Killeen v. Office of Personnel Management , 414 F. App'x 285 ( 2011 )

NOTE: This disposition is nonprecedential
United States Court of Appeals
for the Federal Circuit
__________________________
JOHN M. KILLEEN,
Petitioner,
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent.
__________________________
2010-3111
__________________________
Petition for review of the Merit Systems Protection
Board in case no. CH0831070013-A-1.
__________________________
Decided: January 13, 2011
__________________________
MICHAEL L. SPEKTER, Washington, DC, argued for pe-
titioner.
ELIZABETH M. HOSFORD, Senior Trial Counsel, Com-
mercial Litigation Branch, Civil Division, United States
Department of Justice, of Washington, DC, argued for
respondent. With her on the brief were TONY WEST,
Assistant Attorney General, JEANNE E. DAVIDSON, Direc-
tor, and BRIAN M. SIMKIN, Assistant Director.
KILLEEN v. OPM 2
__________________________
Before RADER, Chief Judge, PLAGER and GAJARSA, Circuit
Judges.
PLAGER, Circuit Judge.
The issue in this appeal from the Merit Systems Pro-
tection Board (“Board”) is whether the Board properly
reduced the requested award of Petitioner’s attorney fees.
Because the Board failed to appropriately consider the
significance of Mr. Killeen’s success on the merits of his
case, the judgment below is reversed. The matter is
remanded with instructions to award Mr. Killeen the full
amount of the attorney fees requested.
I. BACKGROUND
Mr. Killeen worked as an air traffic controller for 20
years. When he began his tenure in 1981, he worked full-
time but later switched to part-time employment, which
he maintained until he retired. Mr. Killeen retired in
2001 under a special Civil Service Retirement System
provision that allows air traffic controllers to retire with
an annuity after they have completed 20 years of service
and reached age 50. See 5 U.S.C. § 8336(e). Not long
after Mr. Killeen retired, the Office of Personnel Man-
agement (“OPM”) notified him that they had made an
error in calculating his annuity and that a new calcula-
tion had been made.
Mr. Killeen disagreed with the manner in which OPM
recalculated his annuity and when OPM refused to
change it, he appealed to the Board. The Board approved
OPM’s recalculation, Killeen v. Office of Pers. Mgmt., No.
CH-0831-02-0608-I-1, 2003 WL 22248819 (Sept. 23, 2003),
and Mr. Killeen appealed to this court. Upon review, we
3 KILLEEN v. OPM
held that OPM erred in computing Mr. Killeen’s annuity.
Killeen v. Office of Pers. Mgmt., 382 F.3d 1316, 1322 (Fed.
Cir. 2004) (“Killeen I”). We further held that the OPM
regulation, 5 C.F.R. § 831.703(f)(2), which OPM was
following, was invalid, and remanded the case to the
Board for further proceedings. Id. at 1317.
On remand, the Board ordered OPM to recalculate
Mr. Killeen’s annuity consistent with our decision in
Killeen I. OPM recomputed the annuity using two sepa-
rate formulas—one for Mr. Killeen’s employment pre-
April 7, 1986, and one for his employment post-April 6,
1986. See 5 C.F.R. § 831.703(a)-(e). Mr. Killeen disagreed
with OPM’s recalculation and filed a petition for enforce-
ment with the Board to force OPM to comply with the
Board’s order to recalculate his annuity in accordance
with Killeen I. Killeen v. Office of Pers. Mgmt., No. CH-
0831-02-0608-C-1 (M.S.P.B. Dec. 29, 2005). Mr. Killeen
also requested reconsideration from OPM and in doing so
he made two arguments. First, he argued that OPM
erred in using two different average pay amounts in
calculating pre- and post-1986 annuities. Second, he
argued that § 8339(p) required the proration factor for the
post-1986 annuity to be the ratio of actual hours worked
after April 6, 1986, to his total service, not just the post-
1986 service. The administrative judge in that action
agreed with Mr. Killeen. Killeen v. Office of Pers. Mgmt.,
No. CH-0831-02-0608-C-1 (M.S.P.B. Dec. 29, 2005). The
administrative judge overturned OPM and recommended
that Mr. Killeen be paid a higher annuity. Id. Subse-
quently, the Board reversed and vacated the administra-
tive judge’s recommendation, holding that OPM
performed the post-April 6, 1986, annuity calculations
correctly and that any additional issues related to the
computation of Mr. Killeen’s annuity were premature
KILLEEN v. OPM 4
pending OPM’s reconsideration decision. Killeen v. Office
of Pers. Mgmt., 102 M.S.P.R. 627, 631 (2006).
Shortly thereafter, OPM issued its reconsideration
decision upholding its original annuity calculations. The
administrative judge once again reversed OPM’s recon-
sideration decision and found that Mr. Killeen was enti-
tled to a higher annuity. Killeen v. Office of Pers. Mgmt.,
No. CH-0831-07-0013-I-1, slip op. at 5-6 (M.S.P.B. Jan.
16, 2007). Upon review, the Board disagreed with the
administrative judge and reinstated OPM’s reconsidera-
tion decision. Killeen v. Office of Pers. Mgmt., 106
M.S.P.R. 666, 667-68 (2007). Mr. Killeen appealed the
Board’s decision to this court.
We disagreed with Mr. Killeen that OPM improperly
used two annuity amounts to account for his pre-April 7,
1986, and post-April 6, 1986, service but agreed that OPM
incorrectly calculated his annuity by limiting the prora-
tion factor to his post-1986 service. Killeen v. Office of
Pers. Mgmt., 558 F.3d 1318, 1324-1326 (Fed. Cir. 2009)
(“Killeen II”). Consequently, we vacated the Board’s
decision and remanded with instructions to pay Mr.
Killeen a higher annuity. Id. at 1326.
At the conclusion of this litigation, Mr. Killeen filed a
motion pursuant to 5 U.S.C. § 7701(g)(1) for attorney fees
for work done before the Board. The total amount of fees
requested was $30,936, which considering the record is
not an amount to shock the conscience of the court. In an
initial decision, the administrative judge found that
Mr. Killeen was a “prevailing party” and that a fee award
was warranted “in the interest of justice.” Killeen v.
Office of Pers. Mgmt., No. CH-0831-07-0013-A-1, slip op.
at 6-9 (M.S.P.B. Aug. 21, 2009). In determining the
reasonableness of the fees requested, however, the admin-
5 KILLEEN v. OPM
istrative judge held that the fee award should be reduced
by 50% because Mr. Killeen prevailed on only one of his
two theories. Id. at 10-11. Mr. Killeen petitioned the
Board to review the administrative judge’s decision.
Killeen v. Office of Pers. Mgmt., 113 M.S.P.R. 441 (2010).
The Board denied the petition and made the initial deci-
sion of the administrative judge the final decision of the
Board. Id. Mr. Killeen now appeals the Board decision
denying the full amount of his requested legal fees, and
we have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9).
II. DISCUSSION
Our review of Board decisions is defined by statute. A
final Board decision may be reversed if that decision is
found to be (1) arbitrary, capricious, an abuse of discre-
tion, or otherwise not in accordance with law; (2) obtained
without procedures required by law, rule, or regulation
having been followed; or (3) unsupported by substantial
evidence. 5 U.S.C. § 7703(c); Farrell v. Dep’t of Interior,
314 F.3d 584, 589 (Fed. Cir. 2002).
It is undisputed that Mr. Killeen was the prevailing
party in this litigation. Not only did he succeed in having
his annuity rate recalculated, but the specific proration
factor argued by Mr. Killeen was correct and thus applied
by this court. Because Mr. Killeen was unsuccessful in
one of his assertions does not automatically warrant a
reduction in the requested attorney fees. The net result of
his efforts were successful—he sought to have his annuity
rate increased and it was. While the amount of his annu-
ity would have been higher if he had prevailed on both of
his arguments, that does not mean he failed.
Reducing an attorney award when a prevailing party
presents multiple legal theories and is only successful on
KILLEEN v. OPM 6
some of the contentions is something the Supreme Court
specifically cautioned against in Hensley v. Eckerhart, 461
U.S. 424, 434-435 (1983). In Hensley, the Supreme Court
criticized the District Court’s use of a mathematical
formula comparing the total number of issues argued with
those that actually prevailed as a method for determining
the attorney fee award. Id. at 435-36 n.11. Rather than
attempt to create some sort of ratio based on the percent-
age of winning arguments, the courts should carefully
evaluate the facts and “where a plaintiff has obtained
excellent results, his attorney should recover a fully
compensatory fee.” Id. at 435.
Mr. Killeen achieved excellent results. He prevailed
in having his annuity recalculated and his efforts will
undoubtedly affect other air traffic controllers who as-
sume a part-time work schedule during their careers.
Consequently, the reduction in attorney fees by the Board
on the basis that Mr. Killeen failed to prevail on all of his
asserted claims constitutes an abuse of discretion. We
reverse. The Board is instructed to award the full amount
of the attorney fees requested.
Each party shall bear its own costs.
REVERSED AND REMANDED