# In the United States Court of Federal Claims
No. 09

- 258C Filed: July 2 1 , 2020 NOT FOR PUBLICATION

GLADYS S. VANDESANDE,

Plaintiff,

v.
THE UNITED STATES,

Defendant. )

) ) ) ) ) ) ) ) ) ) R CFC 56; Summary Judgment; Attorney ’ s Fees ; Accountant’s Fees; Contract Interpretation

.

Roderick V. Hannah , Counsel of Record, Roderick V. Hannah, Esq. PA , Plantation, FL, for plaintiff.
Douglas T. Hoffman , Trial Attorney, Allison Kidd

- Miller , Assistant Director , Robert E. Kirschman, Jr. , Director, Joseph H. Hunt , Assistant Attorney General, United States Department of Justice, Civil Division, Commercial Litigation Branch, Washington, DC, for defendant.

MEMORANDUM OPINION AND ORDER ON AWARD OF ATTORNEY’S FEES AND ACCOUNTANT’S FEES GRIGGSBY, Judge

I. INTRODUCTION
Plaintiff, Gladys S. VanD esande, has moved to recover certain attorney’s fees
, accountant’s fees and other costs , pursuant to a Stipulation Agreement Regarding Damages ( the

“ Stipulation Agreement”) that she entered into with the United States Postal Service (“USPS”) to resolve certain employment discrimination and retaliation claims

. See generally Pl. Mot. The government has also moved for summary judgment on the issues of whether plaintiff may recover the requested attorney’s fees
, accountant’s fees and other costs, and the quant u m of plaintiff’s recoverable fees, pursuant to Rule 56 of the Rules of the United States Court of Federal Claims (“RCFC”). See generally Def. Mot. For the reasons discussed below, the Court : (1) GRANTS

- IN

- PART and DENIES

- IN

- PART plaintiff’s moti on for attorney’s and accountant’s fees and (2) GRANTS

- IN

- PART and DENIES

- I N

- PART the government’s2

m otion for summary judgment.

II. FACTUAL AND PROCEDURAL BACKGROUND 1

A. Factual Background

This multi

- year breach of contract litigation has involved three opinions from this Court and two appeals to the United States Court of Appeals for the Federal Circuit. The Court now addresses the award of attorney ’ s fees, accountant’s fees and other costs to plaintiff , pursuant to the terms of the Stip ulation Agreement that she entered into with the USPS

. As background, p laintiff commenced this action on April 24, 2009. See generally Compl. In the complaint, plaintiff alleged that the USPS materially breached her Stipulation Agreement with the USPS in four ways , namely : (1) by failing to pay all required interest on all back pay and lump sum payments made to plaintiff , pursuant to paragraph 8 of the Stipulation
A greement; (2) by failing to pay plaintiff certain tax consequences due to her receipt of l ump sum payments and back pay (the “Tax Consequences Payment”)
, pursuant to paragraph 14 of the Stipulati on A greement; (3) by refusing to allow plaintiff to return to work and resume her duties , pursuant to paragraphs 1, 2 and 21 of the Stipulation A greement; and (4) by failing to pay all
interest due for the USPS’s failure to make full and complete payments under the Stipulation Agreement , pursuant to paragraph 28 of the Stipulation Agreement

. Id. at ¶¶ 10

- 14

. On August 18, 2010, the Court issued a M emorandum O pin ion and Or der dismissing the case upon jurisdictional grounds. See generally VanDesande v. U nited S tates , 94 Fed. Cl. 624 (2010). Plaintiff appealed the dismissal to the United States Court of Appeals for the Federal Circuit, and the F ederal C ircuit issued a decision reversing th is Court’s dismissal decision and remanding the case on March 23, 2012

. VanDesande v. United States , 673 F.3d 1342 (Fed. Cir. 2012). The parties’ subsequent attempts to settle the c ase were not successful.

1 The facts in this Memorandum Opinion and Order are taken from the complaint (“Compl.”); plaintiff’s motion for attorney’s and accountant’s fees and memorandum in support thereof (“Pl. Mot.” ) and ( “Pl. Mem.” ) ; and the exhib its attached thereto (“P l. Ex. ”); the government’s response and opposition to plaintiff’s motion for attorney’s and accountant’s fees and motion for summary judgment (“Def. Mot.”) ; and the appendix attached thereto (“D ef. A pp’x ”). Unless otherwise noted, the facts recited herein are undisputed.3

In 2016, the parties filed cross

- motions for summary judgement on the issue of whether the USPS breached the Stipulation Agreement

. See generally ECF Nos. 10 6, 10 7, 115 . Plaintiff

a rgued in her motion that the USPS breached th e Stipulation Agreement by: (1) failing to reinstate her with pay and later terminating her employment, in violation of paragraphs 1, 2, 12
and 21 of the Stipulation Agreement; (2) failing to make the Tax Consequences Payment, pursuant to paragraph 14 of the Stipulation Agreement; and (3) failing to calculate and pay the correct amount of interest due to plaintiff, pursuant to paragraph 8 of the Stipulation Agreement.
ECF No. 107 at 19

- 35

. On February 24, 2017, the Court issued a Memorandum Opinion and
O rder denying plaintiff’s moti on for summary judgment and granting

- in

- part and denying

- in

- part the government’s cross

- motion for summary judgment. See generally Van D esande v. United
States , No. 09

- 258C, 2017 WL 745734 (Fed. Cl. Feb. 24, 2017).
In 2017, the parties filed renewed cross

- motions for summary judgement on the issues of whether the USPS breached paragraphs 14 and 21 of the Stipulation Agreement. See generally ECF Nos. 127, 131

. In her renewed motion for summary judgment, p laintiff ar gued that the government breach ed paragraph 14 of the Stipulation Agreement , following the receipt of
her accountant

- calculated tax consequences, along with one other legal issue

. ECF No. 127
at 18

- 33. On December 21, 2017, the Court issued a Memorandum Opinion and Order denying plaintiff’s renewed moti on for summary judgment and granting

- in

- part and denying

- in

- part the government’s renewed cross

- motion for summary judgment. See generally Van D esande v.
United States , No. 09

- 258C, 2017 WL 6521686 (Fed. Cl . Dec. 21, 2017).
After p laintiff appealed the Court’s February 24, 2017, and December 21, 2017,
decisions , the Federal Circuit affirmed the C ourt’s grant of summary judgment to the government on all issues , with the exception of the Court ’s grant of summary judgment in favor of the government with regards to p laintiff’s claim that the USPS breached paragraph 14 of the Stipulation Agreement by not making the Tax Consequences Payment

. See generally
VanDesande v. United States , 771 Fed. App ’ x 471 (Fed. Cir. 2017)

. With regards to that issue , the Federal Circuit held that the government was liable to p laintiff in the amount of $33,691.00, plus interest thereon from May 15, 2006 , until payment, for the unpaid 2003 Tax C onsequence s Payment requir ed by paragraph 14 of the Stipulation Agreement , plus reasonable attorney’s fees, accountant’s fees, and costs , pursuant to paragraph 14 of the Stipulation Agreement

. Id

. at 476. And so, the Federal Circuit remanded the case to th is Court : “(1) for entr y of judgment for4

[ p laintiff] in the amount of $33,691; (2) for determination of the amount of interest to which [ p laintiff] is entitled on that amount; and (3) for determination of the amount of reasonable costs, reasonable legal fees, and reasonable acco untant fees to which [ p laintiff] is entitled.” 2 Id

. Following the remand of the case, the C ourt established a schedule for the parties to brief any unresolved issues related to the Federal Circuit’s mandate

. See Scheduling Order , dated July 8, 2019. Because t he parties have not reach ed an agreement on the amount of plaintiff’s requested attorney’s fees and accountant’s fees, the Court resolves these remaining issues.

B. Procedural History
On December 16, 2019, plaintiff filed a moti on for attorney’s and accountant’s fees and a memorandum in support thereof. See generally Pl. Mot.; Pl. Mem. On January 21, 2020, the government filed a response and opposition to plaintiff’s motion for attorney’s and accountant’s
fees and a motion for summary judgment. See generally Def. Mot.
On February 13, 2020, plaintiff filed a reply in support of her motion and a response and opposition to the government’s motion for summary judgment. See generally Pl. Resp. On April 7 , 2020 , the government file d a reply in support of its motion for summary judgment. See generally Def. Reply. On May 19, 2020, plaintiff filed a notice of total attorney’s hours and claimed
recoverable attorney hours, pursuant to the Court’s May 4, 2020, Order. See generally Pl.
N otice.
These matters having been fully briefed, the Court addresses the pending motions.

III. LEGAL STANDARDS

A. The Stipulation Agreement

P aragraph 14 of the Stipulation Agreement provides, in relevant part, that:
The Agency shall pay the amount of tax consequences calculated by the Complainant’s accountant, within one hundred and eighty (180) calendar days of service by the Complainant on the Agency’s assigned representative (the designated representative as filed with the EEOC on the date of this

2 Following remand, the government paid the 2003 T ax Co nsequence s P ayment in the amount of $33,691.00
, plus interest. Pl. Mem. at 10; Def. Mot. at 3 n.2.5

Stipulation Agreement). If the Agency fails to pay the amount calculated by the Complainant’s accountant within the required 180 calendar day time period, then the Agency shall be in breach of this Stipulation Agreement, and shall be responsible for all costs, legal fees and accountant fees incurred by the Complainant to enforce this provision of the Stipulation Agreement

. Def. App’x at A66 (emphasis supplied).
Paragraph 14 of the Stipulation Agreement further provides that: The agency further agrees to pay the complainant all reasonable expenses incurred in hiring a Certified Public Accountant to calculate the tax consequences provided for in this Stipulation A greement. Such payment for the Complainant’s CPA expenses s hall be payable in conjunction with the payment for tax consequences.

Id. at A6 7

. Lastly, paragraph 28 of the Stipulation Agreement provides that: Failure of the Agency to fully and completely comply with the payment requirements of paragraphs 14, 15, and 21 of th is Stipulation A greement, including not making payments within the required time limits, will result in the Agency paying interest from the date of noncompliance to the date of the required payment is made, at the federal judgment rate. Additionally, the Agency will pay for all expenses, including attorney ’ s fees, for any action taken to enforce the failure to make full, complete and timely payments as required in paragraphs 14, 15 and 21, if complainant prevails.

Id. at A70.

B. Contract Int erpretation The United States Court of Appeals for the Federal Circuit has held that “contract interpretation is a question of law.” BASR P ’ ship v. United States , 915 F.3d 771, 780 (Fed. Cir. 2019) (citing Barron Bancshares, Inc., v. United States , 366 F. 3d 1360, 1368 (Fed. Cir. 2004) ) ; see also Greenhill v. United States , 92 Fed. Cl. 385, 393 (2010) (“The interpretation of a settlement agreement is a question of law.”); Harris v. Dep’t of Veterans Affairs , 142 F.3d 1463, 1467 (Fed. Cir. 1998) (“A settleme nt agreement is a contract, and we apply basic contract principles unless precluded by law.”). It is also well

- established that the Court’s interpretation of a contract begins with its “plain language.” McAbee Constr., Inc. v. United States , 97 F.3d 1431 , 1435 (Fed. Cir. 1996) (citations omitted); see also Bell/Heery v. United States , 739 F.3d 1324,6

1331 (Fed. Cir. 2014) (citing Coast Fed. Bank, FSB v. United States , 323 F.3d 1035, 1038 (Fed.
Cir. 2003) ( “Contract interpretation begins with the language o f the written agreement.” ) . And so, the plain and unambiguous provisions of a contract “must be given their plain and ordinary meaning

. . . and the court may not resort to extrinsic evidence to interpret them.” McAbee Constr., Inc. , 97 F.3d at 1435 ( internal citations omitted) ; see also Jowett, Inc. v. United States , 234 F.3d 1365, 1368 (Fed. Cir. 2000) (quoting Harris , 142 F.3d at 1 4 67) (The Court gives “the words of the agreement their ordinary meaning unless the parties mutually intended and agreed to an alternative meaning.”)

. C. RCFC 56
Lastly, p ursuant to RCFC 56 , a party is entitled to summary judgment when there is “no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” RCFC 56(a); see Anderson v. L iberty Lobby, Inc. , 477 U.S. 242, 247

- 48 (1986); 8x8, Inc. v. United States , 854 F.3d 1376, 1380 (Fed. Cir. 2017) . A dispute is “genuine” when “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.”
Anderson , 477 U.S . at 248. A fact is “material” if it could “affect the outcome of the suit under the governing law.” Id

. The moving party bears the burden of demonstrating the absence of any genuine issues of material fact. Celotex Corp. v. Catrett , 477 U.S. 317, 323 (1986). And so, ‘“the inferences to be drawn from the underlying facts . . . must be viewed in the light most favorable to the party opposing the motion.”’ Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 587

- 88 (1986) (quoting United Sta tes v. Diebold, Inc. , 369 U.S. 654, 655 (1962)).
In making a summary judgment determination, the Court does not weigh the evidence presented, but instead must “determine whether there is a genuine issue for trial.” Anderson , 477 U.S. at 249; see also Ago sto v. INS , 436 U.S. 748, 756 (1978) (internal citations omitted) (“[A trial] court generally cannot grant summary judgment based on its assessment of the credibility of the evidence presented . . . .”); Am. Ins. Co. v. United States , 62 Fed. Cl. 151, 154 (2004)

. And so, t he Court may grant summary judgment when “the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party . . . .” Matsushita Elec. Indus. Co. , 475 U.S. at 587 (citations omitted).

IV. LEGAL ANALYSIS In her motion for attorney’s and accountant’s fees, p laintiff seeks to recover : (1)7

$2 65 , 025.80 in attorney’s fees ; (2) $2,500.00 in accountant’s fees ; (3) $12,702.86 for litigation costs and expenses ; (4) $3,000.00 for the attorney’s fees of William Berger, Esq.; and (5) $9,907.00 for the tax on her T ax Co nsequences P ayment from the USPS

. Pl. Mem. at 27; s ee also Pl. Notice, dated March 12, 2020. Plaintiff maintains that all of the se requested costs , fees and payments are reasonable and recoverable under paragraphs 14 and 28 of the Stipulation Agreement

. Pl. Mem. at 11

- 26.

I n its response and opposition to plaintiff’s motion and motion for summary judgment
, the government counters that plaintiff may not recover all of the attorney’s fees that she seeks
, because plaintiff’s recovery is limited to the attorney’s fees that she incurred to enforce the USPS’s obligation to make the T ax C onsequences P ayment required under paragraph 14 of the Stipulation A g reement. Def. Mot. at 4

- 21. The government also argues that plaintiff has not properly calculated her recoverable attorney’s fees, because the hourly rates for plaintiff’s attorney ’ s fees should be the applicable retainer

- fee rate s under plaintiff’s reta iner agreement s with her counsel. Id. at 21

- 27.

T h e government also argues that plaintiff has not provide d support for the requested
amount of her accountant’s fees

. Id. at 27

- 29. Lastly, the governm ent does not contest plaintiff’s request to recover her litigation costs and expenses ; the attorney’s fees of William Berger, Esq. ; and the tax on her Ta x C onsequences P ayment

. Id. at 29

- 30

. And so, the government request s that the Court : (1) deny plaintif f’s motion in part ; (2) reduce the amount of plaintiff’s recoverable attorney’s fees to $ 23,985.00 ; and (3) deny plaintiff’s request to recover

accountant ’s fees. Id. at 30.
For the reasons that follow, plaintiff may recover : (1) $12,702.86 for litigatio n costs and
expenses; (2) $3,000.00 for the attorney’s fees of William Berger, Esq.; and (3) $9,907.00 for the
tax on her T ax C onsequences P ayment , pursuant to the terms of the Stipulation Agreement.
P laintiff has not shown, however, that she is entitled to recover the entirety of the $265,025.80 in attorney’s fees that she request s , because her ability to recover such fees is limited by the terms

o f the Stipulation Agreement

. In addition, a review of the Stipulation Agreement shows that the rate of pay for plaintiff’s recoverable attorney ’s fees must be the amount that plaintiff a greed to pay for these
services under the terms of her retainer ag reement s with counsel. Plaintiff also has not met her8

burden to show that she is entitled to the amount of accountant’s fees that she seeks to recover from the government. Given this , the Court reduce s the amount of plaintiff’s recoverable attorney’s fee s in this case to $101,687.50 , and the amount of plaintiff’s recoverable accountant’s
fees to $ 1,067. 76

. And so , the Court : (1) GRANTS

- IN

- PART and DENIES

- IN

- PART plaintiff’s moti on for attorney’s and accountant’s fees and (2) GRANTS

- IN

- PART and DENIES

- IN

- PART the government’s m otion for summary judgment.

A. Plaintiff May Recover Her Litigation Cost s And Expense s
As an i nitial matter, the Court agrees with the parties that plaintiff m ay recover $ 25,60 9.86 for certain litigation costs and expenses, attorney’s fees and the payment for the tax consequences of her T ax C onsequences P ayment , pursuant to the terms of the Stipulation Agreement

. Pl. Mem. at 26; Def. Mot. at 29

- 30. In her motion for attorney’s and accountant’s
fees , plaintiff seeks to recover : (1) $12,702.86 in litigation expenses and costs associated with this litigation; (2) $3,000.00 for attorney’s fees related to the enforc ement of paragraph 14 of the Stipulation Agreement incurred by her previous counsel, William Berger, during proceedings before the Equal Employment Opportunity Commission; and (3) $9,907.00 for the tax consequences of her T ax C onsequences P ayment. Pl. Mem . at 26

. Paragraph 14 of the Stipulation Agreement provides that: The Agency shall pay the Complainant a lump sum payment for all tax consequences created by all back pay and lump sum payments required in this Stipulation Agreement ; including a lump sum p ayment to the Complainant to pay for the additional tax consequences created by the lump sum tax consequences payment required by this paragraph. . . . If the Agency fails to pay the amount calculated by the Complainant’s accountant within the required 180 calendar day time period, then the Agency shall be in breach of this Stipulation Agreement, and shall be responsible for all costs, legal fees and accountant fees incurred by the Complainant to enforce this provision of the Stipulation Agreement. Def. Ap p’x at A 66

. And so, as the government acknowledges, the Stipulation Agreement allows for plaintiff to recover the requested payments , costs, and expenses from the government. Def.
Mot. at 29

- 30.

Given this , the Court GRANTS plaintiff’s motion for attorney’s and accountant’s fees with regards to these costs , expenses and payments , a nd awards plaintiff $12,702.86 in litigation9

expenses and costs; $3,000.00 for attorney’s fees incurred by William Berger; and $9,907.00 for the payment of the tax conseq uences of her T ax C onsequences P ayment.

B. Plaintiffs Requested Attorney’s Fees Must Be Reduced The parties disagree about the amount of attorney’s fees that plaintiff may recover in this

matter. P laintiff seeks to recover $2 65,025,80 in attorney’s fees for legal services provided since the inception of this multi

- year litigation. Pl. Notice, dated March 12, 2020. Specifically , plaintiff seeks to recover attorney’s fees based upon 4 66.8 attorney hours, which reflects a 30%
overall reduction of the 667.1 total number of attorney hours expended by her counsel in this

case

. Pl. Notice

. 3
The government counters that plaintiff may not recover all of t he requested attorney’ s fees, because her recovery is limited to the attorney hours spent to enforce the government’ s obligation to make the T ax C onsequences P aymen t , based upon plaintiff’s CPA

- calculated tax
consequences . And so, the government maintains that plaintiff is entitled to recover no more than $23,985.00 in attorney’s fees under the terms of the Stipulation Agreement

. Def. Mot. at
21

- 27. Because plaintiff’s ability to recover a ttorney’s fees is governed b y the terms of the Stipulation Agreement, the Court must resolve t hree issues to determine the appropriate amount of attorney’s fees that plaintiff may recover in this case. First, the Court must determine whether the Stipulation A greement limits the amount of plaintiff’s recoverable attorney’s fees. Second, if

so, the Cour

t must reasonably allocate plaintiff’s recoverable and non

- recoverable attorney ’s
fees , consistent with the terms of the Stipulation Agreement

. Lastly, the Court must determine
the hourly rate that appl ie s to p laintiff’s recoverable attorney’s fees.

3 T o determine the amount of recoverable attorney hours and the applicable fee rate in this case , t he Court relies upon the total number of attorney hours identified in plaintiff’s notice filed with the Court on May 19, 2020

. See generally Pl. Notice.10 1. P laintiff’s Recovery Is Limited By The Terms of the Stipulation Agreement As a preliminary matter, a plain reading of the Stipulation Agreement makes clear that

t he amount of attorney’s fees that plaintiff may recover in this case is limited by th at agre ement

. As discussed above, p aragraph 14 of the Stipulation Agreement provides , in relevant part, that: If the Agency fails to pay the amount calculated by the Complainant’s accountant within the required 180 calendar day time period, then the Agency shall be in breach of this Stipulation Agreement, and shall be responsible for all costs, legal fees and acco untant fees incurred by the Complainant to enforce this provision of the Stipulation Agreement

. Def. App’x at A 66 (emphasis supplied). Paragraph 28 of the Stipulation Agreement also provides that “ the Agency will pay for all expenses, including attorney ’ s fees, for any action
taken to enforce the failure to make full, complete and timely payments as required in paragraphs 14, 15 and 21, if complainant prevails

. ” Id. at A 70 (emphasis supplied). A nd so , the Court reads these provisions of the Stipulation Agreement to limit plaintiff’s ability to recover attorney’s fees in this case t o those fees that have been incurred by plaintiff to enforce the USPS’s obligation to make the T ax Co nsequences P ayment required under paragraph 14 of the Stipulation Agreement. See VanDesande v. United States , No. 09

- 258C, 2017 WL 745734,
at *18

- *19 (Fed. Cl. Feb. 24, 2017).
A review of the litigation history for this case reveals that plaintiff pursued multiple legal
claims in t his case and that her e fforts to enforce paragraph 14 of the Stipulation Agreement were modest during the early stages of this case . The litigation history also reveals that plaintiff’s
efforts to enforce paragraph 14 of the Stipulation Agreement increased as the litigation
pro gressed.

P laintiff commenced this action more than a decade ago

— on April 24, 2009

. See generally Compl. Since that time, the parties have briefed the government’s unsuccessful
motion to dismiss , two rounds of summary judgment motions on various liabili ty issues and fully litigated two appeals before the Federal Circuit

. See generally ECF Nos. 11, 15, 24, 10 6, 10 7, 115, 127, 131, 138. The complaint in this matter allege s that the government breached paragraph 14 of the Stipulation Agreement by failing to pay plaintiff’s tax consequences See generally Compl. But, this claim is just one of four breach of contract claims asserted in the complaint.11

Id. The government’s breach of paragraph 14 is also the subject of plaintiff’s initial motion for summary judgment filed on August 29, 2016

. ECF No. 107 at 19

- 35; s ee also ECF No. 1 06

. As plaintiff correctly observes, t he prominence of her breach of contract claim based upon paragraph 14 increase d as this litigation progressed

. Notably, p laintiff raised the issue of the government’s breach of paragraph 14, along with one other legal issue, in her renewed motion for summary judgement dated July 31, 2017

. ECF No. 127 at 18

- 33 . During her 2018 appeal, plaintiff also raised four issues related to her claim that the government breach ed paragraph 14 of the Stipulation Agreement

. See generally VanDesande v. United States , 771 Fed. App ’ x 47 1 (Fed. Cir. 2017). And so, the Court agrees with the government that plaintiff’s

re coverable a ttorney ’s fees should be allocated to re flect the fact that her successful effort to enforce paragraph 14 of the Stipulation Agreement involve d o ne of several leg al issues that the parties litigated in this case

.

2. The Court Reduces Plaintiff’s R ecover able Attorney’s Fee s For Services Provided Prior T o April 4, 2017 In light of the foregoing concerns, the Court must reduce the amount of plaintiff’s recoverable attorney’s fees for work performed during the early stages of this litigation. Plaintiff
seeks to recover attorney’s fees for 294 of 420.1 attorney hours incur red from the inception of
this case to April 3 , 2017. Pl. Notice. But, as discussed above, plaintiff’s breach of contract claim based upon paragraph 14 of the Stipulation Agreement was not a significant focus of this

case during the early stages of this litigation.

T he Court is not , however, persuaded by the government’s argument that plaintiff should

not recover any attorney’s fees for attorney hours incurred before April 4, 2017

. Def. Mot. at 8

- 14

. T he government correctly observes that plaintiff first argued that the USPS breached paragraph 14 of the Stipulation Agreement , based upon her accountant

- prepared tax consequences payment , in April 2017

. Id. at 12

- 1 4. But, as discussed above, the litigation history of this case makes clear that plaintiff asserted a breach of contract claim based upon paragraph 14 at the inception of this litigation

. And so, plaintiff may reco ver a reasonable portion of the attorney ’s fees that she incurred during the early stage of this case

.
P la intiff ’s propose d 30% red u ction o f the a ttorney ’s fees incurred before April 4, 2017, does not reflect a reasonable allocation of the atto rney hours actually spent on her12

breach of contract claim based upon paragraph 14

. The Cour t observes that plaintiff’s
claim related to the breach of paragraph 14 of the Stipulation Agreement is one of four allegations raised in the complaint

. See generally Compl . Give n this, the Court concludes that a reasonable allocation of plaintiff’s recoverable attorney’s fees under paragraph 14
should be 2 5% o f th e total attorney hours incurred by her counsel prior to April 4, 2017

. And so, the Co urt reduces the number of attorney hours for which plaintiff may recover attorney’s fees for the period prior to April 4, 2017 , by 75% t o 105 attorney hours

.

3. The Court Must Reduce Plaintiff’s R ecover able Attorney’s Fees For Services Provided Between April 4, 2017 , And May 11, 2019 An additional reduction of plaintiff’s recoverable attorney’s fees f o r legal services provide d during the period April 4, 2017, to May 11, 2019, is also warranted in this case

. Plaintiff seeks to recover attorney’s fees f or 102.3 of 146.2 total attorney hours incurred during this period , constituting a 30% overall reduction of her attorney’s fees

. Pl. Notice

. But, as t he government persuasively argues, plaintiff may not recover all of the se requested attorney’s fees
, bec a use the litigation history in this case shows that a t least half of the work performed by her
counsel during this period of time did not involve the enforcement of paragraph 14 of the Stipulation A greement. 4 Def. Mot. at 15

- 21.

As discussed above, the Stipulation Agreement requires that the amount of plaintiff’s

r ecoverable attorney’s fees be reasonabl y allocat ed to reflect th e attorney hours spent e nforc ing paragraph 14 of th at ag reement. D uring th is phase of the case, the parties en gaged in the b riefing
of t wo rounds of cross

- motions for summary judgment on several issues

— including whether the
USPS b r eached paragraph 14 by failing to pay plain tiff’s tax consequences. A s discussed above,

a review of plaintiff’s initial moti o n for summary judgment dated August 29, 2016 , shows that the government ’s breach of paragraph 14 was one of three lega l issues raised in that motion

. ECF No. 10 6 at 13 ; see also ECF No. 10 7 at 19

- 35

. This issue is also o ne of two issues raised by

4 The government requests that the Court reduce the number of plaintiff’s recoverable attorney hours to approximately 35% of plaintiff’s total attorney hours. Def. Mot. at 15

- 21 (arguing that plaintiff should recover 30.9 hours for the period April 4, 2017

- December 21, 201 7 , and 17.4 hours for the period December 22, 201 7 , to May 11, 2019).13

plaintiff in her r enewed motion for summary judgment

. 5 ECF No. 127 at 18

- 33. Given this , the
Court concludes that 50% of the total attorney hours incurred during th e period April 4, 2017, to May 11, 2019, c onstitutes a reasonable allocation of the attorney hours incurred by plaintiff’s
counsel to enforce paragraph 14 of the Stipulation Agreement . And so, plaintiff may recover attorney’s fees for 73.1 hours expended during the period April 4, 2017 , to May 11, 2019

.

4. Plaintiff May Recover Reasonable Attorney’s Fees Incurred After May 11, 2019 Lastly, the Court is not persuaded by the government’s argument that plaintiff may not recover any attorney’s fees incurred after May 11, 2019. Def. Mot. at 14

- 15. P laintiff seeks to recover attorney’s fees for 70.5 of 100.8 attorney’s hours incurred since May 11, 2019. Pl.
Notice. Plaintiff represents that this time includes hours spent preparing a reply brief in support of her motion for attorney’s and accountant’s fees. Pl. Resp. at 22; see also Pl. Resp. at Ex. A (Mr. Hannah’s Supplemental Affidavit).

T he government argues that most of these attorney’s fees are not recoverable, because the government delivered the 2003 T ax C onsequences P ayment and interest due to plaintiff on May 11, 2019, thereby ending her effort s to enforce paragraph 14. Def. Mot. at 14

- 15. But, the Court reads the Stipulation Agreement to allow plaintiff to recover attorney’s fees for legal services provided to resolve her request for attorney’s fees pursuant to paragraph 14 of the Stipulation Agreement

.
P aragraph 28 of the Stipulation Agreement provides that the government “will pay for all expenses, including attorney ’ s fees , for any action taken to enforce the failure to make full, complete and timely payments as required in [paragraph 14], if complainan t prevails.” Def. App’x at A70 (emphasis supplied). Paragraph 14 of the Stipulation Agreement also makes clear that the government is responsible for “all costs, legal fees and accountant fees” incurred by plaintiff to enforce that provision. Id. at A66

. The Court interprets th ese contractual provision s
to permit plaintiff to recover attorney ’ s fees incurred to enforce the government’s obligation to pay her attorney’s fees and costs under paragraph 14

. See id.

5 P laintiff also filed her 2018 appeal during this time period , which raised four issues related to her claim that the government breach ed paragraph 14 of the Stipulation Agreement

. See Notice of Appeal, dated Feb. 20, 2018.14

While it is undisputed that plaintiff rece ived her T ax C onsequences P ayment on May 11, 2019, the invoice of professional services provided to the Court by her counsel makes clear that plaintiff’s effort to enforce the government’s obligation to pay the attorney’s fees that she
incurred to enforce paragraph 14 continued after plaintiff received this payment. 6 See Pl. Ex. 4
at 26

- 30. Mr. Hannah’s Supplemental Affidavit, dated February 13, 2020, also states that he expended additional attorney hours preparing plaintiff’s reply brief in support of he r motion for attorney’s fees and accountant’s fees. See generally Pl. Resp. at Ex. A.
Given this, the Court concludes that 50% of the total attorney hours incurred since May 11, 2019, constitutes a reasonable allocation of the attorney hours incurred to enforce paragraph 14 of the Stipulation Agreement since May 11, 2019 . And so, plaintiff may recover attorney’s
fees for 50. 3 attorney hours incurred during this period

.

5. Fee Rat e Having determine d the appropriate a l location of pl aintiff’s attorney ’s hours , the Court
next addresses t he proper fee rate to be appl ied in this case

. Again, p aragraph 14 of the
S tipulation Agreement is dispositive of this question and provides , in relevant part, that :
[T] he Agency

. . . shall be respons ible for all costs, legal fees and accountant fees incurred by the Complainant to enforce this provision of the Stipulation Agreement

. Def. App’x at A 6 6 (emphasis supplied)

. And so, the Court reads paragraph 14 to allow plaintiff

to recover attorney’s fees based u pon the amount of attorney’s fees that she actually incurred to litigate this case

.
It is without dispute that p laintiff entered into three retainer agreement s with her counsel
to determine the hourly rate that she would pay for legal services provided in connection with

t his case. Pl. Mem. at 21; Pl. Exs. 1

- 3 ; Def. Mot

. at 23

. Specifically, o n August 14, 20 0 6, plaintiff entered into a retainer agreement with her counsel in which she agreed to compensate

6 Notably, these invoices reveal that the parties continued to negotiate the amount of plaintiff’s recoverable attorney’s fees and accountant’s fees well after May 11, 2019. For example, a log entry dated June 5, 2019, identifies work involving research on attorney ’ s fees rates in this Court and the Federal Circuit. Pl. Ex. 4 at 26. Another log entry dated August 5, 2019, involves the “[r]eview [of] client declaratio ns and attorney’s fee detail regarding fees and costs.” Id. at 27.15

her counsel at a rate of $ 325

. 0 0 per hour for legal services. Pl. Ex. 1. On November 5, 2011, plaintiff entered into a second retainer agreement , in which she agreed to compensate her counsel at an hourly rate of $450.00 per hour. Pl. Ex. 2. Thereafter, th e parties agreed to modif y this retainer agreement on July 1 6 , 2019, and plaintiff a greed to compensate her counsel at a rate of $500

. 00 per hour. Pl. Ex. 3

. Given this , the applicable fee rates in this case are $325.00 per hour for attorney’s fees incurr ed from the inception of this litigation to November 4, 2011; $450.00 per hour for such fees incurred between November 5, 2011 and July 15, 2019; and $500.00 per hour for attorney’s fees incurred thereafter. 7 And so , the Court awards plaintiff the attorne y’s
fees shown in the chart below:

TIME PERIOD TOTAL

ATTORNEY HOURS RECOVERABLE

ATTORNEY HOURS 8 RATE TOTAL

April 24, 2009

– November 4, 2011 106.9 (25%) 26.7 $325 $8,677.5 0 November 5, 2011

– April 3, 2017 313.2 (25%) 78.3 $450 $35,235 .00 April 4, 2017

- May 11, 2019 146.2 (50%) 73.1 $450 $32,895 .00 May 12, 2019

– July 15, 2019 10.9 (50%) 5.4 $450 $2,430 .00 July 16, 2019

- Present 89.9 (50%) 44.9 $500 $22,450 .00

TOTAL $101,687.5 0

7 The Court is not persuaded by plaintiff’s argument that the Lodestar method and forum rule should be employed to calculate her recoverable attorney’s fees in this case. Pl. Mem. at 13

- 17. The Federal Circuit has endorsed the lodestar method to calculate a prevailing parties’ recoverable attorney’s fees in cases involving the award of attorney’s fees based upon a fee shifting statute

. See e.g., Bywaters v. United States , 670 F.3d 1221 , 1228

- 29 (Fed. Cir. 2012); Avera v. Sec’y of Dept. of Health and Human Servs., 515 F.3d 1343, 1347 (Fed. Cir. 2008). But, in this case, plaintiff’s recovery of attorney’s fees is governed by the terms of her Stipulation Agreement with the USPS.

8 T o facilitate the cal culation of plaintiff ’ s re coverable attorney ’ s fees, p laintiff’s recoverable attorney hours for the period before April 4, 2017 , are divided to reflect those hours incurred before and after the date of her second retainer agreement

. See Pl. Notice; see also Pl. Ex. 2. Plaintiff ’ s recoverable attorney ’ s f

ees f or the period after May 11, 2019 , are also divi de d between the hours incurred before and after the date of plaintiff ’ s July 16, 2 0 19 , re tain er ag reement with her counsel. See Pl. Notice; see also Pl. Ex. 3.16

C. Plaintiff Has Not Established Her Incurred Accountant’s Fees
As a final matter, the Court agrees with the government that plaintiff has not provide d sufficient proof to show that she is entitled to all of the accountant’s fees that she seeks in this

case

. P laintiff seeks to recover $2
, 500.00 in a ccountant’s fees for the preparation of the

accountant

- prepared adverse tax consequences calculation that she submitted to the USPS in May 200 6 . Pl. Mem . at 26. Again, the Court looks to the plain text of the Stipulation Agreement
to determine the amou n t of accountant’s fees that plaintiff may recover in this case

. In this regard, p aragra p h 14 of the Stipulation Agreement provides that the government will pay plaintiff “ all reasonable expenses incurred in hiring a Certified Public Accountant to calculate the tax consequences provided for in this Stipulation Agreement. ” Def. App’x at A 6 7

. And so, the Court reads paragraph 14 to allow plaintiff to recover the amount of expenses that
she actually incurred to obtain a certified public accountant

- prepared tax consequences calculation , provided that amount is reasonable

.
P lainti f f represents to the Court in a sworn affidavit that she p aid her certified public

accountant “ $ 2500.00 to analyze and prepa r e the tax calculations used in my claim s against the
U.S. Postal S ervic e.” Pl. Ex. B at 1. But, plaintiff acknowledges that she has been unable to locate the original bill for these services and she provides no other documentation to support her request for accountant’s fees

. Pl. Mem . at 26. And so , plaintiff simply has not sufficiently
demonstrated that she incurred

— and is entitled to recover

— al l of the accountant’s fees that she
seeks in this case

.
T he government has proposed a reasonable alternative

— to calculate plaintiff’s
reasonable accountan t’s fees based upon the United States Bureau of Labor Statistics (“BLS”) May 2006 published hourly rate for accountants ( $ 44.49 per hour )

. 9 Def. Mot. at 28

- 29. Based upon an estimated 24 hours of accountant work, plaintiff would have incurred accountant’ s fees in the amount of $ 1 , 067. 76 , under the BLS rate

. And so, the Court awards p l aintiff reasonable

9 The g overnment states that this rate is based upon the BLS’s May 2006 statistics, which show a median hourly wage of $27.38 for accountants and auditors. Def. Mot

. at 29; www.bls.gov/oes/tables.htm. When adjusted for overhead and profit, the government represents that the median hourly rate for such services becomes $44.49. Def. Mot

. at 29. Plaintiff argues that the BLS rate is unrealistic. Pl. Resp. at 27

- 28. But, she does not put forward an alternative basis for calculating her accountant’s fees based upon verifiable fee data. Id.17

accountant’s fees in the amount of $1
, 067. 76 , pursuant to the terms of the Stipulation Agreement

. V. CONCLUSION
In sum, plaintiff has shown that she is entitled to recover certain litigation expenses , costs and payments; attorney’s fees for William Berger, Esq. ; and the payment for the tax consequences of her T ax C onsequences P ayment. Plaintiff has not shown, however, tha t she is entitled to the amount of attorney’s fees and accountant’s fees that she requests in this case.
And so, for the foregoing reasons, the Court:

1. GRANTS

- IN

- PART and DENIES

- IN

- PART plaintiff’s moti on for attorney’s and accountant’s fees;

2. GRANTS

- IN

- PART and DENIES

- IN

- PART the government’s m otion for summary judgment ;
3. AWARDS plaintiff a total recovery in the amount of $128,365.1 2 , to consist of the following:

a. $12,702.86 for litigation costs and expenses;
b. $3,000.00 for the attorney’s fees of William Berger, Esq.;

c. $9,907.00 for the tax on plaintiff’s T ax C onsequenc es P ayment; d. $101,687.50 for the attorney’s fees of Roderick V. Hannah , Esq.; and

e. $1,067. 76 for plaintiff’s reasonable accountant ’s fees

. 4. DIRECTS the Clerk to ENTER FINAL JUDGMEN T in the total amount of $128,365.1 2 to consist of the following:

a. $12,702.86 for litigation costs and expenses;
b. $3,000.00 for the attorney’s fees of William Berger, Esq.;

c. $9,907.00 for the t ax on plaintiff’s T ax C onsequence s P ayment; d. $101,687.50 for the attorney’s fees of Roderick V. Hannah , Esq.; and18 e. $1,067. 76 for plaintiff’s reasonable accountant ’s fees.

IT IS SO ORDERED.

s/ Lydia Kay Griggsby LYDIA KAY GRIGGSBY Judge