A removal was overturned, then a hearing officer granted reimbursement of legal fees totaling of some $31,600. Image: zimmytws/Shutterstock.com
By: FEDweek StaffAn MSPB decision has cleared the way for increasing payments that agencies must make to reimburse legal fees of employees who win challenges there to personnel actions, by allowing for reimbursement at the attorneys’ current rates rather than the rates at the time the services first were performed.
That was an issue in case No. 24 MSPB 1, in which an MSPB hearing officer in 2015 overturned the removal the prior year of an employee after finding the agency discriminated against him on grounds of disability. The hearing officer the next year granted a request for reimbursement of legal fees for the employee’s attorney and an assistant totaling of some $31,600, at a discounted rate.
The agency challenged the award but starting in 2017 the MSPB board lacked the members needed to issue decisions for five years, causing what an MSPB summary of the case called “a significant delay in the adjudication of the attorney fee motion. Accordingly, the board considered the question of whether it was appropriate to apply current, rather than historic, hourly rates.”
The board answered in the affirmative, saying the employee unquestionably was the prevailing party, rejecting the agency’s argument that the discounted rate was the maximum allowable, and noting that the EEOC has awarded enhanced attorney fee billing rates based on current, as opposed to historic rates.
The board sent the case back to the hearing officer for a finding on the attorney’s current market rates, rather than the rates that were in effect when the services were performed.
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