The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JORGE M. GUZMAN, DOCKET NUMBER
Appellant, SF-0752-15-0170-A-2
v.
DEPARTMENT OF HOMELAND DATE: January 6, 2023
SECURITY,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
James P. Walsh, Esquire, Long Beach, California, for the appellant.
Carolyn D. Jones, Esquire, Williston, Vermont, for the agency.
John B. Barkley, Esquire, Phoenix, Arizona, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
FINAL ORDER
¶1 The agency has filed a petition for review and the appellant has filed a cross
petition for review of the addendum initial decision, which awarded $198,162 in
attorney fees and $6,584.02 in costs. Generally, we grant petitions such as these
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
only in the following circumstances: the initial decision contains erroneous
findings of material fact; the initial decision is based on an erroneous
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. 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, we conclude that neither party
has established any basis under section 1201.115 for granting the petition or cross
petition for review. Therefore, we DENY the petition for review and the cross
petition for review. We MODIFY the addendum initial decision to deduct 5 hours
from the fee award due to a mathematical error, and we reduce the amount of
costs awarded to $3,597.90. Except as expressly MODIFIED herein, we AFFIRM
the addendum initial decision.
BACKGROUND
¶2 The following facts, as recited in the addendum initial decision, are
generally undisputed. Guzman v. Department of Homeland Security, MSPB
Docket No. SF-0752-15-0170-A-2, Attorney Fees File (A-2 AFF), Tab 15,
Addendum Initial Decision (AID). Following investigations in 2004 to 2005 and
2010 to 2014 (related to the appellant’s educational qualifications and to the
discovery of a microphone in his old office), the agency removed the appellant
from his Assistant Special Agent in Charge position for lack of candor (involving
the microphone discovery). AID at 2. The appellant retired in lieu of removal.
Id. After the appellant filed a Board appeal and the administrative judge he ld a
6-day hearing, the administrative judge reversed the appellant’s removal and
granted corrective action based on a determination that the agency retaliated
3
against him for whistleblowing disclosures. AID at 1-2; Guzman v. Department
of Homeland Security, MSPB Docket No. SF-0752-15-0170-I-2, Initial Decision
(Sept. 29, 2017). The merits initial decision became the Board’s final decision
when neither party filed a petition for review. AID at 2.
¶3 The appellant filed a motion for attorney fees, which was dismissed without
prejudice and automatically refiled. AID at 1, 3-4; A-2 AFF, Tab 1; Guzman v.
Department of Homeland Security, MSPB Docket No. SF-0752-15-0170-A-1,
Attorney Fees File (AFF), Tabs 1, 20. The administrative judge issued an
addendum initial decision, which granted in part the appellant’s motion for
attorney fees and costs. AID at 1-2. The administrative judge made the
following findings: (1) the appellant was a prevailing party in the merits initial
decision and generally entitled to reasonable attorney fees and costs pursuant to
5 U.S.C. § 1221(g); 2 (2) the appellant proved his entitlement to 13.3 hours for
Michael Zweiback, 33.1 hours for Margarita Gevondyan, and 426 hours for James
P. Walsh; (3) $540/hour is an appropriate rate for Mr. Zweiback, $300/hour for
Ms. Gevondyan, and $425/hour for Mr. Walsh; (4) the appellant is entitled to a
fee award in the amount of $7,182 for Mr. Zweiback, $9,930 for Ms. Gevondyan,
and $181,050 for Mr. Walsh; and (5) he is entitled to $6,584.02 in costs. AID
at 3-20.
¶4 The agency has filed a petition for review, the appellant has filed a
response, and the agency has filed a reply. Guzman v. Department of Homeland
Security, MSPB Docket No. SF-0752-15-0170-A-2, Petition for Review (PFR)
2
The administrative judge concluded that, because no final decision had yet been issued
regarding the appellant’s petition for enforcement and addendum proceedings for
compensatory and consequential damages, his request for fees for those actions was
premature. AID at 2-3 & n.2. The appellant does not object to this ruling. Petition for
Review File, Tab 3 at 25. The administrative judge properly found such requests
premature, and we do not further consider them here. See, e.g., Miller v. Department of
the Army, 106 M.S.P.R. 547, ¶ 8 (2007); see also 5 C.F.R. § 1201.203(d) (“A motion
for attorney fees must be filed as soon as possible after a final decision of the Board but
no later than 60 days after the date on which a decision becomes final.”).
4
File, Tabs 1, 3, 5. The appellant has filed a cross petition for review, and the
agency has filed a response. PFR File, Tabs 3, 6.
DISCUSSION OF ARGUMENTS ON REVIEW
Legal Standard
¶5 The administrative judge evaluated the fee award pursuant to 5 U.S.C.
§ 1221(g). AID at 5. This paragraph states that corrective action “shall” include
“reasonable” attorney fees and “any other reasonable costs incurred” “[i]f an
employee . . . is the prevailing party before the Merit Systems Protection Board,
and the decision is based on a finding of a prohibited personnel practice .”
5 U.S.C. § 1221(g)(1)-(2). Section 1221(i) of Title 5 of the U.S. Code makes
section 1221(g)(2) applicable to the appellant’s removal appeal under 5 U.S.C.
§ 7513(d), and we discern no error with the administrative judge’s use of this
standard in this matter. 3 See 5 U.S.C. § 1221(i).
¶6 The computation of a reasonable attorney fees award begins with an
analysis of two objective variables: the lawyer’s customary billing rate and the
number of hours reasonably devoted to the case. Ruble v. Office of Personnel
Management, 96 M.S.P.R. 44, ¶ 7 (2004). The burden of establishing the
reasonableness of hours claimed in an attorney fee s application is on the moving
party. Id.
¶7 The administrative judge noted that, in Rumsey v. Department of Justice,
866 F.3d 1375, 1379 (Fed. Cir. 2017), the United States Court of Appeals for the
Federal Circuit held that “the mandatory language of [5 U.S.C. § 1221(g)] makes
clear that a petitioner who is a prevailing party is entitled to attorney’s fees and
costs, even if the supporting documentation is in some way deficient.” AID at 5.
3
The administrative judge found that, because an award of attorney fees was mandatory
based on the corrective action award, she did not need to address whether an award of
fees would be in the interest of justice under 5 U.S.C. § 7701(g). AID at 6 n.4. Neither
party specifically argues that the administrative judge used the incorrect legal standard
for evaluating the fee petition.
5
Further, she noted that the court advised that when the documentation is deficient,
the Board has “an obligation” to critically review the records and identify hours
that are “excessive, redundant, or otherwise unnecessary.” AID at 5-6 (discussing
Rumsey, 866 F.3d at 1381).
We affirm the administrative judge’s analysis and conclusions regarding hourly
rates.
¶8 Neither party challenges on review the administrative judge’s decision to
award a $540/hour rate to Mr. Zweiback or a $300/hour rate to Ms. Gevondyan.
AID at 13-14. We find that the administrative judge’s analysis is reasonable, and
we affirm her decision in this regard. We now turn to Mr. Walsh’s $425/hour rate
awarded by the administrative judge.
¶9 In the addendum initial decision, the administrative judge considered the
appellant’s contention that Mr. Walsh was entitled to a $500/hour rate and the
agency’s argument that he was only entitled to a $325/hour rate. AID at 17-18.
In addressing the appellant’s argument, the administrative judge noted that the
Federal Circuit has declined to endorse the “Laffey matrix” 4 to evaluate a
reasonable rate, but it held that it may consider the matrix as part of the
determination of a reasonable rate. AID at 18 (citing Biery v. United States,
818 F.3d 704, 713-14 (Fed. Cir. 2016)). The administrative judge noted, among
other things, that the Central District of California 5 uses different reports than the
Laffey matrix, and she discussed hourly rates for partners and associates in
California. Id. The administrative judge acknowledged that Mr. Walsh had
“extensive, complex trial experience, which was beneficially exhibited” in the
4
The Laffey Matrix is a schedule of hourly rates allowed by the U.S. District Court for
the District of Columbia in Laffey v. Northwest Airlines, Inc., 572 F. Supp. 354 (D.D.C.
1983), reversed in relevant part, 746 F.2d 4 (D.C. Cir. 1984), overruled by Save Our
Cumberland Mountains, Inc. v. Hodel, 857 F.2d 1516 (D.C. Cir. 1988). Caros v.
Department of Homeland Security, 122 M.S.P.R. 231, ¶ 9 n.5 (2015). It purports to
show the prevailing market rates for attorneys in the District of Columbia. Id.
5
The relevant geographic market for determining a reasonable hourly rate is the forum
of the litigation. Casali v. Department of the Treasury, 81 M.S.P.R. 347, ¶ 9 (1999).
6
merits appeal, this appeal was his first matter before the Board, and he did not
identify any prior experience handling Federal employment law matters. AID
at 17-18.
¶10 The agency argues on review that an hourly rate of $425 is excessive
because, although Mr. Walsh had extensive criminal and civil experience, he had
no prior Board or employment law experience. PFR File, Tab 1 at 19 -21. The
agency cites to two initial decisions to support its requested hourly rate, which
are not precedential. Id.; see Rockwell v. Department of Commerce, 39 M.S.P.R.
217, 222 (1988); 5 C.F.R. § 1201.113. Conversely, the appellant contends that
the administrative judge should have awarded him an hourly rate of $500, relying
on, among other things, his hourly rate before he retired in 2005 ($450 -500/hour),
a declaration from another attorney who has extensive experience in Federal
employment law ($560/hour), and the rate under the Laffey matrix for someone
with 31 years of experience ($602-613/hour). PFR File, Tab 3 at 20-22.
¶11 We have considered these arguments. The administrative judge’s analysis
was reasonable and thoughtful, and the parties have not persuaded us that her
analysis or conclusion was in error. Therefore, we affirm her decision to award
Mr. Walsh a rate of $425/hour. 6
6
For the first time on review, the agency asks that any hours charged by Mr. Walsh for
clerical duties should be charged at a rate of no more than $100/hour. PFR File, Tab 1
at 20-21. The Board generally will not consider an argument raised for the first time in
a petition for review absent a showing that it is based on new and material evidence not
previously available despite the party’s due diligence. Clay v. Department of the Army,
123 M.S.P.R. 245, ¶ 6 (2016); 5 C.F.R. § 1201.115(d). The agency has not made such a
showing, and we do not address this argument on review.
7
With the exception of correcting a mathematical error, we a ffirm the
administrative judge’s evaluation of the hours of work performed by
Mr. Zweiback, Ms. Gevondyan, and Mr. Walsh. 7
¶12 The addendum initial decision contains the administrative judge’s lengthy
and detailed analysis of the hours claimed for work performed by Mr. Zweiback,
Ms. Gevondyan, and Mr. Walsh on the appellant’s behalf. AID at 7 -17. There
was a considerable amount of attorney work performed before the notice of
proposed removal (involving the microphone discovery) ; thus, the administrative
judge explained that fees could be awarded for time spent on a separate and
optional, but factually related, proceeding if (1) the claimed portion of work done
in that proceeding was reasonable under Kling v. Department of Justice,
2 M.S.P.R. 464 (1980), 8 and (2) the work, or some discrete portion of it, done in
the other proceeding, significantly contributed to the success of the su bsequent
Board proceeding and eliminated the need for work that otherwise would have
been required in connection with that subsequent proceeding. AID at 6 -7
(discussing Richards v. Department of Justice, 67 M.S.P.R. 46, 50 (1995)).
¶13 The administrative judge concluded that some of the time Mr. Zweiback
billed at Nixon Peabody, LLP, related to work involving the agency investigation
7
In Wilson v. Department of Health & Human Services , 834 F.2d 1011, 1012 (Fed. Cir.
1987), the Federal Circuit held that, if an administrative judge has concerns about
deficiencies in a motion for attorney fees, she should afford the appellant an
opportunity to address the matter before rejecting the claims. Here, the administrative
judge disallowed certain claimed hours without first communicating her doubts to the
appellant and providing him an opportunity to answer. However, an adjudicatory error
that is not prejudicial to the appellant’s substantive rights provi des no basis for reversal
of the addendum initial decision. Panter v. Department of the Air Force, 22 M.S.P.R.
281, 282 (1984). The agency noted objections to the fee petition and supplemental
filings, e.g., AFF, Tab 15; A-2 AFF, Tab 10, and the appellant discusses these claims on
review, PFR File, Tab 3. Accordingly, we are able to decide the reasonableness of the
disputed fees without remanding the matter to the administrative judge. See Driscoll v.
U.S. Postal Service, 116 M.S.P.R. 662, ¶ 12 (2011); Diehl v. U.S. Postal Service,
88 M.S.P.R. 104, ¶ 9 (2001).
8
Kling discussed the lawyer’s customary hourly billing rate and the number of hours
devoted to the case. Kling, 2 M.S.P.R. at 472.
8
into the appellant’s educational qualifications and the appellant’s response to that
investigation was recoverable because it was “directly relevant to persuading the
agency to resolve the [earlier] proposed removal related to alleged lack of candor
about the appellant’s education background.” AID at 7-8. However, Mr.
Zweiback’s Seyfarth Shaw, LLP, billing records from 2010 largely related to
criminal matters and interactions with the U.S. Attorney’s Office and were not
recoverable. AID at 8. Similarly, she found that Mr. Zweiback’s Arent Fox
billing records related to litigation at the Equal Employment Opportunity
Commission and the Office of Special Counsel (OSC) were not recoverable, in
part because the appellant did not timely appeal from OSC’s close-out letter. 9 Id.
The administrative judge also discussed in detail numerous other Nixon Peabody
billing records for Mr. Zweiback and Ms. Gevondyan and approved, rejected, or
reduced the claimed hours. 10 AID at 9-13.
¶14 Regarding Mr. Walsh, the administrative judge rejected as too disconnected
from the issues in this appeal 40 hours of preliminary research in July 2012,
50 hours drafting an OSC complaint and corresponding with OSC, 35 hours
working to obtain information through a Freedom of Information Act (FOIA)
request, 40 hours corresponding with high-ranking agency officials, and
additional time spent researching and drafting a complaint under the Federal Tort
Claims Act (FTCA). 11 AID at 14-15. However, she awarded 100 hours for
9
The appellant concedes that Mr. Zweiback’s work at Arent Fox in the equal
employment opportunity matter “is not sufficiently related to the action under
consideration by the Board to warrant an award of attorney fees.” PFR File, Tab 3 at 9.
We affirm the administrative judge’s decision not to award fees for this work.
10
The administrative judge explained that, due to Mr. Zweiback’s use of block billing,
it was impossible to determine how much of certain entries was recoverable (because it
related to the educational qualifications issue) and how much was not recoverable
(because it was related to the criminal matter). AID at 9 & n.6.
11
The appellant does not appear to challenge the administrative judge’s decision to
disallow 50 hours for time spent “dealing with the OSC” or 20 hours claimed in
connection with the filing of a complaint under the FTCA. PFR File, Tab 3 at 15, 17.
We affirm her decisions in this regard.
9
reviewing the report of investigation related to the lack of candor charge
(involving the appellant’s educational qualifications) and responding to that
earlier notice of proposed removal, 150 hours for preparing the response to the
notice of proposed removal regarding the lack of candor charge (involving the
microphone discovery), 10 hours spent in the mediation process, 12 and 19 hours
for preparing the fee petition. AID at 15-17. The administrative judge
acknowledged that Mr. Walsh estimated spending 38 hours drafting pleadings and
53 hours reviewing pleadings and discovery responses for a total of 91 hours
prior to mediation; however, because she already approved a significant amount
of time for Mr. Walsh to review the agency file materials during the pr edecisional
period and much of the discovery related to the equal employment opportunity
process, the administrative judge only approved 60 hours for this work. AID
at 16. Similarly, after mediation, Mr. Walsh estimated spending at least 92 hours
drafting motions, conducting the hearing, and preparing the written closing
argument, but because the motions for a protective order were denied, the
administrative judge only approved 87 hours for this work. AID at 17. In total,
the administrative judge awarded 13.3 hours for Mr. Zweiback, 33.1 hours for
Ms. Gevondyan, and 426 hours for Mr. Walsh. AID at 12-13, 17.
¶15 Both parties challenge the administrative judge’s assessment of claimed
hours. PFR File, Tab 1 at 10-19, Tab 3 at 9-18. It is well settled that the
administrative judge who adjudicated the case on the merits is in the best position
to determine whether the number of hours expended is reasonable and absent a
specific showing that the administrative judge’s evaluation was incorrect, the
Board will not second-guess it. Wightman v. Department of Veterans Affairs,
111 M.S.P.R. 109, ¶ 11 (2009); Ruble, 96 M.S.P.R. 44, ¶ 13; Holliman v. U.S.
Postal Service, 81 M.S.P.R. 637, ¶ 4 (1999); Beall v. Department of the Interior,
68 M.S.P.R. 231, 234 (1995). The arguments in the petition for review and cross
12
Neither party challenges the administrative judge’s award of hours related to
mediation, and we affirm this decision.
10
petition for review largely constitute mere disagreement with the administrative
judge’s detailed determinations. Nevertheless, we will address some of the
parties’ arguments herein.
¶16 For example, the agency argues that the administrative judge erred in
awarding attorney fees to Mr. Zweiback, Ms. Gevondyan, and Mr. Walsh for
work performed in unrelated matters, particularly the appellant’s educational
qualifications matter. PFR File, Tab 1 at 10-13. The agency asserts that the
educational qualifications case has never been before the Board and the appellant
did not show that work done by his attorneys in that matter significantly
contributed to his success in his merits appeal. Id. at 10. The agency also argues
that the administrative judge’s reliance on Richards was misplaced because
Richards involved an award of fees for work prior to the issuance of the proposal
at issue, and not for work on a different proposal that never made its way to the
Board and was unrelated to the Board appeal. Id. at 11. Alternatively, the agency
contends that any fees awarded should be “substantially reduced because the work
performed [was] not detailed and its context not provided.” Id. at 12.
¶17 We discern no error with the administrative judge’s analysis or reliance on
Richards. Although Richards may have involved fees for work performed related
to the removal at issue, the holding in Richards does not preclude the
administrative judge from taking a holistic view of the appellant’s whistleblower
retaliation claim in her decision to award fees. Indeed, the administrative judge
concluded in the merits initial decision that the educational qualifications case
was tied to the appellant’s allegations of reprisal for whistleblowing disclosures.
See Guzman v. Department of Homeland Security, MSPB Docket No. SF-0752-
15-0170-I-2, Initial Decision at 34 (Sept. 29, 2017) (finding that the appellant
proved by preponderant evidence that “his 2010 disclosure prompted the agency
to initiate the [educational] credentials investigation . . . which led to the agency
re-opening the investigation into the 2004 microphone discovery, the culmination
of which was his removal”). Because of the administrative judge’s explicit
11
findings linking the whistleblower reprisal claim to the educational qualifications
case, we discern no error in the administrative judge’s decision to award fees in
this regard.
¶18 The agency argues that the administrative judge erred in awarding
Mr. Walsh 150 hours for the March 7, 2014 notice of proposed removal
(involving the microphone discovery) because he “lacks any records of the time
worked” and he only “offers generalities for much of the work performed.” PFR
File, Tab 1 at 13-15. The agency does not dispute that some fees should be
awarded; it argues instead, as it did before the administrative judge, that only
49 hours should be awarded for this work. Id. at 13; A-2 AFF, Tab 10 at 15-17.
¶19 Mr. Walsh admitted before the administrative judge that it was his intention
to work pro bono for the appellant; thus, he did not maintain time-keeping records
until a July 18, 2018 status conference in which he was directed to file an
accounting of his work. A-2 AFF, Tab 3 at 5. Therefore, he had to reconstruct
time-keeping records from his 6 years of representation through notes,
correspondence, emails, and pleadings. Id. As the agency noted, however, the
absence of contemporaneous records is normally an insufficient basis, by itself, to
completely deny an attorney fee request, but it may prompt the Board to carefully
scrutinize the reconstructed records and reduce the hours claimed if there is
uncertainty as to their accuracy. A-2 AFF, Tab 10 at 11 (citing Wilson v.
Department of Health & Human Services, 22 M.S.P.R. 435, 437 (1984)). The
addendum initial decision reflects the administrative judge’s proper consideration
of Mr. Walsh’s reconstructed records and explanation of claimed hours both
regarding the notice of proposed removal (involving the microphone discovery )
and other filings.
¶20 The record supports the administrative judge’s decision to approve
150 hours for Mr. Walsh’s work on the notice of proposed removal (involving the
microphone discovery). Importantly, Mr. Walsh provided a narrative explanation
made under penalty of perjury for the work that he performed during this time
12
frame. A-2 AFF, Tab 5 at 3, 32-34. Notably, the March 7, 2014 notice of
proposed removal included a lengthy, 450-page Report of Investigation, the
appellant submitted written replies on June 26 and July 22, 2014, and the
appellant made an oral reply on July 31, 2014; after the agency notified the
appellant that the deciding official would rely on additional materials, the
appellant submitted additional written replies on September 23 and 29, 2014, and
he provided an October 21, 2014 oral reply. Guzman v. Department of Homeland
Security, MSPB Docket No. SF-0752-15-0170-I-1, Initial Appeal File, Tab 6 at
32-101, 103-12, 114-15, 120-22, 124-239, Tab 7 at 4-29, 51-55, 57-203, Tab 8 at
4-99, Tab 9 at 4-222, Tab 10 at 268-72, 275-77, Tab 11 at 4-321, Tab 12 at 4-150.
Given the volume of documentation relating to the lack of candor charge
(involving the microphone discovery), as well as the amount of substantive
correspondence between the parties before a decision was made on the proposed
removal, we do not find such hours excessive, and we discern no error with the
administrative judge’s award of 150 hours of work.
¶21 The agency also argues that the 91 hours sought by Mr. Walsh related to
work performed after the appeal was filed and prior to the referral to mediation is
excessive. PFR File, Tab 1 at 15-18. These arguments were largely raised before
the administrative judge. Compare id. at 15-17, with A-2 AFF, Tab 10 at 17-19.
However, the agency correctly notes on review that there is a mathematical error.
Although Mr. Walsh claimed 53 hours for reviewing pleadings and discovery
responses, the total amount was actually 48 hours. PFR File, Tab 1 at 15-16 &
n.2; see A-2 AFF, Tab 5 at 37 (explaining that he spent 8 hours, 15 hours, and
25 hours, respectively, reviewing agency documents). Therefore, instead of
91 claimed hours for Mr. Walsh’s work in the appeal prior to mediation, the
correct amount is 86 hours of work. Because we discern no error with the
administrative judge’s decision to reduce the claimed hours by 31 hours, it is
appropriate to subtract that amount from the new starting point of 86 hours for
this work. Accordingly, we modify the addendum initial decision to award
13
Mr. Walsh 55 hours for his work reviewing agency pleadings and discovery
responses in MSPB Docket No. SF-0752-15-0170-I-1.
¶22 Regarding the refiled appeal, the agency asserts that Mr. Walsh failed to
adequately support his claim of 92 hours to include drafting motions for a
protective order (5 hours) and a prehearing submission (7 hours), conducting the
hearing (60 hours), and preparing the written closing argument (20 hours). PFR
File, Tab 1 at 17-18. Instead, the agency requests that the appellant recover only
80 hours for this work. Id. at 18; A-2 AFF, Tab 10 at 20. The agency’s argument
is not persuasive, and we affirm the administrative judge’s decision to award
87 hours for Mr. Walsh’s work in the refiled appeal.
¶23 The agency contends that the administrative judge erred by granting the full
amount of 19 hours requested for Mr. Walsh’s work on the fee petition as both
premature and lacking support. PFR File, Tab 1 at 1 8-19. In the addendum
initial decision, the administrative judge addressed this argument, noting that the
Board has approved fees for time spent preparing a fee petition without requiring
a separate addendum petition to evaluate fees. AID at 17 (citing Guy v.
Department of the Army, 118 M.S.P.R. 45, ¶ 23 (2012), and Driscoll v. U.S.
Postal Service, 116 M.S.P.R. 662, ¶ 30 (2011)). She also noted that the agency
did not challenge the request for 19 hours. Id. We discern no error with the
administrative judge’s assessment that 19 hours was a reasonable amount of time
for the work on the appellant’s fee petition, particularly given his success at the
merits stage and the fact that multiple attorneys had represented him at various
stages in his litigation against the agency. See, e.g., Driscoll, 116 M.S.P.R. 662,
¶ 30 (awarding 15.45 hours for the fee petition).
¶24 The appellant also challenges some of the administrative judge’s findings in
the addendum initial decision. For example, he argues that he was entitled to all
fees claimed by Mr. Zweiback for his work at Seyfarth Shaw in connection with
the criminal matter because it was “not a bona fide criminal investigation ,” but
instead, agency investigators “[made] use of [F]ederal criminal tools and
14
processes to accomplish their goal” of removing the appellant. PFR File, Tab 3
at 9-11. He argues that, although labeled as “criminal” work, Mr. Zweiback’s
contacts with the U.S. Attorney’s Office were an “early part of the effort to
frustrate” the agency’s retaliation against the appellant for his whistleblowing
disclosures. Id. at 11. The appellant has not persuaded us that the administrative
judge’s assessment of this work was in error.
¶25 The appellant also contends that the administrative judge erred by
significantly reducing hours claimed by Mr. Zweiback and Ms. Gevondyan at
Nixon Peabody. Id. at 11-14. Although he criticizes the administrative judge’s
decision to “disallow[] a very substantial amount of fees,” he concedes that he
would essentially be comparing his “estimate of the fairness of a particular
assignment of allowable hours” with the administrative judge’s estimate. Id.
at 11-13. We discern no specific error in the administrative judge’s determination
in this regard.
¶26 Finally, the appellant asserts that the administrative judge erred by
disallowing some of Mr. Walsh’s claimed hours, such as 40 hours “familiariz[ing]
himself with the background and details of the [a]gency investigation,” 35 hours
to obtain information from the agency through a FOIA request, 13 and 40 hours
corresponding with agency managers. Id. at 14-17. The appellant’s submissions
do not persuade us that it is appropriate to second -guess the administrative
judge’s decisions in this regard.
¶27 We have considered the parties’ remaining arguments, but none warrant a
different outcome. For these reasons, we affirm the administrative judge’s
decision to award 13.3 hours for Mr. Zweiback ($7,182), and 33.1 hours for Ms.
Gevondyan ($9,930). We modify the addendum initial decision to award
421 hours for Mr. Walsh ($178,925). Thus, the total fees awarded are $196,037.
13
He proposes instead that 12 hours should be awarded. PFR File, Tab 3 at 16.
15
We modify the addendum initial decision to reduce the award of costs to
$3,597.90.
¶28 The administrative judge noted that 5 U.S.C. § 1221(g) permits recovery of
costs and the Board has interpreted this provision to permit a broader recovery
than may apply in appeals under 5 U.S.C. § 7701. AID at 19 (citing Smit v.
Department of the Treasury, 61 M.S.P.R. 612 (1994), and Department of Health
& Human Services v. Balaban, 33 M.S.P.R. 309 (1987)). The administrative
judge awarded the appellant costs for 50 round trips of 80 miles each for
Mr. Walsh to drive to his house, based on the Internal Revenue Service mileage
rate ($0.535 per mile), for a total of $2,140. Id. Noting that the agency “did not
file anything” after Mr. Walsh submitted receipts for mailing and related
expenses, the administrative judge also awarded the appellant $4,444.02 for such
expenses. Id. However, she did not award costs for Mr. Walsh’s annual state bar
dues and continuing legal education requirements because they were “routine
item[s] of attorney overhead.” 14 AID at 19-20. The total award of costs awarded
by the administrative judge was $6,584.02. AID at 20.
¶29 On review, the agency argues that the administrative judge erred in
awarding costs when the appellant failed to provide an itemized accounting of
services and expenses claimed as costs, untimely filed his ev idence of costs, and
was awarded costs for nonreimbursable items. PFR File, Tab 1 at 21-26. For the
following reasons, we find that the appellant is entitled to an award of costs, but
the amount of costs awarded by the administrative judge should be reduced.
14
The appellant challenges the administrative judge’s decision not to award costs for
activating Mr. Walsh’s bar membership and accompanying continuing legal education
because he was “fully retired,” and it was the “shared understanding” between him and
Mr. Walsh that he would be compensated for these expenses. PFR File, Tab 3 at 19.
However, the appellant offers no legal authority to support this proposition that routine
items of attorney overhead, such as bar dues, are recoverable. Accordingly, we affirm
the administrative judge’s conclusion in this regard.
16
Travel Expenses
¶30 As support for his request for reimbursement for travel, Mr. Walsh stated
under penalty of perjury that, “during the course of [6+] years of representing”
the appellant, from approximately July 2012 to 2018, “[he] made a great many
trips to [the appellant’s] house in connection with document filing, because [the
appellant] is much more computer-literate than [he was], and [he] relied upon his
expertise to help [him] format and submit documents to the Board.” A-2 AFF,
Tab 5 at 43. Mr. Walsh also stated that it was “much easier to have [the
appellant] answer specific questions about documentary assertions if [they were]
together as [he worked].” Id. Mr. Walsh stated that the distance between his
home and the appellant’s home was 40 miles and the roundtrip was 80 miles. Id.
He estimated that he made “not fewer than a total of 50 trips.” Id. Mr. Walsh
asked for reimbursement of “that amount of mileage . . . at the prevailing per
diem mileage rate paid for government travel,” which he calculated to be
“$2140.00 at .53.5 a mile based on the Internal Revenue Service standard mileage
rate for reimbursement.” Id.
¶31 The agency asserts that, because Mr. Walsh failed to provide the dates of
these trips and the specific reason for each trip, the administrative judge erred in
awarding him costs for these expenses. PFR File, Tab 1 at 22. The
administrative judge acknowledged that the dates offered by Mr. Walsh were not
clear, but she noted that the court in Rumsey held that, although specific date
records were the “preferred practice,” an estimate was also acceptable. AID at 19
(citing Rumsey, 866 F.3d at 1379). We discern no error with the administrative
judge’s analysis in this regard.
¶32 However, even if we credit Mr. Walsh’s statements made under penalty of
perjury regarding the distance between his house and the appellant’s house as
well as his estimate that he made “not fewer than a total of 50 trips” during this
time frame, he is not entitled to recover all such claimed expenses. The merits
17
appeal concluded in 2017, the appellant filed a December 2017 p etition for
enforcement, and the damages appeals commenced in January 2018, all of which
were granted (at least in part) and are currently pending on review. Mr. Walsh’s
statements did not indicate whether the purpose of any of the 50 claimed trips was
to discuss the petition for enforcement or the addendum damages proceedings,
which for the above reasons are not included in a fee award at this time.
¶33 A closer review of the appellant’s submissions provides some clarity on this
point. In a supplemental declaration made under penalty of perjury, Mr. Walsh
indicated that he compiled an accounting of “attorney time spent on this appeal”
since July 18, 2018, which included desk calendar entries. A-2 AFF, Tab 11
at 88. A review of Mr. Walsh’s desk calendar, which covers July 16 through
December 16, 2018, reflects that on various dates, including July 31, August 21,
September 6, October 22, October 24, October 28, and December 3, his trips to
the appellant’s house involved meetings to discuss issues relating to the
compliance matter or the addendum damages proceedings. Id. at 91-109.
Accordingly, because there has been no final decision in these matters, these trips
are not reimbursable at this time, and we subtract these seven trips from the total
number of trips claimed by Mr. Walsh.
¶34 Also, given Mr. Walsh’s concession that he “made a great many trips to [the
appellant’s house] in connection with document filing” and “relied upon [the
appellant’s] expertise to help [him] format and submit documents to the Board,”
A-2 AFF, Tab 5 at 43, Mr. Walsh likely visited the appellant on various dates in
late 2017 and early 2018 to discuss and file certain pleadings in the enforcement
action and addendum damages appeals. For example, Mr. Walsh likely visited
the appellant on or before December 13, 2017, to discuss and file the petition for
enforcement, on or before January 2, 2018, to discuss and file the motion for
damages, on or before January 18, 2018, to discuss and file the first supplement
to the motion for damages, on or before January 30, 2018, to discuss and file the
reply to the agency’s response to the petition for enforcement, and on or before
18
April 6, 2018, to discuss and file the second supplement to the motion for
damages. Therefore, we subtract an additional five trips from the total number of
trips claimed by Mr. Walsh.
¶35 Accordingly, if we multiply 38 trips to the appellant’s house by 80 miles
round trip by the claimed rate of $0.535 per mile, 15 the total is $1,626.40 in travel
expenses awarded. We modify the addendum initial decision in this regard.
Receipts
¶36 As support for his request for reimbursement for costs, Mr. Walsh stated
under penalty of perjury that he gathered receipts during his representation of the
appellant. A-2 AFF, Tab 11 at 16. He explained that it was his “regular practice
to obtain paper receipts for items purchased to advance his case, including office
supplies [and] costs of copying documents” that were sent by the Board or
opposing counsel, “which [he] was unable to download at home.” Id. He stated
that he “placed those receipts into a file folder which was dedicated to those
receipts.” Id. Copies of these receipts “in an undifferentiated accumulation” are
in the record. Id. at 17-86. Mr. Walsh acknowledged that “[p]lacing those
receipts into date order, or attempting to now recall what purpose was served by
each expenditure is, as a practical matter, impossible.” Id. at 17. He indicated
that the receipts totaled $4,444.02. Id.
¶37 The agency objects to an award of any costs because the appellant failed to
describe each expense in detail and did not show how each claimed expense
related to the current litigation. 16 PFR File, Tab 1 at 26. The agency also objects
15
The agency does not argue on review that the claimed mileage rate of $0.535 is
unreasonable. We discern no error with the administrative judge’s reliance on the
appellant’s claimed mileage rate for the allowed trips. Roman v. Department of the
Army, 72 M.S.P.R. 409, 419 n.2 (1996), aff’d, 129 F.3d 134 (Fed. Cir. 1997).
16
In responding to the administrative judge’s statement in the addendum initial decision
that the agency “did not file anything” after Mr. Walsh submitted the receipts for
mailing and related expenses, AID at 19, the agency argues on rev iew that it could not
dispute the “late-filed receipts” because the record on attorney fees was closed, PFR
19
to all pre-2014 receipts (because the appellant failed to show how these expenses
related to his successful litigation) and to all illegible receipts. Id. The agency
asserts that certain expenses are not recoverable, including copying expenses,
printer ink, paper, and all office supplies. Id. Finally, the agency objects to the
administrative judge’s decision to award costs for a new MacBook laptop and
diagnostics, and for packages sent to the U.S. district court, the agency’s FOIA
Deputy Director, D.S., and an unknown recipient. Id.
¶38 We agree with the agency that some of these costs are not recoverable .
Consistent with the administrative judge’s decision not to award Mr. Walsh costs
for his annual state bar dues and continuing legal education requirements because
such expenses are a “routine item of attorney overhead,” we also consider the
following expenses as overhead and therefore nonreimbursable: ear buds ($8.71),
Thomson Reuters – Federal Judicial Procedure and Rules, full set ($139.52), 2015
At-A-Glance calendar ($23.99), Really Useful 64L storage box ($32.69),
MacBook plus extras ($2,114.37), and diagnostics ($79). A-2 AFF, Tab 11 at 33,
36, 45, 54, 73. The total amount of this additional nonreimbursable overhead is
$2,398.28, which we deduct from the award of costs.
¶39 Additionally, there are other expenses that are not reimbursable because the
appellant has not shown how the particular receipts are related to the merits
appeal, including a March 15, 2013 package to U.S. district court ($3.31), an
File, Tab 1 at 22-23. Despite the administrative judge’s order that the appellant submit
an accounting for fees by October 12, 2018, and the agency should respond by
October 19, 2018, A-2 AFF, Tab 2 at 1-2, the parties filed several submissions after
these deadlines, e.g., A-2 AFF, Tabs 4-5, 9-11. In the appellant’s last submission, filed
on December 14, 2018, he included, for the first time, nearly 70 pages of receipts. A -2
AFF, Tab 11. The administrative judge correctly noted that the agency did not file any
pleading after the appellant submitted these receipts, and the agency did not seek leave
to file a response to the appellant’s December 14 submission. However, given the
lateness of the appellant’s submission of receipts and because the agency’s petition for
review includes numerous arguments against the admission of and reliance on these
receipts, PFR File, Tab 1 at 22-26, we will consider these arguments in the first
instance.
20
April 29, 2014 mailing to the agency’s FOIA Deputy Director ($12.66), 17 and a
May 2, 2015 filing with the U.S. district court ($12.50). A-2 AFF, Tab 11 at 35,
44, 57. There are also two expenses for “Fruit Slices” candy ($0.99 each for a
total of $1.98). 18 Id. at 52, 58. Additionally, the receipt on page 77 for $0.86
appears to be a duplicate of the receipt on page 75; the duplicate receipt is not
recoverable. Finally, Mr. Walsh submitted a credit card statement from June 25
through July 14, 2013. Id. at 68. However, the transactions on June 24, 2013, in
the amounts of $9.18 and $33.75, were already reflected on the receipts on pages
33-34 and are not recoverable. Accordingly, we deduct an additional $74.24 from
the award of costs.
¶40 We are not persuaded by the agency’s remaining arguments. If we subtract
the total amount of additional overhead and nonreimbursable expenses from the
administrative judge’s award of $4,444.02, the appellant is entitled to an award of
$1,971.50 for the receipts. If we add $1,971.50 in receipts to the award of
$1,626.40 for travel expenses, the appellant is entitled to a total of $3, 597.90 in
costs. We modify the addendum initial decision in this regard.
Conclusion
¶41 For the reasons described herein, we affirm the administrative judge’s
decision to award the appellant $7,182 in fees for Mr. Zweiback and $9,930 in
fees for Ms. Gevondyan for a total award of $17,112. AID at 12-14. We modify
the addendum initial decision to award the appellant $178,925 in fees for Mr.
Walsh (421 hours at a rate of $425/hour) and $3,597.90 in costs.
17
As noted above, the administrative judge determined that Mr. Walsh’s work relating
to the FOIA request was not recoverable, and we affirm that decision herein. AID
at 15.
18
Mr. Walsh concedes that it is not the agency’s responsibility to pay for candy , and he
agrees to remove this expense. PFR File, Tab 3 at 26.
21
ORDER
¶42 We ORDER the agency to pay the appellant attorney fees in the amount of
$7,182 for Mr. Zweiback’s work, $9,930 for Ms. Gevondyan’s work, and
$178,925 for Mr. Walsh’s work, for a total of $196,037 in fees, and $3,597.90 in
costs. 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)).
¶43 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).
¶44 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 U.S. Court of
Appeals for the Federal Circuit. You must submit your request to the court at the
following address:
22
U.S. 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 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 U.S. 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 U.S. 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,” whic h 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 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 Merit Systems Protection Board neither endorses the services
23
provided by any attorney nor warrants that any attorney will accept representation
in a given case.
FOR THE BOARD: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.