NOTE: This disposition is nonprecedential.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-P1.

______________________

Decided: March 22, 2019

______________________

NICHOLAS WOODFIELD, The Employment Law Group, 

PC, Washington, DC, argued for petitioner. Also represented by ROBERT SCOTT OSWALD. 

 RETA EMMA BEZAK, Commercial Litigation Branch, 

Civil Division, United States Department of Justice, Washington, 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.

BACKGROUND2

Mr. Hickey was employed by the Department of Homeland Security (“DHS”) as a Special Agent assigned to work 

 

1 Relevant here, an administrative judge (“AJ”) issued 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 become the [MSPB]’s final decision [thirty-five] days after issuance” 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”) appeal, which Mr. Hickey does not petition for review of before 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 sixtythree miles away in Boston, suspended him twice, and denied 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 protected activities” as prohibited by 5 U.S.C. § 2302(b)(8), (9)

(2012).3 J.A. 71. The AJ held that Mr. Hickey made protected 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 employee or applicant reasonably believes evidences . . . any 

violation of any law, rule, or regulation,” or because the employee “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 denying 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 Attorney 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/default.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 District 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 deniedin-part Mr. Hickey’s requested payment. J.A. 30. Specifically, 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 appeal. See J.A. 167–210. In Hickey III, the MSPB grantedin-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] unrelated [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 community”). 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 attorneys 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 entitled 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 “arbitrary, capricious, an abuse of discretion, or otherwise not 

in accordance with law” or “unsupported by substantial evidence.” 5 U.S.C. § 7703(c)(1), (3). The MSPB abuses its 

discretion when “the decision is based on an erroneous interpretation of the law, on factual findings that are not supported by substantial evidence, or represents an 

unreasonable judgment in weighing relevant factors.” Tartaglia 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 substantial 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.” Jenkins 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 require payment by the agency involved of reasonable attorney 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 employee . . . 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 reasonable 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 reasonably 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] representation 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 documenting 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 include, inter alia, “a copy of the terms of the fee agreement 

(if any)” and “a statement of the attorney’s customary billing 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.” Missouri v. Jenkins by Agyei, 491 U.S. 274, 283 (1989). 
HICKEY v. DHS 8

B. The MSPB Abused Its Discretion by Applying an Unrelated 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 expenses 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 determined that the Maryland rate should be “adopt[ed] . . . as 

reasonable hourly rates” and rejected Mr. Hickey’s proffered 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. Rather 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 obtains 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 damages. 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, stating that the rates charged by TELG are “within the customary 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 Vehicle 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 guidance] 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 adequately explain its selection of the Maryland rate constitutes an abuse of discretion. See Motor Vehicle Mfrs., 463 

U.S. at 48 (explaining that an agency must explain its reasoning “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 evidence that we have approvingly cited to the in the past, see 

Willis, 245 F.3d at 1339–40 (explaining that “[a] representation 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 omitted)), 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 calculate Mr. Hickey’s attorney fee award. 

While DHS argues that the MSPB did not abuse its discretion 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 retainer 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 Employment 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 significantly less than they are normally entitled to as Washington, 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 [retainer] 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 corrective action may include,” inter alia, “compensatory damages (including interest, reasonable expert witness fees, 

and costs).” 5 U.S.C. § 1221(g)(1)(A), (g)(1)(A)(ii).6 “Compensatory damages include pecuniary losses, future pecuniary 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) (stating, 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 enactment 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 liabilities, 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 filing 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 distress and are awarded without proof of pecuniary loss.” Bohac, 239 F.3d at 1341 (citation omitted). However, 

compensatory damages are designed to compensate the petitioner 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]ompensatory 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 “compensate the injured party for the injury sustained, and 

nothing more” (emphasis added)). 

B. Substantial Evidence Supports the MSPB’s Determination 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 linking 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 Boston 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 compensatory damages award. The MSPB credited Mr. Hickey’s and

his wife’s statements that asserted his assignment to Boston led to emotional harm, inconvenience, pain and suffering, mental anguish, and loss of enjoyment of life. J.A. 43 

(citing J.A. 183). These statements, however, did not connect 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 without 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 because 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, statements of Mr. Hickey and his wife, which explained that Mr. 

Hickey’s “emotional distress . . . manifested into physical 

symptoms”). Additionally, Mr. Hickey’s request for compensatory damages broadly includes all his original claims

in his IRA action rather than focusing upon the three instances 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 “reassignment” to Boston; and (3) his “[two prior] suspensions”). 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 expected duration”). Therefore, substantial evidence supports 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 similar 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 misconduct 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 actions 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 emotional 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 circuit, 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 corrective action may include,” inter alia, “reasonable and foreseeable 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 WPA7] 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 construction of ‘consequential damages.’” Id. at 1342. 

B. Substantial Evidence Supports the MSPB’s Determination 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 damages.” 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 required 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 consequential ‘damages,’” but rather “consequential changes,” 

“the reference to ‘changes’ is obviously a mistake.” Id. at 

1338 (emphasis added). “It is well-established that an appellate 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) (disregarding 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 demonstrate error in the MSPB’s decision. See id. at 1339. We,

therefore, conclude that the MSPB’s consequential damages determination is supported by substantial evidence.

CONCLUSION

We have considered the parties’ remaining arguments 

and find them unpersuasive. Although we affirm the determinations on compensatory and consequential damages, 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.