DOCKET NUMBERS: SF0752920509-A-1, SF0752920777-A-1

DATE: Oct. 13, 1993

Rolando S. Bonggat, pro se.
Jenny L. McTeer, San Diego, CA, for agency.

Before ERDREICH, Chairman, PARKS, Vice Chairman, and AMADOR, Member.


The appellant has petitioned for review of an initial decision that denied part of his motion for attorney fees. For the reasons set forth below, we DENY the appellant's petition for review but REOPEN the appeal on our own motion under 5 C.F.R. 1201.117, AFFIRMING the initial decision AS MODIFIED by the Opinion and Order.


On February 16, 1993, the Board issued an Opinion and Order in which it reversed the following agency actions: (1) Reassignment of the appellant from the position of Housing Manager, GS-9, to the position of Budget Analyst, GS-9; and (2) separation of the appellant from the position of Budget Analyst, GS-9. See Petition for Review File 1 (PFRF 1), Tab 6. The Board based its decision on a finding that the agency had engaged in reprisal against the appellant for his whistleblowing activity. See id. The appellant then filed a motion for attorney fees claiming $1367.54 as reimbursement for attorney fees and other costs incurred in connection with his appeal. See Addendum Appeal File (AAF), Tabs 1, 3. The agency stipulated that the appellant met the requirements for an award of attorney fees for $675 of the total amount requested. See AAF, Tab 4. However, it also made a motion to deny: (1) Reimbursement for $492.22 in personal, out-of-pocket expenses (copy/clerical services, typing/word processing, facsimile costs, postage) claimed by the appellant; and (2) recovery of $200.00 for legal services performed after the appellant received full relief in his Board appeal. See id.

The administrative judge found that the applicable statute did not permit recovery for the personal, out-of-pocket expenses incurred by the appellant. See Addendum Initial Decision (AID) at 2-3. He also determined that the appellant had not given any justification for the legal services performed after the Board's final decision, and he disapproved an award for this portion of the total amount claimed. See AID at 2. Finally, he found that, while the appellant had personally filed the motion for attorney fees and had already paid for the fees at issue, the total fee award of $675.00 had to be paid directly to the appellant's attorneys and not to the appellant. See id. at 3.

In his petition for review, the appellant argues that the administrative judge erred in denying the fees described above and contends that the fee award should be paid to him and not to his attorneys. See Petition for Review File 2 (PFRF 2), Tab 1. He also requests that the agency issue a report describing its efforts to comply with the Board's final decision on the merits. See id. The agency has responded in opposition to the petition for review. See PFRF 2, Tab 3.1


The appellant correctly states, see PFRF 2, Tab 1, that the administrative judge prematurely closed the record and issued the initial decision without considering his final submission, see AAF, Tabs 2, 5, 6. The appellant explained in this submission (and repeats on petition for review) that the legal services rendered after the Board's final decision constituted necessary "legal advice and assurance of his decisions regarding the OSC matter, discrimination case, etc." See AAF, Tab 6; PFRF 2, Tab 1.

Fees may be awarded for time spent on a separate and optional, but factually related, proceeding if, among other things, the work performed contributes to the success of a Board proceeding. See Nadolney v. Environmental Protection Agency, 30 M.S.P.R. 561, 565 (1986). The legal services performed by the appellant's attorney for purposes of a discrimination case and a matter involving the Office of Special Counsel (OSC), see PFRF 2, Tab 1, could not have contributed to the success of an already concluded Board proceeding. The appellant's argument thus does not establish his entitlement to the fees claimed here. See Nadolney, 30 M.S.P.R. at 565. The administrative judge's premature closing of the record thus did not affect the ultimate result and constitutes harmless error. See Earel v. United States Postal Service, 47 M.S.P.R. 165, 168 (1991) (premature closing of record in attorney fees appeal held to be harmless error); Panter v. Department of the Air Force, 22 M.S.P.R. 281, 282 (1984).

As noted above, the administrative judge found that an employee who prevails on a Whistleblower Protection Act (WPA) claim based on a finding of a prohibited personnel practice cannot recover for out-of-pocket expenses he directly incurred. See AID at 2-3. In making that finding, he correctly stated the Board's holding on the issue in Wiatr v. Department of the Air Force, 50 M.S.P.R. 441, 451-52 (1991). We have reopened this appeal in order to reconsider that holding.

The applicable statute here provides that, where an appellant prevails on a WPA claim based on a finding of a prohibited personnel practice, the agency is liable to the appellant for "reasonable attorney fees and any other reasonable costs incurred" in pursuing the WPA complaint before the Board. See 5 U.S.C. 1221(g)(1). The use of the conjunction "and" between fees and costs in the quoted language plainly indicates two separate entitlements for the prevailing appellant. See Sutherland Statutory Construction (hereinafter "Sutherland") 46.01 at 83 (5th ed. 1992) (words in a statute should be given their common and approved usage). In Wiatr, the Board recognized that the legislative history of 5 U.S.C. 1221(g) does not explain whether the phrase "any other reasonable costs incurred" allows a prevailing appellant to recover costs other than those incurred on his behalf by counsel. See Wiatr, 50 M.S.P.R. at 451-52.

Nevertheless, the Board concluded that a Joint Explanatory Statement published in the Congressional Record regarding 5 U.S.C. 1221(g)(1) was dispositive. See id. at 452, citing 135 Cong.Rec. H749 (daily ed. Mar. 21, 1989) (Joint Explanatory Statement); 135 Cong.Rec. S2784 (daily ed. Mar. 16, 1989) (Joint Explanatory Statement). The Board noted that, in that Statement, Congress referred to the substantial case law developed by the Board and the courts on what constitutes "reasonable attorney fees." See id. The Board then reviewed its applicable precedent on reasonable attorney fees, which held that an appellant is not entitled to reimbursement for expenses directly incurred by him in connection with the pursuit of a Board appeal; only an appellant's counsel can recover for out-of-pocket costs incurred by him on the appellant's behalf. See Wiatr, 50 M.S.P.R. at 452, citing Social Security Administration, Department of Health and Human Services v. Balaban, 39 M.S.P.R. 622, 625-26 (1989), and Bennett v. Department of the Navy, 699 F.2d 1140, 1145 (Fed.Cir.1983). The Board applied this construction of what constitutes "reasonable attorney fees" to 5 U.S.C. 1221(g) and found that out-of-pocket costs incurred by a prevailing appellant were not reimbursable. See id. at 452-53.

Upon reexamination, we find this construction flawed. The fact that the Board and the courts have defined "reasonable attorney fees" to include some out-of-pocket expenses incurred by counsel on an appellant's behalf suggests that the phrase "and any other reasonable costs" in 5 U.S.C. 1221(g) should have a different meaning than that given it by Wiatr. If Congress had intended the meaning assigned by Wiatr to the phrase about costs, the phrase would be superfluous, because the phrase about fees has already been construed by the Board and the courts to include costs incurred by an attorney. The construction in Wiatr of 5 U.S.C. 1221(g) thus is contrary to an elementary rule of statutory construction and cannot be sustained. See Sutherland 46.06 at 119-20 (effect must be given, if possible, to every word, clause, and sentence of a statute, so that no part will be inoperative or superfluous). As noted above, to give effect to the phrase "and any other reasonable costs," it must constitute a separate entitlement for a prevailing appellant. Therefore, since the phrase itself does not suggest any limited or restrictive meaning, we find that it includes costs directly incurred by an appellant who prevails on a WPA claim. The holding in Wiatr on this issue thus is overruled.2

The out-of-pocket costs claimed by the appellant total $492.47 and include the following: $68.22 in copying costs and clerical services; $283.25 in word processing services; $34.00 in facsimile costs; and $107.00 in postage. See AAF, Tab 1. The appellant certified below that these costs were incurred during the pursuit of his Board appeal and that the amount of the costs was reasonable; he also submitted supporting documentation. See AAF, Tabs 1, 3 . The agency has not alleged either below or on petition for review that the amount claimed was unreasonable. See AAF, Tab 4; PFRF 2, Tab 3. Therefore, we find that the costs claimed by the appellant are reasonable and should be awarded to him.

The appellant's remaining contentions on petition for review lack merit. The administrative judge properly concluded that attorney fee awards must be paid directly to counsel and not to the parties who pay their fees. See AID at 3; Jensen v. Department of Transportation, 858 F.2d 721, 724 (Fed.Cir.1988). Finally, the appellant requests that the agency submit a written report detailing its efforts to comply with the Board's final decision; he submits a copy of a letter to the agency containing the same request. See PFRF 2, Tab 1. The issue of compliance with the Board's final decision on the merits is not properly before the Board here but instead must be raised in a petition for enforcement filed with the regional office. See 5 C.F.R. 1201 .182; Lee v. United States Postal Service, 48 M.S.P.R. 670, 672 (1991).


We ORDER the agency to pay Thomas Gill, Esq., $600.00 in fees, and to pay Timothy Karen, Esq., $75.00 in fees; we ORDER the agency to pay the appellant $492.47 in costs. The agency must complete this action within 20 days of the date of this decision. See generally 5 U.S.C. 1204(a)(2).

We also ORDER the agency to inform the appellant and the attorneys of all actions taken to comply with the Board's order and the date on which it believes it has fully complied. See 5 C.F.R. 1201.181(b). We ORDER the appellant and the attorneys to provide all necessary information that the agency requests in furtherance of compliance. The appellant and the attorneys should, if not notified, inquire as to the agency's progress. Id.

Within 30 days of the agency's notification of compliance, the appellant and/or the attorneys may file a petition for enforcement with the regional office to resolve any disputed compliance issue or issues. The petition should contain specific reasons why the appellant and/or the attorneys believe that there is insufficient compliance, and should include the dates and results of any communications with the agency about compliance. See 5 C.F.R. 1201.182(a).

This is the final order of the Merit Systems Protection Board in this appeal. 5 C.F.R. 1201.113(c).


You have the right to request the United States Court of Appeals for the Federal Circuit to review the Board's final decision in your appeal if the court has jurisdiction. See 5 U.S.C. 7703(a)(1) . 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 30 calendar days after receipt of this order by your representative, if you have one, or receipt by you personally, whichever receipt occurs first. See 5 U.S.C. 7703(b)(1).

For the Board:

1. Although the agency titles its submission a cross petition for review, it does not challenge the findings on which the administrative judge based his addendum initial decision, and the submission thus is properly characterized as a response to the petition for review. See Nixon v. Department of the Navy, 51 M.S.P.R. 624, 626 (1991), aff'd, 972 F.2d 1354 (Fed.Cir.1992) (Table).
2. We also note that the Board has previously awarded out-of-pocket costs to a prevailing appellant where the provisions of the law under which they were requested were properly construed to allow it. In Chin v. Department of the Treasury, 55 M.S.P.R. 84, 86 (1992), the Board held that expenses personally incurred by an appellant could be awarded under 5 U.S.C. 7701(g)(2), which authorizes payment of attorney fees in accordance with standards prescribed under section 706(k) of the Civil Rights Act of 1964 (42 U.S.C. 2000e-5(k)).