Alan R. Dunn, Petitioner, v. United States Postal Service, Respondent, 960 F.2d 156 (Fed. Cir. 1992)

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US Court of Appeals for the Federal Circuit - 960 F.2d 156 (Fed. Cir. 1992) March 18, 1992

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

NIES, Chief Judge.


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

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.