65. How Do You Recover Attorney's Fees in Unemployment Cases?

If DUA itself violates federal law or the U.S. Constitution, a claimant who successfully challenges that failure may be entitled to recover attorney's fees against DUA under the federal Civil Rights Attorney’s Fees Awards Act. 42 U.S.C. § 1988. For example, if DUA unreasonably delays making an eligibility decision or has a practice that unreasonably delays decisions in a class of cases, DUA may be violating the “when due” requirement of the federal unemployment law, 42 U.S.C. § 503(a)(1). If the agency denies procedural due process because of a defect in its hearing procedures, it may violate the federal requirement that an aggrieved unemployment claimant receive a “fair hearing before an impartial tribunal.” 42 U.S.C. § 503(a)(3).

DUA in a petition for a judicial review under G.L. c. 151A, § 42 will claim that the District Court has no jurisdiction to award attorney’s fees, and has prevailed on that point. Although District Court decisions exist to the contrary, any constitutional or federal law claim with an attorney fee claim under § 1988 may simply be filed in Superior Court, which does have jurisdiction over federal claims and their attendant fee awards. The District Court petition for judicial review can then be consolidated with the Superior Court Action. The SJC has held, in another context, that a proceeding for judicial review is an appropriate place to raise a federal attorney’s fees claim. Stratos v. Dep't of Pub. Welfare, 387 Mass. 312, 439 N.E.2d 778 (1982). If the claimant prevails on nonfederal grounds, the Court need not decide the federal claim in order for the claimant to lay a basis for an attorney’s fees award. It is enough that the undecided federal claim is not frivolous and that it shares “a common nucleus of operative fact” with the other claims on which the claimant prevailed. Draper v. Town of Greenfield, 384 Mass. 444, 425 N.E.2d 333 (1981). Under the principles of 42 U.S.C. § 1988, reasonable attorney’s fees should reflect the objective market value for comparable legal services in the private sector. Stratos v. Dep't of Pub. Welfare, 387 Mass. 312, 439 N.E.2d 778 (1982).

A private attorney who has represented a UI claimant must petition DUA (either the Director or the Board of Review, as appropriate) for approval of attorney’s fees before collecting attorney's fees from the claimant. G.L. c. 151A, § 37. An approved practice is to place the fee in an IOLTA account and then obtain approval after services has been rendered.  An instruction sheet for petitioning DUA for attorney’s fees are available at https://www.masslegalservices.org/content/dua-attorney-fee-instructions.

Requests for approval of fees should be submitted via email: Section37free@mass.gov. If you need to mail the request, send to: Fee Request--Boston Hearings Department, First Floor, 19 Staniford Street, Boston, MA 02114.

Note: As a practice point, an advocate determines what fee to claim based on what the advocate charged the client for representation and what the claimant agreed to under their fee agreement. If there was no clear fee agreement, it is likely that it will be difficult to get the Board’s approval for attorney’s fees.