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Standards for Receiving Attorneys' Fees

The U.S. Court of Appeals for the Federal Circuit recently issued a decision favorable for an employee who was seeking reimbursement of fees after prevailing in his claims regarding a Civil Service Retirement System annuity. In Killeen v. OPM, No. 2010-3111; 2011 WL 108697 (C.A.Fed., January 13, 2011) the court rejected the notion of using a mathematical formula to determine an award of attorneys' fees for an employee who had successfully appealed the calculation of his retirement annuity.

John Killeen was an air traffic controller had who worked in the government for 20 years, beginning in 1981. Killeen began his tenure as a full-time employee, but later transitioned to part-time employment. In 2001, he retired under a special provision of the CSRS, which permits air traffic controllers to retire with an annuity after they had completed 20 years of service and reached age 50. However, not long after he retired, the Office of Personnel Management notified Killeen that it has miscalculated his annuity.

Upon receiving OPM's recalculation, Killeen disagreed with the numbers and appealed the recalculation to OPM. When OPM refused to change the recalculation, he appealed OPM's decision to the MSPB. His case involved nearly a decade of litigation, with multiple appearances before the MSPB and Federal Circuit. However, most notable for the issue of attorneys' fees is the fact that Killeen made two arguments against OPM's recalculation: 1) that OPM erred in using two different average pay amounts in calculating his pre-1986 and post-1986 annuities; and 2) that the regulations required the post-1986 annuity to be the ratio of actual hours worked after April 6, 1986, to his total service, not just the post-1986 service. After years of litigation, in 2009, the Federal Circuit issued a decision disagreeing with Killeen's first contention, but agreeing with his second. As such, the court remanded the case to the MSPB with instructions to pay Killeen a higher annuity.

At the conclusion of the litigation, Killeen filed a motion for attorneys' fees in the amount of $30,936. In adjudicating the attorneys' fees, the MSPB ruled that Killeen should only receive 50 percent of his fees, because he had only prevailed on one of his two arguments. On appeal to the Federal Circuit, however, the court deemed it "undisputed" that Killeen was the prevailing party. It noted that not only did he succeed in having his annuity rate recalculated (and raised), but the specific proration factor argued by Killeen was correct and thus applied by the court.

The court further posited that the failure of one of his assertions did not automatically warrant a reduction in requested attorneys' fees. In deciding the proper award of attorneys' fees, the court cited Hensley v. Eckerhart, 461 U.S. 424 (1983), in which the U.S. Supreme Court discouraged reducing an attorney's fees award when a prevailing party presents multiple legal theories and is only successful on some of them. Criticizing a mathematical division of an award of fees based upon a percentage of correct arguments, the Supreme Court in Hensley suggested that courts should award plaintiffs full fees when they have obtained excellent results.

Using Hensley as guidance, the Federal Circuit deemed Killeen to have obtained "excellent results," and moreover, cited his case as likely to have a probable impact on all air traffic controllers who assume a part-time status at some point in their careers. As such, the court ordered the MSPB to award Mr. Killeen his full attorneys' fees.

* 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.



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