Yeressian v. Department of the Army , 534 F. App'x 968 ( 2013 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
JOHN YERESSIAN,
Petitioner,
v.
DEPARTMENT OF THE ARMY,
Respondent.
______________________
2013-3081
______________________
Petition for review of the Merit Systems Protection
Board in No. SF0752090049-A-2.
______________________
Decided: August 16, 2013
______________________
JOHN YERESSIAN, of Pasadena, California, pro se.
SCOTT R. DAMELIN, Trial Attorney, Commercial Liti-
gation Branch, Civil Division, United States Department
of Justice, of Washington, DC, for respondent. With him
on the brief were STUART F. DELERY, Acting Assistant
Attorney General, JEANNE E. DAVIDSON, Director, and
STEVEN J. GILLINGHAM, Assistant Director. Of counsel
was LARRY F. ESTRADA, Assistant District Counsel, United
States Army Corps of Engineers, of Los Angeles, Califor-
nia.
______________________
2 JOHN YERESSIAN v. ARMY
Before RADER, Chief Judge, PROST, and TARANTO, Cir-
cuit Judges.
PER CURIAM.
The Merit Systems Protection Board rejected John
Yeressian’s claim for attorney fees related to a January
21, 2010 decision reinstating him into his former position
in the Department of the Army (Army). Because the
Board’s decision is in accordance with law and supported
by substantial evidence, this court affirms.
I.
This appeal is related to Yeressian v. Dep’t of the Ar-
my, No. 2013-3079. As described in that opinion, Mr.
Yeressian was terminated from his position as a student
trainee in the Army’s realty division. Yeressian v. Dep’t of
the Army, No. 2013-3079, slip. op. at 1–5. Subsequently,
the Army was ordered to reinstate Mr. Yeressian due to
prohibited personnel practice. Id. This appeal is related
solely to the issue of attorney fees incurred in connection
with Mr. Yeressian’s wrongful removal claim before the
Board.
Mr. Yeressian moved for attorney fees following his
reinstatement. The AJ found that attorneys Robert
Atkins and William Brawner both performed legal ser-
vices for Mr. Yeressian throughout his case. Mr. Atkins
did not have a formal retainer agreement with Mr.
Yeressian; however, Mr. Atkins averred that he charged
Mr. Yeressian a reduced rate of $210 per hour as a
“standard rate” for federal employees and that the “pre-
vailing market rate” for his services was $435 per hour.
App. at 43. The AJ noted that “the amount agreed upon
represents the maximum reasonable fee which may be
awarded. [However, this] presumption is rebuttable by
convincing evidence that the agreed-upon rate was not
based on marketplace considerations . . . .” App. at 43.
The AJ held that Mr. Yeressian rebutted this presump-
tion by submitting direct evidence of Mr. Atkins’s educa-
JOHN YERESSIAN v. ARMY 3
tion, experience, and other relevant qualifications, and by
submitting evidence of the rate of attorneys with similar
expertise and experience. Accordingly, the AJ awarded
attorney fees for Mr. Atkins at a rate of $435 per hour.
With respect to Mr. Brawner, Mr. Brawner had en-
tered into a retainer agreement with Mr. Yeressian speci-
fying an hourly rate of $250. In his motion for attorney
fees, Mr. Yeressian requested that Mr. Brawner be com-
pensated at $335 per hour. Mr. Yeressian’s only basis for
this higher rate was (1) the fact that Mr. Brawner had
been compensated $300 an hour in an unrelated matter in
front of the Board, and (2) the Laffey Matrix, which is a
guide prepared by the United States Attorney’s Office for
the District of Columbia. The Laffey Matrix purports to
show the average hourly rates for attorneys of varying
experience levels. The AJ found this evidence nonbinding
and unpersuasive, and awarded attorney fees for Mr.
Brawner at his agreed rate of $250 per hour.
In addition, the AJ reduced the number of compensa-
ble hours for Mr. Brawner by 53.2 hours based on his
finding that Mr. Brawner spent an excessive number of
hours on tasks that “clearly did not advance the prosecu-
tion of the appeal and did nothing to contribute to its
outcome.” App. at 48. Such tasks included preparing a
motion for recusal of the AJ, spending 25 hours opposing
the Army’s request for a ten-day extension of time, and
making “repeated arguments that the jurisdictional
hearing [he himself] requested was unnecessary, coupled
with his adamant refusal to withdraw that request.” App.
at 49.
As a result, the AJ ordered the Army to pay
$12,247.52 to Mr. Atkins in attorney fees and costs and
$26,432.78 to Mr. Brawner in attorney fees and costs. Mr.
Yeressian appealed this ruling to the full Board, alleging
that the AJ (1) failed to explain to Mr. Yeressian the legal
requirements for a fee petition or his burden of proof; (2)
should have awarded Mr. Brawner fees at the rate of $335
per hour; (3) improperly reduced Mr. Brawner’s hours by
4 JOHN YERESSIAN v. ARMY
53.2; and (4) erred by not awarding Mr. Atkins fees for
consultation and mediation.
The Board rejected Mr. Yeressian’s first three argu-
ments. First, the Board found that Mr. Yeressian was
given ample notice of the requirements and his burden of
proof. Second, the Board determined that Mr. Brawner
was properly compensated at $250 an hour because
“[w]here a specific fee is agreed upon, the Board presumes
that that amount represents the maximum reasonable fee
which may be awarded,” App. at 16 (citing Gensburg v.
Dep’t of Veterans Affairs, 85 M.S.P.R. 198 (2000)), and Mr.
Yeressian did not provide persuasive evidence to rebut
that presumption. Third, the Board agreed with the AJ’s
decision to reduce Mr. Brawner’s hours by 53.2.
With respect to Mr. Yeressian’s argument that Mr.
Atkins should have been awarded fees for consultation
and mediation, the Board reversed, stating that it “en-
courages parties to pursue mediation or other alternative
dispute resolution methods, and it has awarded fees for
such work.” App. at 17 (citing Hart v. Dep’t of Transp.,
115 M.S.P.R. 10, ¶ 46 (2010)). Therefore, the Board
awarded Mr. Atkins an additional 10.58 hours of attorney
fees for work related to the parties’ mediation attempts.
The Board denied Mr. Yeressian’s request for consultation
fees.
II.
Mr. Yeressian appeals part of the Board’s decision to
this court. He alleges that the Board erred by failing to
compensate Mr. Brawner at $335 per hour and for reduc-
ing Mr. Brawner’s compensable hours by 53.2. This court
“must affirm the Board’s decision unless it is arbitrary,
capricious, an abuse of discretion or otherwise not in
accordance with law, obtained without procedures re-
quired by rule, law, or regulation, or unsupported by
substantial evidence.” Addison v. Dep’t of Health &
Human Servs., 945 F.2d 1184, 1186 (Fed. Cir. 1991); see
also 5 U.S.C. § 7703(c) (2012).
JOHN YERESSIAN v. ARMY 5
Where a specific fee is agreed upon, there is a pre-
sumption that the agreed upon fee represents the maxi-
mum reasonable fee which may be awarded. Gensburg v.
Dep’t of Veterans Affairs, 85 M.S.P.R. 198, 206 (2000).
This presumption may be rebutted “by convincing evi-
dence that the agreed-upon rate was not based on mar-
ketplace considerations and . . . was customarily higher,
or by showing that [counsel] agreed to such a rate only
because of the [client’s] reduced ability to pay and that his
customary fee for similar work was significantly higher.”
Id.Mr. Yeressian presented only two pieces of evidence
that Mr. Brawner should be compensated at $335 per
hour: (1) Mr. Brawner had been compensated at $300 per
hour in an unrelated matter and (2) the Laffey Matrix.
This evidence alone is insufficient. Unlike with Mr.
Atkins, Mr. Yeressian presented no evidence of Mr.
Brawner’s education, experience, and other relevant
qualifications, and failed to submit persuasive evidence of
the rate of other attorneys with similar expertise and
experience. Absent such evidence, “[a] representation
contract specifying hourly rates is [the best] evidence that
the contract rates are consistent with local market rates,
because the client freely agreed to pay the rates by enter-
ing into the contract.” Willis v. U.S. Postal Serv., 245
F.3d 1333, 1340 (Fed. Cir. 2001). Contrary to Mr.
Yeressian’s assertion, the Laffey Matrix is imprecise and
is merely a guide. See Covington v. District of Columbia,
57 F.3d 1101, 1109 (D.C. Cir. 1995) (“[F]ee matrices are
somewhat crude—the Laffey matrix, for example, lumps
attorneys with four to seven years of experience in the
same category; attorneys with eleven to nineteen also
share the same hourly rate.”). It is not binding on the
Board.
Mr. Yeressian argues he was entitled to a hearing on
his motion for attorney fees to present testimony concern-
ing his fee arrangement with Mr. Brawner. Mr. Yeressi-
an is incorrect. A hearing on a motion for attorney fees is
6 JOHN YERESSIAN v. ARMY
within the discretion of the AJ. 5. C.F.R. § 1201.203(f).
The record shows that Mr. Yeressian was permitted to file
extensive written submissions, which were thoroughly
considered by the AJ and the Board. The AJ did not
abuse his discretion by not conducting a hearing, nor was
Mr. Yeressian prejudiced by that decision.
In regard to the reduction of Mr. Brawner’s hours, the
claimed hours for legal work by an applicant’s attorney
must be reasonable. Mr. Yeressian does not dispute that
Mr. Brawner spent 53.2 hours on tasks that included
drafting a motion for recusal of the AJ, opposing the
Army’s request for a ten-day extension of time, and mak-
ing arguments against a jurisdictional hearing that he
himself requested and refused to withdraw. Rather, Mr.
Yeressian argues that those tasks were necessary to
advance his case and, based on his own personal experi-
ence and communication with other attorneys, the num-
ber of hours is reasonable.
The record shows that the AJ conducted a careful re-
view of Mr. Brawner’s claimed hours. Despite reducing
the total number of hours, the AJ still awarded Mr.
Brawner a substantial amount in attorney fees. This
court perceives no legal error. Given the AJ’s intimate
knowledge of this case and familiarity with Mr. Brawner’s
work, Mr. Yeressian has shown no reason for this court to
override the AJ’s discretion. The decision of the Board is
affirmed. Mr. Yeressian’s remaining arguments have
been carefully considered and found unpersuasive.
AFFIRMED