## Facts

- Cassandra A. Augustine, a disabled Navy veteran and “preference eligible,” applied for a Department of Veterans Affairs position in 1999 and was not hired.
- She filed a Veterans Employment Opportunities Act (VEOA) claim before the Merit Systems Protection Board (MSPB), alleging violations of veterans’ preference rights.
- An MSPB administrative judge found the agency violated (and willfully violated) her veterans’ preference rights and ordered relief including appointment, back pay, and liquidated damages.
- As the prevailing party, Augustine sought attorney’s fees and expenses under 5 U.S.C. § 3330c(b).
- Her representative was admitted to practice law in Massachusetts and New York but was not licensed in California, where the services were performed.
- The MSPB denied fees, reasoning that because counsel was not licensed in the state where the services were rendered, he could not be treated as an “attorney” for purposes of § 3330c(b).

## Issues

1. Whether state licensing rules may control who is recognized as an “attorney” for representation and fee-shifting purposes in proceedings before the MSPB.
2. Whether 5 U.S.C. § 3330c(b) incorporates state-by-state licensing requirements, limiting fee awards to attorneys licensed in the state where the work was performed.

## Decision

- The Federal Circuit vacated the MSPB’s denial of attorney’s fees and remanded.
- The court held that state law may not regulate or control who may practice before a federal agency such as the MSPB.
- The court held that § 3330c(b) does not incorporate state licensing requirements tied to the location where services are performed; an attorney licensed in any U.S. jurisdiction qualifies as an “attorney” for fee purposes.
- On remand, the MSPB was required to reconsider the fee request without treating lack of California licensure as a categorical bar.

## Legal Principles

- Under Supremacy Clause principles, states may not interfere with or condition federal agency operations by imposing state licensing requirements on who may appear before the agency.
- For fee-shifting under 5 U.S.C. § 3330c(b), “attorney” is a federal term that includes a person admitted to practice law in at least one U.S. jurisdiction; it is not limited by the state in which the legal services were performed.
- When Congress intends to incorporate state law into a federal remedial scheme, it does so expressly; absent such direction, state licensing limitations are not implied.
- Fee-shifting provisions serving remedial federal employment rights are construed to avoid restricting access to qualified counsel authorized to practice before the relevant federal tribunal.

## Conclusion

The Federal Circuit set aside the MSPB’s fee denial, holding that state bar licensure rules cannot determine attorney status for VEOA fee awards in MSPB proceedings and that counsel licensed in any U.S. jurisdiction may support an award under § 3330c(b).


Augustine v. Dep’t of Veterans Affs., 429 F.3d 1334 (Fed. Cir. 2005)