried to get Karen survivor spouse status upon
his marriage to her,” J.A. 115.
OPM denied Mr. Willis’s request in April 2019.
J.A. 45–47. It explained that he missed the two-year time
period for filing his request. J.A. 45–46. OPM further ex-
plained that he could have “voluntarily elected” to desig-
nate Mrs. Willis “as a survivor in the event” of Ms. Suiter’s
death. J.A. 46. OPM added that it sympathized with Mr.
Willis but had no discretion in the matter. Id.
Mr. Willis appealed this decision to the Merit Systems
Protection Board (“MSPB”) in May 2019. In August 2019,
Mr. Willis moved to compel Verizon to produce phone rec-
ords showing that he called OPM in March 2009. J.A. 223–
34. Because his motion was improper, the Administrative
Judge (“AJ”) denied it. J.A. 237. In a footnote, the AJ
stated that Mr. Willis had advanced an argument that
OPM had misled him, but that the argument was “not yet
Case: 20-1953 Document: 50 Page: 4 Filed: 04/29/2021

-- 4 of 11 --

WILLIS v. OPM 5
well developed and he provided no case citations support-
ing [his] argument that the statutory deadline can be
waived under such circumstances.” J.A. 237 n.1. Mr. Wil-
lis’s counsel renewed the request to compel production of
the phone records, correcting prior errors, which was
granted. J.A. 240–43. Mr. Willis also submitted an affida-
vit in support of his motion. J.A. 62. The affidavit declared
that Mr. Willis sought phone records from March 9, 2009
to March 9, 2011 to corroborate that he had called OPM
“soon after [his] marriage to Karen” and that “OPM per-
sonnel told [him] Karen was ‘absolutely not’ eligible to [be]
named a survivor annuitant of [his] federal retirement ben-
efits as long as [his] first wife was still living. No mention
was made of any need to designate Karen a survivor annu-
itant within 24 months of [their] marriage.” J.A. 62.
The parties held a prehearing conference on August 15,
2019 during which it became clear that Mr. Willis and
Mrs. Willis would testify about one or more calls made to
OPM in which they received misinformation. J.A. 86, 89-
91. Specifically, Mr. Willis’s prehearing submission indi-
cated that the first call to OPM occurred in 2009. J.A. 80,
86, 90. OPM’s pre-hearing submissions included copies of
annual notices of Mr. Willis’s election rights that he would
have received each year since 2000 informing him of the
two-year deadlines. J.A. 262–313.
A hearing was held on October 3, 2019. Mr. Willis and
Mrs. Willis testified that, during a March 2009 call to OPM,
the “OPM representative stridently and repeatedly advised
that there was nothing they could do to provide benefits for
Karen during [Ms. Suiter]’s lifetime.” J.A. 24. Mr. Willis
conceded that OPM had provided him proper written no-
tices of his right to make a survivor annuity election.
J.A. 25–26, 262–313.
The MSPB issued a decision on October 31, 2019, in
favor of Mr. Willis on the basis that OPM misled him in its
guidance to him and, therefore, equitable tolling applied to
Case: 20-1953 Document: 50 Page: 5 Filed: 04/29/2021

-- 5 of 11 --

WILLIS v. OPM 6
the deadlines. J.A. 26–27. The AJ noted that the two-year
deadlines “may only be waived in this case if equitable es-
toppel is appropriate due to affirmative misconduct by
OPM.” J.A. 26. Here, the AJ determined that equitable
estoppel applied because OPM had misadvised Mr. Willis
“about his ability to make an alternative election for his
new spouse in the event [Ms. Suiter] predeceased him.”
J.A. 26. The AJ found Mr. Willis’s testimony regarding the
March 2009 call credible because it was based on his own
personal recollection, Mrs. Willis corroborated it, and his
employment at the FBI made him “an individual trained to
fully appreciate the gravity of sworn testimony.” J.A. 26–
27.
Following this favorable ruling, Mr. Willis moved for
attorneys’ fees and costs in January 2020 in the amount of
$82,932.18. J.A. 168–77. Mr. Willis relied on Allen v.
United States Postal Service, in which the MSPB set forth
a non-exhaustive list of categories in which attorneys’ fees
may be warranted in the interest of justice:
(i) The agency engaged in a “prohibited personnel
practice”;
(ii) The agency action was “clearly without merit” or
was “wholly unfounded,” or the employee is “sub-
stantially innocent” of the charges brought;
(iii) The agency initiated the action in “bad faith”;
(iv) The agency committed a “gross procedural error”
which “prolonged the proceeding” or “severely
prejudiced” the employee;
(v) The agency “knew or should have known that it
would not prevail on the merits” when it brought
the proceeding.
Allen v. U.S. Postal Serv., 2 M.S.P.R. 420, 434–35 (M.S.P.B
July 22, 1980). Mr. Willis relied principally on the follow-
ing two arguments: OPM’s action was “clearly without
merit,” satisfying Allen factor two; and OPM “knew or
should have known that it would not prevail on the merits”
Case: 20-1953 Document: 50 Page: 6 Filed: 04/29/2021

-- 6 of 11 --

WILLIS v. OPM 7
when it brought the proceeding, satisfying Allen factor five.
J.A. 169.
In response to Mr. Willis’s first argument, OPM as-
serted that it had determined its position was meritorious
after inspecting all of the documentary evidence in the
case. J.A. 322–23. OPM added that the fact that the MSPB
ultimately found Mr. Willis’s testimony credible did not in-
dicate that OPM’s position was “clearly without merit,”
since reasonable minds could differ. J.A. 331.
In response to Mr. Willis’s second argument, OPM ex-
plained that it based its position on what it knew at the
time. J.A. 321. OPM contends that, had it known of the
divorce, OPM would have advised Mr. Willis of his rights
in the event he remarried. J.A. 322. OPM also referred to
at least eight annual notices that were sent to Mr. Willis
informing him of his rights should he decide to remarry.
J.A. 322; see also J.A. 262–313. OPM alleges that Mr. Wil-
lis made no argument these notices were insufficient to in-
form him of his rights. J.A. 322.
As to attorneys’ fees, OPM argued that costs requested
by Mr. Willis were unreasonable because the hours claimed
were erroneous, vague, excessive, and duplicative; because
the travel expenses were excessive;2 and because the
hourly rate utilized was excessive. J.A. 329–30.
The AJ denied attorneys’ fees, finding that Mr. Willis
did not prove that awarding fees was in the interest of jus-
tice. J.A. 2–3. In reaching this conclusion, the AJ assessed
whether OPM knew or should have known that it could not
prevail in its principal case against Mr. Willis and whether
OPM’s case was clearly without merit.
2 Mr. Willis’s attorney flew first-class from Washing-
ton, D.C. to Atlanta for the MSPB hearing, a flight that cost
over $1,000. J.A. 206.
Case: 20-1953 Document: 50 Page: 7 Filed: 04/29/2021

-- 7 of 11 --

WILLIS v. OPM 8
The AJ concluded that the dispositive merits of the un-
derlying case was the credibility determination reached
concerning Mr. Willis’s testimony about the March 2009
phone call. J.A. 3. The AJ noted that evidence supporting
equitable tolling was scant prior to the October 2019 hear-
ing. J.A. 3–4. The AJ reasoned that there was no way OPM
could have known or should have known that it could not
prevail because it could not have accounted for the credi-
bility determination that would be reached at the hearing.
OPM thus was justified in believing it had a meritorious
case given the number of annual notices sent to Mr. Willis,
and the absence of extraordinary circumstances warrant-
ing equitable tolling prior to the hearing. J.A. 6–7. Fur-
ther, because the evidence that tipped the scales in Mr.
Willis’s favor was not presented until the MSPB hearing,
the AJ concluded that OPM did not unnecessarily prolong
the litigation. J.A. 7–8.
On April 15, 2020, the AJ decision became final.
J.A. 1–16. This appeal followed. We have jurisdiction pur-
suant to 28 U.S.C. § 1295(a)(9).
D ISCUSSION
This court will uphold a decision by the MSPB unless
it is “‘arbitrary, capricious, an abuse of discretion, or other-
wise not in accordance with the law,’ or ‘unsupported by
substantial evidence.’” Hickey v. Dep’t of Homeland Sec.,
766 F. App’x 970, 974 (Fed. Cir. 2019) (quoting
5 U.S.C. § 7703(c)(1), (3)). An abuse of discretion occurs
where a decision is “based on an erroneous interpretation
of the law, on factual findings that are not supported by
substantial evidence, or represents an unreasonable judg-
ment in weighing relevant factors.” Tartaglia v. Dep’t of
Veterans Affairs, 858 F.3d 1405, 1407–08 (Fed. Cir. 2017)
(internal quotation marks and citation omitted). Substan-
tial evidence is “more than a mere scintilla of evidence,”
“but less than the weight of the evidence.” Jones v. Dep’t of
Health & Hum. Servs., 834 F.3d 1361, 1366 (Fed. Cir. 2016)
Case: 20-1953 Document: 50 Page: 8 Filed: 04/29/2021

-- 8 of 11 --

WILLIS v. OPM 9
(internal quotation marks and citations omitted). The ap-
pellant bears the burden of establishing error. Jenkins v.
Merit Sys. Prot. Bd., 911 F.3d 1370, 1373 (Fed. Cir. 2019).
Following a ruling on the merits, the MSPB may award
reasonable attorneys’ fees if the employee or applicant is
the prevailing party3 and the MSPB determines that “pay-
ment by the agency is warranted in the interest of justice.”
Hickey, 766 F. App’x at 974; 5 U.S.C. § 7701(g)(1). The
MSPB relies on the Allen factors to determine whether at-
torneys’ fees are warranted. Here, the MSPB relied on the
fifth Allen factor: whether OPM “knew or should have
known that it would not prevail on the merits when it
brought the proceeding.” J.A. 3. Under the “knew or
should have known” Allen factor, the MSPB considers
whether OPM was negligent in processing the application;
lacked a reasonable or supported explanation for its posi-
tion; or ignored clear, unrebutted evidence that the appel-
lant satisfied the criteria for a benefit. See Stewart v. Off.
of Pers. Mgmt., 70 M.S.P.R. 544, 548 (M.S.P.B. May 24,
1996).
Under the fifth Allen factor, “[f]ees are warranted in
the interest of justice when OPM knew or should have
known that it would not prevail on the merits at the time
it issued its reconsideration decision.” Kent v. Off. of Pers.
Mgmt., 33 M.S.P.R. 361, 366 (M.S.P.B. Apr. 15, 1987).
Here, Mr. Willis might be entitled to fees if he “produced
evidence that was so compelling that reasonable minds
could not differ as to his eligibility for an annuity and
OPM’s continued refusal to approve a disability retirement
3 The parties do not dispute that Mr. Willis was the
prevailing party. See, e.g., Petitioner’s Br. at 6 (“Mr. Willis
then filed a timely motion for attorneys’ fees as the prevail-
ing part[y.]”); Respondent’s Br. at 8 (“[A]s the prevailing
party, Mr. Willis then moved for attorneys’ fees and
costs[.]”).
Case: 20-1953 Document: 50 Page: 9 Filed: 04/29/2021

-- 9 of 11 --

WILLIS v. OPM 10
annuity for the appellant prolonged the adjudication.” Id.
at 369.
On appeal, Mr. Willis argues that the MSPB’s finding
that OPM did not have evidence supporting equitable toll-
ing prior to its denial of reconsideration in April 2019 is
erroneous. Petitioner’s Br. 12–13. In support, Mr. Willis
points to language from the October 4, 2018 supplement to
his request for reconsideration and his December 2017 and
January 2018 submissions to OPM. Id. at 13–14. He ar-
gues that these correspondences prove he made multiple
attempts to inform OPM that it misled him prior to its
April 2019 reconsideration denial. We disagree. The ques-
tion is not whether he informed OPM that it had misled
him, but whether he provided conclusive evidence before
the denial of reconsideration that he had been misled such
that equitable tolling must apply. But the evidence shows
that Mr. Willis did not inform OPM until his August 2019
affidavit. The AJ found that “the appellant’s entire argu-
ment for equitable tolling rested upon the credibility of [the
statement in his affidavit] – an issue which both parties
agreed would be resolved through the hearing process.”
J.A. 6.
Mr. Willis further contends that it became clear during
the hearing that he was entitled to the benefits and OPM
needlessly prolonged the proceedings since his August
2019 affidavit and pre-hearing submissions clarified that
the misleading call occurred in March 2009 and that he and
his wife would testify to that timing. Petitioner’s Br. at 18–
19. According to Mr. Willis, the information should have
made clear by August 2019 that OPM would not prevail at
the hearing. Id.
We are not persuaded. As the MSPB noted, Mr. Willis’s
equitable tolling argument rested on the credibility of his
and Mrs. Willis’s hearing testimony. J.A. 6. The AJ him-
self “did not know ahead of time whether this testimony
would be credible.” J.A. 7. The MSPB ultimately
Case: 20-1953 Document: 50 Page: 10 Filed: 04/29/2021

-- 10 of 11 --

WILLIS v. OPM 11
concluded that OPM, relying on the same record on which
the AJ relied, “neither knew, nor could have known, how
these questions of credibility would be resolved until the
hearing ended.” J.A. 7. Further, OPM “could not be ex-
pected to surmise from the record as it stood before the
hearing that its position was clearly without merit, since
that determination required weighing the credibility of tes-
timony [OPM] had not yet heard.” Id. As such, OPM was
justified in thinking it had a meritorious position prior to
the October 2019 hearing. Id. The MSPB’s decision is
therefore supported by substantial evidence.
Accordingly, we find no error in the MSPB’s decision to
deny an award of attorneys’ fees and costs.
CONCLUSION
We conclude that the MSPB’s decision to deny attor-
neys’ fees and costs is supported by substantial evidence
and is otherwise in accordance with law. We have consid-
ered the parties’ remaining arguments and find them un-
persuasive. Therefore, we affirm.
AFFIRMED
Case: 20-1953 Document: 50 Page: 11 Filed: 04/29/2021

-- 11 of 11 --