UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
2022 MSPB 38
Docket No. NY-4324-15-0127-A-1
John Doe,
Appellant,
v.
Department of State,
Agency.
November 29, 2022
Brian J. Lawler, Esquire, San Diego, California, for the appellant.
Marianne Perciaccante, Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
OPINION AND ORDER
¶1 The appellant has filed a petition for review of the addendum initial
decision, which awarded him $49,385 in attorney fees. For the reasons discussed
below, we DENY the petition for review and AFFIRM the addendum initial
decision.
BACKGROUND
¶2 The appellant filed an appeal under the Uniformed Services Employment
and Reemployment Rights Act of 1994 (codified as amended at 38 U.S.C.
§§ 4301-4335) (USERRA), asserting that the agency failed to afford him
differential pay during a period in which he was absent from his position due to
2
active military duty. Doe v. Department of State, MSPB Docket No. NY-4324-
15-0127-I-1, Initial Appeal File (IAF), Tab 1 at 8-11. 1 Throughout the
proceedings, the appellant was represented by an attorney who practices in
San Diego, California. Id. at 6; Doe v. Department of State, MSPB Docket
No. NY-4324-15-0127-A-1, Attorney Fees File (AFF), Tab 1 at 23, 26-27. The
attorney-client agreement between the appellant and his attorney does not reflect
an hourly rate. AFF, Tab 1 at 29-31. Instead, the agreement states that the
attorney was entitled to one-third of any recovery made before hearing. 2 Id.
at 29. If the appellant did not recover anything, neither would his attorney under
the terms of the agreement. Id.
¶3 In her initial decision, the administrative judge found that the appellant was
entitled to differential pay during the relevant time period, and she granted the
appellant’s request for corrective action under USERRA. Doe v. Department of
State, MSPB Docket No. NY-4324-15-0127-I-2, Appeal File (I-2 AF), Tab 9,
Initial Decision at 3-5. Neither party filed a petition for review. The appellant
then filed a motion for attorney fees under 38 U.S.C. § 4324(c)(4), which permits
the Board to award reasonable attorney fees under USERRA . AFF, Tab 1. In a
declaration submitted with the request, the appellant’s attorney described his
experience in Federal district and circuit courts. Id. at 21-24. He indicated that
his current hourly rate for USERRA litigation is $650 per hour , Federal district
courts in California generally had found that fee to be a reasonable hourly rate for
a law firm partner, and a Federal district court in California awarded him this
1
The appellant included with his appeal a motion to proceed anonymously. IAF, Tab 1
at 16-19. The agency did not oppose the appellant’s motion, and the administrative
judge granted it. IAF, Tab 6.
2
Because the appellant withdrew his hearing request during the merits phase of the
appeal, provisions in the agreement related to a hearing are inapplicable. Doe v.
Department of State, MSPB Docket No. NY-4324-15-0127-I-2, Appeal File, Tab 4.
3
rate. 3 Id. at 23-24, 40-41. In a second declaration, another practicing attorney
averred that the rate of $650 per hour was reasonable for someone of the
appellant’s attorney’s experience, reputation, and USERRA expertise practicing
in San Diego. Id. at 15-16. In doing so, he referenced rates charged by attorneys
practicing in Federal district court. Id. at 15. The appellant also includes the
sworn declaration of a professional contact, who averred to the expertise of the
appellant’s attorney in USERRA matters but did not express an opinion regarding
a reasonable hourly rate. Id. at 19-20.
¶4 The administrative judge issued an addendum initial decision finding that
the 116.2 hours of work that the appellant’s attorney claimed was reasonable.
AFF, Tab 9, Addendum Initial Decision (AID) at 5. However, she found that his
claimed hourly rate of $650 was not reasonable for a San Diego attorney
practicing before the Board, even one with the appellant’s attorney’s
qualifications. AID at 3-5. Instead, she found that $425 was a reasonable hourly
rate. Id. In reaching this conclusion, she reviewed fees awarded in recent
addendum initial decisions to attorneys practicing in the San Diego area, which
ranged from $325 to $425 per hour. AID at 4.
¶5 The appellant has filed a petition for review, in which he contends that the
administrative judge erred in reducing his attorney’s hourly rate, arguing that he
prevailed on the only issue in his USERRA appeal, and that “but for [his]
counsel’s renowned expertise in this nuanced area of law, the [a]ppellant would
not have been awarded the differential pay to which he is entitled.” Attorney
Fees Petition for Review (AFPFR) File, Tab 1 at 4. The agency has responded to
the petition for review. AFPFR File, Tab 3.
3
The appellant’s attorney is the principal of Pilot Law, P.C. AFF, Tab 1 at 21.
4
ANALYSIS
¶6 In situations like the one before us, in which an individual files a direct
USERRA appeal with the Board, the administrative judge has discretion to award
“reasonable attorney fees” if the Board issues an order requiring the agency to
comply with USERRA. 38 U.S.C. § 4324(b), (c)(2), (4); Jacobsen v. Department
of Justice, 103 M.S.P.R. 439, ¶¶ 8-9, 12 (2006), aff’d, 500 F.3d 1376 (Fed. Cir.
2007). In calculating what constitutes “reasonable attorney fees” under various
statutes, the Board has found that the most useful starting point is to multiply the
hours reasonably spent on the litigation by a reasonable hourly rate. Guy v.
Department of the Army, 118 M.S.P.R. 45, ¶¶ 7-9 (2012) (discussing how to
calculate fees under 5 U.S.C. § 1221(g) in an individual right of action appeal);
Driscoll v. U.S. Postal Service, 116 M.S.P.R. 662, ¶¶ 7, 10 (2011) (applying this
formula to a request for fees under 5 U.S.C. § 7701(g)(1) in a chapter 75 adverse
action appeal). This is referred to as the “lodestar” method for calculating fees.
Driscoll, 116 M.S.P.R. 662, ¶ 10. We find that the lodestar method is appropriate
for calculating fees under USERRA. See City of Burlington v. Dague, 505 U.S.
557, 561-62 (1992) (explaining that the lodestar method applies to all Federal
fee-shifting statutes that provide for the award of reasonable attorney fees). The
administrative judge found that the appellant was entitled to fees and that the
116.2 hours claimed by the appellant’s attorney was reasonable. AID at 2-3, 5-6;
AFF, Tab 1 at 11-12, Tab 7 at 8-9. Neither party challenges these findings on
review and we decline to disturb them. However, the appellant disputes the
administrative judge’s finding that $425 was a reasonable hourly rate. AFPFR
File, Tab 1.
¶7 The appellant bears the burden of showing that the requested fees were
reasonable. Caros v. Department of Homeland Security, 122 M.S.P.R. 231, ¶ 15
(2015). To do so, he is required to provide evidence of his attorney’s customary
rate and that the rate was consistent with the prevailing rate for similar services in
the community in which the attorney ordinarily practices, including a copy of any
5
fee agreement between the appellant and his attorney. Id.; 5 C.F.R.
§ 1201.203(a)(2)-(3); see 5 C.F.R. § 1208.15(b) (explaining that USERRA fee
requests are adjudicated under the procedures in 5 C.F.R. §§ 1201.201-.205). An
appellant’s agreement to pay a specific fee for legal services rendered in a Board
appeal creates a rebuttable presumption that the agreed-upon fee is the maximum
reasonable fee that may be awarded. Martinez v. U.S. Postal Service,
89 M.S.P.R. 152, ¶ 18 (2001). Here, the appellant submitted a copy of the
contingency-fee retainer agreement he entered into with his attorney, but the
agreement does not indicate an hourly rate. AFF, Tab 1 at 29-31. Thus, we agree
with the administrative judge that the retainer agreement is not helpful in
establishing the proper hourly rate. AID at 4.
¶8 Accordingly, we must look to other evidence to determine the appropriate
hourly rate—specifically, the attorney’s customary rate and whether that rate was
consistent with the prevailing rate for similar services in the community in which
the attorney ordinarily practices. Caros, 122 M.S.P.R. 231, ¶ 15; Krape v.
Department of Defense, 97 M.S.P.R. 430, ¶ 14 (2004); 5 C.F.R. § 1201.203(a)(3);
see Practices and Procedures, 64 Fed. Reg. 72,040, 72,041 (Dec. 23, 1999)
(explaining that amendments to 5 C.F.R. § 1201.203(a)(3) were intended to
ensure that an attorney received the billing rate for the location where he
ordinarily practices). Here, the administrative judge found that the relevant
geographic community was the San Diego area, where the appellant’s attorney
regularly practices. AID at 4-5. Neither party disputes this finding on review,
and we decline to disturb it.
¶9 The appellant provided evidence that his attorney’s customary billing rate
for similar services in Federal district court is $650 per hour . AFF, Tab 1
at 23-24, 40-41. He also provided evidence that this fee is consistent with fees
awarded to other San Diego-based attorneys litigating USERRA claims in Federal
district courts in California. Id. at 15-16. He argues that the administrative judge
improperly looked at rates awarded in non-USERRA cases and narrowed the
6
relevant community for purposes of determining reasonable fees to attorneys
practicing before the Board. AFPFR File, Tab 1 at 5-8. The appellant also
appears to suggest that the administrative judge discounted his attorney’s
expertise. Id. at 6.
¶10 We agree with the administrative judge’s finding that fees awarded in
comparable Board litigation most accurately reflect the prevailing community rate
for similar services in the community in which the attorney ordinarily practices.
AID at 3-5; 5 C.F.R. § 1201.203(a)(3). As the U.S. Supreme Court has observed,
calculating fees by looking at “prevailing market rates in the relevant
community” most closely approximates what an attorney billing at his hourly rate
would receive “in a comparable case.” Perdue v. Kenny A. ex rel. Winn, 559 U.S.
542, 551 (2010) (internal quotations omitted). We find that a “comparable case”
in this matter is a Board case. 4
¶11 Although the appellant argues that the administrative judge improperly
looked at attorney fee rates awarded in non-USERRA Board litigation, he has not
provided any evidence of fee awards that reflect hourly rates paid to San Diego
area attorneys in USERRA appeals before the Board. AFPFR File, Tab 1 at 6.
The administrative judge properly considered Board cases involving the hourly
rates for attorneys in the San Diego area. See Caros, 122 M.S.P.R. 231, ¶ 15;
5 C.F.R. § 1201.203(a)(3); AID at 4 (citing Achenbach v. Department of the
Navy, MSPB Docket No. SF-0752-14-0704-A-1, Addendum Initial Decision at 2,
5 (June 13, 2016) (finding $325 to be a reasonable hourly rate in an action to
enforce a settlement agreement); Forte v. Department of the Navy, MSPB Docket
4
In so finding, we do not exclude the possibility in other matters that litigation in other
fora, including Federal district court, may be comparable in other instances. We
disagree with the administrative judge that Federal district cour t litigation is inherently
more complex, or that discovery, motions practice, and trial work garners a different
rate than record review. However, here, the attorneys briefed a single legal issue which
was decided on the record. AID at 4; I-2 AF, Tabs 4, 7-8; AFF, Tab 1 at 26-27.
7
No. SF-0752-14-0761-A-1, Addendum Initial Decision at 1-2, 6 (June 10, 2016)
(awarding $425 per hour to experienced counsel in an appeal of a 30 -day
suspension); Alhajjar v. Department of Homeland Security, MSPB Docket
No. SF-0752-14-0025-A-1, Addendum Initial Decision at 2, 7 (April 17, 2015)
(finding $350 per hour was a reasonable rate for an attorney litigating a removal
appeal)). 5 To the extent that the USERRA issue in this appeal was more complex
than the cases considered by the administrative judge, we presume that this
complexity is reflected in the number of hours charged. See Perdue, 559 U.S.
at 553. Moreover, in a recent USERRA attorney fees matter involving the same
attorney as in the instant case, a Board administrative judge determined that the
reasonable hourly rate for his services was $425. Marquiz v. Department of
Defense, MSPB Docket No. SF-4324-15-0099-A-1, Addendum Initial Decision
at 10-11 (Aug. 31, 2017). 6
¶12 We further find that the administrative judge appropriately considered the
appellant’s attorney’s USERRA expertise. AID at 3. The appellant relies on the
administrative judge’s failure to specifically mention that a professional contact
of the appellant’s attorney declared that he performed “outstanding” work and
was a “national authority” on USERRA. AFPFR File, Tab 1 at 6; AFF, Tab 1
at 19. However, the administrative judge’s award of $425 per hour, the highest
among the awarded rates that she reviewed, demonstrates that she adequately
considered his expertise. AID at 4-5; see Marques v. Department of Health &
5
The appellant’s attorney indicates that he was unable to read these attorney fees
decisions because the Board restricts nonparties’ access to “files in which they are not
personally involved.” PFR File, Tab 1 at 6. However, addendum initial decisions such
as those cited by the administrative judge are available on subscription services widely
used in the legal profession. Further, the public may request copies of initial decisions
under the Freedom of Information Act. U.S. Merit Systems Protection Board, Freedom
of Information Act – Requester Service Center, https://mspb.gov/foia/request.htm (last
visited Nov. 29, 2022).
6
A petition for review in Marquiz is currently pending before the Board.
8
Human Services, 22 M.S.P.R. 129, 132 (1984) (declining to find that the
presiding official’s failure to mention all of the evidence meant that she did not
consider it), aff’d, 776 F.2d 1062 (Fed. Cir. 1985) (Table).
¶13 For the first time on review, the appellant argues that the Board should
consider that a different agency agreed to pay the appellant’s attorney $650 per
hour in an “identical differential pay case[].” AFPFR File, Tab 1 at 8. The fact
that a different agency in another case agreed to pay a lump sum to resolve a
dispute concerning attorney fees is not particularly illu minating regarding
whether the attorney’s claimed hourly rate underlying that lump sum was
reasonable. An agency’s decision to settle such a matter may be based on myriad
considerations which are unrelated to the reasonableness of the attorney’s hourly
rate. Although the initial decision dismissing the attorney fees matter as settled
was issued 1 week after the initial decision in this case, and therefore it is new
evidence, it is not of sufficient weight to warrant a different outcome here. See
Russo v. Veterans Administration, 3 M.S.P.R. 345, 349 (1980).
¶14 The main issues with the fee petition are that (1) the attorney did not
include his hourly rates in his retainer agreement with the clients , (2) he failed to
present evidence of similar cases before the Board in which other attorneys with
similar experience received his claimed rate, and (3) he failed to demonstrate that
he received similar rates in Board litigation. Accordingly, we affirm the
administrative judge’s finding that the appellant has established that he is entitled
to an award of reasonable attorney fees in the amount of $49,385.
ORDER
¶15 We ORDER the agency to pay the attorney of record $49,385 in fees. The
agency must complete this action no later than 20 days after the date of this
decision. See generally Title 5 of the United States Code, section 1204(a)(2)
(5 U.S.C. § 1204(a)(2)).
9
¶16 We also ORDER the agency to tell the appellant and the attorney promptly
in writing when it believes it has fully carried out the Board’s Order and of the
actions it has taken to carry out the Board’s Order. We ORDER the appellant and
the attorney to provide all necessary information that the agency requests to help
carry out the Board’s Order. The appellant and the attorney, if not notified,
should ask the agency about its progress. See 5 C.F.R. § 1201.181(b).
¶17 No later than 30 days after the agency tells the appellant o r the attorney that
it has fully carried out the Board’s Order, the appellant or the attorney may file a
petition for enforcement with the office that issued the initial decision on this
appeal, if the appellant or the attorney believes that the agency did not fully carry
out the Board’s Order. The petition should contain specific reasons why the
appellant or the attorney believes the agency has not fully carried out the Board’s
Order, and should include the dates and results of any communications with the
agency. See 5 C.F.R. § 1201.182(a).
¶18 This is the final decision of the Merit Systems Protection Board in this
appeal. Title 5 of the Code of Federal Regulations, section 1201.113 (5 C.F.R.
§ 1201.113).
NOTICE OF APPEAL RIGHTS 7
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described bel ow do not represent a
statement of how courts will rule regarding which cases fall within their
7
Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
10
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general. As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
11
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination. This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision—including a disposition of your discrimination
claims—by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board, 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court-appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other secur ity. See
42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
12
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial deliver y or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protectio n
Enhancement Act of 2012. This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction. 8 The court of appeals must receive your
8
The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
13
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
14
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
FOR THE BOARD:
/s/
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.