766 Fed.Appx. 970 (Fed. Cir. 2019), 2018-1585, Hickey v. Department of Homeland Security

Docket Nº:2018-1585, 2018-1650
Citation:766 Fed.Appx. 970
Opinion Judge:Wallach, Circuit Judge.
Party Name:Brendan HICKEY, Petitioner v. DEPARTMENT OF HOMELAND SECURITY, Respondent
Attorney:Nicholas Woodfield, The Employment Law Group, PC, Washington, DC, argued for petitioner. Also represented by Robert Scott Oswald. Reta Emma Bezak, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, argued for respondent. Also represented by Alison V...
Judge Panel:Before Wallach, Chen, and Hughes, Circuit Judges.
Case Date:March 22, 2019
Court:United States Courts of Appeals, Court of Appeals for the Federal Circuit

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766 Fed.Appx. 970 (Fed. Cir. 2019)

Brendan HICKEY, Petitioner



Nos. 2018-1585, 2018-1650

United States Court of Appeals, Federal Circuit

March 22, 2019

Editorial Note:

This Disposition is Nonprecedential. (See Federal Rule of Appellate Procedure Rule 32.1. See also U.S.Ct. of App. Fed. Cir. Rule 32.1.)

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Petitions for review of the Merit Systems Protection Board in Nos. PH-1221-15-0013-A-1, PH-1221-15-0013-P-1.

Nicholas Woodfield, The Employment Law Group, PC, Washington, DC, argued for petitioner. Also represented by Robert Scott Oswald.

Reta Emma Bezak, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, argued for respondent. Also represented by Alison Vicks, Robert Edward Kirschman, Jr., Franklin E. White, Jr., Joseph H. Hunt.

Before Wallach, Chen, and Hughes, Circuit Judges.


Wallach, Circuit Judge.

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Petitioner Brendan Hickey seeks review of two Merit Systems Protection Board ("MSPB") final decisions that granted-in-part his request for attorney fees, see

Hickey v. Dep’t of Homeland Sec. (Hickey II), No. PH-1221-15-0013-A-1, 2017 WL 5989840 (M.S.P.B. Nov. 30, 2017) (J.A. 1-30), and denied-in-part his request for consequential and compensatory damages, see

Hickey v. Dep’t of Homeland Sec. (Hickey III), No. PH-1221-15-0013-P-1, 2018 WL 702264 (M.S.P.B. Jan. 29, 2018) (J.A. 31-55).1 We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9) (2012). We affirm-in-part, vacate-in-part, and remand.


Mr. Hickey was employed by the Department of Homeland Security ("DHS") as a Special Agent assigned to work in DHS’s Providence, Rhode Island office. J.A. 72. The Providence office serves as a satellite office to the Boston, Massachusetts office. J.A. 72. In January 2013, Mr. Hickey filed a Complaint of Possible Prohibited Personnel Practice with the U.S. Office of Special Counsel ("OSC"), alleging DHS retaliated against him in response to his whistleblowing activity. J.A. 77. Specifically, Mr. Hickey asserted that he disclosed to both his supervising officials and to OSC that he "refused to obey an order that would" have "require[d] him to violate the law." J.A. 32. Shortly thereafter, DHS reassigned Mr. Hickey from his home and official Post of Duty in Providence to the Document Benefit Fraud Task Force ("DBFTF"), which was located sixty-three miles away in Boston, suspended him twice, and denied him a performance award. J.A. 32.

In October 2014, Mr. Hickey filed an IRA appeal with the MSPB alleging that DHS "had taken several personnel actions in reprisal for his protected disclosures and protected activities" as prohibited by 5 U.S.C. § 2302(b)(8), (9) (2012).3 J.A. 71. The AJ held that Mr. Hickey made protected disclosures and that they were a contributing factor in DHS’s decision to take prohibited personnel actions against him. J.A. 110. The prohibited personnel actions included temporarily assigning him to work sixty-three miles from his home and normal workstation for nineteen

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months, suspending him twice, and denying him a performance award. J.A. 110; see J.A. 110 (granting Mr. Hickey’s request for corrective action "as to the denial of a performance award, the reassignment of the DBFTF in Boston, and the 3-day and 1-day suspension[s]" and denying the request for corrective action "as to the assignment to the FDA task force and to Puerto Rico"). The AJ ordered DHS to cancel Mr. Hickey’s temporary assignment to the DBFTF in Boston to the extent the assignment remained in effect, and to eliminate all references to that assignment from Mr. Hickey’s personnel records. J.A. 110.

In August 2017, Mr. Hickey filed a Motion for Attorney Fees. See J.A. 124− 66. In support of his Motion for Attorney Fees, Mr. Hickey submitted his retainer agreements with his current counsel, The Employment Law Group, PC ("TELG"), and his prior counsel, Corso Law, LLC. See J.A. 129. Each of Mr. Hickey’s named counsel are located in Washington, DC. See Oral Arg. at 15:02-05, http://oralarguments.cafc.uscourts.gov/default.aspx?fl=2018-1585.mp3 (agreeing by counsel with the court that "this was a DC firm"). In Mr. Hickey’s retainer agreement, TELG agreed to represent Mr. Hickey at hourly rates of "$490.00 per hour" for principals, "$490.00 per hour" for of counsel, "between $245.00 and $290.00 per hour" for associates, "$145.00 per hour" for law clerks and investigators, and "$70.00 per hour" for project assistants. J.A. 10. Mr. Hickey also explained that TELG customarily charges rates determined with the Laffey Matrix.4 J.A. 129. In Hickey II, the MSPB granted-in-part and denied-in-part Mr. Hickey’s requested payment. J.A. 30. Specifically, the MSPB determined that Mr. Hickey was entitled to attorney fees in the amount of $109,585.00 and an award of expenses in the amount of $12,547.47, for a total of $122,132.47. J.A. 30. The MSPB’s calculation of attorney fees was based on the rates used in "recent decisions in the U.S. District Court for the District of Maryland [Greenbelt Division]" ("Maryland rate") "as reasonable hourly rates" instead of the hourly rates supplied by Mr. Hickey. J.A. 11, 12.

Mr. Hickey also requested an award of consequential and compensatory damages in connection with his IRA appeal. See J.A. 167-210. In Hickey III, the MSPB granted-in-part Mr. Hickey’s request for an award of compensatory damages in the amount of $10,000 and denied Mr. Hickey’s request for consequential damages. See J.A. 53-55.


On appeal, Mr. Hickey contends the MSPB erred by (1) "den[ying his] counsel’s requested hourly rates in his fee petition and instead award[ing] rates relying on [the] unrelated [Maryland rate]," Pet’r’s Br. 16, (2) "partially grant[ing his] request

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for compensatory damages and award[ing] him only $10,000 despite [his] uncontroverted evidence documenting years of substantial mental anguish and harm," see id . at 35, and (3) "den[ying his] motion for consequential damages when it found that he was not entitled to per diem expenses," see id . at 27. After setting forth the applicable standard of review, we address Mr. Hickey’s arguments.

I. Standard of Review

We will uphold a decision of the MSPB unless it is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law" or "unsupported by substantial evidence." 5 U.S.C. § 7703(c)(1), (3). The MSPB abuses its discretion when "the decision is based on an erroneous interpretation of the law, on factual findings that are not supported by substantial evidence, or represents an unreasonable judgment in weighing relevant factors." Tartaglia v. Dep’t of Veterans Affairs, 858 F.3d 1405, 1407-08 (Fed. Cir. 2017) (internal quotation marks and citation omitted). We review the MSPB’s factual findings for substantial evidence. Parrott v. Merit Sys. Prot. Bd., 519 F.3d 1328, 1334 (Fed. Cir. 2008). "Substantial evidence is more than a mere scintilla of evidence, but less than the weight of the evidence." Jones v. Dep’t of Health & Human Servs., 834 F.3d 1361, 1366 (Fed. Cir. 2016) (internal quotation marks and citations omitted). "The petitioner bears the burden of establishing error in the MSPB’s decision." Jenkins v. Merit Sys. Prot. Bd., 911 F.3d 1370, 1373 (Fed. Cir. 2019) (internal quotation marks, brackets, and citation omitted).

II. Attorney Fees

A. Legal Standard

Pursuant to 5 U.S.C. § 7701(g)(1), the MSPB "may require payment by the agency involved of reasonable attorney fees incurred by an employee or applicant for employment if the employee or applicant is the prevailing party" and the MSPB "determines that payment by the agency is warranted in the interest of justice." Similarly, 5 U.S.C. § 1221(g) provides that "[c]orrective action shall include attorney’s fees and costs," where "an employee ... is the prevailing party before the [MSPB], and the decision is based on a finding of a prohibited personnel practice, the agency involved shall be liable ... for reasonable attorney’s fees and other reasonable costs incurred." 5 U.S.C. § 1221(g)(1)(B), (g)(2); see 5 C.F.R. § 1201.202(a) (authorizing the MSPB to award "attorney fees" under § § 1221(g) and 7701(g) ).

"The most useful starting point for determining the amount of a reasonable fee is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate." Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983). In determining the appropriate fee rate, "[a] representation contract specifying hourly rates is evidence that the contract rates are consistent with local market rates, because the client freely agreed to pay the rates by entering into the contract." Willis v. U.S. Postal Serv., 245 F.3d 1333, 1340 (Fed. Cir. 2001). "[T]he fee applicant bears the burden of establishing entitlement to an award and documenting the appropriate ... hourly rates." Hensley, 461 U.S. at 437, 103 S.Ct. 1933.

The petitioner requesting attorney fees must support their request with "evidence substantiating the amount of the request." 5 C.F.R. § 1201.203. This evidence must include, inter alia, "a copy of the terms of the fee agreement (if any)" and "a statement of the attorney’s customary billing rate for similar work, with evidence that th[e] rate is consistent with the prevailing community rate for similar services in the

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community in which the attorney ordinarily practices." Id. Similarly, in other contexts, fee awards are based on "market rates for the services rendered." Missouri v. Jenkins by Agyei, 491 U.S. 274, 283, 109 S.Ct. 2463, 105 L.Ed.2d 229 (1989).

B. The MSPB Abused Its Discretion by Applying an Unrelated Cap on Attorney Fees


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