On Appellees' Motion to Remand to the Superior Court for a Determination of Appellees' Eligibility for Attorney's Fees and Expenses, and Appellees' Bill of Costs. (MPA5-04) (Hon. Michael L. Rankin, Trial Judge).
Stephen C. Leckar and Robert A.W. Boraks were on the Appellees' Motion to Remand to the Superior Court for a Determination of Appellees' Eligibility for Attorney's Fees and Expenses, and Appellees' Bill of Costs.
Before RUIZ, GLICKMAN, AND FISHER, Associate Judges.
The underlying facts of this case are fully stated in our opinion on the merits,*fn1 and need not be repeated to answer the question now presented: where should a petition to recover statutorily authorized attorney's fees for work done on an appeal to this court normally be filed? Shortly after we remanded this case to the Superior Court with instructions to return the matter to the District of Columbia Office of Employee Appeals for entry of an order reinstating appellees to their former positions with the Metropolitan Police Department, the appellees filed a "Motion to Remand to Superior Court Determination of Appellees' Eligibility for Attorney's Fees and Expenses," as well as a Bill of Costs. Appellees contended that because they were hired by the District of Columbia government before 1980, the Federal Back Pay Act*fn2 presumptively entitled them to an award of attorney's fees and expenses incurred in vindicating their rights on appeal.*fn3
We agree and, by separate order, have granted their motion to remand.*fn4 Although we might have done so without an opinion, we think it desirable to review our precedents in order to identify the preferred method for presenting appellate fee petitions.
Often, this court has denied a request for appellate attorney's fees without comment.*fn5 In other cases, this court (or its predecessor) has either remanded the attorney's fee petition for the trial court to consider,*fn6 or has weighed the merits of the petition itself when the panel determined it was "best situated to appraise the worth of counsel's services in providing assistance in the salient decision making."*fn7 Recently, in In re Estate of Green, we held that the Superior Court had erred in concluding it lacked jurisdiction over a special master's fee petition for work done on appeal because, "[r]eviewing requests for attorney's fees is . . . a quintessential function of the trial court[.]"*fn8
This echoes one of our predecessors that chose to "place the responsibility on the trial court where the work begins and ends and the value of the entire service can be best estimated after it has been completed."*fn9 This rationale has also been approved by the United States Supreme Court*fn10 and a majority of the federal circuit courts of appeal,*fn11 including that of this circuit,*fn12 which have concluded that fee petitions for work on appeal should generally be decided by the trial court.
The appellees' motion asked for this treatment, but we also agree with the majority preference for this process. Because fee petitions raise factual questions, such as what work counsel performed, whether that work was necessary and appropriate, and how it ought to be compensated, they should presumptively be addressed first at the trial court level. Thus, we now hold that in cases where a party seeks to recover statutorily authorized attorney's fees for work completed on an appeal to this court, the request normally should be submitted to the trial court in which the proceeding arose.*fn13
We do not intend, by identifying this process as the preferred one, to disavow this court's discretion or authority to consider a request for attorney's fees itself in appropriate cases. However, if a party wishes us to exercise that discretion, the petition for fees should be accompanied by a motion identifying the specific reasons this court is better positioned than the trial court to assess the request. Otherwise, we will remand the matter.
Finally, this practice also does not apply to cases where this court has the exclusive authority to award fees, as when they are awarded to sanction a frivolous filing.*fn14 Our rules specifically state that when a party has filed a frivolous appeal, petition, or motion, "the court" may impose sanctions, including attorney's fees.*fn15 "The term 'court' means the District of Columbia Court of Appeals."*fn16 A party requesting that attorney's fees be levied as a sanction should, however, specifically note that as the basis of the motion for fees.