32:1084(150)CA - - Air Force HQ, 832D Combat Support Group DPCE, Luke AFB, AZ and AFGE Local 1547 - - 1988 FLRAdec CA - - v32 p1084

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[ v32 p1084 ]
32:1084(150)CA
The decision of the Authority follows:


32 FLRA No. 150

UNITED STATES OF AMERICA

BEFORE THE

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

 

DEPARTMENT OF THE AIR FORCE HEADQUARTERS

832D COMBAT SUPPORT GROUP DPCE

LUKE AIR FORCE BASE, ARIZONA

Respondent

and 

AMERICAN FEDERATION OF GOVERNMENT

EMPLOYEES, AFL-CIO, LOCAL 1547

Charging Party

Case No. 8-CA-50167

DECISION AND ORDER REMANDING MOTION FOR ATTORNEY FEE AWARD

I. Statement of the Case

This case is before the Authority on exceptions filed by the Respondent and cross-exceptions filed by the Charging Party (the Union) to the attached Decision and Order of the Administrative Law Judge Granting Application for Payment of Attorneys Fees and Costs. The Judge found that under the Back Pay Act, 5 U.S.C. § 5596, the Respondent was required to pay attorney fees and costs in connection with an arbitration hearing and a previously decided unfair labor practice case in which the Authority ordered compliance with the arbitration award.

In disagreement with the Judge, we conclude that the appropriate authority for an award of attorney fees and costs in connection with the arbitration proceeding was the Arbitrator. Furthermore, we find that an application for attorney fees and costs should have been made to the Arbitrator within a reasonable period of time after the arbitration decision became final and binding. Therefore, the award of attorney fees and costs to the Applicant for the arbitration proceeding must be set aside.

We find an award to the Applicant for 26.5 hours of work he performed and 39.4 hours of paralegal services on the unfair labor practice proceedings and the attorney fee application in this matter is reasonable under the Act. However, we remand this case to the Judge to determine a reasonable hourly rate during the time period the Applicant performed services for the Union in connection with the unfair labor practice proceedings and the attorney fee application. We also remand this case to the Judge to determine which costs sought by the Applicant are attributable to the unfair labor practice proceedings and the application for attorney fees.

II. Background

The facts relevant to this case stem from an arbitration award issued by Arbitrator David Goodman on September 23, 1983. The Arbitrator found that the Respondent violated the parties' collective bargaining agreement when it transferred two employees from the swing shift to the day shift. He ordered the Respondent to return the grievants to the status quo. The Respondent returned the grievants to the swing shift, but took the position that the award did not require the payment of backpay.

The Union then sought clarification of the award from the Arbitrator. The Arbitrator advised the parties that his status quo remedy meant that the employees were to be paid for the premium pay they lost when they were denied access to the swing shift. The Respondent filed exceptions to the Arbitrator's clarification. The Authority held that the Arbitrator did not modify his award, but "essentially advised the parties of the clear intent of the award." American Federation of Government Employees, Local Union 1547 and Department of the Air Force, Luke Air Force Base, Arizona, 15 FLRA 399, 400 (1984). The Authority, therefore, dismissed the Respondent's exceptions as untimely.

The Union filed four unfair labor practice charges alleging that the Respondent failed to comply fully with the Arbitrator's award. The first charge was filed on January 3, 1984, alleging that the Respondent failed to comply fully with the Arbitrator's award. The Union withdrew this charge on or about April 23, 1984, and filed a second, essentially identical charge. The record does not disclose why the first charge was withdrawn. The Regional Director dismissed the second charge because the Respondent's exceptions to the Arbitrator's clarification were pending. The Union appealed this dismissal to the General Counsel on August 1, 1984; the General Counsel affirmed the Regional Director's dismissal on October 31, 1984.

After the Authority's denial of Respondent's exceptions on July 27, 1984, to the Arbitrator's clarification, the Respondent advised the Union that the Authority's decision did not require payment of backpay to the affected employees. On September 10, 1984, the Union filed its third charge. This charge was withdrawn on January 3, 1985, following the Agency's claim that the charge was barred because language in the parties' agreement precluded the filing of a charge prior to the Union giving a written notice of an intent to file a charge and allowing the Agency a chance to respond. Union's Brief in Opposition to Respondent's Exceptions to the Judge's Decision at 3, n.1.

On February 11, 1985, the Union filed its fourth charge. This charge was resolved in Department of the Air Force, Headquarters 832D Combat Support Group, DPCE, Luke Air Force Base, Arizona, 24 FLRA 1021 (1986) (Luke AFB). In Luke AFB, issued on December 31, 1986, the Authority found that the Respondent failed to comply with the arbitration award in violation of section 7116(a)(1) and (8) of the Statute. The Authority ordered the Respondent to comply with the award by making the employees whole for the shift differential premium pay they lost from the time of their removal from the swing shift until they were returned to that shift. Id. at 1028.

On January 27, 1987, the attorney for the Charging Party (the Applicant) filed an Application for an Award of Attorneys' Fees and Costs Pursuant to the Back Pay Act with the Administrative Law Judge. The Application covered services in connection with the arbitration and the unfair labor practice proceedings.

III. Administrative Law Judge's Decision

The Judge found that the Back Pay Act (the Act), 5 U.S.C. § 5596 (1982) is applicable because the application for attorney fees stems from the Respondent's continued refusal to pay the shift differential awarded by the Arbitrator and the Authority's order that Respondent pay backpay as required by the arbitration award. ALJ Decision at 2-3. He noted that the Act authorizes awards of attorney fees against the Government where an appropriate authority has found that: (1) an employee has been affected by an unwarranted or an 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. Citing the implementing regulations in the Code of Federal Regulations, 5 C.F.R. § 550.806(a), the Judge concluded that the Arbitrator and the Authority constituted "appropriate authorities" to make the threshold determinations, noted above, which permit an attorney fee award. Id. at 6.

The Judge determined that an award of attorney fees in connection with the arbitration case was appropriate. He found that the application was timely and that it should not be remanded to the Arbitrator. In reaching this conclusion, the Judge cited several factors. First, he noted that the issue was complicated by the absence of any Authority rules or regulations concerning fee requests pursuant to the Act. He also found that no authority was cited, nor was he aware of any, requiring that a fee request be filed with the Arbitrator prior to the conclusion of litigation designed to enforce the arbitration award. Second, the Judge noted that the Respondent's refusal to comply with the Arbitrator's award required enforcement action through the unfair labor practice procedures. He characterized the proceedings as "all one ball of wax - a continuing effort in various forums to correct an unwarranted personnel practice." Id. at 7. Third, he found that "[i]t is not uncommon for one forum to set fees for work done in a 'lower' forum or at the administrative level, as for example, in filing and pursuing a charge lodged with the General Counsel." Id. Finally, the Judge stated that because of the protracted proceedings, judicial economy would be best served if one person dealt with the attorney fee application.

The Judge noted that the Act requires that attorney fee requests be judged under the standards set forth in 5 U.S.C. § 7701(g)(1). An award "may require payment by the agency involved of reasonable attorney fees incurred by an employee . . . if the employee . . . is the prevailing party and [it is determined] that payment by the agency is warranted in the interest of justice." 5 U.S.C. § 7701(g)(1). Applying these standards, the Judge found that there was no question that fees had been incurred. He further found that the employees and the Union prevailed as the employees "recovered the pay differentials lost as a result of the unfair labor practice." Id. at 7-8.

The Judge also determined that an attorney fee award was warranted in the interest of justice. He first noted that in 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, 24 FLRA 885 (1986) (HUD, San Antonio), the Authority applied the principles fleshed out in Allen v. U.S. Postal Service, 2 MSPR 420, 434-35 (1980) (Allen) and clarified by the Federal Circuit Court of Appeals in subsequent cases. ALJ Decision at 8-9. The Judge stated that HUD, San Antonio indicates that the considerations set forth in Allen "are satisfied by a finding, without further inquiry, that the agency has violated the law. It would, at least, be the rare case where one would look behind the finding." Id. at 9. In this case, the Judge concluded that "it is enough here that Respondent accomplished its change in a manner violative of the contract and that the Arbitrator and Authority found backpay an appropriate part of the remedy, to support the conclusion that an award of fees is in the interest of justice." Id. at 9-10.

The Judge examined the reasonableness of the fee request and awarded attorney fees totalling $7402.71 for the work done on the arbitration and unfair labor practice proceedings. Id. at 14. He determined that a total of $2134.00 was requested for the unfair labor practice proceeding. As part of his award, he included "fees claimed for much of the preliminary work and various charges filed which contributed to the victory here, as well as fees for the stipulation entered into." Id. at 11.

The Judge reviewed the reasonableness of the request for "$582.50 based on the brief filed with me, and $427.00 based on the exceptions filed with FLRA." Id. He concluded that the Applicant's brief in the unfair labor practice proceeding was "largely duplicative of the General Counsel's and did not significantly contribute to the result reached." Id. Citing Donovan v. CSEA Local Union 1000, 784 F.2d 98 (2d Cir. 1986), cert. denied, 107 S. Ct. 74 (1986) (Donovan), the Judge reduced by half the fee requested for the briefing undertaken on behalf of the Charging Party. Thus, the Judge reduced the $1009.50 claimed for work done on the brief and the exceptions filed with FLRA to $504.75. Id. at 11.

Finally, the Judge addressed the Applicant's request for fees calculated at his customary billing rate instead of the rate actually charged to the Union. He reviewed the Merit Systems Protection Board's (MSPB) decision in O'Donnell v. Dept. of Interior, 2 MSPR 445 (1980) (O'Donnell) and the $75.00 hourly rate under the Equal Access to Justice Act (EAJA). The Judge concluded that the Applicant's fee request must be limited to the fee actually charged to the client. ALJ Decision at 13.

In summary, the Judge stated that the "Applicant's affidavits show total legal and paralegal billings of $7558.50." Id. The Judge subtracted $50.00 from that amount due to an error he found in the paralegal billing. In making the subtraction, the Judge incorrectly reached $7808.50 as the result. He reduced that amount by $504.75, as discussed above, and reached a result of $7303.75 for attorney fees.

In addition, the Judge added costs of $98.96. Id. Citing Federal Aviation Administration, Washington Flight Service Station and National Association of Air Traffic Specialists, 27 FLRA 901 (1987) (FAA), the Judge disallowed $185.60 for document reproduction from the Applicant's request for $284.56. Thus, the Judge awarded $7402.71 in attorney fees and costs. Id. at 14.

IV. Exceptions

A. The Respondent's Exceptions

The Respondent contends that the Judge: (1) erred in determining that the Applicant's entitlement to attorney fees arising out of the arbitration was not barred by laches; (2) should not have found that the Applicant was entitled to attorney fees arising out of the unfair labor practice proceedings, since the Applicant's work was duplicative of the General Counsel's; (3) incorrectly found that the interest of justice standard was met in this case; (4) should have held that the Administrative Procedure Act's rule-making procedure should be followed by the Authority to determine attorney fee awards against agencies; (5) made a $300.00 arithmetical error against the Agency in the fee award; and (6) incorrectly concluded that he had authority to determine that the Applicant was entitled to attorney fees arising out of the arbitration proceeding.

B. The Applicant's Reply and Cross-Exceptions

1. The Applicant's Reply

The Applicant contends that the Judge correctly determined that: (1) an attorney fee award for fees arising out of the arbitration was not barred by the doctrine of laches because the elements necessary to sustain a claim of laches are not present; (2) the Applicant was entitled to attorney fees arising out of the unfair labor practice proceedings because his efforts during the unfair labor practice proceedings constituted helpful supplemental services to the General Counsel's efforts; (3) the interest of justice standard was established because the Respondent knew or should have known that it would not prevail on the merits; (4) the amount of fees to be awarded under the Act using the lodestar method has been adopted by the Authority; (5) due to the Judge's error in calculating the attorney fee award, the correct amount to be awarded is $7,102.71; and (6) the Judge was acting within statutory authority when he awarded fees for the arbitration as well as the unfair labor practice proceedings.

2. The Applicant's Cross-Exceptions

The Applicant contends that the Judge erred by: (1) finding that a portion of the Applicant's work was duplicative of the General Counsel's and reducing the fee requested by $504.75 and (2) finding that the Applicant was not entitled to his customary hourly rate or a multiplier based on expertise.

V. Discussion

Initially, we find that the Authority may determine procedures for awarding attorney fees under the Back Pay Act, 5 U.S.C. § 5596. We also conclude that the Judge erred to the extent that he awarded attorney fees and costs to the Applicant for representing the Union in the arbitration of its collective bargaining dispute with the Respondent. Rather, we find that under the Act, 5 U.S.C. § 5596, an application for attorney fees for the arbitration proceedings should have been made to the Arbitrator within a reasonable time after the award became final and binding.

In agreement with the Judge, we find that an award of attorney fees and costs for the unfair labor practice proceedings is warranted in the interest of justice. However, we remand this case to the Judge for a determination of a reasonable hourly rate to be applied to the work performed on these proceedings and the attorney fee application. We also remand for a determination of the costs attributable to the unfair labor practice proceedings and the application for fees.

This decision is organized according to the issues raised in the Respondent's exceptions and the Applicant's cross-exceptions rather than by responding to each exception and cross-exception in the order presented by the parties. Thus, we find that the case presents the following issues: (1) whether the Authority may determine attorney fee awards under the Act in the absence of regulations established pursuant to the Administrative Procedures Act; (2) whether an attorney fee award for the arbitration is appropriate under the Act; (3) whether an attorney fee award for the unfair labor practice proceedings is appropriate under the Act; (4) whether the interest of justice standard has been met in the unfair labor practice proceedings to warrant an attorney fee award; and (5) whether the attorney fees and costs requested are reasonable under the Act.

A. The Authority May Award Attorney Fees under the Back Pay Act

In Exception IV, the Respondent asserts that the Judge should have found that the Administrative Procedure Act's rule-making procedure should be followed by the Authority to determine the award of attorney fees against agencies. The Respondent states that the Authority has no rules covering attorney fee requests pursuant to the Act. The Respondent notes that procedures at 5 C.F.R. §§ 2430.1 to 2430.14, pursuant to the EAJA, 5 U.S.C. § 504 are inapplicable to this matter. Thus, the Respondent argues that the Authority should use its rule-making power to determine procedures for awarding attorney fees under the Act.

We disagree. We find that the requirements for awarding fees are set forth in 5 U.S.C. § 7701(g)(1). Additionally, we have established principles to guide us in reviewing fee requests in United States Department of Justice, Bureau of Prisons, Washington, D.C. and Bureau of Prisons, Federal Correctional Institution, Ray Brook, New York, 32 FLRA 20, 28 (1988), petition for review filed on other grounds sub nom. AFGE, AFL-CIO, Local 3882 v. FLRA, No. 88-1375 (D.C. Cir. May 24, 1988) (Ray Brook). We note that the Authority recently published proposed rules concerning the processing of applications for awards of attorney fees under the Act. See 53 Fed. Reg. 10885 (April 4, 1988). Until final regulations become effective, the Authority will continue to judge fee requests under the standards for awarding attorney fees provided in 5 U.S.C. § 7701(g)(1) and relevant court decisions.

B. An Award of Attorney Fees for the Arbitration Proceeding is Not Appropriate under the Back Pay Act

1. Positions of the Parties

The Respondent argues that the Judge's decision to award attorney fees for the arbitration proceeding is incorrect. First, in Exception I the Respondent states that the Judge should have found that the Applicant was not entitled to attorney fees arising out of the arbitration under the doctrine of laches. Second, the Respondent contends in Exception VI that the Judge has no authority to award attorney fees for the arbitration under 5 C.F.R. §§ 550.801-550.807. Respondent's Exceptions at 13. Finally, the Respondent adds in Exception VI that the Arbitrator's authority to award fees after he issued his decision lapsed under the doctrine of functus officio.(1)

In support of its argument, the Respondent points out that the arbitration award issued on October 23, 1983, and the Applicant filed for attorney fees on January 27, 1987. The Respondent contends that the latest an application could have been filed was at the time the Arbitrator issued his clarification on March 1, 1984. Citing MSPB and court decisions, the Respondent argues that timely appeals are essential for any legal action. In this case, the Respondent contends that the Applicant has not shown good cause for delay.

The Applicant responds that the Respondent misapplies the doctrine of laches. According to the Applicant, none of the three elements which are necessary to sustain a laches claim--delay in the assertion of a known right, an inexcusable delay, and prejudice to the party asserting laches--are present. The Applicant asserts that the Respondent suffered no prejudice because of the timing of the fee request. Furthermore, the Applicant claims that the Union diligently pursued the arbitrated issue through the FLRA proceedings which were necessary to obtain full compliance with the arbitration award. If any delay exists, the Applicant asserts, it is excused by the egregious behavior of the Respondent in failing to comply with the award. Applicant's Reply at 4.

The Applicant also argues that his fee request is timely because there is no statutory, regulatory, or judicial authority which requires that an application for attorney fees be filed when the award became final or the Arbitrator's clarification issued. Furthermore, according to the Applicant, MSPB case precedent is not pertinent because the MSPB has an explicit rule limiting the time for an application for attorney fees and the FLRA does not have a similar rule. See 5 C.F.R. § 1201.37(a)(2). The Applicant asserts that he waited to file his application for fees "until the litigation had reached a final resolution, at which point he could be sure that his client's interests were protected." Applicant's Reply at 5.

The Applicant contends that the Judge has the authority to award fees for the arbitration. According to the Applicant, since the Judge ordered the Respondent to comply with the Arbitrator's award and that decision was affirmed by the Authority, the Judge is "the appropriate authority from which the appeal was taken." 5 C.F.R. § 550.806(a). In addition, rather than incur additional costs by filing a fee application with the Arbitrator, the Applicant asserts that a single request to the Judge after the entire matter was resolved promotes judicial economy. Applicant's Reply at 13.

2. The Arbitrator is the Appropriate Authority for Determination of an Attorney Fee Award for the Arbitration

In disagreement with the Judge and the Applicant, we find that the Arbitrator is the appropriate authority for an award of fees for the arbitration. The second sentence in 5 C.F.R. § 550.806(a) states that a request for attorney fees "may be presented only to the appropriate authority that corrected or directed the correction of the unjustified or unwarranted personnel action." In this case, the Arbitrator found that the Respondent violated the parties' collective bargaining agreement, and he directed that the employees receive the premium pay that they lost when the Respondent denied them access to the swing shift.

The decision to correct the Respondent's action and grant the employees back pay was not made on appeal. Thus, the third sentence in 5 C.F.R. § 550.806(a), which is quoted by the Applicant, is not applicable in this case. The Union's resort to the FLRA unfair labor practice procedures was an effort by the Union to enforce the arbitration award through a separate and independent proceeding rather than an appeal from a decision by an appropriate authority. See, for example, Ray Brook, 32 FLRA 20. Thus, we conclude that the appropriate authority to award attorney fees for the arbitration award is the Arbitrator.

3. The Application for Attorney Fees for the Arbitration is Untimely

Although we find that the Arbitrator should consider a request for attorney fees for the arbitration proceedings, we decline to remand the Applicant's request to the Arbitrator because we find that the request is untimely.

We previously determined that the arbitration award in this case became final and binding on October 23, 1985. Luke AFB, 24 FLRA 1021, 1024. We also recently held that the Act "confers jurisdiction on an arbitrator to consider a request for attorney fees filed within a reasonable time after an arbitrator's award becomes final and binding." Philadelphia Naval Shipyard and Philadelphia Metal Trades Council, 32 FLRA 417 (1988).

In this case, 3 years and 3 months elapsed from the date the arbitration award became final before the Applicant filed a request for fees. The Applicant argues that the application is timely because of the protracted unfair labor practice proceedings which followed the issuance of the arbitration award. However, these proceedings were attempts to enforce the Arbitrator's decision independent from the decision itself. The fact that these efforts were deemed necessary by the Union did not affect the finality of the arbitration award. Therefore, because of the extensive period of time which passed before the request for attorney fees for the arbitration was filed, we find that the Applicant's request for attorney fees and costs for the arbitration is untimely. We reverse the Judge's award to the extent that he awarded the Applicant attorney fees and costs for the arbitration proceeding.

C. An Award of Attorney Fees for the Unfair Labor Practice Proceedings is Warranted under the Back Pay Act

Initially, we note that the Back Pay Act (the Act) specifically states that "a decision relating to an unfair labor practice" is an administrative determination in which an attorney fee award may be appropriate. See 5 U.S.C. § 5596(b)(1). As noted by the Judge, the Act authorizes awards of attorney fees and costs against the Government where an appropriate authority has found that an employee has been affected by an unwarranted or unjustified personnel action which resulted in the withdrawal or reduction in pay, allowances, or differentials and determined that this action be remedied by a backpay award. Id. For the following reasons, we agree with the Judge's finding that the application for attorney fees for the unfair labor practice proceedings meets the threshold requirements in the Act.

The Act defines a "personnel action" to include "the omission or failure to take an action or confer a benefit." See 5 U.S.C. § 5596(b)(3). In this case, the Respondent failed to comply fully with the arbitration award by paying the employees the shift differential they lost when management reassigned them to the day shift. The Union alleged that the Respondent's failure to comply violated the Statute. In Luke AFB, 24 FLRA 1021, 1027, the Judge found, and the Authority affirmed, that the Respondent's failure to pay the backpay in compliance with the arbitration award constituted a violation of section 7116(a)(1) and (8) of the Statute. Thus, the Authority determined that the Respondent failed to take a personnel action as defined in the Act.

The regulations implementing the Act name the Authority as "an entity having authority in the case at hand to correct or direct the correction of an unjustified or unwarranted personnel action." 5 C.F.R. § 550.803. As noted above, in Luke AFB, the Authority ordered the Respondent to comply with the arbitration award by paying the employees the shift differential they lost when they were reassigned to the day shift. Thus, the Authority is the appropriate authority that directed the correction of the unjustified personnel action. Under the implementing regulations a request for attorney fees may be "presented only to the appropriate authority that corrected or directed the correction of the unjustified or unwarranted personnel action." See 5 C.F.R. § 550.806(a). Thus, we find that the Applicant correctly presented a request for attorney fees for the unfair labor practice proceedings to the Authority.

D. Application of Standards for Attorney Fee Awards under the Back Pay Act

Under the Act, attorney fee payments may be required of the agency involved if the requirements set forth in 5 U.S.C. § 7701(g)(1) are met. See 5 U.S.C. § 5596(b)(1)(A)(ii). These requirements are (1) that attorney fees have been incurred; (2) the employee is the prevailing party in the action; (3) an award of attorney fees is warranted in the interest of justice; and (4) the fees are reasonable. In the following sections, we will review the Applicant's request for attorney fees to determine whether the requirements of the Act have been met.

1. Incurrence of Attorney Fees

We note, as the Judge did, that there is no dispute that the Union incurred attorney fees. ALJ Decision at 7. These fees were incurred in the pursuit of four unfair labor practice charges filed between January 3, 1984, and February 11, 1985, to obtain Respondent's compliance with the arbitration award. We conclude, therefore, that the requirement in 5 U.S.C. § 7701(g)(1) that attorney fees have been incurred is met.

2. Prevailing Party

We also find that the requirement in 5 U.S.C. § 7701(g)(1) that the employee has prevailed in the proceeding at issue has been met. The fourth unfair labor practice charge filed by the Union, which was substantially identical to the first three charges, resulted in a finding that the Respondent was obligated to comply with the arbitration award under the Statute and pay the employees backpay. Thus, the General Counsel and the Union were the prevailing parties in that action. Luke AFB, 24 FLRA 1021, 1026. However, the employees are also prevailing parties under the Act as they obtained a backpay award. We have held that the fact that employees did not directly file the successful unfair labor practice charge, does not preclude an award of attorney fees. Ray Brook, 32 FLRA 20, 25-26.

3. Interest of Justice

We agree with the Judge's finding that an award of attorney fees for the unfair labor practice proceedings is in the interest of justice.

a. Positions of the Parties

In Exception III, the Respondent contends that an award of attorney fees in this case is not warranted in the interest of justice. Respondent's Exceptions at 10. Further, the Respondent claims the Judge erroneously refused to apply the interest of justice standard. The standard, according to the Respondent, is explained in the legislative history of 5 U.S.C. § 5596(b) and MSPB precedent, particularly Allen. The Respondent asserts that the circumstances set forth in the legislative history and MSPB cases are not present in this case. Thus, the Respondent asserts that the Arbitrator never found that its action was based on bad faith or that it was clearly without merit. Further, the Respondent asserts that it did not know nor should it have known that it would not prevail on the merits in the unfair labor practice proceedings.

Rather, the Respondent states that it asserted its good faith belief in arbitration that the Activity had the right under the parties' collective bargaining agreement to reassign certain employees from a swing to a day shift. Further, the Respondent asserts that it maintained a good faith belief in its position when it defended against the unfair labor practice charges.

The Applicant responds that the analysis used in MSPB cases does not adequately address the variety of issues the Authority must decide. Applicant's Reply at 9. According to the Applicant, the Respondent fails to recognize that the Authority has formulated its own standard to determine when an award of attorney fees is merited in the interest of justice. Applicant's Reply and Cross-Exceptions at 7. Furthermore, the Applicant argues that the Respondent knew or should have known that it would not prevail in arbitration. Finally, the Applicant contends that the Respondent failed to meet its legal requirement to obey an arbitration award. Applicant's Reply and Cross-Exceptions at 11.

b. Analysis and Conclusion

We conclude that an award of attorney fees and costs for the unfair labor practice proceedings is warranted in the interest of justice. We reach this conclusion because the Agency's continued refusal to comply fully with the arbitration award was an "action clearly without merit" under 5 U.S.C. § 7701(g)(1).

It is well established that an agency is obligated to comply with an arbitration award to which timely exceptions have not been filed. In United States Air Force, Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 15 FLRA 151 (1984), aff'd sub nom. Department of the Air Force v. FLRA, 775 F.2d 727, 735 (6th Cir. 1985), the court upheld the Authority's determination that an agency was barred from challenging the validity of an arbitration award in an unfair labor practice proceeding where the agency did not file timely exceptions to the award. The court stated "[s]ince an award becomes final and must be implemented if the parties fail to file an exception within the required period, the necessary implication is that a party can no longer challenge the award by any means." Thus, the court held that the agency's failure to take the actions required by the arbitration award violated section 7122(b) of the Statute and constituted an unfair labor practice under 5 U.S.C. § 7116(a)(8). Id.

Here, the Agency did not file timely exceptions, and the Arbitrator's award became final and binding on October 23, 1983. However, the Agency failed to comply fully with the award by refusing to pay backpay to the employees who were denied a shift differential when they were reassigned. Based on these facts, in Luke AFB we found that this failure constituted a violation of section 7116(a)(1) and (8) of the Statute. Luke AFB, 24 FLRA 1021, 1026-27.

In these circumstances, we find that the Agency's failure to comply fully with the arbitration award was an action "clearly without merit" under the Act. Therefore, an award of attorney fees for the unfair labor practice proceedings is warranted in the interest of justice. See also Ray Brook, 32 FLRA 20 (awarding attorney fees for proceedings which determined that agency committed an unfair labor practice by refusing to comply with arbitration award).

4. Reasonableness of the Amount of the Award

The final requirement under 5 U.S.C. § 7701(g)(1) is that attorney fee awards under the Act be reasonable. For the reasons which follow, we conclude that the hours of work performed by the Applicant on the unfair labor practice proceedings were reasonably expended. However, we find that the Applicant's request for an award at his customary billing rate is not supported by sufficient evidence. Therefore, we remand this case to the Judge to permit the Applicant to submit additional information concerning his billing rate and enable the Judge to determine a reasonable hourly rate for the Applicant's services consistent with the guidelines in this decision. We also remand to enable the Applicant to designate which costs were incurred for the work performed on the unfair labor practice proceedings.

a. Positions of the Parties

The Respondent argues in Exception II that the Judge erred in awarding the Applicant attorney fees in the unfair labor practice proceeding because his work was duplicative of the General Counsel's effort. In support, the Respondent notes that the Donovan court held that attorney fees must be limited to work done by union counsel which was preliminary to and not duplicative of the General Counsel's representation. In this case, the Respondent states that the General Counsel properly performed its mandate under 5 U.S.C. § 7104(f)(2)(B) to file and prosecute unfair labor practice complaints. Thus, there was no need for the assistance of counsel for the Charging Party.

In Exception V, the Respondent notes that the Judge made a typographical error in assessing attorney fees for the Applicant. This error occurred when one hour of paralegal time at $50.00 per hour was subtracted from $7558.50 and the result was given as $7808.50. The result should have been $7508.50. Respondent's Exceptions at 12.

In his first cross-exception, the Applicant argues that he is due an award for work performed on the unfair labor practice proceedings because his work was supplemental to and not duplicative of the work performed by the General Counsel. Applicant's Reply and Cross-Exceptions at 14-15. According to the Applicant, the Second Circuit Court of Appeals in Donovan held that private attorneys may make important contributions, such as providing vital information, to the Government's case. The Applicant contends that he performed many helpful supplemental services for the General Counsel. He states, for example, that he prepared a factual stipulation for the hearing. Id. at 6.

In his second cross-exception, the Applicant argues that under our prior decisions he is entitled to fees calculated at his customary hourly rate. Id. at 15-16. He also argues that the Authority should award a "multiplier" for the work he performed in order to bring an award within his customary billing rate.

By letter to the Authority dated December 8, 1987, Counsel for the General Counsel declined to file exceptions to the Judge's decision and order.

b. Analysis

The Supreme Court described how a reasonable attorney fee award should be determined in Hensley v. Eckerhart, 461 U.S. 424 (1983) (Hensley). Hensley involved a request for attorney fees under the Civil Rights Attorney's Fees Awards Act of 1976, 42 U.S.C. § 1988. However, the Court stated that "[t]he standards set forth in this opinion are generally applicable in all cases in which Congress has authorized an award of fees to a 'prevailing party.'" Id. at 433, n.7. Thus, we find that the standards in Hensley are applicable to requests for attorney fees under the Back Pay Act.

The Court stated in Hensley that the starting point for an attorney fee award is the "number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate." Id. at 433. This calculation, according to the Court, provides "an objective basis on which to make an initial estimate of the value of a lawyer's services." Id. Thus, an appropriate attorney fee award requires a determination of whether the hours worked were reasonably expended and whether the Applicant's request for an award at a particular hourly rate is reasonable.

The approach described by the Supreme Court for determining the amount of a reasonable attorney fee award frequently is designated as the "lodestar" method. The District of Columbia Circuit Court of Appeals has applied this method in a number of cases. See, for example, Laffey v. Northwest Airlines, Inc., 746 F.2d 4 (D.C. Cir. 1984), cert. den'd, 472 U.S. 1021 (1985) (Laffey); Copeland v. Marshall, 641 F.2d 880 (D.C. Cir. 1980) (en banc) (Copeland). Once the lodestar is established, enhancements to that figure, such as the multiplier requested by the Applicant in this case, may be considered.

In Hensley, the Supreme Court noted the responsibilities of the applicant and the district court in litigation to determine an attorney fee award. According to the Court, the applicant "bears the burden of establishing entitlement to an award and documenting the appropriate hours expended and hourly rates." Hensley, 461 U.S. at 437. The Court reemphasized that the district court has discretion to determine the amount of a fee award. In addition, the Court stated that it is "important" that the district court provide "a concise but clear explanation of its reasons for the fee award." Id.

The Federal Circuit Court of Appeals applied the requirement for a clear explanation of fee awards in Crumbaker v. Merit Systems Protection Bd., 781 F.2d 191 (Fed. Cir. 1986) (Crumbaker). In that case, an MSPB presiding official reduced without explanation the number of hours two attorneys claimed for work performed in an employee's successful appeal of his removal. The Board affirmed, stating that "'the record suggests duplicative effort.'" The applicants challenged MSPB's decision, claiming that it was "arbitrary, capricious, and contrary to law." Id. at 194. The court agreed.

In reaching its decision, the Federal Circuit Court of Appeals applied the Sixth Circuit's standard in Northcross v. Board of Education, 611 F.2d 624, 636-37 (6th Cir. 1979), cert. den'd, 447 U.S. 911 (1980) concerning fee requests. Under that standard, "'if a district court decides to eliminate hours of service adequately documented by the attorneys, it must identify those hours and articulate its reasons for their elimination.'" Crumbaker, 781 F.2d at 195. The Federal Circuit found the Board's remarks "conclusory" and "wholly inadequate under the required standard." Id. On remand, the court directed the Board to examine the record, take evidence if necessary, and make its determination "supported by a concise but clear explanation of its reasons for any reduction of the hours awarded from those claimed." (emphasis in original) Id.

We will now apply the standards and requirements set forth in Hensley and Crumbaker in reviewing the Applicant's fee request.

(1) The Hours Reasonably Expended

In Hensley, the Supreme Court specifically addressed the calculation of hours for which an award is requested. The Court stated that the hours expended are not necessarily those "reasonably expended." Hensley, 461 U.S. at 434. The Court also noted that applicants should make a good faith effort to exclude hours that are "excessive, redundant, or otherwise unnecessary." Id. If such billing judgment is not exercised, the Court instructed the courts to exclude hours not reasonably expended.

We also note our recent decision in Ray Brook, 32 FLRA 20, 27-28, which set forth the principle that requests for attorney fees must be carefully scrutinized to determine whether and to what extent participation by outside counsel contributed to the General Counsel's efforts in prosecuting the case or merely duplicated those efforts.

Applying the precedent discussed above, we will examine the Applicant's statement concerning the hours expended on the unfair labor practice proceedings and the attorney fee application to determine whether these hours were reasonably expended.

(a) The Unfair Labor Practice Charges and the Pre-Hearing Stipulation

The Applicant billed the Union 18.2 hours for work done in connection with unfair labor practice charges. These hours included work performed on the pre-hearing stipulation, which was prepared for the unfair labor practice hearing. In addition, the Applicant requests an award for 4.4 hours of paralegal services on the unfair labor practice charges and the stipulation. We find that an award of fees for the hours Applicant billed for work performed concerning these charges is appropriate.

The Judge awarded "fees claimed for much of the preliminary work and various charges filed which contributed to the victory here as well as fees for the stipulation entered into, as to which there is no contention that applicant failed to make a contribution." ALJ Decision at 11. The Respondent argues that there was no need for the Applicant's assistance in any aspect of the unfair labor practice charges. The Respondent asserts that all the work done from February 13, 1985, to January 5, 1987, which includes all the work performed in connection with the unfair labor practice charges, was "clearly duplicative and unnecessary to the General Counsel's effort." Respondent's Exceptions at 6. Specifically, the Respondent points out that the Applicant did not attend the unfair labor practice hearing. Id.

The Applicant detailed the activities for which he billed in an affidavit submitted to the Authority with his request for attorney fees and costs. The entries show that he and a paralegal conferred with FLRA agents and the Union concerning the unfair labor practice charges, assisted the FLRA in its investigations, and reviewed and responded to the FLRA's disposition of the charges.

We have recognized that an award for an attorney's services in drafting and submitting unfair labor practice charges is appropriate as charges drafted and submitted with counsel's assistance often are of value to the General Counsel in preparing and conducting an investigation. HUD, San Antonio, 24 FLRA 885, 890. In this case, we find that an attorney fee award to the Applicant for work performed in connection with all the Union's unfair labor practice cases is reasonable and appropriate. We previously found that the charges were "essentially identical, alleging that the Respondent refused to fully comply with the Arbitrator's award in violation of the Statute." Luke AFB, 24 FLRA 1021, 1026. In Luke AFB, we concluded that the fourth charge was not time-barred based on the Union's continuing effort, as exhibited by the unfair labor practice charges which it filed, to obtain compliance with the Arbitrator's award. Id. Thus, we found that the four charges constituted a pattern of continuous action to enforce the arbitration award. Furthermore, we note that the Judge stated in this case that the charges "contributed to the victory here." ALJ Decision at 11. Therefore, we find that the time expended on the four unfair labor practice charges is reasonable.

The Applicant asserts that his work, and that of the paralegal, on the pre-hearing stipulation supplemented that of the General Counsel. He argues that he avoided duplication by contacting the representatives of the General Counsel and familiarizing himself with the arguments and factual presentation they planned. Additionally, he asserts that he reviewed and finalized the stipulation with two members of the General Counsel's office. Applicant's Reply and Cross-Exceptions at 14-15. According to the Applicant, the factual stipulation resulted in a "considerably shorter hearing." Id. at 7. The Applicant specifically states that he did not attend the hearing to avoid duplication. Id. at 6, n.1.

Based on the information submitted by the Applicant, we find that his request for attorney fees for work performed on the pre-hearing factual stipulation is reasonable under the Act. Additionally, in disagreement with the Respondent, we note that the Applicant's attendance at the unfair labor practice hearing is not determinative of whether he contributed to the prosecution of the case. Compare HUD, San Antonio, 24 FLRA 885, 890-92 (awarding attorney fees for counsel's participation at the hearing and for investigation of the unfair labor practice).

Thus, in agreement with the Judge, we conclude that the Applicant's request for an award for 18.2 hours for his work and 4.4 hours for the work performed by a paralegal on the unfair labor practice charges and the stipulation is reasonable under the Act.(2)

(b) The Post-Hearing Brief to the Judge

The Applicant's affidavit indicates that he billed 1.8 hours for his work and 2.1 hours for the work performed by a paralegal on a post-hearing brief to the Judge. For the reasons which follow, we find that an attorney fee award for the work performed on this brief is reasonable under the Act.

The Respondent argues that an award of attorney fees for the brief to the Judge and the exceptions to the Judge's decision is unwarranted. Respondent's Exceptions at 6. The Applicant responds that he consulted with the General Counsel's representatives and avoided arguing the same issues in his brief. Instead of duplicating the General Counsel's work, he states that he argued an issue which the General Counsel did not present. As a result of his efforts to avoid duplication, the Applicant states that far less time was spent on the brief than would normally be required. Therefore, the Applicant argues, the amount deducted by the Judge should be restored. Applicant's Reply and Cross-Exceptions at 6-7 and 14-15.

The Judge found that the Applicant's brief was "largely duplicative of the General Counsel's and did not significantly contribute to the result reached." ALJ Decision at 11. Citing Donovan, the Judge stated that counsel for a charging party has "a duty to contact counsel for the General Counsel and familiarize himself with the arguments and fact-presentation the latter intends to make, so as to avoid needless repetition where that can adequately be judged, or assume the risk that he will not be fully compensated." Id. The Judge noted that "while Applicant's briefs did not plow new or different ground, the hours invested were modest." Thus, he reduced the amount claimed by half. Id.

We find that the Judge's comments do not give a clear explanation of his reasons for rejecting half of the hours claimed by the Applicant for work he performed. Thus, his decision does not meet the standard required by Crumbaker that a reduction in hours claimed must include a "concise but clear explanation" of the reasons for the reduction.

We have carefully reviewed the Applicant's 10-page brief and find that it is not primarily duplicative of the brief filed by the General Counsel under Donovan. In that case, the Second Circuit Court of Appeals reviewed a request for attorney fees brought under the Labor Management Reporting and Disclosure Act, 29 U.S.C. §§ 481-483, by a union member who intervened in a successful challenge to union election procedures by the Secretary of Labor. The court approved a fee award for "counsel's work done preliminary to, and not duplicative of, the Secretary's representation." Donovan, 784 F.2d at 105.

In this brief, the Applicant initially gave a brief description of the facts. The first argument in the brief, that the exceptions to the Arbitrator's decision were properly dismissed as untimely, is duplicative of the General Counsel's brief. However, the second, and more lengthy argument, that backpay was owed, is based on a theory different from that used by the General Counsel. The General Counsel argued that Respondent's failure to file timely exceptions to the Arbitrator's award precluded relitigation of the merits of the award. In contrast, the Applicant responded to an earlier Agency argument that where an agency violates a discretionary provision of law, regulation, or a collective bargaining agreement, which does not directly result in the withdrawal of benefits, restoration of benefits may not legally be made under the Act.

Applying the standard set forth in Donovan, we conclude that the brief the Applicant submitted to the Judge is not primarily duplicative of work performed by Counsel for the General Counsel. Furthermore, we note that the amount of time expended is modest. Therefore, we conclude that an award of 1.8 hours for the Applicant's and 2.1 hours for the paralegal's work on the brief is reasonable under the Act.

(c) The Brief in Opposition to Respondent's Exceptions

The Applicant billed 4 hours for his work and 1.1 hours for work performed by a paralegal on the Union's brief in opposition to the Respondent's exceptions to the Judge's decision in the unfair labor practice case. In disagreement with the Judge, we find that the hours expended for this brief are reasonable.

The Judge quoted our comments in Luke AFB on this brief: "the Charging Party argues generally in support of the Judge's rationale, and also argues for alternative dates to support the finding that the charge in this case was timely filed." Luke AFB, 24 FLRA at 1024. In addition, the Judge also noted that the latter argument was unsuccessful. Thus, he reduced the award to the Applicant for this brief by half.

The Applicant does not specifically assert that this brief contributed to the prosecution of the case although he urges us to restore the deduction the Judge made for this brief and the brief submitted to the Judge. Applicant's Reply and Cross-Exceptions at 15.

As we previously discussed, the standard required by Crumbaker is that a clear explanation must be provided if the hours requested by a fee applicant are reduced. We find that the Judge's explanation for reducing the fees requested for this brief is conclusory. Therefore, it does not meet this Crumbaker standard.

Furthermore, we find that the Applicant's work on this brief was not "excessive, redundant, or otherwise unnecessary." Hensley, 461 U.S. at 434. In this regard, we note that the General Counsel did not file an opposition to the Respondent's exceptions. Thus, the Applicant's brief was the only opposition to Respondent's exceptions. Therefore, as the only response to the Respondent's exceptions, we find that the Applicant's brief contributed to the case.

For these reasons, and noting that the hours expended were modest, we find that the Applicant reasonably billed 4 hours for his work and 1.1 hours for work performed by a paralegal on the brief. Thus, an award for these hours is appropriate under the Act.

(d) Work Performed in Connection with the Application for Attorney Fees

The Applicant requests attorney fees and costs for work performed in connection with his application for attorney fees under the Act. Specifically, he requests an award for 4.5 hours for work he performed and 16.7 hours for work done by a paralegal on the fee application. This work included preparation of a supporting memorandum and an affidavit. Additionally, he requests an award for 4.9 hours for work he performed and 25.5 hours for work done by a paralegal on the opposition to Respondent's exceptions and the cross-exceptions. We find that an award for work performed in connection with the application for attorney fees is reasonable under the Act.

The Judge did not comment on the Applicant's request for an award for work performed in connection with the application for attorney fees. However, the Judge's fee award includes payment for hours which the Applicant devoted to preparation of his fee request.

Under the standards set forth in Hensley, we will now review the Applicant's request for fees for work performed on the fee application. The Applicant submitted an application and an affidavit describing how the time billed to the Union was utilized. In the application, which was seven pages in length, the Applicant argued his entitlement to an award of attorney fees and costs under the Act. He stated the applicable standards under section 7701(g)(1) and explained how they had been met. Application at 6-7. In the affidavit, he provided a detailed description of the work performed during the billed hours. After reviewing the Applicant's submissions, we conclude that the 4.5 hours of work performed by the Applicant and the 8.5 hours by the paralegal were a reasonable expenditure of time under the Act to produce the application and affidavit requesting attorney's fees.

Additionally, we find that the request for an award for 4.9 hours for the Applicant and 25.5 hours for the paralegal for work performed on the opposition to Respondent's exceptions and the cross-exceptions is reasonable. We note the Applicant's statement that the cross-exceptions required only 4 hours of preparation time. Applicant's Reply at 17.

In his brief in response to the Respondent's exceptions, the Applicant answered the Respondent's argument concerning the doctrine of laches, provided reasons why his work on the unfair labor practice proceedings was not duplicative of the General Counsel's, urged that an attorney fee award is warranted in the interest of justice, and argued that the Judge could properly award attorney's fees. In some instances, the Applicant argued matters on which there was no Authority precedent.

Based on our examination of the Applicant's brief, we find that the 7.4 hours the Applicant spent on this and the 34 hours of work performed by the paralegal are a reasonable expenditure of time under the Act. See also Donovan, 784 F.2d at 106 (fee application found a necessary part of award of attorney's fees); HUD, San Antonio, 24 FLRA 885, 892 (billing of 2 hours for preparation of papers in support of motion for attorney fees held appropriate).

(2) A Reasonable Hourly Rate

The Applicant requests an award of attorney fees at his customary billing rates rather than the rates he billed to the Union. In his affidavit, dated January 27, 1987, the Applicant stated "[m]y normal rates during the time period of 1984 through July charged to those who could afford to pay my full rates were at that time $100.00 per hour. From July 1984 through the end of 1984 my normal hourly rates were $125.00 per hour and since that date my normal hourly rates have been $150.00 per hour." Applicant's Affidavit at 13. During that time period, the Applicant states that he billed the Union between $65.00 and $85.00 per hour based on the Union's inability to pay the rates that he normally charged. The Applicant also requests that a 50 percent multiplier be applied to the rates he billed the Union based on his expertise in Federal-sector labor relations. Application at 6-7.

Additionally, the Applicant requests payment for paralegal services at the rates he billed the Union. He also requests $50.00 per hour for work performed by a paralegal in connection with the application for attorney fees and costs. Applicant's Affidavit at 13.

The Judge found that it was reasonable to award the Applicant fees at the rates he billed the Union. In reaching this conclusion, the Judge relied on O'Donnell and fee provisions in the EAJA. He noted that in O'Donnell, the MSPB found that the fee agreed upon between the attorney and the client is presumptively the maximum reasonable fee which may be awarded absent clear evidence to the contrary. O'Donnell, 2 MSPR at 455.

In addition, the Judge noted that under the EAJA, there is "a $75.00 hourly rate with the provision that agencies, by regulation, may increase the rate where justified." ALJ Decision at 12. He concluded that the existence of the $75.00 rate under the EAJA "detracts from the prospect of establishing by clear evidence that the amount billed [by the Applicant] was unreasonably low, so as to warrant a departure from the general rule that the amount billed is presumed to be reasonable." Id. at 13. He also noted that attorneys "limited to $75.00 are fully in charge of litigation unreasonably forced upon them by the government." Id. Thus, the Judge concluded that the reasonable hourly rate was the rate actually charged the Union.

The Applicant asserts that the Judge failed to justify with detailed findings his decision not to award the Applicant's customary billing rate. Applicant's Reply and Cross-Exceptions at 17. Citing Naval Air Development Center, Department of the Navy and American Federation of Government Employees, Local 1928, AFL-CIO, 21 FLRA 131, 139 (1986), the Applicant argues that the Authority has approved the lodestar method of setting fees. According to the Applicant, an attorney fee award may be made when "the number of hours reasonably devoted to the case are multiplied by the attorney's customary hourly billing rate." (emphasis in original) Applicant's Reply and Cross-Exceptions at 12.

In addition, the Applicant disagrees with the Judge's reasoning that his customary billing rate is inappropriate because the Union sought relief under the Statute, rather than having litigation forced upon it, and the General Counsel took the lead role in the litigation. Specifically, the Applicant points out that the employees were "wrongfully denied shift differential pay, so the case was 'forced upon' them." Id. at 16. The Applicant states that time was spent in presenting the case to the FLRA Regional Director to ensure that a complaint would issue and the case would be litigated. The Respondent did not dispute the Applicant's assertions that he was entitled to his customary billing rate or his request for a multiplier based on his expertise.

For the reasons which follow, we conclude that where an applicant for a fee award has a prior billing history, the reasonable hourly rate will be counsel's established billing rate. In this case, however, the Applicant asserts that his established billing rates were higher than the rates he billed the Union. The Applicant requests the higher figures, which he asserts were his customary or established billing rates during the relevant time periods. However, we conclude that there is insufficient evidence in the record to overcome the presumption that what the Applicant billed his client constituted his established billing rate. Thus, we remand this case to provide the Applicant an opportunity to submit additional evidence. On remand, the Judge will determine a reasonable hourly rate in accord with this decision.

As we discussed previously, the Supreme Court held that the first step in establishing an attorney fee award is to determine "the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate." Hensley, 461 U.S. at 433. In Laffey, the D.C. Circuit Court of Appeals established that the reasonable hourly rate for a fee award to a private for-profit law firm is the firm's established billing rate. Laffey, 746 F.2d at 24.

In Laffey, the D.C. Circuit Court rejected the district court's decision to award a private firm a prevailing market rate which exceeded any hourly rate the firm had ever charged. While the court stated that the market value of attorneys' services was the key to setting a reasonable hourly rate, the court found that "[f]or private law firms, the prevailing market rate for the firm's services is presumptively found in the firm's customary billing rates." Id. The D.C. Circuit Court of Appeals stated that "[i]n almost every case, the firms' established billing rates will provide fair compensation. The established rates represent the opportunity cost of what the firm turned away in order to take the litigation; they represent the lawyers' own assessment of the value of their time." (emphasis in original) Id.

The D.C. Circuit Court outlined a two-step approach in Laffey. First, "the party seeking compensation should provide evidence of the rates charged by the firm for performing similar work in private representations." Id. Second, "the court may then 'bracket' this rate by establishing that it falls within the rates charged by other firms for similar work in the same community." Id. at 24-25. The D.C. Circuit Court of Appeals also stated that "[s]o long as the firm's own rate falls within the rate brackets, it is the market rate for the purposes of calculating the lodestar." (emphasis in original) Id. at 25. Thus, under this two-step approach the prevailing community rate may act as an external standard to verify the reasonableness of an applicant's customary billing rate. Id. at 16, n.81.

The Supreme Court held in Hensley "that the fee applicant bears the burden of establishing entitlement to an award and documenting the appropriate hours expended and hourly rates." Hensley, 461 U.S. at 437. In this case, the Applicant furnished information in his application and an accompanying affidavit. Concerning his billing rates, he stated in the affidavit that "[m]y normal rates during the time period of 1984 through July charged to those who could afford to pay my full rates were at that time $100.00 per hour. From July 1984 through the end of 1984 my normal hourly rates were $125.00 per hour and since that date my normal hourly rates have been $150.00 per hour." Applicant's Affidavit at 13. The Applicant also stated that the hourly rates charged to the Union ranged from $25.00 to $65.00 less per hour than those "charged by Management Labor Relations attorneys throughout the state of Arizona." Id. at 12.

In addition, the Applicant submitted two awards. In an arbitration decision, dated November 3, 1986, an arbitrator awarded the Applicant $100.00 per hour. During this period of time, the Applicant asserts that his customary billing rate was $150.00 per hour. The second award, under the EAJA, granted the Applicant $75.00 per hour for work performed prior to October 31, 1983. According to his affidavit, the Applicant billed the Union in early 1983 at the rate of $65.00 per hour for work performed on the arbitration case. See American Federation of Government Employees, Local 495, AFL-CIO (Veterans Administration Medical Center, Tucson, Arizona), 22 FLRA 966 (1986) (AFGE, Local 495).

We find that the evidence submitted by the Applicant is insufficient to overcome the presumption, established by the D.C. Circuit Court of Appeals in Laffey, that the rates at which the Applicant billed the Union were, in fact, his customary hourly rates. However, in this case we state for the first time the evidentiary requirements that must be met by applicants who seek attorney fee awards. Therefore, we remand this case to provide the Applicant the opportunity to submit additional evidence concerning his customary billing rates. Compare, HUD, San Antonio, 24 FLRA 885, 892 (requested rate of $90.00 per hour awarded as counsel's customary rate was not unreasonable on its face and did not greatly exceed the rate permitted under EAJA).

To obtain an award at his customary billing rate, the Applicant must furnish precise information concerning his billing rates during the relevant time periods. For example, in Shirley v. OPM, 36 MSPR 179 (1988), an applicant overcame the presumption that the $50.00 per hour fee contained in his agreement with the appellant was a reasonable hourly rate by furnishing five contemporaneous retainer agreements. The MSPB found that these agreements established that his customary billing rate was $100.00 per hour. Other evidence that the Applicant may submit includes awards from courts and arbitrators and fees agreed to through settlements.

On remand, the Judge will determine, consistently with this decision, reasonable hourly rates for the Applicant's services during the relevant time periods. In determining a reasonable hourly rate, the Judge should disregard "abnormally high or low rates which may reflect the particularly attractive or distasteful nature of a matter, extraordinary time pressures, and other extraneous considerations." Laffey, 746 F.2d at 20.

(3) The Multiplier

The Applicant seeks a 50 percent multiplier, that is, an enhancement in the lodestar figure. According to the Applicant, an enhancement in the lodestar is warranted because he is the only attorney in Arizona with expertise in Federal-sector labor relations issues. Applied to the rates at which he billed the Union, this multiplier would result in an attorney fee award of $10,839.00 instead of $7226.00. After evaluating the evidence presented by the Applicant, we conclude that a multiplier is unwarranted.

The skill, experience, and reputation of an attorney are considerations which could warrant an enhancement of the lodestar figure. Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir. 1974). However, the Supreme Court has held that a multiplier is justified only in rare and exceptional circumstances. In Hensley, the Court stated that considerations which might lead to an enhancement of the lodestar "usually are subsumed within the initial calculation of hours reasonably expended at a reasonable hourly rate." Hensley, 461 U.S. 424, 434, n.9. In a subsequent case, the Court denied a 50 percent upward adjustment based, among other factors, on the high quality of representation. The court noted that the quality of representation might justify an upward adjustment but "only in the rare case where the fee applicant offers specific evidence to show that the quality of service rendered was superior to that one reasonably should expect in light of the hourly rates charged and that the success was 'exceptional.'" Blum v. Stenson, 465 U.S. at 899 (1984). See also Laffey, 746 F.2d at 24 ("exceptional circumstances" may be taken into account by adjusting the lodestar); Copeland, 641 F.2d at 890.

In support of his request for a multiplier, the Applicant cited the award he received in AFGE, Local 495 as evidence of his expertise. In that case, the Authority awarded the Applicant $75.00 per hour under the EAJA; the Applicant's experience is not discussed. AFGE, Local 495, 22 FLRA 966, 977-78. Thus, AFGE, Local 495 establishes only that the Applicant has had experience in Federal-sector labor relations matters.

The Applicant also submitted an arbitration award. Davis-Monthan Air Force Base, Tucson, Arizona v. AFGE, AFL-CIO, Local 2924, unpublished decision (Nov. 3, 1986) (Aisenberg). In this award, an arbitrator reviewed a union's request that a multiplier be added to the $85.00 per hour rate at which Applicant billed the union for his work in the arbitration. The arbitrator awarded attorney fees at the rate of $100.00 per hour based on the Applicant's "extensive expertise" which the arbitrator did not find reflected in the hourly rate of $85.00 which he charged the union. Although the award shows that the Applicant received a multiplier based on his expertise in one instance, this example does not justify a multiplier in this case.

We conclude that the Applicant has not shown that exceptional circumstances exist which would justify an adjustment to the lodestar.

(4) The Costs

The Applicant requests that he receive an award to cover the costs and expenses incurred in connection with this matter. Specifically, he requests $38.11 in long distance telephone service, $160.60 for document reproduction, $47.50 for document delivery, and $34.35 for postage. The amount for postage includes the cost of postage by certified mail of Applicant's Reply and Cross-Exceptions and Supplementary Affidavit.

The Judge properly excluded the amount allocated to reproduction costs. The Federal Circuit Court of Appeals has held that photocopying costs are not recoverable as part of an award of attorney fees under 5 U.S.C. § 7701(g)(1). Bennett, 699 F.2d at 1143-45 (attorney fees and "taxable costs," recoverable under 28 U.S.C. § 1920, are distinct concepts and costs are excluded from concept of attorney fees). See also Koch v. Dept. of Commerce, 19 MSPR 219, 221-22 (1984) (photocopying expenses may not be awarded as attorney fees under 5 U.S.C. § 7701(g)(1)).

The remaining expenses are reasonable and necessary out-of-pocket expenses which may be included in an award of attorney fees. However, as we discussed in section B, an award of attorney fees and costs for the arbitration proceedings in this matter is not appropriate. Since the Applicant has not distinguished between the costs attributable to the arbitration and those incurred as part of the unfair labor practice proceedings, we are unable to determine an appropriate award for costs. Therefore, we remand this portion of the award to the Judge to permit additional findings.

c. Conclusion

We find that an award of 33.4 hours for work performed by the Applicant and 49.8 hours for paralegal services is reasonable under the Act. In addition, we remand the case to the Judge for a determination of a reasonable hourly rate for the relevant time periods and the costs attributable to the unfair labor practice proceedings and the attorney fee application.

VI. Decision

In Exception I, the Respondent contends that the Judge erred in determining that the Applicant's entitlement to attorney fees arising out of the arbitration was not barred by laches. We grant this exception, but not for the reasons argued by the Respondent. We conclude that the Applicant is not entitled to attorney fees arising out of the arbitration because a request for fees for an arbitration must be presented to the arbitrator within a reasonable period of time after the arbitrator's award becomes final and binding. In this case, the Applicant's request for fees for the arbitration proceeding should have been submitted to the Arbitrator. However, the request is untimely as well, which precludes remanding the application to the Arbitrator.

In Exception II, the Respondent contends that the Judge should not have found that the Applicant was entitled to attorney fees arising out of the unfair labor practice proceedings, since the Applicant's work was duplicative of the General Counsel's. We deny this exception. We find that an award of attorney fees for 33.4 hours of work performed by the Applicant and 49.8 hours of paralegal services is reasonable under the Act.

In Exception III, the Respondent argues that the Judge incorrectly found that interest of justice standard was met in this case. We deny this exception. We find that the Agency's argument in the unfair labor practice proceeding was clearly without merit because the obligation to comply with a final and binding arbitration award is well established. In these circumstances, an award of attorney fees and costs is warranted in the interest of justice.

In Exception IV, the Respondent argues that the Judge should have held that the Administrative Procedure Act's rule-making procedure should be followed by the Authority to determine attorney fee awards against agencies. Exception IV is denied. The Authority must follow the requirements for awarding attorney fees which are set forth in 5 U.S.C. § 7701(g)(1) and the guidance offered by the courts in awarding attorney fees.

In Exception V, the Respondent states that the Judge made a $300.00 arithmetical error against the Agency in the fee award. We agree; however, this error will be eliminated when the Judge recomputes the attorney fee award after determining a reasonable hourly rate.

In Exception VI, the Respondent contends that the Judge incorrectly concluded that he had authority to determine that the Applicant was entitled to attorney fees arising out of the arbitration proceeding. We agree. We reverse the Judge's decision granting the Applicant attorney fees and costs arising out of the arbitration proceedings.

In Cross-Exception I, the Applicant asserts that the Judge erred by finding that a portion of the Applicant's work was duplicative of the General Counsel's and, therefore, reduced his fee request. We agree and grant Cross-Exception 1. We find that the Applicant's brief to the Judge concerning the unfair labor practice complaint was not primarily duplicative of the General Counsel's work. Furthermore, we find the Applicant reasonably expended the time claimed in preparing a brief in opposition to Respondent's exceptions to the Judge's decision, particularly noting that the General Counsel did not submit a brief. Thus, we find that 5.8 hours of the Applicant's time and 3.2 hours of paralegal time were reasonably expended in preparation of these briefs.

In Cross-Exception II, the Applicant contends that the Judge erred by finding that the Applicant was not entitled to his customary hourly rate or a multiplier based on expertise. We deny this cross-exception to the extent that the Applicant requests a multiplier. However, we remand this case to give the Applicant the opportunity to submit additional evidence to support his rate request. In addition, on remand the Applicant may submit a revised affidavit listing the costs attributable to the unfair labor practice proceedings and the attorney fee application.

VII. Order

The Application for Payment of Attorneys' Fees and Costs is remanded for action consistent with our decision.

Issued, Washington, D.C.,

__________________________
Jerry L