Albert P. Schultz v. United States Postal Service
Background
- Albert P. Schultz (represented by counsel and estate) litigated disability discrimination and a removal; after Board and district court proceedings, the district court awarded back pay and benefits and later the Third Circuit affirmed in part. The district court remanded attorney-fee issues to the MSPB for work performed before the Board.
- Schultz filed a Board fee petition (work before the Board on the compliance matter) in 2010; the administrative judge on remand awarded fees but reduced the requested hourly rate and disallowed some hours as clerical, yielding $125,428.89 including costs.
- The parties filed cross-petitions for review: Schultz challenged the hourly rate, clerical disallowances, and sought a 15% tax-offset enhancement; the agency argued untimeliness and sought further reductions for limited success and time spent on the fee petition.
- The Board reviewed (1) whether timeliness was open on remand, (2) reasonableness of the $250 hourly rate (appellant sought up to $880), (3) reasonableness and compensability of claimed hours (clerical and delegable tasks), and (4) whether lodestar should be adjusted for partial success and tax consequences.
- Board affirmed but modified the AID: found timeliness not within scope of remand; upheld $250/hour; disallowed specific clerical/delegable and fee-petition-related hours; reduced the lodestar for 2010–2015 by 20% for partial success; awarded $100,733.89 in fees and costs.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness of Board fee petition | Schultz contended district court remand meant timeliness was not at issue; fee petition timely for Board consideration | USPS argued petition was filed 502 days late and should be dismissed absent good cause | Board: timeliness not within scope of district court remand; declined to revisit timeliness on remand |
| Reasonable hourly rate | Schultz sought higher rate (up to $880) or adjustment to current-market/Laffey or CLS rates | USPS opposed higher rate; argued deference to district court and reasonableness review | Board: $250/hr reasonable (consistent with district court prior finding); rejected enhancement or retroactive current-rate adjustments and tax-offset request |
| Compensability of claimed hours (clerical/delegable) | Schultz argued many disallowed entries were substantive and that performing clerical tasks personally was more efficient | USPS urged disallowance of clerical/delegable time and time spent on prior fee motions | Board: disallowed specific discrete clerical entries and 6.6 hours that were block-billed delegable tasks; disallowed 23.8 hours tied to attorney-fee motions (not compliance proceedings) |
| Lodestar adjustment for partial success & fee-petition time | Schultz argued no downward adjustment; sought 15% tax-offset on lump sum | USPS urged significant reduction for limited success and for work on fee petition and removal appeal | Board: no downward reduction for 2001–2005 (substantial success on compliance); reduced 2010–2015 lodestar by 20% to account for partial success and time on unsuccessful matters; denied tax-offset enhancement |
Key Cases Cited
- Driscoll v. U.S. Postal Service, 116 M.S.P.R. 662 (MSPB 2011) (lodestar calculation and fee-reasonableness framework)
- Hensley v. Eckerhart, 461 U.S. 424 (U.S. 1983) (hours reasonably expended and results-obtained guide lodestar adjustments)
- Loeffler v. Frank, 486 U.S. 549 (U.S. 1988) (interest on back pay against USPS; not applicable to attorney-fee interest or retroactive rate enhancement)
- Lanni v. State of New Jersey, 259 F.3d 146 (3d Cir. 2001) (Third Circuit discussion of market rates; nonbinding on MSPB)
- Caros v. Department of Homeland Security, 122 M.S.P.R. 231 (MSPB 2015) (no enhancement of fees to account for delay in payment)
- Shelton v. Environmental Protection Agency, 115 M.S.P.R. 177 (MSPB 2010) (statutory basis for awarding reasonable attorney fees under 5 U.S.C. § 7701(g)(1))