Jodi E. Silberman v. Department of Labor ( 2014 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JODI E. SILBERMAN, DOCKET NUMBER
Appellant, CH-0752-09-0322-B-1
v.
DEPARTMENT OF LABOR, DATE: September 4, 2014
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Rebecca L. Salawdeh, Esquire, Wauwatosa, Wisconsin, for the appellant.
Edward V. Hartman, Esquire, Chicago, Illinois, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Anne M. Wagner, Vice Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the remand addendum initial
decision, which denied her request for attorney fees for work performed in 2008,
2009, and 2011. For the reasons discussed below, we GRANT the appellant’s
petition for review. We AFFIRM the administrative judge’s findings regarding
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
the attorney’s claimed hours in 2011. However, we VACATE the administrative
judge’s finding that the appellant was not entitled to an award of attorney fees for
work performed during the 2008-09 time frame, and we award the appellant
$1,875.00 in fees.
DISCUSSION OF ARGUMENTS ON REVIEW
¶2 After a prior suspension appeal was reversed on due process grounds, the
administrative judge issued an addendum initial decision that awarded the
appellant $4,437.50 in attorney fees and denied her request for costs. MSPB
Docket No. CH-0752-09-0322-A-1 (A-1), Addendum Initial Decision (Jan. 6,
2012); see Silberman v. Department of Labor, 116 M.S.P.R. 501 (2011) (prior
suspension appeal). After the appellant and the agency filed a petition for review
and a cross petition for review, respectively, the Board issued a nonprecedential
remand order that vacated the initial decision in part and remanded the case to the
regional office for further adjudication. MSPB Docket No. CH-0752-09-0322-A-
1, Remand Order (Apr. 18, 2013). In its order, the Board found that the appellant
established gross procedural error and was entitled to an award of attorney fees.
Remand Order at 3-4. The Board further found that the $250 hourly rate sought
by the appellant’s attorney was the prevailing community rate for an attorney
with his experience in the Chicago area. Remand Order at 2 n.3. The Board
determined, however, that the administrative judge’s decision essentially to
disregard the appellant’s fee petition and supporting documentation—and instead
to conduct his own assessment of the work performed by the attorney on the
appellant’s behalf based on the documentation in the record—was improper.
Remand Order at 4-5. The Board therefore remanded the appeal for proper
adjudication of the reasonableness of the appellant’s claimed fees and it directed
the administrative judge to focus on the hours claimed in the fee petition.
Remand Order at 5-6. The Board also affirmed the administrative judge’s
decision to deny the appellant costs. Remand Order at 2 n.3.
3
¶3 On remand, the administrative judge issued a remand addendum initial
decision (RAID) that denied the appellant’s request for attorney fees. MSPB
Docket No. CH-0752-09-0322-B-1 (B-1), Initial Appeal File (IAF), Tab 4,
Remand Addendum Initial Decision (RAID). The administrative judge denied the
appellant’s request for fees allegedly incurred in 2008 and 2009 because neither
the appellant nor her attorney complied with the “minimum” requirement to
provide “accurate and current time records” for the claimed work,
notwithstanding repeated orders notifying them of this requirement. RAID at 2-4.
Regarding the 3 hours claimed on October 3, 2011, for “review of billing,” the
administrative judge denied this request because it constituted a “gross padding of
the fee request.” RAID at 4. Regarding the 3 hours claimed on December 1,
2011, the administrative judge described this work as the attorney’s “attempt to
retroactively catalogue the nature of the work performed for the money he
previously received,” he found that the resulting “billing statement” was not
current nor did the attorney include an affidavit justifying the reasonableness of
the claimed fees, and he denied this request. RAID at 4.
¶4 The appellant filed a petition for review. Petition for Review (PFR) File,
Tab 1. On review, the appellant asserts that the administrative judge committed
several errors in his analysis and contends that the claimed fees award in the
amount of $10,750 is reasonable and in the interest of justice. Id. The agency
did not file a response to the appellant’s petition for review.
Legal Standard
¶5 As the Board noted in its prior order, the computation of a reasonable
attorney fee 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. See B-1, IAF, Tab 1 at 4 (citing Mitchell v. Department of Health &
Human Services, 19 M.S.P.R. 206, 208 (1984)). Because the Board already
determined that the $250.00 hourly rate claimed by the appellant’s attorney was
4
appropriate, the only question before the Board is the number of hours reasonably
devoted to the case. The appellant, as the moving party, bears the burden of
proof in this regard. Ruble v. Office of Personnel Management, 96 M.S.P.R. 44,
¶ 7 (2004).
¶6 Under the Board’s regulations, an attorney fees motion must be supported,
at a minimum, by accurate and current time records. 5 C.F.R.§ 1201.203(a). The
purpose of requiring accurate and current time records is to allow the Board to
determine how much time an attorney spent working on the case. See generally
Driscoll v. U.S. Postal Service, 116 M.S.P.R. 662, ¶ 10 (2011). The Board has
held that an administrative judge need not automatically accept claimed hours, he
may disallow hours for duplication, padding, or frivolous claims, he may impose
fair standards of efficiency and economy of time, and he may cut hours when
there is simply not enough evidence to show that the request is reasonable. Id.,
¶ 11; Casali v. Department of the Treasury, 81 M.S.P.R. 347, ¶ 14 (1999); see
Foley v. U.S. Postal Service, 59 M.S.P.R. 413, 423 (1993); Rose v. Department of
the Navy, 47 M.S.P.R. 5, 13 (1991); Kling v. Department of Justice, 2 M.S.P.R.
464, 472-73 (1980); see also Gubino v. Department of
Transportation, 85 M.S.P.R. 518, ¶ 7 (2000) (noting that the administrative judge
must carefully scrutinize the hours and billing rating claimed).
We award $1,875 in attorney fees.
¶7 In support of the fee petition, the appellant submitted a worksheet
purporting to show the dates and amounts of money paid to her attorney, copies
of checks that she sent to her attorney for “legal fees,” and evidence that the
checks were processed. See A-1, IAF, Tab 3, “List of Expenses” and “Attorney’s
Fees” Tab. She also included an October 3, 2011 one-paragraph letter from her
attorney describing in general terms his work on her behalf, a corresponding bill
for 3 hours of work, and supporting documentation regarding the proposed
5
suspension. See A-1, IAF, Tab 5 at 7-8, Exhibits. 2 Finally, the appellant
included a “Billing Statement for [the appellant]/Record of Payments
From--2008-2011.” A-1, IAF, Tab 7, Blue Tab.
¶8 The administrative judge provided specific reasons for disallowing the
claimed hours in October 2011 and December 2011, and we affirm his decision in
this regard. See Crumbaker v. Merit Systems Protection Board, 781 F.2d 191,
195 (Fed. Cir. 1986), modified, 827 F.2d 761 (Fed. Cir. 1987).
¶9 The appellant correctly notes that the Board has held that, before it
“employs the extreme sanction of denial of attorney fees in a case where they are
warranted in the interest of justice, there should be something in the record
suggesting that the hourly rate is unreasonable or that the hours claimed are
excessive,” and the fee petition should be subject to disallowances. PFR File,
Tab 1 at 2 (citing Johnson v. Internal Revenue Service, 24 M.S.P.R. 202, 203-04
(1984)). Although we share the administrative judge’s concerns about the
deficiencies in the fee petition, see infra ¶¶ 10-23, we vacate the administrative
judge’s analysis of the claimed hours in 2008-09 because his categorical denial of
these claimed hours is not consistent with Board precedent.
¶10 We have considered each of the 2008-09 line items in the Billing Statement,
and find that significant disallowances are warranted. It is apparent from these
submissions that the appellant’s attorney did not contemporaneously itemize any
work performed or services provided on the appellant’s behalf in the suspension
matter. Rather, the Billing Statement, which was created in December 2011, well
over 2 years after the appellant indicated to the administrative judge that the
attorney was no longer her representative in the suspension appeal, see MSPB
Docket No. CH-0752-09-0322-I-2 (I-2), IAF, Tab 32, appears to be a
2
Some of this documentation only identifies the Equal Employment Opportunity
Commission (EEOC) case number. See, e.g., id., Exhibit G.
6
retrospective reconstruction of services allegedly provided to the appellant during
the 2008-09 time frame. 3
¶11 The Board has held that the absence of contemporaneous time records is
normally an insufficient basis, by itself, upon which to deny a fee award
altogether, although it may prompt a reviewing court to scrutinize reconstructed
records with care and to reduce the hours claimed if there is uncertainty as to
their accuracy. Wilson v. Department of Transportation, 22 M.S.P.R. 435, 437
(1984). In Wilson, the Board noted that there were deficiencies in the fee
petition, but concluded that the attorney’s affidavit, which averred that the
“hourly computations were arrived at by a complete review and analysis of the
file including pleadings, copies of outgoing and incoming correspondence,
notations taken during office conferences, exhibits, notations taken during
telephone conversations, and other records,” was sufficient to justify the claimed
fees. Id. at 437-38. This matter is easily distinguishable from Wilson. Here, the
administrative judge requested an affidavit from the appellant or her attorney
regarding the reasonableness of the fees, A-1, IAF, Tab 2 at 1-2, 4 and
subsequently informed the appellant that her attorney needed to provide a more
detailed accounting of his work in furtherance of the Board appeal, including an
itemized billing history, A-1, IAF, Tab 6. The attorney did not provide either an
affidavit or a narrative describing his efforts to reconstruct his work during the
2008-09 time frame or to otherwise provide context for his claimed hours.
¶12 We have other concerns about the accuracy of the hours claimed in 2008-09
in the Billing Statement. For instance, the dates identified in the Billing
Statement were based on the attorney’s receipt of the appellant’s payments, not
3
Notably, the Billing Statement does not show hours worked by the attorney but only
payments received. In light of our finding that the attorney’s $250 hourly rate was
reasonable, we will assume that a payment of $250 corresponds to 1 hour of work.
4
The appellant is mistaken in her assertion on review that the administrative judge
never required the attorney to submit an affidavit justifying the reasonableness of the
fees. PFR File, Tab 1 at 5.
7
for the most part on any dates on which work on the appellant’s behalf actually
occurred. Additionally, the appellant admitted that her attorney also represented
her in an EEOC matter and an arbitration matter during this same general time
frame, and it is not clear how the attorney was able to distinguish work in these
various matters, particularly since the appellant’s checks only contained the
description “legal fees.” See A-1, IAF, Tab 7 at 4; see also A-1, IAF, Tab 3,
“Attorney’s Fees” Tab (copies of checks). Finally, the descriptions in the Billing
Statement of alleged work performed—for the most part—are lacking in
specificity and context. For instance, most of the claimed hours in the 2008-09
time frame purport to document payments received for general tasks such as
phone calls, meetings, settlement discussion(s), writing letters, reviewing
documents, and “work” on various tasks. See, e.g., A-1, IAF, Tab 7, Blue Tab at
3 (on March 31, 2008, the attorney “received $250 payment . . . for reviewing
documents, phone calls and meeting regarding proposed 30 day suspension”),
4 (on June 17, 2008, the attorney “received $1,000 payment . . . for phone calls,
meetings and follow-up meetings regarding the proposed 30-day suspension”).
As noted above, there is no indication in the Billing Statement or elsewhere of the
dates on which most of this alleged work occurred, what documents were
reviewed, to whom the phone calls were made, who was present for the phone
calls, the nature of the phone calls, the reason for any alleged meeting(s) or
follow-up meeting(s), the attendees at any such meetings, or the apportionment of
time for or between these various tasks, among other things. Because the lack of
detail and contextual information calls into question the accuracy of the claimed
hours, particularly given the nearly 2-year lapse between when the work allegedly
occurred and the creation of the Billing Statement, we find that the line items in
the Billing Statement that identify such general tasks do not meet the requirement
of 5 C.F.R. § 1201.203(a), and we do not award any fees for such work.
¶13 There are, however, some discrete tasks identified in the Billing Statement
that we can evaluate, such as the Stay Request, the filing of the initial appeal
8
paperwork regarding the suspension, preparation for and appearance at the
appellant’s deposition, and specific correspondence. For instance, we do not
award any fees for the attorney’s work on the appellant’s Stay Request. See A-1,
IAF, Tab 7, Blue Tab at 1-2 (noting a January 26, 2009 receipt of $500 for
“phone calls, meeting and preparing filing with MSPB,” which appears to refer to
the Stay Request, and a February 13, 2009 receipt of $250 for work on filing
Board appeal and additional work on the Stay Request); see also MSPB Docket
No. CH-0752-09-0322-S-1 (S-1), Stay Order (Feb. 10, 2009). The appeal
challenging the appellant’s suspension and the Stay Request are two separate
actions, and the reversal of the appellant’s suspension was in no way attributable
to any claim of reprisal for whistleblowing activity. Moreover, it appears that the
appellant was responsible for drafting and filing the Stay Request, as only her
signature appeared on the Stay Request and the Certificate of Service, and she
referred to herself as “I” throughout the Stay Request. See S-1, Tab 1. We
disagree with the appellant’s contention on review that the administrative judge
was “required” to award fees for unsuccessful arguments, including her
unsuccessful Stay Request. PFR File, Tab 1 at 5; see Rothschild v. Department of
Housing & Urban Development, 54 M.S.P.R. 238, 242-43 (1992) (awarding fees
for the work on the mandamus order but declining to award fees for the attorney’s
work on the stay request).
¶14 We similarly do not award any fees for the claimed hours for filing the
initial appeal in the suspension matter, A-1, IAF, Tab 7, Blue Tab at 1-2
(discussing January 27, 2009 and February 13, 2009 payments received), because
the appellant, and not the attorney, filed the initial appeal in that matter, see
MSPB Docket No. CH-0752-09-0322-I-1 (I-1), IAF, Tab 1.
¶15 Regarding a September 13, 2009 receipt of $250 for “September 1, 2009 . . .
pre-hearing conference and work on pre-hearing submissions,” the record reflects
that the appellant, not her attorney, filed her prehearing submissions, see I-2,
IAF, Tab 11. We do not award fees for such work. The administrative judge
9
noted in an order in the fee appeal that the attorney “claims he represented the
appellant during the prehearing conference, [but] he did not raise a single
argument on her behalf or otherwise make any substantive comment during the
conference,” and the administrative judge remarked that the attorney “apparently
listened to the appellant while she argued her case.” A-1, IAF, Tab 6 at 3 n.1.
Although it is unclear from these statements whether the attorney even made his
presence known to the administrative judge during the prehearing conference, we
award $250 for his appearance at the prehearing conference.
¶16 The Billing Statement attributes $750 total for the attorney’s representation
at the July 10, 2009 deposition and $650 total for preparation for the July 10,
2009 “hearing,” which we assume is a reference to the deposition that occurred on
that date. See A-1, IAF, Tab 7, Blue Tab at 2 (discussing payments received on
June 12, 2009, June 29, 2009, July 27, 2009, and August 24, 2009). The record
reflects that the appellant was deposed on July 10, 2009, the attorney appeared on
her behalf, and the deposition started at 12:30 p.m. and ended at 3:07 p.m. due to
a family emergency involving the agency representative. See I-2, IAF, Tab 17,
Exhibit 16. We therefore grant the request for $750 in fees for the attorney’s
appearance at the deposition. We deny the request for $650 for “preparation” for
the deposition because the attorney does not explain what “preparation” means in
this context, particularly since he was defending the appellant in her deposition.
¶17 Several of the line items in the Billing Statement predate the February 1,
2009 effective date of the suspension at issue. See A-1, IAF, Tab 7, Blue Tab;
see also I-1, IAF, Tab 1, Decision Tab. The Board has held that recovery of fees
before the effective date of the agency action is proper. Brown v. U.S. Coast
Guard, 28 M.S.P.R. 539, 544-52 (1985).
¶18 Regarding an April 22, 2008 receipt of $250 for “meeting and writing
April 11, 2008 letter to Regional Director Sandra Scott Zeigler regarding
proposed 30-day suspension,” A-1, IAF, Tab 7, Blue Tab at 3, the record reflects
10
that the attorney sent a two-page single spaced letter to Ms. Ziegler, see id.,Green Tab at 22-24. We grant fees in the amount of $250 for this task.
¶19 Regarding an April 25, 2008 receipt of $250 for “phone calls and meeting,
writing and sending the April 25, 2008 letter to Regional Director Sandra Scott
Ziegler regarding proposed 30-day suspension,” id., Blue Tab at 3, the record
reflects that the attorney sent a four-paragraph letter to Ms. Ziegler on this date,
see id., Green Tab at 26. Given the brevity of the letter, we award $125 for this
work.
¶20 The Billing Statement states that, on May 9, 2008, payment for an
undisclosed amount was received for “assistance with May 2, 2008 letter to
Regional Director Sandra [Scott] Ziegler regarding proposed 30-day suspension.”
See id., Blue Tab at 3. We view the absence of any information in the Billing
Statement regarding how much time the attorney allegedly spent on this task as an
oversight because a nearly two-page, single-spaced May 2, 2008 letter to Ms.
Ziegler is in the record at id., Green Tab at 35-37. We award $250 for this work.
¶21 Regarding a May 9, 2008 receipt of $500 for “assistance with May 9, 2008
letter to Regional Director Sandra Scott Ziegler,” id., Blue Tab at 3, the record
reflects that the appellant wrote this letter, see id., Green Tab at 40-46. We do
not award fees for this work because it is unclear what “assistance” means in this
context and the attorney did not explain when or in what manner such
“assistance” was provided.
¶22 Regarding a May 21, 2008 receipt of $250 for “assistance with May 15,
[2008] letter to Regional Director Sandra Scott Ziegler regarding proposed 30-day
suspension,” id., Blue Tab at 4, the record reflects that the appellant wrote this
letter, see id., Green Tab at 47-49. We do not award fees for this “assistance” for
the reasons discussed above.
¶23 Regarding a June 6, 2008 receipt of $750 for “representation at oral reply
and assistance on June 6, 2008 letter to Regional Director Sandra Scott Ziegler
regarding proposed 30-day suspension,” id., Blue Tab at 4, the record reflects that
11
the attorney did represent the appellant at the May 13, 2008 oral reply but the
appellant wrote the June 6, 2008 letter, which responded to the summary of the
oral reply, see id., Green Tab at 50-53 (summary of oral reply), 54-55 (the
appellant’s response). The summary states that the oral reply started at 3:00 p.m.
See id. at 51-53. In the absence of any specific information regarding how long
the oral reply lasted, we award the attorney $250 for this work. We do not award
fees for “assistance” with the June 6, 2008 letter for the reasons discussed above.
¶24 We have considered the appellant’s remaining arguments on review, but
none warrant a different outcome.
ORDER
¶25 We ORDER the agency to pay the attorney of record $1,875.00 in attorney
fees. The agency must complete this action no later than 20 days after the date of
this decision. See generally Title 5 of the United States Code, section 1204(a)(2)
(5 U.S.C. § 1204(a)(2)).
¶26 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 to
describe the actions it took 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 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).
¶27 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
12
Order, and should include the dates and results of any communications with the
agency. See 5 C.F.R. § 1201.182(a).
¶28 This is the final decision of the Merit Systems Protection Board in this
appeal. Title 5 of the Code of Federal Regulations, section 1201.113(c) (5 C.F.R.
§ 1201.113(c)).
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request the United States Court of Appeals for the
Federal Circuit to review this final decision. You must submit your request to the
court at the following address:
United States 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 United States 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 United
States 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," which is contained within the court's Rules of Practice, and Forms 5,
6, and 11.
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If you are interested in securing pro bono representation for your court
appeal, you may visit our website at http://www.mspb.gov/probono for a list of
attorneys who have expressed interest in providing pro bono representation for
Merit Systems Protection Board appellants before the court. The Merit Systems
Protection Board neither endorses the services provided by any attorney nor
warrants that any attorney will accept representation in a given case.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.