In Del Prete v. United States Postal Service, 2007 WL 138030 (MSPB January 18, 2007), the employee appealed his removal, alleging that he did not engage in the charged misconduct, and that the penalty of removal was unreasonable. After a hearing, the administrative judge ("AJ") sustained the agency's charge, but mitigated the removal to a 60-day suspension, finding that the removal penalty exceeded the bounds of reasonableness because the deciding official failed to properly consider various mitigating factors. The employee then filed a motion for attorney fees, which the AJ granted, finding that the employee was a prevailing party and that the attorney fees award was warranted in the "interest of justice" because the agency "knew or should have known" that the penalty would not be sustained. The agency appealed the judge's attorney fee decision to the Merit Systems Protection Board ("Board").
The Board can award attorney fees to a successful employee when the award would be "in the interest of justice." 5 USC §7701(g)(1). The Board has previously held, in longstanding precedent, that an award of attorney fees may be in the interest of justice when, for example: (1) the agency engaged in a prohibited personnel practice; (2) the action was clearly without merit or wholly unfounded, or the employee was substantially innocent of the charges; (3) the agency initiated the action in bad faith; (4) the agency committed a gross procedural error; or (5) the agency knew or should have known it would not prevail on the merits. The Board has also previously held that attorney fees can be awarded when the Board sustains the charge in an adverse action, but mitigates the penalty based on evidence before, or readily available to, the agency at the time it took the action. However, an award of fees is not "all or nothing," in a case where the employee wins only on the issue of the appropriate penalty. Legal fees are limited to the fees attributed to the change in penalty and do not include fees and expenses unrelated to the penalty issue.
The dissent by the Chairman acknowledges that there is "some support" for reducing claimed attorney fees where the penalty is mitigated, but in this case, the Chairman concluded, fees were not warranted in the interest of justice. The Chairman argued that the AJ was incorrect in her finding that the deciding official failed to consider the relevant mitigation factors and that the "[the judge] placed a different weight on some [factors] than the deciding official did." However, the other two Board members dismissed the Chairman's argument, noting that the AJ's findings with regard to the relevant mitigating factors is the Board's final decision and is not subject to recharacterization or reargument in an attorney fees petition. It is those findings that control the determination on attorney fees.
This case points out the importance of arguing for the mitigation of the penalty even where the charge(s) may be upheld. If the penalty is mitigated, the appellant may be able to receive partial or full attorney fees if the reduction in the penalty is significant.
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