FEDERAL CIRCUIT HEDGES ON LAFFEY RATE; AFFIRMS MODEST COMPENSATORY DAMAGES AWARD FROM MSPB
In Hickey v. DHS (Fed. Cir. 2018-1650 nonprecedential), the court considered a counsel fee petition appealed from the MSPB, decided that the administrative judge had imposed an unwarranted constraint on the permissible hourly rate, and discussed the Laffey Matrix rates, often cited, always sought, and sometimes granted, but the court did not state that the MSPB could, or could not, use the Matrix as a determinant for fees. In the same decision, the court declined to set aside (and remand to increase) a compensatory damages award by the Board of $10,000 to the appellant in a successful whistleblower reprisal case. The evidence before the Board, the court concluded, did not establish that the emotional harm alleged was actually caused by harm resulting from the retaliatory activities.
The lesson is that appellants are going to be required by the Board (and arbitrators who follow Board decisions) to demonstrate a fair degree of certainty in establishing a causal relationship between what occurred on the job and resulting emotional distress or medical problems. Doctors reports would seem highly probative. Agencies have the option of requesting a medical examination under Hasler v. Dept. of Air Force, 79 MSPR 415 (1998).
For those who are curious, the Laffey Matrix is found at justice.gov/usao-dc/file/796471/download.
And for those who are really curious, oral argument in the Federal Circuit can be heard from audio recordings. The court hears a variety of cases. The MSPB cases or cases involving appeals of arbitrators' awards are usually easily identified by a title of a person's name versus a federal agency or the MSPB, e.g., Peter v. Department of Labor. Sign up for email alerts to oral arguments at cafc.uscourts.gov/email-subscriptions.