United States District Court, W.D. Pennsylvania
ALBERT P. SCHULTZ, Plaintiff,
PATRICK DONAHOE, POSTMASTER GENERAL, UNITED STATES POSTAL SERVICE, et al., Defendants.
ALAN N. BLOCH, District Judge.
On April 18, 2014, Defendant United States Postal Service filed a Motion to Dismiss and for Summary Judgment (Document No. 40), a memorandum of law in support thereof (Document No. 41), and an appendix of exhibits in support thereof (Document No. 42) in this matter. Plaintiff Albert P. Schultz filed a reply in response (Document No. 44), a Cross Motion for Partial Summary Judgment (Document No. 45), and a statement of material facts in support thereof (Document No. 46) on May 9, 2014. On May 30, 2014, Defendant filed a Motion to Strike Plaintiff's Motion for Partial Summary Judgment and Associated Documents (Document No. 50), to which Plaintiff filed a reply (Document No. 52) on June 5, 2014. After careful consideration of the parties' submissions, and for the reasons set forth herein, Defendant's Motion to Dismiss and for Summary Judgment is granted in part and denied in part, Plaintiff's Cross Motion for Partial Summary Judgment is granted in part and denied in part, and Defendant's Motion to Strike is denied.
Because the parties are familiar with the facts and the complicated procedural history of this case, the Court presents only a brief summary here. This case originated with Plaintiff's filing of a disability discrimination complaint with Defendant, his employer, in which he alleged that he was improperly removed from his mail carrier position. Plaintiff subsequently appealed the agency's decision upholding his removal to the Merit Systems Protections Board ("Board"). In an initial decision, issued on July 11, 1995, a Board Administrative Judge ("AJ") reversed Plaintiff's removal, finding that Defendant had committed disability discrimination, but that Plaintiff had not proven his claim of retaliation, nor had he challenged Defendant's decision to send him home as a constructive suspension. The AJ ordered interim relief for Plaintiff, and both Plaintiff and Defendant filed petitions for review with the Board.
Upon review, the Board held that Defendant had failed to meet its statutory interim relief obligations, and that remand to the Board's regional office was required to adjudicate Plaintiff's claim for compensatory damages and to address Plaintiff's claim of constructive suspension. See Schultz v. United States Postal Serv., 70 M.S.P.R. 633 (June 12, 1996). The Board further ordered Defendant to cancel Plaintiff's removal and restore him to a position of employment, and to issue a check for the appropriate amount of back pay, interest and benefits.
On remand, the AJ found that Plaintiff was not constructively suspended, but did award Plaintiff $5, 000.00 in compensatory damages for physical disability discrimination. Upon appeal of this decision, the Board found that Plaintiff's absence became a constructive suspension when Defendant failed to accommodate Plaintiff's physical disability, and it affirmed the finding of physical disability discrimination. See Schultz v. United States Postal Serv., 78 M.S.P.R. 159 (April 21, 1998) (hereinafter "Schultz II"). The Board also held that, since Plaintiff had received wage replacement benefits from the Office of Workers' Compensation Programs ("OWCP") during the period of constructive suspension, no further remedy was available, and it affirmed the AJ's award of compensatory damages.
Plaintiff next sought review before the Equal Employment Opportunity Commission ("EEOC"), which concurred with the Board's findings on discrimination, but disagreed with the Board's determination that Plaintiff was not entitled to back pay less the amount of OWCP benefits he received for the period of constructive suspension. See Schultz v. Henderson, EEOC Decision No. 03980087, 1999 WL 1001417 (Oct. 14, 1999). Accordingly, the EEOC referred the case back to the Board for further consideration in light of its findings. Upon reconsideration, the Board concurred in and adopted the EEOC's findings, holding that Plaintiff was entitled to back pay with an offset for OWCP benefits he received during the period of constructive suspension. See Schultz v. United States Postal Serv., 89 M.S.P.R. 123 (July 19, 2001) (hereinafter "Schultz III"). Accordingly, the Board ordered Defendant to carry out the EEOC's decision and pay Plaintiff the correct amount of back pay, interest and benefits due under the Back Pay Act, 5 U.S.C. § 5596.
Subsequent to the Board's back pay ruling, on September 17, 2001, Plaintiff filed a petition for enforcement with the Board's regional office, alleging that Defendant had failed to comply with the Board's order to pay proper back pay for the period from 1992 through 1996. On September 13, 2004, the AJ dismissed Plaintiff's petition for enforcement as untimely filed,  and the Board affirmed the AJ's decision in a final order on July 22, 2005. Plaintiff appealed the Board's final order dismissing his enforcement petition to both the United States Court of Appeals for the Federal Circuit and the United States District Court for the Western District of Pennsylvania. After the Federal Circuit noted that the case could not be pursued in two venues at once, however, Plaintiff moved to dismiss his appeal in the Federal Circuit. The Federal Circuit granted Plaintiff's motion, and Plaintiff proceeded with his appeal in the District Court before the Honorable Donnetta Ambrose.
At this point in the litigation, Defendant decided to "abandon any argument that the MSPB compliance action was untimely" (although the Board had dismissed the petition below solely on this basis), so the District Court, and the parties, proceeded to resolve the amount of back pay due. (Document No. 41, at 3). On September 16, 2008, the District Court entered judgment in Plaintiff's favor in the amount of $131, 957.16. The Third Circuit upheld the District Court's award on appeal, except for a minor change in the computation of interest. Thus, by July 1, 2009, Defendant had paid Plaintiff a total of $279, 406.36 ($178, 020.36 in back pay and interest, and $101, 386.00 in attorney fees and costs).
On January 4, 2010, Plaintiff's counsel ("Counsel") filed a motion with the District Court, seeking additional attorney fees for work performed in connection with the removal and compliance actions before the Board, and also for work done in connection with the District Court appeal. On March 5, 2010, after reviewing Counsel's petition and the attached 8, 000 pages of documents, the District Court awarded Counsel approximately $19, 000.00 for work at the District Court level and for appeal work before the Board (in both the removal and the compliance actions).
Nevertheless, on April 2, 2010, Counsel moved the District Court to remand his motion for fees to the Board, arguing that the District Court lacked jurisdiction to award fees for work performed before the Board. The District Court agreed that it lacked jurisdiction in this regard and that Counsel should have first brought his motion for fees, for work done before the Board, to the Board itself for its consideration. See Schultz v. Potter, No. 05-1169, 2010 WL 2597697, at *2 (W.D. Pa. June 24, 2010). Therefore, the Court modified its award to remove fees for work done before the Board (which reduced the fee award to approximately $7, 000.00). The Court declined to remand, explaining that there was nothing left in the case to remand, but noting that Counsel could attempt to file a motion for attorney fees with the Board.
Meanwhile, on July 14, 2010, Counsel filed with the Board the current fee petition for work performed before the Board in both the removal and the compliance actions. The petition was initially denied by the AJ on November 10, 2010. On April 4, 2012, the Board vacated the AJ's decision and issued its final order, finding that the petition for attorney fees incurred during the removal action was clearly untimely, and that Counsel was not entitled to fees for the compliance action because Plaintiff was not a "prevailing party" in that action before the Board.
Counsel then appealed the Board's decision to the Federal Circuit. Defendant moved, on September 17, 2013, to have the case transferred to the District Court, pursuant to the Supreme Court's recent ruling in Kloeckner v. Solis, 133 S.Ct. 596 (2012), and the Federal Circuit agreed. Currently before the Court for consideration are Defendant's Motion to Dismiss and for Summary Judgment, Plaintiff's Cross Motion for Partial Summary ...