Practice and procedure: Attorney fees; reimbursement,
[Federal Register: December 23, 1999 (Volume 64, Number 246)]
[Proposed Rules]
[Page 72040-72041]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr23de99-18]
MERIT SYSTEMS PROTECTION BOARD
Practices and Procedures
AGENCY: Merit Systems Protection Board.
ACTION: Proposed rule; request for comments.
SUMMARY: The Merit Systems Protection Board (MSPB or the Board) proposes to amend its rules of practice and procedure with respect to attorney fee proceedings to provide reimbursement to a prevailing appellant's attorney at his customary billing rate if that rate is consistent with the prevailing community rate where the attorney ordinarily practices. The intent of the proposed amendment is to provide a more equitable scheme for reimbursement of a prevailing appellant's attorney fees.
DATES: Submit comments by February 7, 2000.
ADDRESSES: Send comments to Robert E. Taylor, Clerk of the Board, Merit Systems Protection Board, 1120 Vermont Avenue, N.W., Washington, D.C. 20419. Comments may be sent via e-mail to mspb@mspb.gov.
FOR FURTHER INFORMATION CONTACT: Robert E. Taylor, Clerk of the Board, (202) 653-7200.
SUPPLEMENTARY INFORMATION: The Merit Systems Protection Board requests comments on a proposal to amend its rule at 5 CFR 1201.203, which governs attorney fee proceedings, to provide that
[[Page 72041]]
reimbursement of a prevailing appellant's attorney fees will be at the attorney's customary billing rate if that rate is consistent with the prevailing community rate for similar services where the attorney ordinarily practices. The Board also invites suggestions as to alternatives that might carry out the Board's intent of establishing a more equitable scheme for reimbursement of a prevailing appellant's attorney fees.
The current regulation at 5 CFR 1201.203(a)(3) requires submission of evidence of ``the prevailing community rate for similar services that will establish a market value for the attorney's services.'' The regulation does not define the ``community'' to be used in determining the prevailing community rate. Under Board precedent, the prevailing community rate is based on the geographic location where the hearing was held. Manley v. Department of the Air Force, 67 M.S.P.R. 467, 472- 473 (1995).
Applying the general rule that the hearing location determines the reimbursement rate for the attorney can result in inequitable reimbursement. An attorney may be reimbursed at a lower rate than that which prevails at the location of his practice if the prevailing rate for similar services in the community where the hearing is (or would have been) held is lower than that at the location of his practice. It is also possible that an attorney could be reimbursed at a higher rate than that which prevails at the location of his practice if the prevailing rate for similar services at the hearing location is higher than that at the location of his practice. But see Brown v. Department of Health and Human Services, 50 M.S.P.R. 523 (1991).
The Board's current rule is akin to the Federal courts' ``forum rule.'' In Federal court litigation, the place where the district court sits and where the appeal is filedis one location, and, in that context, that forum makes sense as the relevant community for determining rates. That model, however, no longer fits MSPB cases. In addition to an in-person hearing before an administrative judge, MSPB proceedings currently may be conducted by telephone, mail, facsimile, or video conference. In some cases, no hearing is held. In such situations, the parties, their representatives, and the administrative judge may all be in different geographic locations, and the attorney's work may well be done primarily in a location other than that in which an in-person hearing would have been held.
To reflect the realities of practice before the Board and provide a more equitable scheme for reimbursement of a prevailing appellant's attorney fees, the Board is considering changing its regulation at 5 CFR 1201.203(a)(3) to reimburse a prevailing appellant's attorney at his customary billing rate, with evidence that the rate is consistent with the prevailing rate for similar services in the community in which the attorney ordinarily practices. The proposed rule is similar to the model rule recommended by the Administrative Conference of the United States in implementing the Equal Access to Justice Act (EAJA), 46 FR 32900, 32904-32906 (October 2, 1981) (``prevailing market rate'' for determining allowable attorney fees).
The Board is publishing this rule as a proposed rule pursuant to 5 U.S.C. 1204(h). The Board has made a determination under the Regulatory Flexibility Act, Pub. L. 96-354, 95 Stat. 1164, 5 U.S.C. 601-612, that this proposed regulatory action would not have a significant impact on a substantial number of small entities.
List of Subjects in 5 CFR Part 1201.
Administrative practice and procedure, Civil rights, Government employees. Accordingly, the Board proposes to amend 5 CFR part 1201 as follows:
PART 1201--PRACTICES AND PROCEDURES
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The authority citation for part 1201 would continue to read as follows:
Authority: 5 U.S.C. 1204 and 7701, and 38 U.S.C. 4331, unless otherwise noted.
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Amend Sec. 1201.203 by revising paragraph (a)(3) to read as follows:
Sec. 1201.203 Proceedings for attorney fees.
(a) * * *
(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 * * * * *
Dated: December 20, 1999. Robert E. Taylor, Clerk of the Board.
[FR Doc. 99-33357Filed12-22-99; 8:45 am]
BILLING CODE 7400-01-U
