Opinion

Joshua Marquiz v. Department of Defense

Court: Merit Systems Protection Board
Filed: Feb 15, 2023
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 22.6%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

JOSHUA MARQUIZ, DOCKET NUMBER

Appellant, SF-4324-15-0099-A-1

DEPARTMENT OF DEFENSE, DATE: February 15, 2023

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Brian Lawler, Esquire, San Diego, California, for the appellant.

Wayne G. Carter, Jr., Santa Ana, California, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

Tristan L. Leavitt, Member

Vice Chairman Harris issues a separate opinion

concurring in part and dissenting in part.

FINAL ORDER

¶1 The appellant has filed a petition for review of the initial decision, which

awarded attorney fees in the amount of $40,587.50. Generally, we grant petitions

such as this one only in the following circumstances: the initial decision contains

A nonprecedential order is one that the Board has determined does not add

significantly to the body of MSPB case law. Parties may cite nonprecedential orders,

but such orders have no precedential value; the Board and administrative judges are not

required to follow or distinguish them in any future decisions. In contrast, a

precedential decision issued as an Opinion and Order has been identified by the Board

as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).

erroneous findings of material fact; the initial decision is based on an erroneous

interpretation of statute or regulation or the erroneous a pplication of the law to

the facts of the case; the administrative judge’s rulings during either the course of

the appeal or the initial decision were not consistent with required procedures or

involved an abuse of discretion, and the resulting error affec ted the outcome of

the case; or new and material evidence or legal argument is available that, despite

the petitioner’s due diligence, was not available when the record closed. Title 5

of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115).

After fully considering the filings in this appeal, we conclude that the petitioner

has not established any basis under section 1201.115 for granting the petition for

review. Therefore, we DENY the petition for review and AFFIRM the initial

decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).

¶2 The appellant filed a Uniformed Services Employment and Reemployment

Rights Act of 1994 (USERRA) appeal that, inter alia, alleged the agency

improperly refused to pay him differential pay—the difference between his

civilian and military pay—for a period of active duty training between

October 2014 and April 2015. Marquiz v. Department of Defense, MSPB Docket

No. SF-4324-15-0099-I-1, Initial Appeal File (IAF), Tab 1. After developing the

record, the administrative judge granted the appellant’s request for corrective

action. IAF, Tab 19, Initial Decision. Although the agency filed a petition for

review, the two sitting Board members could not agree on a disposition. Marquiz

v. Department of Defense, MSPB Docket No. SF-4324-15-0099-I-1, Split Vote

Order (July 12, 2016). Therefore, the initial decision became the Board’s final

decision. Id.

¶3 The appellant filed a motion seeking attorney’s fees. Marquiz v.

Department of Defense, MSPB Docket No. SF-4324-15-0099-A-1, Attorney Fee

File (AFF), Tabs 1, 5. 2 The administrative judge granted the motion, in part, and

ordered the agency to pay $40,587.50 in attorney fees. AFF, Tab 11, Addendum

Initial Decision (AID) at 15. In short, he found that while the appellant’s

attorney sought both a higher rate and a higher number of reimbursable hours, the

attorney was entitled to only $425 per hour, for 95.5 hours. AID at 11, 14. The

appellant has filed a petition for review. Marquiz v. Department of Defense,

MSPB Docket No. SF-4324-15-0099-A-1, Addendum Petition for Review (APFR)

File, Tab 1. The agency has filed a response. APFR File, Tab 3.

¶4 If 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); Doe v. Department of State, 2022 MSPB 38, ¶ 6. 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. Doe, 2022 MSPB

38, ¶ 6. This is referred to as the “lodestar” method for calculating fees, and it is

the appropriate method for calculating fees under USERRA. Id.

¶5 As stated above, the administrative judge found that the appellant was

entitled to a rate less than that claimed, as well as a total number of hours less

than that claimed. The appellant challenges both on review, and so we will

address each in turn. APFR File, Tab 1.

The administrative judge properly reduced the hourly rate of the appellant’s

attorney fees.

¶6 Specific to the instant appeal, the Board recently considered an attorney-fee

petition under similar circumstances. The same attorney represente d the

appellants in each case; each was a successful USERRA claim concerning

differential pay; each involved a fee agreement that did not reflect an hourly rate;

The parties appeared to agree on the proper recovery amount for the appella nt—

approximately $5,300. AFF, Tab 10 at 3.

and each included a fee request before the Board of $650 per hour. Compare,

e.g., AFF, Tab 1, with Doe, 2022 MSPB 38, ¶¶ 2-3. The administrative judge in

Doe found the asserted rate unreasonable, instead awarding fees at a rate o f $425

per hour. Doe, 2022 MSPB 38, ¶ 4. In an Opinion and Order, we affirmed. Id.,

¶¶ 6-15. For all the same reasons, we reach the same conclusion today.

¶7 The appellant has presented a number of arguments pertaining to his

requested rate of $650 per hour, but we find each unavailing. APFR File, Tab 1

at 9-14. For example, the appellant argues that his representative’s expertise in

the field of USERRA warrants the higher rate. Id. at 10-11. However, we

considered similar arguments in Doe, for the same representative, and found that

$425 per hour was the reasonable rate. Doe, 2022 MSPB 38, ¶ 12. He also

argues that a Federal court has awarded him fees at a rate of $650, so the Board

should award the same here. APFR File, Tab 1 at 11-12. But again, we

considered similar arguments in Doe, for the same representative, and found

otherwise. Doe, 2022 MSPB 38, ¶¶ 9-11. The appellant also cites his

representative’s award in a case settled before the Board as supporting the

requested rate, rather than the administrative judge’s reduced rate. APFR File,

Tab 1 at 13. Once more, we already rejected that argument in Doe. Doe,

2022 MSPB 38, ¶ 13.

The administrative judge properly reduced the number of reimbursable hours. 3

¶8 In his initial fee request, the appellant alleged 196.8 billable hours. 4 AFF,

Tab 1 at 26-28. The administrative judge reviewed the request and warned that a

Although Doe addressed the reasonableness of the hourly rate requested under similar

circumstances, it did not address the reasonableness of the hours requested, because that

matter was not raised by either party. Doe, 2022 MSPB 38, ¶ 6. Therefore, Doe does

not provide any guidance on the reasonableness of the hours requested in this appeal.

As a result of the appellant’s pleadings above and beyond the initial fee petition , the

appellant requested an additional 16.7 hours. AFF, Tab 3 at 5, Tab 5 at 8, Tab 9 at 8.

In concert with the attorney-fee petition for review currently before us, the appellant

now requests an additional 11 billable hours. APFR File, Tab 1 at 14.

large number of those hours appeared to be inadequately explained, inadequately

supported, or duplicative. AFF, Tab 8 at 3. The appellant filed a response,

refusing to provide additional details about the hours expended, citing

attorney-client privilege and attorney work product. AFF, Tab 9 at 6 -7.

Subsequently, the administrative judge found that only 95.5 of the hours

requested were reasonable and adequately supported by the record. AID at 14.

¶9 The burden of establishing the reasonableness of the hours claimed in an

attorney-fee request is on the party moving for an award of attorney fees.

Driscoll v. U.S. Postal Service, 116 M.S.P.R. 662, ¶ 11 (2011). The party seeking

an award of fees should submit evidence supporting the hours worked and

exclude hours that are excessive, redundant, or otherwise unnecessary. Id. The

administrative judge need not automatically accept claimed hours, but may

disallow hours for duplication, padding, or frivolous claims, and impose fair

standards of efficiency and economy of time. Id.

¶10 Generally speaking, the appellant’s representative prepared the initial

appeal, he prepared one substantive prehearing submission, he participated in an

hour-long oral argument, he prepared a response to the agency’s petition for

review, and he prepared the fee petition currently before us. IAF, Tabs 1, 15, 18;

Marquiz v. Department of Defense, MSPB Docket No. SF-4324-15-0099-I-1,

Petition for Review File, Tab 3; AFF, Tab 1. As further detailed in the addendum

initial decision, the initial appeal contained limited argument s of consequence.

AID at 2-4, 9, 12; see IAF, Tab 1. Among other things, the pleading contained

block quotations from statutes, but no case law. IAF, Tab 1. In addition, it

contained a section pertaining to the waiver of filing fees, despite the Board

having no such filing fee, IAF, Tab 1 at 2, and a request for class certification

that was wholly unsupported, compare id. at 7-10 (seeking a class action on

behalf of agency employees mobilized to active duty any time after September 14,

2001), with IAF, Tab 4 (denying the class certification because, inter alia, the

statute at issue was not enacted until 2009 and did not apply retroactively).

¶11 As also detailed in the addendum initial decision, it was the administrative

judge, not the appellant’s representative, who identified the only pertinent

precedent relevant to the instant appeal—a decision from the Office of

Compliance. AID at 13; IAF, Tab 4 at 2. Although the appellant’s representative

then prepared a prehearing submission and participate d in an hour-long oral

argument, both generally focused on that which previously was identified by the

administrative judge, without adding much of substance. AID at 9, 12-13; IAF,

Tabs 15, 18. Moreover, the administrative judge correctly noted that the issue at

hand was a question of law, rather than a question of fact, calling in to doubt the

extensive hours the appellant’s attorney billed for “[c]omm w client.” AID at 13.

¶12 As previously stated, it is the appellant’s burden to establish the

reasonableness of the hours claimed in this matter. Supra ¶ 9. While the entirety

of the hours claimed may be reasonable, we agree with the administrative judge’s

determination that the appellant failed to meet his burden of establishing their

reasonableness, even in the face of specific warning. Under the circumstances,

only some of which is described above, the appellant’s billing statements are

largely insufficient. The descriptions of his work consist of cursory notes such as

“legal research” and “[c]omm w client” or “[c]omm w consultant.” AFF, Tab 1

at 26-28. They do not contain any additional details that could bolster the claim

of reasonableness, such as the topics researched, the type of consultant(s) used,

why all the communication with the client was necessary for a purely legal

question, or even if all of that communication was with the appellant in this

appeal, rather than a mix of the appellant and others that he hoped to include in

his proposed class action.

¶13 On review, the appellant has once again argued that all the billed hours

were reasonable, without providing particularized arguments about specific hours

that were disallowed or further explanation of what the billed hours consisted of.

APFR File, Tab 1 at 7-9. Citing a number of court cases from the Northern

District of California, the U.S. Court of Appeals for the Ninth Circuit, and the

Supreme Court of California, the appellant reasserts attorney-client privilege and

attorney work product as preventing disclosure of additional billing details. Id.

at 7-9. However, his reliance on those authorities is of little consequence because

they are not binding on the Board. See, e.g., Mynard v. Office of Personnel

Management, 108 M.S.P.R. 58, ¶¶ 13-14 (2008) (recognizing that decisions by

the U.S. Court of Appeals for the Federal Circuit are controlling authority for the

Board, but other circuit courts and district courts are not). Moreover, although

the cited authority concerns attorney-client and work product privileges,

generally, none are persuasive in the context of the issue at han d—whether the

appellant’s representative can rely on the most cursory description of billable

hours to establish their reasonableness.

¶14 While the appellant has asserted attorney-client and work product

privileges, he has not provided a detailed account of how they apply to the

specific information at issue. See Gangi v. U.S. Postal Service, 97 M.S.P.R. 165,

¶ 23 (2004) (recognizing that, under the appropriate circumstances, a party may

invoke a common law privilege in refusing to make a disclosure during Board

procedures, but evidentiary privileges should not be lightly granted). He has not

explained, for example, how attorney-client privilege prevents him from

disclosing even the most basic information about his billing, such as a general

accounting for why more than 20 hours for client communication was reasonable

in this case, which involved a purely legal question and no factual dispute of

significance. See generally Grimes v. Department of the Navy, 99 M.S.P.R. 7, ¶ 6

(2005) (recognizing that attorney-client privilege is intended “to encourage full

and frank communications between attorneys and their clients”) (quoting Upjohn

Co. v. United States, 449 U.S. 383, 389 (1981)). He has not explained how work

product privilege prevents him from disclosing a general accounting of who he

consulted with or what types of legal research he conducted. See generally In re

Subpena Addressed to the Office of Special Counsel , 20 M.S.P.R. 245, 248 (1984)

(discussing the work product privilege for documents prepared in anticipation of

litigation). In fact, the appellant repeatedly asserts that disclosure of additional

information “could disclose” information intended to be confidential or “could

reveal” the attorney’s work product. APFR File, Tab 1 at 7-8. While that may be

true, it also appears true that the appellant’s representative could have tailored his

billing descriptions accordingly, to maintain appropriate confidentiality but still

establish the reasonableness of his billing hours. Although we recognize and

agree with the importance and ethical requirements of attorney-client

communications, the appellant’s representative did not follow the administrative

judge’s instructions in this case and provide the necessary information to award

fees for this purpose, nor did he provide a persuasive reason for not providing

that information in support of his fee request. Therefore, we find no basis for

disturbing the administrative judge’s determination regarding the number of

reimbursable hours.

¶15 In sum, we deny the appellant’s petition and affirm the addendum initial

decision, awarding attorney fees of $40,587.50. We also deny the request for

additional fees the appellant has claimed for work performed since the addendum

initial decision.

ORDER

¶16 We ORDER the agency to pay the attorney of record $40,587.50 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)).

¶17 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).

¶18 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 init ial 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).

NOTICE OF APPEAL RIGHTS 5

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 below do not represent a

statement of how courts will rule regarding which cases fall within their

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.

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.

(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 security. 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 delivery 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 Protection

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. 6 The court of appeals must receive your

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

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.

The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,

132 Stat. 1510.