C.F.R. » Title 5 » CHAPTER II—MERIT SYSTEMS PROTECTION BOARD › SUBCHAPTER A—ORGANIZATION AND PROCEDURES › PART 1201—PRACTICES AND PROCEDURES › Subpart H—Attorney Fees (Plus Costs, Expert Witness Fees, and Litigation Expenses, Where Applicable) and Damages (Consequential, Liquidated, and Compensatory)

5 C.F.R. § 1201.201

Statement of purpose

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(a) This subpart governs Board proceedings for awards of attorney fees (plus costs, expert witness fees, and litigation expenses, where applicable), consequential damages, compensatory damages, and liquidated damages.

(b) There are seven statutory provisions covering attorney fee awards. Because most MSPB cases are appeals under 5 U.S.C. 7701, most requests for attorney fees will be governed by § 1201.202(a)(1). There are, however, other attorney fee provisions that apply only to specific kinds of cases. For example, § 1201.202(a)(4) applies only to certain whistleblower appeals. Sections 1201.202(a)(5) and (a)(6) apply only to corrective and disciplinary action cases brought by the Special Counsel. Section 1201.202(a)(7) applies only to appeals brought under the Uniformed Services Employment and Reemployment Rights Act.

(c) An award of consequential damages is authorized in only two situations: Where the Board orders corrective action in a whistleblower appeal under 5 U.S.C. 1221, and where the Board orders corrective action in a Special Counsel complaint under 5 U.S.C. 1214. Consequential damages include such items as medical costs and travel expenses, and other costs as determined by the Board through case law.

(d) The Civil Rights Act of 1991 (42 U.S.C. 1981a) authorizes an award of compensatory damages to a prevailing party who is found to have been intentionally discriminated against based on race, color, religion, sex, national origin, or disability. The Whistleblower Protection Enhancement Act of 2012 (5 U.S.C. 1221(g)) also authorizes an award of compensatory damages in cases where the Board orders corrective action. Compensatory damages include pecuniary losses, future pecuniary losses, and nonpecuniary losses, such as emotional pain, suffering, inconvenience, mental anguish, and loss of enjoyment of life.

(e) An award equal to back pay shall be awarded as liquidated damages under 5 U.S.C. 3330c when the Board or a court determines an agency willfully violated an appellant's veterans' preference rights.

[63 FR 41179, Aug. 3, 1998, as amended at 77 FR 62372, Oct. 12, 2012; 78 FR 39545, July 2, 2013]
Notes of Decisions
Cited in 546 cases (387 in the last 5 years), 2012–2026 · leading case: Arnold Wilson v. Dep't of Vets. Affairs, 2022 MSPB 7 (MSPB 2022).
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Arnold Wilson v. Dep't of Vets. Affairs, 2022 MSPB 7 (MSPB 2022). · cites it 2× “The regulations may be found at 5 C.F.R. §§ 1201.201 , 1202.202, and 1201.”
Aimee Karnes v. Dep't of Just., 2023 MSPB 12 (MSPB 2023). · cites it 2× “The regulations may be found at 5 C.F.R. §§ 1201.201 , 1202.202, and 1201.”
Garilynn Smith v. Dep't of the Army, 2022 MSPB 4 (MSPB 2022). “The regulations may be found at 5 C.F.R. §§ 1201.201 , 1201.202, and 1201.”
Randall Desjardin v. U.S. Postal Serv., 2023 MSPB 6 (MSPB 2023). “The regulations may be found at 5 C.F.R. §§ 1201.201 , 1202.202, and 1201.”
Joseph Schmitt v. Dep't of Vets. Affairs, 2022 MSPB 40 (MSPB 2022). · cites it 2× “The regulations may be found at 5 C.F.R. §§ 1201.201 , 1202.202, and 1201.”
Franklin Martin v. United States Postal Serv., 2022 MSPB 22 (MSPB 2022). · cites it 2× “The regulations may be found at 5 C.F.R. §§ 1201.201 , 1202.202, and 1201.”
Janie Young v. Dep't of Homeland Sec., 2024 MSPB 18 (MSPB 2024). · cites it 2× “The regulations may be found at 5 C.F.R. §§ 1201.201 , 1201.202, and 1201.”
Calvin Chin v. Dep't of Def., 2022 MSPB 34 (MSPB 2022). “The regulations may be found at 5 C.F.R. §§ 1201.201 , 1202.202, and 1201.”
Daniel Moncada v. Exec. Off. of the President, Off. of Admin., 2022 MSPB 25 (MSPB 2022). “The regulations may be found at 5 C.F.R. §§ 1201.201 , 1201.202, and 1201.”
Kenneth Johnson v. Dep't of Vets. Affairs, 2023 MSPB 9 (MSPB 2023). “The regulations may be found at 5 C.F.R. §§ 1201.201 , 1201.202, and 1201.”
Cory Owens v. Dep't of Homeland Sec., 2023 MSPB 7 (MSPB 2023). “The regulations may be found at 5 C.F.R. §§ 1201.201 , 1201.202, and 1201.”
Troy Stewart v. Dep't of Transp., 2023 MSPB 18 (MSPB 2023). “The regulations may be found at 5 C.F.R. §§ 1201.201 , 1202.202, and 1201.”
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