[Federal Register Volume 64, Number 246 (Thursday, December 23, 1999)]
[Proposed Rules]
[Pages 72040-72041]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-33357]
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MERIT SYSTEMS PROTECTION BOARD
5 CFR Part 1201
Practices and Procedures
AGENCY: Merit Systems Protection Board.
ACTION: Proposed rule; request for comments.
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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 filed is 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
1. 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.
2. 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. 99-33357 Filed 12-22-99; 8:45 am]
BILLING CODE 7400-01-U
