       NOTE: This disposition is nonprecedential.


  United States Court of Appeals
      for the Federal Circuit
                ______________________

                 PETER ADELEKE,
                    Petitioner,

                           v.

    DEPARTMENT OF HOMELAND SECURITY,
                Respondent.
           ______________________

                      2013-3161
                ______________________

   Petition for review of an arbitrator’s decision by
James M. Klein.
                ______________________

               Decided: January 8, 2014
                ______________________

   PETER ADELEKE, of LaVerne, California, pro se.

    JOSEPH E. ASHMAN, Trial Attorney, Commercial Liti-
gation Branch, Civil Division, United States Department
of Justice, of Washington, DC, for respondent. With him
on the brief were STUART F. DELERY, Assistant Attorney
General, BRYANT G. SNEE, Acting Director, and FRANKLIN
E. WHITE, JR., Assistant Director.
                 ______________________

   Before LOURIE, DYK, and WALLACH, Circuit Judges.
2                                           ADELEKE   v. DHS



PER CURIAM.
    Peter Adeleke (“Adeleke”) petitions for review of an
arbitrator’s decision denying his request for attorney fees
after he successfully challenged an action by the United
States Customs and Immigration Service (“USCIS”) to
remove him from federal service. Because the arbitrator’s
decision is in accordance with law and was supported by
substantial evidence, we affirm.
                       BACKGROUND
     Adeleke is employed as an Immigration Officer at
USCIS and his duties involve the administration of bene-
fits. During a routine background investigation in 2011,
Adeleke responded to a questionnaire that he was not
living with a cohabitant and that he did not have “close
and/or continuing contact with foreign nationals within
the last 7 years” with whom he was “bound by affection,
influence, and/or obligation.” Resp’t’s App. at 22. In
December 2011, USCIS began investigating whether
Adeleke failed to disclose that he had cohabited with a
foreign national who was not lawfully admitted into the
United States, which Adeleke denied in a sworn state-
ment in February 2012. However, based on evidence
obtained from its investigation, USCIS concluded that
Adeleke had cohabited with such a foreign national. The
agency’s Table of Penalties provides that the penalty for a
first offense of lack of candor ranges from a reprimand to
removal. Id. at 39–40. Accordingly, USCIS removed
Adeleke from federal service in September 2012.
    Adeleke challenged the removal action and sought ar-
bitration of the dispute. During a hearing before an
arbitrator, Adeleke admitted that he had cohabited with
the foreign national and lied to USCIS about it. Id. at 26.
In April 2013, the arbitrator issued a decision finding that
USCIS had a sufficient basis and a legitimate interest in
disciplining Adeleke for lack of candor, but the arbitrator
mitigated the penalty to a reprimand because Adeleke’s
ADELEKE   v. DHS                                         3



“lack of candor [did] not appear to have any direct bearing
on his job duties which involve the management of bene-
fits.” Id. at 30. The arbitrator ordered that Adeleke be
reinstated to his previous position with a full restoration
of seniority, back pay, and reimbursement of any lost
fringe benefits. Id. at 31.
    Adeleke then submitted a request for attorney fees,
asserting that he was entitled to a fee award because
(1) USCIS initiated the removal action in bad faith, and
(2) USCIS knew or should have known that it would not
prevail on the merits when it brought the action. The
arbitrator denied the request under both theories. Id. at
17–18. The arbitrator reasoned that “[t]he Agency had a
legitimate interest in disciplining the Grievant for his
lack of candor,” that “the Agency completed a thorough
investigation, and devoted significant resources to press-
ing the charges against the Grievant because, ultimately,
the Grievant lied,” and that “there were significant tax
dollars spent in this investigation as a result of the
Grievant’s conduct.” Id. The arbitrator thus concluded
that USCIS did not initiate the removal action in bad
faith and did not know and should not have known that it
would not prevail in removing Adeleke. The arbitrator
denied Adeleke’s subsequent request for reconsideration.
Adeleke petitions for review by this court.
                       DISCUSSION
    We review a decision of an arbitrator “in the same
manner” as a decision by the Merit Systems Protection
Board (“the Board”). 5 U.S.C. § 7121(f). The scope of our
review in an appeal from a Board decision is limited. We
can only set aside the decision if it was “(1) arbitrary,
capricious, an abuse of discretion, or otherwise not in
accordance with law; (2) obtained without procedures
required by law, rule, or regulation having been followed;
or (3) unsupported by substantial evidence.” 5 U.S.C.
§ 7703(c); See Briggs v. Merit Sys. Prot. Bd., 331 F.3d
4                                           ADELEKE   v. DHS



1307, 1311 (Fed. Cir. 2003). Thus, we will uphold an
arbitrator’s denial of attorney fees “unless that decision
was arbitrary, capricious, an abuse of discretion, or oth-
erwise unlawful, procedurally deficient, or unsupported
by substantial evidence.” Dunn v. Dep’t of Veterans
Affairs, 98 F.3d 1308, 1311 (Fed. Cir. 1996). A decision is
supported by substantial evidence “if it is supported by
such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion.” Brewer v. U.S.
Postal Serv., 647 F.2d 1093, 1096 (Ct. Cl. 1981) (internal
quotation marks omitted). Moreover, an arbitrator has
considerable discretion in determining whether an award
of attorney fees is warranted in the interest of justice and
we accord great deference to such a decision. Dunn, 98
F.3d at 1311; see also Grubka v. Dep’t of Treasury, 924
F.2d 1039, 1041 (Fed. Cir. 1991); Sterner v. Dep’t of Army,
711 F.2d 1563, 1571 (Fed. Cir. 1983).
    Adeleke does not challenge the arbitrator’s finding
that USCIS did not initiate the removal action in bad
faith. Adeleke asserts, however, that USCIS should have
known that it would not prevail in removing him. Ad-
eleke argues that under Lambert v. Air Force, 34 M.S.P.R.
501 (1987), “[t]he only thing that matters . . . is whether
[USCIS’s] chosen penalty was sustained after a hearing,
and whether the reasons for mitigation of the penalty
were known to the Agency before they took the action.”
Reply Br. 4. Adeleke contends that USCIS had known
that his job duties only involved the administration of
benefits, which was ultimately the basis that the arbitra-
tor mitigated his penalty. Adeleke also argues that the
arbitrator improperly considered the expenditure of tax
dollars in the investigation conducted by USCIS.
    The government responds that the arbitrator correctly
concluded that USCIS did not know and should not have
known that its removal action would be unsuccessful.
The government argues that USCIS expended significant
resources in investigating Adeleke’s false statements and
ADELEKE   v. DHS                                          5



in seeking to remove him, which demonstrated that
USCIS had believed that its action would be successful.
The government contends that when USCIS removed
Adeleke, there was no authority mandating that removal
for giving false statements would be inappropriate when
the false statements did not directly relate to an employ-
ee’s job responsibilities. The government maintains that
USCIS guidelines placed removal within the range of
appropriate penalties. The government argues that we
have rejected a rule that the successful mitigation of a
penalty creates a presumption for awarding attorney fees.
    We agree with the government. An employee chal-
lenging an agency’s adverse employment action may
recover reasonable attorney fees if the employee is a
prevailing party and the payment of attorney fees is
warranted in the interest of justice.            5 U.S.C.
§§ 5596(b)(1)(A)(ii); 7701(g). “[M]itigation of an employ-
ee’s punishment may qualify the employee as a prevailing
party.” Dunn, 98 F.3d at 1311. To determine whether
attorney fees are warranted in the interest of justice, we
consider factors including “[w]hether the agency knew or
should have known that it would not prevail on the merits
when it brought the proceeding.” Id. at 1311–12 (citing
Allen v. U.S. Postal Serv., 2 M.S.P.B. 582, 592–93 (1980)
(the fifth Allen factor)).
    The Board in Lambert stated that “fees will generally
be warranted under [the knew or should have known]
category when all of the charges are sustained and yet the
Board mitigates the penalty imposed, unless the Board’s
decision to mitigate is based upon evidence that was not
presented before the agency.” Lambert, 34 M.S.P.R. at
507. “Since Lambert, [however,] the Board has properly
rejected any per se rule in favor of fees in cases where the
charges are sustained but the penalty is mitigated” and
we have specifically rejected “a presumption that fees are
warranted in such cases.” Dunn, 98 F.3d at 1313. We
have held that “penalty mitigation alone does not create a
6                                            ADELEKE   v. DHS



presumption in favor of satisfaction of any of the Allen
factors.” Id. (“A presumption of fees upon mitigation of a
penalty runs counter to the statutory requirement that
the employee show that the interests of justice warrant an
award.”).
    Accordingly, the arbitrator’s mitigation of the penalty
of removal to a reprimand does not create a presumption
that an award of attorney fees is warranted in the inter-
est of justice. The arbitrator properly considered relevant
evidence to determine whether the fifth Allen factor was
met, i.e., whether USCIS knew or should have known that
it would not prevail in the removal action. The arbitrator
noted that USCIS conducted a careful investigation and
concluded that Adeleke gave false statements in respond-
ing to the questionnaire and during the investigation by
USCIS, which Adeleke admitted after his removal. Under
USCIS guidelines, removal was within the range of penal-
ties for giving false statements. Substantial evidence
thus supports the arbitrator’s finding that USCIS did not
know and should not have known that it would not pre-
vail in the removal action. Given that finding (and the
admitted lack of bad faith), the denial of fees is in accord-
ance with law.
    We have considered Adeleke’s remaining arguments
and conclude that they are without merit. For the forego-
ing reasons, the decision of the arbitrator is affirmed.
                       AFFIRMED
                           COSTS
    No costs.
