       United States Court of Appeals for the Federal Circuit


                                        2007-3006



                                 CRAIG J. JACOBSEN,

                                                      Petitioner,

                                            v.


                              DEPARTMENT OF JUSTICE,

                                                      Respondent.


        Mathew B. Tully, Tully, Rinckey & Associates, of Albany, New York, argued for
petitioner.

       Devin A. Wolak, Trial Attorney, Commercial Litigation Branch, Civil Division, United
States Department of Justice, of Washington, DC, argued for respondent. With him on the
brief were Peter D. Keisler, Assistant Attorney General, Jeanne E. Davidson, Director, and
Mark A. Melnick, Assistant Director. Of counsel on the brief was Thadd A. Prisco,
Assistant General Counsel, Executive Office for United States Attorneys, United States
Department of Justice, of Washington, DC.

Appealed from: United States Merit Systems Protection Board
 United States Court of Appeals for the Federal Circuit

                                        2007-3006


                                  CRAIG J. JACOBSEN,

                                                             Petitioner,
                                            v.


                               DEPARTMENT OF JUSTICE,

                                                             Respondent.


                             __________________________

                             DECIDED: September 20, 2007
                             __________________________


Before MICHEL, Chief Judge, GARJARSA, Circuit Judge, and HOLDERMAN, ∗ Chief
District Judge.

MICHEL, Chief Judge.

          Craig J. Jacobsen appeals from a final opinion and order of the Merit Systems

Protection Board (“Board”) affirming the denial of his motion for attorney fees submitted

to the Board pursuant to 38 U.S.C. § 4324(c)(4), the fee-shifting provision of the

Uniformed Services Employment and Reemployment Rights Act of 1994 (“USERRA”),

38 U.S.C. §§ 4301-4333. Jacobsen v. Dep’t of Justice, 2006 M.S.P.B. 280 (2006). We

affirm.




          ∗
              Honorable James F. Holderman, Chief Judge, United States District Court
for the Northern District of Illinois, sitting by designation.
                                            I.

      The facts giving rise to this appeal are largely undisputed. From 1995 to 2001,

Jacobsen was a federal employee at the Department of Justice as well as a member of

the U.S. Army Reserves. On November 15, 2004, Jacobsen filed an appeal with the

Board alleging that from 1995 to 2001 the Department of Justice (“agency”) improperly

charged him military leave for the performance of military reserve duty on calendar days

in which he was not scheduled to work for the agency in violation of USERRA. See

Butterbaugh v. Dep’t of Justice, 336 F.3d 1332 (Fed. Cir. 2003). Jacobsen requested

restoration of lost leave, as well as attorney fees and other expenses allowed by law.

The Administrative Judge (“AJ”) assigned to the appeal granted Jacobsen’s request for

corrective action in an initial decision dated February 24, 2005. The AJ found that the

agency improperly charged Jacobsen with two days of military leave for days he was

not scheduled to work for the agency in violation of USERRA, and ordered the agency

to correct its records to reflect that no military leave was charged for these days.

Jacobsen v. Dep’t of Justice, DC-3443-05-0092-I-1 (M.S.P.B. Feb. 24, 2005). Neither

party petitioned for review; the initial decision became final on March 31, 2005.

      On May 25, 2005, Jacobsen filed a timely motion for attorney fees, seeking

$8,700 for twenty-nine hours of legal work performed by his attorney. After an initial

decision and Board remand not of relevance here, the AJ issued an initial decision

denying Jacobsen’s motion for attorney fees. Jacobsen v. Dep’t of Justice, DC-3443-

05-0092-B-1 (M.S.P.B. Apr. 18, 2006). Jacobsen timely appealed the decision to the

full Board which issued a final opinion and order on September 22, 2006, denying

Jacobsen’s petition for review under 5 C.F.R. § 1201.115, reopening the appeal on the




2007-3006                                   2
Board’s own motion under 5 C.F.R. § 1201.118, and affirming the denial of attorney

fees. Jacobsen, 2006 M.S.P.B. at 280.

       Citing Farrar v. Hobby, 506 U.S. 103, 114 (1992), the Board stated that an

appellant’s “degree of overall success” is a proper consideration in determining whether

an award of attorney fees is reasonable.          The Board held that attorney fees were

properly denied in this case based upon Jacobsen’s “limited” degree of overall success

on the merits of his claim. In this regard, the Board characterized Jacobsen’s success

as nominal based upon two factors described below.

       First, the Board stated that Jacobsen’s claim for relief was very broad and mostly

unsupported by specific evidence. The Board pointed out that Jacobsen did not specify

in his initial request the dates upon which he was allegedly charged military leave

improperly. In response to an order by the AJ to support his allegations with specific

evidence, Jacobsen submitted (1) a “Chronological Statement of Retirement Points,”

provided by the U.S. Army showing that Jacobsen engaged in fifteen days of reserve

duty each year from 1984 to 2003, (2) a time and attendance record from the agency

showing that he was charged with military leave on a Saturday and Sunday

(presumably non-work days) during the pay period from June 18, 2000 to July 1, 2000,

and (3) an affidavit in which he averred that he “may have been forced to use annual

leave or leave without pay” in order to fulfill his military obligations during the time period

of 1995 to 2001. The Board held that this evidence failed to show specifically the days

on which the agency improperly charged Jacobsen military leave. Because Jacobsen’s

claim for relief covered unspecified days of a seven-year period, and the agency was

eventually ordered to restore only two days of leave, the Board reasoned that




2007-3006                                     3
Jacobsen’s success in relation to the relief he originally sought was nominal. Thus,

relying on Farrar, the Board held that denial of attorney fees was reasonable.

        Second, the Board relied on the fact that Jacobsen failed to utilize the agency’s

administrative process for making retroactive military leave adjustments, but rather

chose to litigate an appeal before the Board. The Board pointed out that the AJ also

ordered the agency to search its records and produce any evidence showing whether

Jacobsen was charged military leave on non-work days. The agency responded that it

reviewed leave records for the years 1996 through 2000, and based upon its review,

conceded that Jacobsen was improperly charged sixteen hours of military leave for

days he was not scheduled to work for the agency.         Had he utilized the agency’s

internal procedure in the first place, the Board rationalized, Jacobsen would have

obtained the same result before the agency without filing an appeal before the Board.

        The Board concluded that “these two factors coupled with the fact that Jacobsen

was only awarded sixteen hours of restored military leave” justified a denial of attorney

fees.   This appeal followed.    This Court has jurisdiction pursuant to 28 U.S.C. §

1295(a)(9).

                                            II.

        We must affirm a MSPB decision unless it is “(1) arbitrary, capricious, an abuse

of discretion, or otherwise not in accordance with law; (2) obtained without procedures

required by law, rule, or regulation having been followed; or (3) unsupported by

substantial evidence.” 5 U.S.C. § 7703(c)(1)-(3); accord Phillips v. U.S. Postal Serv.,

695 F.2d 1389, 1390 (Fed. Cir. 1982). A decision is supported by substantial evidence

when “a reasonable mind might accept [it] as adequate to support a conclusion.”




2007-3006                                   4
Matsushita Elec. Indus. Co. v. United States, 750 F.2d 927, 933 (Fed. Cir. 1984)

(internal quotations omitted).

       USERRA allows for an award of attorney fees under 38 U.S.C. § 4324(c)(4),

which provides:

       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 [which authorizes the Board, upon
       finding a USERRA violation, to “enter an order” requiring the agency or
       Office of Personnel Management to comply with the provision violated and
       to compensate the employee for any loss of wages or benefits], the Board
       may, in its discretion, award such person reasonable attorney fees, expert
       witness fees, and other litigation expenses.

       Unlike other attorney fees-permitting provisions administered by the Board, such

as 5 U.S.C. § 7701(g)(1), section 4324(c)(4) does not require that the petitioner be a

“prevailing party” who may only be awarded attorney fees in the “interest of justice.”

See, e.g., Sacco v. United States, 452 F.3d 1305, 1309 (Fed. Cir. 2006).           Rather,

section 4324(c)(4) merely requires that the Board have issued an “order” requiring the

agency to correct its violation of USERRA. Congress left the decision whether to award

reasonable attorney fees, expert witness fees, and other litigation expenses to the

Board’s discretion. In such a case where Congress left the precise application of a

fees-permitting provision to the Board’s discretion, and in the absence of any

Constitutional challenge thereto, we accord broad deference to the Board’s decision to

deny fees. See James v. Santella, 328 F.3d 1374, 1379 (Fed. Cir. 2003).

       In his brief, Jacobsen initially contends that the Board does not actually have

“discretion” to refuse an award of attorney fees notwithstanding the statute. Specifically,

Jacobsen argues that the Board exhausted its “discretion” under the statute when it

promulgated the regulations 5 C.F.R. §§ 1201.203(a) and 1208.15(b), and that only



2007-3006                                   5
these regulations must be satisfied in order to establish entitlement to attorney fees.

Pursuant to its authority from Congress, the Board promulgated regulations governing

the award of attorney fees under USERRA. See 5 C.F.R. §§ 1208.15(b), 1201.203(a).

Section 1208.15(b) provides in relevant part that the Board has discretion to order

payment of reasonable attorney fees, expert witness fees, and other litigation expenses

under 38 U.S.C. 4324(c)(4), while the provisions of 5 C.F.R. § 1201.203(a) instruct as to

form and content of a request for attorney fees. Specifically, under section 1201.203(a),

a motion for attorney fees must be supported with at least the following evidence: (1)

accurate and current time records; (2) a copy of the terms of the fee agreement (if any);

(3) a statement of the attorney’s customary billing rate for similar work, with evidence

that that rate is consistent with the prevailing community rate for similar services in the

community in which the attorney ordinarily practices; and (4) an established attorney-

client relationship.

       Jacobsen asserts that as long as a petitioner provides the Board with the

evidence enumerated above, the Board is required to award attorney fees to the

petitioner.   Because he satisfied the requirement of an “order” under 38 U.S.C.

§ 4324(c)(4) and presented sufficient evidence under 5 C.F.R. § 1201.203(a), Jacobsen

contends that he is automatically entitled to attorney fees.

       We are not persuaded. The controlling statute clearly provides that the Board

may award reasonable attorney fees in its discretion.           38 U.S.C. § 4324(c)(4).

Jacobsen has provided absolutely no case law, legislative history, or persuasive theory

suggesting that “discretion” may be properly read out of the statute, or that the Board’s

“discretion” was somehow extinguished by its enactment of implementing regulations 5




2007-3006                                    6
C.F.R. §§ 1201.203(a) and 1208.15(b), and we know of none. For these reasons, we

find Jacobsen’s initial arguments here to be without merit.

      Neither party disputes that Jacobsen meets the statutory requirement under

section 4324(c)(4) for issuance of an “order” and therefore is eligible for an award.

Rather, the narrow issue presented by this appeal, to which we now turn, is whether the

factors the Board considered in discretionarily denying Jacobsen’s motion for attorney

fees under the USERRA fee-shifting provision are permissible and lawful.

                         A. Limited Degree of Success Factor

      First, Jacobsen asserts that the Board erred in concluding that he only enjoyed a

nominal degree of success. Jacobsen argues that he asked for and was restored all of

the military leave days to which he was entitled, namely two. Since he obtained all he

requested, Jacobsen asserts, his degree of success is actually entire.

      Resolution of this issue centers on an examination of the claim Jacobsen

presented to the Board. As noted above, Jacobsen failed to allege any specific non-

work days on which he was improperly charged military leave.             Rather, Jacobsen

merely alleged that he may have been forced to use other leave to fulfill his military

obligations over a seven-year period. Because the record is devoid of any specific

dates Jacobsen actually engaged in military duty (except for the lone June to July 2000

pay period record), we reasonably construe the claim as alleging that the agency

improperly charged him military leave for each year he was obligated to serve.

Assuming then that in each year from 1995 to 2001 Jacobsen performed two

consecutive weeks of military duty, at least two non-work days (representing the

intervening weekend) were improperly charged per year. The record shows, however,




2007-3006                                   7
that in all seven of the years Jacobsen served, the agency only once improperly

charged him with military leave in violation of USERRA, i.e., two days, not fourteen

days.

        Because Jacobsen’s claim is reasonably construed as claiming at least one error

per year for each of the seven years he served and the agency only improperly charged

him military leave in one on those years, the Board did not err in finding that Jacobsen’s

success in relation to the relief he sought was nominal, constituting one-seventh of the

implicit claim. Further, because Jacobsen does not contend that the Board’s reliance

on Farrar is in error, we hold for the purposes of this opinion that Jacobsen’s degree of

success is an appropriate consideration in the Board’s discretion. As such, we must

affirm the Board’s denial of attorney fees based upon Jacobsen’s limited success on

appeal.

               B. Failure to Utilize Agency’s Administrative Process Factor

        Next, Jacobsen argues that the Board erred by considering the fact that

Jacobsen chose to file a complaint with the Board rather than go though the agency’s

internal administrative process for making retroactive military leave adjustments. We

agree that the Board’s reliance on the fact that Jacobsen could have achieved the same

result though the administrative process as he did before the Board is in error because

USERRA contains no requirement that a petitioner pursue, much less exhaust, his or

her administrative remedies prior to bringing an appeal before the Board.         Indeed,

Congress provided Jacobsen with the right to file his appeal by enacting section

4324(b)(1) which provides that “[a] person may submit a complaint against a Federal

executive agency or the Office of Personnel Management . . . directly to the Merit




2007-3006                                   8
Systems Protection Board if that person has chosen not to apply to the Secretary for

assistance . . . .” 38 U.S.C. § 4324(b)(1); see also Butterbaugh, 336 F.3d at 1336;

Yates v. Merit Sys. Prot. Bd., 145 F.3d 1480, 1483 & n.4 (Fed. Cir. 1998).

Nevertheless, since we hold that the Board properly found that Jacobsen claimed much

more than he was awarded and therefore obtained limited success on his claim, the

Board’s reliance on the second factor is harmless error.

                                           III.

      For these reasons, the Board’s denial of attorney fees is

                                      AFFIRMED.




2007-3006                                   9
