Erickson v. U.S. Postal Serv.

• Decision Date: 15 October 2014
• Docket Number: 2010–3096.,Nos. 2008–3216,s. 2008–3216
• Citation: 759 F.3d 1341
• Parties: Richard ERICKSON, Petitioner, v. UNITED STATES POSTAL SERVICE, Respondent.
• Court: U.S. Court of Appeals — Federal Circuit

759 F.3d 1341

Richard ERICKSON, Petitioner,

v.UNITED STATES POSTAL SERVICE, Respondent.

Nos. 2008–3216, 2010–3096.

United States Court of Appeals, Federal Circuit.

July 18, 2014.

Rehearing and Rehearing En Banc Denied Oct. 14, 2014.

Rehearing and Rehearing En Banc Denied Oct. 15, 2014.^*

Matthew D. Estes, Tully Rinckey PLLC of Washington, DC, filed an application for attorney's fees for petitioner.

Tara K. Hogan Senior Trial Counsel, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, filed a response to the petition for respondent.With her on the response were Stuart F. Delery, Assistant Attorney General, Bryant G. Snee, Acting Director, and Franklin E. White, Assistant Director.

Before BRYSON and LINN, Circuit Judges.^**

ON MOTION

BRYSON, Circuit Judge.

The petitioner in this case, Richard Erickson, has filed an application for attorney fees in connection with his two appeals to this court.In his application, he sets forth four grounds for the recovery of attorney fees and expenses.We hold that none of the four grounds provides a legal basis for Mr. Erickson to receive attorney fees in this case, and we therefore deny the application.

I

Mr. Erickson, a U.S. Postal Service employee from 1988 to 2000, was a member of the Army National Guard Reserve throughout that period.During the 12 years of his employment, he was absent from his Postal Service position for lengthy periods of time while he was on active duty with the National Guard.Between 1991 and 1995he was absent for a total of more than 22 months, and between 1996 and 2000, he worked at the Postal Service for only four days.In January 2000, during one of Mr. Erickson's periods of active duty, the Postal Service inquired whether he intended to return to his Postal Service job.Mr. Erickson replied that he would not report back to work with the agency until he completed his current tour of duty in September 2001.He stated at that time that he preferred military serviceto working for the Postal Service.Shortly thereafter, the Postal Service removed him for excessive use of military leave.Erickson v. U.S. Postal Serv. (Erickson I),571 F.3d 1364, 1366–67(Fed.Cir.2009).

Following his removal from the Postal Service, Mr. Erickson re-enlisted with the National Guard.He remained on active military duty until December 31, 2005.In September 2006, he filed an appeal with the Merit Systems Protection Board alleging that the Postal Service had violated his rights under the Uniformed Services Employment and Reemployment Rights Act of 1994 (“USERRA”) by removing him from his position based on his military service.The Board rejected his claim under USERRA's reemployment rights provision, 38 U.S.C. § 4312, holding that he had not made a timely request for reemployment with the agency.The Board also rejected his claim under USERRA's antidiscrimination provision, 38 U.S.C. § 4311, holding that Mr. Erickson's military service was not a motivating factor in the agency's decision to remove him.The Board also held that Mr. Erickson had forfeited his reemployment rights because at the time of his appeal his cumulative absence from the agency exceeded the five-year limit set by USERRA.Erickson I,571 F.3d at 1367.

On Mr. Erickson's appeal, this court affirmed the Board's decision with respect to his reemployment claim, but reversed with respect to his discrimination claim.As to his discrimination claim, the court held that the evidence was clear that Mr. Erickson's removal was attributable to his military service and that at the time of his removal he had not been absent from his position with the Postal Service for a total of five years.The court remanded the case to the Board to resolve the remaining question whether Mr. Erickson had waived his rights under USERRA by abandoning his civilian career in favor of a career in the military.Erickson I,571 F.3d at 1367–72.

On remand, the Board found that Mr. Erickson had waived his USERRA rights by abandoning his civilian career.Mr. Erickson again appealed to this court, arguing that the Board's findings in that regard were not supported by substantial evidence.This court agreed with Mr. Erickson that the Board's findings were not supported by substantial evidence.Accordingly, the court remanded the case to the Board for further proceedings on Mr. Erickson's claim.Erickson v. U.S. Postal Serv. (Erickson II),636 F.3d 1353(Fed.Cir.2011).

In the second remand proceeding, the Board ruled in favor of Mr. Erickson on his discrimination claim.It granted him reinstatement with back wages and benefits as of the date of his removal.Mr. Erickson has now filed an application here seeking fees for his attorneys' work in the two appeals he took to this court.

II

In support of his application, Mr. Erickson makes four arguments.First, he contends that the Merit Systems Protection Board is authorized to grant fees for work in this court under USERRA's attorney fee statute, 38 U.S.C. § 4324(c)(4).Second, he argues that USERRA authorizes this court to grant attorney fees for work done on appeal, although there is no specific statute that contains such authorization.Third, he argues that he is entitled to an attorney fee award under the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412(d).Fourth, he seeks an attorney fee award under the attorney fee provision of the Back Pay Act, 5 U.S.C. § 5596(b)(1)(A)(ii).We conclude that none of the four grounds on which Mr. Erickson relies provides a basis for a fee award for work done in this court.

A.The Merit Systems Protection Board Is Not Authorized to Award Fees Incurred During Judicial Review Under USERRA

Mr. Erickson's first argument is that the Merit Systems Protection Board has statutory authority to make a comprehensive fee award under USERRA, which would include not only fees for work done before the Board, but also fees for work done before this court.

The statute on which Mr. Erickson relies, 38 U.S.C. § 4324(c)(4), authorizes the Board, in its discretion, to award attorney fees to a successful USERRAclaimant.Although the statutory language does not expressly rule out a fee award for work done before a reviewing court, the focus of the statute is on work done before the Board.Thus, the statute provides that a fee award is authorized only if “the Board determines as a result of a hearing or adjudication conducted pursuant to a complaint submitted by a person directly to the Board ... that such person is entitled to an order” requiring compliance or compensation.38 U.S.C. § 4324(c)(4).

Interpreting the USERRA fee statute as not giving the Board authority to grant fee applications for work done before this court is consistent with a longstanding line of cases in which this court has held that the Board is not authorized to grant an award of fees for work done on appeal from a Board order.SeeGallo v. Dep't of Transp.,725 F.3d 1306, 1309(Fed.Cir.2013)(“[T]his court is the appropriate forum in which to request attorney fees incurred in proceedings before this court.”);Ramos v. Dep't of Justice,552 F.3d 1356, 1359–60(Fed.Cir.2009)(the Board is not authorized under the Back Pay Act to enter an award for work done before the court of appeals);Phillips v. Gen. Servs. Admin.,924 F.2d 1577, 1581(Fed.Cir.1991)(same);Covington v. Dep't of Health and Human Servs.,818 F.2d 838, 840(Fed.Cir.1987)(the Board lacks authority to award attorney fees for services rendered in connection with judicial review);Gavette v. Office of Pers. Mgmt.,808 F.2d 1456, 1468(Fed.Cir.1986)(en banc)(EAJA request for work done on appeal must be directed to the court of appeals).

Mr. Erickson argues that the cited cases do not speak to attorney fees under USERRA and that this court is therefore free to depart from its precedent interpreting the fee provisions of other statutory schemes.The reasoning of those cited cases, however, did not depend on the details of the particular statutory schemes.Mr. Erickson does not provide a convincing argument as to why USERRA is different.Instead, he states only that a rule that forbids the Board from awarding fees for judicial review “would conflict with a plain reading of [USERRA], which authorizes ‘the Board’ to award fees” and would “unduly restrict the broad equitable powers afforded a court to vindicate veterans rights, and the liberal construction given to USERRA for the benefit of those who ... left private life to serve their country.”

Such broad policy generalizations cannot make up for the absence of statutory authority or override the applicable case law.While statutory language unambiguously granting the Board authority to award fees for work done on appeal would, of course, trump prior precedents to the contrary, there is no such unambiguous language in the USERRA fee statute.In fact, as noted, the language of the statute suggests the contrary.

The absence of clear statutory authority to award fees for work on appeal is particularly telling in light of the fact that such a statutory authorization for a fee award against the government would constitute a waiver of sovereign immunity.SeeRuckelshaus v. Sierra Club,463 U.S. 680, 685, 103 S.Ct. 3274, 77 L.Ed.2d 938(1983)(“Except to the extent it has waived its immunity, the Government is immune from claims for attorney's fees.”).A waiver of sovereign immunity “must be ‘unequivocally expressed’ in statutory text,” and “[a]ny ambiguities in the statutory language are to be construed in favor of immunity.”FAA v. Cooper,––– U.S. ––––, 132 S.Ct. 1441, 1448, 182 L.Ed.2d 497(2012).Ambiguity exists “if there is a plausible interpretation of the statute that would not authorize money damages against the government.”Id.It is far from clear that section 4324(c)(4) authorizes the Board to award attorney fees for work done in the course of judicial review of Board decisions.We therefore follow our prior precedents...