Attorney Fees Awarded Where Penalty Mitigated

In Miller v. Department of the Army, 2007 MSPB 211 (9/7/07), the Merit Systems Protection Board awarded attorney fees in split decision where a female GS-7 Inspector General Investigative Specialist had been removed for conduct unbecoming a federal employee. The administrative judge (AJ) mitigated the penalty to a 60-day suspension after upholding only one of the two charges. The appellant then file a petition for enforcement, alleging that the agency was not in compliance and also filed a motion for attorney fees and costs. The AJ rejected the motion for attorney fees, finding that they were not in the interest of justice.

On appeal, the Board awarded attorney fees, finding that the agency knew or should have known that it would not prevail in its selection of the penalty as all of the evidence was available when it took the adverse action. The majority opinion noted that the AJ improperly reweighed the mitigating factors in denying the motion for attorney fees, citing Del Prete v. U.S. Postal Service, 104 MSPR 429 (2007); Gensburg v. Department of Veterans Affairs, 80 MSPR 187 (1998). However, because the appellant only prevailed on the change in penalty issue, the majority limited its award of attorney fees to the fees and expenses attributable to the penalty issue and the merits of the charge that she successfully challenged.

In dissent, Chairman Neil McPhie, who had dissented in the merits decision, Miller v. Department of the Army, 102 MSPR 621 (2006), would have supported the AJ's denial of attorney fees. He wrote that the AJ was correct in concluding that the agency neither knew or should have known that it would not prevail on the merits, asserting that there was no indication that the agency should have realized that both charges would not be sustained and that the removal penalty would be mitigated as there was no evidence that the agency improperly relied on inappropriate factors, was negligent, or did not conscientiously consider the pertinent factors in reaching its decision.