Thus, we will uphold an arbitrator's denial of attorney fees "unless that decision was arbitrary, capricious, an abuse of discretion, or otherwise unlawful, procedurally deficient, or unsupported by substantial evidence." Dunn v. Dep't of Veterans Affairs, 98 F.3d 1308, 1311 (Fed. Cir. 1996). A decision is supported by substantial evidence "if it is supported by such relevant evidence as a reasonable mind might accept as adequate to support a conclusion."
We accord "great deference to the Board . . . on questions of entitlement to attorney fees." Dunn v. Dep't of Veterans Affairs, 98 F.3d 1308, 1311 (Fed. Cir. 1996). An employee challenging an agency's adverse employment action may recover reasonable attorney fees if the employee is a prevailing party and the payment of attorney fees is warranted in the interest of justice.
Under the Back Pay Act, Morrison is entitled to reasonable attorney fees in accordance with the standards established under 5 U.S.C. § 7701(g). See 5 U.S.C. § 5596(b)(1)(A); Dunn v. Dep't of Veterans Affairs, 98 F.3d 1308, 1311 (Fed. Cir. 1996). That statute provides that reasonable attorney fees may be awarded if the employee was the prevailing party and a fee award is "warranted in the interest of justice."
We review an arbitrator’s decision in the same manner as decisions of the Merit Systems Protection Board. Dunn v. Dep’t of Veterans Affairs , 98 F.3d 1308, 1311 (Fed. Cir. 1996). We will therefore uphold an arbitrator’s denial of attorneyfees unless the arbitrator’s decision was arbitrary, capricious, an abuse of discretion, or otherwise unlawful, procedurally deficient, or unsupported by substantial evidence.
This court applies the same standard of review to an arbitrator's decision as it does to appeals from decisions of the Merit Systems Protection Board (MSPB). See 5 U.S.C. § 7121(f); Dunn v. Dep't of Veterans Affs., 98 F.3d 1308, 1311 (Fed. Cir. 1996). Pursuant to 5 U.S.C. § 7703(c), we may reverse an arbitrator's decision only if it is "(1) arbitrary, capricious, an abuse of discretion, 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. § 7121(f) states that § 7703 "shall apply to the award of an arbitrator in the same manner and under the same conditions as if the matter had been decided by the Board." See Dunn v. Dept. of Veterans Affairs, 98 F.3d 1308, 1311 (Fed. Cir. 1996) ("This court reviews an arbitrator's decision 'in the same manner' as decisions of the Merit Systems Protection Board.").
Penalty mitigation alone, however, "does not create a presumption in favor of satisfaction of any of the Allen factors." Dunn v. Dep't of Veterans Affairs, 98 F.3d 1308, 1313 (Fed. Cir. 1996). While charges are not necessarily weighted equally when assessing whether an employee was substantially innocent of the charged conduct, see Van Fossen v. Merit Sys. Prot. Bd., 788 F.2d 748, 750 (Fed. Cir. 1986), the administrative judge in this case found that the charge of failure to perform duties was "a serious matter" and not "`minor' in comparison to the charge of insubordination."
See also, e.g., Morrison v. Nat'l Sci. Found., 423 F.3d 1366, 1370 (Fed. Cir. 2005) ("Under the Back Pay Act, Morrison is entitled to reasonable attorneys fees in accordance with the standards established under 5 U.S.C. § 7701(g). . . . [which] provides that reasonable attorney fees may be awarded if the employee was the prevailing party and a fee award is `warranted in the interest of justice.'" (citation omitted)); Dunn v. Dep't of Veterans Affairs, 98 F.3d 1308, 1311 (Fed. Cir. 1996) ("Attorney fee awards under the Back Pay Act must meet the standards set forth in . . . [section] 7701(g). . . . First, [petitioners] must show that they prevailed on their claims. . . . Second, [they] must show that justice warrants the award.
Another example is Wise v. Merit Systems Protection Board, 780 F.2d 997, 1000-01 (Fed. Cir. 1985), where an employee who prevailed before the Board was found not to be substantially innocent because he deliberately withheld exculpatory evidence from his employing agency. See also, e.g., Dunn v. Dep't of Veterans Affairs, 98 F.3d 1308, 1313-14 (Fed. Cir. 1996) (holding employee to be prevailing party, but denying fees due to demonstration of culpability associated with charged conduct). Finally, we briefly address OPM's assertion that the Board expressly held that any employee against whom no charges are sustained in an OSC enforcement action will automatically be found to be both a "prevailing party" and "substantially innocent."
We review an arbitrator's decision regarding a back pay award under the same standard as a decision of the Merit Systems Protection Board. See 5 U.S.C. § 7121(f); Dunn v. Department of Veterans Affairs, 98 F.3d 1308, 1311 (Fed. Cir. 1996). Thus, we must affirm an arbitrator's decision unless it is found to be (1) arbitrary, capricious, an abuse of discretion, 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.