Opinion

Mary Abbott v. United States Postal Service

Court: Merit Systems Protection Board
Filed: Jan 12, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 14.8%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

MARY A. ABBOTT, DOCKET NUMBER

Appellant, DC-0752-12-0366-A-3

UNITED STATES POSTAL SERVICE, DATE: January 12, 2024

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Allison B. Eddy , Esquire, Virginia Beach, Virginia, for the appellant.

Jasmin A. Dabney , Landover, Maryland, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

FINAL ORDER

The appellant has filed an attorney fee petition for review of the addendum

initial decision, which awarded her attorney fees of $4,955.00 and costs of

$12.11, for a total of $4,967.11. For the reasons discussed below, we GRANT the

appellant’s petition for review and AFFIRM the addendum initial decision, except

as expressly MODIFIED by this Final Order to award the appellant $6,825.00 in

attorney fees and $7.11 in costs, for a total award of $6,832.11.

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

In December 2016, the Board reversed the appellant’s suspension and

awarded her back pay. Abbott v. U.S. Postal Service, MSPB Docket

No. DC-0752-12-0366-B-1, Final Order at ¶¶ 1, 22-23 (Dec. 20, 2016). The

appellant filed a motion for attorney fees in connection with the underlying

suspension appeal, which the Board granted. Abbott v. U.S. Postal Service,

MSPB Docket No. DC-0752-12-0366-A-1, Attorney Fee Decision (A-1 AFD)

at 1, 10 (Feb. 24, 2017). The appellant filed a timely petition to enforce the

Board’s December 2016 order. Abbott v. U.S. Postal Service, MSPB Docket

No. DC-0752-12-0366-C-1, Compliance File (C-1 CF), Tab 1 at 4-5. In a

July 27, 2017 compliance initial decision, the administrative judge found the

agency in noncompliance. 2 C-1 CF, Compliance Initial Decision (C-1 CID) at 5

(June 27, 2017). On September 13, 2017, the appellant filed a second motion for

attorney fees in connection with the compliance matter and the fee petition.

Abbott v. U.S. Postal Service, MSPB Docket No. DC-0752-12-0366-A-2,

Attorney Fee File (A-2 AFF), Tab 1 at 4-11. In February 2018, the parties

reached a settlement agreement, wherein the appellant agreed to withdraw her

second motion for attorney fees in exchange for $15,173.60 in attorney fees, and

the administrative judge dismissed the appeal as settled. A-2 AAF, Tab 11 at 4,

Attorney Fee Decision (A-2 AFD) at 1-2 (Feb. 8, 2018). However, on

October 17, 2017, while the appellant’s second attorney fee petition was pending,

the appellant filed a second petition for enforcement, arguing that the agency

failed to comply with the Board’s July 27, 2017 order. Abbott v. U.S. Postal

Service, MSPB Docket No. DC-0752-12-0366-C-2, Compliance File (C-2 CF),

Tab 1 at 4-6; A-2 AFD at 1. In an April 27, 2018, compliance initial decision, the

administrative judge found the agency in noncompliance. C-2 CF, Compliance

Initial Decision (C-2 CID) at 7 (Apr. 27, 2018). After the compliance initial

On August 16, 2017, the administrative judge issued an erratum order clarifying her

order to the agency. A-2 AFF, Addendum Attorney Fee Decision (Aug. 16, 2017).

decision became final, the appellant filed a third motion for attorney fees on

June 19, 2018, in connection with the work performed in the second compliance

matter. Abbott v. U.S. Postal Service, MSPB Docket No. DC-0752-12-0366-A-3,

Attorney Fee File (A-3 AFF), Tab 1 at 4-11. This third fee motion is the subject

of the instant appeal.

The appellant requested $7,200 in attorney fees and $7.11 in costs for work

performed between August 21, 2017, and July 24, 2018. A-3 AFF, Tab 1

at 12-17, Tab 5 at 9-11. The agency disputed the appellant’s claimed fees, and

the appellant replied. A-3 AFF, Tab 4 at 5-6, Tab 5 at 4-7. After reviewing the

parties’ submissions, the administrative judge issued an addendum initial

decision, awarding the appellant attorney fees of $4,955.00 and costs of $12.11,

for a total of $4,967.11. A-3 AFF, Tab 7, Attorney Fee Decision (A-3 AFD)

at 9-10. She awarded the appellant all of the claimed costs, and found that the

rates were reasonable, but reduced the attorney fee award by $2,250 because the

hours claimed were duplicative. Id.

The appellant has filed a petition for review, disputing the fee reduction.

Addendum Petition for Review (A-3 PFR) File, Tab 1 at 8-15. The agency has

not filed a response.

DISCUSSION OF ARGUMENTS ON REVIEW

As the administrative judge correctly explained, A-3 AFD at 5, to establish

entitlement to an award of attorney fees under 5 U.S.C. § 7701(g)(1), an appellant

must show the following elements: (1) she was the prevailing party; (2) she

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. Driscoll v. U.S. Postal Service, 116 M.S.P.R. 662, ¶ 7

(2011). The administrative judge found that the appellant met the first three

elements. A-3 AFD at 5-7. These findings are supported, well-reasoned, and

unchallenged on review. Id. Accordingly, we decline to revisit them here and

focus on the appellant’s challenges to the administrative judge’s finding

regarding the final element—the reasonableness of the fees claimed.

In determining the reasonable fee award, the Board first calculates the

“lodestar”—the product of the reasonable hourly rate multiplied by the hours

reasonably spent working on the matter. Driscoll, 116 M.S.P.R. 662, ¶ 10. To

establish the appropriate hourly rate, an attorney fee petition must contain a copy

of the fee agreement, if any, as well as evidence of the attorney’s customary

billing rate for similar work. Hart v. Department of Transportation,

115 M.S.P.R. 10, ¶ 14 (2010). The party seeking an award should exclude hours

that are excessive, redundant, or otherwise unnecessary. Driscoll, 116 M.S.P.R.

662, ¶ 11. The administrative judge need not automatically accept claimed hours,

but may disallow hours for duplication, padding, or frivolous claims and impose

fair standards of efficiency and economy of time. Id.

Neither party challenged the administrative judge’s finding that, based

upon her review of the supporting documentation, the claimed rates for the

associate attorney and the named partner were reasonable. A-3 AFD at 8. In

calculating the lodestar, she identified a rate of $300 per hour for the associate

attorney and $400 per hour for the named partner. Id. We find that the

administrative judge made a typographical error regarding the named partner’s

claimed rate. Id. In his affidavit, the named partner claimed a rate of $450 per

hour. A-3 AFF, Tab 1 at 23-25. He also consistently billed $450 per hour for

work performed, as reflected in the billing statements, and provided sufficient

evidence showing that $450 per hour was a customary rate for attorneys in his

area with similar experience performing similar work. A-3 AFF, Tab 1 at 14-17,

26-33; see generally Hart, 115 M.S.P.R. 10, ¶ 14. Finally, the administrative

judge found no basis for adjusting the claimed rates and relied on the appellant’s

fee calculations, which were based on the $450 rate. A-3 AFD at 8. Accordingly,

we modify the addendum initial decision to correct this harmless, typographical

error and find that the reasonable rate for the named partner was $450 per hour.

See Panter v. Department of the Air Force, 22 M.S.P.R. 281, 282 (1984)

(explaining that an adjudicatory error that is not prejudicial to a party’s

substantive rights provides no basis for reversal of an initial decision).

After finding that the claimed rate was reasonable, the administrative judge

determined that the lodestar was $7,200. A-3 AFD at 8. She adjusted the

lodestar downward by $2,250 because she determined that, pursuant to the

February 2018 attorney fee settlement agreement, the appellant had received

attorney fees for work performed from August 21 to September 13, 2017, and

therefore that awarding fees based on work performed during those

“overlap[ping]” dates would be duplicative. 3 A-3 AFD at 8-9. On review, the

appellant argues that the administrative judge should not have reduced her

claimed hours. A-3 PFR File, Tab 1 at 10-14. Alternatively, she argues that,

even if a reduction were appropriate, the administrative judge’s reduction of

$2,250 was excessive and unjustified. Id. at 8, 14-15. She asserts that she only

claimed $405 in fees for the disputed period. Id. We agree that the

administrative judge’s reduction was excessive.

As explained above, in February 2018, the parties entered into a settlement

agreement resolving the appellant’s second fee petition. A-2 AFF, Tab 11 at 4.

A settlement agreement is a contract and is interpreted in accordance with

contract law. See Greco v. Department of the Army, 852 F.2d 558, 560 (Fed. Cir.

1988). In construing the terms of a settlement agreement, the words of the

agreement are of paramount importance. Flores v. U.S. Postal Service,

115 M.S.P.R. 189, ¶ 10 (2010) (citing Greco, 852 F.2d at 560). The Board will

consider parol evidence only if the agreement is ambiguous. Id. The terms of an

Although not specified in the addendum initial decision, the administrative judge

appears to either have miscalculated the hours claimed in the period at issue or applied

a 31% reduction to the lodestar. In any event, the administrative judge must identify

the hours eliminated and give a clear explanation for their elimination. Casali v.

Department of the Treasury, 81 M.S.P.R. 347, ¶ 14 (1999). Thus, she erred in failing to

provide a detailed explanation of how she arrived at the $2,250 figure. However, in

light of our disposition here, we find it unnecessary to determine how she calculated

this amount.

agreement are ambiguous as a result of differing interpretations as to the

meanings or intent given to those terms by the parties only when the respective

interpretations are both reasonable. Id.

Here, it is undisputed that the settlement agreement was enforceable and

the appellant withdrew her second fee petition as consideration for receiving

$15,173.60 in attorney fees. A-2 AFD at 1-2; A-2 AFF, Tab 11 at 4. Neither

party has challenged the addendum initial decision that dismissed the appellant’s

prior fee petition as settled; that decision is now final. A-2 AFD at 12; see

generally Weldon v. Department of Veterans Affairs , 119 M.S.P.R. 478, ¶ 5

(2013) (explaining that an attack on the validity of a settlement agreement must

be made in the form of a petition for review of the initial decision dismissing the

appeal as settled); 5 C.F.R. § 1201.113 (explaining that an initial decision

generally becomes the Board’s final decision 35 days after issuance, absent a

petition for review). Instead, the appellant disagrees with the administrative

judge’s interpretation of the scope of the agreement. A-3 PFR File, Tab 1

at 8-14.

The administrative judge found that the entirety of the hours claimed from

August 21 and September 13, 2017, included in the instant petition were

encompassed by the parties’ 2018 settlement agreement. A-3 AFD at 9. The

appellant argues that, despite the overlap in dates, all of the fees claimed in the

instant appeal were for compliance-related work in connection with the second

petition for enforcement, which involved issues distinct from the claims involved

in the first petition for enforcement, and thus were not covered by the settlement

agreement. 4 Id. The first compliance initial decision became final on August 31,

2017. C-1 CID at 7-8. According to the appellant’s second petition for

enforcement, the appellant received a check for back pay from the agency on

The agreement contained no requirement that the appellant waive any claim to

attorney fees related to other matters, such as separate work performed for the

appellant’s second petition for enforcement and third fee petition. A-2 AFF, Tab 11

at 4.

September 5, 2017, that was insufficient. 5 C-2 CF, Tab 1 at 5. The agency’s

purported failure to pay the appellant the appropriate back pay amount at that

time gave rise to the appellant’s second petition for enforcement. Id. Thus, the

back pay-related work performed prior thereto was reasonably related to the

matters at issue in the appellant’s second petition for attorney fees and covered by

the February 2018 attorney fee settlement agreement. 6 C-1 CID at 5; C-1 Erratum

Order at 1-2; A-2 AFF, Tab 1 at 5-6, Tab 11 at 4. Of the seven disputed entries,

all but one—the entry dated September 12, 2017—was for work performed before

the agency issued the September 5, 2017 back pay check. A -3 AFF, Tab 1 at 14;

C-2 CF, Tab 1 at 5. The appellant’s attorney described the work performed for

this period as concerning back pay. A-3 AFF, Tab 1 at 14; C-1 CID at 1-3;

C-2 CID at 1-2. Therefore, we find that the six entries for work performed from

August 21 to September 1, 2017, were encompassed by the appellant’s settlement

agreement and her request for those fees is duplicative. 7

As a result, we exclude the 1.1 hours of work and the 0.1 hours of work the

associate attorney and named partner billed, respectively, for August 21 through

September 1, 2017, from the lodestar calculation, reducing the associate

attorney’s number of reasonable hours from 21 to 19.9 hours and the named

partner’s reasonable hours from 2 to 1.9 hours. A-3 AFF, Tab 1 at 12-17, Tab 5

at 9-11. After multiplying the associate attorney’s 19.9 hours billed by her rate of

The appellant apparently received no further notice of compliance from the agency

before she filed her second petition for enforcement on October 17, 2017. Id. at 7-11.

The agency discusses the appellant’s second petition for enforcement in a filing titled

“2018 1-30 Agency Response to Enforcement Petition,” dated January 30, 2018, that the

agency submitted to the appellant’s second fee petition file; however, that filing appears

to have been intended for the C-2 compliance file. A-2 Tab 10; C -2 CF, Tab 9

(appellant’s February 6, 2018 reply to the agency’s response to the petition for

enforcement).

As to the appellant’s apparent arguments that her attorneys did not double bill for

work performed outside of the disputed time frame, the administrative judge found no

such duplicate billing and did not reduce the appellant’s attorney award on that basis.

A-3 AFD at 8-14; A-3 PFR File, Tab 8-14.

$300, and the named partner’s 1.9 hours billed by his rate of $450 per hour, we

find that the lodestar calculation is $6,825.00. The administrative judge

identified no other basis for reducing the lodestar. See, e.g., Driscoll,

116 M.S.P.R. 662, ¶¶ 10, 16 (explaining that it may be appropriate to reduce the

lodestar to reflect a party’s failure to obtain all the relief he requested).

Accordingly, we find that the administrative judge’s inexplicable reduction of

$2,250 was in error and that the appellant is entitled to $6,825.00 in attorney fees.

Finally, the appellant requested $7.11 in costs relating to postage paid for

filings related to the second petition for enforcement and the third petition for

attorney fees. A-3 AFF, Tab 1 at 12, 18-20, Tab 5 at 9. The administrative judge

found the appellant’s claimed costs were reasonable. A-3 AFF at 9. We agree.

See Social Security Administration v. Balaban, 33 M.S.P.R. 309, 323 (1987)

(identifying postage as a cost recoverable under 5 U.S.C. § 7701(g)(1)).

However, as the record reflects that the appellant only requested $7.11 in costs,

the administrative judge appeared to make a typographical error in awarding the

appellant $12.11 in costs. A-3 AFD at 9; A-3 AFF, Tab 1 at 12, 18-20, Tab 5

at 9. We modify the addendum initial decision in this regard. Accordingly, we

find that the appellant is entitled to $6,825.00 in attorney fees and $7.11 in costs,

for total award of $6,832.11.

ORDER

We ORDER the agency to pay the attorney of record $6,832.11 in fees and

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)).

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 8

The initial decision, as supplemented by this Final Order, constitutes 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.

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

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.

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. 9 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

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

MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals

for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.

The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,

132 Stat. 1510.