Hickey v. Dhs ( 2019 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
BRENDAN HICKEY,
Petitioner
v.
DEPARTMENT OF HOMELAND SECURITY,
Respondent
______________________
2018-1585, 2018-1650
______________________
Petitions for review of the Merit Systems Protection
Board in Nos. PH-1221-15-0013-A-1, PH-1221-15-0013-P-
1.
______________________
Decided: March 22, 2019
______________________
NICHOLAS WOODFIELD, The Employment Law Group,
PC, Washington, DC, argued for petitioner. Also repre-
sented by ROBERT SCOTT OSWALD.
RETA EMMA BEZAK, Commercial Litigation Branch,
Civil Division, United States Department of Justice, Wash-
ington, DC, argued for respondent. Also represented by
ALISON VICKS, ROBERT EDWARD KIRSCHMAN, JR., FRANKLIN
E. WHITE, JR., JOSEPH H. HUNT.
______________________
HICKEY v. DHS
2
Before WALLACH, CHEN, and HUGHES, Circuit Judges.
WALLACH, Circuit Judge.
Petitioner Brendan Hickey seeks review of two Merit
Systems Protection Board (“MSPB”) final decisions that
granted-in-part his request for attorney fees, see Hickey v.
Dep’t of Homeland Sec. (Hickey II), No. PH-1221-15-0013-
A-1, 2017 WL 5989840 (M.S.P.B. Nov. 30, 2017) (J.A. 1–
30), and denied-in-part his request for consequential and
compensatory damages, see Hickey v. Dep’t of Homeland
Sec. (Hickey III), No. PH-1221-15-0013-P-1, 2018 WL
702264 (M.S.P.B. Jan. 29, 2018) (J.A. 31–55). 1 We have
jurisdiction pursuant to 28 U.S.C. § 1295(a)(9) (2012). We
affirm-in-part, vacate-in-part, and remand.
BACKGROUND 2
Mr. Hickey was employed by the Department of Home-
land Security (“DHS”) as a Special Agent assigned to work
1 Relevant here, an administrative judge (“AJ”) is-
sued two initial decisions, one on November 30, 2017, see
J.A. 1–30, and one on January 29, 2018, see J.A. 31–55,
each of which became final when Mr. Hickey did not file a
petition for review, see J.A. 21; see also 5 C.F.R. § 1201.113
(2018) (providing “[t]he initial decision of the judge will be-
come the [MSPB]’s final decision [thirty-five] days after is-
suance” unless, inter alia, “any party files a petition for
review”). Therefore, we refer to the Initial Decisions as the
MSPB’s Final Decisions.
2 The AJ also issued a decision on the merits of Mr.
Hickey’s underlying individual right of action (“IRA”) ap-
peal, which Mr. Hickey does not petition for review of be-
fore this court. See Hickey v. Dep’t of Homeland Sec.
(Hickey I), No. PH-1221-15-0013-W-2, 2017 WL 1848111
(M.S.P.B. May 4, 2017) (J.A. 71–123). Because the parties
do not dispute the facts as recited by the AJ, see generally
HICKEY v. DHS
3
in DHS’s Providence, Rhode Island office. J.A. 72. The
Providence office serves as a satellite office to the Boston,
Massachusetts office. J.A. 72. In January 2013, Mr.
Hickey filed a Complaint of Possible Prohibited Personnel
Practice with the U.S. Office of Special Counsel (“OSC”),
alleging DHS retaliated against him in response to his
whistleblowing activity. J.A. 77. Specifically, Mr. Hickey
asserted that he disclosed to both his supervising officials
and to OSC that he “refused to obey an order that would”
have “require[d] him to violate the law.” J.A. 32. Shortly
thereafter, DHS reassigned Mr. Hickey from his home and
official Post of Duty in Providence to the Document Benefit
Fraud Task Force (“DBFTF”), which was located sixty-
three miles away in Boston, suspended him twice, and de-
nied him a performance award. J.A. 32.
In October 2014, Mr. Hickey filed an IRA appeal with
the MSPB alleging that DHS “had taken several personnel
actions in reprisal for his protected disclosures and pro-
tected activities” as prohibited by 5 U.S.C. § 2302(b)(8), (9)
(2012). 3 J.A. 71. The AJ held that Mr. Hickey made pro-
tected disclosures and that they were a contributing factor
in DHS’s decision to take prohibited personnel actions
against him. J.A. 110. The prohibited personnel actions
included temporarily assigning him to work sixty-three
miles from his home and normal workstation for nineteen
months, suspending him twice, and denying him a
Pet’r’s Br.; Resp’t’s Br., we cite to the facts as presented by
the AJ in Hickey I–III for ease of reference.
3 Pursuant to 5 U.S.C. § 2302(b)(8), (9), an employer
is prohibited to take personnel action against an employee
for, inter alia, “any disclosure of information by an em-
ployee or applicant reasonably believes evidences . . . any
violation of any law, rule, or regulation,” or because the em-
ployee “refus[ed] to obey an order that would require the
individual to violate a law, rule, or regulation.”
HICKEY v. DHS
4
performance award. J.A. 110; see J.A. 110 (granting Mr.
Hickey’s request for corrective action “as to the denial of a
performance award, the reassignment of the DBFTF in
Boston, and the 3-day and 1-day suspension[s]” and deny-
ing the request for corrective action “as to the assignment
to the FDA task force and to Puerto Rico”). The AJ ordered
DHS to cancel Mr. Hickey’s temporary assignment to the
DBFTF in Boston to the extent the assignment remained
in effect, and to eliminate all references to that assignment
from Mr. Hickey’s personnel records. J.A. 110.
In August 2017, Mr. Hickey filed a Motion for Attorney
Fees. See J.A. 124−66. In support of his Motion for Attor-
ney Fees, Mr. Hickey submitted his retainer agreements
with his current counsel, The Employment Law Group, PC
(“TELG”), and his prior counsel, Corso Law, LLC. See J.A.
129. Each of Mr. Hickey’s named counsel are located in
Washington, DC. See Oral Arg. at 15:02–05,
http://oralarguments.cafc.uscourts.gov/de-
fault.aspx?fl=2018-1585.mp3 (agreeing by counsel with the
court that “this was a DC firm”). In Mr. Hickey’s retainer
agreement, TELG agreed to represent Mr. Hickey at hourly
rates of “$490.00 per hour” for principals, “$490.00 per
hour” for of counsel, “between $245.00 and $290.00 per
hour” for associates, “$145.00 per hour” for law clerks and
investigators, and “$70.00 per hour” for project assistants.
J.A. 10. Mr. Hickey also explained that TELG customarily
charges rates determined with the Laffey Matrix. 4 J.A.
4 The “Laffey Matrix” is an array of hourly rates for
attorneys of varying experience levels prepared by the Civil
Division of the U.S. Attorney’s Office (“USAO”) for the Dis-
trict of Columbia. See Laffey v. Nw. Airlines, Inc., 572 F.
Supp. 354 (D.D.C. 1983); see also Covington v. District of
Columbia, 57 F.3d 1101, 1109 (D.C. Cir. 1995) (explaining
that “plaintiffs may point to such evidence as an updated
version of the Laffey [M]atrix or the [USAO’s] matrix, or
HICKEY v. DHS
5
129. In Hickey II, the MSPB granted-in-part and denied-
in-part Mr. Hickey’s requested payment. J.A. 30. Specifi-
cally, the MSPB determined that Mr. Hickey was entitled
to attorney fees in the amount of $109,585.00 and an award
of expenses in the amount of $12,547.47, for a total of
$122,132.47. J.A. 30. The MSPB’s calculation of attorney
fees was based on the rates used in “recent decisions in the
U.S. District Court for the District of Maryland [Greenbelt
Division]” (“Maryland rate”) “as reasonable hourly rates”
instead of the hourly rates supplied by Mr. Hickey. J.A. 11,
12.
Mr. Hickey also requested an award of consequential
and compensatory damages in connection with his IRA ap-
peal. See J.A. 167–210. In Hickey III, the MSPB granted-
in-part Mr. Hickey’s request for an award of compensatory
damages in the amount of $10,000 and denied Mr. Hickey’s
request for consequential damages. See J.A. 53–55.
DISCUSSION
On appeal, Mr. Hickey contends the MSPB erred by
(1) “den[ying his] counsel’s requested hourly rates in his fee
petition and instead award[ing] rates relying on [the] un-
related [Maryland rate],” Pet’r’s Br. 16, (2) “partially
grant[ing his] request for compensatory damages and
their own survey of prevailing market rates in the commu-
nity”). While we have “decline[d] to exclusively endorse”
use of the Laffey Matrix in calculating attorney fees, we
have explained that the “District Court for the District of
Columbia set out [this] matrix of reasonable rates for at-
torneys in the Washington, DC metropolitan area who
were engaged in complex federal litigation at that time.”
Biery v. United States, 818 F.3d 704, 714 (Fed. Cir. 2016);
see Bywaters v. United States, 670 F.3d 1221, 1226 n.4
(Fed. Cir. 2012) (“The ‘Updated Laffey Matrix’ is a billing
survey of District of Columbia market rates.”).
HICKEY v. DHS
6
award[ing] him only $10,000 despite [his] uncontroverted
evidence documenting years of substantial mental anguish
and harm,” see id. at 35, and (3) “den[ying his] motion for
consequential damages when it found that he was not en-
titled to per diem expenses,” see id. at 27. After setting
forth the applicable standard of review, we address Mr.
Hickey’s arguments.
I. Standard of Review
We will uphold a decision of the MSPB unless it is “ar-
bitrary, capricious, an abuse of discretion, or otherwise not
in accordance with law” or “unsupported by substantial ev-
idence.” 5 U.S.C. § 7703(c)(1), (3). The MSPB abuses its
discretion when “the decision is based on an erroneous in-
terpretation of the law, on factual findings that are not sup-
ported by substantial evidence, or represents an
unreasonable judgment in weighing relevant factors.” Tar-
taglia v. Dep’t of Veterans Affairs, 858 F.3d 1405, 1407–08
(Fed. Cir. 2017) (internal quotation marks and citation
omitted). We review the MSPB’s factual findings for sub-
stantial evidence. Parrott v. Merit Sys. Prot. Bd., 519 F.3d
1328, 1334 (Fed. Cir. 2008). “Substantial evidence is more
than a mere scintilla of evidence, but less than the weight
of the evidence.” Jones v. Dep’t of Health & Human Servs.,
834 F.3d 1361, 1366 (Fed. Cir. 2016) (internal quotation
marks and citations omitted). “The petitioner bears the
burden of establishing error in the MSPB’s decision.” Jen-
kins v. Merit Sys. Prot. Bd., 911 F.3d 1370, 1373 (Fed. Cir.
2019) (internal quotation marks, brackets, and citation
omitted).
II. Attorney Fees
A. Legal Standard
Pursuant to 5 U.S.C. § 7701(g)(1), the MSPB “may re-
quire payment by the agency involved of reasonable attor-
ney fees incurred by an employee or applicant for
employment if the employee or applicant is the prevailing
HICKEY v. DHS
7
party” and the MSPB “determines that payment by the
agency is warranted in the interest of justice.” Similarly,
5 U.S.C. § 1221(g) provides that “[c]orrective action shall
include attorney’s fees and costs,” where “an em-
ployee . . . is the prevailing party before the [MSPB], and
the decision is based on a finding of a prohibited personnel
practice, the agency involved shall be liable . . . for reason-
able attorney’s fees and other reasonable costs incurred.” 5
U.S.C. § 1221(g)(1)(B), (g)(2); see 5 C.F.R. § 1201.202(a)
(authorizing the MSPB to award “attorney fees” under
§§ 1221(g) and 7701(g)).
“The most useful starting point for determining the
amount of a reasonable fee is the number of hours reason-
ably expended on the litigation multiplied by a reasonable
hourly rate.” Hensley v. Eckerhart, 461 U.S. 424, 433
(1983). In determining the appropriate fee rate, “[a] repre-
sentation contract specifying hourly rates is evidence that
the contract rates are consistent with local market rates,
because the client freely agreed to pay the rates by entering
into the contract.” Willis v. U.S. Postal Serv., 245 F.3d
1333, 1340 (Fed. Cir. 2001). “[T]he fee applicant bears the
burden of establishing entitlement to an award and docu-
menting the appropriate . . . hourly rates.” Hensley, 461
U.S. at 437.
The petitioner requesting attorney fees must support
their request with “evidence substantiating the amount of
the request.” 5 C.F.R. § 1201.203. This evidence must in-
clude, inter alia, “a copy of the terms of the fee agreement
(if any)” and “a statement of the attorney’s customary bill-
ing rate for similar work, with evidence that th[e] rate is
consistent with the prevailing community rate for similar
services in the community in which the attorney ordinarily
practices.” Id. Similarly, in other contexts, fee awards are
based on “market rates for the services rendered.” Mis-
souri v. Jenkins by Agyei, 491 U.S. 274, 283 (1989).
HICKEY v. DHS
8
B. The MSPB Abused Its Discretion by Applying an Unre-
lated Cap on Attorney Fees
The MSPB held that Mr. Hickey “established that he is
entitled, in the interest of justice, to an award of attorney
fees in the amount of $109,585.00 and an award of ex-
penses in the amount of $12,547.47,” which amounts to “a
total award of $122,132.47.” J.A. 20. 5 Specifically, despite
Mr. Hickey’s request for fees based on customary DC
hourly rates, i.e., the Laffey Matrix rates, the MSPB deter-
mined that the Maryland rate should be “adopt[ed] . . . as
reasonable hourly rates” and rejected Mr. Hickey’s prof-
fered rates. J.A. 11–12. Mr. Hickey avers that the MSPB
improperly “denied the hourly rates in [his] fee petition [by]
award[ing] rates derived from an unrelated [U.S.] District
Court decision.” Pet’r’s Br. 16. We agree with Mr. Hickey.
The MSPB abused its discretion by, sua sponte, relying
upon the Maryland rate without explaining how those
rates are related to the customary billing rate of Mr.
Hickey’s hired law firm or to the rates charged and received
by attorneys in the same community in similar cases. Ra-
ther than awarding the agreed-upon rates between Mr.
5 It is undisputed that Mr. Hickey is the prevailing
party because the MSPB’s Hickey I decision materially
changed the legal relationship between Mr. Hickey and the
DHS when the MSPB found that his protected disclosures
were a contributing factor in DHS’s decision to take certain
prohibited personnel action against him. J.A. 122; see
Buckhannon Bd. & Care Home, Inc. v. W. Virginia Dep't of
Health & Human Res., 532 U.S. 598, 604 (2001) (explaining
that a prevailing party is entitled to attorney fees if he ob-
tains an “enforceable order” that “material[ly] alter[s] . . .
the legal relationship of the parties”). In Hickey III, the
MSPB also provided actual relief on Mr. Hickey’s claims by
ordering the DHS to pay Mr. Hickey consequential dam-
ages. See J.A. 50–52.
HICKEY v. DHS
9
Hickey and his attorneys or awarding the higher rates from
the Laffey Matrix, the MSPB applied the Maryland rate
from a local rule used in an unrelated jurisdiction.
J.A. 11–12. As evidence of the appropriate hourly rates,
Mr. Hickey submitted his signed retainer agreement with
TELG, which was based on the Laffey Matrix rates in 2014.
See J.A. 129; see also J.A. 217 (acknowledging, by DHS,
that TELG customarily charges rates determined by the
Laffey Matrix). Mr. Hickey also submitted affidavits of
other attorneys located in the Washington, DC area, stat-
ing that the rates charged by TELG are “within the cus-
tomary market rates for attorneys seeking fee awards in a
[Whistleblower Protection Act of 1989 (‘WPA’)] claim in . .
. Washington, DC.” J.A. 129–30 (referring to declarations
by attorneys in Washington, DC); see Pub. L. No. 101–12,
103 Stat. 16 (codified in scattered sections of 5 U.S.C.). In
relying on the Maryland rates, the MSPB did not provide
any explanation as to why the judge was departing from
the retainer agreement. See J.A. 5–20. Similarly, the
MSPB applied the Maryland rate for the first set of fees
awarded and the retainer agreement rate for awarding
supplemental attorney fees with no reason for using two
different fee calculations, see J.A. 11−12; see also Motor Ve-
hicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins.
Co., 463 U.S. 29, 48 (1983) (explaining that “an agency
must cogently explain why it has exercised its discretion in
a given manner”); Oral Arg. at 20:02–10, (Q: “And did the
judge discuss that [the Maryland rate local rules are guid-
ance] in any fashion?” A: “No, your honor.”). Despite the
MSPB’s reliance on Maryland rates, TELG is located in
Washington, DC and represents clients, inter alia, in
Washington, DC. J.A. 31. The MSPB’s failure to ade-
quately explain its selection of the Maryland rate consti-
tutes an abuse of discretion. See Motor Vehicle Mfrs., 463
U.S. at 48 (explaining that an agency must explain its rea-
soning “for exercis[ing] its discretion in a given manner”
under the Administrative Procedure Act, 60 Stat. 237
(1946) (codified in scattered sections of 5 U.S.C.)). In
HICKEY v. DHS
10
contrast, the record contained the type of hourly rate evi-
dence that we have approvingly cited to the in the past, see
Willis, 245 F.3d at 1339–40 (explaining that “[a] represen-
tation contract specifying hourly rates is evidence that the
contract rates are consistent with local market rates”); see
also Biery, 818 F.3d at 714 (acknowledging that the Laffey
Matrix includes “reasonable rates for attorneys in the
Washington, DC metropolitan area” (punctuation omit-
ted)), but the MSPB failed to explain why these rates were
unusable in this context or why its selected Maryland rate
should be preferred, see J.A. 11–12. Accordingly, the
MSPB abused its discretion by relying on rates established
in an unrelated case from a different jurisdiction to calcu-
late Mr. Hickey’s attorney fee award.
While DHS argues that the MSPB did not abuse its dis-
cretion by using the Maryland rate because rates should
not exceed the rates set forth in the retainer agreement, see
Resp’t’s Br. 20, the fees awarded using the Maryland rate,
which caps fee petition rates, are lower than the fees
agreed to in the retainer agreement, see Oral Arg. at 25:16–
28, (explaining, by the court, “[t]hat’s what makes [the re-
tainer agreement] reasonable, they’re charging less than
what they would normally be entitled to as a DC firm”).
TELG customarily practices in Washington, DC as evinced
by the record, J.A. 393 (explaining that one of Mr. Hickey’s
attorneys “is the President Elect of the Washington Em-
ployment Lawyers Association”); see Oral Arg. at 15:02–05
(agreeing, by the Government, with the court that “this
was a DC firm”), and the rates charged in the retainer
agreement were lower than the customary billing rates of
other law firms in the Washington, DC metro area and sig-
nificantly less than they are normally entitled to as Wash-
ington, DC law firm pursuant to the Laffey Matrix. See
J.A. 11 (explaining, by the MSPB, that “the Laffey [M]atrix
rates do not correspond with the rates agreed to in the [re-
tainer] agreement” because the Laffey Matrix rates are
higher than those in the retainer agreement). The DHS
HICKEY v. DHS
11
provided no evidence to the MSPB that the Washington,
DC-based law firm should be awarded rates of a different
jurisdiction.
III. Compensatory Damages
A. Legal Standard
“If the [MSPB] orders corrective action . . . such correc-
tive action may include,” inter alia, “compensatory dam-
ages (including interest, reasonable expert witness fees,
and costs).” 5 U.S.C. § 1221(g)(1)(A), (g)(1)(A)(ii). 6 “Com-
pensatory damages include pecuniary losses, future pecu-
niary losses, and nonpecuniary losses such as emotional
pain, suffering, inconvenience, mental anguish, and loss of
enjoyment of life.” 5 C.F.R. § 1201.202(c) ; see Bohac v.
Dep’t of Agric., 239 F.3d 1334, 1341 (Fed. Cir. 2001) (stat-
ing, in an appeal from the MSPB, that “[c]ompensatory
damages are divided into two categories: pecuniary and
non-pecuniary”). “Non-pecuniary compensatory damages
6 Awards of compensatory damages were introduced
as a remedy available to whistleblowers with the enact-
ment of the Whistleblower Protection Enhancement Act of
2012 (“WPEA”). Pub. L. No. 112–199, § 107, 126 Stat. 1465
(2012). The WPEA took effect on December 27, 2012, and
added compensatory damages to the available corrective
actions the MSPB is authorized to order in whistleblower
retaliation cases. See id. Not only does it create new lia-
bilities, i.e., compensatory damages, it also does not cap the
amount that may be awarded, unlike the similar liabilities
associated with findings of intentional discrimination. See
id.; see also Hicks v. Merit Sys. Prot. Bd., 819 F.3d 1318,
1322 (Fed. Cir. 2016) (explaining that “[u]nder the WPEA
. . . when an agency retaliates against an employee for fil-
ing a previous appeal related to whistleblowing, the
[MSPB] is empowered to order such corrective action as it
deems appropriate”).
HICKEY v. DHS
12
include compensation for bodily harm and emotional dis-
tress and are awarded without proof of pecuniary loss.” Bo-
hac, 239 F.3d at 1341 (citation omitted). However,
compensatory damages are designed to compensate the pe-
titioner for actual harm, not to punish the agency. See
State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408,
416 (2003) (explaining in the context of a Due Process
Clause of the Fourteenth Amendment case that “[c]ompen-
satory damages ‘are intended to redress the concrete loss
that the plaintiff has suffered by reason of the defendant’s
wrongful conduct’” (citing Restatement (Second) of Torts §
903 (1979))); see Reese v. United States, 24 F.3d 228, 231
(Fed. Cir. 1994) (explaining, in a U.S. Court of Federal
Claims appeal, that “compensatory damages” simply “com-
pensate the injured party for the injury sustained, and
nothing more” (emphasis added)).
B. Substantial Evidence Supports the MSPB’s Determina-
tion that Mr. Hickey Is Entitled to an Award of $10,000 in
Compensatory Damages
The MSPB determined that Mr. Hickey was entitled to
a partial award of the compensatory damages he sought
and awarded “$10,000 in compensatory damages.” J.A. 43;
see J.A. 31–55. The MSPB explained that “the extent and
duration of the emotional and physical harm caused by the
agency’s actions [were] limited,” J.A. 43, because Mr.
Hickey “failed to provide objective and other evidence link-
ing most of his complaints of mental anguish, and harm to
his reputation, health, and familial relationships to the
[DHS’s] unlawful retaliation,” J.A. 41. In arriving at the
$10,000 award, the MSPB supported its determination
with citation to similar cases awarding from $5,000 to
$20,000 for limited emotional and reputational harm, in
addition to crediting evidence that the assignment to Bos-
ton caused Mr. Hickey emotional and reputational harm,
as well as time away from his family. J.A. 43. Mr. Hickey
asserts that he is entitled to a larger “award than what the
HICKEY v. DHS
13
M[SP]B granted” because “the MSPB’s award of $10,000
cannot be reconciled with the evidence proffered by Mr.
Hickey and is inconsistent with the amount awarded in
similar cases.” Pet’r’s Br. 35. We agree with the MSPB.
Substantial evidence supports the MSPB’s compensa-
tory damages award. The MSPB credited Mr. Hickey’s and
his wife’s statements that asserted his assignment to Bos-
ton led to emotional harm, inconvenience, pain and suffer-
ing, mental anguish, and loss of enjoyment of life. J.A. 43
(citing J.A. 183). These statements, however, did not con-
nect the emotional harm to, and therefore did not prove that
the emotional harm “was actually caused by,” the actual
harm resulting from the retaliatory activities that the
MSPB previously determined were unlawful. See J.A. 110;
Carey v. Piphus, 435 U.S. 247, 264 (1978) (holding, for a
claim of “mental and emotional distress,” that “neither the
likelihood of such injury nor the difficulty of proving it is so
great as to justify awarding compensatory damages with-
out proof that such injury actually was caused” (emphasis
added)). For example, Mr. Hickey did not link the physical
and emotional symptoms to the misconduct of the DHS be-
cause neither statement provided dates of the symptoms or
their duration to demonstrate that the harm resulted from
the DHS’s actions. J.A. 43 (crediting, by the MSPB, state-
ments of Mr. Hickey and his wife, which explained that Mr.
Hickey’s “emotional distress . . . manifested into physical
symptoms”). Additionally, Mr. Hickey’s request for com-
pensatory damages broadly includes all his original claims
in his IRA action rather than focusing upon the three in-
stances of misconduct for which the MSPB determined he
is entitled to recover. See J.A. 110 (explaining that the
three instances of unlawful misconduct were (1) the “denial
of Mr. Hickey’s performance award”; (2) his temporary “re-
assignment” to Boston; and (3) his “[two prior] suspen-
sions”). Mr. Hickey cannot recover compensatory damages
for conduct other than these three instances of misconduct.
Sloan v. U.S. Postal Serv., No. AT-0752-94-0387-P-1, 1997
HICKEY v. DHS
14
WL 693605 (M.S.P.B. Oct. 29, 1997) (explaining that “[a]n
award of compensatory damages for non-pecuniary losses
should reflect the extent to which the agency directly or
proximately caused the harm and the extent to which other
factors also caused the harm, in addition to reflecting the
nature and severity of the harm and its duration or ex-
pected duration”). Therefore, substantial evidence sup-
ports the MSPB’s compensatory damages award.
While Mr. Hickey asserts that he is entitled to a higher
compensatory damages award because the current award
of $10,000 is inconsistent “with amounts awarded in simi-
lar cases with similar evidentiary proffers,” Pet’r’s Br. 39,
the MSPB properly evaluated his claim based on similar
cases involving limited emotional and reputational harm
and applied those cases to the three instances of miscon-
duct that the MSPB based its IRA determination on, see
J.A. 41. The MSPB supported its $10,000 award based on
similar MSPB cases and tied the award to the unlawful ac-
tions taken. See J.A. 43–44 (comparing the award in this
case to awards in similar retaliation cases). Because Mr.
Hickey submitted evidence of mental anguish and emo-
tional distress unrelated to the retaliatory action for which
he was entitled to recover, the MSPB properly held he was
not entitled to a higher award of compensatory damages.
See Carey, 435 U.S. at 264; see also EEOC v. AutoZone, Inc.,
707 F.3d 824, 834 (7th Cir. 2013) (finding, by a sibling cir-
cuit, compensatory damages in the amount of $10,000 not
excessive, where they were “rationally connected” to pain
faced in relation to a back injury).
IV. Consequential Damages
A. Legal Standard
If the [MSPB] orders corrective action . . . such correc-
tive action may include,” inter alia, “reasonable and fore-
seeable consequential damages.” 5 U.S.C. § 1221(g)(1)(A),
(g)(1)(A)(ii). We have explained that “the term
HICKEY v. DHS
15
‘consequential damages’ [under § 1221(g) of the WPA 7] is
limited to reimbursement of out-of-pocket costs and does
not include non-pecuniary damages.” Bohac, 239 F.3d at
1343. This is because “Congress intended a narrow con-
struction of ‘consequential damages.’” Id. at 1342.
B. Substantial Evidence Supports the MSPB’s Determina-
tion that Mr. Hickey Is Not Entitled to Consequential
Damages
The MSPB determined that Mr. Hickey “did not prove
that he incurred actual monetary losses or out of pocket
costs” and is, therefore, “not entitled to consequential dam-
ages.” J.A. 37, 38. Mr. Hickey asserts that he is entitled
to consequential damages because it “is undisputed that for
nineteen months [DHS] forced Mr. Hickey to remain in
travel status for more than twelve hours per day.” Pet’r’s
Br. 28. We agree with the MSPB.
Substantial evidence supports the MSPB’s decision
that Mr. Hickey is not entitled to consequential damages.
To recover consequential damages, Mr. Hickey was re-
quired to provide evidence of his out-of-pocket expenses or
monetary losses that resulted from his sixty-three-mile
7 In Bohac, we discussed the WPEA’s predecessor,
the WPA. See 239 F.3d at 1334. We explained that while
the “WPA does not in fact provide for recovery of conse-
quential ‘damages,’” but rather “consequential changes,”
“the reference to ‘changes’ is obviously a mistake.” Id. at
1338 (emphasis added). “It is well-established that an ap-
pellate court may interpret statutes to correct such obvious
mistakes” and we did so to allow recovery of consequential
damages at that time. Id.; see U.S. Nat’l Bank of Or. v.
Indep. Ins. Agents of Am., 508 U.S. 439, 462 (1993) (disre-
garding a scrivener’s error on punctuation because it was
against the “overwhelming evidence from the structure,
language, and subject matter of the . . . Act”).
HICKEY v. DHS
16
commute. See Bohac, 239 F.3d at 1343 (explaining that
consequential damages are limited to “reimbursement of
out-of-pocket costs” and limiting consequential damages
under the WPA to out-of-pocket expenses”). Because Mr.
Hickey did not present any evidence, such as gas or credit
card receipts, to demonstrate his actual monetary losses or
out-of-pocket expenses, Mr. Hickey has failed to demon-
strate error in the MSPB’s decision. See id. at 1339. We,
therefore, conclude that the MSPB’s consequential dam-
ages determination is supported by substantial evidence.
CONCLUSION
We have considered the parties’ remaining arguments
and find them unpersuasive. Although we affirm the de-
terminations on compensatory and consequential dam-
ages, we vacate the attorney fees determination of the
Merit Systems Protection Board and remand for further
proceedings consistent with this opinion. Accordingly, the
Final Decision of the Merit Systems Protection Board is
AFFIRMED IN PART, VACATED IN PART, AND
REMANDED
COSTS
No costs.