Lukas E. Hoska, Iii, Petitioner, v. United States Department of the Army, Respondent, 694 F.2d 270 (D.C. Cir. 1982)

On April 30, 1982, we set aside a decision of the Merit Systems Protection Board ("MSPB" or "Board") upholding the dismissal of petitioner, Lukas E. Hoska, from his position as Intelligence Operations Specialist with the United States Army Administrative Survey Detachment ("Army"). Hoska v. United States Department of the Army, 677 F.2d 131 (D.C. Cir. 1982). We remanded the case to the MSPB with instructions "to order appropriate relief, including reissuance of petitioner's security clearance, reinstatement, back pay, and such other relief as may be warranted." Id. at 145. The Board thereafter entered an Order directing petitioner's reinstatement with back pay. Petitioner now moves this court for an award of costs and attorney's fees.

For the reasons set forth below, we hold that petitioner is entitled to an award of costs as the prevailing party on the appeal before this court. We also hold that petitioner is entitled to attorney's fees for services rendered both before this court and during the administrative appeals of this case. We shall leave it to the MSPB, however, to determine the precise amount due in attorney's fees for services rendered during the administrative appeals.

There can be no serious question regarding petitioner's entitlement to costs under 28 U.S.C. § 2412(a)¹  and Rule 39 of the Federal Rules of Appellate Procedure.²  Prevailing parties are " 'entitled to an award of costs as a matter of course, save only to the extent that the court might direct otherwise.' " Baez v. United States Department of Justice, 684 F.2d 999, 1005 (D.C. Cir. 1982) (en banc) (per curiam) (quoting Saunders v. Washington Metropolitan Transit Authority, 505 F.2d 331, 333 (D.C. Cir. 1974)). In accordance with this "general presumption favoring cost recovery" for prevailing parties, and absent a showing by respondent "of facts or circumstances supporting any departure from the general rule," Baez, 684 F.2d at 1007, we direct the Clerk of the Court to award costs³  to petitioner pursuant to the local rules of the District of Columbia Circuit.⁴ 

Respondent contends that costs should be denied because " [p]etitioner's motion does not indicate the costs for which he is seeking reimbursement." Respondent's "Opposition to Motion for Costs and for Attorney's Fees and Expenses Under the Equal Access to Justice Act" (filed Sept. 15, 1982) at 1 [hereinafter cited as "Respondent's Opposition"]. We need not pass on this question, however, because petitioner shall be afforded 14 days after the issuance of this decision to make an appropriate submission for costs to the Clerk of the Court. All we need decide here is that petitioner is entitled to an award of costs as the prevailing party on the appeal before this court.

We further conclude that, under the Back Pay Act, 5 U.S.C. § 5596(b) (1) (A) (ii),⁵  petitioner is entitled to attorney's fees for services rendered during both the administrative and judicial appeals of this case.

Petitioner's motion for fees relies solely on the Equal Access to Justice Act of 1980, 28 U.S.C. § 2412(d) (3) (Supp. IV 1980). See "Motion of Petitioner for Costs and for Attorneys' Fees and Expenses" (filed Aug. 6, 1982) at 3-5. That statute, however, permits attorney's fees awards "in any action for review of an adversary adjudication, as defined in [5 U.S.C. § 504(b) (1) (C) (Supp. IV 1980) ]...." 5 U.S.C. § 554(a) (2) (1976 & Supp. IV 1980), in turn, specifically excludes from the category of "adversary adjudication" any matter involving "the selection or tenure of an employee...." Since this case clearly involves petitioner's "tenure" with the Army, 28 U.S.C. § 2412(d) (3) is inapplicable.

Nevertheless, although the Equal Access to Justice Act has no application here, respondent readily concedes that "fees are available in this case under ... the Back Pay Act, 5 U.S.C. 5596(b) (1) (A) (ii)...." Respondent's Opposition at 3. We agree. 5 U.S.C. § 5596(b) (1) (A) (ii) allows recovery of "reasonable attorney fees related to the personnel action." This language is sufficiently broad to include attorney's fees for services rendered in administrative or judicial appeals undertaken by an employee to obtain correction of "an unjustified or unwarranted personnel action."⁶  Furthermore, petitioner's initial failure to prevail at the administrative appeals stage surely does not bar his recovery of fees for services rendered at that level.⁷  The judgment of this court, reversing the prior adverse decision of the MSPB, is sufficient to warrant petitioner's request for fees incurred during his administrative appeals.

B. Attorney's Fees for Services Rendered During the Administrative Appeals

Under 5 U.S.C. § 5596(b) (1) (A) (ii), it is undisputed that the MSPB appropriately may determine "reasonable attorney fees" for services rendered in connection with administrative appeals cognizable under the statute. Relying on the language in 5 U.S.C. § 7701(g), the Board has held that attorney's fees may be awarded under the Back Pay Act if "warranted in the interest of justice." See Wells v. Harris, 2 M.S.P.B. 572 (1980).⁸  We need not decide whether this interpretation is sound because we believe that the Wells standard is satisfied here. The Army's actions in this case were wholly unfounded and petitioner was substantially innocent of the accusations made against him. See Hoska v. United States Department of the Army, 677 F.2d 131, 133-34 (D.C. Cir. 1982). Accordingly, the only question remaining for the MSPB on the remand of this case concerns the amount to be awarded petitioner as a reasonable attorney fee for time spent in connection with the administrative appeals.

While it is arguably possible for this court to determine the amount of fees due for work performed on administrative appeals,⁹  we believe that this matter is best left to the MSPB. We therefore remand the case to the Board with an instruction to fix a reasonable attorney's fee for petitioner for services rendered during the administrative appeals.

C. Attorney's Fees for Services Rendered in Proceedings Before this Court

Under 5 U.S.C. § 5596(b) (1), this court is an "appropriate authority" to determine an "unjustified or unwarranted personnel action." Cf. Ainsworth v. United States, 399 F.2d 176 (Ct. Cl. 1968) (holding that, under an earlier version of the Back Pay Act, "a 'proper authority' included 'a court authorized to direct the correction of' an unwarranted separation ... and, also, a court 'authorized * * * to correct ' improper personnel actions," id. at 181). It is also undisputed that, under 5 U.S.C. § 5596(b) (1), this court may appropriately determine a reasonable attorney's fee incurred in connection with the judicial review proceedings. Since we have found that petitioner is entitled to attorney's fees under the Back Pay Act, we must now determine the appropriate amount due.

Respondent does not dispute that computation of the proper amount of attorney's fees is generally governed by the principles set forth in Copeland v. Marshall, 641 F.2d 880 (D.C. Cir. 1980) (en banc), EDF v. EPA, 672 F.2d 42 (D.C. Cir. 1982), and National Association of Concerned Veterans v. Secretary of Defense, 675 F.2d 1319 (D.C. Cir. 1982) (per curiam).¹⁰  "Under Copeland, the attorneys' fee is computed by first determining the 'lodestar,' i.e., the number of hours reasonably expended multiplied by a reasonable hourly rate." EDF, 672 F.2d at 51. "The lodestar fee may then be adjusted up or down to reflect the quality of representation and the contingent nature of success." Id. Since petitioner claims no contingency or quality adjustment, the total amount sought in this case is the lodestar fee.

Petitioner claims 81.75 hours, at an hourly rate of $67.50, for attorney time spent in connection with the proceedings before this court. This claim yields a lodestar fee of $5,518.13. In support of this request, petitioner has submitted a detailed summary of the number of hours claimed, categorized chronologically by types of work performed and supported by an affidavit from counsel giving generalized descriptions of the nature of the work performed. The affidavit also indicates that petitioner's counsel is a general partner in a local law firm, is admitted to the bars of the District of Columbia and of this court, has approximately four years experience as a practitioner, and has a notable amount of appellate experience before this court and the District of Columbia Court of Appeals. In light of the standards enunciated in our decisions in Copeland, EDF and National Association of Concerned Veterans, and because respondent does not contest petitioner's fee documentation, we approve the request for fees in the amount of $5,518.13.

We note that the materials provided by petitioner give only general information about the prevailing market rate charged by attorneys of comparable experience engaged in similar legal practice. See National Association of Concerned Veterans, 675 F.2d at 1324-27. Absent more specific information, it is within the discretion of the court to defer judgment on the fee question to afford petitioner an opportunity to supplement his submission, see Hensley v. Washington Metropolitan Transit Authority, 690 F.2d 1054 at 1058 (D.C. Cir. 1982); however, we find this unnecessary in the instant case. First, it is significant that respondent has in no way contested the reasonableness of the hourly rate sought by petitioner. See National Association of Concerned Veterans, 675 F.2d at 1325 n. 6 (distinguishing cases in which the court had no reason to inquire into the adequacy of fee documentation because the Government did not challenge the reasonableness of the rates sought). Second, on the basis of documents on file with this court, respondent could not legitimately contend that the rate requested by petitioner is outside of the prevailing rate for similar work within the community.¹¹  Given these considerations, we can find no basis upon which to reject or otherwise question petitioner's claim for attorney's fees in this case.

For the foregoing reasons, we hereby order that respondent compensate petitioner for attorney's fees in the amount of $5,518.13 and for costs. Petitioner shall be given 14 days after the issuance of this decision to submit an appropriate request for costs to the Clerk of the Court.

The case is remanded to the MSPB for a determination and an award of attorney's fees to petitioner for services rendered in connection with the administrative appeals.

So ordered.