UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
KENNETH M. KILPATRICK, DOCKET NUMBER
Appellant, CB-7121-13-0181-A-1
v.
DEPARTMENT OF VETERANS DATE: January 16, 2015
AFFAIRS,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Dennis L. Friedman, Esquire, Philadelphia, Pennsylvania, for the appellant.
Stacey Conroy, Esquire, Philadelphia, Pennsylvania, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Anne M. Wagner, Vice Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a motion for attorney fees in connection with the
Board’s May 8, 2014 Final Order on the appellant’s request for review of an
arbitration decision. Kilpatrick v. Department of Veterans Affairs, MSPB Docket
No. CB-7121-13-0181-V-1, Final Order (May 8, 2014) (Final Order); Attorney
1
A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
Fee File (AFF), Tab 1. For the reasons set forth below, we GRANT the motion
for attorney fees and award fees in the amount of $10,404.00.
¶2 The appellant was employed as an Information Technology Specialist,
GS-12, at the agency’s Philadelphia Information Technology Center. MSPB
Docket No. CB-7121-13-0181-V-1, Request for Review (RFR) File, Tab 7 at 111.
On April 2, 2009, the agency proposed the appellant’s removal based on a charge
of making unauthorized hardware and configuration changes to his workstation
and using a password-cracking utility to make configuration changes to his
workstation in violation of agency directives and its rules of behavior. Id. at 90.
On May 28, 2009, the agency’s deciding official sustained the charge and directed
the appellant’s removal effective June 5, 2009. Id. at 111.
¶3 The appellant grieved his removal and the arbitrator issued her Opinion and
Award, finding the penalty of removal was not within the tolerable limits of
reasonableness and mitigating the removal to a 10-working day suspension. RFR
File, Tab 6 at 77-78. The appellant filed with the Board a timely request for
review of the arbitrator’s decision, arguing that the arbitrator erred in not finding
that: (1) his due process rights were violated; and (2) he proved his claim of
retaliation for engaging in protected equal employment opportunity (EEO)
activity. RFR File, Tab 1 at 2. On May 8, 2014, the Board issued a Final Order
that vacated the agency’s removal action due to the agency’s engaging in a due
process violation. See Final Order. The Board affirmed the arbitrator’s findings
relating to the appellant’s affirmative defense of retaliation for protected EEO
activity. Id. at 2.
¶4 On July 7, 2014, the appellant filed a motion for attorney fees with the
Board requesting $14,670.00 in fees. AFF, Tab 1 at 4, 36. The Board issued an
acknowledgment letter to the parties. AFF, Tab 2. The agency has not responded
to the appellant’s motion.
¶5 To be entitled to an award of attorney fees under 5 U.S.C. § 7701(g)(1), an
appellant must show that: (1) an attorney-client relationship exists pursuant to
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which counsel rendered legal services on his behalf in connection with a Board
proceeding; (2) he was the prevailing party; (3) an award of attorney fees is
warranted in the interest of justice; and (4) the fees requested are reasonable.
Diehl v. U.S. Postal Service, 88 M.S.P.R. 104, ¶ 10 (2001).
Attorney-Client Relationship
¶6 The appellant has submitted a copy of the signed fee agreement which he
alleges memorializes the terms of his attorney’s representation during the
arbitration proceedings. AFF, Tab 1 at 11-12. The fee agreement appears to be
solely for the prior arbitration and not applicable to the Board request for review. 2
Id. However, the agency has not disputed that an attorney-client relationship
existed between the appellant and Dennis L. Friedman, Attorney. Mr. Friedman
filed the request for review, and there is no evidence that he withdrew his
representation during the request for review. RFR File, Tab 1 at 23. Thus, we
find the appellant has established an attorney-client relationship existed between
him and Mr. Friedman.
Prevailing Party
¶7 The Board has found that a party has prevailed under a fee-shifting statute
that requires prevailing party status only if the party obtained an “enforceable
judgment[ ]” resulting in a “material alteration of the legal relationship” between
the parties. Sanchez v. Department of Homeland Security, 116 M.S.P.R. 183, ¶ 10
(2010) (quoting Buckhannon Board & Care Home, Inc. v. West Virginia
Department of Health & Human Resources, 532 U.S. 598, 604 (2001)). Here, the
Board found a due process violation and directed the agency to cancel the
appellant’s removal and reinstate him to his Information Technology Specialist
2
The retainer agreement provides that representation is limited to “all legal services
performed through the completion of the arbitration hearing and the issuance of an
award.” AFF, Tab 1 at 11. The agreement also states that should the appellant “desire
further legal representation, such as further administrative or judicial review or appeal,
[he] shall be required to enter into another Retainer Agreement.” Id. at 12. The
appellant did not provide any other retainer agreement.
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position. Final Order at 10. A plaintiff “prevails” when actual relief materially
alters the legal relationship between the parties by modifying the defendant’s
standing in a way that directly benefits the appellant. Baldwin v. Department of
Veterans Affairs, 115 M.S.P.R. 413, ¶ 11 (2010). The extent of relief that an
appellant receives on his claim does not affect whether he is a prevailing party
but, instead, should be considered in the analysis of whether attorney fees are
warranted in the interest of justice. Id. Because the Board ordered the appellant
to be reinstated and his removal cancelled, we find the appellant to be a
prevailing party.
Interest of Justice
¶8 The Board has found that an attorney fee award is warranted in the interest
of justice when, for example: (1) the agency engaged in a prohibited personnel
practice; (2) the agency 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 that it would not prevail on the merits.
Allen v. U.S. Postal Service, 2 M.S.P.R. 420, 434-35 (1980). The appellant
argues that his motion is in the interest of justice because the agency committed a
gross procedural error. AFF, Tab 1 at 7-8.
¶9 To show that the agency committed gross procedural error that warrants
recovery of fees, the appellant must show either that the agency’s error severely
prejudiced him or that the error prolonged the proceedings. Dunn v. Department
of the Army, 4 M.S.P.R. 407, 409 (1980). A fee award under the gross procedural
error category presupposes that the error provided a sufficient basis on which to
overturn the action. Mitchell v. Department of the Navy, 51 M.S.P.R. 103, 115
(1991). Gross procedural error is not simply harmful procedural error such as
suffices to require reversal of the agency action. Allen, 2 M.S.P.R. at 435 n.36.
To determine whether gross procedural error has occurred, a balance is struck
5
between the nature of and any excuse for the agency’s error and the prejudice and
burden which that error caused the appellant. Thomas v. U.S. Postal Service,
77 M.S.P.R. 502, 506-07 (1998). The Board has held that an agency’s failure to
follow the statutorily required adverse action procedures constituted gross
procedural error where it refused the appellant’s request to cancel the action prior
to filing her appeal and continued to defend the action even after the
administrative judge raised the procedural error question. Swanson v. Defense
Logistics Agency, 35 M.S.P.R. 115, 118 (1987); see Woodall v. Federal Energy
Regulatory Commission, 33 M.S.P.R. 127, 134 (1987) (finding gross procedural
error where the agency’s failure to provide adverse action rights “severely
prejudiced” the appellant and outweighed the agency’s reliance on case law that
was subsequently reversed by the Federal Circuit).
¶10 In our prior decision, the Board found that the deciding official considered
a prior incident involving the appellant as part of her review of the Douglas
factors, but the agency never referenced that it considered the incident in
determining the appropriate penalty within its removal proposal. Final Order
at 6. The agency did not provide the appellant with a constitutionally correct
removal procedure even after he raised the due process issue both during the
arbitration proceedings and before the Board. We found the prior incident to be
new and material information. Id. at 7. Based on this finding, we vacated the
agency’s disciplinary action and ordered the appellant reinstated until such time
as the agency provided a constitutionally correct removal procedure. Id. As a
result, we now find that the agency provided no explanation for the serious
procedural error and that the deciding official’s consideration of the incident was
highly prejudicial. Because the agency failed to provide the appellant with a
constitutionally correct removal procedure, we conclude that the agency
committed a gross procedural error and that fees are warranted in the interest of
justice.
6
Reasonableness of Fees
¶11 The Board assesses the reasonableness of an attorney fees request by using
two objective variables, the customary billing rate and the number of hours
reasonably devoted to the case. Casali v. Department of the Treasury,
81 M.S.P.R. 347, ¶ 9 (1999). The burden of establishing the reasonableness of
the hours claimed in an attorney fee request is on the party moving for an award
of attorney fees. Id., ¶ 13. The party seeking an award of fees should submit
evidence supporting the hours worked and exclude hours that are excessive,
redundant, or otherwise unnecessary. Id.
¶12 To establish the appropriate hourly rate, the attorney fee application must
be accompanied by a copy of the fee agreement, if one exists, as well as evidence
of the attorney’s customary billing rate for similar work. Guy v. Department of
the Army, 118 M.S.P.R. 45, ¶ 15 (2012). As noted above, the appellant has not
provided a copy of the applicable fee agreement for his request for review of an
arbitration award by the Board. However, the customary billing rate may be
established by showing the hourly rate at which the attorney actually billed other
clients for similar work during the period for which the attorney seeks fees or, if
the attorney has insufficient billings to establish a customary billing rate, then by
affidavits from other attorneys in the community with similar experience stating
their billing rates for similar work. Id. The appellant has submitted evidence of
his attorney’s billing rate for other clients so the Board can determine the
appropriate hourly rate despite the absence of a written fee agreement. AFF,
Tab 1 at 19-20. The relevant market rate for the determination of reasonableness
of an attorney fee request is the prevailing community rate for similar services in
the community in which the attorney ordinarily practices. 5 C.F.R.
§ 1201.203(a)(3).
¶13 For fees to be found reasonable, legal work for which fees are requested
must be shown to have significantly contributed to the success of the Board
7
proceeding and eliminated the need for work that would otherwise have been
required in the Board proceeding. Diehl, 88 M.S.P.R. 104, ¶ 12. Where a party
prevails on some, but not all, of his claims, the Board will consider whether the
claims for relief involved a common core of facts and the degree of success
obtained. Lizut v. Department of the Navy, 42 M.S.P.R. 3, 8 (1989) (citing
Hensley v. Eckerhart, 461 U.S. 424, 434 (1983)). In cases where an appellant has
distinctly different claims, some of which are unsuccessful, an attorney fee cannot
be awarded for services on the unsuccessful claims. Id.
¶14 The appellant’s attorney submits that his hourly rate has been $450.00 since
January 1, 2009. AFF, Tab 1 at 19. The appellant also has submitted the
following documents in support of the reasonableness of this rate: a statement
from his attorney summarizing his background, experience, and prior federal
sector cases where he was awarded fees; a 2006 rate sheet for attorney fees from
the Community Legal Services of Philadelphia; an attorney fee award from the
Eastern District of Pennsylvania in 2005, granting a rate of $425 per hour; and a
declaration from another local attorney stating that Mr. Friedman’s hourly rate is
appropriate in the Philadelphia market. Id. at 16-33. The appellant’s attorney
states in his submission that he has over 25 years of experience handling federal
labor and employment matters. Id. at 16-18. The agency has not contested the
hourly rate for the appellant’s attorney. We find no evidence to support a finding
that the rate was not based upon market considerations. Thus, we find the
$450.00 hourly rate to be reasonable.
¶15 The appellant has claimed 26.7 hours of time on the request for review of
the arbitration award and 5.9 hours on the present fee petition. Id. at 13-15.
Although we discern no padding, not all hours claimed are reasonable and
recoverable during this proceeding. As a general rule, fees may be awarded for
work in a related proceeding. However, they are only awardable where the work
done in other proceedings, or some discrete portion thereof, significantly
contributed to the success of the subsequent Board proceeding and eliminated the
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need for work that otherwise would have been required. Sowa v. Department of
Veterans Affairs, 96 M.S.P.R. 408, ¶ 16 (2004).
¶16 The entries for February 13 and February 14, 2013, reference email
communications with the arbitrator regarding the arbitration award. AFF, Tab 1
at 13. These entries are related to the arbitration proceeding and not to the
appellant’s request for review as the arbitrator did not issue her decision until
February 13, 2013. RFR File, Tab 6 at 78. There is no indication that these
2.0 hours of billable time significantly contributed to the success of the request
for review or eliminated any work that was otherwise required. Therefore, we
deduct these 2.0 hours from the appellant’s claim for fees.
¶17 The 0.2 hour entry for April 4, 2013, references the Board’s notification
that materials cannot be submitted by compact disc and must be submitted in
paper format. AFF, Tab 1 at 14; RFR File, Tab 2. The Board notified the
appellant of the required submissions for a request for review of an arbitrator’s
award. RFR File, Tab 2. On April 11, 2013, the appellant submitted new
materials and billed the appellant for 1.5 hours of work. AFF, Tab 1 at 14. If the
appellant had properly submitted the materials initially, these 1.7 hours would be
unnecessary. Because these hours are otherwise unnecessary had the initial
documentation been properly submitted, we deduct these 1.7 hours from the
appellant’s claim for fees. With these reductions, the total hours submitted by the
appellant equal 28.9 hours.
¶18 In the appellant’s request for review, the appellant raised two separate
claims: (1) that the arbitrator erred in not finding that the appellant’s due process
rights were violated; and (2) that the appellant proved his claim of retaliation for
engaging in protected EEO activity. RFR File, Tab 6 at 9. The Board found that
the agency did violate the appellant’s due process rights but affirmed the
arbitrator’s determination that the appellant failed to prove his affirmative
defense of retaliation for protected EEO activity. Final Order at 10. The two
claims do not share the same legal or factual basis. Though the appellant’s
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retaliation claim appears to have been raised in good faith and the appellant
obtained reinstatement on his other claim, we find that the work on the retaliation
claim did not contribute to his success in the request for review and that the fee
award should be reduced to reflect the failure of this claim. See Diehl,
88 M.S.P.R. 104, ¶ 14 (reducing fee award for unsuccessful claims of breach
based on discrimination and reprisal where the appellant’s petition for
enforcement resulted in a finding of noncompliance with the nondisclosure
provision of a settlement agreement); see also Lizut, 42 M.S.P.R. at 9 (reducing
fee award to reflect the failure to obtain relief in the form of return of the
appellant’s security clearance or a finding of reprisal where the appellant’s
petition for enforcement resulted in an order directing the agency to pay back
pay). When a reduction of fees is warranted because a party failed to succeed on
a particular claim, the reduction may be made either by identifying the hours
associated with the unsuccessful claim or by simply reducing the award to
account for the limited success. Diehl, 88 M.S.P.R. 104, ¶ 15. In the present
appeal, we are unable to determine the hours performed on the separate claims.
AFF, Tab 1 at 13-15. Therefore, we find that a reduction of the award by
20 percent is appropriate based on the appellant’s failure to prove his defense of
retaliation. See Driscoll v. U.S. Postal Service, 116 M.S.P.R. 662, ¶ 29 (2011)
(reduction of fees by 25 percent for appellant’s limited success in appeal was
appropriate to account for her limited success on her removal appeal and her
unsuccessful discrimination and retaliation claims).
¶19 After reducing the hours itemized above and adjusting the fee for the failed
retaliation claim, we find that the appellant is entitled to a fee award of 23.12
hours at $450.00 per hour for a total award of $10,404.00.
ORDER
We ORDER the agency to pay the attorney of record $10,404.00 in fees.
The agency must complete this action no later than 20 days after the date of this
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decision. See generally Title 5 of the United States Code, section 1204(a)(2)
(5 U.S.C. § 1204(a)(2)).
We also ORDER the agency to tell the appellant and the attorney promptly
in writing when it believes it has fully carried out the Board’s Order and of the
actions it took to carry out the Board’s Order. We ORDER the appellant and the
attorney to provide all necessary information that the agency requests to help it
carry out the Board’s Order. The appellant and the attorney, if not notified,
should ask the agency about its progress. See 5 C.F.R. § 1201.181(b).
No later than 30 days after the agency tells the appellant or the attorney that
it has fully carried out the Board’s Order, the appellant or the attorney may file a
petition for enforcement with the office that issued the initial decision on this
appeal, if the appellant or the attorney believes that the agency did not fully carry
out the Board’s Order. The petition should contain specific reasons why the
appellant or the attorney believes the agency has not fully carried out the Board’s
Order, and should include the dates and results of any communications with the
agency. See 5 C.F.R. § 1201.182(a).
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
This the final order of the Merit Systems Protection Board in this motion
for attorney fees. 5 C.F.R. § 1201.113. You have the right to request the United
States Court of Appeals for the Federal Circuit to review this final decision. You
must submit your request to the court at the following address:
United States Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, DC 20439
The court must receive your request for review no later than 60 calendar
days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec.
27, 2012). If you choose to file, be very careful to file on time. The court has
11
held that normally it does not have the authority to waive this statutory deadline
and that filings that do not comply with the deadline must be dismissed. See
Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
If you need further information about your right to appeal this decision to
court, you should refer to the federal law that gives you this right. It is found in
Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
Dec. 27, 2012). You may read this law as well as other sections of the United
States Code, at our website, http://www.mspb.gov/appeals/uscode.htm.
Additional information is available at the court's website, www.cafc.uscourts.gov.
Of particular relevance is the court's "Guide for Pro Se Petitioners and
Appellants," which is contained within the court's Rules of Practice, and Forms 5,
6, and 11.
If you are interested in securing pro bono representation for your court
appeal, you may visit our website at http://www.mspb.gov/probono for a list of
attorneys who have expressed interest in providing pro bono representation for
Merit Systems Protection Board appellants before the court. The Merit Systems
Protection Board neither endorses the services provided by any attorney nor
warrants that any attorney will accept representation in a given case.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.