NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition is not citable as precedent. It is a public rec o rd. 

## United States Court of Appeals for the Feder a l Circuit
04-3211 JOSEPH P. CARSON,
P e t i t i o n e r ,
v. DEPARTMENT OF ENERGY,
R e s p o n d e n t

.

__________________ _________ DECIDED: March 11, 2005

__________________ _________ Before MIC H EL, Chief Judge , RADER, and SCHALL, Circuit Jud ges

. RADER, Circuit Judge

. Joseph P. Carson prevailed in three individual right of action (IRA) appeals before the Merit Systems Prot ection Boar d (Board) and sought an award of attorney fees and c o sts under 5 U.S. C. § 1221(g)(1) and (2). See Cars on v. Dep’t of Energy , Nos. AT-1221-96-0948-A-2, AT -1221-98-0250-A-2 & AT-1221- 98-0623-A-2 at 2 (MSPB Feb. 20, 2001) ( Initial Decis i on )

. In the Initial Decis i on, Administrative Judge Miller awarded M r . Carson $5,880 to one of Mr. Carson’ s attorneys, Ronald Zabel, in lieu of the $66,300 in fees requested. Id. , slip op. at 10 & 14. Admi nistrative Judge Miller found that the balance of Mr. Zabel’s fees were not reasonable bec aus e the work performed to incur those fees related to a case filed in a federal dist rict court and did not signific antly contribute to Mr. Carson’s succ ess before the Board. Id. , slip op. at 10-13.The Initial Decis i on became final on Febr uary 2, 2004, under 5 C.F.R § 1200.3(b). Carson v. Dep’t of Energy , Nos. AT-1221-96-0948-A- 2, AT -1221-98-0250-A-2 & AT1221-98-06 23-A-2 at 1 (M SPB Feb. 2, 2004) ( Fina l Decis i on ). Because substantial
evidenc e supports the Board’s f i ndings that so me of Mr. Zabel’s fee requests are not reasonable, this court affirms

. I. Mr. Carson prevailed on IR A appeals filed in 1996, 1997, and 1998, alleging that the agency had retaliated against him for dis c losu res he had made that were protected under 5 U. S.C. § 2302(b)(8). See Final Decision , Separate Opinion of Neil A McPhie, slip op. at 1 ( McPhie Opinion ). The third IRA appeal c onc erned Mr. Carson’s reassignm ent. See id. Appro x imately two months befor e filing his third IRA appea l, Mr. Carson filed a claim in the Un it ed States District Court for the District of Columbi a alleging that the reassi gnment violated his Firs t Amendment rights. See id. The action at the district court was dismissed as moot after Mr. Carson preva iled in his IRA appeals before the Board. Se e id. , slip op. at 2. Mr. Carson h ad six attorneys work on his IRA appeals and his district court action. Initial Decis i on , slip op. at 3. Due to the different actions and the number of attorneys work ing for Mr. Carson, Administrative Judge Miller informed Mr. C a rson that his attorneys should submit s pecific billing statem ents detailing: (1) the nature and substance of each ent ry with emphasis on the purpose of the legal s e rvices performed; (2) a st atement from each attorney as to whether the legal ser v ices claim ed was [sic] provided predominantly for the federal court action as distinguish ed from the Boar d proceed i ngs; and (3) a statement . . . explaining how t he work claimed by the attorneys who were not-of-record [in the Board proc eeding] contributed to his successful efforts before the Board in the hearing concluded in July, 1998.

04-3211 2Id. , slip op. at 5. Mr. Zabel did not parti cipate in any of the proceedings before the
Board. Id. , slip op. at 10. Administrative Judg e Miller ad dressed Mr. Zabel’s req uests for fees and fo und that the bulk of Mr. Zabel’s wor k related to the district court proceeding and did not signific antly contribute to Mr. Ca rson’s succ ess before the Board. Id. , slip op. at 11-14. Specifica lly , Administrative Judge Mille r found that Mr. Zabel’s hours bille d for “mediation,” preparing draft decla rations for Mr. Carson, dra fting a letter to Magistrate Judge Fac c iola, and preparation for a “court hear ing” all primarily addressed the action in the district court and did not furt her the proceedings bef ore the Board. Id. , slip op. at 11-12. Administrative Judge Miller also deni ed Mr. Zabel’s fees for work on an amicus brief that was never submitted. Id. , slip op. at 12. Mr. Zabel’s fees for “a strategy conference about proceedin g be fore MSPB befor e Dis trict Court action resu mes” were also denied because Mr. Zabel did not explai n how the strategy m eeting contributed to the success before the Board. Id. Finally, Administrative Judg e Miller fo und that the 32.1 hours Mr. Zabel worked on preparing hi s fee petition was excess ive and denie d fees for all but eight hours of that request.
II. This court must affirm any agency action, findings, or conclus i ons not found to be: (1) arbi trary or capricious, an abuse of discretion, or otherwise not in accordanc e with the law; (2) obtained withou t procedure required by law, rule, or regulation havin g been followed; or (3) unsupport ed by subs tantia l evidence. 5 U. S. C. § 7703(c) (1996); Hayes v. Dep’t of Navy , 727 F.2d 1535, 1537 (Fed. Cir. 1984).

04-3211 3Mr. Carson argues that the B oard improperly ruled that Mr. Zabel’s fees were not attorney fees. The Initial Dec i s i on of the Board, however, clearly treated Mr. Zabel’s fees as attorney fees. See Initia l Dec i sion , slip op. at 10 (addressing Mr. Zabel’s fee requests under the heading “Attorney fees fo r Ron Zabel, Esquire”). Substantial
evidenc e s upports the Board’s f i nding that Mr. Zabel’s fees are attorney fees but that those fees are not reasonable for the reasons summarized supra

. Mr. Carson also argues that Mr. Z abel’s fees should be awarded as “other
reasonable costs incurred” or “consequential damages” unde r 5 U.S.C. § 1221(g)(1) and (2). 1 This court rejected this argument w hen raised by Mr. Carson in a related appeal. This court determined that § 1221(g) expressly prov id es for the recovery of legal costs separate from “o ther reasonable costs” or “consequential damages.” Carson v. Dep’t of Energy , 64 Fed. Appx. 234, 239-40 (Fed. Cir. 2003). 2 Consequently, this

1 5 U.S.C. § 1221(g)(1) and (2) state: (1) (A) If the Board orders corrective action under this section, such corrective action may include— (i) that the individual be plac ed, as nearly as possible, in the position the individual would have been in had the prohibi ted personnel practice not occurred; and (ii) back pay and relate d benefits, medical costs incurred, travel expenses, and any other reasonabl e and foreseeable c o nsequential changes. (B) Corrective action shall inc l ude attorney's fees and c o sts as provided for under paragraphs (2) and (3). (2) If an employee, former employee, or applic ant for employment is the prevailing party before the Merit Systems Protection Board, and the decision is based on a finding of a prohibited pers onnel prac tice, the agency inv o lved shall be liable to t he em ployee, for m er employee, or applicant f o r reasonable attorney's f ees and any other reasonable costs incurred. 2 Although Carson v. Department of Energy , 64 Fed. Appx. 234 (F ed. Cir. 2003), is a non-precedential opi nion, Mr. Carson was the appel lant in that proceeding and is thus bound by the decision under Fed. Cir. R. 47.6(b). 04-3211 4court adheres to its prior ruling and rejects th is argument for the same reasons this court rejected Mr. Carson’s earlier argument.
Because s ubstantial evidenc e supports the Board’s findings that Mr. Zabel’s fees did not further Mr. Carson’s proceedings before the Board or were otherwise unreasonable, the Board’s decision is affirmed.

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