Ramos v. Deparment of Justice , 552 F.3d 1356 ( 2009 )

United States Court of Appeals for the Federal Circuit
2008-3093
JAMES RAMOS, JR.,
Petitioner,
v.
DEPARTMENT OF JUSTICE,
Respondent.
Kristin D. Alden, Kraft Eisenmann Alden, PLLC, of Washington, DC, argued for
petitioner.
Scott D. Austin, Senior Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, argued for respondent. On the
brief were Gregory G. Katsas, Assistant Attorney General, Jeanne E. Davidson, Director,
Martin F. Hockey, Jr., Assistant Director, and Hillary A. Stern, Senior Trial Counsel.
Appealed from: Merit Systems Protection Board
United States Court of Appeals for the Federal Circuit
2008-3093
JAMES RAMOS, JR.,
Petitioner,
v.
DEPARTMENT OF JUSTICE,
Respondent.
Petition for review of the Merit Systems Protection Board
in SF315H010499-A-1.
___________________________
DECIDED: January 12, 2009
___________________________
Before BRYSON, DYK, and PROST, Circuit Judges.
BRYSON, Circuit Judge.
James Ramos, Jr., petitions for review of a decision of the Merit Systems
Protection Board denying his request for attorney fees associated with an earlier,
interim appeal to this court. He bases his claim for attorney fees on the Back Pay Act, 5
U.S.C. § 5596(b)(1)(A)(ii). The government opposes Mr. Ramos’s appeal. Relying on
our decision in Phillips v. General Services Administration, 924 F.2d 1577 (Fed. Cir.
1991), the government contends that the Board had no authority to grant attorney fees
for work performed in proceedings before this court. We agree with the government
that Phillips is binding on us, and we therefore affirm the Board’s decision holding that it
did not have authority to grant the fee petition for work done before this court. However,
because it is clear that Congress wanted a party in Mr. Ramos’s position to have an
opportunity to apply for fees not only before the agency but also on judicial appeal, we
provide a mechanism by which Mr. Ramos can now apply to this court for attorney fees
that are authorized by the Back Pay Act.
I
Mr. Ramos began his federal civilian service in March 1998 as a Border Patrol
Agent with the Immigration and Naturalization Service. He later responded to a
vacancy announcement for a Deportation Officer position with the agency and was
appointed to that position in 2001. The form documenting his appointment specified
that his tenure was career-conditional and subject to a one-year probationary period.
Before the one-year probationary period had expired, the agency removed Mr. Ramos.
He promptly appealed to the Board. The Board dismissed his appeal for lack of
jurisdiction, reasoning that by signing a Probationary Period Agreement, Mr. Ramos had
waived whatever appeal rights he otherwise may have had. Mr. Ramos appealed to
this court, arguing that the Board erred as a matter of law in dismissing his appeal
because he should have been deemed an employee entitled to Board appeal rights
under this court’s decision in McCormick v. Department of the Air Force, 307 F.3d 1339(Fed. Cir. 2002). In response to the appeal, the government confessed error, conceding
that, under the holding of McCormick, Mr. Ramos qualified as an employee with “the full
panoply of rights afforded to tenured employees.” Ramos v. Dep’t of Justice, 240 Fed.
Appx. 409 (Fed. Cir. 2005).
2008-3093 2
We agreed with the government that the Board had erred as a matter of law in
failing to apply McCormick to Mr. Ramos’s case and that the Board had jurisdiction over
Mr. Ramos’s appeal. While Mr. Ramos asked this court not only to reverse the Board’s
jurisdictional dismissal but also to rescind the agency’s removal action and award him
back pay, interest, benefits, and attorney fees, we declined to do so. We held:
We reject Mr. Ramos’s request for rulings on the merits and remedies for
his removal. Those issues will be the subject of further proceedings
before the Board on remand. Our holding is limited to reversal of the
Board’s final decision that it lacked jurisdiction to hear the appeal.
Ramos v. Dep’t of Justice, 240 Fed. Appx. at 410.
On remand, the administrative judge assigned to the case ordered Mr. Ramos
reinstated, retroactive to the effective date of his removal. That decision was affirmed
by the full Board. Mr. Ramos then filed a motion with the Board requesting attorney
fees for the entire appeal process that had ultimately led to his being reinstated. When
determining whether the “in the interest of justice” standard was met, and thus whether
awarding attorney fees under the Back Pay Act would be warranted, the administrative
judge stated, “I find that the agency committed gross procedural error in terminating the
appellant without affording him the procedural protections of a tenured federal
employee.” The administrative judge then concluded that “attorney fees are warranted
in the interest of justice” and entered an order granting fees for the legal work performed
before the Board. With respect to the attorneys’ work before this court during the
interim appeal, however, the administrative judge concluded that “the appellant’s
request for attorney fees for work his attorneys performed before the court must be
directed to the court.” That conclusion was based on this court’s statement in Phillips v.
General Services Administration that “a request for attorney fees under the Back Pay
2008-3093 3
Act for services rendered in judicial proceedings must, as in the case of an [Equal
Access to Justice Act] request, be directed to this court.” 924 F.2d 1577, 1581 (Fed.
Cir. 1991).
Mr. Ramos believed that he was barred from filing a motion requesting attorney
fees from this court by this court’s Rule 47.7, which states, in pertinent part:
An application for an award of attorney fees and expenses must be served
and filed within the time prescribed by the statute authorizing the award. If
the statute does not prescribe a time, the application must be made within
30 days after entry of the judgment or order denying rehearing, whichever
is later.
Fed. Cir. Rule 47.7(a)(2) (emphasis added). The default venue for obtaining relief from
the government, the Court of Federal Claims, has been closed to parties in Mr. Ramos’s
situation since Congress passed the Civil Service Reform Act of 1978. See United
States v. Fausto, 484 U.S. 439, 455 (1988). Mr. Ramos therefore appealed the Board’s
order denying him attorney fees for work performed during his interim appeal to this
court, arguing that the Back Pay Act and its implementing regulation grant the Board the
authority to award such fees.
II
Mr. Ramos argues that the Board should have entered an award for the attorney
fees attributable to the interim appeal to this court. Relying on Phillips, the government
responds that the Board is not authorized under the Back Pay Act to enter an award for
work done in this court. We agree that this court’s analysis in Phillips prohibits the
Board from making such an award and that the Board was therefore correct to hold that
it lacked authority to grant fees for the work done before this court on the interim appeal
in Mr. Ramos’s case.
2008-3093 4
Mr. Ramos contends that Phillips is distinguishable and therefore not controlling
here, because in Phillips this court was the authority that directed the correction of an
unlawful personnel action, whereas in this case this court merely remanded to the
Board, which then became the authority that directed the corrective action. Mr. Ramos
proposes that Phillips be interpreted as limited to cases in which this court directs the
correction of the unlawful personnel action, and that in cases in which this court’s action
constitutes merely an interim appeal, as in this case, the Board should not be barred
from entering a fee award for work done in this court in the course of the interim appeal.
While Mr. Ramos is correct in describing the factual difference between this case
and Phillips, that difference does not justify a difference in outcome. The problem is
that according weight to the distinction Mr. Ramos proposes would be inconsistent with
the analysis in Phillips itself and in earlier decisions of this court. In Phillips, this court
characterized the issue before it broadly, as presenting “the question of whether the
board may award attorney fees under the Back Pay Act for services provided during
judicial review of a case.” 924 F.2d at 1580. The court concluded that the board may
not award fees under the Back Pay Act; it did not limit its ruling to cases in which the
court directed the correction of the unlawful personnel action.
Moreover, the rationale underlying the decision in Phillips is broader than Mr.
Ramos suggests. First, the court in Phillips relied on a prior opinion, Olsen v.
Department of Commerce, 735 F.2d 558, 562-63 (Fed. Cir. 1984), for the proposition
that this court has authority to grant attorney fees under the Back Pay Act. Phillips, 924
F.2d at 1580-81. The Phillips court also relied on our prior en banc decision in Gavette
v. Office of Personnel Management, 808 F.2d 1456 (Fed. Cir. 1986) (en banc), as a
2008-3093 5
source for the general principles that (1) the Federal Circuit is in the best position to
determine the proper amount of fees for work before this court, and (2) this court’s rules
contemplate that “when attorney fees and expenses are authorized in connection with
an appeal, the amount of the award for such fees and expenses shall be determined by
this court.” Phillips, 924 F.2d at 1581. Both considerations are as applicable to attorney
fee requests under the Back Pay Act as Gavette found them to be under the Equal
Access to Justice Act (“EAJA”), 28 U.S.C. § 2414.
Finally, the Phillips court rested its conclusion—that attorney fee requests for
work completed before this court must be directed to this court under the Back Pay
Act—on the recognition that an unfortunate result would follow from a contrary rule; that
is, a “bifurcated process” would be created, by which fee requests under EAJA would
come to this court, while fee requests for the same work under the Back Pay Act would
go to the Board. Phillips, 924 F.2d at 1581. There is little doubt that Congress intended
to avoid a bifurcated process for fee applications and instead intended for fee
applications under the fee-shifting statutes to be handled in a streamlined, simple
manner. As the Supreme Court has noted, “[a] request for attorney’s fees should not
result in a second major litigation.” Comm’r, INS v. Jean, 496 U.S. 154, 163 (1990).
Instead, the fee-shifting statutes “favor[] treating a case as an inclusive whole.” Id. at
161-62.
As the Phillips court noted, after this court’s en banc decision in Gavette a
prevailing party-employee may seek attorney fees for work before this court under both
the Back Pay Act and EAJA. Phillips, 924 F.2d at 1581. Gavette also mandated that
the prevailing party-employee direct any EAJA requests for work on appeal to this court.
2008-3093 6
Gavette, 808 F.2d at 1468; see Phillips, 924 F.2d at 1581. Thus, if we were to permit
the Board to grant attorney fees under the Back Pay Act, a prevailing party-employee
could direct a Back Pay Act request to the Board and an EAJA request to this court,
both for the same work. The Phillips court concluded that it is “most unlikely” that
Congress intended such a bifurcated filing process, and that, accordingly, “a request for
attorney fees under the Back Pay Act for services rendered in judicial proceedings
must, as in the case of an EAJA request, be directed to this court.” 524 F.2d at 1581.
Of course, based on our decision in Gavette, bifurcated attorney fee requests are
permitted in the sense that a Back Pay Act request for work before the Board may be
directed to the Board while an EAJA request for work on appeal will be directed to this
court in the same case. In fact, that is exactly the outcome in Gavette itself, and since
then has regularly resulted in separate attorney fee requests being directed to the
several tribunals that became involved in adjudicating a claim. See, e.g., Doty v. United
States, 71 F.3d 384, 387 (Fed. Cir. 1995) (“Doty filed an itemized and documented
request for . . . attorney fees and expenses for the appeal to this court, stating that he
has filed a petition for the balance of his fees and expenses with the Court of Federal
Claims.”). Critically, however, the separate attorney fee requests are not related to the
same underlying work by the party’s attorneys. The problem of bifurcated attorney fee
proceedings for the same work is not peculiar to cases in which an attorney fee
application is based on this court’s having directed the correction of unlawful action, as
in Phillips. It is also created when this court’s involvement occurs during an interim
appeal, as here. The rationale of Phillips therefore applies to a case such as this one,
just as it did to Phillips itself.
2008-3093 7
III
If we were writing on a blank slate, it might make sense for attorney fee
applications for work done on appeal from Board decisions to be authorized only by the
Back Pay Act (and not also by EAJA) and to be filed in the first instance before the
Board. For example, the Supreme Court in Perkins v. Standard Oil Co., 399 U.S. 222(1970), held that under the Clayton Act district courts can award fees for both trial and
appellate work. Under such a regime, the Board would address all fee applications for
employee proceedings, including both the portion of the proceedings before the Board
and the portion of the proceedings, if any, on interim or final appeal before this court.
We do not, however, write on a blank slate, and to follow that course we would have to
overrule not only Phillips, but also a number of other prior decisions of this court,
including Gavette, a decision of the en banc court. See, e.g., Covington v. Dep’t of
Health & Human Servs., 818 F.2d 838 (Fed. Cir. 1987); Brewer v. Am. Battle
Monuments Comm’n, 814 F.2d 1564 (Fed. Cir. 1987); Gavette v. Office of Pers. Mgmt.,
808 F.2d 1456 (Fed. Cir. 1986) (en banc); Austin v. Dep’t of Commerce, 742 F.2d 1417(Fed. Cir. 1984); Olsen v. Dep’t of Commerce, 735 F.2d 558 (Fed. Cir. 1984). Such a
course might recommend itself if the result of continuing to follow the above-cited line of
this court’s cases were to deprive a litigant of the right to request fees that Congress
clearly intended that the litigant be entitled to seek. In fact, however, the dispute in this
case does not affect whether an attorney fee award can be sought and obtained, but
only which entity—the Board or the court—will decide the litigant’s entitlement to the
fee.
2008-3093 8
Mr. Ramos raises one concern, however, that is presented by applying our prior
decisions in the factual setting of this case. He points out that under the rules of this
court, he might be deemed to be foreclosed from seeking fees from this court in an
action such as this one. The problem is this: Rule 47.7 of the Federal Circuit Rules
provides that an application for an award of attorney fees and expenses must be served
and filed within the period of time prescribed by the statute authorizing the award, and if
there is no such time limit, within 30 days after entry of the judgment or order denying
rehearing. Fed. Cir. R. 47.7(a)(2). In contrast to EAJA, 1 under the Back Pay Act there
can be no entitlement for fees based on an interim court decision remanding the matter
to the agency. Under the Back Pay Act, the possible entitlement for fees arises only
after a “correction of the personnel action.” 5 U.S.C. § 5596(b)(1)(A). A fee application
thus cannot be made within 30 days of the court of appeals’ judgment if the court has
remanded to the agency. Under these circumstances, we construe Rule 47.7 of the
rules of this court as requiring an application for fees to this court within 30 days after
the Board decision creating the possible fee entitlement. In this case, that 30-day
window has long passed. However, we think that given the uncertainty as to the proper
venue for seeking appellate fees before today’s decision (and the fact that Mr. Ramos
timely filed a fee application with the Board), it is appropriate to waive the requirement
of Rule 47.7 in this case and permit Mr. Ramos 20 days to pursue a fee application
before this court.
1
See Gurley v. Peake, 528 F.3d 1322, 1326-27 (Fed. Cir. 2008); Kelly v.
Nicholson, 463 F.3d 1349, 1353 (Fed. Cir. 2006); Former Employees of Motorola
Ceramic Prods. v. United States, 336 F.3d 1360, 1366 (Fed. Cir. 2003).
2008-3093 9
Mr. Ramos urges us to grant the fee award based on the application that was
filed with the Board. The government responds that the application, among other
things, requests an unreasonably large fee. The parties’ debate over the amount of the
fee request, however, is limited to an exchange in the last few pages of each party’s
brief. That exchange is far too cryptic to enable us to make an intelligent assessment of
the reasonableness of the fee request. Accordingly, we believe the appropriate course
is not to treat the application that was filed with the Board as if it were a separate
application for fees on appeal filed with us, but instead to direct the appellant to file a
separate application for fees in this court. In that application, Mr. Ramos can set forth
his justification for the fee request. If it chooses, the government can then set forth in
full its grounds for opposing the fee request or seeking a modification of the amount
requested, and Mr. Ramos will have an opportunity to respond to the points raised in
the government’s opposition. If Mr. Ramos chooses to pursue fees for the work
involved in obtaining a fee award, including work related to this appeal, he should
include such a request in his application.
Accordingly, Mr. Ramos is granted 20 days within which to submit an attorney
fee request under the Back Pay Act for work related to our decision in Ramos v.
Department of Justice, 240 Fed. Appx. 409 (Fed. Cir. 2005), as well as work involved in
obtaining a fee award. The time limitation of Fed. Cir. R. 47.7 is waived for purposes of
this case.
Each party shall bear its own costs for this appeal.
AFFIRMED.
2008-3093 10