Opinion for the court filed by Circuit Judge DYK.
Dissenting opinion filed by Circuit Judge BRYSON.
DYK, Circuit Judge.
Janice F. Willis ("Willis"), an attorney, appeals the decision of the Personnel Appeals Board (the "Board") of the United States Government Accountability Office ("GAO") declining under the fee-shifting provision of the Civil Service Reform Act, 5 U.S.C. § 7701(g)(1), to award the full amount of attorney's fees requested by Willis and her former client Sandra P. Davis ("Davis"). Davis has not appealed. Because Willis lacks standing to contest the Board's decision, we dismiss the appeal.
Willis initially represented Davis, who was employed by GAO, in a proceeding before the Board asserting a number of claims of unlawful conduct by GAO personnel. After discovery and an evidentiary hearing, Davis terminated Willis and retained Nora V. Kelly ("Kelly"). On July 26, 2002, the Administrative Judge issued an initial decision rejecting all but one of Davis' claims — the claim that Davis' performance appraisals had been lowered in a manner inconsistent with GAO's published orders in violation of 5 U.S.C. § 2302(b)(12). The Administrative Judge ruled in Davis' favor on the remaining claim, ordering GAO to increase Davis' performance appraisals and awarding Davis back pay in the amount she would have received had the appraisals been conducted properly. Both GAO and Davis appealed to the full Board; Kelly handled Davis' appeal. The full Board affirmed the initial decision in a final decision issued July 11, 2003.
After issuance of the Board's final decision, Davis filed a request for attorney's fees pursuant to 5 U.S.C. § 7701(g)(1). Davis requested $128,867.17 for (1) 335.25 hours representing the pre-hearing portion of Willis' work, and (2) Kelly's work during the appellate stage of the litigation. Davis declined to request $63,325.00 that Willis billed Davis for Willis' work during the evidentiary hearing because, as Davis explained in her fee request, she viewed the amounts billed as excessive. The Administrative Judge granted Willis' motion to intervene in the proceedings, on the condition that Willis could not request any fees
The Administrative Judge held that Davis' success qualified her as a "prevailing party" entitled to attorney's fees under the statute. With respect to the claims advanced by both Davis and Willis, the Administrative Judge rejected the contention that Willis' fees should be calculated at an hourly rate of $335.00, which was substantially higher than the $150.00 hourly rate Willis actually charged Davis, and discounted a number of the hours claimed for Willis' work as duplicative, insufficiently documented, or unnecessary. The Administrative Judge reduced the total number of hours Davis claimed for Willis' work by 20 percent because of the inconsistent quality of Willis' pretrial filings and the fact that the majority of Davis' claims were ultimately rejected. The Administrative Judge also rejected Willis' separate request for additional amounts not requested by Davis on the grounds that her additional request violated the express condition in the Administrative Judge's order allowing Willis to intervene, and that "Ms. Willis, who could not be characterized as a `prevailing petitioner' [under the statute and regulations], had no right to file an independent request for attorney's fees." Davis v. U.S. General Accounting Office, Nos. 00-05, 00-08, slip op. at 24 (G.A.O.P.A.B. June 15, 2004). Ultimately, the Administrative Judge awarded Davis $46,345.60 in fees.
Both Davis and Willis appealed to the Board. Davis argued that that the Administrative Judge erred in reducing the amount that she claimed. Willis argued that the Administrative Judge erred in rejecting her separate claim for additional compensation attributable to her work during the evidentiary hearing. In a final decision issued March 2, 2005, the Board affirmed, rejecting Davis' and Willis' contentions and adopting the Administrative Judge's findings of fact and conclusions of law. With respect to Willis' request for additional fees not claimed by Davis, the Board concluded that "Ms. Willis has no independent right to file a Request for Attorney Fees because 4 C.F.R. § 28.89 provides that `the petitioner, if he or she is the prevailing party, may submit a request for the award of reasonable attorney's fees and costs.'" Davis v. U.S. General Accounting Office, Nos. 00-05, 00-08, slip op. at 12 (G.A.O.P.A.B. Mar. 2, 2005).
Willis alone appealed to this court. We have jurisdiction pursuant to 31 U.S.C. § 755(a).
The necessary threshold question in this case is whether Willis has standing to appeal the Board's decision to this court. Willis' primary theory of standing is that she has a right to receive fee payments under the statute separate and apart from her client's right to fees. This theory of standing is essential to Willis' claim for fees for the trial work — fees that were not included in Davis' fee request. Alternatively, Willis may be arguing that she has the right to assert on appeal her client's right to the recovery of fees that were claimed before the Board but not allowed. In either event, we conclude that Willis lacks standing.
We first address Willis' contention that she has standing because she has an independent right to claim fees under the statute. Because Article III standing implicates the court's constitutional authority to adjudicate disputes, it can be
Article III standing is required at all stages of federal litigation, including appeals. Korczak v. Sedeman, 427 F.3d 419, 420 (7th Cir.2005); see, e.g., Diamond v. Charles, 476 U.S. 54, 68, 106 S.Ct. 1697, 90 L.Ed.2d 48 (1986); Boeing, 853 F.2d at 880. "[A]n intervenor's right to continue a suit in the absence of the party on whose side intervention was permitted is contingent upon a showing by the intervenor that he fulfills the requirements of Art. III." Diamond, 476 U.S. at 68, 106 S.Ct. 1697 (citations omitted).
To establish Article III standing, Willis must allege that she has suffered an "`injury in fact' — an invasion of a legally protected interest. . . ." Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (plurality opinion). Because "[t]he actual or threatened injury required by Art. III may exist solely by virtue of statutes creating legal rights, the invasion of which creates standing," standing "often turns on the nature and source of the claim asserted." Warth v. Seldin, 422 U.S. 490, 500, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975) (internal quotation marks omitted). Under the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 701, et seq. (2000), a plaintiff seeking to set aside unlawful agency or executive action may have Article III standing even though he has no direct claim under a substantive statute. See Richard H. Fallon, Jr., et al., Hart and Wechsler's The Federal Courts and the Federal System 154-60, 158 n. 3 (5th ed.2003).
However, a different rule applies where the plaintiff is independently seeking monetary relief and the APA does not apply. In such circumstances, we have held that the plaintiff must be within the class of persons legally protected by the statute under which the individual seeks relief. For example, in Ortho Pharmaceuticals Corp. v. Genetics Institute, Inc., 52 F.3d 1026, 1030-31 (Fed.Cir.1995), we held that nonexclusive patent licensees lack Article III standing to sue for infringement because "economic injury alone does not provide standing to sue under the patent statute. . . . a licensee must hold some of the proprietary sticks from the bundle of patent rights," otherwise the licensee "suffers no legal injury from infringement and, thus, has no standing. . . ." See also Intellectual Prop. Dev., Inc. v. TCI Cablevision of Cal., Inc., 248 F.3d 1333, 1345 (Fed.Cir. 2001) ("[A] nonexclusive license . . . confers no constitutional standing on the licensee under the Patent Act to bring suit or even to join a suit with the patentee because a nonexclusive (or `bare') licensee suffers no legal injury from infringement.").
Thus, Willis lacks independent standing unless she has a right to claim fees under the statute.
There is no separate attorney's fees statute applicable to proceedings before the GAO Board. However, Congress, in 31 U.S.C. § 753(e)(1), made section 7701(g), which governs the recovery of attorney's fees in actions before the Merit Systems Protection Board, applicable to actions before the GAO Board. Section 753(e)(1) provides that "[t]he [GAO Personnel Appeals] Board shall prescribe regulations . . . providing for officer and employee
Section 7701(g), provides:
5 U.S.C. § 7701(g)(1) (2000).
Thus, the question is whether section 7701(g) grants attorneys a legally protected interest independently to assert a claim for a fee award. We conclude that it does not.
In Evans v. Jeff D., 475 U.S. 717, 106 S.Ct. 1531, 89 L.Ed.2d 747 (1986), the Supreme Court addressed a similar question under another fee-shifting statute, 42 U.S.C. § 1988(b).
In addressing the permissibility of the fee waiver, the Supreme Court considered whether the right to claim fees belonged to the prevailing party or the attorney. The Court held that "the language of [section 1988(b)], as well as its legislative history, indicated that Congress bestowed on the `prevailing party' (generally plaintiffs) a statutory eligibility for a discretionary award of attorney's fees. . . ." Evans, 475 U.S. at 730, 106 S.Ct. 1531 (internal footnote omitted). The Court made clear that section 1988(b) "neither bestowed fee awards upon attorneys nor rendered them nonwaivable or nonnegotiable." Id. at 731-32, 106 S.Ct. 1531; see also Venegas v. Mitchell, 495 U.S. 82, 87-89, 110 S.Ct. 1679, 109 L.Ed.2d 74 (1990) ("[W]e have recognized that it is the party's entitlement to receive the fees [under § 1988]. . . . [W]e have . . . rejected the argument that the entitlement to a § 1988 award belongs to the attorney. . . ." (emphasis added)). The Court also concluded that district courts have discretion to approve or invalidate a waiver of attorney's fees pursuant to Federal Rule of Civil Procedure 23(e), and that the district court did not abuse its discretion in approving the waiver. Id. at 729-30, 741-43, 110 S.Ct. 1679.
We perceive only three possible differences between Evans and this case. First, Evans arose under a different statute, 42 U.S.C. § 1988(b), rather than 5 U.S.C. § 7701(g)(1), which is involved here. For
The second possible difference between this case and Evans is that Evans did not directly involve a claim by the attorney to assert the fee award, but rather presented a claim by the prevailing party that waivers of fee claims in settlements were not permissible under section 1988(b). But we are bound not only by the Court's ultimate holding, but also by its underlying reasoning. In holding that the fee could be waived, the Court clearly concluded that the fee award claim belonged to the client rather than the attorney. In McAlear, we specifically addressed the question of whether an attorney could continue to claim fees pursuant to section 7701(g)(1) after the client waived the right to seek fees in a settlement agreement. 806 F.2d at 1016-17. Because the client in the settlement agreement had "plainly and explicitly withdrawn any request to the [Merit Systems Protection Board (`MSPB')] for attorney fees[,]" we concluded that the attorney could not "on his own and contrary to the expressed wishes of the prevailing party," assert a claim. Id. at 1017.
The third possible distinction between this case and Evans is that in Evans, the client explicitly surrendered the right to a fee award by settlement whereas here there was no settlement, only the failure by the client to pursue a larger award in the first instance and the failure by the client to appeal from the award of a lesser amount than the client originally claimed. Again, we do not see how this distinction suggests a different outcome. If the client can compromise the fee award, the client can equally decline to claim it in the first instance or to pursue it on appeal. The client's lack of interest does not transfer the client's right to the attorney.
We conclude that Evans establishes that only the prevailing party and not the attorney has the right to assert a claim for attorney's fees under the statute.
Nothing in our decision in Jensen v. Department of Transportation, 858 F.2d 721 (Fed.Cir.1988), requires a different result. Jensen, an adverse action claimant, paid a portion of her lawyer's fees. The Merit Systems Protection Board then awarded fees under section 7701(g)(1), withholding from the award the amount that the claimant had already paid the attorney "because [the attorney] refused to reimburse [the claimant] that amount." Id. at 723. We held that the attorney is entitled to collect the fees awarded under section 7701(g)(1), and we remanded and instructed the Board to release the entire fee award to the attorney. Id. at 724. Evans was not discussed in Jensen, and we have no occasion here to consider whether Evans would have required a different outcome in Jensen.
In any event, Jensen does not suggest that the attorney has a right to claim the fees in the first instance. Under fee-shifting statutes in general, there is a distinction between the party's entitlement to claim an award of fees and the attorney's right to receipt of fees that are awarded.
Virani, 89 F.3d at 577; see also Pony, 433 F.3d at 1142.
This leads to the second possible basis of standing — Willis' assertion that she may pursue Davis' claim to the fee award. Generally, a party "must assert
But there are exceptions, and the Supreme Court's decision in Caplin & Drysdale, Chartered v. United States, 491 U.S. 617, 109 S.Ct. 2646, 105 L.Ed.2d 528 (1989), is illustrative. There, a law firm challenged the application of a federal criminal forfeiture statute to assets of a criminal defendant that were needed to pay the defendant's attorney's fees, arguing that refusing to allow the payment of fees from the forfeited amounts violated the defendant's Sixth Amendment right to counsel. The defendant had entered into a plea agreement in which he agreed to forfeit to the government all assets specified in the indictment. Id. at 619-21, 109 S.Ct. 2646. The defendant's law firm sought fees from the forfeited amounts. The district court held that the assets necessary to pay the attorney's fees were not subject to forfeiture, but the Fourth Circuit reversed, holding that the statute was constitutional and contained no exception for attorney's fees. Id. at 621-22, 109 S.Ct. 2646. The Supreme Court, while rejecting the claim on the merits, held that the law firm satisfied the requirements of Article III standing, concluding that "there can be little doubt that petitioner's stake in . . . the forfeited assets — which it would almost certainly receive if the Sixth Amendment claim it advances here were vindicated — is adequate injury in fact to meet the constitutional minimum of Article III standing." Id. at 623 n. 3, 109 S.Ct. 2646. We agree that, under Caplin & Drysdale, Willis, who under Jensen has a claim to collect any fees that are awarded, may well satisfy the injury in fact requirement for Article III standing insofar as Willis seeks recovery of fees claimed by Davis.
However, we need not address that issue because we conclude that in any event Willis does not satisfy the requirements for prudential standing. In general, prudential standing requirements consist of "judicially self-imposed limits on the exercise of federal jurisdiction." Allen v. Wright, 468 U.S. 737, 751, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984). These prudential limitations on standing include "the general prohibition on a litigant's raising another person's legal rights. . . ." Id. In Caplin & Drysdale, the Court set forth three factors pertinent to the question whether a litigant should be allowed to assert the rights of a third party: "the relationship of the litigant to the person whose rights are being asserted; the ability of the person to advance his own rights; and the impact of the litigation on third-party interests." 491 U.S. at 623-24 n. 3, 109 S.Ct. 2646. The Supreme Court concluded that these factors supported standing in Caplin & Drysdale, even though there were no obstacles to the criminal defendant's advancing his own claim, because "[t]he attorney-client relationship . . . is one of special consequence," and because "the statute at issue here may materially impair the ability of third persons in [the defendant's] position to exercise their constitutional rights." Id. at 624 n. 3, 109 S.Ct. 2646 (internal quotation marks omitted).
In contrast to the situation in Caplin & Drysdale, Willis does not satisfy the requirements for prudential standing. To be sure, Willis has an attorney-client relationship with Davis, which the Supreme Court recognized as being "of special consequence." Id. However, Davis is clearly free to assert the fee claim, and there is no
Accordingly, we hold that section 7701(g)(1) grants the "prevailing party," not the attorney, a legally protected interest in claiming attorney's fees, and Willis thus lacks Article III standing to assert an independent claim for attorneys fees. While the attorney, in attempting to assert the client's interest, may have an interest in collecting the fee award sufficient to satisfy the injury in fact requirement of Article III, the attorney fails to satisfy the requirements of prudential standing. Willis' appeal must be dismissed because Willis lacks standing either independently or as a representative of Davis.
BRYSON, Circuit Judge, dissenting.
I agree that Ms. Willis is not entitled to an increase in the attorney fee award in this case. I reach that conclusion by a different path than the majority, however. In my view, this appeal should not be dismissed for lack of standing. Ms. Willis has a financial interest in the outcome of the dispute, and that financial interest is sufficient to satisfy the case or controversy requirement of Article III. The Supreme Court said as much in Caplin & Drysdale, Chartered v. United States, 491 U.S. 617, 109 S.Ct. 2646, 105 L.Ed.2d 528 (1989). In that case, a law firm sought an exemption for its fees from an order forfeiting its client's assets. The Supreme Court noted that the law firm had plainly satisfied the case-or-controversy requirement of Article III because it had suffered an injury-in-fact. As the Court explained, "there can be little doubt that [the law firm's] stake in . . . the forfeited assets . . . is adequate injury-in-fact to meet the constitutional minimum of Article III standing." Id. at
Ms. Willis's legal argument is that the regulations of the Personnel Appeals Board ("PAB"), 4 C.F.R. § 28.89, and the statute referenced in those regulations, 5 U.S.C. § 7701(g)(1), give her an independent right to pursue a fee award. This is not a case in which Ms. Willis is attempting to enforce the rights of a third party. Her position throughout the fee award litigation has been that she is independently entitled to request and receive attorney fees for her work in connection with this case. Thus, her claim is not barred either by Article III standing limitations or by prudential standing concerns. Her case turns instead on whether she has a cause of action to enforce the statutory right to fees, and if so whether she has established the right to an increased award. See Davis v. Passman, 442 U.S. 228, 239-40 & n. 18, 99 S.Ct. 2264, 60 L.Ed.2d 846 (1979) ("standing is a question of whether a plaintiff is sufficiently adversary to a defendant to create an Art. III case or controversy, or at least to overcome prudential limitations on federal-court jurisdiction . . .; cause of action is a question of whether a particular plaintiff is a member of the class of litigants that may, as a matter of law, appropriately invoke the power of the court"); Steel Co., 523 U.S. at 97, 118 S.Ct. 1003 (determining whether plaintiff was a party entitled to sue under a federal environmental statute "is an issue of statutory standing. It has nothing to do with whether there is case or controversy under Article III").
On the merits, it is questionable whether Ms. Willis has a cause of action in a case like this one—i.e., whether an employee's former attorney in a PAB proceeding is