The MSPB set new precedent when it ruled that an administrative judge erred in her award of attorney fees and expenses in Driscoll v. United States Postal Service, 2011 MSPB 80 (Aug. 31, 2011), by overly reducing the amount of recoverable attorney fees in Driscoll's case.
Driscoll was removed from the position of Supervisor, Customer Service, in March 2007, based on two charges. On appeal, Driscoll alleged discrimination based on sex, age, race, national origin, and reprisal. An administrative judge sustained only one of the, and mitigated the removal to a demotion to a vacant non-supervisory position. As a result of Driscoll's partial success, the administrative judge awarded attorney fees, but reduced the amount claimed by almost half. The administrative judge struck many of Driscoll's requested hours based on precedential authority to "exclude hours for which the prevailing party failed to provide adequate documentation" and which "were not reasonably expended."
In other words, there were two bases for the judge's reduction in fees: 1) that Driscoll had limited success; and 2) that the reasons fees were incurred were not adequately justified. However, the administrative judge was required to afford Driscoll an opportunity to address deficiencies in her motion for attorney fees, which the administrative judge failed to do. As a result, the MSPB considered proffered explanations for attorney fees without remanding the matter to the administrative judge. In doing so, the MSPB found that the administrative judge's reduction of many of Driscoll's requested hours "verge[d] on nit-picking," and restored many of the requested hours.
As to the issue of the reduction in fees based on "limited success," the MSPB adopted a three-part approach for determining which fees are compensable in cases where an appellant is entitled to attorney fees, but does not succeed on every claim or issue: Where a plaintiff fails to prevail on a claim that is distinct in all respects from her successful claim, the hours spent on the unsuccessful claim should be excluded in determining a reasonable fee. Where a plaintiff obtains substantial relief on related claims, she should not have her attorney fees reduced because a judge does not adopt every contention claimed. Where a plaintiff achieves only limited success, a judge should award only an amount of fees reasonable in relation to the results obtained. This approach overruled the holding of an earlier case, Del Prete v. U.S. Postal Service, 104 MSPR 429 (2007), which did not allow for an award of attorney fees expended in unsuccessful arguments to an overturned charge.
Finding that Driscoll only obtained limited success at hearing since she suffered a large penalty, the MSPB made a downward adjustment in Driscoll's attorney fees and expenses over the total Driscoll claimed. However, other deductions by the judge were restored because of the judge's erroneous "nit-picking" of the fee submission. While the ultimate award of fees and costs was lower than what Driscoll claimed, it was significantly higher than what the administrative judge originally ordered.
* This information is provided by the attorneys at Passman & Kaplan, P.C., a law firm dedicated to the representation of federal employees worldwide. For more information on Passman & Kaplan, P.C., go to http://www.passmanandkaplan.com/