C.F.R. » Title 5 » CHAPTER II—MERIT SYSTEMS PROTECTION BOARD › SUBCHAPTER A—ORGANIZATION AND PROCEDURES › PART 1201—PRACTICES AND PROCEDURES › Subpart H—Attorney Fees (Plus Costs, Expert Witness Fees, and Litigation Expenses, Where Applicable) and Damages (Consequential, Liquidated, and Compensatory)

5 C.F.R. § 1201.204

Proceedings for consequential, liquidated, or compensatory damages

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(a) Addendum proceeding. (1) A request for consequential, liquidated, or compensatory damages will be decided in an addendum proceeding.

(2) A judge may, either on their own motion or on the motion of a party, consider a request for damages in a proceeding on the merits when the judge determines that such action is in the interest of the parties and will promote efficiency and economy in adjudication.

(b) Initiation of addendum proceeding—(1) Time for making request. A request for consequential, liquidated, or compensatory damages must be filed as soon as possible after a final decision of the Board on the merits of an appeal but no later than 60 days after the date on which such decision becomes final. The judge or the Board, as applicable, may waive the time limit for making such request for good cause shown, and upon a finding that a waiver would not result in undue prejudice to the opposing party.

(2) Place of filing. When the initial decision in the proceedings on the merits was issued by a judge in an MSPB regional or field office, the request must be filed with the applicable regional or field office. When the initial decision in the proceedings on the merits was issued by a judge at the Board's headquarters or when the only decision was a final decision issued by the Board itself, the request must be filed with the Clerk of the Board.

(3) Form and content of request. A request for consequential, liquidated, or compensatory damages must be made in writing and state the basis for entitlement to an award of such damages, and the amount of damages sought.

(4) Service. A copy of the request must be served on the other parties or their representatives at the time of the request. A party may respond to the request within the time limit established by the judge or the Board, as applicable.

(5) Hearing; applicability of subpart B. The judge may grant the appellant's request for a hearing on a request for consequential, liquidated, or compensatory damages and may apply appropriate provisions of subpart B of this part to the addendum proceeding.

(6) Initial decision; review by the Board. The judge will issue an initial decision in the addendum proceeding, adjudicating the request for damages. The initial decision shall then be subject to the provisions for a petition for review by the Board under subpart C of this part.

(7) Request for damages made in proceeding before the Board. Where a request for damages is made in a case which originates before the Board, the Board may:

(i) Consider both the merits of the case and the request for damages and issue a final decision; or

(ii) Remand the case to a judge for a new initial decision, either on the request for damages only or on both the merits and the request for damages.

(8) EEOC review of decision on compensatory damages. A final decision of the Board on a request for compensatory damages pursuant to the Civil Rights Act of 1991 shall be subject to review by the Equal Employment Opportunity Commission as provided under subpart E of this part.

[89 FR 72965, Sept. 9, 2024]
Notes of Decisions
Cited in 13 cases (9 in the last 5 years), 2002–2025 · leading case: Theresa Duran v. Dep't of Just. (MSPB 2024).
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Theresa Duran v. Dep't of Just. (MSPB 2024). · cites it 4× “5 C.F.R. § 1201.204 (d). Nevertheless, the Board’s regulations require that a request for compensatory damages be made during the proceeding on the merits, no later than that end of 3 the conference held to define the issues in the case.”
Cunningham v. Dep't of Vets. Affairs, 33 F. App'x 489 (Fed. Cir. 2002). · cites it 2× “Cunningham’s request as untimely pursuant to 5 C.F.R. § 1201.204 (a)(1) (2000). Moreover, the administrative judge found that Mr.”
Tony King v. Dep't of Agric. (MSPB 2022). “However, the Board has found it appropriate to waive the appellant’s failure to comply with the requirements of 5 C.F.R. § 1201.204 (a)-(b) when the appellant was never apprised of the requirements.”
Karen Moore v. Dep't of Vets. Affairs (MSPB 2022). “17 , 58 (2011); 5 C.F.R. § 1201.204 (d)(1)-(e)(1). 2 ¶8 Such a motion, however, cannot be filed, and no addendum proceeding may commence, until the issuance of the final decision in a proceeding on the merits.”
LaTroy Middlebrook v. Soc. Sec. Admin. (MSPB 2023). “We find that it was appropriate to construe this filing as a petition for review because the record below already had closed, and the disposition of the appeal was such that a motion for compensatory damages would have been unavailing.”
Eric Watkins v. Tennessee Valley Auth. (MSPB 2023). “§ 1981a) with 5 C.F.R. § 1201.204 (addressing the procedure for seeking compensatory damages).”
Mary Pearce v. Dep't of Vets. Affairs (MSPB 2023). “Nevertheless, the appellant, who is represented by an attorney, did not make a request for damages as specified in 5 C.F.R. § 1201.204 (a), and she has not raised the issue on review.”
Dianne Scotten v. Dep't of Vets. Affairs (MSPB 2023). “See 5 C.F.R. § 1201.204 (d)(1)-(e)(1). 26 the United States Code (5 U.”
Janet Callahan v. Dep't of Vets. Affairs (MSPB 2023). “See 5 C.F.R. § 1201.204 (e)(1) (recognizing that a motion for damages generally must be filed with the regional or field office that issued the initial decision).”
Ebony M. McHugh v. Dep't of Vets. Affairs (MSPB 2025). “On February 13, 2025, the appellant filed a “Motion for Addendum Proceeding to Address Consequential Damages,” which stated that the appellant had not yet received the lump sum payment, and requested “an addendum proceeding under 5 C.F.R. § 1201.204 for costs, consequential,…”
Prehoda v. Dep't of Homeland Sec., 157 F. App'x 311 (Fed. Cir. 2005). “Prehoda argues that compensatory or consequential damages are available under 5 C.F.R. § 1201.204 , and he cites Zinno v.”
Blanca Mendoza-Sheard v. Dep't of Vets. Affairs (MSPB 2015). “5 C.F.R. § 1201.204 (b). The appellant’s request did not comply with this requirement.”
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