20140116 kader v usps a 1

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News & Politics

Published on March 6, 2014

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UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD NEW YORK FIELD OFFICE DEBORAH KADER, DOCKET NUMBER Appellant, NY-0752-13 -0060-A-1 V. UNITED STATES POSTAL SERVICE, DATE: January 16, 2014 Agency. W. Philip Jones. Esquire, Avon, Connecticut, for the appellant. Peter W. Gallaudet. Esquire, New York, New York, for the agency. BEFORE Maureen Briody Administrative Judge INITIAL DECISION INTRODUCTION On November 1, 2013, the appellant's counsel timely filed a motion for attorney fees and costs in connection with the appellant's successful appeal of the agency's action removing her from her position. See Attorney Fee File (AFF, Tab 1). The Merit Systems Protection Board (the Board) has jurisdiction over the appellant's request for attorney fees pursuant to 5 U.S.C. § 7701(g)(1) and 5 C.F.R. § 1201.202(a). For the reasons set forth below, the appellant's motion for attorney fees and costs is GRANTED in part in the amount of $47,282.08.

ANALYSIS AND FINDINGS Background The appellant was employed as an EAS-13 Postmaster at the Yorkshire Post Office since April 14, 2007. See Initial Appeal File (lAF), Tab 6, Subtab 4a. On October 27, 2011, Derek Spencer, Post Office Operations Manager (POOM), proposed the appellant's removal for: (1) falsification of timekeeping records and instructing a subordinate to falsify official postal forms on May 2, 2012; and (2) engaging in improper conduct by paying the Postmaster Relief (PMR) for work performed on May 2, 2012 from her personal funds, rather than from the Agency's payroll. See id., Subtab 4e. By decision dated December 11, 2012, the deciding official found that the reasons and specifications cited in the Notice of Proposed Removal were fully supported by the evidentiary record and warranted the appellant's removal in order to promote the efficiency of service. See id., Subtab 4b. On December 17, 2012, the appellant filed a timely appeal with the Board challenging her removal. See id.. Tab 1. After holding a hearing on March 8, 2013, I found that the agency violated the appellant's procedural due process rights by failing to give her an opportunity to review and respond to the ex parte information that was considered by the deciding official in upholding her removal. As such, the agency's removal action was reversed. See lAF, Tab 33. The agency filed a petition for review asking the Board to vacate the initial decision. See Petition for Review File (PFR), Tab 1. The Board affirmed the initial decision on October 29, 2013 and ordered that the removal be canceled and all back pay, interest on back pay, and other benefits be paid to the appellant within 60 days. See id.. Tab 7. This motion for attorney's fees followed. See AFF, Tab 1. Applicable Law and Burden of Proof. To establish entitlement to an award of attorney fees under 5 U.S.C. § 7701(g)(1), an appellant must show that: (1) she is the prevailing party; (2) she

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. See Driscoll v. U.S. Postal Service, 116 M.S.P.R. 662, ^ 7 (2011); Hart v. Department of Transportation, 115 M.S.P.R. 10, H 13 (2010). An attorney-client relationship existed. It is undisputed that the appellant was represented by W. Philip Jones during the course of the proceedings. Additionally, Mr. Jones has submitted a sworn statement indicating that the appellant is a member of the National Association of Postmasters of the United States (NAPUS). Under his agreement with NAPUS, 100% of all fees and costs incurred in connection with this appeal are paid for by NAPUS and 100 % of all recovered fees and costs are returned to the NAPUS defense fund. He has also submitted bills evidencing fees incurred during his representation. See AFF, Tab 1. Based on the foregoing, I find that the appellant has established that an attorney-client relationship existed between herself and Mr. Jones. The appellant is the prevailing partv. An appellant who shows that she obtained a material alteration of the legal relationship between the parties through an enforceable final judgment on the merits or a settlement entered into the record for the purposes of enforcement by the Board is a "prevailing party" for the purposes of 5 U.S.C. § 7701(g)(1). See Sanchez v. Department of Homeland Security, 116 M.S.P.R. 183, ^ 10 (2010), citing Buckhannon Board & Care Home, Inc. v. West Virginia Department of Health & Human Resources, 532 U.S. 598 (2001). It is undisputed that the appellant is the prevailing party. I find that the appellant has obtained all of the relief sought in her petition for appeal based on a final decision of the Board. Therefore, I find the appellant is the prevailing party. See Miller v. Department of the Army, 106 M.S.P.R. 547, H 7 (2007).

An award of attorney fees is warranted in the interest of justice. To establish that an award of attorney fees is warranted in the interest of justice, a prevailing party must show that: (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. See Allen v. U.S. Postal Service, 2 M.S.P.R. 420, 434-35 (1980). In order to show that the agency committed a "gross procedural error" that warrants recovery of fees, the appellant must show either that the agency's error severely prejudiced her, or that the error prolonged the proceedings. See Dunn v. Department of the Army, 4 M.S.P.R. 407, 408-09 (1980). The Board has held that gross procedural error "is not simply 'harmful' procedural error such as suffices to require reversal of the agency action." Social Security Administration v. Price, 94 M.S.P.R. 337, H 11 (2003), affd, 398 F.3d 1322 (Fed. Cir. 2005). To determine whether a gross procedural error has occurred, a balance is struck between the agency's excuse for committing the error and the prejudice and burden that the error caused the employee; if prejudice and burden to the employee predominates, gross procedural error exists and the employee is entitled to a fee award. See McKenna v. Department of the Navy, 108 M.S.P.R. 404, f 10 (2008). Although the Board will not readjudicate the merits of the underlying appeal in determining whether fees should be awarded, it will consider the situation in which the agency found itself to determine whether it committed gross procedural error. See id. In weighing the nature of and any excuse for the error against the prejudice and burden resulting for the employee, however, the Board has found that the "focus of the gross procedural error category is not on the agency's motivation or good faith per se, ... but on the effect of the agency's

procedural error on the employee's rights." Woodall v. Federal Energy Regulatory Commission, 33 M.S.P.R. 127, 132 (1987). In my decision, I found that the agency violated the appellant's due process rights by relying upon ex parte information in sustaining the appellant's removal which she was not given notice of or an opportunity to respond to. As such, I directed the agency to reverse the removal and afford the appellant an entirely new and constitutionally correct removal proceeding in accordance with Stone v. Federal Deposit Insurance Corporation, 179 F.3d 1368, 1374-76 (Fed. Cir. 1999) and Ward v. U.S. Postal Service, 634 F.3d 1274, 1279-80 (Fed. Cir. 2011). See lAF, Tab 33. The agency did not challenge this finding in connection with its petition for review and the Board found that 1 properly found that the agency must cancel the removal. Additionally, it was noted that the agency was put on notice of the due process issue during the prehearing conference and prior to the start of the hearing. See PFR, Tab 7. The agency has not disputed that its error amounted to a gross procedural error. Nor has it provided any excuse for the error. 1 find that the agency's error in considering ex parte information that was not provided to the appellant severely prejudiced the appellant and prolonged the proceedings. 1 therefore find that an award of attorney fees is warranted in the interest of justice as the agency committed gross procedural error. See Sowa v. Department of Veterans Affairs, 96 M.S.P.R. 408, 14 (2004) (finding agency committed gross procedural error by failing to follow RIF regulations); Woodall, 33 M.S.P.R. 127, 132 (finding that agency's failure to provide procedural protections severely prejudiced the appellant, prolonged the proceeding and constituted gross procedural error warranting an award of attorney fees); King v. U.S. Postal Service, 20 M.S.P.R. 467, 469-70 (1984) (holding that agency's failure to provide procedural protections of Chapter 75 constituted gross procedural error). As noted above, the Federal Circuit had issued decisions in Stone and Ward which clearly held that the consideration of ex parte communications such as was

considered here by the deciding official constituted a due process violation that required reversal. The Board's due process precedent was known and/or available to the agency at the time it acted. As such, I find that an award of fees is also warranted based on the "clearly without merit" category. See Bivens v. Department of the Navy, 52 M.S.P.R. 602, 605 (1992) (holding that fees were warranted in case where the appellant was deprived of his property interest in his job without minimum due process); Mitchell v. Department of the Navy, 51 M.S.P.R. 103, 115-16 (1991) (granting a fee award where an appealable agency action taken without the proper procedural protections violated the appellant's constitutional right to minimum due process and therefore could not be sustained as "clearly without merit"). The fees requested are reasonable. The computation of a reasonable attorney fee award begins with an analysis of two objective variables: the attorney's customary billing rate and the number of hours devoted to the case. See Stewart v. Department of the Army, 102 M.S.P.R. 656, U 16 (2006). The party requesting fees bears the burden of proving that the amount claimed, including the hourly rate and the number of hours claimed, is reasonable. See id., 102 M.S.P.R. 656,9. 1. Reasonableness of the hourly rate In assessing the reasonableness of an hourly rate, the Board requires specific evidence of the prevailing rate for similar work to establish that the attorney's rate reflects a market value for his services. See Mitchell v. Department of Health & Human Services, 19 M.S.P.R. 206, 210 (1984). In support of his request for attorney's fees, the appellant's counsel submitted a sworn affidavit outlining his experience as an attorney dating back to 1974 and indicating that he has litigated more than 490 Board cases since 1992. He further indicated that he has charged the rate of $245 an hour to NAPUS since April 1, 2011 and included copies of his bills. See AFF, Tab 1. The agency did not

challenge the reasonableness of the hourly rate. See id.. Tab 5. I find that the hourly rate of $245 is reasonable for an attorney practicing in the New York metropolitan area with counsel's education and experience. See Gensburg v. Department of Veterans Affairs, 85 M.S.P.R. 198, H 13 (2000) (holding that the Board presumes that the amount agreed upon represents the maximum reasonable fee which may be awarded). 2. Reasonableness of the number of hours 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. See Casali v. Department of the Treasury, 81 M.S.P.R. 347, T| 13 (1999). The party seeking an award of fees should submit evidence supporting the hours worked and exclude hours that are excessive, redundant, or otherwise unnecessary. See Hensley v. Eckerhart, 461 U.S. 424, 433-44 (1983). 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. See Casali, 81 M.S.P.R. 347, H 14; Foley v. U.S. Postal Service, 59 M.S.P.R. 413, 423 (1993); Kling v. Department ofJustice, 2 M.S.P.R. 464, 472-73 (1980). If, however, the administrative judge decides not to award fees for hours of service that are adequately documented by attorneys, she must identify those hours and articulate the reasons for their elimination. See Crumbaker v. Merit Systems Protection Board, 781 F.2d 191, 195 (Fed. Cir. 1986), modified on other grounds, 827 F.2d 761 (Fed. Cir. 1987). The appellant's counsel submitted bills indicating that total fees and costs relating to the litigation of this appeal totaled $49,086.40. However, in connection with his request for fees and costs, he is seeking reimbursement in the amount of $47,596.40. It is noted that the amount of $1,430.00, which represents the costs of transcripts, has been deducted from the fee request. A review of the bill indicates that the appellant's counsel spent a total of 187.20 hours working on the appeal, which adds up to $45,864.00. See AFF, Tabs 1 and 6.

8 The agency has challenged the reasonableness of these hours. Specifically, the agency asserts that the travel time is excessive as there was a more direct route from Avon, Connecticut to the depositions (February 6, 2013) and hearing (March 8, 2013), which took place in Buffalo, New York. As a consequence, the agency seeks a deduction of a total of 20 hours. See AFF, Tab 5. The appellant's counsel asserted that due to the possibility of lake effect snow in the Buffalo, New York area, he decided that it would be safer to take a train, rather than take risk the possibility of a snowstorm which could delay or possibly cause him to be unable to attend either the depositions or hearing. See id.. Tab 6. Given that the depositions where scheduled for early February and the hearing was scheduled for early March and given that there is a good likelihood of snow in the Buffalo region during that time period, I find that the decision to take the safer route of train travel to be reasonable. The agency has further asserted that counsel's time in connection with the following entries should be reduced as excessive: (1) 15.3 hours to draft prehearing submission; (2) 1 hour to prepare motion to postpone hearing date; (3) 1.7 hours to review Order and Summary of Prehearing Conference; (4) 10 hours for hearing that lasted 8 hours; and (5) 9.5 hours for depositions that lasted 7.5 hours. See AFF, Tab 5. The appellant's counsel has asserted that these hours were reasonable and not excessive. With regard to the prehearing submission, motion to postpone hearing date and his review of the Order and Summary of Prehearing Conference, he asserts that this time spent was necessary in order to adequately preparing for the hearing. He also noted that he spent time reviewing the case and preparing prior to the begin time of the depositions and hearing. See id.. Tab 6. The agency has not disputed the remaining hours. I have reviewed the bills and find that the amount of time spent by the appellant's counsel was reasonable. I further find that it is reasonable for the appellant's counsel to spend some time in preparation for depositions and/or hearing on the morning of said deposition and/or hearing.

Accordingly, I find that 187.20 hours are reasonable and reimbursable. As such, I find that the appellant's counsel is entitled to reimbursement of attorney's fees amounting to $45,864.00. 3. Reimbursable costs Attorney fee awards under 5 U.S.C. § 7701(g)(1) include those reasonable out-of-pocket expenses incurred by attorneys and ordinarily charged separately to their clients. See Thomas v. U.S. Postal Service, 87 M.S.P.R. 331, H 25 (2000). However, recoverable expenses are limited to those normally included within attorney fees and do not include those that may be awarded as costs under statute. See id. The appellant is seeking an award of costs in the amount of $1,792.40. See AFF, Tab 1. The agency asserts that the appellant's counsel should not be reimbursed for the costs of the deposition transcripts of $1,430.00. See id.. Tab 5. However, in his motion for attorney's fees, the appellant's attorney has already excluded the deposition transcript costs from the amount he is seeking. I find that this is an accurate statement based on my review of counsel's bills. See id.. Tabs 1 and 6. The agency is also challenging the amount expended for costs relating to the attendance of witnesses of $257.74 and sheriff fees of $116.58. I find that these costs are not compensable. See Bennett v. Department of the Navy, 699 F.2d 1140, 1143 (Fed. Cir. 1983) (photocopying, deposition costs, witness fees, and other expenses are not to be considered part of an award of attorney fees). The agency does not object to the remaining costs, and I find them compensable. Accordingly, I find that the amount of $374.32 should be deducted from the claimed expenses. The remainder of $1,418.08 is reimbursable as costs. Conclusion In summary, I find the appellant is a prevailing party before the Board, that an award of attorney fees is in the interest of justice and that that the appellant

10 has established that she is entitled to an award of reasonable attorney fees and costs in the amount of $47,282.08. DECISION The appellant's motion for attorney fees and costs is GRANTED in part. ATTORNEY FEES I ORDER the agency to pay attorney fees in the amount of $47,282.08 by a check made payable to the appellant's counsel. Payment must be made no later than 20 calendar days after the date this initial decision becomes final. FOR THE BOARD: Maureen Briody Administrative Judge NOTICE TO APPELLANT This initial decision will become final on February 20, 2014. unless a petition for review is filed by that date. This is an important date because it is usually the last day on which you can file a petition for review with the Board. However, if you prove that you received this initial decision more than 5 days after the date of issuance, you may file a petition for review within 30 days after the date you actually receive the initial decision. If you are represented, the 30day period begins to run upon either your receipt of the initial decision or its receipt by your representative, whichever comes first. You must establish the date on which you or your representative received it. The date on which the initial decision becomes final also controls when you can file a petition for review with the Court of Appeals. The paragraphs that follow tell you how and when to file with the Board or the federal court. These instructions are important because if you wish to file a petition, you must file it within the proper time period.

11 BOARD REVIEW You may request Board review of this initial decision by filing a petition for review. If the other party has already filed a timely petition for review, you may file a cross petition for review. Your petition or cross petition for review must state your objections to the initial decision, supported by references to applicable laws, regulations, and the record. You must file it with: The Clerk of the Board Merit Systems Protection Board 1615 M Street, NW. Washington, DC 20419 A petition or cross petition for review may be filed by mail, facsimile (fax), personal or commercial delivery, or electronic filing. A petition submitted by electronic filing must comply with the requirements of 5 C.F.R. § 1201.14, and may only be accomplished at the Board's e-Appeal website (https://e-appeal.mspb.gov). Criteria for Granting a Petition or Cross Petition for Review Pursuant to 5 C.F.R. § 1201.115, the Board normally will consider only issues raised in a timely filed petition or cross petition for review. Situations in which the Board may grant a petition or cross petition for review include, but are not limited to, a showing that: (a) The initial decision contains erroneous findings of material fact. (1) Any alleged factual error must be material, meaning of sufficient weight to warrant an outcome different from that of the initial decision. (2) A petitioner who alleges that the judge made erroneous findings of material fact must explain why the challenged factual determination is incorrect and identify specific evidence in the record that demonstrates the error. In reviewing a claim of an erroneous finding of fact, the Board will give deference to an administrative

12 judge's credibility determinations when they are based, explicitly or implicitly, on the observation of the demeanor of witnesses testifying at a hearing. (b) The initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case. The petitioner must explain how the error affected the outcome of the case. (c) The judge's rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case. (d) New and material evidence or legal argument is available that, despite the petitioner's due diligence, was not available when the record closed. To constitute new evidence, the information contained in the documents, not just the documents themselves, must have been unavailable despite due diligence when the record closed. As stated in 5 C.F.R. § 1201.114(h), a petition for review, a cross petition for review, or a response to a petition for review, whether computer generated, typed, or handwritten, is limited to 30 pages or 7500 words, whichever is less. A reply to a response to a petition for review is limited to 15 pages or 3750 words, whichever is less. Computer generated and typed pleadings must use no less than 12 point typeface and 1-inch margins and must be double spaced and only use one side of a page. The length limitation is exclusive of any table of contents, table of authorities, attachments, and certificate of service. A request for leave to file a pleading that exceeds the limitations prescribed in this paragraph must be received by the Clerk of the Board at least 3 days before the filing deadline. Such requests must give the reasons for a waiver as well as the desired length of the pleading and are granted only in exceptional circumstances. The page and word limits set forth above are maximum limits. Parties are not expected or required to submit pleadings of the maximum length. Typically, a well-written petition for review is between 5 and 10 pages long.

13 If you file a petition or cross petition for review, the Board will obtain the record in your case from the administrative judge and you should not submit anything to the Board that is already part of the record. A petition for review must be filed with the Clerk of the Board no later than the date this initial decision becomes final, or if this initial decision is received by you or your representative more than 5 days after the date of issuance, 30 days after the date you or your representative actually received the initial decision, whichever was first. If you claim that you and your representative both received this decision more than 5 days after its issuance, you have the burden to prove to the Board the earlier date of receipt. You must also show that any delay in receiving the initial decision was not due to the deliberate evasion of receipt. You may meet your burden by filing evidence and argument, sworn or under penalty of perjury {see 5 C.F.R. Part 1201, Appendix 4) to support your claim. The date of filing by mail is determined by the postmark date. The date of filing by fax or by electronic filing is the date of submission. The date of filing by personal delivery is the date on which the Board receives the document. The date of filing by commercial delivery is the date the document was delivered to the commercial delivery service. Your petition may be rejected and returned to you if you fail to provide a statement of how you served your petition on the other party. See 5 C.F.R. § 1201.4(j). If the petition is filed electronically, the online process itself will serve the petition on other e-filers. See 5 C.F.R. § 1201.14(j)(l). A cross petition for review must be filed within 25 days after the date of service of the petition for review. ENFORCEMENT If the agency fails to pay the attorney fees awarded within 20 calendar days after the date this initial decision becomes final, you may ask the Board to enforce its decision by filing a motion with this office.

14 NOTICE TO AGENCY/INTERVENOR The agency or intervenor may file a petition for review of this initial decision in accordance with the Board's regulations. NOTICE TO THE APPELLANT REGARDING YOUR FURTHER REVIEW RIGHTS You have the right to request review of this final decision by the United States Court of Appeals for the Federal Circuit. 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 this initial decision becomes final. 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 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.

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