Willis v. Government Accountability Office

Decision Date17 May 2006
Docket NumberNo. 05-6003.,05-6003.
Citation448 F.3d 1341
PartiesJanice F. WILLIS, Petitioner, v. GOVERNMENT ACCOUNTABILITY OFFICE, Respondent.
CourtU.S. Court of Appeals — Federal Circuit

Janice F. Willis, of Fairfax, Virginia, pro se.

Lincoln Schroth, Senior Attorney, United States Government Accountability Office, of Washington, DC, argued for respondent. With him on the brief were Joan M. Hollenbach, Managing Associate General Counsel and Barbara J. Simball, Assistant General Counsel.

Before BRYSON, LINN, and DYK, Circuit Judges.

Opinion for the court filed by Circuit Judge DYK.

Dissenting opinion filed by Circuit Judge BRYSON.

DYK, Circuit Judge.

Janice F. Willis ("Willis"), an attorney, appeals the decision of the Personnel Appeals Board (the "Board") of the United States Government Accountability Office ("GAO") declining under the fee-shifting provision of the Civil Service Reform Act, 5 U.S.C. § 7701(g)(1), to award the full amount of attorney's fees requested by Willis and her former client Sandra P. Davis ("Davis"). Davis has not appealed. Because Willis lacks standing to contest the Board's decision, we dismiss the appeal.


Willis initially represented Davis, who was employed by GAO, in a proceeding before the Board asserting a number of claims of unlawful conduct by GAO personnel. After discovery and an evidentiary hearing, Davis terminated Willis and retained Nora V. Kelly ("Kelly"). On July 26, 2002, the Administrative Judge issued an initial decision rejecting all but one of Davis' claims — the claim that Davis' performance appraisals had been lowered in a manner inconsistent with GAO's published orders in violation of 5 U.S.C. § 2302(b)(12). The Administrative Judge ruled in Davis' favor on the remaining claim, ordering GAO to increase Davis' performance appraisals and awarding Davis back pay in the amount she would have received had the appraisals been conducted properly. Both GAO and Davis appealed to the full Board; Kelly handled Davis' appeal. The full Board affirmed the initial decision in a final decision issued July 11, 2003.

After issuance of the Board's final decision, Davis filed a request for attorney's fees pursuant to 5 U.S.C. § 7701(g)(1). Davis requested $128,867.17 for (1) 335.25 hours representing the pre-hearing portion of Willis' work, and (2) Kelly's work during the appellate stage of the litigation. Davis declined to request $63,325.00 that Willis billed Davis for Willis' work during the evidentiary hearing because, as Davis explained in her fee request, she viewed the amounts billed as excessive. The Administrative Judge granted Willis' motion to intervene in the proceedings, on the condition that Willis could not request any fees beyond those requested by Davis. Nevertheless, Willis filed a separate fee request that not only supported the amounts claimed by Davis, but also sought fees for Willis' work during the evidentiary hearing, which Davis had expressly declined to request.

The Administrative Judge held that Davis' success qualified her as a "prevailing party" entitled to attorney's fees under the statute. With respect to the claims advanced by both Davis and Willis, the Administrative Judge rejected the contention that Willis' fees should be calculated at an hourly rate of $335.00, which was substantially higher than the $150.00 hourly rate Willis actually charged Davis, and discounted a number of the hours claimed for Willis' work as duplicative, insufficiently documented, or unnecessary. The Administrative Judge reduced the total number of hours Davis claimed for Willis' work by 20 percent because of the inconsistent quality of Willis' pretrial filings and the fact that the majority of Davis' claims were ultimately rejected. The Administrative Judge also rejected Willis' separate request for additional amounts not requested by Davis on the grounds that her additional request violated the express condition in the Administrative Judge's order allowing Willis to intervene, and that "Ms. Willis, who could not be characterized as a `prevailing petitioner' [under the statute and regulations], had no right to file an independent request for attorney's fees." Davis v. U.S. General Accounting Office, Nos. 00-05, 00-08, slip op. at 24 (G.A.O.P.A.B. June 15, 2004). Ultimately, the Administrative Judge awarded Davis $46,345.60 in fees.

Both Davis and Willis appealed to the Board. Davis argued that that the Administrative Judge erred in reducing the amount that she claimed. Willis argued that the Administrative Judge erred in rejecting her separate claim for additional compensation attributable to her work during the evidentiary hearing. In a final decision issued March 2, 2005, the Board affirmed, rejecting Davis' and Willis' contentions and adopting the Administrative Judge's findings of fact and conclusions of law. With respect to Willis' request for additional fees not claimed by Davis, the Board concluded that "Ms. Willis has no independent right to file a Request for Attorney Fees because 4 C.F.R. § 28.89 provides that `the petitioner, if he or she is the prevailing party, may submit a request for the award of reasonable attorney's fees and costs.'" Davis v. U.S. General Accounting Office, Nos. 00-05, 00-08, slip op. at 12 (G.A.O.P.A.B. Mar. 2, 2005).

Willis alone appealed to this court. We have jurisdiction pursuant to 31 U.S.C. § 755(a).


The necessary threshold question in this case is whether Willis has standing to appeal the Board's decision to this court. Willis' primary theory of standing is that she has a right to receive fee payments under the statute separate and apart from her client's right to fees. This theory of standing is essential to Willis' claim for fees for the trial work — fees that were not included in Davis' fee request. Alternatively, Willis may be arguing that she has the right to assert on appeal her client's right to the recovery of fees that were claimed before the Board but not allowed. In either event, we conclude that Willis lacks standing.


We first address Willis' contention that she has standing because she has an independent right to claim fees under the statute. Because Article III standing implicates the court's constitutional authority to adjudicate disputes, it can be neither waived, Boeing Co. v. Comm'r of Patents & Trademarks, 853 F.2d 878, 881 (Fed.Cir.1988), nor assumed, FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 230-31, 110 S.Ct. 596, 107 L.Ed.2d 603 (1990); thus, federal courts have an independent obligation to examine Article III standing even if the issue was not raised by the parties or addressed in the decision below. FW/PBS, 493 U.S. at 230-31, 110 S.Ct. 596; Dowd v. United States, 713 F.2d 720, 726 (Fed.Cir.1983).

Article III standing is required at all stages of federal litigation, including appeals. Korczak v. Sedeman, 427 F.3d 419, 420 (7th Cir.2005); see, e.g., Diamond v. Charles, 476 U.S. 54, 68, 106 S.Ct. 1697, 90 L.Ed.2d 48 (1986); Boeing, 853 F.2d at 880. "[A]n intervenor's right to continue a suit in the absence of the party on whose side intervention was permitted is contingent upon a showing by the intervenor that he fulfills the requirements of Art. III." Diamond, 476 U.S. at 68, 106 S.Ct. 1697 (citations omitted).

To establish Article III standing, Willis must allege that she has suffered an "`injury in fact' — an invasion of a legally protected interest ...." Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (plurality opinion). Because "[t]he actual or threatened injury required by Art. III may exist solely by virtue of statutes creating legal rights, the invasion of which creates standing," standing "often turns on the nature and source of the claim asserted." Warth v. Seldin, 422 U.S. 490, 500, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975) (internal quotation marks omitted). Under the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 701, et seq. (2000), a plaintiff seeking to set aside unlawful agency or executive action may have Article III standing even though he has no direct claim under a substantive statute. See Richard H. Fallon, Jr., et al., Hart and Wechsler's The Federal Courts and the Federal System 154-60, 158 n. 3 (5th ed.2003).

However, a different rule applies where the plaintiff is independently seeking monetary relief and the APA does not apply. In such circumstances, we have held that the plaintiff must be within the class of persons legally protected by the statute under which the individual seeks relief. For example, in Ortho Pharmaceuticals Corp. v. Genetics Institute, Inc., 52 F.3d 1026, 1030-31 (Fed.Cir.1995), we held that nonexclusive patent licensees lack Article III standing to sue for infringement because "economic injury alone does not provide standing to sue under the patent statute .... a licensee must hold some of the proprietary sticks from the bundle of patent rights," otherwise the licensee "suffers no legal injury from infringement and, thus, has no standing ...." See also Intellectual Prop. Dev., Inc. v. TCI Cablevision of Cal., Inc., 248 F.3d 1333, 1345 (Fed.Cir. 2001) ("[A] nonexclusive license ... confers no constitutional standing on the licensee under the Patent Act to bring suit or even to join a suit with the patentee because a nonexclusive (or `bare') licensee suffers no legal injury from infringement.").

Thus, Willis lacks independent standing unless she has a right to claim fees under the statute.


There is no separate attorney's fees statute applicable to proceedings before the GAO Board. However, Congress, in 31 U.S.C. § 753(e)(1), made section 7701(g), which governs the recovery of attorney's fees in actions before the Merit Systems Protection Board, applicable to actions before the GAO Board. Section 753(e)(1) provides that "[t]he [GAO Personnel Appeals] Board shall prescribe regulations ... providing for officer and employee appeals consistent with sections 7701 and 7702 of title...

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