Coffman v. Office of Special Counsel & Dep't of Homeland Sec.
| Decision Date | 29 June 2022 |
| Docket Number | CB-1215-14-0012-A-1 |
| Parties | Katherine Coffman, Petitioner, v. Office of Special Counsel and Department of Homeland Security, Respondents. |
| Court | Merit Systems Protection Board |
Debra L. Roth, Esquire and Julia H. Perkins, Esquire, Washington D.C., for the petitioner.
Emilee Collier, Esquire, Rachel A. Venier, Esquire and Mariama Liverpool, Esquire, Washington, D.C., for the Office of Special Counsel.
Lindsay K. Solensky and Philip Carpio, Washington, D.C., for the Department of Homeland Security.
BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member Tristan L. Leavitt, Member Member Leavitt recused himself and did not participate in the adjudication of this appeal.
¶1 The Office of Special Counsel (OSC) has filed a petition for review, and the petitioner has filed a cross petition for review of an addendum initial decision, which granted the petitioner's request for attorney fees and ordered OSC to pay her $490,503.58 in fees and expenses. For the reasons set forth below, we AFFIRM the administrative law judge's (ALJ's) findings that the petitioner is a prevailing party and that fees are warranted in the interest of justice. We MODIFY the initial decision to find that $517,506.19 in attorney fees and expenses were reasonable and incurred in the petitioner's defense of OSC's disciplinary action against her. We GRANT OSC's petition for review, VACATE the ALJ's finding that OSC must pay these fees, and FIND INSTEAD that the Department of Homeland Security (DHS), as the petitioner's employing agency, is obligated to pay these fees pursuant to 5 U.S.C. § 1204(m)(1) (2012). We also DENY the petitioner's cross petition for review.
¶2 On April 8, 2014, OSC filed an eight-count complaint seeking disciplinary action against the petitioner, a Deputy Assistant Commissioner for Human Resources Management at Customs and Border Protection (CBP), DHS, for allegedly violating 5 U.S.C. § 2302(b)(1)(E)[1] and 5 U.S.C § 2302(b)(6)[2] when she participated in CBP's efforts to hire three candidates for career appointments who were favored by the then-recently appointed CBP Commissioner. Special Counsel v. Coffman, 124 M.S.P.R. 130, ¶¶ 2-5 (2017); Special Counsel v. Coffman, MSPB Docket No. CB-1215-14-0012-T-1, Complaint File (CF), Tab 1. After a 6-day hearing, the ALJ found that OSC did not prove any of the counts in its complaint and imposed no discipline on the petitioner. Coffman, 124 M.S.P.R. 130, ¶¶ 6-17; CF, Tab 95. On review, the Board affirmed the ALJ's conclusions that OSC did not prove that the petitioner intentionally committed any unlawful hiring practice and that no discipline was warranted. Coffman, 124 M.S.P.R. 130, ¶¶ 18-57.
¶3 The petitioner timely filed a motion for attorney fees. Coffman v. Office of Special Counsel, MSPB Docket No. CB-1215-14-0012-A-1, Attorney Fees File (AFF), Tab 3. The ALJ issued an order that added DHS as a party to the fee matter. AFF, Tab 6. The ALJ made the following interim findings: (1) the petitioner was a prevailing party; (2) fees should be awarded in the interest of justice; and (3) an award of $475,106.97 was reasonable and incurred by the petitioner in her defense of OSC's disciplinary action. AFF, Tab 19. The ALJ directed the parties to brief the issue of which agency should pay her fees, and the parties responded. AFF, Tab 19 at 13-14, Tabs 24-26.
¶4 The ALJ subsequently issued an addendum initial decision in which he made the following findings of fact: (1) OSC presented no evidence that the petitioner intentionally committed a prohibited personnel practice (PPP) as described in the eight counts in its complaint; (2) the petitioner incurred attorney fees and expenses in the amount of $490,503.58; (3) her attorneys' hourly rates were reasonable; and (4) it was in the interest of justice to award her fees because she was substantially innocent of the charges and OSC knew or should have known that it would not prevail on the merits. AFF, Tab 27, Initial Decision (ID) at 1-14. In pertinent part, the ALJ applied the 2011 version of 5 U.S.C. § 1204(m)(1), which required payment by the "agency involved," and he determined OSC was "solely" responsible for the payment of the petitioner's attorney fees and expenses. ID at 14-18.
¶5 OSC has filed a petition for review, the petitioner and DHS have each filed responses, and OSC has filed a reply. Petition for Review (PFR) File, Tabs 6, 12-13, 19-20. On review, OSC contends that the petitioner was not entitled to an award of fees and expenses in the interest of justice; alternatively, OSC contends that the ALJ erred because 5 U.S.C. § 1204(m)(1) was modified in 2012 to require the petitioner's employing agency to pay fees. PFR File, Tab 6. DHS does not contest that awarding fees is in the interest of justice, but it asserts that OSC should pay. PFR File, Tab 12.
¶6 In her cross petition for review, the petitioner asserts that the Board should apportion the awarded fees between OSC and DHS by applying the 2011 and 2012 versions of section 1204(m)(1) successively. PFR File, Tab 13 at 24-25. The petitioner also supplements her claim for fees and expenses to include an additional $26,692.50 in fees and $310.11 in expenses, which would bring the total attorney fees and expenses to $517,506.19. Id. at 25-27.
¶7 In the initial decision, the ALJ stated that the following requirements must be established in order to grant a request for attorney fees: (1) the petitioner must be a prevailing party; (2) the award of fees must be warranted in the interest of justice; and (3) the fees awarded must be reasonable. ID at 5-6. None of the parties disputes the applicability of this standard to this matter, and we address each of the requirements herein.
We affirm the ALJ's finding that the petitioner was a prevailing party.
¶8 None of the parties challenges on review the ALJ's finding that the petitioner was a prevailing party. ID at 6-7; PFR File, Tab 6 at 15 n.12, Tab 12 at 4-5. Because the ALJ found, and the Board affirmed, that OSC proved none of the eight charges against the petitioner, we affirm the ALJ's conclusion that she is a prevailing party. See Santella v. Special Counsel, 86 M.S.P.R. 48, ¶ 21 (2000) (), aff'd on recons., 90 M.S.P.R. 172 (2001), aff'd sub nom. James v Santella, 328 F.3d 1374 (Fed. Cir. 2003).
We find that the petitioner reasonably incurred $517,506.19 in attorney fees and expenses in her defense of OSC's disciplinary action.
¶9 None of the parties disputes the ALJ's finding that the petitioner incurred attorney fees and expenses in her defense of OSC's disciplinary action and that her attorneys' hourly rates were reasonable. ID at 4, 13-14; PFR File, Tab 6 at 15 n.12, Tab 12 at 4-5. We have reviewed the petitioner's supplemental information, PFR File, Tab 13 at 25-38, and we find that she reasonably incurred an additional $26,692.50 in fees and $310.11 in expenses, thereby bringing the total fee award to $517,506.19.
We agree with the ALJ that the payment of fees is warranted in the interest of justice.
¶10 An attorney fee award by the Board may be warranted in the interest of justice in circumstances such as the following: (1) the agency engaged in a PPP; (2) the agency's action was clearly without merit or wholly unfounded, or the employee was substantially innocent of the charges; (3) the agency initiated the action in bad faith; (4) the agency committed a gross procedural error; or (5) the agency knew or should have known that it would not prevail on the merits. Allen v. U.S. Postal Service, 2 M.S.P.R. 420, 434-35 (1980). None of the parties challenges the ALJ's use of the Allen factors to evaluate whether an award of fees is warranted in the interest of justice in this matter.[3]
¶11 In the initial decision, the ALJ determined that payment of fees and expenses was warranted in the interest of justice because the petitioner was substantially innocent of the charges (Allen factor 2) and OSC knew or should have known that it would not prevail on the merits (Allen factor 5). ID at 8-13. OSC contends that the ALJ's findings regarding Allen factors 2 and 5 were erroneous.[4] PFR File, Tab 6 at 16-34. For the following reasons, we find that the petitioner was substantially innocent of the charges against her, and we affirm the ALJ's conclusion that fees are warranted in the interest of justice.[5]
¶12 In his analysis of the substantial innocence factor, the ALJ noted that OSC did not prove any of the eight charges against the petitioner. ID at 8. The ALJ criticized OSC's decision to call the petitioner as a witness in its case in chief; he noted that OSC's decision to do so resulted in the petitioner "affirmatively disprov[ing]" any intentional violation because her testimony "clearly established that she played no role, either directly or indirectly, in either the creation of the three vacancy announcements, position descriptions, resumes, and/or the . application packages" at issue. Id. The ALJ also found that the petitioner's testimony "established her good faith reliance upon professionals within her agency's human resource function" and "refuted any notion that her actions in the case were motivated by either politics or a desire to grant an unlawful preference." ID at 8-9. The ALJ further found that, "[l]ong before the hearing," OSC knew that agency witness J.N. was "unbiased," had "nearly unassailable credibility," "had direct personal knowledge of many essential facts," and would...
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