UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD

Transcription

1 UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD 85 M.S.P.R. 198 MATHEW G. GENSBURG, Appellant, DOCKET NUMBER SF B-1 v. DEPARTMENT OF VETERANS AFFAIRS, Agency. DATE: February 23, 2000 Charles A. Bonner, Esquire, Sausalito, California, and Michael J. Kinane, Esquire, Oakland, California, for the appellant. Angela Benzo Norman, Esquire, Oakland, California, for the agency. BEFORE Ben L. Erdreich, Chairman Beth S. Slavet, Vice Chair Susanne T. Marshall, Member OPINION AND ORDER 1 The appellant petitions for review of the initial decision issued on July 7, 1999, that denied the motion for attorney fees filed by the appellant's nonattorney representative, granted the motion for attorney fees filed by the appellant's attorney representatives, and awarded fees to the appellant's attorney representatives in the amount of $70, The appellant's non-attorney representative has filed a motion to intervene. For the reasons discussed below, we find that the petition does not meet the requirements for review at 5 C.F.R , and we therefore DENY it. We also DENY the motion to intervene.

2 2 We REOPEN this case on our own motion under 5 C.F.R , however, and AFFIRM the initial decision as MODIFIED by this Opinion and Order. BACKGROUND 2 The agency removed the appellant from the WS-10 position of Maintenance Mechanic Supervisor for unauthorized possession and removal of government property, diesel fuel and six half-sheets of plywood, and unauthorized use of a government vehicle. Initial Appeal File (IAF), Tab 6, Subtabs 4b, 4j. The appellant petitioned for appeal and requested a hearing. IAF, Tab 1. Prior to the hearing, the appellant had a non-attorney representative; during the hearing and thereafter, the appellant had attorney representatives. Initial Attorney Fee File (IAFF), Tab, Tab 9. Based on the evidence of record, including the hearing, the administrative judge found that the agency did not prove the charges of unauthorized possession and removal of diesel fuel and unauthorized use of a government vehicle. IAF2, 1 Tab 26 (Initial Decision (ID) at 10-13). The administrative judge found, however, that the agency proved the charge of unauthorized possession and removal of the plywood. Id. (ID at 13-14). The administrative judge found that a reasonable penalty for the sustained charge was a 90-day suspension. Id. (ID at 17-18). The initial decision became the final decision of the Board when neither party petitioned for review. 5 C.F.R Subsequently, the appellant filed a motion for attorney fees in the amount of $212,220. Initial Attorney Fee File (IAFF), Tab 1. The agency filed a response in opposition to the motion. IAFF, Tab 8. The administrative judge found that the appellant failed to show that fees were warranted in the interest of justice and denied the motion. IAFF, Tab 11. The appellant petitioned for review. Fee 1 The administrative judge dismissed the petition for appeal without prejudice to refiling to allow the parties to complete discovery. IAF, Tab 11. The appellant timely refiled his appeal. The record in the refiled appeal is designated as IAF2.

3 3 Petition for Review File (FRF), Tab 1. The Board granted the petition and found that fees were warranted in the interest of justice on the ground that the agency's action was clearly without merit. Gensburg v. Department of Veterans Affairs, 80 M.S.P.R. 187, (1998). The Board remanded the appeal to the regional office for a determination of the reasonableness of the fees requested. Id. 4 On remand, the administrative judge carefully assessed the appellant's motion. Remand Initial Attorney Fee File (RIAFF), Tab 16. She denied the appellant's request for $49,500 in fees for the consulting service of Linda L. Harper, his nonattorney representative, because she was not an attorney, no attorney-client relationship existed between her and the appellant, and she was not under the supervision of the appellant's attorneys. RIAFF, Tab 16 (Remand Fee Addendum Initial Decision (RFAID) at 3-6). She also denied the appellant's request for $1500 in fees to his criminal attorney because an attorney is not entitled to fees incurred as a result of a criminal investigation. Id. (RFAID at 6). Additionally, she found, based on the fee agreement between the appellant and his attorneys, that the customary billing rate for the appellant's two attorneys, Charles A. Bonner, Esquire, and Michael J. Kinane, Esquire, was $150 per hour. Id. (RFAID at 6-21). She found that the hours reasonably devoted to the case were for Bonner and for Kinane and that costs totaled $ Id. Thus, she awarded fees in the amount of $70, Id. (RFAID at 21). 5 The appellant has now filed a petition for review. Remand Fee Petition for Review File (RFRF), Tab 4. Harper has filed a motion to intervene. RFRF, Tab 1. The agency has filed responses in opposition to the petition for review and the motion to intervene. RFRF, Tabs 6, 7. ANALYSIS The appellant did not show that the administrative judge was biased. 6 In his petition, the appellant asserts that the administrative judge was biased in her conduct of the attorney fee proceedings. In support of this assertion, he

4 4 alleges that, during proceedings below, she stated that the appellant should not be entitled to fees, that his attorneys were abusing the system, that private counsel were overpaid, that the appellant would not get interest on any fees, and that the appellant should accept the agency's settlement offer. In making a claim of bias or prejudice against an administrative judge, a party must overcome the presumption of honesty and integrity that accompanies administrative adjudicators. Oliver v. Department of Transportation, 1 M.S.P.R. 382, 386 (1980). The party must show that the bias constitutes extrajudicial conduct rather than conduct arising in the administrative proceedings before him. Ali v. Department of the Army, 50 M.S.P.R. 563, 568 (1991). The fact that an administrative judge ruled against a party is not sufficient evidence to show bias. Rolon v. Department of Veterans Affairs, 53 M.S.P.R. 362, (1992). 7 Here, the appellant simply alleges that the administrative judge acted improperly, without pointing to any evidence in the record or submitting an affidavit or any other evidence to support his own unsworn statements. RFRF, Tab 1. This does not suffice to rebut the presumption of the administrative judge's honesty and integrity. Lee v. U.S. Postal Service, 48 M.S.P.R. 274, 282 (1991); Oliver, 1 M.S.P.R. at 386. In addition, neither the appellant nor his attorneys raised any objection on the record below to the administrative judge's alleged conduct of the proceedings. A claim of bias must be raised as soon as practicable after a party has reasonable cause to believe that grounds exist for an administrative judge's disqualification on such basis. Lee, 48 M.S.P.R. at A party cannot wait until after the adjudication is complete to object for the first time. Id. 8 Moreover, there is no showing that the administrative judge had prejudged the attorney fee motion. The administrative judge's comment that the appellant should accept the agency's settlement offer was made in her role as adjudicator; it was not extrajudicial conduct. It constituted simply her honest appraisal of the appellant's likelihood of success if he elected to pursue adjudication of his fee

5 5 motion. See Cranfield v. Tennessee Valley Authority, 44 M.S.P.R. 384, 388 (1990) (the administrative judge's comments to the parties reflecting the weaknesses of their cases did not reflect any prejudgment or preconceived notions as to the appeal). 9 To the extent that the administrative judge commented on the propriety of the Board's decision finding that fees were warranted in the interest of justice and on the merits of the appellant's fee request, the appellant has not shown that such comments establish bias. See Lee, 48 M.S.P.R. at Even assuming arguendo that the administrative judge commented on her original decision and the Board's interpretation thereof, such comments do not establish that she was biased. Cleavenger v. Department of the Air Force, 29 M.S.P.R. 228, 230 (1985); Wilson v. Department of Agriculture, 28 M.S.P.R. 472, 476 (1985). The appellant did not show that the administrative judge erred in finding that his case was routine. 10 The appellant disputes the administrative judge's finding that his case was not complex. In support of his assertion that his case was complex, he states that the charges against him followed a major investigation by the agency, and the case has been prosecuted by two agency attorneys, with reliance on other agency attorneys. The extent of the agency's effort in the removal action does not necessarily support a conclusion that the case was complex. 11 Complex issues of discrimination may cause a case to be complex. Beall v. Department of the Interior, 68 M.S.P.R. 231, 234 (1995). Here, although the appellant alleged that the agency's action was discriminatory, he presented no evidence to substantiate his claim. Thus, the appellant's allegations of discrimination provide no basis here to find that the case was complex. Id. Further, the fact that the appellant was a supervisor provides no basis to find that the case was particularly complex. Koenig v. Department of the Air Force, 55 M.S.P.R. 155, 160 (1992).

6 6 12 The administrative judge who heard the appeal on the merits is in the best position to determine its complexity at the attorney fee stage. Beall, 68 M.S.P.R. at 234. As the administrative judge noted, this case involved a 1 1/2 day hearing, seven witnesses, no prehearing or post hearing briefs, no novel issues of law in the charges of unauthorized possession and removal of government property, and unauthorized use of a government vehicle, and no evidence on the appellant's allegations of discrimination. Under these circumstances, we agree with the administrative judge that these facts, without more, reveal a routine, noncomplex case. The appellant has not shown the existence of additional facts that would support a determination that this is a complex case. Thus, the appellant has not established error in the administrative judge's finding that this case was routine. In any event, even if this case were not routine because of the effort expended by the agency on it, the appellant has not shown that the agency's effort required his attorneys to expend time on the case that entitled him to fees in addition to those awarded by the administrative judge. The administrative judge correctly awarded the appellant's attorneys an hourly rate based on the fee agreement with the appellant. 13 In his petition, the appellant also requests the Board to award him the full amount of fees that he requested below. To the extent that this request constitutes an assertion that the administrative judge erred in finding that the attorneys' hourly rate was $150, his assertion is without merit. Where it is agreed that a specific fee be paid to attorneys 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. O'Donnell v. Department of the Interior, 2 M.S.P.R. 445, 455 (1980), overruled in part on other grounds, Koch v. Department of Commerce, 19 M.S.P.R. 219 (1984). This presumption, however, is rebuttable by convincing evidence that the agreed-upon rate was not based on marketplace considerations and that the attorneys' rate for

7 7 similar work was customarily higher, or by showing that he had agreed to such a rate only because of the employee's reduced ability to pay and that his customary fee for similar work was significantly higher. Andrus v. General Services Administration, 56 M.S.P.R. 681, (1993); Ishikawa v. Department of Labor, 26 M.S.P.R. 258, 260 (1985); Gerlach v. Federal Trade Commission, 20 M.S.P.R. 60, 63 n.4 (1984). The appellant here, however, presented no evidence to rebut the presumption that the fee agreement determined the maximum hourly rate. Thus, the administrative judge properly found that the hourly rate for both attorneys was that specified in the fee agreement, i.e., $150 per hour. IAFF, Tab 3 (Exhibit B). The appellant did not show that the administrative judge erred in reducing the hours claimed in the fee motion. 14 The appellant asserts generally that the administrative judge erred in reducing hours. The administrative judge who decided the appeal is in the best position to evaluate the documentation submitted by an appellant's attorneys in determining the reasonableness of the attorney fees requested and the quality of legal representation provided by them. Evans v. Office of Personnel Management, 67 M.S.P.R. 357, 360 (1995). Here, the administrative judge carefully scrutinized the hours and billing rates claimed by the appellant's attorneys in the motion for fees. She properly reduced hours for duplication and padding, and imposed fair standards of efficiency and economy of time. RIAFF, Tab 16 (RFAID at 11-20); Kling v. Department of Justice, 2 M.S.P.R. 464, (1980). Further, she gave concise and specific reasons for doing so, identifying such hours and articulating reasons for their elimination. Id. She properly reduced the appellant's attorneys' hours by subtracting the hours spent performing clerical and paralegal tasks, such as mailing, faxing, and billing, because counsel failed to establish the community billing practice for non-legal work. White v. Department of the Treasury, 45 M.S.P.R. 475, 482 (1990). She

8 8 also properly reduced their hours by subtracting the hours spent on unemployment and equal employment opportunity matters because counsel failed to show that such matters were related to the appellant's success in this appeal, Manley v. Department of the Air Force, 67 M.S.P.R. 467, 472 (1995), and she properly subtracted the hours spent on reviewing the appellant's physician's evaluation of the appellant's medical condition and discussions with the appellant's criminal attorney because these matters were irrelevant to this appeal, Richards v. Department of Justice, 67 M.S.P.R. 46, 49 (1995); White, 45 M.S.P.R. at 482. Additionally, she properly reduced the appellant's attorneys' hours by subtracting the hours that counsel spent on a petition for enforcement in which the appellant did not prevail, Lizut v. Department of the Army, 42 M.S.P.R. 3, 8 (1989), by subtracting the hours that were insufficiently documented, Social Security Administration v. Balaban, 33 M.S.P.R. 309, 324 (1987), and by subtracting hours that duplicated other counsel's work, Casali v. Department of the Treasury, 81 M.S.P.R. 347, 354 (1999). Finally, she properly reduced the hours claimed for performing certain tasks, such as reviewing a standard Board order and the order summarizing the prehearing conference, when the hours claimed were on their face unreasonable and excessive. Naekel v. Department of Transportation, 32 M.S.P.R. 497, 502 (1987), modified on other grounds by 845 F.2d 976 (Fed. Cir. 1988). The appellant's contention that these hours were improperly "cut," without specification of which hours and why they allegedly should be compensated, does not raise a serious question as to the numerous specific findings of the administrative judge warranting review of the entire record. RIAFF, Tab 16 (RFAID at 11-20). See Downes v. Department of Transportation, 36 M.S.P.R. 207, 211, aff'd, 865 F.2d 269 (Fed. Cir. 1988) (Table); Weaver v. Department of the Navy, 2 M.S.P.R. 129, (1980), review denied, 669 F.2d 613 (9th Cir. 1982) (per curiam). 15 In addition to his general allegation that the administrative judge erred in reducing hours, the appellant specifies that the administrative judge erred in

9 9 reducing as duplicative hours for multiple viewings of audio and video tapes made by the agency during the investigation of the appellant and in cutting the 2 hours that Bonner and Kinane discussed Kinane's deposition of an agency witness, Maureen Humphreys. The administrative judge reduced the time Bonner billed for reviewing the audio and video tapes from 34.7 hours to 18 hours because Bonner had reviewed the audio and video tapes twice and had reviewed the transcript of the audio tape. RIAFF, Tab 16 (RFAID at 13-14). The administrative judge's award reduced the hours requested for reviewing the audio and video tapes by less than half. Id. This allowed full review once and rereview of significant parts. The appellant has not shown that the administrative judge's action failed to impose fair standards of efficiency and economy of time. The administrative judge allowed the 2.5 hours that Bonner billed for review of the text of Humphreys' deposition. RIAFF, Tab 16 (RFID at 17, n.23). This allowed both attorneys to be apprised of the content of the deposition. The appellant did not show that the administrative judge erroneously cut the 2-hour telephone conference regarding the deposition as duplicative. The administrative judge properly did not award fees to the appellant's nonattorney representative. 16 The appellant asserts that the administrative judge erred in not awarding the fee for Harper's time representing the appellant before the Board up to the hearing, when the appellant hired Bonner and Kinane. The Board will not award attorney fees to a non-attorney representative who is not under the supervision of an attorney because an attorney-client relationship does not exist. Horton v. U.S. Postal Service, 7 M.S.P.R. 232, 235 (1981); cf. Shimotsukasa v. U.S. Postal Service, 78 M.S.P.R. 679, 682 (1998) (fact that a non-attorney is not a party to an attorney-client relationship does not preclude recovery of fees for his services; existence of an attorney-client relationship between the appellant and the attorney, by whom the non-attorney is employed, triggers the possibility of an

10 10 award of fees for the non-attorney's services). Here, the record is clear that Harper was a non-attorney. IAFF, Tab 9. She held herself out as a consultant and expert in the area of federal employment matters in her own right. Id. Additionally, there is no evidence that Harper worked under the supervision of any attorney, including Bonner or Kinane. She owned and operated her own business representing federal employees in employment disputes. The appellant hired Bonner and Kinane separately and independently from Harper. IAFF, Tab 3 (Exhibit B). 17 Further, the appearances of Bonner and Kinane in this appeal provide no basis to award fees to Harper. Under the American Bar Association's Code of Professional Responsibility, attorneys may not split fees with laymen or lay organizations or enable them to engage in the unauthorized practice of law. Sailor-Nimocks v. Office of Personnel Management, 66 M.S.P.R. 438, 441 (1995) (citing National Treasury Employees Union v. Department of the Treasury, 656 F.2d 848 (D.C. Cir. 1981). This rule acts as a safeguard against the imposition of incompetent and irresponsible law practice on the public and is based on the fact that non-attorneys are not held to the same standards of competence regarding the law as are attorneys and are not subject to the ethical standards applicable to attorneys. Id. Thus, a non-attorney operating a business for the purpose of representing federal employees is precluded from receiving attorney fees based on the requirement that clients contract with an attorney when the matter is set for a Board hearing, and an attorney enters an appearance at the hearing stage of the Board appeal proceedings. The administrative judge properly denied Harper's request for fees. Harper's motion to intervene. 18 In considering whether to grant a motion for intervention, the Board will review all of the circumstances surrounding the presentation of the motion, including the rights of the parties to the case and the effect upon those parties of

11 11 acceptance of the motion to intervene. Boulware v. Office of Personnel Management, 74 M.S.P.R. 159, 162 (1997). Here, the overriding consideration in determining whether to grant Harper's motion to intervene is the right of the appellant to file a fee motion. Brown v. Department of Health & Human Services, 42 M.S.P.R. 291, 299 (1989); Allen v. U.S. Postal Service, 2 M.S.P.R. 420, 427, 436 (1980). The appellant's fee motion and petition for review of the initial decision awarding fees have fully represented Harper's interest in a fee. Harper recognized this by adopting "by reference" parts of the appellant's petition for review alleging that the administrative judge erred in cutting Harper's fee. Thus, there is no basis to grant Harper's motion to intervene. ORDER 19 We ORDER the agency to pay the attorneys of record $70, in fees. 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)). 20 We also ORDER the agency to tell the appellant and the attorneys 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 attorneys to provide all necessary information that the agency requests to help it carry out the Board's Order. The appellant and the attorneys, if not notified, should ask the agency about its progress. See 5 C.F.R (b). 21 No later than 30 days after the agency tells the appellant or the attorneys that it has fully carried out the Board's Order, the appellant or the attorneys may file a petition for enforcement with the office that issued the initial decision on this appeal, if the appellant or the attorneys believe that the agency did not fully carry out the Board's Order. The petition should contain specific reasons why the appellant or the attorneys believe the agency has not fully carried out the Board's

12 12 Order, and should include the dates and results of any communications with the agency. See 5 C.F.R (a). 22 This is the final decision of the Merit Systems Protection Board in this appeal. Title 5 of the Code of Federal Regulations, section (c) (5 C.F.R (c)). NOTICE TO THE APPELLANT REGARDING YOUR FURTHER REVIEW RIGHTS You have the right to request the United States Court of Appeals for the Federal Circuit to review this final decision. 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 The court must receive your request for review no later than 60 calendar days after your receipt of this order. If you have a representative in this case, and your representative receives this order before you do, then you must file with the court no later than 60 calendar days after receipt by your representative. 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). You may read

13 13 this law as well as review other related material at our web site, FOR THE BOARD: Washington, D.C. Robert E. Taylor Clerk of the Board