Before Rich, Rader, and Gajarsa, Circuit Judges.
The opinion of the court was delivered by: Per Curiam.
Appealed from: Office of Senate Fair Employment Practices United States Court of Appeals for the Federal Circuit
Plaintiff-Appellant William Singer (Singer) and Defendant-Appellant Office of the Senate Sergeant at Arms (OSSA) each appeal the Senate Select Committee on Ethics' (Senate Ethics Committee's) decision regarding Singer's claims for attorney fees and costs. In the Matter of William L. Singer, the Employee, and the United States Senate Sergeant At Arms (Capitol Police), the Employing Office, No. 94-010 (Office of the Senate Fair Employment Practices Oct. 6, 1997) (October 6, 1997 Senate Ethics Committee Decision). Singer incurred these fees and costs in his employment discrimination suit against the OSSA. The Senate Ethics Committee, reversing in part the Office of Senate Fair Employment Practice (OSFEP) Hearing Board's (Hearing Board's) decision, held that Singer was a prevailing party and entitled to attorney fees and costs, but substantially reduced the amount that the Hearing Board had awarded. Because substantial evidence does not support the Senate Ethics Committee's decision, and the Senate Ethics Committee based its Conclusion that Singer is a prevailing party on an erroneous interpretation of law, this court reverses.
The OSSA employed Singer as an officer with the United States Capitol Police (USCP). This appeal represents the final stage of Singer's employment discrimination suit against the OSSA, which Singer filed with OSFEP in 1994 under the Government Employee Rights Acts of 1991 (GERA). See 2 U.S.C. §§ 1201-1202 (1994), amended by Pub. L. No. 104-1, Title V, § 504(a)(1) (Jan. 23, 1995); 2 U.S.C. §§ 1203-1218 (1994), repealed by Pub. L. No. 104-1, Title V, § 504(a)(2) (Jan. 23, 1995). *fn1 The GERA gave Senate employees the right to an administrative adjudication of certain employment discrimination claims and subsequent judicial review by this court. See id.
From 1991 to 1993, Singer received four "CP-535" disciplinary notices from the USCP, for violating the USCP's "call-off" rule requiring an officer to notify his supervisor if unable to report for scheduled duty. Under the USCP's progressive system of discipline, the USCP warned Singer after his fourth violation that another violation would trigger a fifth CP-535 and a recommendation for termination. On October 25, 1993, Singer violated the policy again and the OSSA issued him a fifth CP-535. Singer then informed the USCP on October 28, 1993, for the first time, that he was an alcoholic. He claimed that his repeated violations of the call-off policy were due to his alcoholism. Singer urged the USCP that alcoholism is a legally cognizable disability and that the USCP therefore should excuse all of his past violations of the call-off policy.
The USCP took steps to accommodate Singer's alcoholism and encourage him to receive treatment, including granting Singer advance leave to obtain in-patient treatment and giving him a restricted duty position during his rehabilitation. The USCP, however, also continued disciplinary proceedings in its Disciplinary Review Board (DRB) for Singer's fifth CP-535. After a hearing, the DRB recommended to USCP Chief Abrecht that Singer be terminated. Chief Abrecht instead, however, imposed a written agreement (Last Chance Agreement) upon Singer, whereby the DRB would vacate its termination recommendation if Singer complied with the terms of the Last Chance Agreement for two years. The terms included limiting incidents of tardiness and absence, and serving a ten-day suspension without pay.
Although not terminated, Singer proceeded to file a formal GERA complaint with OSFEP. Singer alleged that the OSSA had violated the GERA by failing to accommodate his "disabilities" of alcoholism and depression and by subjecting him to unlawful disparate treatment on the basis of his alcoholism. Singer sought compensatory damages of $100,000, compensation for additional medical ailments allegedly caused by the OSSA's actions against him, restoration of sick leave, unconditional rescission of all discipline imposed upon him, and restoration to full duty.
The OSFEP Hearing Board granted Singer partial relief. The Hearing Board ruled that the OSSA was obligated to give Singer a "fresh start" (forgiving past wrongs) and a "firm choice" (between obtaining treatment and being disciplined) after Singer informed the USCP of his alcoholism. Singer v. Office of the United States Senate Sergeant at Arms (Capitol Police), SFEP Case No. 94-010 (Feb. 9, 1995) (February 9, 1995 Hearing Board Decision). The Hearing Board found that the OSSA failed to fulfill these obligations. Id. Thus, the Hearing Board ordered the USCP to rescind all discipline on Singer, including the conditions of Singer's continued employment and the ten-day suspension. Id. The OSSA appealed the Hearing Board's decision to the Senate Ethics Committee, which affirmed. In the Matter of William L. Singer, the Employee, and the U.S. Senate Sergeant At Arms (Capitol Police), the Employing Office, OSFEP Case No. SFEP 94-010 (Office of the Senate Fair Employment Practices May 23, 1995) (May 23, 1995 Senate Ethics Committee Decision).
Singer then filed a motion with the Hearing Board seeking attorney fees of $49,280.50 and costs of $3,172.42, covering the fees and costs of both the DRB proceedings within the USCP and the GERA claim before the OSFEP. The Hearing Board granted Singer's request in substantial part. Singer v. Office of the United States Senate Sergeant at Arms (Capitol Police), SFEP Case No. 94-010 (March 13, 1996) (March 13, 1996 Hearing Board Decision). The OSSA appealed to the Senate Ethics Committee, which modified the award to compensate Singer only for the OSFEP proceedings because the DRB process "was not an integral part of the OSFEP case before the Hearing Board." In the Matter of William L. Singer, the Employee, and the U.S. Senate Sergeant At Arms (Capitol Police), the Employing Office, OSFEP Case No. SFEP 94-010 at 1-2 (Office of the Senate Fair Employment Practices May 28, 1996) (May 28, 1996 Senate Ethics Committee Decision). The Senate Ethics Committee ordered the Hearing Board to reduce Singer's fees and costs accordingly. Upon remand the Board reduced his fees and costs to $32,435.98, and $2,909.32, respectively. Singer v. Office of the United States Senate Sergeant at Arms (Capitol Police), SFEP Case No. 94-010 (July 30, 1996) (July 30, 1996 Hearing Board Decision).
While Singer's claim for fees and costs was before the Hearing Board and the Senate Ethics Committee, the OSSA appealed the February 9, 1995 Hearing Board Decision (the substantive case relating to Singer's discipline) to this court. This court reversed in part, affirmed in part, and remanded. Office of the Senate Sergeant at Arms v. Office of Senate Fair Employment Practices, 95 F.3d 1102 (Fed. Cir. 1996) (Singer I).
This court held that the GERA requires an employer to provide a "reasonable accommodation" to qualifying, disabled employees. This court affirmed the Hearing Board's holding that Singer qualified under GERA, with a disability of alcoholism. Id. at 1105-06. However, this court reversed the Hearing Board's determination that the OSSA had not "reasonably accommodated" Singer. Id. at 1107. Determining that the OSSA-by offering Singer restricted-duty status and advancing him leave to obtain in-patient treatment-provided Singer his entitled prospective opportunity to be rehabilitated, this court held that OSSA satisfied GERA. Id. The GERA, this court emphasized, imposes upon an employer only the "duty . . . to provide a reasonable accommodation, not necessarily the best accommodation" for a disability. Id. (emphasis added).
This court held further that a "reasonable accommodation" under GERA need not include a retroactive accommodation, thus the OSSA need not provide Singer a "fresh start." This court reasoned that the Americans with Disabilities Act of 1990 (ADA), see 42 U.S.C. § 12114(c)(4) (1994), as incorporated by GERA, see 2 U.S.C. § 1202(a), permits an employer to hold an alcoholic employee to the same performance and behavior standards as other employees, and that an employer need only accommodate known disabilities. Singer I, 95 F.3d at 1107-08. Thus, this court held that the OSSA had no GERA-imposed duty to accommodate Singer's disabilities until Singer informed the OSSA of his alcoholism. Id.
This court also affirmed the Hearing Board's holding that Singer's depression constitutes a disability under the GERA. Nonetheless, this court found that the same reasonable accommodations that OSSA gave to Singer to accommodate his alcoholism also reasonably accommodated his depression. Id. at 1108-09. This court therefore remanded the case to the Hearing Board with instructions to revoke "all retroactive relief granted by the [Hearing Board] to be effective prior to ...