Carson wins more attorney fees, 
DOE abuses the Court's Attention

Last Updated 12/05/01


JOSEPH P. CARSON, Appellant,




DATE: October 16, 2001

Ronald C. Zabel, Esquire, Fairfax, Virginia, for the appellant.
Gus Goldberper, Esquire, Washington, D.C., for the agency.



Richard W. Vitaris
Administrative Judge






On June 23, 2001, the appellant timely filed a motion for attorney fees in connection with his successful petition for enforcement of the Board's final order in Carson v. Department of Energy, 85 M.S.P.R. 171 (2001). (1) Carson v. Department of Energy, 88 M.S.P.R. 260 (2001). The Board may award fees and costs under 5 U.S.C. 1221(g)(l)(A) as part of the corrective action based upon the appellant's successful individual right of action (IRA) appeal. For the reasons set forth below, the motion for fees is GRANTED. (2)



1. Burden of proof and applicable law.

In order to establish entitlement to a fee award, the appellant must show that he is the prevailing party, that-he incurred fees, and that an award is warranted in the interest of justice. Yorkshire v. Merit Systems Protection Board, 740 F.2d 1454, 1456 (Fed. Cir. 1984); Sterner v. Department of the Army, 711 F.2d 1563, 1565-66 (Fed. Cir. 1983). If entitlement is established, the appellant must also prove that the fees requested are reasonable. Kling v. Department of Justice, 2 M.S.P.R. 464, 470 (1980).

2. Appellant is the prevailing party on the petition for enforcement.

As a threshold matter, I find that the appellant is the prevailing party in this petition for enforcement. The agency argues that the appellant is not the prevailing party because the Board's Opinion and Order on the petition for enforcement found the agency in compliance. The agency's argument is specious.

After the petition for enforcement was first filed, the administrative judge found the agency not in compliance and issued a Recommendation that the Board enforce its Final Decision if the agency did not immediately take certain actions to bring itself into compliance. The agency did ultimately take those actions causing the Board to find the agency in compliance and dismiss the petition for enforcement as moot.

The fact that the agency ultimately complied with the Recommendation before the Board had the opportunity to finally adjudicate the petition for enforcement does not mean that the appellant did not prevail. The appellant is the prevailing g party because the Recommendation finding the agency in noncompliance and ordering the agency to comply with the Board's Final Order created a "material alteration of the legal relationship of the parties necessary to permit an award of attorney fees." See Buckhannon Board and Care Home, Inc. v. West Virginia Department of Health and Human Resources, 121 S. Ct. 1835, 1840(2001).

3. The appellant incurred fees.

It is undisputed that there was an attorney-client relationship between the appellant and his attorney, Mr. Ron Zabel. Although the appellant appeared pro se in this case and used the services of Mr. Zabel solely in connection with settlement, the Board has previously held in connection with a motion for attorney fees in a previous successful IRA appeal filed by the appellant that he can receive attorney fees for the professional services of an attorney working solely on settlement. Carson v. Department of Energy, 86 M.S.P.R. 192, paragraph 21 (2000). In that case, the Board held that whether an attorney has filed a notice of appearance or participated in Board proceedings is not dispositive on the attorney fees issue. Id.; see also Gearan v. Department of Health and Human Services, 42 M.S.P.R. 313, 316 (1989) (attorney fees may be appropriate even if the attorney does not represent the appellant at the Board's hearing and does not submit documents to the Board in connection with the employee's appeal).

Accordingly, in light of Mr. Zabel's role in acting as the appellant's settlement attorney, I find that he rendered legal services on the appellant's behalf in connection with the petition for enforcement. See Allen v. United States Postal Service, 2 M.S.P.R. 420, 427 n.9 (1980).

4. An award of fees is in the interest of justice.

An award of attorney fees may be warranted in the interest of justice for a successful petition for enforcement. See Bivens v. Department of the Navy, 52 M.S.P.R. 602, 604-05 (1992). In Allen, 2 M.S.P.R. at 434-35, the Board set out a nonexhaustive list of circumstances in which the "interest of justice" standard would be met. Those examples include: (1) where the agency engaged in a prohibited personnel practice; (2) where the agency's action was clearly without merit; (3) where the agency initiated the action against the employee in bad faith; (4) where the agency committed a gross procedural error which prolollged the proceeding or severely prejudiced the employee; and (5) where the agency knew or should have known that it would not prevail on the merits when it brought the proceeding.

In this case, I find that the agency's action was clearly without merit and that the agency knew or should have known that it would not prevail in its claim of compliance with the final Board Order. In the appellant's successful IRA appeal, the Board found that, among other things, the agency had directed the appellant's reassignment from Knoxville, Tennessee, to Germantown, Maryland, in retaliation for whistleblowing. As corrective action, the Board ordered:

the agency to cancel the letter of admonishment, to cancel the directed reassignment, and to return the appellant to the full range of duties and work assignments consistent with his position description and past assignments. [citations omitted] The agency must complete this action no later than 20 days after the date of this decision.

See Carson, 85 M.S.P.R. at 175.

Rather than canceling the directed geographic reassignmellt as it was ordered to do, the agency responded that it could not comply for "legitimate management reasons" because it had abolished the appellant's function in Oak Ridge, Tennessee. (3) Because the appellant's position was abolished, the agency again directed his reassignment to Germantown, Maryland, the very action which the Board had previously held was in retaliation for whistleblowing activity.

In other words, rather than restore the appellant to the status quo ante and put the appellant as nearly as possible to his previous situation, including his former facility, as was clearly required under the terms of the Board's final Order, see, e.g., Stabile v. Defense Commissary Agency, 76 M.S.P.R. 658, 663 (1997); Holtgrewe v. Federal Deposit Insurance Corporation, 57 M.S.P.R. 307, 311-13 (1993), the agency claimed that overriding circumstances precluded reinstatement according to the terms of the final Board Order. See Stabile, 76 M.S.P.R. at 663.

The agency should have known that its argument would fail since the agency could easily have assigned the appellant to a position of like grade, pay, and duties within the Oak Ridge, Tennessee, commuting area. The appellant, as the victim of retaliation for whistleblowing activity, was entitled to corrective action which placed him as nearly as possible to the position he would have been in had the prohibited personnel practice not occurred. This is particularly true in this case since allowing the agency to reassign the appellant to Germantown, Maryland, would permit the agency to accomplish the very retaliatory action they sought to take against him in the first place, frustrating Congress' intent in enacting the whistleblower Protection Act. (4)

The appellant was one of 17 employees whose positions were abolished. The agency was able to reassign 9 of the 16 similarly situated employees to positions within their commuting area. Moreover, the record reflected that there were vacant GS-14 positions at Oak Ridge to which the appellant could have been assigned. (5) I find that the agency's failure to offer the appellant one of those positions and proceeding with the geographic reassignment was totally without merit in light of Board case law and the clear language of the Board's final Order. The agency clearly knew or should have known that such was the case.

The agency also argues that fees are not in the interest of justice because Mr. Zabel worked on settlement issues and the petition for enforcement did not settle. This argument is specious; the Board has consistently held time devoted to settlement efforts to be a part of the litigation and an appropriate component of an attorney fees award. See, e.g., Diehl v. U.S. Postal Service, 88 M.S.P.R. 104, para.18 (200 1); Crumbaker v. Department of Labor, 40 M.S.P.R. 71, 77 ( 1989) overruled on other grounds, Pecotte v. Department of the Air Force, 55 M.S.P.R. 165 (1992).

Finally, the agency argues that the appellant's motion for attorney fees is precluded by a prior settlement agreement. This argument is utterly frivolous because that settlement was entered into in an entirely different appeal. In 1994, the appellant had filed an IRA appeal challenging the agency's actions that denied him a within-grade increase, reprimanded him, and rated him as unacceptable or marginal in performance evaluations. Carson v. Department of Energy, 77 M.S.P.R. 453, 455 (1998). That appeal settled on terms favorable to the appellant and provided for the payment of his reasonable attorney fees. After litigation, the Board held that Mr. Zabel was entitled to fees, see Carson, 86 M.S.P.R. at para. 26, and a settlement agreement was entered into. That settlement agreement concerned Mr. Zabel's entitlement to attorney fees a totally different IRA appeal than the appeals at issue in the instant case.

5. Fees for related settlement discussions in U.S. District Court may be awarded.

Settlement efforts in this case as well as in other cases concerning the appellant have been extensive. A highly experienced Board settlement attorney, Mr. Robert Kelley, coordinated Board efforts to reach a global settlement. In addition, a large portion of Mr. Zabel's claimed fees relate to settlement efforts performed in connection with the appellant's litigation in U.S. District Court. The record reflects that the appellant sought a restraining order to prevent the agency from again geographically reassigning him to Germantown, Maryland, which the agency sought to do so in apparent defiance of the Board's final Order finding such a reassignment to be in retaliation for whistleblowing. The District Court ordered the parties to participate in mediation.

The Board, which has limited jurisdiction, can generally only award fees in connection with proceedings before it and not fees incurred in other proceedings. However, in Nadolney v. Environmental Protection Agency, 30 M.S.P.R. 561, 565 (1986), the Board found that fees may 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 is reasonable under the standard set forth by the Board in Kling, 2 M.S.P.R. at 470; and (2) the work, or some "discrete portion" of it, done in the other proceeding, significantly contributed to the success of the subsequent Board proceeding and eliminated the need for work that otherwise would have been required in connection with that subsequent proceeding. Casali v. Department of the Treasury, 81 M.S.P.R 347, 355 (1999).

I find that test to be met here. In seeking a restraining order in U.S. District Court, the appellant had the identical objective as he had in filing his petition for enforcement with the Board: his petition for enforcement with the Board: to thwart the agency's attempts evade the Board's final Order canceling the directed reassignment to Maryland. Therefore, the suit in District Court was an optional, but factually related, proceeding. See Rothschild v. Department of Housing and Urban Development, 54 M.S.P.R. 238, 242 (1992). (approving fees for time spent in U.S. District Court obtaining order compelling agency to make decision on proposed adverse action).

Moreover, if settlement talks between the appellant and the agency had not occurred in that forum, they would have occurred under the auspices of the Board. See 5 C.F.R. 1201.41(c) ("The judge may initiate attempts to settle the appeal informally at any time"). Therefore, the settlement activity which occurred in connection with the U.S. District Court litigation eliminated the need for work that otherwise would have been required in connection with Board proceedings because the factual and legal issues under discussion--i.e., whether there was some alternative to the appellant's geographic reassignment that would satisfy him and the agency's interest--were substantially identical to the factual and legal issues discussed in connection with settlement of the petition for enforcement.

6. The fees claimed are reasonable

The burden of establishing the reasonableness of the hours clairned in an attorney fee request is on the party moving for an award of attorney fees. Sailor-Nimocks v. Office of Personnel Management, 66 M.S.P.R. 438, 443 (1995). In submitting an attorney fee request, "counsel for the prevailing party should make a good-faith effort to exclude from a fee request hours that are excessive, redundant, or otherwise unnecessary.... Hours that are not properly billed to one's client also are not properly billed to one's adversary pursuant to statutory authority." Crumbaker v. Merit Systems Protection Board, 781 F.2d 191, 194 (Fed. Cir. 1986) (quoting Hensley v. Eckerhart, 461 U.S. 424, 433-34 (1983)), modified on other grounds, 827 F.2d 761 (Fed. Cir. 1987).

The agency does not specifically challenge any of hours claimed. Rather, the agency asserts that it would need additional discovery in order to challenge the fee petition. This argument is meritless. Discovery is not customary in adjudicating attorney fees motions since the reasonableness of a particular line item can typically be ascertained either on its face or by reference to the record. The agency could have identified particular deficiencies, if any, in this petition for enforcement, but failed to do so.

The administrative judge is not required to evaluate every billable entry in a voluminous record, but also need not automatically accept claimed hours. See Crumbaker, 781 F.2d at 195. An attorney fee request is to be reduced as necessary to disallow hours for duplication or padding, Foley v. U.S. Postal Service, 59 M.S.P.R. 413, 423 (1993), or where the record does not show that the expenditure of the claimed hours was necessary. Wright v. Department of Transportation, 53 M.S.P.R. 427, 433 (1992).

I have carefully reviewed the appellant's fee petition and, in the absence of any objection from the agency, find the hours sought to be reasonable on their face. The costs claimed are also unchallenged by the agency and likewise found to be reasonable.

7. The hourly rate claimed is reasonable

The agency contends that the appellant should only receive the reduced rate of $125 per hour called for in his contract with Mr. Zabel. I disagree. Where it is agreed that a specific fee be paid to attorneys for legal services rendered on behalf of an appellant in a Board case, the Board presumes that the amount agreed upon represents the maximum reasonable fee which may be awarded. That presumption, however, is rebuttable by convincing evidence, inter alia, that the agreed-upon rate was not based on market place considerations. Martinez v. U.S. Postal Service, MSPB Docket No. SF-0752-99-0511-A-1, slip op. at para. 18-19 (July 27, 2001).

Mr. Zabel's affidavit explains that the $125 rate was a discounted rate and that his customary hourly rate is $300. An appellant is entitled to attorney fees at the prevailing community rate. Indeed, the Board amended its regulations to provide that the relevant community is that in which the attorney ordinarily practices. 5 C.F.R. 1201.203(a)(3). The agency does not dispute that $300 is within prevailing community rates for an attorney expert in settlement and mediation in metropolitan Washington, D.C. (6) Rather, the agency simply argues that the appellant should be limited to the amount provided in his contract with Mr. Zabel. Accordingly, I find that the appellant is entitled to fees at the higher rate.

In light of the foregoing, I find that the appellant is entitled to $19,874.65 in attorney fees and costs for the petition for enforcement and to an additional $3,450.00 for fees incurred in connection with litigation over the motion for attorney fees.



The appellant's motion for attorney fees is GRANTED.



I ORDER the agency to pay attorney fees in the amount of $23.324.65 by a check made payable to the appellant's counsel. Payment must be made no later than 20 calendar days after the date this initial decision becomes final.


Richard W. Vitaris
Administrative Judge


1. The agency's argument that this motion is untimely is totally without merit. The Board's final Order on the underlying petition for enforcement was issued on April 26, 2001, and this motion was filed less than 60 days thereafter. Accordingly, the motion is timely. See 5 C.F.R. 1201.203(d).

2. Both parties have filed motions for sanctions against each other. These motions are DENIED.

3. The appellant has filed an IRA appeal, which is currently pending before the Board, to determine whether the agency's action in abolishing his position and again redirecting his reassignment to Germantown, Maryland, was in retaliation for whistleblowing. Carson v. Department of Energy, MSPB Docket No. AT-1221-01-0025-W-2.

4. The legislative history of the Whistleblower Protection Act indicates that the interest of Congress was to provide a broad bulwark to protect federal employees from any reprisal following disclosures of waste, fraud, abuse, or threats to public health and safety through good faith whistleblowing. The legislative history also establishes that Congress was aware that whistleblowers faced a variety of retaliatory actions and sought to protect them from any retaliation. 135 Cong .Rec. S2779, 80 (daily ed. March 16, 1989) (statements by Sen. Levin).

5. The compliance record reflects that an agency management official stated that fie did not consider placing the appellant into one of those vacant positions because it "is fundamentally unfair to the [other] employees who expect to have the opportunity to compete for any such position." Compliance File, Tab 5, Subtab 28. Apparently, no consideration was given to the unfairness to appellant to geographically reassign him after the Board had held that such a reassignment was in retaliation for whistleblowing.

6. I ordered the parties file a Joint Statement of Issues. Attorney Fee File Tab 5. That Order admonished the parties that any issue not so identified would be deemed waived. Id.

Eight Times Prevailing


Questions or comments? Contact Joseph P. Carson, P.E.