UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD NEW YORK FIELD OFFICE DEBORAH KADER, DOCKET NUMBER Appellant, NY-0752-13 -0060-A-1 V. UNITED STATES POSTAL SERVICE, DATE: January 16, 2014 Agency. W. Philip Jones. Esquire, Avon, Connecticut, for the appellant. Peter W. Gallaudet. Esquire, New York, New York, for the agency. BEFORE Maureen Briody Administrative Judge INITIAL DECISION INTRODUCTION On November 1, 2013, the appellant's counsel timely filed a motion for attorney fees and costs in connection with the appellant's successful appeal of the agency's action removing her from her position. See Attorney Fee File (AFF, Tab 1). The Merit Systems Protection Board (the Board) has jurisdiction over the appellant's request for attorney fees pursuant to 5 U.S.C. § 7701(g)(1) and 5 C.F.R. § 1201.202(a). For the reasons set forth below, the appellant's motion for attorney fees and costs is GRANTED in part in the amount of $47,282.08.
This document is posted to help you gain knowledge. Please leave a comment to let me know what you think about it! Share it to your friends and learn new things together.
Transcript
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
NEW YORK FIELD OFFICE
DEBORAH KADER, DOCKET NUMBER
Appellant, NY-0752-13-0060-A-1
V.
UNITED STATES POSTAL SERVICE, DATE: January 16, 2014
Agency.
W. Philip Jones. Esquire, Avon, Connecticut, for the appellant.
Peter W. Gallaudet. Esquire, New York, New York, for the agency.
BEFORE
Maureen BriodyAdministrative Judge
INITIAL DECISION
INTRODUCTION
On November 1, 2013, the appellant's counsel timely filed a motion for
attorney fees and costs in connection with the appellant's successful appeal of the
agency's action removing her from her position. See Attorney Fee File (AFF,
Tab 1). The Merit Systems Protection Board (the Board) has jurisdiction over the
appellant's request for attorney fees pursuant to 5 U.S.C. § 7701(g)(1) and 5
C.F.R. § 1201.202(a). For the reasons set forth below, the appellant's motion for
attorney fees and costs is GRANTED in part in the amount of $47,282.08.
ANALYSIS AND FINDINGS
Background
The appellant was employed as an EAS-13 Postmaster at the Yorkshire
Post Office since April 14, 2007. See Initial Appeal File (lAF), Tab 6, Subtab 4a.
On October 27, 2011, Derek Spencer, Post Office Operations Manager (POOM),
proposed the appellant's removal for: (1) falsification of timekeeping records and
instructing a subordinate to falsify official postal forms on May 2, 2012; and (2)
engaging in improper conduct by paying the Postmaster Relief (PMR) for work
performed on May 2, 2012 from her personal funds, rather than from the
Agency's payroll. See id., Subtab 4e. By decision dated December 11, 2012, the
deciding official found that the reasons and specifications cited in the Notice of
Proposed Removal were fully supported by the evidentiary record and warranted
the appellant's removal in order to promote the efficiency of service. See id.,
Subtab 4b. On December 17, 2012, the appellant filed a timely appeal with the
Board challenging her removal. See id.. Tab 1.
After holding a hearing on March 8, 2013, I found that the agency violated
the appellant's procedural due process rights by failing to give her an opportunity
to review and respond to the ex parte information that was considered by the
deciding official in upholding her removal. As such, the agency's removal action
was reversed. See lAF, Tab 33.
The agency filed a petition for review asking the Board to vacate the initial
decision. See Petition for Review File (PFR), Tab 1. The Board affirmed the
initial decision on October 29, 2013 and ordered that the removal be canceled and
all back pay, interest on back pay, and other benefits be paid to the appellant
within 60 days. See id.. Tab 7. This motion for attorney's fees followed. See
AFF, Tab 1.
Applicable Law and Burden of Proof.
To establish entitlement to an award of attorney fees under 5 U.S.C. §
7701(g)(1), an appellant must show that: (1) she is the prevailing party; (2) she
incurred attorney fees pursuant to an existing attorney-client relationship; (3) an
award of fees is warranted in the interest of justice; and (4) the amount of fees
claimed is reasonable. See Driscoll v. U.S. Postal Service, 116 M.S.P.R. 662, ^ 7
(2011); Hart v. Department of Transportation, 115 M.S.P.R. 10, H 13 (2010).
An attorney-client relationship existed.
It is undisputed that the appellant was represented by W. Philip Jones
during the course of the proceedings. Additionally, Mr. Jones has submitted a
sworn statement indicating that the appellant is a member of the National
Association of Postmasters of the United States (NAPUS). Under his agreement
with NAPUS, 100% of all fees and costs incurred in connection with this appeal
are paid for by NAPUS and 100 % of all recovered fees and costs are returned to
the NAPUS defense fund. He has also submitted bills evidencing fees incurred
during his representation. See AFF, Tab 1. Based on the foregoing, I find that
the appellant has established that an attorney-client relationship existed between
herself and Mr. Jones.
The appellant is the prevailing partv.
An appellant who shows that she obtained a material alteration of the legal
relationship between the parties through an enforceable final judgment on the
merits or a settlement entered into the record for the purposes of enforcement by
the Board is a "prevailing party" for the purposes of 5 U.S.C. § 7701(g)(1). See
Sanchez v. Department of Homeland Security, 116 M.S.P.R. 183, ^ 10 (2010),
citing Buckhannon Board & Care Home, Inc. v. West Virginia Department of
Health & Human Resources, 532 U.S. 598 (2001).
It is undisputed that the appellant is the prevailing party. I find that the
appellant has obtained all of the relief sought in her petition for appeal based on a
final decision of the Board. Therefore, I find the appellant is the prevailing party.
See Miller v. Department of the Army, 106 M.S.P.R. 547, H 7 (2007).
An award of attorney fees is warranted in the interest of justice.
To establish that an award of attorney fees is warranted in the interest of
justice, a prevailing party must show that: (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. See Allen v. U.S. Postal Service, 2 M.S.P.R. 420, 434-35
(1980).
In order to show that the agency committed a "gross procedural error" that
warrants recovery of fees, the appellant must show either that the agency's error
severely prejudiced her, or that the error prolonged the proceedings. See Dunn v.
Department of the Army, 4 M.S.P.R. 407, 408-09 (1980). The Board has held that
gross procedural error "is not simply 'harmful' procedural error such as suffices
to require reversal of the agency action." Social Security Administration v. Price,
94 M.S.P.R. 337, H 11 (2003), affd, 398 F.3d 1322 (Fed. Cir. 2005). To
determine whether a gross procedural error has occurred, a balance is struck
between the agency's excuse for committing the error and the prejudice and
burden that the error caused the employee; if prejudice and burden to the
employee predominates, gross procedural error exists and the employee is entitled
to a fee award. See McKenna v. Department of the Navy, 108 M.S.P.R. 404, f 10
(2008). Although the Board will not readjudicate the merits of the underlying
appeal in determining whether fees should be awarded, it will consider the
situation in which the agency found itself to determine whether it committed
gross procedural error. See id. In weighing the nature of and any excuse for the
error against the prejudice and burden resulting for the employee, however, the
Board has found that the "focus of the gross procedural error category is not on
the agency's motivation or good faith per se, ... but on the effect of the agency's
procedural error on the employee's rights." Woodall v. Federal Energy