Adde v. The United States

• Decision Date: 01 June 2011
• Docket Number: No. 07-248 C,07-248 C
• Parties: MELISSA ADDE, Plaintiff, v. THE UNITED STATES, Defendant.
• Court: U.S. Claims Court

MELISSA ADDE, Plaintiff, v. THE UNITED STATES, Defendant.

No. 07-248 C

United States Court of Federal Claims

Filed June 1, 2011

Attorney Fees and Costs; Back Pay Act, 5 U.S.C. §§ 5596, 7701(g) (2006); Unjustified Personnel Action; Prevailing Party; Interest of Justice; Reasonable Attorney Fees.

R. Scott Oswald, with whom was Nicholas Woodfield, Washington, D.C., for plaintiff.

Russell A. Shultis, United States Department of Justice, with whom were Tony West, Assistant Attorney General, Jeanne E. Davidson, Director, Martin F. Hockey, Jr., Assistant Director, Washington, D.C., for defendant. Marilyn Blandford, Department of Health and Human Services, Washington, D.C., of counsel.

OPINION

Bush, Judge.

The court has before it Ms. Melissa Adde's petition for an award of attorney fees and costs, and defendant's opposition thereto. The court has issued two previous opinions in this case: Adde v. United States, 81 Fed. Cl. 415 (2008) (Adde I); and Adde v. United States, 95 Fed. Cl. 4 (2010) (Adde II). These decisions resolved the parties' overseas pay dispute, with the government prevailing on an overpayment counterclaim in the amount of $50,430.20, and plaintiff prevailing on a portion of her post allowance claim in the amount of $33,736.60.¹ The court therefore issued a judgment whereby Ms. Adde must pay the government $16,693.60. Plaintiff now seeks an award of $150,115.81 in attorney fees and costs.² Pl.'s Reply at 12. Two of the fundamental questions before the court are whether Ms. Adde can be considered to be a prevailing party, and whether an attorney fees award is in the interest of justice. The other principal question is whether the amount of Ms. Adde's attorney fees request is reasonable. For the reasons set forth below, Ms. Adde's requests for attorney fees, costs and expenses are denied.

BACKGROUND³

I. The Overpayment Dispute

Ms. Adde worked as a nurse for the National Institutes of Health (NIH) in Bethesda, Maryland, and was paid according to a special salary schedule developed for that locality. When she was posted to Brussels, Belgium in 2000 to work at an international health organization, NIH failed to change her pay. The court found that the special salary schedule pay Ms. Adde received from April 19, 2000 through February 2, 2008 was unauthorized by statute and NIH policy. Adde II, 95 Fed. Cl. at 10-12.

NIH eventually recognized its salary schedule error, which had resulted insubstantial overpayments to plaintiff, and contacted Ms. Adde to discuss a reduction in her pay. These communications did not produce an easy resolution of the overpayment problem. NIH offered Ms. Adde a waiver of the overpayment, which plaintiff apparently viewed as a bad bargain because it involved accepting the legitimacy of the pay reduction proposed by NIH. See Pl.'s Reply at 8 (describing Ms. Adde's belief that "upon signing the [waiver] form, she would be agreeing that she owed the debt, and would never be able to revisit the issue").

Ms. Adde chose to retain counsel and in February 2007 asserted that her Bethesda, Maryland special salary schedule pay was valid in Belgium and that NIH should also guarantee her certain pay increases in future years. Def.'s Resp. Att. 1 at 2-3. When this negotiating position did not bear fruit, Ms. Adde filed a two-count complaint in this court, requesting post allowances (for the cost of living at an overseas post) and cost of living adjustments "as required by law."⁴ Compl. ¶ 29; Am. Compl. ¶ 31. Defendant denied plaintiff's right to retroactive post allowances for the relevant years, and counterclaimed for the overpayment in salary. Am. Answer ¶¶ 26-29, 54-56.

II. The Post Allowance Dispute

It is undisputed that plaintiff began to receive a post allowance for her service in Belgium sometime in 2005, and that retroactive post allowances were paid to her for the period of time beginning October 3, 2004. Ms. Adde continues to receive the post allowance. When plaintiff filed her suit in this court, however, and for some time thereafter, the government refused to recognize her right to retroactive post allowances for the period of time from April 23, 2001 to October 3, 2004. Eventually the government conceded that Ms. Adde was due retroactive post allowances for this period of time, and the parties established a compromise figure that enabled the court to arrive at a final judgment in favor of the government on its counterclaim.⁵

Although the parties differ in their characterization of the government's willingness to accept the legitimacy of plaintiff's retroactive post allowance claim for the period of time from April 23, 2001 to October 3, 2004, some facts do not appear to be in dispute. In 2001, Ms. Adde submitted a form requesting a post allowance for her service in Belgium. Pl.'s Mem. at 4; Def.'s Resp. at 6. This form did not result in any positive response from NIH. Plaintiff's counsel did not mention this form in a letter presenting Ms. Adde's post allowance claim to NIH in early 2007. Def.'s Resp. Att. 1 at 3-4. Neither plaintiff's original complaint nor her amended complaint mention the request for post allowance submitted in 2001.

Instead, the 2001 post allowance request form appears to have re-surfaced during the discovery phase of this litigation. Pl.'s Mem. at 7; Def.'s Resp. at 7. According to plaintiff, the import of the document was not addressed until June 2009. See Pl.'s Mem. at 7 (noting June 2009 as the time when plaintiff provided the form to defendant in response to the government's discovery requests). Although the record is not perfectly clear on this point, it appears that Ms. Adde made a formal request for a post allowance in 2001, her request went unanswered and the issue was not actively pursued for some time.

According to the complaint, the post allowance issue came to the forefront again in 2005 when Ms. Adde's supervisor notified her that she would be getting a post allowance, and a limited amount of retroactive post allowances as well. Am. Compl. ¶ 16. Soon thereafter, Ms. Adde submitted another post allowance request form. This 2005 post allowance request form finally brought Ms. Adde the post allowance she had formally sought in 2001, although the retroactive post allowance period did not cover any of her service in Belgium before October 2004. The parties agree that Ms. Adde's supervisor asked for a limited amount of retroactive post allowances because he was concerned about asking for funds from previous fiscal years. Pl.'s Mem. at 5. Although the record is not especially informative on this point, it does not appear that the issue of retroactive post allowances for Ms. Adde's first years in Belgium was actively pursued at this time.

In 2006, NIH informed Ms. Adde of the overpayment issue, and plaintiff, in return, raised the issue of the incomplete payment of retroactive post allowances.Pl.'s Ex. 7 at 3 (filed December 7, 2009). Plaintiff's counsel again raised the retroactive post allowance claim in early 2007. Def.'s Resp. Att. 1 at 3-4. The response received from NIH stated that

"[i]f it is determined that [NIH] did not pay to Ms. Adde all of the post allowance required to be paid since she was posted to Belgium, [NIH] stipulates that it shall pay all unpaid post pay (this is, of course, subject to setoff for any other location pay allocation [NIH] might have paid to her)."

Am. Compl. ¶ 21.

It took some time, however, for the government to recognize that NIH owed Ms. Adde additional retroactive post allowances. Defendant, once litigation began in this court, denied that Ms. Adde had a right to retroactive post allowances for the period of time from April 23, 2001 to October 3, 2004. Am. Answer ¶¶ 26-29. The government finally conceded the strength of Ms. Adde's post allowance claim once discovery was complete and the parties had presented their cross-motions for summary judgment.

III. Overpayment Counterclaim and Post Allowance Claim are Overlapping But Not Identical

The court notes that there is some overlap in quantum between the government's overpayment counterclaim and plaintiff's post allowance claim. Indeed, the parties were repeatedly encouraged to settle this case to avoid protracted litigation. Settlement negotiations were not successful, however.

There is also some temporal overlap between the government's overpayment counterclaim and plaintiff's post allowance claim. Some of the years Ms. Adde was overpaid were years she did not receive a post allowance. It should be noted that the overpayment period, however, extended for more years than the unpaid post allowance period.

The surface similarities of these overlapping claims should not cloud the analysis, however. Although the subject of both claims is the correct compensationdue Ms. Adde, the claims are distinct and independent. The overpayment counterclaim recoups excess salary that the government has the right to recover from Ms. Adde. The post allowance claim recovers allowances that the government should have paid Ms. Adde but did not. Although the judgment on the post allowance claim was used as a setoff against the judgment on the overpayment counterclaim, and, indeed, the government is the only party with a net monetary judgment at the end of the day, this does not necessarily mean that the judgment in favor of plaintiff on her post allowance claim was worthless. It is possible that Ms. Adde would have owed more money to the government, perhaps $50,000 rather than $16,000, had she not received a judgment in her favor on her post allowance claim, and had the government refused, despite its promise to pay her all required post allowances, to provide her retroactive post allowances for the period of time from April 23, 2001 to October 3, 2004.⁶

DISCUSSION

I. Attorney Fees Under the Back Pay Act

The Back Pay Act, 5 U.S.C. § 5596 (2006) (BPA), provides in relevant part that:

An employee of an agency who, on the basis of a timely appeal or an administrative determination (including a

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