Howard v. Department of the Air Force, 673 F. App'x 987

Mr. Howard, an Air Force auditor, was removed in 2008; the MSPB initially upheld the removal after conducting its own analysis to remedy a due-process defect. The Federal Circuit remanded under Ward; on remand the Board reversed the removal in April 2012 and ordered reinstatement and back pay.
The Air Force later claimed compliance but disputed reinstatement (placing Howard on administrative leave pending a new removal) and certain back-pay calculations; Howard filed a Petition for Enforcement (PFE) alleging noncompliance.
An Administrative Judge (AJ) granted the PFE in part, finding the agency miscalculated interest on back pay; the agency corrected that item but the AJ held the reinstatement order moot and found the agency in compliance on back pay.
Howard filed a Petition for Review (PFR); the Board denied it. Howard then moved for attorney’s fees for work on the PFE and PFR; the AJ found Howard a prevailing party, justified fees, and a reasonable hourly rate.
The AJ calculated a lodestar but: (1) disallowed 56 of 106 claimed hours as unreasonable, (2) further reduced the lodestar by 28 hours for partial success at the PFR stage, and (3) eliminated 4 hours for filings on specific dates. The Board adopted the AJ’s decision; Howard appealed to the Federal Circuit.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Board properly disallowed 4 hours for two filings	Howard: he did not seek fees for those filings; no record support for deduction	Gov: asserted reduction but conceded fee request did not include those filings	Court: Vacated—no substantial evidence supports elimination; those hours were not claimed
Whether Board’s 56-hour reduction for preparing the PFE and related work was reasonable	Howard: PFE was legally and mathematically complex; Board failed to explain nexus between time spent and content	Gov: argued hours excessive given document length and attorney experience	Court: Vacated—reduction arbitrary and capricious; cannot rely on document length alone without explaining why time was unreasonable
Whether Board permissibly reduced lodestar based on limited success at PFR (Hensley step two)	Howard: Board improperly adjusted lodestar rather than excluding unsuccessful-claim hours from lodestar; no rare/exceptional-case finding	Gov: supported downward adjustment because Howard did not obtain all requested relief	Court: Vacated—reduction contrary to Supreme Court and this court’s precedent (Perdue, Bywaters); downward adjustment allowed only in rare/exceptional cases or if unsuccessful hours were excluded from lodestar

Ward v. U.S. Postal Serv., 634 F.3d 1274 (Fed. Cir.) (due-process violation when agency relies on removal factors not in proposed notice)
Hensley v. Eckerhart, 461 U.S. 424 (1983) (two-step lodestar framework for attorney’s fees)
Bywaters v. United States, 670 F.3d 1221 (Fed. Cir.) (limits on adjusting lodestar for results obtained; rare/exceptional-case requirement)
Perdue v. Kenny, 559 U.S. 542 (2010) (standards governing lodestar and potential enhancements or reductions)
Hayes v. Dep’t of the Navy, 727 F.2d 1535 (Fed. Cir.) (standard of review for MSPB decisions)