[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 [email protected].

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