Published on March 6, 2014
UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD WASHINGTON REGIONAL OFFICE HAROLD FRANKLIN SHREWSBERRY, SR, Appellant, DOCKET NUMBER DC-3443-12-0288-A-1 v. DATE: February 5, 2014 FEDERAL COMMUNICATIONS COMMISSION, Agency. Adam A. Carter, Esquire, Washington, D.C., for the appellant. Ellen Miles, Washington, D.C., for the agency. BEFORE Anthony W. Cummings Administrative Judge INITIAL DECISION INTRODUCTION On July 26, 2013, Harold Franklin Shrewsberry, Sr., filed a timely motion, pursuant to 5 U.S.C. § 7701(g), for attorney fees incurred in connection with his successful appeal of the agency’s action constructively suspending him from the position he held as Assistant Inspector General -Management, GS-15, in the agency’s headquarters office, from January 9, 2012, through March 5, 2012. Shrewsberry v. Federal Communications Commission, DC-3443-12-0288-I-1 (Initial Decision, April 24, 2013). That decision became final on May 29, 2013. For the reasons set forth below, the motion for fees is GRANTED in part and DENIED in part.
2 ANALYSIS AND FINDINGS To establish entitlement to an award of attorney fees under 5 U.S.C. § 7701(g)(1), an appellant must show that: (1) he was the prevailing party; (2) he incurred attorney fees pursuant to an existing attorney-client relationship; (3) an award of fees is warranted in the interest of justice; and (4) the amount of fees claimed is reasonable. Hart v. Department of Transportation, 115 M.S.P.R. 10, ¶ 13 (2010). The appellant is the “prevailing party” in this action and incurred fees pursuant to an existing attorney-client relationship. An appellant who shows that he obtained a material alteration of the legal relationship between the parties through an enforceable final judgment on the merits or a settlement agreement entered into the record for the purposes of enforcement by the Board is a “prevailing party” for the purposes of 5 U.S.C. § 7701(g)(1). Sanchez v. Department of Homeland Security, 116 M.S.P.R. 183, ¶ 10 (2010)(citing Buckhannon Board & Care Home, Inc. v. West Virginia Department of Health & Human Resources, 532 U.S. 598 (2001)). In its response to the appellant’s attorney fees motion, the agency does not dispute the appellant’s prevailing party status. Based upon the foregoing, I find that the appellant is the prevailing party in this matter. It is also undisputed that there was an attorney-client relationship pursuant to which counsel rendered legal services on the appellant’s behalf in connection with his appeal. Allen v. United States Postal Service, 2 M.S.P.R. 420, 427 n.9 (1980). Attorney fees are warranted in the interest of justice. In Allen, 2 M.S.P.R. at 434-35, the Board set out a non-exhaustive list of circumstances in which the “interest of justice” standard would be met. Those examples include: (1) where the agency engaged in a prohibited personnel practice; (2) where the agency’s action was “clearly without merit,” or “wholly unfounded,” or where the employee is “substantially innoc ent” of the charges
3 brought by the agency; (3) where the agency initiated the action against the employee in bad faith; (4) where the agency committed a gross procedural error which prolonged the proceeding or severely prejudiced the employee; and (5) where the agency knew or should have known that it would not prevail on the merits when it brought the proceeding. Here, the appellant claims fees are warranted because the agency’s action was clearly without merit, he was substantially innocent of the agency ’s adverse action, the agency initiated the adverse action in bad faith, and the agency knew or should have known that it would not prevail on the merits of its adverse action. Attorney Fee File (AFF), Tab 6. Conversely, the agency argues that fees are not warranted because “[n]one of these claims withstands analysis.” AFF, Tab 6. I disagree. In Mitchell v. Department of the Navy, 51 M.S.P.R. 103, 115-16 (1991), the Board held that where an employee had a constitutionally-protected property interest in his employment, such as here, an appealable agency action taken without the proper procedural protections violated his constitutional right to minimum due process and therefore could not be sustained . Mitchell is nearly identical to the instant appeal in that the appellant, a nonprobationary competitive service employee, was constructively suspended for a period of more than 14 days and the agency did not afford him prior notice of the action and an opportunity to respond. Citing Stephen v. Department of the Air Force, 47 M.S.P.R. 672, 681-82 (1991), the Board in Mitchell found the agency action was “clearly without 51 M.S.P.R. at 115-16. merit” under these circumstances. Mitchell, Given the similarity between the facts in Mitchell and those in the instant appeal, I find that an award of fees is warranted here based upon the agency action being “clearly without merit.” See id.
4 The appellant has not presented sufficient evidence to est ablish the reasonableness of his entire fee request. In his original fee petition, the appellant requested a total award of $73,320.85, in attorney fees. AFF, Tab 1. In his supplemental petition, the appellant requested an additional $6,175.35, in costs for a total of $79,496.20, in fees and costs. In support of his requests, the appellant’s counsel provided an explanation of the requested fees via an itemized statement of legal services in connection with his representation of the appellant that reflects a total of 357.8 hours of work. The appellant’s attorney also submitted evidence pertaining to his customary billing rate. While I find that the appellant is entitled to an award of attorney fees, I conclude nevertheless that the hours claimed are exce ssive and some of the expenses are not allowable. a) Hourly Rate and Reasonableness of Hours Claimed The Board will determine whether a fee request is reasonable by analyzing two variables—the attorney’s customary hourly rate and the number of hours the attorney devoted to the case. Kling v. Department of Justice, 2 M.S.P.R. 464, 470-72 (1980). In making this determination, the Board has a statutory duty to assure that only “reasonable attorney fees” are awarded and will carefully scrutinize the hourly rate and hours claimed at that rate. Id. In the Acknowledgment Order, I advised the appellant: You or your attorney must submit an affidavit regarding the reasonableness of the requested fees. The affidavit must include the following information: (1) An itemized accounting of services and expenses claimed; (2) Specific evidence of your attorney’s customary hourly billing rate for similar work if the attorney has a billing practice, or, in the absence of that practice, specific evidence of the prevailing community rate for similar work by attorneys of comparable qualifications;
5 (3) Specific evidence of the customary hourly billing rate for paralegals and law clerks, if appropriate; (4) The fee arrangement with the appellant, including a copy of any contract or agreement with respect to fees and expenses, or a summary of its terms; (5) A statement as to whether your attorney is or is not required to turn over an award of attorney fees to a union or a union legal fund; (6) A statement as to whether your attorney is or is not a union employee; and if so, a statement of your attorney’s gross salary reduced to an hourly basis, compensated time spent on the case, and out of pocket expenses; (7) Your attorney’s experience before the Board and any other administrative tribunal, number of years of practice, and position in the firm (senior partner, junior partner, or associate); and (8) Any other evidence or argument supporting your claim. AFF, Tab 2. In its Opposition to Appellant’s Motion for Attorney Fees, the agency argued that the appellant is not entitled to attorney fees because his counsel’s affidavit does not provide sufficient evidence to show that the amount of fees claimed is reasonable. Reasonable Hourly Rate In deciding on the reasonableness of an hourly rate, the Board requires specific evidence of the prevailing rate for similar work to establish that the attorney’s rate reflects a market value for his services. Mitchell v. Department of Health and Human Services, 19 M.S.P.R. 206, 210 (1984). Appellant’s counsel, Adam Augustine Carter, filed a declaration in which he swore that under the 2012-2013 Laffey Matrix, attorneys with more than 20 years of experience are considered “very experienced federal court litigators” and attorneys with 11 to 19 years as “experienced federal court litigators,” and the prevailing hourly rate for such litigators in the Washington, D.C. area is $505 a nd $445 per hour, respectively, while the rate for paralegals or law clerks is $145 an
6 hour. 1 AFF, Tab 1 (Exhibit 3). He averred that under the 2011-2012 Laffey Matrix, the rates were $495, $435, and $140 per hour, respectively. Id. In addition, he included a declaration from Cathy Harris, an attorney with the Washington, D.C. law firm of Kator, Parks and Weiser, PLLC, in which she maintained that the rates charged by Mr. Carter’s firm are equivalent to those that are customarily charged in the Washington, D.C. area, and that the work described in his motion for fees appeared to have been reasonable and necessary for the appellant’s case litigated before the Board. Id. In her declaration, Ms. Harris explained that the Laffey Matrix is “generally used in cases in which a ‘fee-shifting’ statute permits the prevailing party to recover reasonable attorneys’ fees.” Id. at Exhibit 4. She further declared that the Laffey Matrix “sets out the market rate per hour prevailing in the D.C. legal market for similar work based on the number of years an attorney has been practicing law.” Id. Based upon her knowledge of and familiarity with the two principal attorneys for the appellant in this appeal, Mr. Carter and Mr. Oswald, Ms. Harris avowed that, based upon the Laffey Matrix, Mr. Carter should be considered a “very experienced federal court litigator,” because he has been practicing employment litigation law for more than 20 years, and Mr. Oswald should be considered “an experienced federal court litigator,” since he has been practicing employment litigation law for between 11-19 years. Id. Furthermore, according to Ms. Harris, the Laffey Matrix dictates that the prevailing rate for Mr. 1 The Laffey Matrix is based on the hourly rates allowed by the U.S. District Court for the District of Columbia in Laffey v. Northwest Airlines, Inc., 572 F.Supp. 354, 371 (D.D.C.1993), rev'd on other grounds, 756 F.2d 4 (D.C.Cir.1984) (rejecting use of the matrix rates in that particular case). The Court of Appeals for the District of Columbia Circuit later approved of applying Laffey Matrix rates (see, e.g., Covington v. District of Columbia, 57 F.3d 1101, 1109 (D.C.Cir.1995)), and now the matrix is maintained by the U.S. Attorney's Office for the District of Columbia. It includes a chart of hourly rates for attorneys, based on the number of years in practice. Yearly updates to the original hourly rates allowed by the district court are based on annual increases in the Consumer Price Index.
7 Carter and Mr. Oswald is $495 and $435 per hour respectively, for work performed from June 1, 2011 to May 31, 2012. Ms. Harris asserts that, for work performed beginning June 1, 2012, the prevailing rate for Mr. Carter and Mr. Oswald is $505 per hour and $445 per hour, respectively. Id. With respect to the rate charged for Mr. Dallas Hammer’s work on the appellant’s case, Ms. Harris represented as follows: The Laffey Matrix dictates that for work from June 1, 2011 to May 31, 2012, the billable rate for associate attorneys with 1-3 years' experience is $240. The Employment Law Group, P.C. represented to me that Dallas Hammer had just recently taken the bar and was transitioning to an associate position but that The Employment Law Group, P.C. was still charging his time at the law clerk rate. Therefore, the rate of $140 per hour for Mr. Hammer's time was below the prevailing market rate of $240. Id. 2 Similarly, relative to the rate charged for work done by paralegals and law clerks on the appellant’s appeal, Ms. Harris explained that: The Laffey Matrix dictates that the billable rate for work from June 1, 2011 to May 31, 2012 for paralegals and law clerks is $140 per hour. According to the billing statements that were provided t o me by The Employment Law Group, P.C., the firm charged $140 per hour for Mr. Lowd’s and Mr. Skidmore’s time as law clerks and $70 per hour for its project assistant. It is therefore my opinion that the rate is reasonable and consistent with the prevaili ng market. Id. Finally, consistent with Mr. Carter’s declaration, Ms. Harris asserted that there is no “customary fee,” only varying billing rates, and that the rates “employed by The Employment Law Group, P.C. are reasonable and consistent with the prevailing market.” Id. The Board has never found that the Laffey Matrix, by itself, supports a finding that a specific hourly rate claimed is reasonable. Moreover, the Board has consistently held that, where it is agreed a specific fee will be paid to 2 The Employment Law Group, P.C., is also referred to by the acronym TELG.
8 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 that may be awarded. Martinez v. U.S. Postal Service, 89 M.S.P.R. 152, ¶ 18 (2001); Gensburg v. Department of Veterans Affairs, 85 M.S.P.R. 198, ¶ 13 (2000). Further, the Board’s reviewing court stated in Willis v. U.S. Postal Service, 245 F.3d 1333, 1340 (Fed. Cir. 2001), that a “representation contract specifying hourly rates is evidence that the contract ra tes are consistent with local market rates, because the client freely agreed to pay the rates by entering into the contract.” Nonetheless, 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 a showing that he had agreed to such a rate only because of the client’s reduced ability to pay and that the customary fee for similar work was significantly higher. Gensburg, 85 M.S.P.R. 198, ¶ 13. In addition to the aforementioned declaration, appellant’s counsel submitted a copy of the retainer agreement between the appellant and his counsel’s law firm, The Employment Law Group, dated January 10, 2012 , wherein the firm agreed to represent the appellant before the Equal Employment Opportunity Commission (EEOC). In it, the parties agreed that the appellant would pay the firm for its services at the following rates: TELG will serve as your legal representative in litigatio n on an hourly basis of $395.00 per hour for principals’ time, $395.00 per hour for the firm’s “of counsel’s” time, between $235.00 an d $285.00 per hour for the firm’s associates’ time, $135.00 per hour for the firm’s legal assistants’ and investigator’s time, and $70.00 per hour for project assistants’ time. AFF, Tab 9. The appellant filed his appeal to the Board on February 1, 2012, a mere three weeks after entering into the retainer agreement with TELG to represent him before the EEOC. Initial Appeal File (IAF), Tab 1. I consider the EEOC and
9 the Board to be comparable administrative tribunals that adjudicate cases of a similar nature. Because there is no evidence to the contrary, I find the rate the appellant agreed to pay TELG to represent him before the EEOC was the local market rate at that time. Accordingly, I find that rate is also the local market rate that is applicable for TELG’s work in representing the appellant before the Board. Therefore, in keeping with the court’s holding in Willis, I find that the rates the parties agreed upon for TELG’s representation of the appellant before the EEOC were the local market rates at the time the appellant filed his appeal with the Board. The agency argues that the nearly 400 hours billed by appellant’s counsel are neither reasonable nor justified. In support of its claim, the agency argues that, in using the Laffey Matrix, the total amount of attorney fees the appellant seeks is “wholly unjustified, both with respect to MSPB appeals ge nerally and in the specific factual context of Mr. Shrewsberry’s appeal.” AFF, Tab 6. Rather, the agency explained that the Board has consistently held that a fee agreement, and not the Laffey Matrix, represents the maximum reasonable fee that may be awarded.” Id. Essentially, the agency argues that because the appellant’s appeal was not analogous to complex federal litigation as described in Laffey, the higher hourly rates described in Laffey are not justified in this appeal. I agree. Unlike the underlying administrative proceeding, the Laffey case involved an application for a fee award of over $5,000,000, for only the most recent, but not final, stage of what the district court characterized as “protracted Title VII and Equal Pay Act litigation.” The district court’s opinion further stated th e action was “an extraordinary undertaking in many respects, consuming thirteen years and thousands of personnel hours and raising numerous issues under both statutes.” It began with the filing of a complaint on behalf of a class of the defendant’s female flight attendants; ten counts were brought under Title VII and four counts under the Equal Pay Act. There was an extended period of pretrial discovery, a full trial on the merits, two rounds of appeals, and one certiorari
10 petition. Laffey v. Northwest Airlines, Inc., 572 F. Supp. 354, 359 (D.D.C. 1983), aff’d in part and rev’d in part, 746 F.2d 4 (D.C. Cir. 1984). Such protracted and complex litigation is easily distinguishable from the instant appeal. Based upon the foregoing, in determining the total amount of the attorney fees award in this matter, I find that the appellant has proven that the rates his attorneys charged in litigating his case before the EEOC are reasonable and consistent with the prevailing market in Washington, D.C. Thus, because the appellant entered into a fee agreement with his attorney to pay for representing him before the EEOC less than one month before filing his Board appeal, I find that the rates he agreed to pay for his attorney’s services before the EEOC apply to his attorney’s services before the Board on his behalf as well, particularly since the appellant has not indicated that the rates TELG customarily charges are significantly higher but that they charged a reduced rate to represent him before the EEOC due to his reduced ability to pay. Gensburg, 85 M.S.P.R. 198, ¶ 13. Reasonable Hours of Work I now turn to the issue of the number of hours claimed. The appellant claims that the 357.80 hours his attorney claimed in his original motion for fees, plus the 33.9 hours he claimed in his supplemental motion for fees are reasonable and that I should not reduce the total number of hours worked due to unnecessary or excessive billing. On the other hand, the appellant states that the nearly 400 hours his attorneys billed were entirely necessary to the successful resolution of this appeal, and that his attorneys have already excluded from the motion for fees some 22.8 hours as unnecessary. First, in examining the appellant’s motion for fees, I note that his attorneys have requested payment for work allegedly done prior to the agency action that was the subject of the Board appeal. The effective date of the underlying action before the Board, the agency’s constructive suspension of the appellant, was January 9, 2012. However, the appellant’s attorneys billed the appellant for
11 44.25 hours of work allegedly done as early as December 29, 2011, and charged him $8364.00, all for work done prior to the occurrence of the action at issue here. AFF, Tab 1 (Exhibit 1). In Young v. Department of the Air Force, 29 M.S.P.R. 589, 592 (1986)(citing Lizut v. Department of the Army, 27 M.S.P.R. 611 (1985); and King v. U.S. Postal Service, 20 M.S.P.R. 467 (1984)), the Board held that it generally has not excluded from a representing attorney’s compensable time any hours reasonably spent outside the Board proceeding but in furtherance of the same goal. Moreover, the Board held that when it has denied fees for hour s spent outside a Board proceeding, it has depended on the fact that those hours were spent pursuing a claim unrelated to the merits of the agency action which is the subject of the Board appeal. Id. Thus, standing alone, it would appear that the appellant’s representative is not prohibited from claiming fees for work he performed prior to the appellant filing his Board appeal, so long as the pre -appeal work was “in furtherance of the same goal” as that which was pursued via the Board appeal. As previously noted, the appellant retained his attorneys to represent him in a matter before the EEOC three weeks before he filed his appeal to the Board. The Board has held that fees may be awarded for time spent on a separate and optional, but factually related proceeding, if the claimed portion of work done is reasonable and the work done in other proceedings, or some discrete portion thereof, significantly contributed to the success of the subsequent Board proceeding and eliminated need for work that otherwise would have been required. McGovern v. Equal Employment Opportunity Commission, 42 M.S.P.R. 399, 408 (1989); see also Morey v. Department of the Navy, 55 M.S.P.R. 604, 608 (1992). Contrary to the appellant’s assertions otherwise, I find that s uch is not the case here. While appellant’s counsel claims that his pre-Board work substantially contributed to his success before the Board, I do not see it. How did appellant’s counsel know that the work he was doing for the appellant on
12 December 29, 2011, would be germane to an agency action that had not yet occurred? Furthermore, how did he know on December 29, 2011, that when the agency would take its action on January 9, 2012, it would fail to provide the appellant with minimum constitutional due process right s? This was the basis for the appellant’s successful appeal before the Board. The appellant has not adequately answered these questions. Thus, I find that appellant ’s counsel’s preBoard work played no role in the appellant’s success in the instant Boar d appeal. Therefore, I find that fees are not recoverable for all entries from December 29, 2011, through January 11, 2012, as (1) they are entirely unrelated to the appellant’s successful appeal to the Board, and (2) their connection to the Board appeal has not been sufficiently established. AFF, Tab 2. The first entry mentioning any Board-related work is dated January 12, 2012. I approve all fees from this date forward except for the $1,092 (7.8 hours of work) TELG charged for a background and credit check of the appellant but which was unnecessary and unrelated to the litigation of this matter. 3 Taking into account these adjustments, I find that the maximum reasonable number of hours for counsel’s representation in this proceeding is 313.55 hours (357.8 minus 44.25), not counting the 33.9 hours for the supplemental motion. Therefore, after replacing the hourly rates quoted in the Laffey Matrix with those quoted in TELG’s fee agreement to represent the appellant before the EEOC, I find that the appellant accrued $50,112.00 in fees for 313.55 hours of work, as opposed to the $67,145.50 originally charged for 357.8 hours of work. I acknowledge that the customary billing rate rose in the 1.5-year period between when appellant’s counsel first began wor k on appellant’s Board case and when he performed the work that is represented in his supplemental fee petition. Thus, I will apply $100.00 more per hour for all work performed by Mr. Carter as I note that appellant’s counsel subsequently withdrew his claim for this amount in his response to the Board’s Order Reopening the Record. 3
13 represented in the supplemental fee petition, or $495.00 per hour, and I will honor the $145.00 per hour charged for all paralegal work. Having accounted for this adjustment, I find that the appellant is entitled to $6,070.50 in reasonable attorney fees for his supplemental motion for fees. Accordingly, the appellant is entitled to a total of $56,182.50 in reasonable attorney fees. b) Expenses Claimed Appellant’s counsel also requests reimbursement for costs totaling $6,175.35. AFF, Tab 1 (Exhibit 2). After thorough examination, I find that counsel’s request for the reimbursement of certain expenses cannot be granted. First, counsel’s request for reimbursement for all charges accrued prior to the effective date of the agency action in the Board appeal is summarily disallowed because the charges are clearly unrelated to the Board appeal. Therefore, $2,949.95 is eliminated from the cost reimbursement (all costs from 1/4/12-1/6/12). Id. I also find the $1,085.00 charge for Jury Solutions, LLC, on 4/19/12 non-recoverable, as jury consultants were not necessary for success in this Board appeal. 4 Id. I find all remaining costs recoverable. Accordingly, the total recoverable amount for costs is $2,140.40. Accordingly, I find that the appellant’s counsel is entitled to an award of attorney fees in the amount of $56,182.50, and costs in the amount of $2,140.40. Thus, the appellant is entitled to a total of $58,322.90. DECISION The appellant’s motion for attorney fees is GRANTED in part and DENIED in part. I note that appellant’s counsel withdrew this fee from his cost reimbursement request in response to the Board’s Order Reopening the Record. 4
14 ATTORNEY FEES I ORDER the agency to pay attorney fees in the amount of $58,322.90, by a check made payable to the appellant's counsel. Payment must be made no later than 20 calendar days after the date this initial decision becomes final. FOR THE BOARD: ____________/S/_______________ Anthony W. Cummings Administrative Judge NOTICE TO APPELLANT This initial decision will become final on March 12, 2014, unless a petition for review is filed by that date. This is an important date because it is usually the last day on which you can file a petition for review with the Board. However, if you prove that you received this initial decision more than 5 days after the date of issuance, you may file a petition for review within 30 days after the date you actually receive the initial decision. If you are represented, the 30day period begins to run upon either your receipt of the initial decision or its receipt by your representative, whichever comes first. You must establish the date on which you or your representative received it. The date on which the initial decision becomes final also controls when you can file a petition for review with the Court of Appeals. The paragraphs that follow tell you how and when to file with the Board or the federal court. These instructions are important because if you wish to file a petition, you must file it within the proper time period. BOARD REVIEW You may request Board review of this initial decision by filing a petition for review.
15 If the other party has already filed a timely petition for review, you may file a cross petition for review. Your petition or cross petition for review must state your objections to the initial decision, supported by references to applicable laws, regulations, and the record. You must file it with: The Clerk of the Board Merit Systems Protection Board 1615 M Street, NW. Washington, DC 20419 A petition or cross petition for review may be filed by mail, facsimile (fax), personal or commercial delivery, or electronic filing. A petition submitted by electronic filing must comply with the requirements of 5 C.F.R. § 1201.14, and may only be accomplished at the Board's e-Appeal website (https://e-appeal.mspb.gov). Criteria for Granting a Petition or Cross Petition for Review Pursuant to 5 C.F.R. § 1201.115, the Board normally will consider only issues raised in a timely filed petition or cross petition for review. Situations in which the Board may grant a petition or cross petition for review include, but are not limited to, a showing that: (a) The initial decision contains erroneous findings of material fact. (1) Any alleged factual error must be material, meaning of sufficient weight to warrant an outcome different from that of the initial decision. (2) A petitioner who alleges that the judge made erroneous findings of material fact must explain why the challenged factual determination is incorrect and identify specific evidence in the record that demonstrates the error. In reviewing a claim of an erroneous finding of fact, the Board will give def erence to an administrative judge’s credibility determinations when they are based, explicitly or implicitly, on the observation of the demeanor of witnesses testifying at a hearing.
16 (b) The initial decision is based on an erroneous interpretation of stat ute or regulation or the erroneous application of the law to the facts of the case. The petitioner must explain how the error affected the outcome of the case. (c) The judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case. (d) New and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. To constitute new evidence, the information contained in the documents, not just the documents themselves, must have been unavailable despite due diligence when the record closed. As stated in 5 C.F.R. § 1201.114(h), a petition for review, a cross petition for review, or a response to a petition for review, whether computer generated, typed, or handwritten, is limited to 30 pages or 7500 words, whichever is less. A reply to a response to a petition for review is limited to 15 pages or 3750 words, whichever is less. Computer generated and typed pleadings must use no less than 12 point typeface and 1-inch margins and must be double spaced and only use one side of a page. The length limitation is exclusive of any table of contents, table of authorities, attachments, and certificate of service. A request for leave to file a pleading that exceeds the limitations prescribed in this paragraph must be received by the Clerk of the Board at least 3 days before the filing deadline. Such requests must give the reasons for a waiver as well as the desired length of the pleading and are granted only in exceptional circumstances . The page and word limits set forth above are maximum limits. Parties are not expected or required to submit pleadings of the maximum length. Typically, a well -written petition for review is between 5 and 10 pages long. If you file a petition or cross petition for review, the Board will obtain the record in your case from the administrative judge and you should not submit anything to the Board that is already part of the record. A petition for review
17 must be filed with the Clerk of the Board no later than the date this initial decision becomes final, or if this initial decision is received by you or your representative more than 5 days after the date of issuance, 30 days after the date you or your representative actually received the initial decision, whic hever was first. If you claim that you and your representative both received this decision more than 5 days after its issuance, you have the burden to prove to the Board the earlier date of receipt. You must also show that any delay in receiving the init ial decision was not due to the deliberate evasion of receipt. You may meet your burden by filing evidence and argument, sworn or under penalty of perjury ( see 5 C.F.R. Part 1201, Appendix 4) to support your claim. The date of filing by mail is determined by the postmark date. The date of filing by fax or by electronic filing is the date of submission. The date of filing by personal delivery is the date on which the Board receives the document. The date of filing by commercial delivery is the date the document was delivered to the commercial delivery service. Your petition may be rejected and returned to you if you fail to provide a statement of how you served your petition on the other party. See 5 C.F.R. § 1201.4(j). If the petition is filed electronically, the online process itself will serve the petition on other e-filers. See 5 C.F.R. § 1201.14(j)(1). A cross petition for review must be filed within 25 days after the date of service of the petition for review. ENFORCEMENT If the agency fails to pay the attorney fees awarded within 20 calendar days after the date this initial decision becomes final, you may ask the Board to enforce its decision by filing a motion with this office. NOTICE TO AGENCY/INTERVENOR The agency or intervenor may file a petition for review of this initial decision in accordance with the Board's regulations.
18 NOTICE TO THE APPELLANT REGARDING YOUR FURTHER REVIEW RIGHTS You have the right to request review of this final decision by the United States Court of Appeals for the Federal Circuit. 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 60 calendar days after the date this initial decision becomes final. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec. 27, 2012). 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) (as rev. eff. Dec. 27, 2012). You may read this law as well as other sections of the United States Code, at our website, http://www.mspb.gov/appeals/uscode/htm. Additional information is available at the court's website, www.cafc.uscourts.gov. Of particular relevance is the court's "Guide for Pro Se Petitioners and Appellants," which is contained within the court's Rules of Practice, and Forms 5, 6, and 11.
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