960 F.2d 156
NOTICE: Federal Circuit Local Rule 47.8(b) states that opinions and orders which are designated as not citable as precedent shall not be employed or cited as precedent.  This does not preclude assertion of issues of claim preclusion, issue preclusion, judicial estoppel, law of the case or the like based on a decision of the Court rendered in a nonprecedential opinion or order.Alan R. DUNN, Petitioner,v.UNITED STATES POSTAL SERVICE, Respondent.
No. 91-3487.
United States Court of Appeals, Federal Circuit.
March 18, 1992.

Before NIES, Chief Judge, RICH and MICHEL, Circuit Judges.
NIES, Chief Judge.


1
Alan R. Dunn appeals the final decision of the Merit Systems Protection Board, No. BN075288A0065, denying his request for attorney fees.   The administrative judge had awarded Dunn his attorney fees under 5 U.S.C. § 7701(g)(1) (1988) and in a split decision the full Board reversed.   We reverse the Board.

ANALYSIS

2
In a previous appeal, this Court mitigated the penalty of removal to a six-month suspension because of the agency's failure to consider all mitigating factors.  Dunn v. United States Postal Service, No. 88-3285 (Fed.Cir. Feb. 15, 1989).   As a result of such failure, the agency, under clear and uniform case law, could not reasonably expect to prevail on the merits respecting the severity of the penalty.   Allen v. United States Postal Service, 2 M.S.P.R. 420, 435 (1980) (the fifth Allen factor).   Accordingly, as the government does not challenge the amount of the fees, Dunn is awarded his attorney fees in the amount of $4,375.33.

