24:0885(84)CA - HUD Region VI and HUD Region VI, San Antonio Area Office and AFGE Local 3320 -- 1986 FLRAdec CA
[ v24 p885 ]
The decision of the Authority follows:
24 FLRA No. 84 UNITED STATES DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, REGION VI AND UNITED STATES DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT REGION VI, SAN ANTONIO AREA OFFICE Respondent and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 3320 Charging Party Case No. 6-CA-20311 DECISION AND ORDER ON MOTION FOR PAYMENT OF ATTORNEY FEES I. Statement of the Case This matter is before the Authority on exceptions filed by the Charging Party (the Union) to the attached Decision of the Administrative Law Judge. A response was filed by the General Counsel and an opposition was filed by the Respondent. The issue concerns a Motion For Payment Of Attorney Fees filed by Steven M. Angel, Counsel for the Union, in connection with a previously decided unfair labor practice case. The motion was filed under the Back Pay Act, 5 U.S.C. Section 5596. II. Background and Judge's Decision In the underlying unfair labor practice proceeding, it was alleged that the Respondent had initiated and taken disciplinary action against an employee because of his membership in and activities on behalf of the Union, in violation of section 7116(a)(1) and (2) of the Federal Service Labor-Management Relations Statute (the Statute). The employee, Phillip Aguirri, had posted letters on the Union's bulletin board, in his capacity as Union President. The letters contained statements which accused certain of the Respondent's management officials of lying at a previous unfair labor practice hearing. Based on this conduct, Aguirri was suspended for five work days. In his Decision involving the suspension, the Judge found that Aguirri was acting for the Union when he posted the letters and that, as such, Aguirri's actions were protected from discipline and threats of discipline unless it were shown that he had engaged in flagrant misconduct. The Judge further found that under the facts of the case and relevant precedent, the actions did not constitute flagrant misconduct. He thus concluded that the Respondent's action in threatening discipline against Aguirri and in suspending him from employment violated section 7116(a)(1) and (2) of the Statute as alleged in the complaint. To remedy the violation, he recommended that the Respondent rescind the suspension and make Aguirri whole for any losses in pay he may have suffered as a result of the suspension. No exceptions were filed to this Decision and the Authority issued an Order which adopted the Judge's Decision and recommended Order as the resolution of the case. FLRA Administrative Law Judge Decisions Report No. 36 (April 12, 1984). In the attached Decision on the motion for attorney fees the Judge found that the Back Pay Act authorized an award of attorney fees in unfair labor practice proceedings but that the motion for fees in this case did not meet the "interest of justice" standard of 5 U.S.C. Section 7701(g). Therefore, without considering what amount of attorney fees would be reasonable, he recommended that the motion be denied. III. Position of the Parties Counsel for the Union argues that the Judge erred in concluding that an award of attorney fees was not warranted in the interest of justice and in denying its motion for fees. The Respondent and the General Counsel support the Judge's conclusion. IV. Analysis and Conclusions In International Brotherhood of Electrical Workers and United States Army Support Command, Hawaii, 14 FLRA 680, 683-84 (1984), cited by the Judge, and Naval Air Development Center, Department of the Navy and American Federation of Government Employees, Local 1928, AFL-CIO, 21 FLRA No. 25 (1986), the Authority detailed the considerations which apply to awards of attorney fees under the Back Pay Act, 5 U.S.C. Section 5596. /1/ As further discussed in those decisions, the Back Pay Act authorizes awards of attorney fees against the Government where an appropriate authority has found: (1) that an employee has been affected by an unwarranted or unjustified personnel action which results in the withdrawal or reduction in pay, allowances, or differentials; and (2) that this action be remedied by an award of backpay. A. Unwarranted or unjustified personnel action and backpay award As decided by the Judge, the motion for attorney fees in this case meets these threshold requirements. The effect of the Authority's final Order, which adopted the Judge's Decision in the underlying case, was to determine that Aguirri had been affected by an unjustified or unwarranted personnel action which resulted in the withdrawal of pay. Further, the Authority's Order corrected this action with a remedy which included an award of backpay. B. The requirements of 5 U.S.C. Section 7701(g) If a motion meets the unwarranted personnel action and backpay requirements, section 5596(b)(1)(A)(ii) of the Back Pay Act provides that fee requests must be judged under the standards for awarding attorney fees provided in 5 U.S.C. Section 7701(g). 1. Incurrence of attorney fees: It must be shown that an attorney-client relationship existed and that the attorney rendered legal services on behalf of the employee. O'Donnell v. Department of Interior, 2 MSPB 604 (1980). Because the record shows that an obligation to pay attorney fees was incurred by Aguirri both as an individual and as Union President and that Counsel rendered legal services in the case, we conclude in agreement with the Judge, that this requirement has been met. 2. Prevailing party: The employee must be a prevailing party in the proceeding for which an award is sought. This requirement is met if the employee has obtained all or a significant part of the relief which was sought. Sterner v. Department of the Army, 711 F.2d 1563, 1566-67 (Fed. Cir. 1983). The Judge found that the General Counsel had prevailed because it had prosecuted the case and represented the public interest and that the Union had prevailed because it had acted to protect its institutional interests. Since Aguirri received the relief he sought, the Judge decided that he should be considered as having been a prevailing party. We agree with the Judge's reasoning and conclusion. We further agree with his conclusion that the arguments concerning the General Counsel's primary role in prosecuting the case should be considered in relation to the reasonableness of the amount of the award, and not in relation to whether the employee was a prevailing party. 3. Interest of justice: If an obligation to pay fees has been incurred and the employee is a prevailing party, an award can be made if it is warranted in the interest of justice. Applying the guidelines established by the Merit Systems Protection Board (MSPB) in Allen v. U.S. Postal Service, 2 MSPB 582, 593 (1980), the Judge determined that the requested award was not warranted in the interest of justice. We disagree. After the Judge's recommended denial of attorney fees in this case, the United States Circuit Court of Appeals for the Federal Circuit /2/ clarified the application of the interest of justice standard enunciated in Allen. Yorkshire v. MSPB, 746 F.2d 1454 (Fed. Cir. 1984); Thompson v. MSPB, 772 F.2d 879 (Fed. Cir. 1985); Boese v. Department of the Air Force, 784 F.2d 388 (Fed. Cir. 1986); Van Fossen v. MSPB, 788 F.2d 748 (Fed. Cir. 1986). The court explained that a decision on whether an agency's personnel action was "clearly without merit" or was "wholly unfounded," or whether the employee was "substantially innocent," should be based on the result of the appeal, not on the evidence and information which was available to the agency prior to the hearing. Pointing out that the purpose of providing for awards of fees is not punitive, but is intended to reduce employees' costs in defending against unsubstantiated agency actions, the court explained that an award of fees is warranted in the interest of justice if on appeal any of these elements is present. See Yorkshire and Van Fossen. The court has also explained that this determination, based on the result of the appeal, should be separate from and not qualified by, determinations regarding the agency's motivation when it initiated the action. See Boese. The court has specifically found that "all 'factually close' cases do not automatically fall in the class in which fees are not available in the interest of justice." See Thompson v. MSPB, 772 F.2d at 881. Applying the Federal Circuit's approach, we conclude that the result in the underlying unfair labor practice proceeding shows that an award of attorney fees is warranted in the interest of justice. The Respondent suspended Aguirri because he had engaged in certain conduct while acting for the Union. This action was found to be a violation of section 7116(a)(1) and (2) of the Statute. The violations related to a disciplinary action against an individual who was the Union President. The Judge found that Aguirri had posted the statements with a good faith belief that they were true. He rejected the Respondent's assertion that they were posted with knowledge that they were false or in reckless disregard for the truth. He further found that the statements represented a legitimate concern of a union representative regarding labor relations matters and that Aguirri had posted the statements in accordance with the Union's established practice of keeping employees informed of the Union's activities. It is also significant that Counsel for Aguirri and the Union brought each of these matters to Respondent's attention in his responses to the charges leveled against his client. The Judge further detailed the existing legal precedent which the Judge ultimately found to warrant a finding that Aguirri was engaging in protected activity. From all this we conclude that Aguirri was "substantially innocent" and that the Respondent's actions in threatening discipline against Aguirri and in suspending him from employment for five days were "clearly without merit," "wholly unfounded," and violative of law. Based on the result, we conclude that an award of attorney fees has been shown to be warranted in the interest of justice under the Allen standards as interpreted by the Federal Circuit. /3/ 4. Reasonableness of the amount of the award: The Judge did not consider whether the amount of the award was reasonable, as he concluded that an award was not warranted in the interest of justice. We have considered whether the matter should be remanded to the Judge for such findings and decided that this is not necessary. Counsel for Aguirri and the Union has provided the documentation necessary to support his motion for attorney fees and all parties have had the opportunity to address any arguments concerning the motion. Turning to the specifics of the instant motion, Counsel billed four (4) hours for work done in representing the employee in Respondent's disciplinary proceedings. Because these proceedings arose from and concerned the same facts which were at issue in the subsequent Authority proceedings, and an award has been determined to be warranted for the latter, we conclude that the award should cover this work. The billing of these four hours is reasonable. See Young v. Department of the Air Force, 86 FMSR 5007 (1986) and Brown v. U.S. Coast Guard, 85 FMSR 5362 (1985). Counsel billed one-quarter (1/4) hour for the drafting and submission of the unfair labor practice charge which gave rise to the General Counsel's complaint in this case. Although the services of an attorney are not necessary for this function, charges which are drafted and submitted with such assistance often are of value to the General Counsel in preparing and conducting an investigation. The billing of this one-quarter hour is reasonable. See Wells v. Schweiker, 12 MSPB 329, 330 (1982) (fees awarded for work done in bringing necessary underlying facts to the attention of the MSPB Special Counsel). Counsel billed (15) hours for work in preparing for the hearing before the Judge, counsel's participation at the hearing, and the submission of a post-hearing brief. The Authority's Regulations provide that a party to an unfair labor practice case has the right to appear at any hearing with counsel, to examine and cross-examine witnesses, and to introduce evidence, all subject to a decision by the Judge that such participation should be limited. 5 CFR Section 2423.15. They also provide that a party has the right to make an oral argument before the Judge at the end of the hearing and to file a brief on the issues raised for the Judge's consideration in deciding the case. 5 CFR Sections 2423.24, 2423.25. Since these aspects of participation are entitlements under the Authority's Rules and Regulations, we will not second-guess a party's decision to seek legal representation for such purposes in an unfair labor practice proceeding. Nor will we conclude, absent a specific showing, that participation by outside counsel was either duplicative of, or failed to make a substantial contribution to, the General Counsel's efforts in prosecuting the case. Cf. Donovan v. CSEA Local Union 1000, 784 F.2d 98, 106 (2d Cir. 1986), cert. denied sub nom. CSEA Local Union 1000, American Federation of State, County and Municipal Employees, AFL-CIO v. Brock, . . . U.S. . . . , 107 S.Ct. 74 (1986); Ribel v. Eastern Associated Coal Corp., 63 Admin. L. 2d (P&F) 145, 147, 149-50 (FMSHRC 1985), appeal filed Nos. 86-3832, 86-3833 (4th Cir. 1986). Although such fee requests must be carefully scrutinized, the mere presence of an administrative prosecutor does not per se preclude an award for contributions to the proceedings made by outside counsel. See Donovan v. CSEA Local Union 1000, supra. The specific inclusion of a fee award provision for unfair labor practice proceedings in the Back Pay Act further negates such an interpretation. In the instant case the record does not provide any basis for finding that the efforts of Counsel for Aguirri and the Union were either duplicative of or failed to make a substantial contribution to the prosecution of the case. To the contrary, Counsel participated actively and pursued pertinent lines of questioning of witnesses different from those of Counsel for the General Counsel. The Authority is cognizant of the sometimes differing roles and interests of the General Counsel and charging parties or individuals on behalf of whom a charge is filed. This distinction in large part provides the basis for the right of a charging party to participate and be represented by counsel. The billing of 15 hours for services relating to preparation and participation at the hearing is granted. Counsel billed five (5) hours for investigation of the unfair labor practice. Although the investigation of an unfair labor practice charge and a decision on whether a complaint should issue based on the investigation are responsibilities of the General Counsel, like work performed during the Respondent's disciplinary proceedings, the ultimate success of Aguirri's case demonstrates that the investigation materially advanced that effort. There is no showing that the five hours spent in assisting the investigation were duplicative of, or failed to make a substantial contribution to the General Counsel's efforts. Counsel billed two (2) hours for the preparation of the papers in support of the motion for attorney fees. This is customarily considered appropriate for inclusion as part of an award of fees. The billing of this two hours is granted. The total number of hours of service thus approved is 26.25 hours. Since these fees are to be paid to the attorney, Steven M. Angel, and not to the Union's treasury for reimbursement to the Union for costs of services it provided out of its funds, a market rate rather than a "salary-plus-overhead" or "cost-plus" rate is appropriate. See National Treasury Employees Union v. U.S. Department of Treasury, 656 F.2d 848, 850 (D.C. Cir. 1981); Wells v. Schweiker, 12 MSPB 329, 331-32 (1982). The requested billing rate is $90.00 per hour. Counsel's affidavit states, without dispute by Respondent or the General Counsel, that this represents his customary billing rate and reflects a rate awarded him in other personnel cases. The requested billing rate is not unreasonable on its face nor does it greatly exceed the rate permitted under the Equal Access to Justice Act. 5 CFR Section 2430.4. We will allow a billing rate of $90.00 per hour in this case. The total number of allowed hours (26.25) at $90.00 per hour totals $2372.50 for services of counsel. See Naval Air Development Center, Department of the Navy and American Federation of Government Employees, Local 1928, AFL-CIO, 21 FLRA No. 25 (1986). Counsel also requested $82.35 for the cost of the trial transcript. This request must be denied because the transcript constitutes a "taxable cost" under 28 U.S.C. Section 1920(2). There is no statutory right of recovery for stenographic fees for transcripts in an administrative proceeding under the Civil Service Reform Act of 1978. Bennett v. Department of the Navy, 699 F.2d 1140 (Fed. Cir. 1983). ORDER Pursuant to the Back Pay Act, 5 U.S.C. Section 5596, and the Civil Service Reform Act of 1978, 5 U.S.C. Section 7701(g), the Authority grants an award in the amount of $2372.50, and orders the United States Department of Housing and Urban Development, Region VI, and United States Department of Housing and Urban Development, Region VI, San Antonio Area Office to pay that amount to Attorney Steven M. Angel. Issued, Washington, D.C., December 29, 1986. /s/ Jerry L. Calhoun, Chairman /s/ Henry B. Frazier III, Member /s/ Jean McKee, Member FEDERAL LABOR RELATIONS AUTHORITY -------------------- ALJ$ DECISION FOLLOWS -------------------- Case No. 6-CA-20311 UNITED STATES DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, REGION VI, AND UNITED STATES DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, REGION VI, SAN ANTONIO AREA OFFICE Respondent and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 3320 Charging Party Donald Grant, Esquire For the Respondent Steven M. Angel, Esquire For the Charging Party Susan E. Jelen, Esquire For the General Counsel, FLRA Before: GARVIN LEE OLIVER Administrative Law Judge DECISION AND ORDER DENYING MOTION FOR PAYMENT OF ATTORNEY FEES This proceeding under the Back Pay Act, 5 U.S.C. Section 5596, and 5 C.F.R. Section 550.801 (1984) et seq. of the Office of Personnel Management's (OPM's) Rules and Regulations was instituted by the filing of a Motion for Payment of Attorney's Fees by Steven M. Angel, attorney for the Charging Party, on January 31, 1984. On July 6, 1984, the Authority remanded the motion for appropriate disposition. Pursuant to section 550.806(b) of OPM's Rules and Regulations, the Respondent was provided an opportunity to respond to the motion. By order dated July 13, 1984 counsel, including counsel for the General Counsel, were asked to respond to certain issues. All of the parties filed an appropriate response, and counsel for Charging Party filed a further response to the General Counsel's submission. No party requested an evidentiary hearing, and such hearing appears unnecessary based on the various submissions. Upon consideration of the entire record, I make the following findings and conclusions. Findings and Conclusions On November 10, 1983 the undersigned Administrative Law Judge issued a decision in the above-entitled proceeding finding that Respondent had violated sections 7116(a)(1) and (2) of the Federal Service Labor-Management Relations Statute, 5 U.S.C. Section 7101 et seq. (the Statute) by issuing a notice and decision to suspend Phillip Aguirri. Aguirri, the president of Local 3320, was suspended for posting on the Union bulletin board three letters accusing management officials of lying under oath during an unfair labor practice hearing. The decision found, inter alia, that there was no showing that Aguirri's statements were disloyal toward the agency's services or operations, likely to produce misconduct or disrupt discipline, or that the statements were not made by Aguirri with knowledge of their falsity or with reckless disregard of whether they were true or false. It was concluded in the circumstances of the case that the statements for which Aguirri was suspended for posting represented the legitimate concern of a union representative regarding labor relations matters and did not represent the kind of flagrant conduct which was beyond the ambit of protected activity. It was recommended that Respondent be ordered to cease and desist from discriminating against Aguirri for protected union activity and take certain affirmative action by, inter alia, expunging the suspension from its files and making Aguirri whole for any loss of income. No exceptions were filed, and the findings, conclusions, and recommendations in the Decision of the Administrative Law Judge became the findings, conclusions, decision and order of the Authority, without precedential significance, on March 16, 1984. The Back Pay Act, 5 U.S.C. Section 5596 (1982), pertinently provides: (b)(1) An employee of an agency who, on the basis of a timely appeal or an administrative determination (including a decision relating to an unfair labor practice or a grievance) is found by appropriate authority under applicable law, rule, regulation, or collective bargaining agreement, to have been affected by an unjustified or unwarranted personnel action which has resulted in the withdrawal or reduction of all or part of the pay, allowances, or differentials of the employee -- (A) is entitled, on correction of the personnel action, to receive for the period of which the personnel action was in effect -- . . . . . . . . (ii) reasonable attorney fees related to the personnel action which, with respect to any decision relating to an unfair labor practice or a grievance processed under a procedure negotiated in accordance with chapter 71 of this title, or under chapter 11 of title 1 of the Foreign Service Act of 1980, shall be awarded in accordance with standards established under section 7701(g) of this title(.) Section 550.806(c) and (d) of OPM's implementing Rules and Regulations provide: (c) Except as provided in paragraph (e) of this section, when an appropriate authority corrects or directs the correction of an unjustified or unwarranted personnel action that resulted in the withdrawal, reduction, or denial of all or part of the pay, allowances, and differentials otherwise due an employee, the payment of reasonable attorney fees shall be deemed to be warranted only if -- (1) Such payment is in the interest of justice, as determined by the appropriate authority in accordance with standards established by the Merit Systems Protection Board under section 7701(g) title 5, United States Code; and (2) There is a specific finding by the appropriate authority setting forth the reasons such payment is in the interest of justice. (d) When an appropriate authority determines that such payment is warranted, it shall require payment of attorney fees in an amount determined to be reasonable by the appropriate authority. When an appropriate authority determines that such payment is not warranted, no such payment shall be required. In addition, in International Brotherhood of Electrical Workers and United States Army Support Command, Hawaii, 14 FLRA No. 90, 14 FLRA 680 (1984), the Authority addressed in detail for the first time the statutory requirements regarding awards of attorney fees. In considering these various requirements, the Authority, as noted above, has found under applicable law that Aguirri was affected by an unjustified or unwarranted personnel action which resulted in the withdrawal or reduction of all or part of the pay of the employee. This is the required determination under the Back Pay Act and not whether the employee is "the prevailing party" as under 5 U.S.C. Section 7701(g). /4/ However, to the extent the Authority deems "the prevailing party" element applicable, as it indicated in the International Brotherhood case, the General Counsel and the Charging Party were the prevailing parties. The General Counsel, representing the public interest in preventing unfair labor practices, met the burden of proof established by section 7118(a)(7) of the Statute and section 2423.18 of the Rules and Regulations. The Charging Party prevailed in that it obtained a significant part of the relief sought -- a posting and relief for its local president. To the extent Aguirri also prevailed as an individual, it was in his representative capacity as president of the local Union. Aguirri signed the charge as the representative of the Charging Party. As a result of the proceeding, the discipline imposed upon him was reversed and he recovered back pay. The employee obtained a significant part of the relief sought and has clearly prevailed for purposes of establishing eligibility for an award of attorney fees. See Hodnick v. Federal Mediation and Conciliation Service, 4 MSPB 431, 434 (1980); Sterner v. Department of the Army, 711 F.2d 1563, 1566-67 (Fed. Cir. 1983) (approving the Board's decision in Hodnick); Carpenter v. Bureau of Alcohol, Tobacco and Firearms, 5 MSPB 432, 433 (1981). The fact that the employee was voluntarily represented by private counsel while a public official, the General Counsel, had the statutory mandate to investigate the alleged unfair labor practice and to file and prosecute the complaint will be considered in determining whether the fee request of the employee's counsel is reasonable if the other basic statutory requirements are met. /5/ In Allen v. U.S. Postal Service, 2 MSPB 582, 593 (1980) the Merit Systems Protection Board set forth for prospective guidance some of the circumstances in which attorney fees may be warranted in "the interest of justice," as follows: (1) Where the agency engaged in a "prohibited personnel practice" (Section 7701(g)(1)); (2) Where the agency's actions was "clearly without merit" (7701(g)(1)), or was "wholly unfounded," or the employee is "substantially innocent" of the charges brought by the agency; (3) Where the agency initiated the action against the employee in "bad faith," including: a. Where the agency's action was brought to "harrass" the employee; b. Where the agency's action was brought to "exert improper pressure on the employee to act in certain ways"; (4) Where the agency committed a "gross procedural error" which "prolonged the proceeding" or "severely prejudiced" the employee; (5) Where the agency "knew or should have known that it would not prevail on the merits" when it brought the proceeding. (Footnotes omitted). The Charging Party contends that attorney fees in this case are warranted in the interests of justice because the agency action was (1) a prohibited personnel practice, as defined in 5 U.S.C. Section 2302(b)(8), (9), and (11), and (2) the agency's action was clearly without merit, (3) the agency knew or should have known that it could not prevail on the merits, and (4) the agency initiated the action against the employee in bad faith in order to both harass the employee and to exert improper pressure on the employee. The Authority is without jurisdiction to adjudicate a prohibited personnel practice allegation. /6/ Therefore, I do not consider this factor, which is properly considered by the Merit Systems Protection Board in determining attorney fee requests under 5 U.S.C. Section 7701(g)(1), to be applicable to attorney fee requests made of the Authority in unfair labor practice cases under 5 U.S.C. Section 5596(b). In contending that the agency's action was clearly without merit and that the agency knew or should have known that it could not prevail on the merits when it brought the proceeding, and that the agency's action was initiated in bad faith, Mr. Angel, counsel for the Charging Party, has submitted an affidavit detailing his actions and the chronology of events. This affidavit reflects that after receipt by Mr. Aguirri of the notice of proposed suspension on June 15, 1982, Mr. Angel met with management officials and responded on June 24, 1982 with a detailed discussion of the right of union officers to publicize certain opinions during a labor dispute. Despite this exposition of the law, Respondent proceeded to suspend Aguirri. The Union's unfair labor practice charge followed. Angel points out that the final decision finding the suspension to be an unfair labor practice was based upon the same right of protection of speech in labor disputes which was highlighted in his response to Aguirri's proposed removal. Angel contends that Respondent proceeded with the suspension without any apparent concern for well established law. He also claims that the very finding of discrimination because of union activity establishes bad faith. Respondent does not take issue with this portion of Angel's affidavit or argument. /7/ Respondent concedes that, "Assuming arguendo that attorney fees are authorized, the three reasons advanced by the fee applicant may be the basis for the payment of attorney fees." While the Respondent has failed to address these issues, the Merit Systems Protection Board has made it clear that the presiding official must make a "reasoned assessment on that issue (whether attorney fees are warranted in the interest of justice) in light of the entire record." Allen, supra. At the hearing, Respondent presented evidence from its witnesses, the supervisors and its attorney, that they most certainly did not lie under oath, or suborn perjury; that they were embarrassed and humiliated by Aguirri's charges; that the charges could have been seen by employees outside the agency; and that one of the officials possibly included by implication in Aguirri's charge was not even in the office on the days in question, thus indicating some recklessness on Aguirri's part. The record also indicated that management, as part of the same controversy, had filed a grievance against the Union for violation of a provision of the parties' collective bargaining agreement prohibiting the posting of scurrilous or libelous material and had won that grievance. Aguirri testified concerning his actions and the reasons for his actions. His testimony was credited. Except for a determination of and application of the applicable law, the credibility issue was very important. This issue could not have been resolved by further agency action. Even as to the application of the law to the facts, page nine of the initial decision noted, "The question of whether Mr. Aguirri's posted statements were so defamatory that they lost the protection of the Statute does not lend itself to an easy resolution." The decision required, as initially contended by the Respondent, a careful balancing of the employee's light to engage in protected activity against the employer's right to maintain order and respect for its supervisory staff. As also noted on page nine of the decision, it also required a careful examination of all the circumstances in order to determine whether the employee had engaged in flagrant conduct beyond the ambit of protected activity. Such an examination was conducted and resulted in a decision in the employees favor. However, I can not conclude from the entire record that Respondent's action was clearly without merit, that the agency knew or should have known that it would not prevail on the merits, or that the action against the employee was initiated in bad faith. Accordingly, it is concluded that an attorney fee award is not warranted in this case in the interest of justice. In view of this disposition, it is unnecessary to reach the issues posed with respect to the reasonable amount determination. Allen v. U.S. Postal Service, supra. It is recommended that the Authority adopt the following Order: ORDER IT IS HEREBY ORDERED that the Motion for Payment of Attorney Fees be, and it hereby is, DENIED. /s/ Garvin Lee Oliver Administrative Law Judge Dated: October 16, 1984, Washington, DC --------------- FOOTNOTES$ --------------- (1) Those decisions specifically concerned attorney fee awards in connection with arbitration proceedings. The same basic considerations apply, with certain adjustments discussed below, to awards in unfair labor practice cases under the Back Pay Act. (2) The Federal Circuit is the court vested with exclusive review of decisions of the Merit Systems Protection Board. 5 U.S.C. Section 7703(b)(1). (3) In so concluding, we find it unnecessary to address whether a prohibited personnel practice as defined in 5 U.S.C. Section 2302(b) occurred. (4) 5 U.S.C. Section 7701(g) (1982) provides: (1) Except as provided in paragraph (2) of this subsection, the Board, or an administrative law judge or other employee of the Board designated to hear a case, may require payment by the agency involved of reasonable attorney fees incurred by an employee or applicant for employment if the employee or applicant is the prevailing party and the Board, administrative law judge, or other employee (as case may be) determines that payment by the agency is warranted in the interest of justice, including any case in which a prohibited personnel practice was engaged in by the agency or any case in which the agency's action was clearly without merit. (2) If an employee or applicant for employment is the prevailing party and the decision is based on a finding of discrimination prohibited under section 2302(b)(1) of this title, the payment of attorney fees shall be in accordance with the standards prescribed under section 706(k) of the Civil Rights Act of 1964 (42 U.S.C. 2000e-5(k)). (5) The General Counsel and Respondent took the position that once the charge and amended charge were filed with the Authority, substantially all of the legal effort from that point by the Charging Party's counsel appeared duplicative of work done by counsel for the General Counsel. The Charging Party's counsel disagreed vociferously and submitted an affidavit regarding his independent preparation and work. He also detailed his work in the pre-charge phase of the personnel action. (6) Similarly, the Merit Systems Protection Board has held that while the board is without jurisdiction to adjudicate an unfair labor practice allegation based on anti-union animus, evidence of such animus may be relevant and material in establishing a retaliatory motive for an otherwise appealable adverse action taken in alleged reprisal for the exercise of appeal rights in violation of 5 U.S.C. Section 2302(b)(9). Bodinus v. Department of the Treasury, 7 MSPB 385 (1981); Triplett v. Defense Logistics Agency, Docket No. ATO 7528110871 (Jan. 19, 1984). (7) In Allen v. U.S. Postal Service, supra, the Merit Systems Protection Board emphasized that a request for an award of attorney fees should "set forth all considerations relied upon to demonstrate that the statutory requirements for an award have been met, substantiated by affidavits or other documentary evidence wherever there is a question of fact to be resolved (other than those already litigated on the merits). . . . The agency should likewise set forth in its response all considerations relied upon in opposition to an award, including affidavits related to contested facts pertinent to the motion (other than those already adjudicated on the merits) or to the reasonableness of the amount claimed." In Kling v. Department of Justice, 2 MSPB 620 (1980), the Board also stated, "agencies and their representatives should . . . be cognizant to the need to address all pertinent issues, with rebuttal evidence as well as argument, in responding to motions (for attorney fees)."