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Willis v. United States Postal Service

Award of attorney's fees by Merit Systems Protection Board at hourly rates significantly lower than the rates billed was reversed because evidence submitted by petitioner was sufficient to establish, prima facie, that the billing rates were reasonable.

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Appealed from: Merit Systems Protection Board

This appeal concerns the award of attorney fees at an hourly rate significantly lower than the rates billed by the attorneys representing a successful appellant before the Merit Systems Protection Board (“Board”). We address whether an applicant for a fee award submitted evidence sufficient to establish, prima facie, that the billing rates at which the recovery of attorney fees is sought were “reasonable,” as required by the applicable fee recovery statute. 5 U.S.C. � 7701(g)(1) (1994). Reversing the Board, we hold that the evidence submitted by petitioner Betty W. Willis was sufficient, namely: (1) her representation contract specifying the rates sought; (2) affidavits from both of her non-local attorneys stating that they contracted with and billed her at their customary rates, and that these rates were “average” for Charleston, West Virginia–the community where the hearing was scheduled; and, (3) three previous decisions by the Board holding that these rates, charged by the same firm that had represented Willis, were reasonable in similar appeals in three other communities. The Board apparently either overlooked or completely discounted this evidence, stating that Willis “adduced no relevant evidence to support her attorneys’ requested hourly rates.” Willis v. United States Postal Serv., slip op. at 7, No. PH-0752-97-0381-A-1 (Initial Decision, Mar. 19, 1998) (“Willis”). Because the Board’s requirement that Willis submit additional evidence was based upon Board case law that, even assuming its correctness, is inapplicable to this case, we reverse its decision and remand for an award of fees at the contract rates.

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