48:1040(113)AR - - HHS, SSA and AFGE, Local 1923 - - 1993 FLRAdec AR - - v48 p1040



[ v48 p1040 ]
48:1040(113)AR
The decision of the Authority follows:


48 FLRA No. 113

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES

SOCIAL SECURITY ADMINISTRATION

(Agency)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 1923

(Union)

0-AR-2430

_____

DECISION

December 7, 1993

_____

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on exceptions to an award of Arbitrator J. Fredrik Ekstrom filed by the Agency under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations. The Union filed an opposition to the Agency's exceptions.

In a supplemental award, the Arbitrator granted the Union's request for attorney fees for legal services provided in connection with the Union's opposition to exceptions filed by the Agency to an award of the Arbitrator and in connection with the Union's application for attorney fees itself. For the following reasons, we will deny the Agency's exceptions to the Arbitrator's supplemental award.

II. Background and Arbitrator's Award

In U.S. Department of Health and Human Services, Social Security Administration and American Federation of Government Employees, Local 1923, 46 FLRA 1126 (1993) (SSA), we considered the Agency's exceptions to the Arbitrator's award resolving the grievance of an employee, who was also a Union official, protesting the fact that she had received a smaller performance award than the awards received by other employees who had the same performance rating. The Arbitrator found that the Agency had violated law, regulation, and the parties' collective bargaining agreement by treating the grievant differently from other employees and ordered the Agency to pay the grievant backpay for the difference between what she received as a performance award and what she should have received under the parties' agreement. The Agency filed exceptions alleging that the award was contrary to law and regulation. We denied the Agency's exceptions in our decision in SSA, which was issued on January 8, 1993.

On January 25, 1993, Irving Becker, the Union's attorney, filed with the Arbitrator an application for attorney fees for services rendered to the Union in connection with the filing of its opposition to the Agency's exceptions in SSA. The Arbitrator accepted the application and issued a supplemental award on March 24, 1993, on the following issue:

Is Mr. Becker entitled to [a]ttorney's fees for his participation in [SSA]?

Award at 2.

The Arbitrator noted that Becker submitted to the Arbitrator "a packet of information related to the payment of attorney[] fees in the matter of back pay awards[,]" and that the information contained "[c]ertification that the [Agency] had been served with this request." Id. at 2-3. The Arbitrator also noted that the Agency requested him "to provide time for the processing of papers in regard to this matter."(1) Id. at 2. Stating that he had "not received a protest from the Agency concerning this argument," the Arbitrator declared that he was not functus officio and ruled that he had jurisdiction to resolve the request for attorney fees. Id.

In his award, the Arbitrator stated that Becker had "laid out" the requirements for an award of attorney fees and had pointed out that attorney fees must be: (1) "incurred for the services of an attorney[;]" (2) "sought by the prevailing party[;]" (3) "warranted 'in the interest of justice[;]'" (4) "reasonable[;]" and (5) "set out in a fully articulated reasoned decision by the arbitrator." Id. at 3-4. The Arbitrator reviewed SSA and noted that the Authority had found that the basis of the Agency's appeal, in particular its reliance on certain regulations, was without merit. The Arbitrator also found that "there were prior decisions on similar matters an analysis of which should have been sufficient to advise the [A]gency not to proceed with an appeal." Id. at 4. Relying on the Authority's denial of the Agency's exceptions and on the fact that there were prior decisions that addressed similar matters, the Arbitrator determined that the granting of attorney fees was in the interest of justice.

The Arbitrator further found that the requirement that fees must be for the services of an attorney had been met. The Arbitrator also found that the rate requested for the computation of attorney fees was sufficiently documented and was "consistent with rates in the Washington. D.C. area for attorneys with Mr. Becker[']s level of expertise." Id. at 5. The Arbitrator also found that the Union was the prevailing party in SSA because the Agency's exceptions in that case were denied by the Authority. Finally, the Arbitrator determined that the rate of $180 per hour for 1992 was appropriate and that the 13.45 hours claimed by the Union's attorney for 1992 "all directly relate to the Union response to the appeal of my decision filed by the Agency." Id. With respect to the hours claimed for 1993, the Arbitrator noted that the time included .25 of an hour for review of the Authority's decision in SSA and 4 hours for preparation of the request for attorney fees. He found that the rate of $190 per hour for 1993 was appropriate. The Arbitrator made the following award:

This arbitrator finds that Mr. Becker is entitled to attorney fees in the matter of the [U]nion presentation before the [Authority] in [SSA] in the amount of $2,468.50 for hours directly related to case preparation and $760.00 for preparation of the application for [a]ttorney[] [f]ees.

Id. at 6.

III. First Exception

A. Positions of the Parties

The Agency contends that the Arbitrator's supplemental award is contrary to 5 C.F.R. § 550.807(b) because the Arbitrator issued the award without providing the Agency an opportunity to respond to Becker's request for attorney fees.(2) The Agency maintains that the Arbitrator did not properly research the relevant law and regulations pertaining to attorney fees and that he relied instead on information obtained in attending labor relations conferences. The Agency asserts that "[h]ad the [A]rbitrator researched the CFR [Code of Federal Regulations], he would have learned that he was required to provide an opportunity for the employing Agency to respond to the request for payment of attorney fees." Exceptions at 3.

The Union disputes the Agency's contention that the Agency was not given an opportunity to respond to the request for attorney fees. The Union asserts that the Agency failed to exercise diligence in filing a timely response and that the Arbitrator noted the Agency's failure to file a response. The Union states that "[a]fter 30 days had elapsed from the date the Agency had been served with a copy of the Application for Attorney's Fees, the Arbitrator contacted the Agency with reference to this case." Opposition at 3. The Union also notes that the Arbitrator stated in his award that the Agency had requested additional time in which to respond. The Union also refers to a letter dated April 28, 1993, from the Arbitrator to the Authority in which the Arbitrator commented on the Agency's action concerning the request for attorney fees.(3)

B. Analysis and Conclusions

We conclude that the Agency has failed to establish that the Arbitrator's supplemental award of attorney fees is deficient on the ground that the award is contrary to 5 C.F.R. § 550.807(b).

In Allen Park Veterans Administration Medical Center and American Federation of Government Employees, Local 933, 34 FLRA 1091 (1990), the Authority stated that, under 5 C.F.R. § 550.807(a) and (b), "before an appropriate authority makes a determination to grant an award of attorney fees, a request for attorney fees will be made and the employing agency will have an opportunity to respond to the request." Id. at 1105 and n.3. The Agency contends that it did not have an opportunity to respond to the fee request as required by the regulation.

We find, based on the record, that the Agency was given an opportunity to respond to the Union attorney's request for attorney fees. The Arbitrator noted in his award that the Union attorney "served the [A]rbitrator and [the Agency]" with a request for attorney fees on January 25, 1993. Award at 2. Further, the Arbitrator listed the documentation submitted by the Union's attorney, which included "[c]ertification that [the Agency] had been served with this request." Id. at 3. The Arbitrator also noted that he "was requested by the Agency to provide time for the processing of papers in regard to this matter." Id. at 2. The record shows that the Arbitrator, noting that he had not received a protest from the Agency concerning his authority, issued his award on the application for attorney fees on March 24, 1993. In view of the fact that the Arbitrator's award was not issued until March 24, 1993, approximately 2 months after the fee request was filed with the Arbitrator and served on the Agency, we find that, consistent with 5 C.F.R. § 550.807(b), the Agency had an opportunity to respond to the fee application before the Arbitrator issued his award. Because the record demonstrates that the Agency had an opportunity to respond to the Union's fee request consistent with 5 C.F.R. § 550.807(b), we reject the Agency's assertion that the Arbitrator's alleged failure to research applicable law and regulation resulted in the Arbitrator improperly denying the Agency an opportunity to respond to the fee application. Consequently, we conclude that the Agency's contention that it was not given an opportunity to respond to the fee application provides no basis for finding the award deficient. Accordingly, we will deny this exception.

IV. Second Exception

A. Positions of the Parties

The Agency contends that the Arbitrator's supplemental award of attorney fees is contrary to the Back Pay Act because the Arbitrator did not award backpay in resolving the merits of the underlying grievance. The Agency asserts that the grievance concerned "a prorated performance award" and performance awards are not covered by the Back Pay Act. Exceptions at 8. The Agency cites Department of the Treasury, United States Customs Service, Region IV, Miami, Florida, 19 FLRA 956 (1985) (Customs Service, Region IV) in support of this exception.

The Union asserts that Customs Service, Region IV does not support the Agency's position that performance awards are not covered by the Back Pay Act. According to the Union, in Customs Service, Region IV the Authority adopted an Administrative Law Judge's conclusion concerning group performance awards and the application of the Back Pay Act only insofar as the Judge's conclusion was limited to the facts of that case. The Union also notes that the cases cited by the Judge in Customs Service, Region IV and cited by the Agency in its exceptions in this case held only that per diem expenses were not covered by the Back Pay Act. The Union asserts that the type of performance award involved in the instant case has been held to constitute pay within the meaning of the Back Pay Act. The Union claims that the Agency has not established that the award violates law.

B. Analysis and Conclusions

The Agency's contention that the supplemental award is contrary to the Back Pay Act is based solely on its claim that, under Customs Service, Region IV, performance awards are not covered by the Back Pay Act. We reject the Agency's contention.

We find that the Agency has misinterpreted Customs Service, Region IV. In our view, Customs Service, Region IV is not applicable to this case. In Customs Service, Region IV, the Authority adopted the Judge's decision that the agency violated the Statute by refusing to detail an employee for a special assignment because of the employee's protected union activity. In adopting the Judge's decision, the Authority limited to the facts of the case the Judge's conclusion that the Back Pay Act did not authorize the payment of backpay to the employee for the group performance award that he would have received had he been given the special assignment. The Authority did not hold in that case that the Back Pay Act does not authorize an appropriate authority to require the payment of a performance award as a remedy for an unjustified or unwarranted personnel action.

To the contrary, we have found in other cases that the Back Pay Act authorizes the payment of performance awards as a remedy for an unjustified or unwarranted personnel action. See, for example, U.S. Department of Health and Human Services, Social Security Administration, Area II, New York Region and American Federation of Government Employees, 48 FLRA 370, 377-79 (1993) (award granting the grievants performance awards where agency had failed to comply with policy implementing the parties' agreement was not contrary to the Back Pay Act); National Association of Government Employees, Local R14-52 and U.S. Department of the Army, Red River Army Depot, Texarkana, Texas, 45 FLRA 830, 833 (1992) (Red River Army Depot) (award ordering that the grievants be paid cash awards to which they may be entitled as the result of the agency's failure to comply with the performance rating plan contained in the parties' agreement constituted an award of backpay under the Back Pay Act). Thus, we find that Customs Service, Region IV does not support the Agency's contention that, as a matter of law, performance awards are not authorized as remedies under the Back Pay Act. We conclude, therefore, that the Agency's exception provides no basis for finding the supplemental award deficient under the Back Pay Act.

V. Third Exception

A. Positions of the Parties

The Agency contends that the Arbitrator's award is contrary to 5 U.S.C. § 7701(g)(1) because no attorney fees were incurred in this case by the employee within the meaning of that section. The Agency claims that Becker did not render legal services for the grievant because Becker did not represent the grievant in the grievance or arbitration proceeding. According to the Agency, Becker's "only involvement in this case was preparing the Union's opposition to the Agency's exceptions and his petition for attorney fees." Exceptions at 9. The Agency claims, therefore, that Becker and the grievant did not have an attorney-client relationship and that the Arbitrator erred in awarding attorney fees to him.

The Union contends that the Agency does not cite any legal authority to support its argument that the grievant did not incur attorney fees. The Union asserts that the Agency is raising "frivolous issues" and is attempting to relitigate issues that it had an opportunity to raise before the Arbitrator but waived. Opposition at 5.

B. Analysis and Conclusions

The prerequisites for an award of attorney fees under 5 U.S.C. § 7701(g)(1), which apply to all cases except those involving allegations of discrimination, are as follows: (1) the employee must be the prevailing party; (2) the award of fees must be warranted in the interest of justice; (3) the amount of the fees must be reasonable; and (4) the fees must have been incurred by the employee. U.S. Department of Defense, Defense Mapping Agency, Hydrographic/Topographic Center, Washington, D.C. and American Federation of Government Employees, Local 3407, 47 FLRA 1187, 1191-92 (1993) (Defense Mapping Agency). The standards established under section 7701(g) further require a fully articulated, reasoned decision setting forth the Arbitrator's specific findings supporting the determination on each pertinent statutory requirement, including the basis on which the reasonableness of the amount was determined when fees are awarded. Id. at 1192.

Attorney fees are incurred by an employee within the meaning of 5 U.S.C. § 7701(g)(1) as long as an attorney-client relationship exists and the attorney has rendered legal services on behalf of the employee. See Naval Air Development Center, Department of the Navy and American Federation of Government Employees, Local 1928, AFL-CIO, 21 FLRA 131 (1986). Moreover, an attorney-client relationship exists even if an attorney has represented an employee only at the appellate stage of the process. See, for example, Gearan v. Department of Health and Human Services, 42 MSPR 313 (1989) (Merit Systems Protection Board (MSPB) held that attorney fees were incurred under 5 U.S.C. § 7701(g)(1) where counsel had rendered legal services on behalf of an employee in an appeal before the Board); Hoska v. United States Department of the Army, 694 F.2d 270 (D.C. Cir. 1982) (court found that language of the Back Pay Act is sufficiently broad to include attorney's fees for services rendered in administrative or judicial appeals undertaken to obtain correction of an unjustified or unwarranted personnel action). Also, an attorney-client relationship exists if an attorney has represented an employee on behalf of a union. See, for example, American Federation of Government Employees, AFL-CIO, Local 3882 v. FLRA, 944 F.2d 922 (D.C. Cir. 1991) (court held that attorney fees are available under Back Pay Act to union attorneys who rendered services on behalf of an employee).

In this case, the Arbitrator found that Becker was employed by the Union and represented the Union in SSA. The Arbitrator also found that the services performed by Becker with respect to SSA "all directly relate[d]" to the Union's opposition on behalf of the grievant to the Agency's exceptions filed in that case and to the preparation of the fee application filed in connection with the matter. Award at 5. In addition, we note that the remedy obtained in SSA was personal to the grievant. In these circumstances, we find that the record demonstrates that an attorney-client relationship existed and that the services rendered by Becker for the Union were on behalf of the grievant. Thus, the fees that resulted from Becker's representation of the Union in the opposition to the Agency's exceptions and in the fee request were incurred by the employee within the meaning of 5 U.S.C. § 7701(g)(1). We conclude, therefore, that the Agency's exception provides no basis for finding the award deficient.

VI. Fourth Exception

A. Positions of the Parties

The Agency argues that the Arbitrator's award of attorney fees under the interest of justice requirements set forth by the Authority is erroneous. Specifically, the Agency argues that an award of attorney fees is not in the interest of justice because the Agency's action in filing exceptions to the Arbitrator's award in SSA was justified. According to the Agency, it reviewed case law and conferred with appropriate offices prior to filing the exceptions. The Agency further states that the Arbitrator misapplied the Statute, Agency regulations, and the parties' agreement in finding that the Agency violated the agreement. The Agency contends that it had a "valid argument" regarding the interpretation of the agreement and, under the Statute and section 2425 of the Authority's Rules and Regulations, was entitled to file exceptions to the award. Exceptions at 11. The Agency argues, therefore, that the act of filing exceptions cannot be "'clearly without merit' or 'wholly unfounded' if it is sanctioned by the Statute." Id.

The Union asserts that the Agency is presenting arguments that it waived by not submitting its position to the Arbitrator prior to the issuance of the award. The Union further states that the Arbitrator specifically stated in the award the reasons for his finding that the interest of justice standard had been met. The Union asserts that the Agency has provided no evidence to support its claim that this requirement was not met.

B. Analysis and Conclusions

An award of fees is warranted in the interest of justice in cases: (1) involving prohibited personnel practices; (2) where agency actions are clearly without merit or wholly unfounded, or where the employee is substantially innocent of charges brought by the agency; (3) when agency actions are taken in bad faith to harass or exert improper pressure on an employee; (4) when gross procedural error by an agency prolonged the proceeding or severely prejudiced the employee; (5) where the agency knew or should have known it would not prevail on the merits when it brought the proceeding; or (6) where there is either a service rendered to the Federal work force or there is a benefit to the public derived from maintaining the action. Overseas Education Association and U.S. Department of Defense Office of Dependents Schools, 45 FLRA 214, 216 (1992) (citing U.S. Department of the Army, Red River Army Depot, Texarkana, Texas and National Association of Government Employees, Local R14-52, 39 FLRA 1215, 1222 (1991) (Army Depot)). An award of fees is warranted in the interest of justice if any of these criteria is met. Army Depot, 39 FLRA at 1222.

In determining whether an employee who prevails in challenging an agency's personnel action is entitled to attorney fees in the interest of justice for any phase of the litigation, an arbitrator must focus his or her examination on the agency's action in the underlying case--that is, the agency's personnel action that was at issue in the arbitrator's initial award. In this connection, the Back Pay Act allows the recovery of attorney fees if the request for fees is "related to the personnel action" giving rise to the dispute. 5 U.S.C. § 5596(b)(1)(A)(ii). In addition, the purpose of the Back Pay Act is to "facilitate the retention[] of counsel by . . . employees who are the victims of wrongful personnel actions. When such actions are successfully overcome, the [G]overnment is required to pay lost income to the employee and to reimburse the costs of litigation." Naekel v. Department of Transportation, Federal Aviation Administration, 845 F.2d 976, 980 (Fed. Cir. 1988). Accordingly, under the attorney fees provision of the Back Pay Act, the Agency's personnel action is central to analyzing a request for fees.

If the arbitrator determines that the agency's conduct in the underlying case meets any of the interest of justice criteria so as to warrant attorney fees, then the arbitrator's determination that fees are warranted in the interest of justice applies to all subsequent phases of litigation involving the case if the grievant prevails in the subsequent litigation. See, for example, 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, 27 (1988) (Authority considered agency's action in the underlying arbitration case as focal point for determining that fees were warranted in the interest of justice in subsequent litigation where the grievant was the prevailing party), reversed in part and remanded as to other matters, American Federation of Government Employees, AFL-CIO, Local 3882 v. FLRA, 944 F.2d 922 (D.C. Cir. 1991) (AFGE v. FLRA), decision on remand as to other matters, 46 FLRA 1002 (1992). See also AFGE v. FLRA, 944 F.2d at 934.

However, if the arbitrator determines that the agency's conduct in the underlying case does not meet any of the interest of justice criteria needed to support an award of attorney fees, then the arbitrator should extend his or her examination beyond an agency's action in the underlying personnel action to determine whether fees are warranted in the interest of justice for subsequent phases of litigation. Specifically, an arbitrator should assess whether the agency's exceptions to the Authority meet any of the interest of justice criteria so as to warrant attorney fees in connection with the adjudication of those exceptions. If the arbitrator determines that the agency's action in filing the exceptions meets any of the interest of justice criteria, the arbitrator could award fees for work related to the union's opposition to the agency's exceptions, notwithstanding the fact that the agency's conduct in the underlying personnel action did not meet any of the interest of justice criteria. This approach is supported by the court's decision in Keely v. MSPB, 760 F.2d 246, 249 (Fed. Cir. 1985) (Keely) (the court held that "notwithstanding the merits of the agency's initial action, under the section 7701(g)(1) 'interest of justice standard' an award of attorney fees is proper" for work related to an appeal before the MSPB "where the agency brings an appeal that is clearly without merit").

Applying the approach set forth above to this case, we find that the Arbitrator erred by failing to examine first the Agency's conduct at issue in the underlying personnel action when he applied the interest of justice criteria. However, consistent with Keely, we find in the circumstances of this case that notwithstanding the Arbitrator's error in this respect, the Arbitrator's determination that fees were warranted in the interest of justice is not deficient because he correctly determined that the Agency's action in filing exceptions to the Arbitrator's initial award was clearly without merit.

Here, the Union seeks attorney fees only for work related to the Union's opposition to the Agency's exceptions of the Arbitrator's initial award where the grievant was the prevailing party. In his award granting fees, the Arbitrator found that the Agency's exceptions to the Arbitrator's initial award were based on assertions that were without merit. The Arbitrator found that there were prior decisions on similar matters, an analysis of which should have been sufficient to advise the Agency not to proceed with the appeal. We agree. Accordingly, we find that the Agency's action in filing exceptions to the Arbitrator's initial award was clearly without merit. See, for example, Defense Mapping Agency, 47 FLRA at 1193-94 (an award of attorney fees was warranted in the interest of justice where the agency's action was clearly without merit). Because the Agency's action in filing exceptions to the Arbitrator's initial award was clearly without merit, we find that the Arbitrator's failure to first examine the Agency's conduct at issue in the underlying personnel action does not render the award deficient. See Keely, 760 F.2d at 249. Additionally, as the Agency's action in filing exceptions was clearly without merit and the Agency has not asserted any other basis for finding the award deficient, we find that the Arbitrator's award of fees for work in connection with the Union's opposition to the Agency's exceptions is not deficient under 5 U.S.C. § 7701(g)(1) or section 2425 of the Authority's Rules and Regulations. We conclude, therefore, that the Agency's exception in this regard provides no basis for finding the award deficient.

VII. Fifth and Sixth Exceptions

A. Positions of the Parties

In its fifth exception, the Agency contends that the fee application did not contain "proof" that the requested fees are reasonable. Exceptions at 12. In particular, the Agency asserts that the fee application did not contain a copy of the fee agreement between the Union and Becker or any documentation which shows the customary billing rate which Becker previously billed the Union for similar work. The Agency states that the only documentation that was submitted by Becker was documentation that purports to establish a prevailing market rate for cases litigated outside of his arrangement with the Union.

The Agency next asserts that the Arbitrator's award of attorney fees is not supported by a fully articulated, reasoned decision setting forth the specific findings justifying that the time and nature of the work performed by Becker was reasonable. Specifically, the Agency asserts that the Arbitrator relied solely on Becker's documentation and did not provide an "independent" basis, as required by Authority precedent, to support his findings that the fees were reasonable. Id. The Agency asserts that the Arbitrator rendered his award without ascertaining the type of fee arrangement that existed between the Union and Becker or ascertaining from other unions the prevailing rate for unions who retain attorneys. The Agency contends that the computation of reasonable attorney fees differs when the award will ultimately be received by a Union or Union attorney rather than a law firm.

The Agency also claims that Becker receives certain amenities from the Union that make his overhead costs different from the other attorneys listed in the fee application as performing comparable work. The Agency asserts, therefore, that Becker's billing rate is not comparable to such attorneys and that the Arbitrator erred in considering traditional overhead costs as a component of Becker's customary billing rate. Lastly, the Agency claims that the fee award is not justified for the amount of work performed by Becker, who performed "no work before the [A]rbitrator[.]" Id. The Agency asserts that had the Arbitrator reviewed Becker's work product he would have determined that the reasonableness of the fee request was not justified.

In its sixth exception, the Agency reiterates its assertion that the award of attorney fees is not supported by a fully articulated reasoned decision because the decision does not contain an independent analysis on the reasonableness of the fees awarded.

The Union contends that there is no merit to the Agency's argument that the fee award is unreasonable. The Union asserts that the record demonstrates that the fee application "contained much documentation[,] including two [a]ffidavits from attorneys attesting to the customary billing rate of the [a]pplicant." Opposition at 6-7. The Union also refers to a specific document included in the fee application that it claims contains information as to Becker's customary billing rates. The document referred to by the Union is included in the Agency's exceptions. See Exceptions, Attachment 2, Exhibit A-5.

The Union further states that the Agency appears to imply that Becker is an employee of the Union. According to the Union, Becker "is a private attorney." Opposition at 7. Moreover, the Union asserts that even if Becker were an employee of the Union, "which he is not," the determination of the appropriate market rate would not be affected. Id. (emphasis in original). In support, the Union cites United States Department of Justice, Bureau of Prisons, Washington, D.C. and Bureau of Prisons, Federal Correctional Institution, Ray Brook, New York, 46 FLRA 1002 (1992) (Bureau of Prisons).

B. Analysis and Conclusions

We find that the Arbitrator's award of attorney fees to Becker for work performed for the Union in connection with the appeal of the Arbitrator's award in SSA and for preparation of the fee application is reasonable and appropriate.

The Authority previously has described the requirements that are necessary for determining the reasonableness of fee awards under the Back Pay Act. See Department of the Air Force Headquarters, 832D Combat Support Group DPCE, Luke Air Force Base, Arizona, 32 FLRA 1084, 1099-1101 (1988) (Luke AFB) (quoting Hensley v. Eckerhart, 461 U.S. 424, 433 (Hensley)). Generally speaking, fee requests must be closely examined to ensure that the number of hours expended were reasonable. U.S. Customs Service, 46 FLRA 1080, 1092 (1992) (Customs). The hours expended multiplied by the rate establish "'an objective basis on which to make an initial estimate of the value of a lawyer's services.'" Luke AFB, 32 FLRA at 1100 (quoting Hensley, 461 U.S. at 433).

Further, in determining the market rate, the Authority has held that where an applicant for a fee award has a prior billing history, the reasonable hourly rate will be counsel's established billing rate. Id. at 1109. "'[T]he rates charged in private representations may afford relevant comparisons in determining the market rate.'" Bureau of Prisons, 46 FLRA at 1008 (quoting Blum v. Stenson, 465 U.S. 886, 895-96 n.11 (1984) (Blum)). To obtain an award at counsel's customary billing rate, the applicant must furnish precise information concerning billing rates during the relevant time periods. Contemporaneous retainer agreements are one source of this information. Other evidence that the applicant may submit includes awards from cour