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

Regulatory Commission, 33 M.S.P.R. 127, 132 (1987).

In my decision, I found that the agency violated the appellant's due process

rights by relying upon ex parte information in sustaining the appellant's removal

which she was not given notice of or an opportunity to respond to. As such, I

directed the agency to reverse the removal and afford the appellant an entirely

new and constitutionally correct removal proceeding in accordance with Stone v.

Federal Deposit Insurance Corporation, 179 F.3d 1368, 1374-76 (Fed. Cir. 1999)

and Ward v. U.S. Postal Service, 634 F.3d 1274, 1279-80 (Fed. Cir. 2011). See

lAF, Tab 33. The agency did not challenge this finding in connection with its

petition for review and the Board found that 1 properly found that the agency

must cancel the removal. Additionally, it was noted that the agency was put on

notice of the due process issue during the prehearing conference and prior to the

start of the hearing. See PFR, Tab 7.

The agency has not disputed that its error amounted to a gross procedural

error. Nor has it provided any excuse for the error. 1 find that the agency's error

in considering ex parte information that was not provided to the appellant

severely prejudiced the appellant and prolonged the proceedings. 1 therefore find

that an award of attorney fees is warranted in the interest of justice as the agency

committed gross procedural error. See Sowa v. Department of Veterans Affairs,

96 M.S.P.R. 408, 14 (2004) (finding agency committed gross procedural error

by failing to follow RIF regulations); Woodall, 33 M.S.P.R. 127, 132 (finding

that agency's failure to provide procedural protections severely prejudiced the

appellant, prolonged the proceeding and constituted gross procedural error

warranting an award of attorney fees); King v. U.S. Postal Service, 20 M.S.P.R.

467, 469-70 (1984) (holding that agency's failure to provide procedural

protections of Chapter 75 constituted gross procedural error).

As noted above, the Federal Circuit had issued decisions in Stone and Ward

which clearly held that the consideration of ex parte communications such as was

considered here by the deciding official constituted a due process violation that

required reversal. The Board's due process precedent was known and/or

available to the agency at the time it acted. As such, I find that an award of fees

is also warranted based on the "clearly without merit" category. See Bivens v.

Department of the Navy, 52 M.S.P.R. 602, 605 (1992) (holding that fees were

warranted in case where the appellant was deprived of his property interest in his

job without minimum due process); Mitchell v. Department of the Navy, 51

M.S.P.R. 103, 115-16 (1991) (granting a fee award where an appealable agency

action taken without the proper procedural protections violated the appellant's

constitutional right to minimum due process and therefore could not be sustained

as "clearly without merit").

The fees requested are reasonable.

The computation of a reasonable attorney fee award begins with an analysis

of two objective variables: the attorney's customary billing rate and the number

of hours devoted to the case. See Stewart v. Department of the Army, 102

M.S.P.R. 656, U 16 (2006). The party requesting fees bears the burden of proving

that the amount claimed, including the hourly rate and the number of hours

claimed, is reasonable. See id., 102 M.S.P.R. 656,9.

1. Reasonableness of the hourly rate

In assessing the reasonableness of an hourly rate, the Board requires

specific evidence of the prevailing rate for similar work to establish that the

attorney's rate reflects a market value for his services. See Mitchell v.

Department of Health & Human Services, 19 M.S.P.R. 206, 210 (1984). In

support of his request for attorney's fees, the appellant's counsel submitted a

sworn affidavit outlining his experience as an attorney dating back to 1974 and

indicating that he has litigated more than 490 Board cases since 1992. He further

indicated that he has charged the rate of $245 an hour to NAPUS since April 1,

2011 and included copies of his bills. See AFF, Tab 1. The agency did not

challenge the reasonableness of the hourly rate. See id.. Tab 5. I find that the

hourly rate of $245 is reasonable for an attorney practicing in the New York

metropolitan area with counsel's education and experience. See Gensburg v.

Department of Veterans Affairs, 85 M.S.P.R. 198, H 13 (2000) (holding that the

Board presumes that the amount agreed upon represents the maximum reasonable

fee which may be awarded).

2. Reasonableness of the number ofhours

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. See

Casali v. Department of the Treasury, 81 M.S.P.R. 347, T| 13 (1999). The party

seeking an award of fees should submit evidence supporting the hours worked

and exclude hours that are excessive, redundant, or otherwise unnecessary. See

Hensley v. Eckerhart, 461 U.S. 424, 433-44 (1983). The administrative judge

need not automatically accept claimed hours, but may disallow hours for

duplication, padding, or frivolous claims, and impose fair standards of efficiency

and economy of time. See Casali, 81 M.S.P.R. 347, H 14; Foley v. U.S. Postal

Service, 59 M.S.P.R. 413, 423 (1993); Kling v. Department ofJustice, 2 M.S.P.R.

464, 472-73 (1980). If, however, the administrative judge decides not to award

fees for hours of service that are adequately documented by attorneys, she must

identify those hours and articulate the reasons for their elimination. See

Crumbaker v. Merit Systems Protection Board, 781 F.2d 191, 195 (Fed. Cir.

1986), modified on other grounds, 827 F.2d 761 (Fed. Cir. 1987).

The appellant's counsel submitted bills indicating that total fees and costs

relating to the litigation of this appeal totaled $49,086.40. However, in

connection with his request for fees and costs, he is seeking reimbursement in the

amount of $47,596.40. It is noted that the amount of $1,430.00, which represents

the costs of transcripts, has been deducted from the fee request. A review of the

bill indicates that the appellant's counsel spent a total of 187.20 hours working

on the appeal, which adds up to $45,864.00. See AFF, Tabs 1 and 6.

8

The agency has challenged the reasonableness of these hours. Specifically,

the agency asserts that the travel time is excessive as there was a more direct

route from Avon, Connecticut to the depositions (February 6, 2013) and hearing

(March 8, 2013), which took place in Buffalo, New York. As a consequence, the

agency seeks a deduction of a total of 20 hours. See AFF, Tab 5. The appellant's

counsel asserted that due to the possibility of lake effect snow in the Buffalo,

New York area, he decided that it would be safer to take a train, rather than take

risk the possibility of a snowstorm which could delay or possibly cause him to be

unable to attend either the depositions or hearing. See id.. Tab 6. Given that the

depositions where scheduled for early February and the hearing was scheduled for

early March and given that there is a good likelihood of snow in the Buffalo

region during that time period, I find that the decision to take the safer route of

train travel to be reasonable.

The agency has further asserted that counsel's time in connection with the

following entries should be reduced as excessive: (1) 15.3 hours to draft

prehearing submission; (2) 1 hour to prepare motion to postpone hearing date; (3)

1.7 hours to review Order and Summary of Prehearing Conference; (4) 10 hours

for hearing that lasted 8 hours; and (5) 9.5 hours for depositions that lasted 7.5

hours. See AFF, Tab 5. The appellant's counsel has asserted that these hours

were reasonable and not excessive. With regard to the prehearing submission,

motion to postpone hearing date and his review of the Order and Summary of

Prehearing Conference, he asserts that this time spent was necessary in order to

adequately preparing for the hearing. He also noted that he spent time reviewing

the case and preparing prior to the begin time of the depositions and hearing. See

id.. Tab 6. The agency has not disputed the remaining hours. I have reviewed the

bills and find that the amount of time spent by the appellant's counsel was

reasonable. I further find that it is reasonable for the appellant's counsel to spend

some time in preparation for depositions and/or hearing on the morning of said

deposition and/or hearing.

Accordingly, I find that 187.20 hours are reasonable and reimbursable. As

such, I find that the appellant's counsel is entitled to reimbursement of attorney's

fees amounting to $45,864.00.

3. Reimbursable costs

Attorney fee awards under 5 U.S.C. § 7701(g)(1) include those reasonable

out-of-pocket expenses incurred by attorneys and ordinarily charged separately to

their clients. See Thomas v. U.S. Postal Service, 87 M.S.P.R. 331, H 25 (2000).

However, recoverable expenses are limited to those normally included within

attorney fees and do not include those that may be awarded as costs under statute.

See id.

The appellant is seeking an award of costs in the amount of $1,792.40. See

AFF, Tab 1. The agency asserts that the appellant's counsel should not be

reimbursed for the costs of the deposition transcripts of $1,430.00. See id.. Tab

5. However, in his motion for attorney's fees, the appellant's attorney has

already excluded the deposition transcript costs from the amount he is seeking. I

find that this is an accurate statement based on my review of counsel's bills. See

id.. Tabs 1 and 6. The agency is also challenging the amount expended for costs

relating to the attendance of witnesses of $257.74 and sheriff fees of $116.58. I

find that these costs are not compensable. See Bennett v. Department of the

Navy, 699 F.2d 1140, 1143 (Fed. Cir. 1983) (photocopying, deposition costs,

witness fees, and other expenses are not to be considered part of an award of

attorney fees). The agency does not object to the remaining costs, and I find

them compensable.

Accordingly, I find that the amount of $374.32 should be deducted from the

claimed expenses. The remainder of $1,418.08 is reimbursable as costs.

Conclusion

In summary, I find the appellant is a prevailing party before the Board, that

an award of attorney fees is in the interest of justice and that that the appellant

10

has established that she is entitled to an award of reasonable attorney fees and

costs in the amount of $47,282.08.

DECISION

The appellant's motion for attorney fees and costs is GRANTED in part.

ATTORNEY FEES

I ORDER the agency to pay attorney fees in the amount of $47,282.08 by a

check made payable to the appellant's counsel. Payment must be made no later

than 20 calendar days after the date this initial decision becomes final.

FOR THE BOARD:

Maureen BriodyAdministrative Judge

NOTICE TO APPELLANT

This initial decision will become final on February 20, 2014. unless a

petition for review is filed by that date. This is an important date because it is

usually the last day on which you can file a petition for review with the Board.

However, if you prove that you received this initial decision more than 5 days

after the date of issuance, you may file a petition for review within 30 days after

the date you actually receive the initial decision. If you are represented, the 30-

day period begins to run upon either your receipt of the initial decision or its

receipt by your representative, whichever comes first. You must establish the

date on which you or your representative received it. The date on which the

initial decision becomes final also controls when you can file a petition for

review with the Court of Appeals. The paragraphs that follow tell you how and

when to file with the Board or the federal court. These instructions are important

because if you wish to file a petition, you must file it within the proper time

period.

11

BOARD REVIEW

You may request Board review of this initial decision by filing a petition

for review.

If the other party has already filed a timely petition for review, you may

file a cross petition for review. Your petition or cross petition for review must

state your objections to the initial decision, supported by references to applicable

laws, regulations, and the record. You must file it with:

The Clerk of the Board

Merit Systems Protection Board1615 M Street, NW.

Washington, DC 20419

A petition or cross petition for review may be filed by mail, facsimile (fax),

personal or commercial delivery, or electronic filing. A petition submitted by

electronic filing must comply with the requirements of 5 C.F.R. § 1201.14, and

may only be accomplished at the Board's e-Appeal website

(https://e-appeal.mspb.gov).

Criteria for Granting a Petition or Cross Petition for Review

Pursuant to 5 C.F.R. § 1201.115, the Board normally will consider only

issues raised in a timely filed petition or cross petition for review. Situations in

which the Board may grant a petition or cross petition for review include, but are

not limited to, a showing that:

(a) The initial decision contains erroneous findings of material fact. (1)

Any alleged factual error must be material, meaning of sufficient weight to

warrant an outcome different from that of the initial decision. (2) A petitioner

who alleges that the judge made erroneous findings of material fact must explain

why the challenged factual determination is incorrect and identify specific

evidence in the record that demonstrates the error. In reviewing a claim of an

erroneous finding of fact, the Board will give deference to an administrative

12

judge's credibility determinations when they are based, explicitly or implicitly,

on the observation of the demeanor of witnesses testifying at a hearing.

(b) The initial decision is based on an erroneous interpretation of statute or

regulation or the erroneous application of the law to the facts of the case. The

petitioner must explain how the error affected the outcome of the case.

(c) The judge's rulings during either the course of the appeal or the initial

decision were not consistent with required procedures or involved an abuse of

discretion, and the resulting error affected the outcome of the case.

(d) New and material evidence or legal argument is available that, despite

the petitioner's due diligence, was not available when the record closed. To

constitute new evidence, the information contained in the documents, not just the

documents themselves, must have been unavailable despite due diligence when

the record closed.

As stated in 5 C.F.R. § 1201.114(h), a petition for review, a cross petition

for review, or a response to a petition for review, whether computer generated,

typed, or handwritten, is limited to 30 pages or 7500 words, whichever is less. A

reply to a response to a petition for review is limited to 15 pages or 3750 words,

whichever is less. Computer generated and typed pleadings must use no less than

12 point typeface and 1-inch margins and must be double spaced and only use one

side of a page. The length limitation is exclusive of any table of contents, table of

authorities, attachments, and certificate of service. A request for leave to file a

pleading that exceeds the limitations prescribed in this paragraph must be

received by the Clerk of the Board at least 3 days before the filing deadline. Such

requests must give the reasons for a waiver as well as the desired length of the

pleading and are granted only in exceptional circumstances. The page and word

limits set forth above are maximum limits. Parties are not expected or required to

submit pleadings of the maximum length. Typically, a well-written petition for

review is between 5 and 10 pages long.

13

If you file a petition or cross petition for review, the Board will obtain the

record in your case from the administrative judge and you should not submit

anything to the Board that is already part of the record. A petition for review

must be filed with the Clerk of the Board no later than the date this initial

decision becomes final, or if this initial decision is received by you or your

representative more than 5 days after the date of issuance, 30 days after the date

you or your representative actually received the initial decision, whichever was

first. If you claim that you and your representative both received this decision

more than 5 days after its issuance, you have the burden to prove to the Board the

earlier date of receipt. You must also show that any delay in receiving the initial

decision was not due to the deliberate evasion of receipt. You may meet your

burden by filing evidence and argument, sworn or under penalty of perjury {see 5

C.F.R. Part 1201, Appendix 4) to support your claim. The date of filing by mail

is determined by the postmark date. The date of filing by fax or by electronic

filing is the date of submission. The date of filing by personal delivery is the

date on which the Board receives the document. The date of filing by commercial

delivery is the date the document was delivered to the commercial delivery

service. Your petition may be rejected and returned to you if you fail to provide

a statement of how you served your petition on the other party. See 5 C.F.R.

§ 1201.4(j). If the petition is filed electronically, the online process itself will

serve the petition on other e-filers. See 5 C.F.R. § 1201.14(j)(l).

A cross petition for review must be filed within 25 days after the date of

service of the petition for review.

ENFORCEMENT

If the agency fails to pay the attorney fees awarded within 20 calendar days

after the date this initial decision becomes final, you may ask the Board to

enforce its decision by filing a motion with this office.

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NOTICE TO AGENCY/INTERVENOR

The agency or intervenor may file a petition for review of this initial

decision in accordance with the Board's regulations.

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

You have the right to request review of this final decision by the United

States Court of Appeals for the Federal Circuit. You must submit your request to

the court at the following address:

United States Court of Appealsfor 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 this initial decision becomes final. 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 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.