Appealed from: Merit Systems Protection Board.
Davis, Newman and Archer, Circuit Judges.
This is an attorney's-fee appeal in which the Merit Systems Protection Board (MSPB or Board), Docket Nos. DC043283A0577 and DC531D83A0578, 33 M.S.P.R. 158, reduced the award sought by petitioner. Though the amount of the reduction was not large, petitioner says that it was unreasonable, arbitrary, and capricious -- and therefore should be reversed. We agree and allow the full award sought by petitioner.
In Wilson v. Department of Health and Human Services, 770 F.2d 1048 (Fed. Cir. 1985), we reversed Ms. Wilson's demotion for unacceptable performance. On remand, she was awarded back pay. Because she was obviously the prevailing party, her counsel applied to the Board for attorney fees of $13,708.67 for work done before the Board and this court.*fn* The employing agency contested only the entitlement to fees, not the amount of the claim.
The presiding official, without holding a hearing, granted only $10,362.50 for attorney time and $36.19 for incidental expenses.*fn1 The reductions she made are the focus of this appeal. Instead of the eight hours sought for preparation of the fee motion, she allowed only five hours. She also disallowed all the fees sought for the principal attorney's associate. In a long opinion the full Board affirmed (in effect) the initial decision.
Petitioner's counsel complains that when the presiding official -- not having held a hearing, and the agency not having contested the amount -- decided on her own to reject certain of the attorney's submissions, she should have first communicated her problems to the attorney so that he could have the chance to supply reasons or new material and arguments.*fn2 We agree in substance. In the circumstances it was incumbent on the presiding official (now administrative judge) to give the attorney an opportunity to deal with the asserted deficiencies first raised by the presiding official. This could and should have been done informally and would not require an elaborate process or a formal hearing. Of course, an oral argument could be held.
We do not believe, however, that a full-scale hearing, with the formal presentation of witnesses and evidence, is required every time one or a few factual disputes surface. A hearing may well be called for when there are many disputes to be resolved, or a large amount is involved, or the problems are complex. See, e.g., Lindy Brothers Builders, Inc. v. American Radiator and Standard Sanitary Corp., 487 F.2d 161 (3d Cir. 1973). But we decline to rule that a hearing is mandatory simply because there is some dispute over amounts. Neither the statute nor the regulation calls for an automatic hearing (5 U.S.C. § 7701(g)(1); 5 C.F.R. § 1201.37) and the Supreme Court has cautioned that "[a] request for attorney's fees should not result in a second major litigation." Hensley v. Eckerhart, 461 U.S. 424, 437, 76 L. Ed. 2d 40, 103 S. Ct. 1933 (1983). In the current case, the problem could have been handled if the presiding official had simply communicated with the attorney, expressing her doubts and giving the attorney the opportunity to answer. That should have been done.
The presiding official deleted the work-time of the associate on the grounds that (1) his time-sheets were inadequate, and (2) his work was duplicative of the principal attorney's own efforts. These findings are not supported by substantial evidence. As they stand, the associate's time-sheets, although not fulsome or detailed, showed the time he spent and the general matters he worked on. They are comparable to many other time-sheets kept by attorneys in private practice.*fn3
The other ground given in the initial opinion -- duplication -- is likewise wanting. An associate's function is usually to help his principal, to do research and "scut work," to make suggestions and to prepare first drafts. This is not at all duplication but an aid to his ...