(a) Form and content of request. A request for attorney fees must be made by motion, must state why the appellant or respondent believes he or she is entitled to an award under the applicable statutory standard, and must be supported by evidence substantiating the amount of the request. Evidence supporting a motion for attorney fees must include at a minimum:
(1) Accurate and current time records;
(2) A copy of the terms of the fee agreement (if any);
(3) A statement of the attorney's customary billing rate for similar work, with evidence that that rate is consistent with the prevailing community rate for similar services in the community in which the attorney ordinarily practices; and
(4) An established attorney-client relationship.
(b) Addendum proceeding. A request for attorney fees will be decided in an addendum proceeding.
(c) Place of filing. Where the initial decision in the proceeding on the merits was issued by a judge in a MSPB regional or field office, a motion for attorney fees must be filed with the regional or field office that issued the initial decision. Where the decision in the proceeding on the merits was an initial decision issued by a judge at the Board's headquarters or where the only decision was a final decision issued by the Board, a motion for attorney fees must be filed with the Clerk of the Board.
(d) Time of filing. A motion for attorney fees must be filed as soon as possible after a final decision of the Board but no later than 60 days after the date on which a decision becomes final.
(e) Service. A copy of a motion for attorney fees must be served on the other parties or their representatives at the time of filing. A party may file a pleading responding to the motion within the time limit established by the judge.
(f) Hearing; applicability of subpart B. The judge may hold a hearing on a motion for attorney fees and may apply appropriate provisions of subpart B of this part to the addendum proceeding.
(g) Initial decision; review by the Board. The judge will issue an initial decision in the addendum proceeding, which shall be subject to the provisions for a petition for review by the Board under subpart C of this part.
[63 FR 41179, Aug. 3, 1998, as amended at 65 FR 24381, Apr. 26, 2000]
Notes of Decisions
Marguerite Pridgen v. Off. of Mgmt. & Budget, 2022 MSPB 31 (MSPB 2022).
“24 The Board’s regulations provide that a request for attorney fees must be made within 60 days after issuance of a final decision, 5 C.F.R. § 1201.203 (d). In this case, the time limit for filing such a request will not begin to run until the decision on remand is final.”
Jacobsen v. Dep't of Just., 500 F.3d 1376 (Fed. Cir. 2007).
· cites it 4× “Specifically, Jacobsen argues that the Board exhausted its “discretion” under the statute when it promulgated the regulations 5 C.F.R. §§ 1201.203 (a) and 1208.15(b), and that only these regulations must be satisfied in order to establish entitlement to attorney fees.”
Betty W. Willis v. United States Postal Serv., 245 F.3d 1333 (Fed. Cir. 2001).
· cites it 2× “” 5 C.F.R. § 1201.203 (a)(8) (1998). Although not defined in this regulation, the Board has construed “community” as the geographical area where the Board hearing is scheduled to occur.”
John Doe v. Dep't of State, 2022 MSPB 38 (MSPB 2022).
· cites it 4× “430 , ¶ 14 (2004); 5 C.F.R. § 1201.203 (a)(3); see Practices and Procedures, 64 Fed.”
Augustine v. Dep't of Vets. Affairs, 429 F.3d 1334 (Fed. Cir. 2005).
“The Board’s regulation governing attorney’s fees merely states that the fee application must show why the applicant is “entitled to an award under the applicable statutory standard,” and must show “an established attorney-client relationship.”
Augustine v. Dep't of Vets. Affairs, 503 F.3d 1362 (Fed. Cir. 2007).
“It goes without saying, of course, that “the number of hours reasonably expended,” and therefore the number of hours compensable under 5 U.”
Douglas Horneman v. Dep't of Vets. Affairs (MSPB 2022).
· cites it 3× “We also FORWARD the appellant’s motion for attorney fees and litigation expenses to the Denver Field Office for adjudication under 5 C.F.R. § 1201.203 . DISCUSSIONS OF ARGUMENTS AND EVIDENCE ON REVIEW ¶2 On April 13, 2018, the Board directed the agency to provide evidence…”
Albert P. Schultz v. United States Postal Serv. (MSPB 2016).
· cites it 2× “¶8 In its cross petition for review, the agency alleges that the administrative judge improperly failed to address its argument that the appellant’s current fee petition was untimely under 5 C.F.R. § 1201.203 (d). 4 RPFR File, Tab 7 at 11-14; see RAFF, Tab 14 at 6-10.”
Albert P. Schultz v. United States Postal Serv. (MSPB 2016).
· cites it 2× “¶8 In its cross petition for review, the agency alleges that the administrative judge improperly failed to address its argument that the appellant’s current fee petition was untimely under 5 C.F.R. § 1201.203 (d). 4 RPFR File, Tab 7 at 11-14; see RAFF, Tab 14 at 6-10.”
Randy Stephens v. Dep't of the Army (MSPB 2023).
· cites it 2× “See 5 C.F.R. § 1201.203 (d) (“A motion for attorney fees must be filed as soon as possible after a final decision of the Board but no later than 60 days after the date on which a decision becomes final.”
— 5 C.F.R. § 1201.203(a) — 2 cases
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