The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JOSHUA D. THORNBURY, DOCKET NUMBER
Appellant, DE-0752-14-0490-A-2
v.
DEPARTMENT OF VETERANS DATE: August 23, 2023
AFFAIRS,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Michael A. Shaw, Esquire, Cottonwood, Arizona, for the appellant.
Maxine N. Romero, Esquire, Phoenix, Arizona, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the addendum initial
decision, which awarded the appellant $34,530.50 in attorney fees and $825.27 in
costs. For the reasons discussed below, we GRANT the appellant’s petition for
review and AFFIRM the initial decision AS MODIFIED. Except as expressly
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 id entified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
MODIFIED by this Final Order to increase the attorney fee award to account for
mathematical errors in the appellant’s representative’s billing records and the
administrative judge’s analysis, we AFFIRM the initial decision.
BACKGROUND
¶2 In July 2014, the appellant filed an appeal of his June 2014 removal and
asserted due process and whistleblower retaliation affirmative defenses.
Thornbury v. Department of Veterans Affairs, MSPB Docket No. DE-0752-14-
0490-I-1, Initial Appeal File, Tab 1. In November 2016, the administrative judge
reversed the removal action after finding that the agency failed to provide the
appellant with minimal due process. 2 Thornbury v. Department of Veterans
Affairs, MSPB Docket No. DE-0752-14-0490-I-2, Initial Decision at 6-8, 13
(Nov. 17, 2016). The initial decision became the Board’s final decision when
neither party filed a petition for review. 3 5 C.F.R. § 1201.113.
¶3 On February 17, 2017, the appellant filed a motion for attorney fees and
costs in connection with the Board’s final order reversing his removal on due
process grounds. Thornbury v. Department of Veterans Affairs, MSPB Docket
No. DE-0752-14-0490-A-1, Attorney Fee File (AFF), Tab 1. In his motion, he
2
The agency rescinded the June 2014 removal in November 2014, which did not moot
the initial appeal, and removed the appellant again in January 2015, which the
administrative judge affirmed. Thornbury v. Department of Veterans Affairs, MSPB
Docket No. DE-0752-15-0173-I-1, Initial Decision (Nov. 17, 2016). The initial
decision became the Board’s final decision when neither party filed a petition for
review. 5 C.F.R. § 1201.113.
3
The appellant subsequently filed a petition for enforcement, which alleged that the
agency failed to comply with the Board’s November 17, 2016 final decision that
reversed the agency’s removal action. Thornbury v. Department of Veterans Affairs,
MSPB Docket No. DE-0752-14-0490-C-1, Compliance File (CF), Tab 1. The
administrative judge found that the agency failed to comply with the Board’s final order
and granted the petition for enforcement. Thornbury v. Department of Veterans Affairs,
MSPB Docket No. DE-0752-14-0490-C-2, Compliance Initial Decision (Feb. 13, 2018).
The compliance matter remains pending with the Board, which we will resolve in a
separate final order. Thornbury v. Department of Veterans Affairs, MSPB Docket No.
DE-0752-14-0490-X-1.
3
sought $49,558.49 in attorney fees and costs incurred by his attorney, Charles A.
Shaw of the Law Offices of Charles Anthony Shaw, PLLC. Id. at 29, 38-54. The
appellant supplemented his motion for attorney fees three times. AFF, Tab 4;
Thornbury v. Department of Veterans Affairs, MSPB Docket No. DE-0752-14-
0490-A-2, Attorney Fee File (A-2 AFF), Tab 4 at 13-21, Tab 10 at 33-34. The
administrative judge issued an addendum initial decision awarding the appellant
attorney fees and costs in the amount of $35,355.77. A-2 AFF, Tab 12,
Addendum Initial Decision (AID) at 1, 12. In particular, he awarded $23,075.00
in attorney fees for work before January 1, 2015 (92.3 hours at the $250/hour
rate), and $10,968.00 in attorney fees for work after January 1, 2015 (36.56 hours
at the $300/hour rate). 4 AID at 10. He further ordered the agency to pay costs in
the amount of $825.27. AID at 12.
¶4 The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 2. The agency has not filed any response to the petition for review.
DISCUSSION OF ARGUMENTS ON REVIEW
¶5 To receive an award of attorney fees under 5 U.S.C. § 7701(g)(1), an
appellant must show the following: (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). On review, the appellant does not
challenge any of the administrative judge’s findings regarding the fee award
factors or the administrative judge’s award of costs but contends that the
administrative judge’s attorney fees award for legal work at the $300/hour rate
4
According to the administrative judge, the appellant requested attorney fees for 92.3
hours at the $250/hour rate and 141.76 hours at the $300/hour rate. AID at 7. The
administrative judge also ordered the agency to pay 7.5 hours of paralegal work at the
$65/hour rate for a total of $487.50. AID at 10. The agency has already paid the
$35,335.77 fee award to the appellant’s representative, and this amount is no longer in
controversy. Petition for Review File, Tab 1 at 5.
4
included a mathematical error that deprived him of $5,730.00 in attorney fees.
PFR File, Tab 2 at 4-8. Accordingly, we limit our review of the addendum initial
decision to whether the administrative judge made any mathematical errors when
calculating the amount of claimed hours.
We modify the addendum initial decision to correct a mathematical error a nd find
that the appellant incurred an additional 3.9 hours at the $250/hour rate.
¶6 The administrative judge found that the appellant claimed 92.3 hours for
legal work before January 1, 2015, at the $250/hour rate. AID at 7; AFF, Tab 1
at 39-46. The administrative judge did not disallow any of these claimed hours.
AID at 10. Although the appellant does not challenge this portion of the fee
award on review, PFR File, Tab 2 at 4-5 & n.1, we find that the administrative
judge’s calculations included a mathematical error. The appellant’s
representative’s billing records for legal work before January 1, 2015, include
five itemized, task-based lists. AFF, Tab 1 at 39-46. The final task-based list,
for work between October 7, 2014, and December 16, 2014, lists a total amount
of 45.45 hours. Id. at 46. However, when we add up each individual task-based
line item in that list, the total amount is 49.35 hours, 3.9 more hours than the
appellant or the administrative judge calculated. 5 As previously noted, the
administrative judge did not disallow any claimed hours for this time period, and
we see no basis to disallow any of these claimed hours, so we modify the
addendum initial decision to award these 3.9 hours at the $250/hour rate for a
total of $975.00.
We modify the addendum initial decision to correct a mathematical error and find
that the appellant incurred an additional 20.4 hours at the $300/hour rate.
¶7 The administrative judge found that the appellant claimed 141.76 hours for
legal work after January 1, 2015, at the $300/hour rate. AID at 7; AFF, Tab 1
at 46-52, Tab 4 at 5; A-2 AFF, Tab 4 at 13-21, Tab 10 at 33-34. The appellant’s
5
The four other itemized, task-based lists contained no mathematical errors when
calculating the total hours.
5
representative’s billing records contain a similar mathematical error in one of the
itemized, task-based list’s total amount. The first itemized, task-based list for
legal work between January 21, 2015, and February 17, 2017, lists a total amount
of 85.61 hours. AFF, Tab 1 at 46-52. The second itemized, task-based list
describes 1 hour for work on February 21, 2017. AFF, Tab 4 at 5. The third
itemized, task-based list for legal work between February 21, 2017, and April 3,
2018, lists a total amount of 36.15 hours; however, when we add up each
individual task-based line item from that list, the total amount is 36.4 hours,
.25 hours more than the appellant or the administrative judge calculated.
A-2 AFF, Tab 4 at 13-21. The fourth itemized, task-based list for legal work
between June 22, 2018, and July 2, 2018, lists a total amount of 19 hours. Thus,
the total amount of hours claimed at the $300/hour rate is 142.01 hours
(85.61+1+36.4+19), not the 141.76 hours described by the administrative judge.
AID at 7.
¶8 The administrative judge disallowed 44.5 of the 54.5 hours claimed for
work between December 28, 2016, and February 17, 2017, for drafting the motion
for attorney fees. AID at 9. The administrative judge also disallowed 11 of the
19 hours claimed for work related to the appellant’s response to the
administrative judge’s Notice of Intent to Deny Certain Fees and Expenses.
AID at 9-10; A-2 AFF, Tabs 9-10. The administrative judge further disallowed
29.3 of the 36.15 hours of time related to the appellant’s petition for
enforcement. 6 AID at 10. However, because of the mathematical error identified
in the third itemized, task-based list, the administrative judge intended to
6
The appellant concurred with the administrative judge’s decision to disallow these
hours because his claim for attorney fees related to his petition for enforcement will be
adjudicated in a separate addendum proceeding once the Board issues a final decision
on that matter. AID at 10 & n.7; A-2 AFF, Tab 10 at 7-8. The appellant also withdrew
his request for 20.4 hours of legal work between February 19, 2017, and February 24,
2017, related to the petition for enforcement. AID at 10 (citing A -2 AFF, Tab 10 at 8).
The billing records for this time period are found in the appellant’s petition for
enforcement. CF, Tab 1 at 67-68.
6
disallow 29.55 of the 36.4 claimed hours for the petition for enforcement. Thus,
the administrative judge should have disallowed a total of 85.05 hours
(44.5+11+29.55) at the $300/hour rate.
¶9 Using the correct calculations, the appellant claimed 142.01 hours at the
$300/hour rate, and the administrative judge should have disallowed 85.05 of
those hours. Therefore, the appellant incurred 56.96 hours at the $300/hour rate.
The administrative judge, however, only awarded 36.56 hours at the $300/rate in
the addendum initial decision. 7 AID at 10. Thus, we modify the addendum initial
decision to award the appellant these additional 20.4 hours at the $300/hour rate
for a total of $6,120.00. 8
¶10 The appellant is owed an additional 3.9 hours for legal work at the
$250/hour rate for a total of $975.00 and an additional 20.4 hours for legal work
at the $300/hour rate for a total of $6,120.00. Accordingly, the addendum initial
decision is modified, and the appellant is awarded an additional $7,095.00 in
attorney fees to the Law Offices of Charles Anthony Shaw, PLLC.
ORDER
¶11 We ORDER the agency to pay attorney fees in the amount of $7,095.00 to
the Law Offices of Charles Anthony Shaw, PLLC. 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)).
¶12 We also ORDER the agency to tell the appellant and the attorney promptly
in writing when it believes it has fully carried out the Bo ard’s Order and of the
actions it has taken to carry out the Board’s Order. We ORDER the appellant and
7
It appears that the administrative judge incorrectly deducted the 20.4 hours of legal
work for the petition for enforcement that the appellant withdrew when calculating this
final amount. See supra n.6.
8
The appellant only requested an additional 19.1 hours for legal work at the $300/hour
rate for a total of $5,730.00. Nevertheless, as described above, based on the correct
mathematical calculations, the appellant is owed an additional $6,120 .00 for legal work
at the $300/hour rate.
7
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).
¶13 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 9
The initial decision, as supplemented by this Final Order, cons titutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. 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 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.
9
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 in dicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
8
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 w ith 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
9
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:
10
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 you wish to challenge the Board’s rulings on your whistleblower claims
only, excluding all other issues, 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. The court of appeals must receive your
petition for 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
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
11
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 th e Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
FOR THE BOARD: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.