NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
SHERMAN HOWARD,
Petitioner
v.
DEPARTMENT OF THE AIR FORCE,
Respondent
______________________
2015-3233
______________________
Petition for review of the Merit Systems Protection
Board in No. DA-0752-09-0172-A-3.
______________________
Decided: December 16, 2016
______________________
MARSHALL DECEDRIL WHITE, Law Office of Marshall
D. White, San Antonio, TX, argued for petitioner.
VITO SALVATORE SOLITRO, Commercial Litigation
Branch, Civil Division, United States Department of
Justice, Washington, DC, argued for respondent. Also
represented by BENJAMIN C. MIZER, ROBERT E.
KIRSCHMAN, JR., BRYANT G. SNEE.
______________________
2 HOWARD v. AIR FORCE
Before PROST, Chief Judge, REYNA, and CHEN, Circuit
Judges.
REYNA, Circuit Judge.
Mr. Howard appeals a final decision of the Merit Sys-
tem’s Protection Board (“Board”) that eliminated a sub-
stantial amount of his claimed attorney’s fees. The
Board’s determination to reduce the attorney’s fees Mr.
Howard claimed was arbitrary and capricious, not in
accordance with law, and unsupported by substantial
evidence. Therefore, we vacate and remand for further
proceedings consistent with this opinion.
BACKGROUND
This appeal concerns a motion for attorney’s fees in-
volving a long dispute over adverse employment action
taken against Mr. Howard by the Department of the Air
Force. Mr. Howard was removed from his position as an
auditor in the Air Force in 2008. The Board initially
upheld the removal despite acknowledging that the
deciding official relied on an aggravating factor to justify
removal that was not mentioned in the notice of proposed
removal given to Mr. Howard. To remedy the deciding
official’s error, the Board conducted its own analysis,
found that removal was within the bounds of reasonable-
ness, and affirmed the agency’s action.
When Mr. Howard appealed that decision to this
court, the government moved to remand the case to the
Board for further proceedings in light of our holding in
Ward v. U.S. Postal Service, where we explained that due
process violations occur when an agency’s removal deci-
sion is based on factors not included in the notice of
proposed removal. 634 F.3d 1274, 1281 (Fed. Cir. 2011).
We granted the motion to remand. Howard v. Dep’t. of the
Air Force, 452 F. App’x. 965 (Fed. Cir. 2011).
On remand, in April 2012, the Board reversed the Air
Force’s removal of Mr. Howard. Howard v. Dep’t of the
HOWARD v. AIR FORCE 3
Air Force, 118 M.S.P.R. 106 (2012). In that decision, the
Board ordered the Air Force to comply with several direc-
tives, including, among other things, reinstatement and
back pay with interest. After attempting to implement
the Board’s instructions, the Air Force notified Mr. How-
ard on July 5, 2012 that it was in full compliance with the
Board’s order.
On July 20, 2012, Mr. Howard filed a Petition for En-
forcement (PFE) with the Board’s Denver field office
raising eight claims of noncompliance. In response, the
agency acknowledged that it was not in full compliance
and provided further relief. Mr. Howard, however, disa-
greed as to whether the agency was in compliance with
the Board’s order to reinstate him to his former position
with back pay. Regarding reinstatement, the agency
maintained that it was appropriate to place Mr. Howard
on administrative leave pending another removal action
initiated against him. As for back pay, the agency took
the position that Mr. Howard would have to seek the
additional back pay he sought from the Department of
Labor’s Office of Workers’ Compensation Program. The
parties also disagreed as to whether the agency accurately
calculated the required interest payment on the back pay
that the agency had already conceded was due.
An administrative judge (AJ) granted Mr. Howard’s
PFE in part. The AJ agreed with Mr. Howard that the
agency erred in calculating the interest on his back pay.
The agency complied with the AJ’s decision regarding
interest on pack pay, which resulted in Mr. Howard
receiving additional compensation. However, the AJ
found that the Board’s reinstatement order was mooted
by the agency’s subsequent removal action and that the
agency was in compliance with the Board’s back pay
order.
Mr. Howard filed a Petition for Review (PFR) at the
Board, arguing that the AJ erred with respect to his
4 HOWARD v. AIR FORCE
reinstatement and back pay claims. On March 25, 2014,
the Board issued a final decision denying Mr. Howard’s
PFR. On May 12, 2014, Mr. Howard filed a motion for
attorney’s fees relating to services that his counsel,
Mr. White, performed in connection with the PFE and
PFR.
THE BOARD’S DECISION
Considering the motion for fees, the AJ determined
that Mr. Howard was a prevailing party, that attorney’s
fees were warranted in the interest of justice, and that
Mr. White’s fees were billed at a reasonable rate.
P.A. 6−9. The AJ applied the two-step framework for
determining a reasonable attorney’s fee award, as estab-
lished in Hensley v. Eckerhart, 461 U.S. 424 (1983).
Applying Hensley step one, the AJ calculated the lode-
star, an approximation presumed to reflect a reasonable
fee award, by multiplying Mr. White’s hourly rate by the
number of hours he reasonably billed. In doing so, the AJ
eliminated as unreasonable fifty-six of the 106 hours
claimed. Applying Hensley step two, the AJ made a
downward adjustment of twenty-eight hours to the lode-
star based on the fact that Mr. Howard was unsuccessful
on certain claims at the PFR stage. Finally, the AJ
eliminated an additional four hours for filings made on
July 22, 2014 and August 9, 2014. P.A. 11−14.
The AJ’s initial decision became the Board’s final de-
cision on July 27, 2015. Mr. Howard appeals. We have
jurisdiction to review the Board’s final decision pursuant
to 28 U.S.C. § 1295(a)(9).
STANDARD OF REVIEW
The Federal Circuit will set aside a final Board deci-
sion upon finding that it was (1) arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with
law; (2) obtained without procedures required by law,
rule, or regulation having been followed; or (3) unsupport-
HOWARD v. AIR FORCE 5
ed by substantial evidence. 5 U.S.C. § 7703(c); Hayes v.
Dep’t of the Navy, 727 F.2d 1535, 1537 (Fed. Cir. 1984).
DISCUSSION
The Board’s decision was erroneous in three parts.
First, the reduction of four hours for the filings
Mr. Howard made on July 22, 2014 and August 9, 2014 is
not supported by substantial evidence. As the govern-
ment concedes, the record reveals that Mr. Howard did
not request fees for time spent on those filings. P.A. 40.
As a result, there is no evidence to support the elimina-
tion of these hours. See 5 U.S.C. § 7703(c)(3).
Second, the Board’s determination that fifty-six of the
160 hours requested were unreasonable is arbitrary and
capricious, because it fails to sufficiently explain its
rationale for the reductions. For example, after admitting
that the PFE involved issues that “were mathematically
complex and required considerable analysis,” the Board
nonetheless reduced the hours claimed for preparing and
filing the PFE from fifty hours to twenty. P.A. 11. In
support of the reduction the Board determined that: “I
find that 50 hours for preparing and filing a PFE that
amounted to just 14 pages was not reasonable given Mr.
White’s experience.” P.A. 11.
Some documents are short because they contain little
content; others are short because the author has taken
the time and effort necessary to concisely convey the
complex ideas therein. The Board has broad discretion to
determine that an attorney of Mr. White’s experience
spent an unreasonable amount of time preparing a docu-
ment, but the document’s length, on its own, cannot be
the Board’s only explanation for doing so. 1 There must be
1 The Board’s decision also mentions that Mr.
White unreasonably billed time for clerical tasks associat-
ed with electronically filing the PFE. But there is no
6 HOWARD v. AIR FORCE
some nexus between the time spent preparing a document
and the content of that document. 2
Third, when applying Hensley step two, the Board
made a downward adjustment to the lodestar on the basis
that Mr. Howard did not obtain all the relief he requested,
which is contrary to Supreme Court precedent. As this
court thoroughly explained in Bywaters v. United States,
670 F.3d 1221, 1228−30 (Fed. Cir. 2012), post-Hensley
Supreme Court decisions cabin the discretion to adjust
the lodestar based on results obtained. Indeed, Bywaters
makes clear that a downward reduction to the lodestar
should only occur in rare and exceptional cases and a fee
award may not be adjusted based on a factor that is
already subsumed within the lodestar. See id. at
1228−31; see also Perdue v. Kenny, 559 U.S. 542, 552−54
(2010). The Board may exclude from the fee award hours
Mr. Howard spent litigating an unsuccessful claim, Hens-
ley, 461 U.S. at 441, but to do so, it must either explain
why the case is rare and exceptional (if applying an
adjustment to the lodestar) or exclude those hours when
calculating the lodestar. See Bywaters, 670 F.3d at 1231;
see also Perdue v. Kenny, 559 U.S. 542, 552−54 (2010).
Here, the Board did neither. It calculated the appro-
priate lodestar to account for the result Mr. Howard
obtained. Yet, the Board’s decision does not contain any
explanation as to how this matter concerns a rare and
exceptional case. Therefore, its downward reduction to
the lodestar was not in accordance with law.
indication of how many of the fifty-six disallowed hours
were associated with those clerical tasks. See P.A. 11−12.
2 The Board relied upon “the same reasons” to re-
duce the hours associated with four other filings by a total
of twenty-six hours. P.A. 12.
HOWARD v. AIR FORCE 7
For those three reasons, we vacate and remand for
further proceedings consistent with this opinion.
VACATED AND REMANDED
COSTS
Costs to petitioner.