NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition
is not citable as precedent. It is a public record.
United States Court of Appeals for the Federal Circuit
04-3211
JOSEPH P. CARSON,
Petitioner,
v.
DEPARTMENT OF ENERGY,
Respondent.
___________________________
DECIDED: March 11, 2005
___________________________
Before MICHEL, Chief Judge, RADER, and SCHALL, Circuit Judges.
RADER, Circuit Judge.
Joseph P. Carson prevailed in three individual right of action (IRA) appeals
before the Merit Systems Protection Board (Board) and sought an award of attorney
fees and costs under 5 U.S.C. § 1221(g)(1) and (2). See Carson v. Dep’t of Energy,
Nos. AT-1221-96-0948-A-2, AT-1221-98-0250-A-2 & AT-1221-98-0623-A-2 at 2 (MSPB
Feb. 20, 2001) (Initial Decision). In the Initial Decision, Administrative Judge Miller
awarded Mr. Carson $5,880 to one of Mr. Carson’s attorneys, Ronald Zabel, in lieu of
the $66,300 in fees requested. Id., slip op. at 10 & 14. Administrative Judge Miller
found that the balance of Mr. Zabel’s fees were not reasonable because the work
performed to incur those fees related to a case filed in a federal district court and did not
significantly contribute to Mr. Carson’s success before the Board. Id., slip op. at 10-13.
The Initial Decision became final on February 2, 2004, under 5 C.F.R § 1200.3(b).
Carson v. Dep’t of Energy, Nos. AT-1221-96-0948-A-2, AT-1221-98-0250-A-2 & AT-
1221-98-0623-A-2 at 1 (MSPB Feb. 2, 2004) (Final Decision). Because substantial
evidence supports the Board’s findings that some of Mr. Zabel’s fee requests are not
reasonable, this court affirms.
I.
Mr. Carson prevailed on IRA appeals filed in 1996, 1997, and 1998, alleging that
the agency had retaliated against him for disclosures he had made that were protected
under 5 U.S.C. § 2302(b)(8). See Final Decision, Separate Opinion of Neil A McPhie,
slip op. at 1 (McPhie Opinion). The third IRA appeal concerned Mr. Carson’s
reassignment. See id. Approximately two months before filing his third IRA appeal, Mr.
Carson filed a claim in the United States District Court for the District of Columbia
alleging that the reassignment violated his First Amendment rights. See id. The action
at the district court was dismissed as moot after Mr. Carson prevailed in his IRA appeals
before the Board. See id., slip op. at 2. Mr. Carson had six attorneys work on his IRA
appeals and his district court action. Initial Decision, slip op. at 3.
Due to the different actions and the number of attorneys working for Mr. Carson,
Administrative Judge Miller informed Mr. Carson
that his attorneys should submit specific billing statements detailing: (1)
the nature and substance of each entry with emphasis on the purpose of
the legal services performed; (2) a statement from each attorney as to
whether the legal services claimed was [sic] provided predominantly for
the federal court action as distinguished from the Board proceedings; and
(3) a statement . . . explaining how the work claimed by the attorneys who
were not-of-record [in the Board proceeding] contributed to his successful
efforts before the Board in the hearing concluded in July, 1998.
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Id., slip op. at 5. Mr. Zabel did not participate in any of the proceedings before the
Board. Id., slip op. at 10.
Administrative Judge Miller addressed Mr. Zabel’s requests for fees and found
that the bulk of Mr. Zabel’s work related to the district court proceeding and did not
significantly contribute to Mr. Carson’s success before the Board. Id., slip op. at 11-14.
Specifically, Administrative Judge Miller found that Mr. Zabel’s hours billed for
“mediation,” preparing draft declarations for Mr. Carson, drafting a letter to Magistrate
Judge Facciola, and preparation for a “court hearing” all primarily addressed the action
in the district court and did not further the proceedings before the Board. Id., slip op. at
11-12. Administrative Judge Miller also denied Mr. Zabel’s fees for work on an amicus
brief that was never submitted. Id., slip op. at 12. Mr. Zabel’s fees for “a strategy
conference about proceeding before MSPB before District Court action resumes” were
also denied because Mr. Zabel did not explain how the strategy meeting contributed to
the success before the Board. Id. Finally, Administrative Judge Miller found that the
32.1 hours Mr. Zabel worked on preparing his fee petition was excessive and denied
fees for all but eight hours of that request.
II.
This court must affirm any agency action, findings, or conclusions not found to
be: (1) arbitrary or capricious, an abuse of discretion, or otherwise not in accordance
with the law; (2) obtained without procedure required by law, rule, or regulation having
been followed; or (3) unsupported by substantial evidence. 5 U.S.C. § 7703(c) (1996);
Hayes v. Dep’t of Navy, 727 F.2d 1535, 1537 (Fed. Cir. 1984).
04-3211 3
Mr. Carson argues that the Board improperly ruled that Mr. Zabel’s fees were not
attorney fees. The Initial Decision of the Board, however, clearly treated Mr. Zabel’s
fees as attorney fees. See Initial Decision, slip op. at 10 (addressing Mr. Zabel’s fee
requests under the heading “Attorney fees for Ron Zabel, Esquire”). Substantial
evidence supports the Board’s finding that Mr. Zabel’s fees are attorney fees but that
those fees are not reasonable for the reasons summarized supra.
Mr. Carson also argues that Mr. Zabel’s fees should be awarded as “other
reasonable costs incurred” or “consequential damages” under 5 U.S.C. § 1221(g)(1)
and (2).1 This court rejected this argument when raised by Mr. Carson in a related
appeal. This court determined that § 1221(g) expressly provides for the recovery of
legal costs separate from “other reasonable costs” or “consequential damages.” Carson
v. Dep’t of Energy, 64 Fed. Appx. 234, 239-40 (Fed. Cir. 2003).2 Consequently, this
1
5 U.S.C. § 1221(g)(1) and (2) state:
(1) (A) If the Board orders corrective action under this section, such
corrective action may include—
(i) that the individual be placed, as nearly as possible, in the position
the individual would have been in had the prohibited personnel practice
not occurred; and
(ii) back pay and related benefits, medical costs incurred, travel
expenses, and any other reasonable and foreseeable consequential
changes.
(B) Corrective action shall include attorney's fees and costs as
provided for under paragraphs (2) and (3).
(2) If an employee, former employee, or applicant for employment is the
prevailing party before the Merit Systems Protection Board, and the
decision is based on a finding of a prohibited personnel practice, the
agency involved shall be liable to the employee, former employee, or
applicant for reasonable attorney's fees and any other reasonable costs
incurred.
2
Although Carson v. Department of Energy, 64 Fed. Appx. 234 (Fed. Cir.
2003), is a non-precedential opinion, Mr. Carson was the appellant in that proceeding
and is thus bound by the decision under Fed. Cir. R. 47.6(b).
04-3211 4
court adheres to its prior ruling and rejects this argument for the same reasons this
court rejected Mr. Carson’s earlier argument.
Because substantial evidence supports the Board’s findings that Mr. Zabel’s fees
did not further Mr. Carson’s proceedings before the Board or were otherwise
unreasonable, the Board’s decision is affirmed.
04-3211 5