UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
2024 MSPB 1
Docket No. AT-0752-15-0064-A-1
Kristopher D. Kelly,
Appellant,
v.
Tennessee Valley Authority,
Agency.
January 5, 2024
Jennifer Morton , Esquire, and Pat Kelly , Knoxville, Tennessee, for the
appellant.
Jennifer L. Grace , Knoxville, Tennessee, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
OPINION AND ORDER
¶1 The agency has filed a petition for review and the appellant has filed a cross
petition for review of the addendum initial decision, which granted the
appellant’s motion for attorney fees. For the reasons discussed below, we DENY
the agency’s petition for review; GRANT the appellant’s cross petition for
review; AFFIRM the addendum initial decision in part and VACATE it in part;
MODIFY the administrative judge’s computation regarding the number of hours
spent by the appellant’s attorneys and award for costs; and REMAND the appeal
for further adjudication consistent with this Opinion and Order.
2
BACKGROUND
¶2 Effective September 11, 2014, the agency removed the appellant from his
position as a Senior Nuclear Security Officer (NSO) at the Tennessee Valley
Authority Watts Bar Nuclear Plant, based on a charge of failure to meet the
requirements of the Senior NSO position due to medical restrictions. Kelly v.
Tennessee Valley Authority, MSPB Docket No. AT-0752-15-0064-I-1, Initial
Decision (Sept. 9, 2015). The appellant filed a Board appeal challenging the
removal action, and the administrative judge issued an initial decision reversing
the removal and finding that the agency discriminated against the appellant based
on his disability. Id.
¶3 Following the issuance of the initial decision, on September 30, 2015, the
appellant signed a “Retainer agreement for [F]ederal MSPB administrative
process,” whereby he agreed to have his attorney and her associate represent him
in his pending Board appeal. Kelly v. Tennessee Valley Authority, MSPB Docket
No. AT-0752-15-0064-A-1, Attorney Fee File (AFF), Tab 1 at 24-26. The
agreement provided that the appellant would pay his attorney a discounted rate of
$300 per hour and her associate a rate of $250 per hour. Id. at 24. The agreement
further provided that, should the appellant receive a monetary settlement or
recovery, his attorney would reimburse the appellant any fees that he paid and
seek payment for attorney fees from the agency at the “current market rate for
attorneys’ fees in this area.” Id.
¶4 Thereafter, the agency filed a petition for review of the September 9, 2015
initial decision, to which the appellant filed a response. Kelly v. Tennessee Valley
Authority, MSPB Docket No. AT-0752-15-0064-I-1, Petition for Review File,
Tabs 1, 8. On June 16, 2016, the Board issued a final order affirming the
administrative judge’s decision to reverse the appellant’s removal. Kelly v.
Tennessee Valley Authority, MSPB Docket No. AT-0752-15-0064-I-1, Final
Order (June 16, 2016).
3
¶5 On August 12, 2016, the appellant’s attorney filed the instant motion in
connection with the removal action. AFF, Tab 1. The administrative judge
granted the appellant’s motion for fees, finding that the appellant was the
prevailing party, he incurred fees pursuant to an existing attorney-client
relationship, and that an award of fees is warranted in the interest of justice.
AFF, Tab 13, Addendum Initial Decision (AID) at 2-4. Regarding the
reasonableness of the fees, the administrative judge found that the $350 hourly
rate for the appellant’s attorney is the prevailing community rate. AID at 4-7.
However, she reduced the prevailing hourly rate for the attorney’s associate from
$300 to $250. Id. The administrative judge found that both attorneys spent a
total of 102.95 hours on the appellant’s case from September 28, 2015, through
August 12, 2016. AID at 8. Specifically, the administrative judge found that the
appellant’s attorney had spent 52.25 hours on the case and that the associate had
spent 50.80 hours. AID at 8-9. Based on the above, she found that the total
amount of fees recoverable by the appellant was $30,987.50. AID at 9. The
administrative judge declined to consider the appellant’s second supplement for
attorney fees, finding that it was untimely filed after the close of the record
below. AID at 8 n.5; AFF, Tab 10. Additionally, the administrative judge found
that the appellant is entitled to claimed costs in the amount of $932.24. AID
at 9-10. The administrative judge ordered the agency to pay attorney fees and
costs in the amount of $31,590.50. 1 AID at 10.
¶6 The agency has filed a petition for review. Petition for Review (PFR) File,
Tab 6. The appellant has filed a response and a cross petition for review. PFR
File, Tab 11. The agency filed a reply to the appellant’s response to the petition
for review and a response in opposition to the appellant’s cross petition for
review. PFR File, Tabs 16-17.
1
This total does not include a hotel cost of $329.24, which the administrative judge
awarded but neglected to include in her calculations. AID at 10.
4
ANALYSIS
The administrative judge erred in failing to apply the attorney fee standard under
5 U.S.C. § 7701(g)(2), and we modify the addendum initial decision accordingly.
¶7 In finding that fees were warranted, the administrative judge applied the
attorney fee standard under 5 U.S.C. § 7701(g)(1), which authorizes the award of
fees under an interest of justice standard. AID at 1-4. However, in cases in
which prohibited discrimination under 5 U.S.C. § 2302(b)(1) has been found, the
award of attorney fees is properly made under 5 U.S.C. § 7701(g)(2). See Kelly v.
Department of the Navy, 43 M.S.P.R. 430, 433 (1990). That provision states that,
if an employee “is the prevailing party and the decision is based on a finding of
discrimination prohibited under section 2302(b)(1) of [Title 5], the payment of
attorney fees shall be in accordance with the standards prescribed under section
706(k) of the Civil Rights Act of 1964 (42 U.S.C. § 2000e-5(k)).” 5 U.S.C.
§ 7701(g)(2). In turn, 42 U.S.C § 2000e-5(k) states that a court “in its discretion,
may allow the prevailing party . . . a reasonable attorney’s fee . . . and the United
States shall be liable for costs . . . .” The Supreme Court has interpreted this
provision to entitle a prevailing plaintiff to an award of attorney fees “in all but
special circumstances.” Christiansburg Garment Co. v. Equal Employment
Opportunity Commission, 434 U.S. 412, 417 (1978); see E.E.O.C. v. Harris
Farms, Inc., EEOC Appeal No. CIV F 02-6199 AWI LJO, 2006 WL 1028755,
at *1 (E.D. Cal. 2006); Agonafer v. Rubin, 35 F. Supp. 2d 300, 305 (S.D.N.Y.
1998); Perez v. Federal Bureau of Investigation, 707 F. Supp. 891, 927
(W.D. Tex. 1988).
¶8 Thus, the Board has authority under 5 U.S.C. § 7701(g)(2) to award fees in
accordance with the broader standards prescribed under the Civil Rights Act of
1964. See Kelly, 43 M.S.P.R. at 433; see also Raney v. Federal Bureau of
Prisons, 222 F.3d 927, 935 (Fed. Cir. 2000) (noting that section 7701(g)(2)
“broadens the scope of the reasonable attorney fee recovery in those cases”).
Fees may be awarded by the Board under section 7701(g)(2) if the appellant is the
5
prevailing party, but there is no application of the interest of justice standard to
such a fee award. Kelly, 43 M.S.P.R. at 433. Instead, as noted above, the Board,
“in its discretion,” may award a reasonable attorney fee. Under this broader
standard, all costs may also be awarded. Id. at 433 n.3.
¶9 Here, the Board found that the agency’s removal action resulted from
disability discrimination. Kelly v. Tennessee Valley Authority, MSPB Docket No.
AT-0752-15-0064-I-1, Final Order (June 16, 2016). We find, therefore, that
5 U.S.C. § 7701(g)(2) is the section of the statute applicable to the question of
whether the appellant is entitled to an award of attorney fees and that the
administrative judge erred in requiring the appellant to establish that a fee award
is otherwise warranted in the interest of justice. 2 Cason v. National Aeronautics
and Space Administration, 46 M.S.P.R. 401, 403-04 (1990); Kelly, 43 M.S.P.R.
at 433. We therefore vacate the administrative judge’s analysis on the interest of
justice standard.
The appellant remains the prevailing party, and we find that he is entitled to an
award of attorney fees.
¶10 While the agency does not otherwise dispute the appellant’s prevailing party
status, it argues that he would no longer be the prevailing party if the Board
grants its request, included in the petition for review in Kelly v. Tennessee Valley
Authority, MSPB Docket No. AT-0752-15-0064-C-1, to set aside or reverse the
Final Order in the underlying appeal. PFR File, Tab 6 at 5, 27. We have not
granted that request, however, and the Board’s decision in Kelly v. Tennessee
Valley Authority, MSPB Docket No. AT-0752-15-0064-I-1, finding that the
agency committed disability discrimination, remains final. Moreover, we find no
special circumstances present in this case that weigh against exercising our
2
On review, the agency contends that, because the ruling in the appellant’s favor was
based on his discrimination claim, the administrative judge erred by not applying the
“stricter” attorney fee standards and costs under 5 U.S.C. § 7701(g)(2), rather than
§ 7701(g)(1). PFR File, Tab 6 at 3-6. While we agree that 5 U.S.C. § 7701(g)(2)
applies in this case, as set forth above, the Board has found it is a broader standard than
that under 5 U.S.C. § 7701(g)(1).
6
discretion to award the appellant attorney fees. Thus, the appellant is the
prevailing party for purposes of this attorney fee motion, and we find that he is
entitled to recover fees and costs. Accordingly, we will not disturb the
administrative judge’s finding that the appellant is the prevailing party for
purposes of this attorney fee petition.
We remand the appeal for a determination regarding the current market rates for
the appellant’s attorney and associate attorney.
¶11 Having determined that the appellant is the prevailing party, we now turn to
the reasonableness of the attorney fees request. The computation of a reasonable
attorney fee is the same regardless of whether the award is authorized by 5 U.S.C.
§ 7701(g)(1) or (g)(2). Kelly, 43 M.S.P.R. at 436 n.6; see McGovern v. Equal
Employment Opportunity Commission, 42 M.S.P.R. 399, 412 (1989) (applying the
framework of the Board's case law under section 5 U.S.C. § 7701(g)(1) to an
attorney fees request governed by section 7701(g)(2)). The Board assesses the
reasonableness of an attorney fees request by using two objective variables: the
customary billing rate and the number of hours reasonably devoted to the case.
Casali v. Department of the Treasury, 81 M.S.P.R. 347, ¶ 9 (1999). To establish
the appropriate hourly rate, the attorney fee motion must be accompanied by a
copy of the fee agreement, if one exists, as well as evidence of the attorney’s
customary billing rate for similar work. Id. The customary billing rate may be
established by showing the hourly rate at which the attorney actually billed other
clients for similar work during the period for which the attorney seeks fees, or, if
the attorney has insufficient billings to establish a customary billing rate, by
providing affidavits from other attorneys in the community with similar
experience stating their billing rate for similar clients. Id. The relevant market
rate for determining the reasonableness of the attorney fee request is the forum of
the litigation. Id. The burden of establishing the reasonableness of the hours
claimed in an attorney fee request is on the party moving for an attorney fees
award. Id., ¶ 13.
7
¶12 When it is agreed that a specific fee be paid to an attorney for legal services
rendered on behalf of an appellant in a Board case, the Board presumes that the
amount agreed upon represents the maximum reasonable fee which may be
awarded. Krape v. Department of Defense, 97 M.S.P.R. 430, ¶ 12 (2004).
Nevertheless, this presumption is rebuttable by convincing evidence that the
agreed-upon rate was not based on marketplace considerations and that the
attorney's rate for similar work was customarily higher, or by showing that she
had agreed to such a rate only because of the employee's reduced ability to pay
and that her customary fee for similar work was significantly higher. Id.
¶13 Here, the appellant submitted a fee agreement that provided that, if he
should receive a monetary settlement or recovery, the appellant’s attorney would
reimburse the appellant for any fees that he paid, and she would seek payment for
attorney fees from the agency at the “current market rate.” AFF, Tab 1 at 24-26.
We interpret the retainer agreement as a whole. See Restatement (Second) of
Contracts § 202(2) (1981). Under the fee agreement in this case, there are two
separate billing rates contingent on the outcome of the case: if the appellant
prevails, the billing rate would be the prevailing community rate; if he does not,
the billing rate would be the discounted $300 per hour rate. AFF, Tab 1 at 24-26.
Whether the appellant would be responsible for the attorney fees would only be
known if he is the prevailing party. Id. The appeal is now resolved, and the
appellant is the prevailing party. Therefore, under the terms of the retainer
agreement, the fees sought would be at the current market rate.
¶14 We agree with the administrative judge that the appellant presented
sufficient evidence to rebut the presumption that the agreed-upon rate in the fee
agreement represents the maximum reasonable hourly fee for the appellant’s
attorney. See Krape, 97 M.S.P.R. 430, ¶¶ 12-16. The appellant’s fee agreement
reflects that his attorney fees would be reduced for him if he were to lose his
appeal and pay the fees himself. AFF, Tab 1 at 24-26, Tab 7 at 48-56. Further,
the record includes copies of similar fee agreements that his attorney has had with
8
other clients that all reflect that $350 was her customary hourly fee at that time.
AFF, Tab 7 at 48-56. We find that these documents rebut the presumption that
the amount agreed upon represents the maximum reasonable hourly fee, and we
instead conclude that the customary hourly fee is the relevant rate. See Krape,
97 M.S.P.R. 430, ¶¶ 12-16. We likewise discern no basis for disturbing the
administrative judge’s determination regarding the prevailing rate for the
associate attorney at the time. AID at 7.
¶15 However, the work performed on this case by the appellant’s counsel
occurred between 2015 and 2017, and there has been a significant delay in
adjudication of this motion for attorney fees. As part of our inquiry into the
reasonableness of the attorney fees requested, we must determine whether it is
appropriate to apply current, rather than historic, hourly rates. See Missouri v.
Jenkins ex rel. Agyei, 491 U.S. 274, 282 (1989) (discussing when an enhancement
for delay in payment is warranted as part of a “reasonable attorney’s fee”). The
Supreme Court has held that “interest cannot be recovered in a suit against the
Government in the absence of an express waiver of sovereign immunity from an
award of interest.” 3 In Library of Congress v. Shaw, 478 U.S. 310, 311 (1986),
the Court held that a party prevailing in a Title VII suit against the Government
was not entitled to interest on attorney fees because the provision permitting the
award of attorney fees did not expressly waive sovereign immunity from such
liability. Several years later, in Jenkins, the Court found that an appropriate
adjustment for delay in payment—whether by the application of current rather
than historic hourly rates or otherwise—was within the contemplation of the Civil
Rights Attorney's Fees Awards Act of 1976 (42 U.S.C. § 1988), which provided
3
Applying this “no-interest rule,” the Board in Krape rejected attorney fee
enhancement requests for attorney fees petitions filed pursuant to 5 U.S.C.
§ 7701(g)(1). 97 M.S.P.R. 430, ¶¶ 9-10. Specifically, the Board found that 5 U.S.C.
§ 7701(g)(1) does not explicitly provide for interest on attorney fees. However, the
Board declined to decide whether an enhancement for delay in the payment of attorney
fees was permitted under 5 U.S.C. § 7701(g)(2) when an appellant, such as here, files a
petition for attorney fees as a prevailing party following a decision based on a finding
of discrimination prohibited under 5 U.S.C. § 2302(b)(1). Id. ¶ 10 n.4.
9
for "a reasonable attorney's fee as part of the costs." 4 Subsequently, and
importantly with respect to this case, Congress amended section 114 of the Civil
Rights Act of 1991, to explicitly provide that “the same interest to compensate for
delay in payment shall be available [in actions brought by [F]ederal employees]
as in cases involving nonpublic parties.” 5 See 42 U.S.C. § 2000e-16(d). 6
¶16 In addition to controlling statutory authority, the Equal Employment
Opportunity Commission has awarded enhanced attorney fee billing rates based
4
The Court reasoned that attorney fees awarded under the statute were to be based on
market rates for the services rendered and that compensation received several years
after the services were rendered—as it frequently is in complex civil rights litigation—
is not equivalent to the same dollar amount received reasonably promptly as the legal
services are performed, as would normally be the case with private billings. See
Jenkins, 491 U.S. at 283-84.
5
Following passage of the 1991 amendments to the Civil Rights Act, 42 U.S.C.
§ 2000e-16(d) read as follows:
Section 2000e–5(f) through (k) of this title applicable to civil actions
The provisions of section 2000e–5(f) through (k) of this title, as
applicable, shall govern civil actions brought hereunder, and the same
interest to compensate for delay in payment shall be available as in cases
involving nonpublic parties.
Arguably, on its face, and by its plain language, the availability of interest to
compensate for delay in payment of attorney fees in section 2000e -16(d) appears to
apply only to civil court proceedings. However, the heading of the provision indicates
that it is applicable to several specific statutory provisions, including 42 U.S.C.
§ 2000e-5(k). As noted above, section 2000e-5(k) governs entitlement to attorney fees
when a Board decision is based on a finding of discrimination, pursuant to 5 U.S.C.
§ 7701(g)(2), and section 7701(g)(2) already referred the Board to the standard in
42 U.S.C. § 2000e-5(k) in 1991, when section 2000e-16(d) was amended. Thus, we
find that the amendment of section 2000e-16(d) to allow interest on attorney fee awards
to compensate for delay in payment applies to an award of fees by the Board under
5 U.S.C. § 7702(g)(2). See Parker Drilling Management Services, Ltd. v. Newton ,
139 S. Ct. 1881, 1890 (2019) (concluding that “Congress legislates against the backdrop
of existing law”); Lorillard v. Pons, 434 U.S. 575, 581 (1978) (stating that, when
“Congress adopts a new law incorporating sections of a prior law, Congress normally
can be presumed to have had knowledge of the [administrative or judicial]
interpretation given to the incorporated law, at least insofar as it affects the new
statute”).
6
In Krape, the Board noted that the 1991 amendments to Title VII, which provide for
the same interest to compensate for delay in payment in public sector litigation as in
cases involving nonpublic parties, were enacted in response to the holding in Shaw that
10
on current, as opposed to historic, rates. See Jimenez v. Sebelius, Sec'y,
Department of Health and Human Services, EEOC App. No. 0120083765,
2012 WL 2356788, at *5 (June 12, 2012) (awarding current rather than historic
hourly rates when the complainant established that the agency engaged in
disability discrimination); Mareno v. Department of Veterans Affairs, EEOC
Appeal No. 01943104, 1996 WL 73888, at *3 (Feb. 14, 1996) (reaffirming its
position that the proper customary hourly rate is the reasonable hourly rate in
effect at the time of the award and not at the time the services are provided).
¶17 Based on the foregoing, the Board may award attorney fees under 5 U.S.C.
§ 7701(g)(2) based on current rates at the time of the award, rather than historic
rates. We find that it is appropriate to do so here given the significant delay at
issue. See Jenkins, 491 U.S. at 283 (stating that “compensation received several
years after the services were rendered—as it frequently is in complex civil rights
litigation—is not equivalent to the same dollar amount received reasonably
promptly as the legal services are performed, as would normally be the case with
private billings”). We therefore remand for a finding on the appellant’s
attorneys’ current market rates rather than those that were in effect when the
services were performed. Sowa v. Department of Veterans Affairs, 96 M.S.P.R.
408, ¶ 11 (2004) (recognizing that an administrative judge is in the best position
to evaluate attorney fee requests).
We modify the administrative judge’s calculation regarding the relevant number
of hours expended by the appellant’s attorneys.
¶18 The Board has held that the administrative judge who adjudicated the case
on the merits is in the best position to determine whether the number of hours
expended is reasonable, and, absent a specific showing that the administrative
judge’s evaluation was incorrect, the Board will not second guess it. Wightman v.
Department of Veterans Affairs, 111 M.S.P.R. 109, ¶ 11 (2009). Here, the
interest on attorney fees cannot be recovered in a suit against the government.
97 M.S.P.R. 430, ¶ 10.
11
administrative judge considered the agency’s arguments, reviewed the hours
challenged, and concluded that the billing statements were “sufficiently detailed,
and not duplicative, padded, or representative of ‘block billing.’” AID at 8-9.
On review, the agency continues to challenge the number of hours spent by the
appellant’s attorneys, arguing that the hours claimed are unreasonable and
insufficiently documented. PFR File, Tab 6 at 11-16, 22-26. The agency’s
arguments on review fail to provide a basis for disturbing the administrative
judge’s determination that the hours claimed were reasonable. See Clay v.
Department of the Army, 123 M.S.P.R. 245, ¶ 6 (2016) (declining to disturb the
administrative judge’s findings when the administrative judge considered the
evidence as a whole, drew appropriate inferences, and made reasoned
conclusions).
¶19 Nonetheless, we modify the hours in the administrative judge’s calculation
regarding the number of hours spent by the appellant’s attorneys for the reasons
set forth in the appellant’s cross petition for review. Specifically, the appellant
filed a cross petition for review asserting that the administrative judge’s
addendum initial decision contains two mathematical errors that cost him almost
$4,000 in fees. PFR File, Tab 11. The appellant asserts that the addendum initial
decision contains inadvertent mathematical errors which resulted in the duplicate
reduction of 11.25 hours of his attorney’s billable hours. In particular, the
appellant’s attorney fees motion reflects that his attorney had billed 63.5 hours,
and it states that she had voluntarily reduced her time, reflecting the time she
spent on research. Thus, the appellant contends that the hours for his attorney
already had been reduced to reflect this amount and that the administrative judge
inadvertently reduced, for a second time, the same 11.25 billable hours. PFR
File, Tab 11 at 29. The agency argues that the appellant has failed to show a
math error in the attorney fees calculation. PFR File, Tab 17 at 5.
¶20 The administrative judge found in the addendum initial decision that the
total itemized hours spent by the attorney’s firm on the appellant’s case from
12
September 28, 2015, through August 12, 2016, was 127.50. AID at 7. The
administrative judge then correctly identified the allocation of the hours as 76.70
for his attorney and 50.80 for the associate attorney. AID at 8. The
administrative judge then reduced the billable hours for the appellant’s attorney
to 63.50, noting that the reduced hours were related to the appellant’s compliance
case and not directly related to the petition for review in the underlying appeal.
AID at 8 n.4. The administrative judge then stated that the appellant’s attorney
voluntarily reduced her bill by 11.25 hours for time spent on related research and
proceeded to reduce the hours by this amount, finding that it “appears” that the
total time spent by his attorney preparing the petition for review was 52.25. AID
at 8.
¶21 However, the record shows that the appellant’s attorney voluntarily reduced
her total hours by 11.25 for time spent on research, prior to totaling the hours
requested. AFF, Tab 1 at 16. Indeed, the itemized billing statement indicates
that the original total number of hours worked by his attorney was 87.95 and that
she only billed a total of 76.70 hours. Id. at 23. Thus, the record clearly shows
that the hourly fees for the appellant’s attorney were reduced prior to the total
amount identified being included in the motion for fees. Id.
¶22 Therefore, we agree with the appellant that the administrative judge
inadvertently miscalculated the billable hours. AFF, Tab 1 at 16, 23. We find
that the correct amount of the hours billed by the appellant’s attorney, after the
appropriate reduction of hours spent relating to the compliance case, is 63.50.
We likewise modify the award for costs.
¶23 Regarding the award for costs, the agency contends that the appellant
claimed costs without accounting or proof and asserts that the $525.00 the
appellant paid for an initial consultation with a law firm that was not named in
the motion and who did not provide a receipt or billing statement should not be
reimbursed. PFR File, Tab 6 at 24-26. The agency contends that the
administrative judge improperly considered the appellant’s receipt from this law
13
firm when he submitted it with his reply to the agency’s response below. Id.
However, the record reflects that the appellant did not raise a new argument in his
reply to the agency’s response to the appellant’s motion. AFF, Tab 7 at 17.
Instead, he provided a receipt to support his request, which was in response to the
agency’s argument. AFF, Tab 6 at 9-10, Tab 7 at 17. The agency has shown no
error by the administrative judge in considering this evidence.
¶24 However, we agree with the appellant that the administrative judge made
computational errors in calculating the award for costs, and we modify the
addendum initial decision accordingly. On cross petition for review, the
appellant argues that the administrative judge made a computational error in
summarizing the total amount of fees and costs the agency owed to the appellant.
PFR File, Tab 11 at 29-30. Specifically, the appellant requested a total of
$932.24 in costs to cover expenses, i.e., a legal consultation fee of $525, round
trip bus fare of $78, and hotel accommodations of $329.24, totaling $932.24. Id.
The appellant asserts that, although the administrative judge granted all of the
requested costs, the administrative judge appears to have inadvertently failed to
include the hotel fee of $329.24. Id. at 30. The agency concedes that the
administrative judge did not include the hotel fees in her calculations. PFR File,
Tab 17 at 5. We agree. Accordingly, the fees and costs should total $932.24.
The administrative judge correctly declined to consider the appellant’s
supplemental motion for fees.
¶25 Finally, the appellant argues that the administrative judge erred in failing to
consider and grant his supplemental motion for fees. PFR File, Tab 11 at 30-32.
The appellant admits that the supplemental motion was filed after the close of the
record below, but he requests that the Board waive the filing deadline for the
supplemental motion. Id.; AFF, Tab 10.
¶26 The administrative judge’s August 22, 2016 Acknowledgment Order
specifically stated that “the record will close 40 calendar days from the date of
this Order,” which was October 1, 2016. AFF, Tab 2. The Order also advised the
14
appellant that he “must submit any claim for the time your attorney spent on
preparing this motion for attorney fees with your last submission.” Id. at 2. The
appellant filed his second supplemental motion on November 12, 2016,
approximately 6 weeks after the filing deadline. AFF, Tab 10. The
administrative judge correctly found that this submission was untimely filed with
no showing of good cause for the delay. AID at 8 n.5. Accordingly, we find that
the appellant has shown no error by the administrative judge in not considering
the untimely filed supplemental motion for additional attorney fees. See
Wilson v. U.S. Postal Service, 58 M.S.P.R. 653, 662 n.5 (1993) (declining to
consider the appellant’s supplement to his attorney fees petition when it was
untimely filed, and the appellant did not establish good cause for the delay).
ORDER
¶27 Accordingly, we remand this case for a determination by the administrative
judge on the current market rates for the appellant’s attorney and associate
attorney. On remand, the administrative judge shall allow the parties to submit
evidence and argument on this issue. In analyzing the reasonableness of the fee
award, the administrative judge shall adopt the Board’s findings regarding the
hours expended by the appellant’s attorneys. The administrative judge shall
likewise adopt the Board’s findings on costs.
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.