Charges sustained, but fees can be recouped

Federal employees who believe they have been treated unfairly by their agencies can under some circumstances recoup their attorney's fees and expenses even when the agency's charges against the employee have been sustained.

A recent case (Michael B. Matthews v. U.S. Postal Service; May 22, 1998; Docket AT-0752-96-0617-A-1) involving a supervisory U.S. Postal Service employee who was on the receiving end of a bum decision proved to be a rare one in which the Merit Systems Protection Board (MSPB) did not side with management.

USPS reduced Matthews' grade from that of a supervisor of customer services (EAS-16) to a part-time flexible distribution clerk (PS-5) because USPS claimed he failed to immediately correct unsafe driving practices of employees he supervised. When Matthews appealed to the MSPB, an administrative judge sustained the misconduct charges but lightened the penalty to a 45-day suspension. The judge found that USPS' penalty exceeded "the tolerable limits of reasonableness."

That probably qualifies as the understatement of the year. Demoting a senior-level supervisor with a flawless record to a part-time clerk because he did not take immediate disciplinary action against his subordinates seems to be cruel and unusual punishment.

Going Back for More

Buoyed by the decision, Matthews filed a motion seeking $9,459.06 in attorney's fees and expenses. The judge denied the motion, concluding that there were valid charges against Matthews and that he was not entirely innocent. According to the judge, USPS' action could not be considered wholly unfounded or without merit.

This is where the judge and I part company. I believe Matthews was justified in seeking attorney's fees. USPS' action was clearly without merit, and he should not have had to hire a lawyer to rectify the situation.

Another Appeal

Matthews appealed the judge's decision to the full board, asserting that USPS knew— or should have known— that its choice of penalty would not be upheld. Tellingly, USPS did not even bother to respond to Matthews' petition for review by the full MSPB.

Under previous court decisions, agencies have had to pay court costs in instances in which managers knew or should have known they would lose the case. The logic behind this says that if an agency knows it will lose, it is dealing unfairly with its employee by forcing him to hire an attorney to obtain justice. So as punishment, it must pay the employee's legal fees.

According to the decision by the full board, an award of attorney's fees is warranted in cases in which the agency knew or should have known that its choice of penalty would not be upheld. The full board said this rule applies even when the MSPB sustains the charges in an adverse action appeal but lessens the penalty based on evidence known by (or readily available to) the agency at the time it took the action.

In this case, the administrative judge's decision to mitigate the penalty was based on Matthews' 20 years of service with good performance and no prior discipline. This evidence was available to the USPS official who initially decided Matthews' penalty. For that reason, the full board agreed with Matthews that the finding in the initial decision, which prohibited him from recouping attorney's fees, should be overturned.

Because the administrative judge who decided the case on its merits was in the best position to judge the reasonableness of requested attorney's fees, the case was remanded to the MSPB Atlanta regional office for a determination of the reasonableness of the fee.

-- Bureaucratus is a retired federal employee who contributes regularly to Federal Computer Week.

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