Rommel Boo v. Department of Homeland Security

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

ROMMEL BOO, DOCKET NUMBER

Appellant, SF-0752-13-3302-A-1

v.

DEPARTMENT OF HOMELAND DATE: October 29, 2015

SECURITY,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Ronald P. Ackerman, Esquire, Culver City, California, for the appellant.

Robin Evans Dropiewski, Esquire, Southfield, Michigan, for the agency.

BEFORE

Susan Tsui Grundmann, Chairman

Mark A. Robbins, Member

FINAL ORDER

¶1 The agency has filed a petition for review of the addendum initial decision,

which awarded the appellant $53,010.00 in attorney fees. Generally, we grant

petitions such as this one only when: the initial decision contains erroneous

findings of material fact; the initial decision is based on an erroneous

1

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).

2

interpretation of statute or regulation or the erroneous application of the law to

the facts of the case; the administrative judge’s rulings during either the course of

the appeal or the initial decision were not consistent with required procedures or

involved an abuse of discretion, and the resulting error affected the outcome of

the case; or new and material evidence or legal argument is available that, despite

the petitioner’s due diligence, was not available when the record closed. See

Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R.

§ 1201.115). After fully considering the filings in this appeal, and based on the

following points and authorities, we conclude that the petitioner has not

established any basis under section 1201.115 for granting the petition for review.

Therefore, we DENY the petition for review. Except as expressly MODIFIED by

this Final Order to adjust the award of attorney fees downward to $45,058.50, we

AFFIRM the addendum initial decision.

DISCUSSION OF ARGUMENTS ON REVIEW

Background

¶2 The agency removed the appellant from employment with the

Transportation Security Administration on two charges of misconduct:

misrepresentation and undermining required security procedures. See Boo v.

Department of Homeland Security, 122 M.S.P.R. 100, ¶ 5 (2014). The assigned

administrative judge sustained the appellant’s removal; on petition for review, the

Board vacated the initial decision in part, did not sustain the charge of

misrepresentation, and mitigated the penalty to a 30-day suspension. Id.,

¶¶ 1, 16.

¶3 The appellant thereafter filed a petition for attorney fees seeking

$53,010.00, which represented almost 118 hours of attorney work at $450.00 an

hour. Attorney Fees File (AFF), Tab 1. The administrative judge issued an

addendum initial decision awarding the appellant the attorney fees requested

finding that: the appellant was a prevailing party; he was substantially innocent

3

of the charges against him and thus entitled to an award of attorney fees in the

interest of justice; and the fees sought were reasonable. AFF, Tab 9, Addendum

Initial Decision (AID) at 3-6.

¶4 The agency has filed a petition for review arguing that the appellant is not

entitled to an award of attorney fees in the interest of justice based on the nature

of the Board’s prior Opinion and Order reversing the appellant’s removal and

asserting that some of the fees awarded are excessive. Petition for Review (PFR)

File, Tab 1 at 7-13, 17. The appellant has filed a response in opposition to the

petition for review, and the agency has filed a reply. PFR File, Tabs 3-4.

Standard for awarding attorney fees under 5 U.S.C. § 7701(g)(1).

¶5 To receive 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

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

fees claimed is reasonable. See Caros v. Department of Homeland

Security, 122 M.S.P.R. 231, ¶ 5 (2015). The agency has not challenged the

appellant’s prevailing party status or his having incurred attorney fees pursuant to

an existing attorney-client relationship, and we accordingly limit our review of

the addendum initial decision to whether an award of attorney fees is warranted in

the interest of justice and whether such an award is reasonable. See generally

PFR File, Tab 1; AID at 6.

¶6 An award of attorney fees may be warranted under section 7701(g)(1) in the

interest of justice when: (1) the agency engaged in a prohibited personnel

practice; (2) the agency action clearly was 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 gross procedural error; or (5) the

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

Allen v. U.S. Postal Service, 2 M.S.P.R. 420, 434-35 (1980). An award of

attorney fees need only be premised on one category of entitlement under Allen.

4

See Payne v. U.S. Postal Service, 79 M.S.P.R. 71, 72 n.* (1998). The

administrative judge found that an award of attorney fees was warranted in this

case because the appellant was substantially innocent of the charges brought

against him. AID at 4-5. As discussed below, we agree with the administrative

judge’s findings, and we need not consider whether the appellant established an

entitlement to an award of attorney fees under any of the other Allen categories.

See Payne, 79 M.S.P.R. at 72 n.*.

The appellant is entitled to an award of attorney fees in the interest of justice.

¶7 In determining whether an employee has established an entitlement to an

attorney fees award under the “substantially innocent” Allen category, the Board

has found that “substantial innocence” equates to innocence of the primary or

major charges or of the more important and greater part of the original charges.

McWilliams v. Department of the Treasury, 51 M.S.P.R. 422, 428-29 (1991). In

determining whether this criterion has been met, the Board focuses on the gravity

and circumstances of the sustained charges, id. (citing Van Fossen v. Merit

Systems Protection Board, 788 F.2d 748, 750-51 (Fed. Cir. 1986)), and this

standard is based upon the result of the case before the Board, not upon the

evidence and information available to the agency when it took the action,

Alexander v. Department of the Army, 80 M.S.P.R. 350, ¶ 8 (1998).

¶8 We agree with the administrative judge that the appellant is substantially

innocent of the charges brought against him and that the agency was unsuccessful

in establishing the more important and greater part of its original charges that the

appellant engaged in misrepresentation. AID at 4. As the Board previously

explained, there was no evidence in the record that the appellant engaged in the

charged conduct with the intent to defraud, deceive, or mislead the agency for his

own personal gain, and we agree with the administrative judge that the agency

premised its removal action primarily on the appellant’s alleged

5

misrepresentation. 2 See Boo, 122 M.S.P.R. 100, ¶¶ 8, 15; AID at 4. Because the

agency could not sustain the fundamental basis for its removal action, we agree

that the appellant was substantially innocent of the charges against him and is

entitled to an award of attorney fees in the interest of justice. 3 See Boese v.

Department of the Air Force, 784 F.2d 388, 391 (Fed. Cir. 1986). Additionally,

we find the caselaw cited by the administrative judge exceedingly persuasive on

this point, and we agree that the Board’s reversal of the appellant’s removal and

mitigation to a 30-day suspension does not preclude a finding that the appellant

was substantially innocent of the greater part of the agency’s charge of

misconduct. AID at 4 (citing Van Fossen, 788 F.2d at 750, and Boese, 784 F.2d

at 391).

We exercise our equitable discretion and impose a 15 percent reduction in the

lodestar calculation based on the appellant’s limited success.

¶9 Having found that the appellant is eligible for an award of attorney fees as a

prevailing party, and further entitled to an award of attorney fees under

section 7701(g)(1) in the interests of justice, we turn to the reasonableness of the

2

We reject the agency’s argument that the Board modified the elements of proof needed

to sustain a charge of misrepresentation and that it added a new element to such a

charge. See, e.g., PFR File, Tab 1 at 13, Tab 4 at 5. As we made clear in our prior

decision, our reviewing court has held that a charge of misrepresentation requires a

showing that the appellant intended to defraud, deceive or mislead the government for

his own personal gain. See Boo, 122 M.S.P.R. 100, ¶¶ 9-12. We are bound by the

precedential decisions of our reviewing court. See Conner v. Office of Personnel

Management, 120 M.S.P.R. 670, ¶ 6 (2014), aff’d, No. 2014-3129, 2015 WL 1061870

(Fed. Cir. Mar. 12, 2015). Insofar as the agency seeks to reargue the propriety of its

adverse action, such efforts are misplaced in an addendum proceeding. See, e.g.,

Yorkshire v. Merit Systems Protection Board, 746 F.2d 1454, 1458 (Fed. Cir. 1984)

(holding that “the decision on the fee motion is an addendum to the decision on the

merits and not a reconsideration of the evidence in a new light”).

3

We also reject the agency’s argument that the Board’s prior Opinion and Order

reversed the misrepresentation charge on a technical defect. See PFR File, Tab 4 at 6.

The agency’s charge of misrepresentation, rather, was not sustained because of a failure

of proof on one of the required elements of that charge. See Boo, 122 M.S.P.R. 100,

¶ 9; Crouse v. Department of the Treasury, 75 M.S.P.R. 57, 63 (1997) (finding that the

agency must prove all essential elements of its charge).

6

attorney fees requested. Driscoll v. U.S. Postal Service, 116 M.S.P.R. 662,

¶¶ 7-8, 21-29 (2011) (finding that any adjustment to the reasonableness of an

attorney fees petition must be made after determining that attorney fees are

warranted in the interest of justice). Although we agree with the administrative

judge that none of the appellant’s counsel’s expenses identified by the agency are

excessive and should be disallowed, we nevertheless conclude that a downward

adjustment of the lodestar calculation must be made to take into account the

appellant’s “partial or limited success” in the merits phase of his Board appeal.

See Driscoll, 116 M.S.P.R. 662, ¶ 24. For the reasons that follow, we find that

the appellant’s partial success warrants a 15 percent reduction of the lodestar

calculation. Accordingly, we modify the addendum initial decision and award the

appellant $45,058.50 in attorney fees.

¶10 In Driscoll, the Board explained that where, as here, a party is entitled to an

award of attorney fees, but did not succeed on every issue, the most important

factor to be considered in assessing the reasonableness of a fee award under the

lodestar calculation is the results that were obtained. See Driscoll, 116 M.S.P.R.

662, ¶ 21 (citing Hensley v. Eckerhart, 461 U.S. 424, 434 (1983)); see also

Ferebee v. Department of the Navy, 33 M.S.P.R. 447, 450 (1987) (discussing that

the lodestar calculation is the billing rate times the number of hours expended).

Thus, where an appellant is entitled to an award of attorney fees, but does not

succeed on every claim or issue, the case will fall into one of three distinct

categories, each requiring a different approach for determining which fees are

compensable. Driscoll, 116 M.S.P.R. 662, ¶ 25. The Board has found that in

cases such as this one, where the employee achieved only limited success, the

Board should consider whether the degree of success warrants an award based on

7

all hours reasonably spent on the litigation, and, if not, what adjustment is

appropriate. 4 Id., ¶ 27.

¶11 Applying Driscoll, we find that the appellant obtained only partial or

limited success in the merits phase of this appeal because only one of the two

original charges was sustained, and the removal action was mitigated to a 30-day

suspension, thus leaving the appellant with a disciplinary record. See

Driscoll, 116 M.S.P.R. 662, ¶ 28; see also Guy v. Department of the

Army, 118 M.S.P.R. 45, ¶¶ 3, 19 (2012) (adjusting the lodestar calculation in an

individual right of action (IRA) appeal where an appellant only successfully

challenged one of three personnel actions). 5 Thus, because the appellant only

obtained partial or limited success in the prior proceeding, the Board has the

discretion to make an equitable adjustment to the lodestar calculation to account

for the appellant’s limited degree of success. 6 See Driscoll, 116 M.S.P.R. 662,

¶ 24; see also Guy, 118 M.S.P.R. 45, ¶ 20. Based on the nature of the relief

4

The other categories identified in Hensley cover: (1) when an employee fails to

prevail on a claim that is distinct in all respects from his successful claim, in which

case the hours spent on the unsuccessful claim should be excluded; and (2) when an

employee raises several related arguments, all of which are not adopted, an employee

should not have his fee award reduced provided he has secured substantial relief. See

Driscoll, 116 M.S.P.R. 662, ¶ 25 (quoting Hensley, 461 U.S. at 440). These two

categories are inapplicable to the facts of this case where one of the agency’s charges

was not sustained and the appellant’s removal was mitigated to a 30-day suspension

based on the remaining sustained charge. Id., ¶ 28 (finding that the appellant obtained

partial relief by prevailing on one charge and having a removal mitigated to

a demotion).

5

Although an award of attorney fees in an IRA appeal is governed by a different

statutory section than the instant fee petition, see Auker v. Department of Defense,

86 M.S.P.R. 468, ¶¶ 8-12 (2000) (comparing 5 U.S.C. § 1221(g) and 7701(g)), these

provisions are similar in many respects, and the Board has found that the lodestar

adjustment principles discussed above generally are applicable to most attorney fee

petitions involving a prevailing party determination); see Driscoll, 116 M.S.P.R. 662,

¶ 10 n.3 (citing Hensley, 461 U.S. at 433 n.7).

6

Alternatively, the Board could adjust the lodestar calculation by excluding specific

hours that were expended on the unsuccessful claims. E.g., Guy, 118 M.S.P.R. 45, ¶ 20.

We exercise our equitable discretion under the facts and procedural history of this case

and find that a global percentage reduction is more appropriate.

8

ultimately ordered by the Board—reinstatement to employment and the

imposition of a 30-day suspension in lieu of removal—we find that the appellant

was partially successful in his appeal but that a full award of attorney fees would

be excessive and unreasonable. See Driscoll, 116 M.S.P.R. 662, ¶ 29. We find

that a 15 percent reduction of the lodestar calculation is appropriate, and that such

a reduction sufficiently accounts for the severity of the mitigated penalty, the

existence of the appellant’s consequential disciplinary history, and the fact that

one of the agency’s charges was sustained on petition for review. Id. We

therefore find that a 15 percent global reduction of the lodestar calculation, or a

reduction of $7,951.50, is warranted. The addendum initial decision awarding the

appellant attorney fees is accordingly modified, and the appellant is awarded

$45,058.50 in attorney fees. 7

ORDER

¶12 We ORDER the agency to pay the attorney of record $45,058.50 in fees.

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

decision. See generally Title 5 of the United States Code, section 1204(a)(2)

(5 U.S.C. § 1204(a)(2)).

7

The decision to equitably adjust the lodestar calculation based on the appellant’s

partial success is not inconsistent with a finding that the appellant is substantially

innocent of the primary charges against him under the interest of justice standard. The

Federal Circuit explained in Sterner v. Department of the Army, 711 F.2d 1563, 1567

(Fed. Cir. 1983) that an employee’s eligibility for an attorney fees award as a prevailing

party is the threshold issue the Board should consider in a petition for attorney fees and

that his entitlement under the interest of justice standard in section 7701(g)(1) is a

separate, subsequent consideration. Id. (“Eligibility [for an attorney fees award as a

prevailing party] is broad, but the entitlement standard operates to limit it.”). We

similarly find that whether an employee was substantially innocent of the primary

charges against him is separate from the question of whether he was successful on all,

or only some, of the issues in the Board appeal for purposes of calculating the lodestar

under Hensley. We see no reason to conclude that a finding that an employee is

substantially innocent of the agency’s primary charges under the interest of justice

standard precludes the Board from adjusting the lodestar calculation downward to

account for an employee’s limited or partial success.

9

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 took 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 TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

The addendum initial decision, as supplemented by this Final Order,

constitutes the Board’s final decision in this matter. 5 C.F.R. § 1201.113. You

have the right to request review of this final decision by the United States Court

of Appeals for the Federal Circuit. You must submit your request to the court at

the following address:

United States Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, DC 20439

The court must receive your request for review no later than 60 calendar days

after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec. 27,

2012). If you choose to file, be very careful to file on time. The court has held

that normally it does not have the authority to waive this statutory deadline and

10

that filings that do not comply with the deadline must be dismissed. See Pinat v.

Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).

If you need further information about your right to appeal this decision to

court, you should refer to the Federal law that gives you this right. It is found in

Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.

Dec. 27, 2012). You may read this law as well as other sections of the United

States Code, at our website, http://www.mspb.gov/appeals/uscode/htm.

Additional information 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, and 11.

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

the United States 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 Merit Systems Protection Board neither endorses the services

provided by any attorney nor warrants that any attorney will accept representation

in a given case.

FOR THE BOARD: ______________________________

William D. Spencer

Clerk of the Board

Washington, D.C.