Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Civil Remedies Division
DATE: May 2, 1990
Docket No. C-214
In the Case of:
Irving L. Becker,
Petitioner,
v. -
Department of Health and Human Services.
DECISION
The Department of Health and Human Services (the Department) charged Petitioner,
a retired federal
employee, with engaging in conduct which violated the provisions of 18 U.S.C.
207(a). I held a hearing in
the case (Docket No. C-76), and, on August 18, 1989, I issued a decision in
which I concluded that
Petitioner had not violated the law as was alleged. My decision was affirmed
by a decision of the Deputy
Assistant Secretary for Personnel Administration dated February 9, 1990.
Petitioner now seeks attorney fees pursuant to the Equal Access to Justice
Act, 5 U.S.C. 504 (EAJA). The
Department opposes this demand. I conclude that no attorney fees should be awarded
in this case, because
the Department's position in its case against Petitioner (Docket No. C-76) was
substantially justified.
ISSUE
The issue in this case is whether Petitioner is entitled to attorney fees pursuant to 5 U.S.C. 504.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. On November 23, 1988, the Department charged Petitioner with engaging in
conduct which violated 18
U.S.C. 207(a). Decision at 1.
2. I held a hearing in the case on April 26, 1989. Decision at 3.
3. On August 18, 1989, I issued a decision which concluded that Petitioner's
allegedly unlawful conduct
did not violate 18 U.S.C. 207(a). Decision at 9.
4. On February 9, 1990, the Deputy Assistant Secretary for Personnel Administration
issued a decision
which affirmed my decision in the case. Decision of Deputy Assistant Secretary.
5. There existed a reasonable basis in fact and law for the Department to have
concluded that Petitioner
had engaged in unlawful acts in violation of 18 U.S.C. 207(a). 18 U.S.C. 207(a);
5 C.F.R. Part 737;
Decision.
6. The Department's position in its case against Petitioner was substantially justified. 5 U.S.C. 504.
7. Petitioner is not entitled to attorney fees pursuant to 5 U.S.C. 504.
ANALYSIS
This case constitutes a request for attorney fees pursuant to the Equal Access
to Justice Act (EAJA), 5
U.S.C. 504. In pertinent part, that statute provides that:
An agency that conducts an adversary adjudication shall award, to a prevailing
party other than the
United States, fees and other expenses incurred by that party in connection
with that proceeding, unless the
adjudicative officer of the agency finds that the position of the agency was
substantially justified or that
special circumstances make an award unjust. Whether or not the position of the
agency was substantially
justified shall be determined on the basis of the administrative record, as
a whole, which is made in the
adversary adjudication for which fees and other expenses are sought.
Petitioner's claim for attorney fees has its genesis in a case originally brought
against Petitioner by the
Department. In August, 1988, the Department charged that Petitioner had unlawfully
engaged in
representation activities subsequent to his retirement as a federal employee
and sought to bar him from
participation in representation activities. This charge was based on the allegation
that while employed by
the Social Security Administration, an administrative component of the Department,
Petitioner made
favorable recommendations to his superiors concerning a candidate for an employment
position announced
pursuant to a competitive selection process. The Department alleged that, as
a direct result of Petitioner's
recommendation, the candidate recommended by Petitioner was selected to fill
the position.
The Department further alleged that, subsequent to his retirement from federal
service, Petitioner acted as
an attorney for an individual on a discrimination complaint. The Department
asserted that the individual
represented by Petitioner had been a candidate for a position filled under the
vacancy announcement with
respect to which Petitioner had made recommendations. The Department asserted
that the individual
represented by Petitioner claimed in his discrimination complaint that his nonselection
was as a result of
discrimination. Therefore, according to the Department, Petitioner had engaged
in unlawful representation
activities subsequent to his retirement, because he represented a party to a
particular matter in which the
Department had an interest and in which Petitioner had personally and substantially
participated while a
federal employee. Petitioner was specifically charged with violating 18 U.S.C.
207(a).
I conducted a hearing in the case and issued a decision favorable to Petitioner.
I found that, while
Petitioner was a federal employee, he had recommended to his superiors that
an employee on his staff be
promoted. I concluded further that subsequently his superiors had announced
vacancies for a position, and
that one of the employees selected to fill the vacancy was the employee concerning
whom Petitioner had
made recommendations. I also found that Petitioner's superiors had been influenced
in their selection
decision by Petitioner's recommendations. I concluded that, after his retirement
from federal employment,
Petitioner represented one of the unsuccessful candidates for the vacancies
announced and filled by
Petitioner's former superiors, in a discrimination action against the Department.
However, I found that that Petitioner had not participated personally and substantially
in a particular
matter, while a federal employee, which was the subject of his post-retirement
representation activity. This
finding was based on two conclusions. First, I concluded that the "particular
matter at issue" was the
selection process by which vacancies had been filled. Second, I concluded that
Complainant had neither
offered recommendations nor been consulted with respect to filling the specific
vacancies. Therefore, I
decided that the Department failed to prove that Petitioner had engaged in unlawful
activities which
violated 18 U.S.C. 207(a).
There is no question that the hearing before me involving Petitioner and the
Department was an adversary
action. Furthermore, Petitioner is a "prevailing party other than the United
States." Therefore, Petitioner is
entitled to attorney fees unless I conclude that the Department's position in
the hearing before me was not
substantially justified, or that special circumstances exist which make an award
unjust. I conclude that
Petitioner is not entitled to attorney fees because the Department's position
in the hearing before me was
substantially justified -- that is, that it "had a reasonable basis in
law and fact." Pierce v. Underwood, 487
U.S. 552, 108 S.Ct. 2541 (1988).
The Department's case against Petitioner turned on the issue of whether Petitioner
had, while a federal
employee, personally and substantially participated in a particular matter which
subsequently became the
subject of his post-employment representation activities. Critical to resolving
this issue were the questions
of what constituted a "particular matter" and "personal and substantial"
involvement within the meaning of
18 U.S.C. 207(a)(2) and (3). These were mixed questions of fact and law, depending
on both the meaning
of statutory language and the evidence of the case.
As is noted above, I concluded that the "particular matter" in the
case before me constituted the process by
which selections were made to fill the vacancy announcement concerning which
Petitioner engaged in
post-employment representation activities. This was a matter of first impression,
and I resolved it in part
by analyzing the evidence in light of regulations which described situations
which were distinguishable
from the facts of the case. It was within the realm of reasonable possibility,
based on the law and the facts,
that I could have defined the "particular matter" more narrowly than
I did, as was urged by Petitioner, or
more broadly. For example, I could have more broadly defined the "particular
matter" at issue to include
not only the selection process, but the determinations by Petitioner's superiors
as to whether to announce
vacancies, or what vacancies to announce.
My conclusion as to what was meant by the term "particular matter"
and my application of that meaning to
the facts of the case directed the outcome of the case. Even a slightly broader
definition and application by
me of the term "particular matter" -- which, in my judgment, could
have been supported by the law and the
facts -- would have resulted in a decision adverse to Petitioner. I could have
concluded that Petitioner's
promotion recommendations to his superiors were "substantial and personal"
involvement in a "particular
matter" which included determinations as to whether to announce vacancies.
In my opinion, this finding
would have been supported by the evidentiary record of the hearing. This finding
in turn would have
mandated a decision by me that Petitioner's post-retirement representation activities
violated 18 U.S.C.
207(a).
My decision was grounded on what I concluded was the most reasonable application
of the law to the facts.
There were other possibilities which I did not find, but which were nonetheless
reasonable. The Supreme
Court held in Pierce that an agency should not be liable for attorney fees under
EAJA where it can
demonstrate that its position in a case was justified to the degree that coul
satisfy a reasonable person. 108 S.Ct. at 2550. It stated:
A position can be justified even though it is not correct, and we believe
it can be substantially (i.e., for
the most part) justified if a reasonable person could think it correct, that
is, if it has a reasonable basis in
law and fact.
108 S. Ct. at 2550, n. 2. I conclude that a reasonable person could have thought
that the Department's
position in its case against Petitioner was correct, because that position had
a reasonable basis in law and
fact. Therefore, Petitioner is not entitled to attorney fees pursuant to EAJA.
CONCLUSION
I conclude that Petitioner is not entitled to attorney fees pursuant to 5 U.S.C. 504.
________________________
Steven T. Kessel
Administrative Law Judge