                           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                THIS FINAL ORDER IS NONPRECEDENTIAL 1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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
                                                                                             3

     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.
                                                                                      4

     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
                                                                                         8

      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
                                                                                       9

      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
                                                                                  10

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.
