                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD
                                     2015 MSPB 16

                            Docket No. PH-0752-12-0402-A-2

                                    Anthony Caros,
                                       Appellant,
                                            v.
                          Department of Homeland Security,
                                        Agency.
                                    February 23, 2015

           Rosemary Dettling, Esquire, Washington, D.C., for the appellant.

           Jeane Yoo, Esquire, and Laurel L. Poe, Esquire, Baltimore, Maryland, for
             the agency.

                                        BEFORE

                             Susan Tsui Grundmann, Chairman
                             Anne M. Wagner, Vice Chairman
                                Mark A. Robbins, Member



                                 OPINION AND ORDER

¶1         The appellant has filed a petition for review and the agency has filed a
     cross petition for review of the addendum initial decision, which awarded
     attorney fees in the amount of $67,765.88. We DENY the petition for review and
     the cross petition for review and AFFIRM the addendum initial decision.

                                     BACKGROUND

¶2         The agency removed the appellant from service. See Caros v. Department
     of Homeland Security, MSPB Docket No. PH-0752-12-0402-I-2, Initial Decision
     (Jan. 18, 2013).    However, after holding a hearing, the administrative judge
                                                                                               2

     reversed the removal and ordered the appellant’s reinstatement. Id. at 2, 21. The
     agency filed a petition for review of that decision. See Caros v. Department of
     Homeland Security, MSPB Docket No. PH-0752-12-0402-I-2, Final Order (Feb.
     25, 2014). We affirmed the initial decision to the extent that it found that the
     agency failed to meet its burden of proving the charges, and reversed it to the
     extent that it found that the appellant proved his claim of retaliation for his prior
     equal employment opportunity (EEO) activities. 1 Id. at 1-2.
¶3          While the agency’s petition for review in the underlying appeal was
     pending, the appellant filed a petition for attorney fees. See Caros v. Department
     of Homeland Security, MSPB Docket No. PH-0752-12-0402-A-1 (A-1), Attorney
     Fee File (AFF), Tab 1.         The administrative judge dismissed the petition as
     premature. A-1, AFF, Tab 4. At a more appropriate time, the appellant filed a
     second petition for attorney fees.          See Caros v. Department of Homeland
     Security, MSPB Docket No. PH-0752-12-0402-A-2 (A-2), AFF, Tab 1.
¶4          In his fee petition, the appellant sought compensation for 268 hours at a
     rate of $510 per hour, as well as $1,385.53 in costs, for a total of $138,380.03.
     Id. at 2, 6, 8. The administrative judge approved an award in the amount of
     $67,765.88. A-2, AFF, Tab 6, Addendum Initial Decision (AID) at 1. He did so
     after finding that $250, rather than $510, was the reasonable billing rate, and after
     finding that $765.88 for the cost of a deposition transcript was not recoverable. 2
     See AID at 9-11. The appellant has filed a petition for review. A-2, Petition for
     Review (PFR) File, Tab 1. The agency has filed a response and cross petition for
     review. PFR File, Tab 3. The appellant has not filed a response.

     1
       Although not relevant to the instant fee petition, the appellant has also filed a petition
     for enforcement regarding the appropriate back pay award, which remains pending. See
     Caros v. Department of Homeland Security, MSPB Docket No. PH-0752-12-0402-C-1.
     2
      Neither party has challenged the administrative judge’s award of costs, and therefore
     we do not revisit it here.
                                                                                             3

                                           ANALYSIS

¶5          To establish entitlement to an award of attorney fees under 5 U.S.C.
     § 7701(g)(1), an appellant must show that: (1) he was the prevailing party; (2) he
     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. Driscoll v. U.S. Postal Service, 116 M.S.P.R. 662, ¶ 7
     (2011). At no point has the agency disputed the first three elements. See A-2,
     AFF, Tab 4; PFR File, Tab 3.          Accordingly, we limit our discussion to the
     element in dispute—the reasonableness of the amount of fees claimed.

     The appellant failed to demonstrate any error in the administrative judge’s
     finding that $250 was a reasonable hourly rate.
¶6          The appellant argues that the administrative judge erred in awarding fees at
     an hourly rate of $250, rather than the $510 requested. PFR File, Tab 1 at 7-11.
     The agency argues that the administrative judge’s use of $250 as the hourly rate
     was appropriate. PFR File, Tab 3 at 4, 9-10. We find no reason to disturb the
     initial decision on this point. 3
¶7          As stated above, the appellant must show that the attorney fees claimed are
     reasonable. See Driscoll, 116 M.S.P.R. 662, ¶¶ 7, 10. Where it is agreed that a
     specific fee be paid to an attorney for legal services rendered on behalf of an


     3
       The appellant argues that the administrative judge erred in failing to adjust the hourly
     rate for inflation. PFR File, Tab 1 at 10-11. However, the appellant d id not argue
     below that he was entitled to an adjusted award, and the administrative judge therefore
     did not address this issue. A-2, AFF, Tab 1; see AID; see also Banks v. Department of
     the Air Force, 4 M.S.P.R. 268, 271 (1980) (the Board generally will not consider an
     argument raised for the first time in a petition for review absent a showing that it is
     based on new and material evidence not previously available despite the party’s due
     diligence). In any case, the Board has held that attorney fees awarded under 5 U.S.C.
     § 7701(g)(1), as is the case here, may not be enhanced, either by applying an attorney’s
     current rate retroactively or by granting interest on fees, to account for delay in
     payment. Krape v. Department of Defense, 97 M.S.P.R. 430, ¶ 10 (2004). Therefore,
     we do not find such an adjustment appropriate.
                                                                                              4

     appellant in a Board case, the Board presumes that the amount agreed upon
     represents    the    maximum       reasonable     fee    which     may     be    awarded.
     Krape, 97 M.S.P.R. 430, ¶ 12.         This presumption is rebuttable by convincing
     evidence that the agreed-upon rate was not based on marketplace considerations
     and that the attorney’s rate for similar work was customarily higher, or by
     showing that she had agreed to such a rate only because of the employee’s
     reduced ability to pay and that her customary fee for similar work was
     significantly higher. Id.
¶8          The fee agreement between the appellant and his attorney lists two options
     for structuring legal fees—an hourly rate or a flat fee. A-1, AFF, Tab 1 at 31-32. 4
     Next to the hourly rate option, “N/A” is inserted, and next to the flat fee option,
     the appellant’s name is inserted. Id. Therefore, it is evident that the appellant
     and his attorney agreed to the flat fee option for payment. Nevertheless, both
     options are relevant.
¶9         The hourly rate option, which was not selected, included a minimum
     retainer fee of $3,500, and an hourly billing rate of $250. Id. It would have
     required the appellant to seek lodestar fees from the agency if he prevailed,
     without any mention of the Laffey Matrix. 5 Id. at 32. The lodestar is the scheme

     4
       The retainer agreement is available in both the initial request for attorney fees, wh ich
     was dismissed as premature, and the second request, which is currently before us. A-1,
     AFF, Tab 1 at 31-35; A-2, AFF, Tab 1 at 30-34. The copy contained in the second
     request is distorted where it discusses requesting the agency to pay fees at the current
     Laffey rate. A-2, AFF, Tab 1 at 31. Therefore, we cite to the copy contained in the first
     request. A-1, AFF, Tab 1 at 32.
     5
       The Laffey Matrix is a schedule of hourly rates allowed by the U.S. District Court for
     the District of Columbia in Laffey v. Northwest Airlines, Inc., 572 F. Supp. 354, 371,
     374-75 (D.D.C. 1983), reversed in relevant part, 746 F.2d 4, 24-25 (D.C. Cir. 1984)
     (holding that an attorney’s customary billing rate, and not a matrix purporting to reflect
     the “true value” of the attorney’s services, is the appropriate starting point for
     determining the reasonable hourly rate), overruled by Save Our Cumberland Mountains,
     Inc. v. Hodel, 857 F.2d 1516, 1524 (D.C. Cir. 1988) (holdin g that the prevailing market
     rate is the appropriate basis for calculating fees for private attorneys who represent
                                                                                      5

for determining a reasonable fee award in a case where, as here, the prevailing
party did not obtain all requested relief, and is calculated by multiplying the
hours reasonably spent on the litigation by a reasonable hourly rate.           Guy v.
Department of the Army, 118 M.S.P.R. 45, ¶ 8 (2012) (citing Hensley v.
Eckert, 461 U.S. 424, 433 (1983)).        The flat fee option, which was selected,
included a retainer fee of $3,000 and another $3,000 in other fees, with no hourly
billing. A-1, AFF, Tab 1 at 32. Yet, it also differed from the hourly rate option
by stating that, if the appellant prevailed, he was to seek Laffey fees from the
agency. Id. Both fee structures included a provision claiming that the rates were
reduced because of the attorney’s “commitment to civil rights.” A-1, AFF, Tab 1
at 32. However, neither gave any indication that the appellant was responsible
for paying Laffey rates, so long as the attorney-client relationship remained
intact.   See id. at 31-34.   In fact, under the applicable flat fee structure, the
appellant was not responsible for paying anything out of his pocket beyond
$6,000 under any scenario, absent a breakdown in the attorney-client
relationship. 6 See id. at 32. For example, had the Board found in favor of the
appellant, but nonetheless found an award of attorney fees not to be in the interest



individuals “at reduced rates reflecting non-economic goals”). It purports to show the
prevailing market rates for attorneys in the District of Columbia. Bywaters v. United
States, 670 F.3d 1221, 1226 & n.4 (Fed. Cir. 2012). The U.S. Attorney’s Office for the
District of Columbia maintains an updated version of the matrix. See A-2, AFF, Tab 1
at 29. The Board has found that an attorney’s customary billing rate, rather than the
market rate of recovery, is the appropriate rate for private attorneys who charge below
the prevailing community rate in connection with Board appeals, noting that there is no
public policy to encourage the filing of adverse action appeals. Brown v. Department of
Health & Human Services, 50 M.S.P.R. 523, 530 (1991) (rejecting the application of the
rationale of Save Our Cumberland Mountains to Board appeals).
6
  The agreement stated, “After these [$6,000] are paid, client will not be charged
additionally [sic] legal fees.” A-1, AFF, Tab 1 at 32. It went on to state that, “in the
event of a successful resolution, the agency will be charged,” and that the appellant
agreed to request fees at the current Laffey rates. I d.
                                                                                              6

      of justice, the retainer agreement did not require that the appellant pay the
      attorney anything beyond the previously paid $6,000. 7 See id.
¶10         The agency argued, and the administrative judge found, that the maximum
      reasonable fee was the $250 per hour listed as an option in the retainer
      agreement. 8 See, e.g., A-2, AFF, Tab 4 at 7-8; PFR File, Tab 3 at 10; AID at 9.
      We agree.
¶11         A contract for services that contains an hourly rate is strong evidence of
      the local market rate because the client freely agreed to pay that rate. Willis v.
      U.S. Postal Service, 245 F.3d 1333, 1340 (Fed. Cir. 2001).                Here, the fee
      structure agreed to was not hourly billing at $250 per hour.              However, the
      contract seems to have provided that as an option, albeit an option not selected.
      See A-1, AFF, Tab 1 at 31-32. In addition, the appellant’s attorney acknowledges
      that she did offer a billing rate of $250 per hour to some clients who agreed to be
      billed monthly and pay even if they lost their cases. PFR File, Tab 1 at 8.
¶12         In contrast, the attorney’s affidavit asserts that she billed the appellant’s
      case at the rate of $510 per hour. A-2, AFF, Tab 1 at 28. It characterizes this as
      her customary rate, reasonable and consistent with the Laffey Matrix. 9 Id. The


      7
        The Board has found it appropriate to base a fee award on the lodestar amount even if
      the fee agreement called for a flat fee. See generally Ruble v. Office of Personnel
      Management, 96 M.S.P.R. 44, ¶ 13 n.* (2004). Therefore, we find it appropriate to
      calcu late fees in this appeal using the lodestar amount despite the flat fee arrangement
      that the appellant and his counsel selected.
      8
        Although the agency has conceded that $250 per hour was a reasonable billin g rate,
      the agency errs to the extent that it argues that this was the agreed upon billing rate.
      Compare A-2, AFF, Tab 4 at 7 (asserting that the appellant agreed to $250 per hour),
      and PFR File, Tab 3 at 11 (same), with A-1, AFF, Tab 1 at 31-32 (selecting the flat fee
      billing option rather than the $250 per hour billing option).
      9
        The Laffey Matrix included in the appellant’s fee petition lists $510 as the hourly rate
      for attorneys with 20 or more years of experience in the years 2013-2014. A-2, AFF,
      Tab 1 at 29.
                                                                                        7

      affidavit also asserts that “when they are able to pay,” the attorney customarily
      charges clients in employment cases at rates “similar to those set out in the Laffey
      Matrix.” Id. The affidavit, though, is lacking in that it fails to identify even a
      single case in which she charged a client $510 per hour or any other comparable
      rate. Instead, the affidavit points to two Board cases where respondent agencies
      reportedly paid the appellant’s attorney Laffey rates as part of a settlement
      agreement, and several Equal Employment Opportunity Commission (EEOC)
      cases in which she was reportedly awarded Laffey rates. Id. at 27. We do not
      find that this evidence outweighs the specific evidence that the customary rate
      was,   in   fact,   $250     per   hour.    Cf.   Andrus    v.   General   Services
      Administration, 56 M.S.P.R. 681, 686 (1993) (finding that an administrative
      judge erred in relying on fees awarded to an appellant’s counsel in addendum
      initial decisions in other appeals because such decisions were not precedential).
      This evidence includes both the fee agreement and the attorney’s admission on
      petition for review that she “did offer some employees the rate of $250 an hour.”
      A-1, AFF, Tab 1 at 31-32; PFR File, Tab 1 at 8.
¶13          To the extent that the appellant’s attorney suggest s that she would have
      charged the appellant $510 per hour but instead offered a reduced rate due to the
      appellant’s inability to pay, the administrative judge rightly found that this claim
      is not supported by the record. See PFR File, Tab 1 at 5, 7, 9; AID at 9; cf.
      Ishikawa v. Department of Labor, 26 M.S.P.R. 258, 260 (1985) (counsel
      successfully rebutted the presumption that the agreed upon rate was the maximum
      fee awardable by showing that she had agreed upon that rate only because of the
      employee’s reduced ability to pay and that her customary fee for similar work
      was significantly higher).     On review, the appellant disputes this finding by
      pointing to the underlying removal appeal and purported testimony that the
      appellant had no income. PFR File, Tab 1 at 9. Again, we are not persuaded.
      We recognize that an employee appealing his removal may be without an income
      for some period of time.       But that, by itself, does not constitute sufficient
                                                                                       8

      evidence that this appellant was billed at less than $510 per hour due to a reduced
      ability to pay. Moreover, as discussed above, the retainer agreement asserts that
      the appellant was provided a reduced rate because of his attorney’s commitment
      to civil rights. See A-1, AFF, Tab 1 at 31-32. It contains no indication that the
      rate was the result of an inability to pay.
¶14           With the petition for review, the appellant submitted an affidavit from
      another attorney in the community who practices before the Board, describing his
      billing practices. PFR File, Tab 1 at 13-15; see 5 C.F.R. § 1201.203(a)(2)-(3) (in
      addition to the fee agreement and a statement of the attorney’s customary billing
      rate for similar work, a fee petition also must include evidence that the rate is
      consistent with the prevailing community rate for similar services in the
      community in which the attorney ordinarily practices). The petition argues that
      this constitutes new evidence, not previously available, despite due diligence.
      PFR File, Tab 1 at 9-10. According to the appellant’s attorney, she previously
      sought out attorneys who prevailed before the Board, but was unable to locate
      any. Id. at 9. We are not persuaded that due diligence was exercised given that
      Board      decisions      are   publicly      available   on   the   internet,   at
      http://www.mspb.gov/decisions/decisions.htm, and list the names of the parties’
      representatives.       With little effort, the appellant’s attorney should have
      determined that she could contact identified prevailing appellants’ attorneys at
      any time. Accordingly, we will not consider this allegedly new evidence. See
      Avansino v. U.S. Postal Service, 3 M.S.P.R. 211, 214 (1980) (under 5 C.F.R.
      § 1201.115, the Board generally will not consider evidence submitted for the first
      time with the petition for review absent a showing that it was unavailable before
      the record was closed despite the party’s due diligence).
¶15           In conclusion, the appellant bore the burden of showing that the requested
      fees were reasonable, including providing evidence of his attorney’s customary
      rate and that the rate was consistent with the prevailing rate for similar services
      in the community in which the attorney ordinarily practices.             5 C.F.R.
                                                                                       9

      § 1201.203(a)(3); see Driscoll, 116 M.S.P.R. 662, ¶¶ 7, 10 (an appellant must
      show, inter alia, that the amount of attorney fees claimed is reasonable); Coleman
      v. Department of Transportation, 21 M.S.P.R. 596, 602 (1984) (the burden of
      establishing the reasonableness of hours and rates claimed is on the moving
      party).   Based on the evidence discussed above, we find no error in the
      administrative judge’s determination that the appellant was entitled to fees at a
      rate of $250 per hour, rather than the requested $510 per hour. See AID at 9; see
      also Howard v. Office of Personnel Management, 79 M.S.P.R. 172, ¶ 7 (1998)
      (the administrative judge who decided the case on the merits after a hearing is in
      the best position to evaluate the evidence submitted by counsel to determine the
      quality of representation afforded and whether the amount requested is
      reasonable).

      The agency failed to demonstrate any error in the administrative judge’s finding
      that 268 hours of attorney time was reasonable.
¶16         The agency argues in its cross petition, as it did below, that the number of
      hours billed was unreasonable and inaccurate. PFR File, Tab 3 at 14-18. We find
      that the agency failed to establish any error warranting further review.
¶17         The party seeking an award of fees should submit evidence supporting the
      hours worked and exclude hours that are excessive, redundant, or otherwise
      unnecessary. Driscoll, 116 M.S.P.R. 662, ¶ 11. 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. Id.
¶18         The agency’s arguments mirror those already asserted below.          Compare
      A-2, AFF, Tab 4 at 8-12, with PFR File, Tab 3 at 14-18.           According to the
      agency, the hours billed for some tasks, such as the 26 hours associated with the
      preparation of the fee petition, are excessive. PFR File, Tab 3 at 14-15. The
      agency also disputes the hours billed on August 24, 2012, alleging that billing for
      calls between the appellant and his attorney and billing for a telephone deposition
                                                                                          10

      are duplicative. Id. at 15-17. Finally, the agency contends that the descriptions
      provided with some of the billed hours are vague and inadequate. Id. at 17-18.
¶19            Contrary to the agency’s arguments, the administrative judge found that the
      268 hours attributed to the appellant’s case were not excessive, the billing
      descriptions of services were not inadequate, and all the claimed time, including
      phone calls, was reasonable. AID at 10. Where, as here, the administrative judge
      held a hearing on the merits of the underlying appeal, he is in the best position to
      evaluate the documentation submitted by counsel to determine whether the
      amount requested is reasonable and the quality of the representation afforded.
      Sprenger v. Department of the Interior, 34 M.S.P.R. 664, 669 (1987).               The
      agency has not provided any new, previously unavailable evidence, and has
      alleged no legal or procedural error, or abuse of discretion by the administrative
      judge.    See 5 C.F.R. § 1201.115 (stating the bases for granting a petition for
      review). We are unable to discern such error, and see no reason to disturb the
      administrative judge’s factual findings that the hours charged were reasonable.
      See McKenna v. Department of the Navy, 108 M.S.P.R. 404, ¶ 14 (2008)
      (declining    to   disturb   an   administrative   judge’s   findings   regarding the
      reasonableness of the hours charged in connection with a motion for attorney fees
      in light of the absence of any legal error or new, previously unavailable
      evidence); Broughton v. Department of Health & Human Services, 33 M.S.P.R.
      357, 359 (1987) (there is no reason to disturb the administrative judge’s
      conclusions when they reflect that the administrative judge considered the
      evidence as a whole, drew appropriate inferences, and made reasoned
      conclusions).

      Because the underlying appeal is a mixed case, we provide mixed-case appeal
      rights in this decision regarding attorney fees.
¶20            A mixed-case appeal is an appeal filed directly to the Board that alleges
      that an appealable agency action was effected, in whole or in part, because of
      discrimination on the basis of race, color, religion, sex, national origin, disability,
                                                                                     11

      age, genetic information, or reprisal. Mills v. U.S. Postal Service, 119 M.S.P.R.
      482, ¶ 7 (2013); 5 C.F.R. § 1201.151. Judicial review of mixed-case appeals lies
      in a federal district court of competent jurisdiction.   5 U.S.C. §§ 7702(a)(1),
      7703(b)(2); Kloeckner v. Solis, 133 S. Ct. 596, 603-04, 607 (2012); 5 C.F.R.
      § 1201.157.   Alternatively, an appellant can seek administrative review of a
      mixed case before the EEOC. 5 U.S.C. § 7702(b), (e)(3). For nonmixed-case
      appeals governed by the procedures of 5 U.S.C. § 7701, a party may seek judicial
      review in the U.S. Court of Appeals for the Federal Circuit.             5 U.S.C.
      § 7703(b)(1)(A); 5 C.F.R. § 1201.157.
¶21         Historically, the Board provided notice of mixed-case appeal rights in its
      final decision only when the Board actually decided a claim of discrimination.
      Cunningham v. Department of the Army, 119 M.S.P.R. 147, ¶ 10 (2013). In all
      other cases, including one in which a claim of discrimination was raised but not
      decided, the Board provided notice of nonmixed appeal rights. Id. The Board
      reversed course, however, after the Supreme Court’s Kloeckner decision.       Id.,
      ¶¶ 11-14. In Kloeckner, the Court noted that cases of discrimination “subject to”
      5 U.S.C. § 7702 are those in which the appellant “has been affected by an action
      which [he] may appeal to the Merit Systems Protection Board” and “alleges that a
      basis for the action was discrimination prohibited by” one of the listed statutes.
      133 S. Ct. at 603-04 (quoting 5 U.S.C. § 7702(a)(1)(A), (B)). The Court held that
      such cases must be filed in district court, not the Federal Circuit, even when the
      Board decides the case on procedural grounds. Kloeckner, 133 S. Ct. at 604, 607.
¶22         After Kloeckner, the Board determined that it would provide notice of
      mixed-case appeal rights in all cases in which the appellant was affected by an
      action appealable to the Board and alleged prohibited discrimination, regardless
      of whether the Board decided the claim of discrimination.           Cunningham,
      119 M.S.P.R. 147, ¶ 14; see, e.g., Stringer v. U.S. Postal Service, MSPB Docket
      No. CH-0752-14-0207-I-1, Final Order at 2 (July 21, 2014) (providing notice of
      mixed-case appeal rights where the appellant’s appeal was dismissed as
                                                                                            12

      untimely); Barazzone v. Department of Army, MSPB Docket No. PH-315H-12-
      0114-I-1, Final Order at 2 (April 5, 2013) (same); Brisson v. Department of
      Veterans Affairs, MSPB Docket No. DE-0432-09-0384-I-1, Final Order at 2
      (Feb. 25, 2013) (same). The Board continues to provide notice of nonmixed-case
      appeal rights in all cases dismissed by the Board on jurisdictional grounds,
      including cases in which the appellant raised a discrimination claim. Conforto v.
      Merit Systems Protection Board, 713 F.3d 1111, 1117-19 (Fed. Cir. 2013) 10; see
      Bean v. U.S. Postal Service, 120 M.S.P.R. 447, ¶ 12 (2013) (finding that when
      jurisdiction is in doubt and an appeal has been dismissed on procedural grounds,
      nonmixed-case     appeal    rights   apply);   Johnson     v.   U.S.   Postal   Service,
      120 M.S.P.R. 87, ¶ 12 (2013) (nonmixed-case appeal rights apply where an
      appellant withdraws her discrimination claim before the administrative judge
      issues a decision).
¶23         In light of Kloeckner and its progeny, we now consider whether addendum
      proceedings for attorney fees stemming from a mixed case require notice of
      mixed-case appeal rights. We conclude that they do.
¶24         Here, the appellant’s underlying appeal included an allegation that the
      agency retaliated against him based on his prior EEO activity. See Caros, MSPB
      Docket No. PH-0752-12-0402-I-2, Final Order at 6-9. Accordingly, the Board
      provided the appellant with notice of mixed-case appeal rights with the decision
      on that underlying appeal. Id. at 11-12. The addendum initial decision currently
      before the Board on review concerns the appellant’s petition for attorney fees, not
      the merits of his original claim against the agency. The fact remains, however,
      that the appellant’s petition for attorney fees stems from a mixed case. As the


      10
        In Conforto, the Federal Circuit explained that Kloeckner did not affect its prior case
      law regarding the Board’s jurisdictional dismissals and that it has jurisdiction over a
      petition when the Board dismisses for lack of jurisd iction. 713 F.3d at 1117-18. Here,
      the appellant’s petition for attorney fees was not dismissed on jurisdictional grounds.
                                                                                          13

      Federal Circuit observed when presented with similar circumstances in Schultz v.
      Merit Systems Protection Board, No. 2012-3142, 2014 WL 6462265, at *1 (Fed.
      Cir. Sept. 17, 2013), the Supreme Court’s Kloeckner decision is not ambiguous:
      a federal employee should seek judicial review in district court, not in the Federal
      Circuit, when he claims that an agency action violates an anti-discrimination
      statute, and he should follow the same course in ancillary proceedings that stem
      from such a claim. We agree. 11
¶25         Accordingly, the Board will provide notice of mixed-case appeal rights in
      all addendum proceedings for attorney fees stemming from mixed-case appeals,
      regardless of whether the Board decided the underlying claim of discrimination.

                                             ORDER
¶26         This is the final decision of the Merit Systems Protection Board in this
      appeal. Title 5 of the Code of Federal Regulations, section 1201.113(c) (5 C.F.R.
      § 1201.113(c)).

                        NOTICE TO THE APPELLANT REGARDING
                           YOUR FURTHER REVIEW RIGHTS
            You have the right to request further review of this final decision.

      Discrimination Claims: Administrative Review
            You may request review of this final decision on your discrimination
      claims by the Equal Employment Opportunity Commission (EEOC). See Title 5
      of the United States Code, section 7702(b)(1) (5 U.S.C. § 7702(b)(1)). If you
      submit your request by regular U.S. mail, the address of the EEOC is:




      11
         Although the Federal Circuit has designated the order in Schultz as nonprecedential,
      it is well-established that the Board may follow a nonprecedential Federal Circuit
      decision, where, as here, it finds it to be persuasive. Dean v. Office of Personnel
      Management, 115 M.S.P.R. 157, ¶ 14 (2010).
                                                                                   15

                           Office of Federal Operations
                    Equal Employment Opportunity Commission
                                 P.O. Box 77960
                            Washington, D.C. 20013

If you submit your request via commercial delivery or by a method requiring a
signature, it must be addressed to:
                           Office of Federal Operations
                    Equal Employment Opportunity Commission
                                131 M Street, NE
                                  Suite 5SW12G
                            Washington, D.C. 20507

      You should send your request to EEOC no later than 30 calendar days after
your receipt of this order. If you have a representative in this case, and your
representative receives this order before you do, then you must file with EEOC no
later than 30 calendar days after receipt by your representative. If you choose to
file, be very careful to file on time.

Discrimination and Other Claims: Judicial Action
      If you do not request EEOC to review this final decision on your
discrimination claims, you may file a civil action against the agency on both your
discrimination claims and your other claims in an appropriate United States
district court. See 5 U.S.C. § 7703(b)(2). You must file your civil action with
the district court no later than 30 calendar days after your receipt of this order. If
you have a representative in this case, and your representative receives this order
before you do, then you must file with the district court no later than 30 calendar
days after receipt by your representative. If you choose to file, be very careful to
file on time. If the action involves a claim of discrimination based on race, color,
religion, sex, national origin, or a disabling condition, you may be entitled to
representation by a court-appointed lawyer and to waiver of any requirement of
                                                                      16

prepayment of fees, costs, or other security.   See 42 U.S.C. § 2000e5(f)
and 29 U.S.C. § 794a.



FOR THE BOARD:


______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.
