United States Court of Appeals for the Federal Circuit 

2006-3307 

CASSANDRA A. AUGUSTINE, 

Petitioner, 

v. 

DEPARTMENT OF VETERANS AFFAIRS, 

Respondent. 

Wild Chang, Wild Chang & Chang, of Rowland Heights, California, argued for 

petitioner. 

John Todor, Trial Attorney, Commercial Litigation Branch, Civil Division, United 

States Department of Justice, of Washington, DC, for respondent. On the brief were 

Peter D. Keisler, Acting Attorney General, Jeanne E. Davidson, Director, Deborah A. 

Bynum, Assistant Director, and Michael S. Dufault, Trial Attorney. 

 

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

 

2006-3307 

CASSANDRA A. AUGUSTINE, 

 Petitioner, 

v. 

DEPARTMENT OF VETERANS AFFAIRS, 

 Respondent. 

 ___________________________ 

 DECIDED: October 5, 2007 

 ___________________________ 

Before RADER, Circuit Judge, CLEVENGER, Senior Circuit Judge, and DYK, Circuit 

Judge. 

CLEVENGER, Senior Circuit Judge. 

 Petitioner Cassandra A. Augustine appeals the final decision of the Merit 

Systems Protection Board (“MSPB” or “Board”) denying her petition for attorney fees 

and expenses under 5 U.S.C. § 3330c(b). We reverse, vacate, and remand. 

I 

 Cassandra A. Augustine is a disabled Navy veteran, and as such, she is a 

“preference eligible” for federal civil service employment purposes. See 5 U.S.C. 

§ 2108. A preference-eligible veteran is entitled to certain advantages in the 

government’s hiring process. See, e.g., 5 U.S.C. § 3318(b) (requiring approval from the 

Office of Personnel Management to hire a non-preference eligible over a preference 
eligible in certain situations). If the preference eligible believes that she has been 

unlawfully deprived of those advantages, she may lodge a complaint with the Secretary 

of Labor and then, if the complaint does not lead to a satisfactory resolution, she may 

appeal to the Board. See 5 U.S.C. § 3330a. 

 In 1999, Ms. Augustine applied for employment with the Department of Veterans 

Affairs (“VA”), but was not hired. Believing that her rights as a preference eligible had 

been violated, Ms. Augustine, proceeding pro se, filed a complaint with the Secretary of 

Labor and subsequently appealed to the Board. In the proceedings before the Board, 

the VA denied that Ms. Augustine’s rights had been violated. The Administrative Judge 

(“AJ”) disagreed, however, and found not only that her rights had been violated, but also 

that her rights had been violated willfully. Thus, pursuant to 5 U.S.C. § 3330c(a), the AJ 

ordered the VA to appoint Ms. Augustine to the position for which she had applied, to 

pay compensation for lost wages and benefits, and to pay liquidated damages in an 

amount equal to the back pay she was owed. Augustine v. Dep’t of Veterans Affairs, 

No. SF3443000085-I-1, slip op. at 8-9 (M.S.P.B. Mar. 14, 2000). 

 On April 14, 2000, the VA petitioned for Board review of the AJ’s decision. The 

petition amounted to a nine-page brief, and also included nearly 70 pages of 

attachments. See J.A. at 104-79. Continuing to proceed pro se, Ms. Augustine 

responded to the VA’s petition on May 6, 2000, with a “Cross Petition for Review to the 

Merit Systems Protection Board.” See J.A. at 180-90. The VA replied on June 1, 2000, 

with another substantial brief. Sometime thereafter, Ms. Augustine apparently decided 

to seek legal counsel. On March 17, 2001, she retained the services of attorney Wild 

Chang. Although Mr. Chang did not officially file an entry of appearance with the MSPB 

2006-3307 2 
until August of 2001, J.A. at 202, his billing records reflect that his representation of 

Ms. Augustine began immediately after he was retained, see J.A. at 278. 

 On May 14, 2001, the Board—noting the “strong arguments that the remedy 

ordered [by the AJ] exceeds the Board’s authority”—vacated the AJ’s decision, 

reopened the record, and ordered extensive briefing by the parties and by any 

interested amici curiae. See Augustine v. Dep’t of Veterans Affairs, 88 M.S.P.R. 407, 

¶¶ 23-28 (May 14, 2001). Over the course of the ensuing months, Mr. Chang’s detailed 

billing records reflect that he spent a substantial amount of time conferencing with 

Ms. Augustine, performing research, reviewing records, preparing documents for filing 

with the Board, preparing for and participating in an August 2001 mediation session, 

etc. See J.A. at 278-83. Although the mediation session did not lead to an agreement 

between the parties, the VA withdrew its petition for review the following month. And on 

November 11, 2001, the VA moved to dismiss the case. J.A. at 208-15. Ms. Augustine 

objected to the motion on the basis, inter alia, that mere dismissal would not necessarily 

lead to a reinstatement of the AJ’s vacated decision. Over twenty-two months later, the 

Board explicitly recognized her objection in a September 22, 2003 order by 

simultaneously dismissing the VA’s petition for review and reinstating the AJ’s decision. 

J.A. at 63-64. 

 As the prevailing party, Ms. Augustine moved for attorney fees and expenses. 

5 U.S.C. § 3330c(b). The AJ denied the motion, however, because Mr. Chang was not 

a member of the California bar, which was the state in which the proceedings before the 

AJ had occurred. The AJ’s order became the final decision of the Board. On appeal to 

this court, we vacated and remanded with instructions for the Board to consider the 

2006-3307 3 
motion without regard to the state of Mr. Chang’s bar membership. Augustine v. Dep’t 

of Veterans Affairs, 429 F.3d 1334 (Fed. Cir. 2005). On remand, the AJ once again 

denied Ms. Augustine’s motion for attorney fees and expenses because, in the AJ’s 

opinion, “[n]one of [Mr. Chang’s] services appear to have contributed to 

[Ms. Augustine’s] success on appeal.” Augustine v. Dep’t of Veterans Affairs, 

No. SF3443000085-M-1, slip op. at 6 (May 11, 2006). The AJ further explained that 

“there are many reasons why the agency may have decided to withdraw its petition for 

review, and grant the relief provided in the initial decision. For example, it may simply 

have decided to stop spending scarce resources on lengthy, multi-party litigation that 

had come to focus on policy issues in which it had no direct interest[.]” Id., slip op. at 7-

8. The AJ also concluded that the reasonableness of Mr. Chang’s fees was adversely 

impacted by the fact that he did not enter his appearance until five months after he 

began rendering services to Ms. Augustine. Ms. Augustine did not petition for Board 

review and the AJ’s decision became final. 

Ms. Augustine now appeals to this court. We have jurisdiction pursuant to 

28 U.S.C. § 1295(a)(9). 

II 

 “We may only set aside the Board’s decision if 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.” Kievenaar v. Office of Pers. Mgmt., 421 F.3d 1359, 1362 

(Fed. Cir. 2005). “Issues of statutory and regulatory construction are reviewed de

novo.” Id.

2006-3307 4 
III 

“A preference eligible who prevails in an action under section 3330a or 3330b 

shall be awarded reasonable attorney fees, expert witness fees, and other litigation 

expenses.” 5 U.S.C. § 3330c(b). In the proceedings below, the AJ interpreted this 

statute to mean that attorney fees and expenses are unreasonable if (1) success before 

the Board was not in some way attributable to the efforts of the successful party’s 

attorney, or (2) services were rendered prior to the attorney’s entry of appearance 

before the Board. We reject both of these propositions out of hand as being completely 

unsupported by the plain language of the statute, which only requires that the fees and 

expenses be reasonable. Accordingly, we reverse the Board insofar as its decision was 

based on the AJ’s erroneous reading of the statute. 

As to quantum, “[t]he most useful starting point for determining the amount of a 

reasonable fee is the number of hours reasonably expended on the litigation multiplied 

by a reasonable hourly rate.” Hensley v. Eckerhart, 461 U.S. 424, 433 (1983);1 see 

also 5 C.F.R. § 1201.203(a) (requiring that a request for attorney fees under 5 U.S.C. 

§ 3330c(b) be supported by “[a]ccurate and current time records,” and “[a] statement of 

the attorney’s customary billing rate for similar work”). It goes without saying, of course, 

that “the number of hours reasonably expended,” and therefore the number of hours 

compensable under 5 U.S.C. § 3330c(b), may only include time spent in furtherance of 

 1

 Although Hensley involved an award of attorney fees to a “prevailing 

party” under 42 U.S.C. § 1988(b), the Court explicitly stated that “[t]he standards set 

forth in this opinion are generally applicable in all cases in which Congress has 

authorized an award of fees to a ‘prevailing party.’” Hensley, 461 U.S. at 433 n.7. The 

case at bar involves an award of attorney fees to “[a] preference eligible who prevails,” 

which for present purposes is the same as a “prevailing party.” Thus, the “standards set 

forth in [Hensley]” are applicable here as well. 

2006-3307 5 
the claim. Thus, we agree with the government that Mr. Chang’s representation of 

Ms. Augustine on any matters other than her preference-eligible claim is not 

compensable under this statute. Moreover, “[c]ounsel for the prevailing party should 

make a good-faith effort to exclude from a fee request hours that are excessive, 

redundant, or otherwise unnecessary, just as a lawyer in private practice ethically is 

obligated to exclude such hours from his fee submission.” Hensley, 461 U.S. at 434. 

This court is ill-suited to the task of determining from Mr. Chang’s billing records 

the amount of time spent in furtherance of the claim or the amount of that time, if any, 

that might have been “excessive, redundant, or otherwise unnecessary.” Nevertheless, 

we deem it appropriate to provide some general observations about the reasonableness 

of the request in this case. As a threshold matter, Ms. Augustine’s decision to seek 

assistance of counsel was entirely reasonable regardless of the complexity of the VA’s 

petition for review and the Board’s assessment that the VA had presented “strong 

arguments that the remedy ordered [by the AJ] exceeds the Board’s authority.” We 

further note that neither Ms. Augustine nor Mr. Chang could have had any idea that the 

VA might eventually “decide[] to stop spending scarce resources on lengthy, multi-party 

litigation that had come to focus on policy issues in which it had no direct interest.” 

Thus, irrespective of whether Mr. Chang’s efforts—viewed in hindsight—had any actual 

impact on Ms. Augustine’s ultimate success on appeal, it is self-evident that at least a 

portion (and possibly a substantial portion) of his work was done in furtherance of her 

claim and was not “excessive, redundant, or otherwise unnecessary.” Further, we note 

that until the Board actually reinstated the AJ’s March 14, 2000 decision, 

Ms. Augustine’s case was at risk and her need for counsel was both real and 

2006-3307 6 
2006-3307 7 

reasonable. As 5 U.S.C. § 3330c(b), unlike many other fee-shifting statutes, makes an 

award of reasonable fees to a prevailing party mandatory rather than discretionary, the 

only question on remand is the amount of those fees. The AJ’s bases for denying fees, 

like the government's arguments on appeal in support of the AJ's categorical denial, 

were not properly grounded in an inquiry of reasonableness. Instead, the AJ made a 

determination as to whether Ms. Augustine was entitled to any fees at all. The 

mandatory nature of section 3330c(b) renders that inquiry inappropriate. With these 

observations, we vacate the order denying fees and expenses, and remand for the AJ 

to render a quantum decision consistent with this opinion. 

We also deny Ms. Augustine’s request for a new AJ assignment on remand. We 

are fully confident that the AJ will faithfully apply the law as set forth in this opinion and 

that his judgment will not be impacted by the fact that Ms. Augustine requested 

reassignment. 

IV 

 For the reasons stated, we reverse, vacate, and remand. 

COSTS 

Respondent bears Petitioner's costs. 

REVERSE, VACATE, AND REMAND