Petitions for review of the Merit Systems Protection Board in Nos. AT3443070016-1-2 and AT3443070016-M-1.
MATTHEW D. ESTES, Tully Rinckey PLLC of Washington, DC, filed an application for attorney's fees for petitioner.
TARA K. HOGAN Senior Trial Counsel, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, filed a response to the petition for respondent. With her on the response were STUART F. DELERY, Assistant Attorney General, BRYANT G. SNEE, Acting Director, and FRANKLIN E. WHITE, Assistant Director.
Before BRYSON and LINN, Circuit Judges.[*]
Bryson, Circuit Judge .
The petitioner in this case, Richard Erickson, has filed an application for attorney fees in connection with his two appeals to this court. In his application, he sets forth four grounds for the recovery of attorney fees and expenses. We hold that none of the four grounds provides a legal basis for Mr. Erickson to receive attorney fees in this case, and we therefore deny the application.
Mr. Erickson, a U.S. Postal Service employee from 1988 to 2000, was a member of the Army National Guard Reserve throughout that period. During the 12 years of his employment, he was absent from his Postal Service position for lengthy periods of time while he was on active duty with the National Guard. Between 1991 and 1995 he was absent for a total of more than 22 months, and between 1996 and 2000, he worked at the Postal Service for only four days. In January 2000, during one of Mr. Erickson's periods of active duty, the Postal Service inquired whether he intended to return to his Postal Service job. Mr. Erickson replied that he would not report back to work with the agency until he completed his current tour of duty in September 2001. He stated at that time that he preferred military service
to working for the Postal Service. Shortly thereafter, the Postal Service removed him for excessive use of military leave. Erickson v. U.S. Postal Serv. (Erickson I), 571 F.3d 1364, 1366-67 (Fed. Cir. 2009).
Following his removal from the Postal Service, Mr. Erickson re-enlisted with the National Guard. He remained on active military duty until December 31, 2005. In September 2006, he filed an appeal with the Merit Systems Protection Board alleging that the Postal Service had violated his rights under the Uniformed Services Employment and Reemployment Rights Act of 1994 (" USERRA" ) by removing him from his position based on his military service. The Board rejected his claim under USERRA's reemployment rights provision, 38 U.S.C. § 4312, holding that he had not made a timely request for reemployment with the agency. The Board also rejected his claim under USERRA's antidiscrimination provision, 38 U.S.C. § 4311, holding that Mr. Erickson's military service was not a motivating factor in the agency's decision to remove him. The Board also held that Mr. Erickson had forfeited his reemployment rights because at the time of his appeal his cumulative absence from the agency exceeded the five-year limit set by USERRA. Erickson I, 571 F.3d at 1367.
On Mr. Erickson's appeal, this court affirmed the Board's decision with respect to his reemployment claim, but reversed with respect to his discrimination claim. As to his discrimination claim, the court held that the evidence was clear that Mr. Erickson's removal was attributable to his military service and that at the time of his removal he had not been absent from his position with the Postal Service for a total of five years. The court remanded the case to the Board to resolve the remaining question whether Mr. Erickson had waived his rights under USERRA by abandoning his civilian career in favor of a career in the military. Erickson I, 571 F.3d at 1367-72.
On remand, the Board found that Mr. Erickson had waived his USERRA rights by abandoning his civilian career. Mr. Erickson again appealed to this court, arguing that the Board's findings in that regard were not supported by substantial evidence. This court agreed with Mr. Erickson that the Board's findings were not supported by substantial evidence. Accordingly, the court remanded the case to the Board for further proceedings on Mr. Erickson's claim. Erickson v. U.S. Postal Serv. (Erickson II), 636 F.3d 1353 (Fed. Cir. 2011).
In the second remand proceeding, the Board ruled in favor of Mr. Erickson on his discrimination claim. It granted him reinstatement with back wages and benefits as of the date of his removal. Mr. Erickson has now filed an application here seeking fees for his attorneys' work in the two appeals he took to this court.
In support of his application, Mr. Erickson makes four arguments. First, he contends that the Merit Systems Protection Board is authorized to grant fees for work in this court under USERRA's attorney fee statute, 38 U.S.C. § 4324(c)(4). Second, he argues that USERRA authorizes this court to grant attorney fees for work done on appeal, although there is no specific statute that contains such authorization. Third, he argues that he is entitled to an attorney fee award under the Equal Access to Justice Act (" EAJA" ), 28 U.S.C. § 2412(d). Fourth, he seeks an attorney fee award under the attorney fee provision of the Back Pay Act, 5 U.S.C. § 5596(b)(1)(A)(ii). We conclude that none of the four grounds on which Mr. Erickson
relies provides a basis for a fee award for work done in this court.
A. The Merit Systems Protection Board Is Not Authorized to Award Fees Incurred During Judicial Review Under USERRA
Mr. Erickson's first argument is that the Merit Systems Protection Board has statutory authority to make a comprehensive fee award under USERRA, which would include not only fees for work done before the Board, but also fees for work done before this court.
The statute on which Mr. Erickson relies, 38 U.S.C. § 4324(c)(4), authorizes the Board, in its discretion, to award attorney fees to a successful USERRA claimant. Although the statutory language does not expressly rule out a fee award for work done before a reviewing court, the focus of the statute is on work done before the Board. Thus, the statute provides that a fee award is authorized only if " the Board determines as a result of a hearing or adjudication conducted pursuant to a complaint submitted by a person directly ...