Opinion

Mark Tartaglia v. Department of Veterans Affairs

Court: Merit Systems Protection Board
Filed: Jul 8, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 30.3%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

MARK J. TARTAGLIA, DOCKET NUMBER

Appellant, DC-0752-14-1108-A-1

DEPARTMENT OF VETERANS DATE: July 8, 2024

AFFAIRS,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Neil C. Bonney , Esquire, Virginia Beach, Virginia, for the appellant.

Timothy M. O’Boyle , Esquire, Hampton, Virginia, for the agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

Henry J. Kerner, Member

FINAL ORDER

The appellant has filed a petition for review of the addendum initial

decision, which denied his motion for attorney fees. For the reasons discussed

below, we GRANT the appellant’s petition for review, REVERSE the addendum

initial decision, and GRANT the appellant’s motion for attorney fees.

A nonprecedential order is one that the Board has determined does not add

significantly to the body of MSPB case law. Parties may cite nonprecedential orders,

but such orders have no precedential value; the Board and administrative judges are not

required to follow or distinguish them in any future decisions. In contrast, a

precedential decision issued as an Opinion and Order has been identified by the Board

as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).

BACKGROUND

The agency removed the appellant for misconduct on September 19, 2014,

and the appellant appealed his removal to the Board. Tartaglia v. Department of

Veterans Affairs, MSPB Docket No. DC-0752-14-1108-I-1, Initial Appeal File

(IAF), Tab 1. After extensive litigation, including a remand from the United

States Court of Appeals for the Federal Circuit, the administrative judge issued an

initial decision mitigating the appellant’s removal to a 30-day suspension.

Tartaglia v. Department of Veterans Affairs, MSPB Docket No. DC-0752-14-

1108-M-1, Remand File, Tab 9, Remand Initial Decision (RID) (Mar. 28, 2019);

Tartaglia v. Department of Veterans Affairs , 858 F.3d 1405 (Fed. Cir. 2017).

Neither party petitioned for review, and the remand initial decision became final.

See 5 C.F.R. § 1201.113. The administrative judge ordered the agency to, among

other things, mitigate the removal to a 30-day suspension and pay the appellant

the appropriate amount of back pay. RID at 4.

On June 6, 2019, the appellant filed a petition for enforcement, seeking

reinstatement and back pay. Tartaglia v. Department of Veterans Affairs, MSPB

Docket No. DC-0752-14-1108-C-1, Compliance File (CF). On November 14,

2019, the administrative judge denied the petition, finding that the appellant

entered into disability retirement retroactive to the date of his removal, and that

status quo ante relief therefore did not require the agency to reinstate him or give

him back pay. CF, Tab 12. The appellant filed a petition for review of the

compliance initial decision, and the Board issued a nonprecedential final order

denying the petition for review. Tartaglia v. Department of Veterans Affairs,

MSPB Docket No. DC-0752-14-1108-C-2, Final Order (July 8, 2024);

Tartaglia v. Department of Veterans Affairs, MSPB Docket No. DC-0752-14-

1108-C-1, Petition for Review File, Tab 1, Tab 5, Final Order.

Meanwhile, on May 8, 2019, the appellant filed the instant motion for

attorney fees, seeking $4,640 in attorney fees incurred during the remand and

attorney fee proceedings. Attorney Fee File (AFF), Tabs 1, 3, 5. The

administrative judge issued an addendum initial decision, denying the appellant’s

motion. AFF, Tab 6, Addendum Initial Decision (AID). The administrative

judge found that the appellant was eligible for attorney fees because he was the

prevailing party in the case and an attorney-client relationship existed. AID

at 4-6. However, despite the appellant’s eligibility for attorney fees, the

administrative judge found that he was not entitled to them because a fee award

was not warranted in the interest of justice. AID at 6-7. Specifically, he found

that the appellant enjoyed a minimal level of success because he had not been

reinstated to his former position or any other position, and he had not received

back pay. AID at 7.

The appellant has filed a petition for review, disputing the administrative

judge’s analysis. Petition for Review (PFR) File, Tab 1. The agency has filed a

reply to the petition for review, and the appellant has filed a reply to the agency’s

response. PFR File, Tabs 3, 4.

ANALYSIS

To establish entitlement to an award of attorney fees under 5 U.S.C.

§ 7701(g)(1), an appellant must show that (1) he was the prevailing party; (2) he

incurred attorney fees pursuant to an existing attorney-client relationship; (3) an

award of fees is warranted in the interest of justice; and (4) the amount of fees

claimed is reasonable. Hart v. Department of Transportation, 115 M.S.P.R. 10,

¶ 13 (2010). In this case, the administrative judge found that the appellant was

the prevailing party in the appeal and that he incurred attorney fees pursuant to an

existing attorney-client relationship. AID at 4-6. The agency does not challenge

these findings, and for the reasons explained in the addendum initial decision, we

agree. Therefore, the only issues in this appeal are whether attorney fees are

warranted in the interest of justice, and if so, whether the amount of fees claimed

is reasonable.

An attorney fee award by the Board may be warranted in the interest of

justice when, e.g.: (1) the agency engaged in a prohibited personnel practice;

(2) the agency action was clearly without merit or wholly unfounded, or the

employee was substantially innocent of the charges; (3) the agency initiated the

action in bad faith; (4) the agency committed a gross procedural error; or (5) the

agency knew or should have known that it would not prevail on the merits.

Allen v. U.S. Postal Service, 2 M.S.P.R. 420, 434-35 (1980). In this case, the

administrative judge found that attorney fees were not warranted in the interest of

justice because the appellant’s “minimal ‘degree of success’ shows he is not

entitled to the payment of fees for the work performed by his counsel following

the court’s remand decision.” AID at 6. We disagree. An appellant’s “degree of

success” as such is not a consideration in whether fees are warranted in the

interest of justice under Allen. 2 Rather, it is a factor to consider in determining

whether the amount of fees claimed is reasonable; a limited degree of success

may warrant a downward adjustment in fees awarded. Driscoll v. U.S. Postal

Service, 116 M.S.P.R. 662, ¶ 24 (2011). In reaching his finding on this issue, the

administrative judge relied on Farrar v. Hobby, 506 U.S. 103 (1992), Southerland

v. Department of Defense, 122 M.S.P.R. 51, 58 ¶ 14 (2014), and Arnold v.

Department of the Air Force, 94 M.S.P.R. 17, ¶ 19 (2003). However, in Farrar,

the Court observed that “the degree of the plaintiff’s overall success goes to the

reasonableness” of a fee award. 506 U.S. at 114 (quoting Texas State Teachers

Association v. Garland Independent School District, 489 U.S. 782, 793 (1989)).

The Court found that the petitioners’ limited degree of success warranted an

We acknowledge that the Federal Circuit has held that “the extent of a party’s victory”

is relevant to whether fees may be warranted in the interest of justice. Sterner v.

Department of the Army, 711 F.2d 1563, 1567-68 (Fed. Cir. 1983). However, in so

holding, the court presumed that the degree of success would reflect “the magnitude of

the injustice done the employee.” Id. at 1568. Under the facts of this case, however,

the appellant’s allegedly limited success was largely a product of his subsequent

disability retirement. This was an intervening event wholly unrelated to the appellant’s

removal, and we find that it bears no relation to the magnitude of the injustice done him

by the action under appeal as contemplated in the five enumerated Allen factors.

adjustment of the fees claimed down to $0, but it did not find that the degree of

success affected whether fees were warranted in the interest of justice. Id.

at 115-16. Likewise, in neither Southerland nor Arnold did the Board state that

the appellants’ limited degree of success pertained to whether fees were

warranted in the interest of justice. Rather, the Board followed Farrar and

considered the appellants’ limited degree of success in “exercis[ing] our

discretion under civil-service law to determine whether the attorney fees claimed

[were] reasonable.” Arnold, 94 M.S.P.R. 17, ¶ 21; see Southerland, 122 M.S.P.R.

51, ¶ 14.

Applying the Allen factors to the facts of this appeal, we find that fees are

warranted in the interest of justice under the fourth category, namely that the

appellant was substantially innocent of the charges. The agency removed the

appellant based on five specifications of abuse of authority and two specifications

of lack of candor. IAF, Tab 3 at 11-13. However, on appeal, the agency only

proved a single specification of its abuse of authority charge, pertaining to a

single occasion in which the appellant had a subordinate drive him on a personal

errand in a government-owned vehicle. RID at 2. Notably, the appellant

admitted to this specification at the predecisional stage and indicated his

willingness to accept a reasonable penalty for it. IAF, Tab 3 at 22. Had the

deciding official based his decision on this specification alone, the years of

litigation in this appeal could likely have been avoided altogether. 3 Furthermore,

in our view, the sustained specification is among the least serious of all the

specifications underlying the removal action, particularly when compared to the

specifications underlying the lack of candor charge. Id. at 54-55; see Friedrick v.

This is particularly so if the deciding official had properly considered the appellant’s

length of service in his penalty determination. The deciding official’s Douglas factor

review sheet merely indicated that the appellant had “been employed with the Hampton

[Veterans Administration Medical Center] since August 2010.” IAF, Tab 3 at 16. It did

not account for the appellant’s previous 10 years of service with the agency or for the

appellant’s prior uniformed service. The Board’s reliance on this document in its own

penalty analysis was the source of the error that the Federal Circuit identified in its

remand order. Tartaglia, 858 F.3d at 1409.

Department of Justice, 52 M.S.P.R. 126, 135 (1991) (finding lack of candor to be

serious misconduct for a law enforcement officer) , aff’d, 980 F.2d 742 (Fed. Cir.

1992) (Table). This assessment was shared by the Federal Circuit, which

described the proven misconduct as “relatively minor.” Tartaglia, 858 F.3d

at 1410. An employee is substantially innocent of the charges against him, for

attorney fee purposes, if he is innocent of the primary or major charges, or of the

more important and greater part of the original charges. Lambert v. Department

of the Air Force, 34 M.S.P.R. 501, 503 (1987) (quoting Boese v. Department of

the Air Force, 784 F.2d 388, 391 (Fed. Cir. 1986)). This standard has clearly

been met in this case because the agency has only been able to prove one of the

seven specifications underlying its removal action, and a relatively minor one at

that. See Ceja v. Defense Logistics Agency, 34 M.S.P.R. 399, 403 (1987);

Thomson v. Department of the Navy, 33 M.S.P.R. 106, 111-12 (1987). Having

found that the appellant was the prevailing party, he incurred attorney fees during

the proceedings, and an award of attorney fees is warranted in the interest of

justice, the only thing left for us is to arrive at a reasonable figure.

The most useful starting point for determining the amount of a reasonable

fee award is the number of hours reasonably expended on the litigation multiplied

by a reasonable hourly rate. Hensley v. Eckerhart, 461 U.S. 424, 433 (1983).

The party seeking an award of fees should submit evidence supporting the hours

worked and rates claimed. Id. In this case, the appellant is claiming total fees of

$4,640.00. AFF, Tab 5 at 10. This amount is based on 10 hours of work

performed by the appellant’s attorney and 1.4 hours of work performed by the

attorney’s paralegal related to the remand proceedings and motion for attorney

fees. 4 AFF, Tab 1 at 19-22, Tab 3 at 8-9, Tab 5 at 7, 10, 14-15; see LaMorge v.

Department of Agriculture, 6 M.S.P.R. 137, 139-40 (1981) (finding that attorney

fees may be recovered for time an attorney spent on a motion for attorney fees).

Notably, the attorney fees petition does not include fees related to the appellant’s

unsuccessful petition for enforcement.

The agency questioned two of the entries on the attorney’s billing

statements, one for 1.1 hours of “rev agency response to our PFR” and one for

1.2 hours of “conf call w/judge; pre and post discussion w/ client.” AFF, Tab 1

at 21, Tab 3 at 9, Tab 4 at 5-6. In response to the agency’s concerns, the

appellant’s attorney deducted .7 hours of reviewing the agency response,

attributing that claimed time to a billing error, but he maintained that the

remaining .4 hours was correct and reasonable because he used that time to

reacquaint himself with the facts of the case. AFF, Tab 5 at 7, 14, 15. We accept

this explanation and find that the remaining .4 hours was time reasonably spent.

See Shoemaker v. Department of Health and Human Services, 21 M.S.P.R. 14, 17

(1984) (allowing 4 hours as reasonably spent by counsel to acquaint himself with

the facts of the case). Regarding the other item, the appellant’s attorney stands

by the entire 1.2 hours billed. He argues that, although the conference call itself

only took a few minutes, the remainder of the time accounts for a significant

meeting with his client. Id. at 7. We also accept this explanation, which is

consistent with the notation on the billing records, and we find that this was time

reasonably spent. AFF, Tab 1 at 21; see Hooks v. U.S. Postal Service,

42 M.S.P.R. 225, 228-29 (1989) (finding that, because an attorney is obligated to

keep his client informed of the status of the client’s case, reasonable hours

expended discussing the case are compensable in an award of attorney fees). The

agency does not specifically challenge any of the remaining entries, and our

review of the record reveals no apparent discrepancies or any other reason to

believe that the hours claimed are excessive. We also find that a total of 10 hours

of attorney time and 1.4 hours of paralegal time is facially consistent with what

might be expected based on the pleadings filed in the remand and attorney fee

proceedings. We therefore allow all of the claimed hours.

Regarding the charged rate, the attorney billed his own time at $450 per

hour and the paralegal’s time at $100 per hour. AFF, Tab 1 at 15, 17. The

agency does not challenge the paralegal rate, and we find that it is consistent with

the applicable fee agreement and is otherwise reasonable on its face. AFF, Tab 3

at 7; see Goeke v. Department of Justice, MSPB Docket No. CB-0752-15-0228-

A-1, Tab 1, Final Order (Aug. 12, 2016) (ordering fees at a paralegal rate of $145

per hour). The agency does, however, challenge the $450 per hour attorney rate

as excessive because it exceeds the $400 per hour rate specified in the fee

agreement. AFF, Tab 3 at 7, Tab 4 at 5. It is well settled that an hourly rate set

forth in a fee agreement creates a rebuttable presumption that that amount

represents the maximum reasonable fee which may be awarded. Ceja,

34 M.S.P.R. at 404. However, as the appellant points out, the fee agreement goes

on to say that the attorney’s hourly rate is subject to change, and the fee

agreement was executed more than 4 years before the proceedings at issue here.

AFF, Tab 3 at 7, Tab 5 at 6. We find nothing improbable about the attorney’s

hourly rate increasing by $50 during that time, and we see no reason to doubt the

authenticity of the billing statements that reflect a $450 per hour rate or the truth

of the attorney’s affidavit that this is now his customary billing rate. AFF, Tab 1

at 9, 17, 20-21. Considering the attorney’s experience and expertise in Federal

personnel law, previous Board decisions finding the same rate as reasonable for

other attorneys, and the lack of any evidence that the $450 per hour billing rate is

based on anything other than market considerations, we find that the rate was

reasonable. See, e.g., Gray v. Department of Defense, CH-0752-12-0050-A-1,

Final Order, ¶ 8 (Feb. 25, 2015) (applying a $510 per hour rate for the work of a

Washington, D.C. attorney between 2011 and 2014); Kilpatrick v. Department of

Veterans Affairs, MSPB Docket No. CB-7121-13-0181-A-1, Final Order, ¶ 14

(Jan. 16, 2015) (finding $450 per hour to be a reasonable rate for an experienced

Philadelphia attorney between 2009 and 2014). Because we find no reason to

disallow the claimed billing rate or exclude any claimed hours from the lodestar

calculation, we find that the appellant’s total claimed fees of $4,640.00 represents

an appropriate starting point.

The next step is to determine whether the lodestar should be adjusted

upward or downward based on other considerations, including the crucial factor

of the “results obtained.” Driscoll, 116 M.S.P.R. 662, ¶ 10; see Hensley,

461 U.S. at 434. In determining what adjustment, if any, is appropriate, the

Board will weigh the significance of the relief obtained against the relief sought.

Driscoll, 116 M.S.P.R. 662, ¶ 27; Smit v. Department of the Treasury,

61 M.S.P.R. 612, 617 (1994). In this case, we find that the results that the

appellant obtained were exactly the results he sought. As noted above, even

during the predecisional phase, the appellant was seeking a lesser penalty rather

than no penalty at all. IAF, Tab 3 at 22. Indeed, the appellant even requested

before the Federal Circuit that the court reverse the removal and substitute a

30-day suspension, which was precisely the relief that he ultimately received.

Tartaglia, 858 F.3d at 1409. Apart from his petition for enforcement, which is

not encompassed in the instant attorney fee petition, the appellant has raised no

unsuccessful claim whatsoever during the entire course of these proceedings.

Considering that a 30-day suspension is significantly less harsh than a removal

and that the appellant was seeking exactly this same mitigation during the entire

course of the proceedings at issue, we find no basis to make a downward

adjustment to the lodestar.

In this regard, we disagree with the administrative judge that the

appellant’s failure to obtain reinstatement and back pay reflects a limited degree

of success on the merits of his appeal. AID at 7. The instant appeal is

distinguishable from Southerland and Arnold. The appellants in those cases

failed to obtain reinstatement and back pay because the Board affirmed their

removals on appeal. Southerland, 122 M.S.P.R. 51, ¶¶ 3, 14; Arnold, 94 M.S.P.R.

17, ¶¶ 8, 25. In this case, the appellant’s failure to obtain reinstatement and back

pay was due to his subsequent disability retirement and not to lack of success in

litigation. The law does not support a downward adjustment to the lodestar figure

based on the practical consequences of life events that have no legal effect on the

outcome of the appeal.

For these reasons, we grant the appellant’s motion for attorney fees in the

full amount requested.

ORDER

We ORDER the agency to pay the attorney of record $4,640.00 in fees.

The agency must complete this action no later than 20 days after the date of this

decision. Title 5 of the United States Code, section 1204(a)(2) (5 U.S.C.

§ 1204(a)(2)).

We also ORDER the agency to tell the appellant and the attorney promptly

in writing when it believes it has fully carried out the Board’s Order and of the

actions it has taken to carry out the Board’s Order. We ORDER the appellant and

the attorney to provide all necessary information that the agency requests to help

it carry out the Board’s Order. The appellant and the attorney, if not notified,

should ask the agency about its progress. See 5 C.F.R. § 1201.181(b).

No later than 30 days after the agency tells the appellant or the attorney

that it has fully carried out the Board’s Order, the appellant or the attorney may

file a petition for enforcement with the office that issued the initial decision on

this appeal, if the appellant or the attorney believes that the agency did not fully

carry out the Board’s Order. The petition should contain specific reasons why the

appellant or the attorney believes the agency has not fully carried out the Board’s

Order, and should include the dates and results of any communications with the

agency. See 5 C.F.R. § 1201.182(a).

NOTICE OF APPEAL RIGHTS 5

You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By

statute, the nature of your claims determines the time limit for seeking such

Since the issuance of the initial decision in this matter, the Board may have updated

the notice of review rights included in final decisions. As indicated in the notice, the

Board cannot advise which option is most appropriate in any matter.

review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).

Although we offer the following summary of available appeal rights, the Merit

Systems Protection Board does not provide legal advice on which option is most

appropriate for your situation and the rights described below do not represent a

statement of how courts will rule regarding which cases fall within their

jurisdiction. If you wish to seek review of this final decision, you should

immediately review the law applicable to your claims and carefully follow all

filing time limits and requirements. Failure to file within the applicable time

limit may result in the dismissal of your case by your chosen forum.

Please read carefully each of the three main possible choices of review

below to decide which one applies to your particular case. If you have questions

about whether a particular forum is the appropriate one to review your case, you

should contact that forum for more information.

(1) Judicial review in general . As a general rule, an appellant seeking

judicial review of a final Board order must file a petition for review with the U.S.

Court of Appeals for the Federal Circuit, which must be received by the court

within 60 calendar days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(A).

If you submit a petition for review to the U.S. Court of Appeals for the

Federal Circuit, you must submit your petition to the court at the

following address:

U.S. Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, D.C. 20439

Additional information about the U.S. Court of Appeals for the Federal

Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular

relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is

contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.

If you are interested in securing pro bono representation for an appeal to

the U.S. Court of Appeals for the Federal Circuit, you may visit our website at

http://www.mspb.gov/probono for information regarding pro bono representation

for Merit Systems Protection Board appellants before the Federal Circuit. The

Board neither endorses the services provided by any attorney nor warrants that

any attorney will accept representation in a given case.

(2) Judicial or EEOC review of cases involving a claim of

discrimination . This option applies to you only if you have claimed that you

were affected by an action that is appealable to the Board and that such action

was based, in whole or in part, on unlawful discrimination. If so, you may obtain

judicial review of this decision—including a disposition of your discrimination

claims —by filing a civil action with an appropriate U.S. district court ( not the

U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you

receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems

Protection Board, 582 U.S. 420 (2017). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the district court no later than 30 calendar days after your representative

receives this decision. If the action involves a claim of discrimination based on

race, color, religion, sex, national origin, or a disabling condition, you may be

entitled to representation by a court-appointed lawyer and to waiver of any

requirement of prepayment of fees, costs, or other security. See 42 U.S.C.

§ 2000e-5(f) and 29 U.S.C. § 794a.

Contact information for U.S. district courts can be found at their respective

websites, which can be accessed through the link below:

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .

Alternatively, you may request review by the Equal Employment

Opportunity Commission (EEOC) of your discrimination claims only, excluding

all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the

EEOC’s Office of Federal Operations within 30 calendar days after you receive

this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the EEOC no later than 30 calendar days after your representative receives

this decision.

If you submit a request for review to the EEOC by regular U.S. mail, the

address of the EEOC is:

Office of Federal Operations

Equal Employment Opportunity Commission

P.O. Box 77960

Washington, D.C. 20013

If you submit a request for review to the EEOC via commercial delivery or

by a method requiring a signature, it must be addressed to:

Office of Federal Operations

Equal Employment Opportunity Commission

131 M Street, N.E.

Suite 5SW12G

Washington, D.C. 20507

(3) Judicial review pursuant to the Whistleblower Protection

Enhancement Act of 2012 . This option applies to you only if you have raised

claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or

other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).

If so, and your judicial petition for review “raises no challenge to the Board’s

disposition of allegations of a prohibited personnel practice described in section

2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),

(B), (C), or (D),” then you may file a petition for judicial review either with the

U.S. Court of Appeals for the Federal Circuit or any court of appeals of

competent jurisdiction. 6 The court of appeals must receive your petition for

The original statutory provision that provided for judicial review of certain

whistleblower claims by any court of appeals of competent jurisdiction expired on

December 27, 2017. The All Circuit Review Act, signed into law by the President on

July 7, 2018, permanently allows appellants to file petitions for judicial review of

review within 60 days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(B).

If you submit a petition for judicial review to the U.S. Court of Appeals for

the Federal Circuit, you must submit your petition to the court at the