Opinion

John Doe v. Department of State

2022 MSPB 38

Court: Merit Systems Protection Board
Filed: Nov 29, 2022
Status: Published
Cited by: 2 cases
Authority: More cited than 57.0%

finding that, when assessing what constitutes a reasonable hourly rate in an attorney fees case, a requesting attorney, when possible, should provide evidence of hourly rates charged by comparable lawyers 9 in the same community as the requesting attorney who practice litigation before the Board

How later courts described this case

finding that, when assessing what constitutes a reasonable hourly rate in an attorney fees case, a requesting attorney, when possible, should provide evidence of hourly rates charged by comparable lawyers 9 in the same community as the requesting attorney who practice litigation before the Board

Written by the judges who cited it.

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

2022 MSPB 38

Docket No. NY-4324-15-0127-A-1

John Doe,

Appellant,

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

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

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.

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.

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.

The appellant’s attorney is the principal of Pilot Law, P.C. AFF, Tab 1 at 21.

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

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

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

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.

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 &

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).

A petition for review in Marquiz is currently pending before the Board.

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)).

¶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

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.

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

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

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

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.

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