JUDGES’ HANDBOOK
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MERIT SYSTEMS PROTECTION BOARD
Chapter 15
9. ATTORNEY FEES.
The prevailing party test enunciated in Cuthbertson v. Merit Systems Protection Board,
784 F.2d 370 (Fed. Cir. 1986), for attorney fees claims under the Civil Service Retirement
Act also applies to attorney fees claims under the WPA. Hamel v. President’s Commission
on Executive Exchange, 987 F.2d 1561 (Fed. Cir.), cert. denied, 510 U.S. 931 (1993). An
appellant who prevails on a WPA claim is entitled to an award of costs he incurred directly,
in addition to reimbursement for attorney fees. Bonggat v. Department of the Navy
,
59 M.S.P.R. 175 (1993) (reversing Wiatr v. Department of the Air Force, 50 M.S.P.R. 441
(1991)). See also chapter 13, section 2 of this Handbook, noting that there is no interest of
justice requirement to be met in appeals finding whistleblower retaliation, and that it is the
appellant, not the attorney, who is entitled to the award. See Rumsey v. Department of
Justice, 123 M.S.P.R. 502, ¶¶ 7-8 (2016), rev’d on other grounds, Rumsey v. Department of
Justice, 866 F.3d 1375 (Fed. Cir. 2017).
10. CONSEQUENTIAL AND COMPENSATORY DAMAGES.
The Board may order payment of consequential damages, including medical costs incurred,
travel expenses, and any other reasonable and foreseeable consequential damages as
authorized by 5 U.S.C. § 1221(g)(1)(A)(ii)
, when the Board orders corrective action in a
whistleblower appeal to which 5 U.S.C. § 1221 applies. 5 C.F.R. § 1201.202(b). The Board
may not award nonpecuniary damages for mental distress under the consequential damages
provision, however.
Kinney v. Department of Agriculture, 82 M.S.P.R. 338, ¶ 10 (1999). It
may, though, award compensation for future medical expenses which are the result of the
retaliation and can be proven with reasonable certainty, under its authority to reimburse for
“medical costs incurred.”
See Pastor v. Department of Veterans Affairs, 87 M.S.P.R. 609
(2001). See also chapter 13, sections 6 and 7 of this Handbook. Under the WPEA,
compensatory damages may also be awarded. While there is little law on such damages in
the context of whistleblower retaliation, see King v. Department of the Air Force,
119 M.S.P.R. 663 (2013) (the compensatory damages provision does not apply
retroactively), there is a good bit of precedent on such damages in the context of EEO
reprisal, much of which is likely to be appropriate in this context as well. Unlike EEO
reprisal, however, note that the $300,000.00 limitation is missing from the WPEA.
Consequential damages represent an award that the appellant might be entitled to, if he
meets the requirements of the statute. For this reason, the cancellation of the appealed
action does not moot an IRA appeal or the appeal of an OAA that includes a whistleblower
claim, if the appellant has requested consequential damages or has not yet been informed
of his right to do so. After providing sufficient notice, the AJ must afford an appellant a
specific opportunity to raise a claim for consequential damages before deciding if it is
appropriate to dismiss the appeal as moot. Vick v. Department of Transportation,
118 M.S.P.R. 68, 69-70, ¶ 5 (2012);
Gilbert v. Department of the Interior, 101 M.S.P.R.
238, ¶ 6 (2006). Thus, in situations where the agency may have rescinded the personnel
action(s) at issue, the appellant’s outstanding claim for consequential damages will preclude
dismissal of the whistleblower claim as moot. Vick, 118 M.S.P.R. 70, ¶ 5.
Because consequential damages constitute an award beyond status quo ante relief, the
appellant would not be eligible for such damages in a case that does not include a WPA