From this week’s MSPB Case Report:
Appellant: Michael S. Guy
Agency: Department of the Army
Decision Number: 2012 MSPB 54
Docket Number: DE-1221-10-0115-A-1
Issuance Date: April 16, 2012
Appeal Type: Individual Right of Action (IRA)
Action Type: Attorney Fee Request
Attorney Fees – Reasonableness
The agency petitioned for review of an addendum initial decision in which the administrative judge awarded the appellant $27,373.50 in attorney fees. The appellant, a GS-7 Paramedic, filed an IRA appeal in which he alleged that the agency took several personnel actions in retaliation for an email he wrote raising concerns about patient safety and possible rule violations.
In an initial decision that became the Board’s final decision, the administrative judge found that the appellant made a protected disclosure, and that one of the personnel actions — a counseling memorandum — was taken in retaliation for the protected disclosure.
In his motion for attorney fees, the appellant listed 166.16 attorney hours at $225 per hour, for a total of $37,386. In addition to the hours devoted to the IRA proceeding before the Board, the appellant claimed time spent in connection with the preceding compaint before the Office of Special Counsel (OSC), a subsequent petition for enforcment, and hours devoted to the attorney fee petition itself. He reduced his fee request by $5,400 to account for 19 hours devoted to personnel actions on which he did not prevail, and 5 hours devoted to compliance issues and a nonselection that was not at issue in the underlying IRA appeal.
The administrative judge found that the appellant was a prevailing party and therefore entitled to an award of attorney fees under 5 U.S.C. § 1221(g)(2). She further found that the claimed hourly rate of $225 was reasonable, but that the award should be reduced to account for the appellant’s limited success in the underlying IRA appeal.
Having determined that it was possible to do so by eliminating specific hours devoted to unsuccessful claims, she reduced the award by an additional 8 hours for time spent on nonselections. In addition, she reduced 5.5 hours spent on compliance issues, and reduced the 21 hours claimed for the appellant’s jurisdictional response to 14 hours. Over the agency’s objection, she found that the appellant was entitled to compensation for all time spent filing a complaint with OSC, as the complaint was a jurisdictional prerequisite for the IRA appeal.
In its petition for review, the agency argued that the judge erred in finding that $225 was a reasonable rate, and failed to eliminate all of the hours devoted to the appellant’s unsuccessful claims. The agency argued that the judge should have either attempted to segregate additional hours, or else reduced the award by a percentage to account for the appellant’s limited success. In either event, it contends that the award of $27,373.50 is unreasonable, and renders its memorandum “the most expensive counseling memorandum in history.”
Holdings: The Board affirmed the initial decision as modified, still awarding $27,373.50 in attorney fees:
1. In awarding an attorney fee, the starting point is to take the hours reasonably spent on the litigation multiplied by a reasonable hourly rate, which results in the “lodestar” which the Board uses in determining the fee award. The initial calculation should exclude hours for which the prevailing party failed to provide adequate documentation, and should also exclude hours that were not reasonably expended. In the second phase of the analysis, the lodestar may be adjusted upward or downward based on other considerations, including the crucial factor of the “results obtained.”
2. $225 per hour was a reasonable rate for the legal services performed.
3. The Board found that 134.66 hours were reasonably spent on the OSC and IRA proceedings, yielding an initial lodestar figure of $30,298.50. The appellant was entitled to attorney fees for time spent on the OSC complaint because exhaustion of administrative remedies before OSC is a jurisdictional prerequisite for filing an IRA appeal, and that work contributed significantly to the appellant’s success before the Board.
4. If, as was the case here, a party has achieved only “partial or limited success,” an award based on the hours reasonably spent on the litigation as a whole times an hourly rate may be an excessive amount, even when the claims were interrelated, nonfrivolous, and raised in good faith.
In this cirumstance, the tribunal awarding fees may make an equitable adjustment as to what reduction is appropriate by identifying specific hours that should be eliminated or, in the alternative, reducing the overall award by a percentage to account for the limited degree of success. The former method is preferred where it is practicable to segregate the hours devoted to related but unsuccessful claims.
The judge correctly determined that it was possible to eliminate specific hours devoted to unsuccessful claims. The Board discerned no error in the judge’s decision to eliminate 27 hours as devoted exclusively to personnel actions on which the appellant did not prevail.
5. The resulting figure of $24,223.50 does not so shock the conscience that the Board should second-guess the judge’s considered judgment that the amount fairly reflects the appellant’s limited degree of success. While the counseling memorandum alone may not be of great import, that is not the only measure, or even the most significant measure, of the appellant’s success in this appeal. The Board did not merely order the agency to rescind that memorandum; it also made a public finding that the agency engaged in illegal whistleblowing reprisal, and referred the matter to OSC for investigation and possible disiplinary action.
The award of attorney fees in this or any other successful IRA appeal serves the public interest insofar as it may encourage employees and attorneys to pursue remedies for action of whistleblowing resprisal, thereby discouraging agencies from engaging in such acts, which in turn serves the goal of eliminating government wrongdoing.
6. The appellant is entitled to compensation for reasonable fees incurred with respect to his successful attorney fee petition.