UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ISMAEL R. BRISENO, DOCKET NUMBER
Appellant, SF-0752-13-0014-A-1
v.
DEPARTMENT OF VETERANS DATE: November 20, 2014
AFFAIRS,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Norman F. Nivens, Esquire, Fair Oaks, California, for the appellant.
Camille D. Stroughter, Esquire, Oakland, California, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Anne M. Wagner, Vice Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The agency has filed a petition for review of the addendum initial decision,
which ordered it to pay the appellant $15,411.73 in attorney fees incurred in
connection with the appellant’s petition for enforcement. Generally, we grant
petitions such as this one only when: the initial decision contains erroneous
1
A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the judge’s rulings during either the course of the appeal or
the initial decision were not consistent with required procedures or involved an
abuse of discretion, and the resulting error affected the outcome of the case; or
new and material evidence or legal argument is available that, despite the
petitioner’s due diligence, was not available when the record closed. See Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, and based on the following
points and authorities, we conclude that the petitioner has not established any
basis under section 1201.115 for granting the petition for review. Therefore, we
DENY the petition for review and AFFIRM the initial decision, which is now the
Board’s final decision. 5 C.F.R. § 1201.113(b).
BACKGROUND
¶2 The agency removed the appellant based on allegations of misconduct, and
he appealed his removal to the Board. Initial Appeal File (IAF), Tab 1 at 3-5. On
December 12, 2012, the parties entered into a settlement agreement. IAF, Tab 8.
In exchange for the withdrawal of his appeal and waiver of other claims, the
agency, among other things, agreed to change the appellant’s Standard Form 50
(SF-50) from a removal to a resignation for personal reasons and to pay $2,500 in
attorney fees to the appellant’s attorney within 60 days of the full execution of
the agreement. Id. at 2-3. The administrative judge entered the agreement into
the record for enforcement purposes and dismissed the appeal. IAF, Tab 9, Initial
Decision.
¶3 On March 13, 2013, the appellant filed a petition for enforcement alleging
that the agency had failed to comply with the terms of the settlement agreement.
Compliance File (CF), Tab 1. In particular, he alleged that the agency had not
provided him with either the corrected SF-50 or the payment of attorney fees
3
pursuant to the agreement. Id. at 2-3. During the course of the compliance
proceedings, the appellant submitted a letter stating that the agency had come into
full compliance with the agreement and, as a result, the administrative judge
dismissed the petition as withdrawn. CF, Tab 11, Tab 13, Compliance Initial
Decision. Thereafter, the appellant filed a motion seeking $15,411.73 in attorney
fees relating to his petition for enforcement, which the agency opposed. Attorney
Fees File (AFF), Tabs 1, 3-4, 7. The administrative judge issued an addendum
initial decision granting the motion for attorney fees for the full amount
requested. AFF, Tab 9, Addendum Initial Decision (AID).
¶4 The agency has filed a petition for review. Petition for Review (PFR) File,
Tab 1. The appellant has filed a response in opposition, PFR File, Tab 3, to
which the agency has replied, PFR File, Tab 4.
DISCUSSION OF ARGUMENTS ON REVIEW
¶5 The Board may require an agency to pay reasonable attorney fees incurred
by an employee, including fees incurred during litigation of a petition for
enforcement, if the employee is the prevailing party and the Board determines
that such payment is warranted in the interest of justice. Shelton v.
Environmental Protection Agency, 115 M.S.P.R. 177, ¶ 7 (2010). An appellant
bears the burden of proving his entitlement to attorney fees by showing that:
(1) an attorney-client relationship existed and fees were incurred; (2) he is the
prevailing party; (3) an award of fees is warranted in the interest of justice; and
(4) the fees are reasonable. Id., ¶ 12. To show that he is the prevailing party in
the compliance phase of the proceedings, an appellant must establish that the
agency materially breached the Board’s enforceable order or the settlement
agreement at issue. Id. In cases where the agency complies with the settlement
agreement during the pendency of the petition for enforcement, the appellant is
not required to establish that the agency’s eventual compliance was causally
related to his petition for enforcement in order to establish that he is the
4
prevailing party. Id. Although the appellant bears the ultimate burden of proving
the agency’s noncompliance, the agency bears the burden of producing relevant,
material, and credible evidence of its compliance. Id.
¶6 Here, the administrative judge found that the appellant satisfied his burden
of proving his entitlement to attorney fees in connection with his petition for
enforcement. AID at 3. Specifically, he found that the appellant incurred the
fees through an attorney-client relationship, the appellant was the prevailing
party, an award of fees was warranted in the interest of justice, and the fees
claimed were reasonable. AID at 3-8. In finding that the appellant was the
prevailing party, the administrative judge found that the agency materially
breached the agreement when it failed to properly amend the appellant’s SF-50
pursuant to the terms of the agreement until almost 2 months after a reasonable
deadline and when it failed to make the payment of attorney fees until 4 months
after the agreed-upon deadline in the agreement. AID at 4-5. Although the
agency generally disagrees with these well-reasoned and explained findings on
review, it has set forth no reason to disturb them. 2
¶7 For instance, the agency challenges the administrative judge’s finding that
the fees claimed were reasonable. PFR File, Tab 1 at 5-6, Tab 4 at 6. Its primary
argument in this regard is that the number of hours claimed was excessive
considering much of the fees were incurred in connection with the appellant’s
motion for fees. PFR File, Tab 1 at 5-6. As the administrative judge properly
found, however, the appellant submitted a meticulous and well-supported fee
petition, which not only had to document the time his attorney spent but also had
to show that he was the prevailing party. AID at 6; AFF, Tab 1, Attachment 5.
2
For the first time on review, the agency argues that any breach concerning the SF-50
was not material and that any breach concerning the attorney fee payment was outside
of its control. PFR File, Tab 1 at 2-5. The Board has not considered these arguments
because the agency has not shown that they are based on new and material evidence not
previously available despite its due diligence. See Banks v. Department of the Air
Force, 4 M.S.P.R. 268, 271 (1980).
5
Under these circumstances, we agree with the administrative judge’s finding that
the amount of time preparing the motion for fees, which was approximately
20 hours, was not excessive. AID at 6-7 (citing Harris v. Department of
Agriculture, 33 M.S.P.R. 237, 240 (1987)). The agency also asserts that any
hours claimed after April 18, 2013, which includes time spent preparing the
motion for fees, should be disallowed because the agency claimed that it would
fully comply with the agreement at that time. PFR File, Tab 1 at 6. We agree
with the administrative judge’s reasoning, however, that the appellant was
entitled to have his attorney review the agency’s actions, communicate with him
about it, withdraw the petition for enforcement, review the initial decision
dismissing the petition, and work on the request for fees and that, therefore, the
fees claimed after that time were reasonable. AID at 7-8; AFF, Tab 1,
Attachment 5. Moreover, the agency does not dispute that it did not actually
comply with the attorney fee provision of the agreement until June 2013 and we
find that any fees incurred in securing the attorney fee payment were reasonable.
AID at 5; CF, Tab 11. Accordingly, we find unpersuasive the agency’s argument
that the fees claimed in connection with the petition for enforcement were
excessive.
¶8 The agency also generally argues that any award of fees in this case does
not serve the interest of justice. PFR File, Tab 1 at 7, Tab 4 at 6. As the
administrative judge correctly stated, however, the interest of justice is generally
served by an award of attorney fees when an agency delays its compliance beyond
the dates set in the agreement. AID at 5 (citing Thomas v. U.S. Postal
Service, 87 M.S.P.R. 331, ¶ 15 (2000), overruled on other grounds by
Shelton, 115 M.S.P.R. 177, ¶ 10). Here, we agree with the administrative judge’s
findings that the agency unreasonably delayed its compliance with two material
terms of the agreement until after the appellant filed his petition for enforcement.
AID at 4-5; CF, Tabs 3, 11. The administrative judge also correctly stated that
the interest of justice is generally served by an award of attorney fees when the
6
agency knew or should have known that it would not prevail in an enforcement
proceeding. AID at 5-6 (citing Allen v. U.S. Postal Service, 2 M.S.P.R. 420,
434-35 (1980)). We likewise agree with the administrative judge’s finding that
the agency knew or should have known it was in material breach of the agreement
and would not prevail. AID at 5-6. Therefore, we find that the agency has set
forth no basis to disturb the initial decision.
ORDER
¶9 We ORDER the agency to pay attorney fees in the amount of $15,411.73 by
a check made payable to the appellant’s counsel. The agency must complete this
action no later than 20 days after the date of this decision. See generally Title 5
of the United States Code, section 1204(a)(2) (5 U.S.C. § 1204(a)(2)).
¶10 We also ORDER the agency to tell the appellant and the attorney promptly
in writing when it believes it has fully carried out the Board’s Order and of the
actions it took to carry out the Board’s Order. We ORDER the appellant and the
attorney to provide all necessary information that the agency requests to help it
carry out the Board’s Order. The appellant and the attorney, if not notified,
should ask the agency about its progress. See 5 C.F.R. § 1201.181(b).
¶11 No later than 30 days after the agency tells the appellant or the attorney that
it has fully carried out the Board’s Order, the appellant or the attorney may file a
petition for enforcement with the office that issued the initial decision on this
appeal, if the appellant or the attorney believes that the agency did not fully carry
out the Board’s Order. The petition should contain specific reasons why the
appellant or the attorney believes the agency has not fully carried out the Board’s
Order, and should include the dates and results of any communications with the
agency. See 5 C.F.R. § 1201.182(a).
7
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the United
States Court of Appeals for the Federal Circuit. You must submit your request to
the court at the following address:
United States Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, DC 20439
The court must receive your request for review no later than 60 calendar
days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec.
27, 2012). If you choose to file, be very careful to file on time. The court has
held that normally it does not have the authority to waive this statutory deadline
and that filings that do not comply with the deadline must be dismissed. See
Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
If you need further information about your right to appeal this decision to
court, you should refer to the federal law that gives you this right. It is found in
Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
Dec. 27, 2012). You may read this law as well as other sections of the United
States Code, at our website, http://www.mspb.gov/appeals/uscode.htm.
Additional information is available at the court's website, www.cafc.uscourts.gov.
Of particular relevance is the court's "Guide for Pro Se Petitioners and
Appellants," which is contained within the court's Rules of Practice, and Forms 5,
6, and 11.
If you are interested in securing pro bono representation for your court
appeal, you may visit our website at http://www.mspb.gov/probono for a list of
attorneys who have expressed interest in providing pro bono representation for
Merit Systems Protection Board appellants before the court. The Merit Systems
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Protection Board neither endorses the services provided by any attorney nor
warrants that any attorney will accept representation in a given case.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.