Erickson v. United States Postal Service
200 L.R.R.M. (BNA) 3065
| Fed. Cir. | 2014Background
- Erickson, a USPS employee (1988–2000) and National Guard member, was removed for excessive military leave after long absences.
- He pursued USERRA claims and appeals to this court, with two remands by the Board.
- The Board denied reinstatement on USERRA grounds and later findings were remanded for substantial-evidence review.
- Erickson sought attorney fees for both appeals in this court.
- The panel denied all four fee grounds, concluding no basis for fees in this case.
- The court held the Board lacks authority to award fees for appellate work and EAJA/Back Pay Act grounds do not apply.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Authority of the Board to award appellate fees | Erickson asserts Board can award fees under USERRA §4324(c)(4) | Board authority covers only Board proceedings, not appellate work | Board has no authority to award fees for this court |
| Independence of this court to award USERRA fees | This court may grant fees under USERRA if statute allows | No independent statutory authorization for court to award fees | No independent authorization; fees not awardable under USERRA |
| EAJA eligibility and timeliness | Entitled to EAJA fees due to remand outcomes | EAJA petition untimely or not substantially justified government position | EAJA fees denied as untimely and/or not warranted |
| Back Pay Act attorney fees applicability to Postal Service preference eligibles | Back Pay Act applies to preference eligible Postal employees, including attorney fees | Back Pay Act does not apply to Postal Service attorney fees; not a Title 5 provision relating to preference eligibles | Attorney-fee provision of the Back Pay Act does not apply to this case |
Key Cases Cited
- Gallo v. Dep’t of Transp., 725 F.3d 1306 (Fed. Cir. 2013) (Board cannot award fees for appellate proceedings; court must authorize fees)
- Ramos v. Dep’t of Justice, 552 F.3d 1356 (Fed. Cir. 2009) (Board not authorized to award fees for appellate work)
- Phillips v. Gen. Servs. Admin., 924 F.2d 1577 (Fed. Cir. 1991) (Board cannot award fees on appeal)
- Covington v. Dep’t of Health and Human Servs., 818 F.2d 838 (Fed. Cir. 1987) (Board lacks authority for judicial-review fees)
- Gavette v. Office of Pers. Mgmt., 808 F.2d 1456 (Fed. Cir. 1986) (EAJA requests for appellate work must be directed to court of appeals)