Ethel G. Brooks v. Department of Veterans Affairs
Background
- Appellant (Brooks) appealed a one-grade demotion for misconduct; parties settled on June 12, 2015. Settlement expressly excluded attorney fees and provided that any fee claim would be submitted to the MSPB per applicable rules.
- Administrative judge dismissed the appeal as settled; dismissal became final when no petition for review was filed.
- Appellant filed a timely motion for attorney fees seeking $250,000; agency opposed, arguing fees were not warranted in the interest of justice and were unreasonable in amount.
- Administrative judge found appellant was a prevailing party and had an attorney-client relationship, but denied fees because appellant failed to show fees were warranted in the interest of justice; alternatively, the requested fees were grossly excessive.
- Appellant petitioned for review raising (1) recusal, (2) arguments that the agency engaged in retaliation/prohibited personnel practices, (3) gross procedural error, and (4) that the agency should have known it would not prevail. Board denied review and affirmed the initial decision.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether AJ should have recused | AJ showed bias, prejudice, harassment at hearing and during case processing | Motion not in proper affidavit form; appellant waived interlocutory appeal and implicitly agreed AJ decide fees in settlement | Waived and not timely; AJ considered but denial affirmed |
| Whether fees are warranted as retaliation/prohibited personnel practice | Fees warranted because agency retaliated (5 U.S.C. § 2302(b)(1)) | Settlement resolved case; no merits decision finding discrimination | Not raised below; cannot be considered on review; no merits finding exists |
| Whether gross procedural error by agency warrants fees | Agency failed to provide a document (AIB findings) and other procedural errors, so fees warranted | Agency acknowledged a possible procedural error but denied gross error or prejudice | No showing of gross procedural error or prejudice sufficient to warrant fees; speculation insufficient |
| Whether agency knew it would not prevail (bad faith/clearly without merit) | Agency should have known case was weak; thus fees warranted | Agency had a full investigation, witness interviews, and probative evidence supporting charges | Appellant failed to show agency lacked credible probative evidence; fees not warranted in the interest of justice |
Key Cases Cited
- Ward v. U.S. Postal Service, 634 F.3d 1274 (Fed. Cir. 2011) (due-process prejudice standard for procedural errors)
- Shelton v. Office of Personnel Management, 42 M.S.P.R. 214 (1989) (harmful procedural error does not necessarily equal gross procedural error for fee awards)
- Gensburg v. Department of Veterans Affairs, 80 M.S.P.R. 187 (1998) (agency need only possess credible, probative evidence to support action)
- Griffith v. Department of Agriculture, 96 M.S.P.R. 251 (2004) (Board may affirm denial of fees on interest-of-justice ground without reaching reasonableness of requested amount)
- Banks v. Department of the Air Force, 4 M.S.P.R. 268 (1980) (failure to raise an argument below precludes consideration on review)
- Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991) (circuit court enforces filing deadlines for appeals)