Phillips v. General Services Admin.

Decision Date07 February 1991
Docket Number89-3002,Nos. 90-3107,s. 90-3107
Citation924 F.2d 1577
PartiesA. Marie PHILLIPS, Petitioner, v. GENERAL SERVICES ADMINISTRATION, Respondent. (Two Cases)
CourtU.S. Court of Appeals — Federal Circuit

Peter B. Broida, Cohen, Broida & Associates, Arlington, Va., argued for petitioner.

Stephen McHale, Dept. of Justice, Washington, D.C., argued for respondent. Stuart M. Gerson, Asst. Atty. Gen., David M. Cohen, Director, Terrence S. Hartman, Asst. Director and Reginald T. Blades, Jr., Atty. were on the brief for respondent. Also on the brief was Michael Donawick, Gen. Services Admin., Washington, D.C., of counsel.

Before ARCHER, and LOURIE, Circuit Judges, and SKELTON, Senior Circuit Judge.

PER CURIAM.

In No. 90-3107, A. Marie Phillips petitions for review of the decision of the Merit Systems Protection Board (MSPB or board), No. DC075287A9087 (November 20, 1989), in which Phillips was awarded attorney fees in connection with an appeal to this court but was denied enhancement of the award. In addition to seeking a determination of attorney fees by the MSPB, Phillips' counsel also filed a motion for attorney fees with this court (No. 89-3002), which was stayed at Phillips' request pending the decision of the MSPB. On August 14, 1990, this court entered an order lifting the stay so that Phillips' motion in this court could be considered together with the appeal of the board's decision. In No. 90- 3107, we vacate the decision of the board for lack of jurisdiction insofar as the decision awarded attorney fees for services performed in connection with judicial review of the board's decision and remand. In No. 89-3002, we grant attorney fees for work performed before this court under the Equal Access to Justice Act, but with the limitation on the rate per hour contained in that Act, and we deny any enhancement of the award based on alleged "special factors."

I

The facts underlying this case are set out in our opinion in Phillips v. General Serv. Admin., 878 F.2d 370 (Fed.Cir.1989), and will not be repeated here except to the extent necessary for this opinion. An adverse action was brought against Phillips, a GS-13 Financial Management Analyst of the General Services Administration, for allowing her Diners Club credit card account to become delinquent for over four months, in violation of agreements between the employee, the agency and the Diners Club Company. Also included in the action was a charge of insubordination because of Phillips' conduct with and toward her superior who was endeavoring to get her to pay the past due bill. When Phillips finally paid the delinquent bill, approximately seven months after it was due, the indebtedness charge was dropped, but the insubordination charge remained and she was removed from her job on that charge. On appeal to the board, the punishment was mitigated to a 60-day suspension without pay and a reduction in grade to a budget analyst, GS-12, step 1. Phillips filed an application with the board under the Back Pay Act for attorney fees. After negotiation, a settlement was reached with respect to attorney fees, but the amount paid to Phillips is not shown by the record.

Phillips and her attorney then entered into an attorney fee agreement under which she paid her attorney $2,500 out of the back pay award received in the board proceeding and her attorney agreed to appeal to this court on a contingent fee basis whereby he would receive whatever additional fee that might be allowed to Phillips for his services in this court. When the case came before this court on appeal, the board's decision was reversed and the case was remanded to the board with instructions to cancel the 60-day suspension without pay and the reduction in grade.

Phillips then filed an application (the Application) with the board, under the Back Pay Act, 5 U.S.C. Sec. 5596, and the Civil Service Reform Act (CSRA), 5 U.S.C. Sec. 7701(g), for $19,412.50 in attorney fees primarily for services of her attorney in this court. In addition, Phillips also requested a 100% enhancement of the lodestar fee, or an additional sum of $19,412.50.

In support of the Application, Phillips' attorney submitted documents showing his hourly rate and the number of hours spent on the case in this court. The government did not contest this evidence, and with a minor adjustment the board awarded $19,238 as attorney fees. That amount has been paid by GSA. The board, however, denied the enhancement. Because of that denial, Phillips has appealed the board's attorney fee award in No. 90-3107.

At the same time the Application was being pursued before the board, Phillips filed a motion (the Motion) for attorney fees with this court under the CSRA, 5 U.S.C. Sec. 7701(g), and the Equal Access to Justice Act (EAJA), 28 U.S.C. Sec. 2412. The Motion sought attorney fees in the amount of $17,179 and also included a request for a 100% enhancement. Since we have lifted the stay on this Motion in No. 89-3002, we also consider the related attorney fee requests therein.

II. No. 90-3107

A. The government argues as a threshold matter that the board did not have jurisdiction to award or enhance attorney fees for the services of Phillips' attorney in this court. A jurisdictional matter can be raised at any stage of a judicial proceeding by any party or by the court on its own motion. See Insurance Corp. of Ireland v. Compagnie des Bauxites, 456 U.S. 694, 702, 102 S.Ct. 2099, 2104, 72 L.Ed.2d 492 (1982); United States v. Sherwood 12 U.S. 584, 61 S.Ct. 767, 85 L.Ed. 1058 (1941); Zumerling v. Marsh, 783 F.2d 1032, 1034 (Fed.Cir.1986). We can, and do, question the board's jurisdiction.

It is well settled that the board has no authority under 5 U.S.C. Sec. 7701(g) to award attorney fees for services rendered by an attorney in this court in connection with judicial review of a board decision. Olsen v. Department of Commerce, 735 F.2d 558, 560-61 (Fed.Cir.1984); Covington v. Department of Health and Human Servs., 818 F.2d 838, 840 (Fed.Cir.1987).

In Olsen the court stated:

Section 205 of the Reform Act, 5 U.S.C. Sec. 7701, deals with appeals from an agency to the Board. The Board's authority under subsection (g)(1) to award attorney's fees necessarily relates to fees incurred in those administrative proceedings. Judicial review of Board decisions is governed by section 7703, which contains no provision authorizing the award of attorney's fees incurred in the judicial proceedings. The Board has no authority to award attorney's fees for services rendered in connection with judicial review of a Board decision.

735 F.2d at 560-61 (emphasis added).

The agency in Covington argued that the employee was required to seek attorney fees from the board for the services of his attorney before this court. This argument was rejected:

Nor is Mr. Covington required to seek from the Board his fees and expenses incurred before this court, as the agency argues. The "Board has no authority to award attorney's fees for services rendered in connection with judicial review", established at least since Olsen v. Department of Commerce, Census Bureau, 735 F.2d 558, 561 (Fed.Cir.1984).

818 F.2d at 840.

These decisions make clear that the board's action in this case, to the extent it was based on section 7701(g), must be vacated for lack of jurisdiction.

B. With respect to the Back Pay Act, Phillips argues that this court has never squarely been faced with the question of whether the board may award attorney fees under the Back Pay Act for services provided during judicial review of a case. Section 5596 provides that attorney fees may be awarded when a personnel action against an employee is determined to be unjustified or unwarranted; it is silent, however, as to whether the board or the court may grant such fees for services in this court. 1 Phillips points to 5 C.F.R. Sec. 550.807, 2 the regulations promulgated by the Office of Personnel Management under the Back Pay Act, as authorizing the board to make the initial determination of an attorney fee award under the Back Pay Act for services connected with a judicial proceeding.

This court rejected Phillips' contention in Olsen. In that case, the government similarly argued that the regulations promulgated by the Office of Personnel Management under the Back Pay Act require that an application for attorney fees must first be presented to the board. The court stated:

In our view, the regulations the government cites cover the award of attorney's fees to a party who prevailed before the Board for services there provided. It does not limit our authority to award fees for such services to a party who prevailed before us after losing before the Board.

735 F.2d at 562-63. See also Covington, 818 F.2d at 840.

The court's in banc decision in Gavette reinforces this position of the Olsen court by saying that:

Federal Circuit Rule 20 [now Rule 47.9] contemplates that when attorney fees and expenses are authorized in connection with an appeal, the amount of the award for such fees and expenses shall be determined by this court.

....

The Federal Circuit is in a better position than the board to determine the amount of fees and expenses to be awarded in connection with the appeal to this court, although the board should determine the amount of fees to be awarded in connection with the board proceedings.

Gavette v. Office of Personnel Management, 808 F.2d 1456, 1468 (Fed.Cir.1986) (in banc).

Finally, we note that to interpret the Back Pay Act as Phillips contends would be to invite multiple requests for the same services before this court--a request under the Back Pay Act would go to the MSPB, whereas we have consistently held that an EAJA application is to be filed with this court. See Gavette, 808 F.2d at 1461; Austin v. Department of Commerce, 742 F.2d 1417, 1419 (Fed.Cir.1984); Olsen, 735 F.2d at 562. It is most unlikely, in our view, that Congress intended a bifurcated filing process. We conclude that a request for...

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