An appellant before the MSPB can recover attorney fees. Many cases settle before getting to an MSPB hearing. In settlement agreements, it is common for the parties to agree on a sum that includes attorney fees, costs and expenses.
When a case doesn’t settle and goes to hearing, the appellant must be a prevailing party in order to recoup attorney fees.
After your attorney shows that you are a prevailing party, (s)he will have to show that attorney fees are in the interest of justice. What does that mean? Under the Allen test, the Board tells us that an attorney fee award is in the interest of justice if:
The agency engaged in a prohibited personnel practice;
The agency action was clearly without merit or wholly unfounded, or the employee was substantially innocent of the charges;
The agency initiated the action in bad faith;
The agency committed a gross procedural error; or
The agency knew or should have known that it would not prevail on the merits.
Once it is established that the appellant was the prevailing party, and an award of attorney fees is in the interests of justice, the Board will review the attorney’s computation of hours spent on the case and the hourly rate for that work to ensure that the fees requested are reasonable.
When an employee makes a claim under USERRA (for example, a claim for reimbursement of military leave improperly charged on an employee’s nonwork days) the standard for attorney fees is very different. Instead of a prevailing party requirement, the employee will recover attorney fees if the board issued an order requiring the agency to correct its violations under USERRA. Jacobsen v. Dept. of Justice, 2006 MSPB 26 (2006).
Recovering attorney fees is never a guarantee, even if you prevail. However, in many cases, some Federal Agencies will agree to settle the issue of attorney fees after they have received an adverse decision on the merits. There are some Agencies, however, that will fight the attorney fee issue just because they can.
If you would like to consult with an MSPB attorney about your MSPB appeal, contact the Law Offices of Eric L. Pines, PLLC today.