United States, Department of Health and Human Services, Gallup Indian Medical Center, Navajo Area Indian Health Service (Agency) and Laborers' International Union of North America, Local 1376 (Union)

[ v60 p202 ]

60 FLRA NO. 45

UNITED STATES
DEPARTMENT OF HEALTH
AND HUMAN SERVICES
GALLUP INDIAN MEDICAL CENTER
NAVAJO AREA INDIAN HEALTH SERVICE
(Agency)

and

LABORERS' INTERNATIONAL UNION
OF NORTH AMERICA,
LOCAL 1376
(Union)

0-AR-3728

_____

DECISION

September 2, 2004

_____

Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members [n1] 

I.      Statement of the Case

      This matter is before the Authority on exceptions to two awards (the merits award and the remedy award, respectively) of Arbitrator Thomas Angelo filed by the Agency under § 7122 of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Union filed an opposition to the Agency's exceptions.

      For the reasons that follow, we set aside the findings of Fifth Amendment and Whistleblower Protection Act (WPA) [n2]  violations, and the awards of lost retirement benefits, moving expenses, medical expenses and related travel expenses, the cost of a replacement life insurance policy, damages for psychological injuries, and front pay. We remand the awards of backpay and attorney fees to the parties for resubmission to the Arbitrator, absent settlement, and we deny the remaining exceptions.

II.     Background and Arbitrator's Awards

      As relevant here, the grievant, who worked at the Gallup, New Mexico facility, was offered and accepted a transfer to another Indian Health Service facility in Whiteriver, Arizona. Subsequently, when one of the grievant's supervisors revoked his previously-approved leave request, the grievant discussed the matter with Gallup's Chief Executive Officer (the CEO). After the CEO indicated that he would look into the matter, the grievant made several statements to the CEO regarding Gallup's administration, including statements that nurses were asked to work double shifts, that the Intensive Care Unit (ICU) was understaffed, and that two of the grievant's supervisors were instructing nurses not to report the number of double shifts they were assigned. The grievant's supervisors thereafter initiated a telephone call to Whiteriver (the phone call), during which they requested that the grievant's transfer date be expedited. When the Whiteriver officials asked for an explanation for this request, the grievant's supervisors made several negative allegations regarding the grievant. Subsequently, Whiteriver revoked the grievant's transfer offer, but because the grievant's wife had accepted a position at Whiteriver and they had contracted to sell their home in Gallup, the grievant and his wife moved to Whiteriver.

      A grievance was filed, which was unresolved and submitted to arbitration, where the parties stipulated the issues as follows:

Did the Agency violate the Collective Bargaining Agreement by telephone communications with [Whiteriver] regarding the Grievant on or about March 28, 2001? If so, what is the appropriate remedy?
Did the employer, Karen Digman, Randall Zunie and/or Tim Kelley violate the Whistleblower Protection Act by telephone communications with [Whiteriver] regarding the Grievant on or about March 28, 2001? If so, what is the appropriate remedy?
     . . . .
Did the Employer violate the First and/or Fifth Amendments of the United States Constitution by telephone communications with [Whiteriver] regarding the Grievant on or about March 28, 2001? If so, what is the appropriate remedy?

Merits Award at 3. [n3]  [ v60 p203 ]

      With regard to the alleged violation of the First Amendment, the Arbitrator found that some of the grievant's statements in his discussion with the CEO -- specifically, his comments regarding double shifts and ICU understaffing -- involved matters of public concern. In considering whether the grievant's interest in making the statements was outweighed by any Agency interests, the Arbitrator found that "it is evident [that] no legitimate Agency interest [is] involved, so no `balance' is possible." Merits Award at 29 n.26. In addition, the Arbitrator found that "the substantial and motivating cause for the retaliation" by the supervisors "was the protected speech of the Grievant[.]" Id. at 31. The Arbitrator concluded that the phone call violated the grievant's First Amendment rights.

      With regard to the alleged violation of the Fifth Amendment, the Arbitrator found that the Agency violated the grievant's liberty interest. [n4]  In this connection, the Arbitrator determined that the nature of the supervisors' allegations regarding the grievant "severely impacted the Grievant's ability to continue in his chosen profession." Id. at 35.

      With regard to the alleged violation of the WPA, the Arbitrator found that "[t]he `personnel action' at issue here is the withdrawal of the transfer opportunity to Whiteriver." Id. at 37. The Arbitrator found it "clear" that "none of the Gallup managers had authority to `take' the action," but he found that "they did have the ability to produce precisely that result" by making negative comments to Whiteriver officials regarding the grievant. Id. The Arbitrator also found that the grievant made protected disclosures, that the CEO was not already aware of the information disclosed, and that the phone call was made in order to retaliate against the disclosures. The Arbitrator concluded that the Agency violated the WPA.

      The Arbitrator also determined that, because the parties' agreement incorporated external law and the Agency violated the Constitution and the WPA, the Agency committed a "derivative violation" of the parties' agreement. Id. at 46.

      With regard to remedies, the Arbitrator found that "the unrebutted evidence confirms the Grievant was so emotionally damaged by the Agency's actions that he has been unable to perform nursing duties, and there is no expectation he can do so in the future." Id. The Arbitrator noted that, "[s]ubsequent to the hearing in this matter[,] the Agency initiated adverse action proceedings against the Grievant" but found "[t]hat action is not before me . . ., and the merits are not addressed herein." Id. at 4 n.1. The Arbitrator directed the parties to attempt to reach agreement as to appropriate remedies, and he retained jurisdiction to resolve the remedial issues if the parties were unable to reach agreement. Subsequently, the Agency filed exceptions to the merits award, which the Authority dismissed without prejudice as interlocutory. See United States Dep't of HHS, Navajo Area Indian Health Serv., 58 FLRA 356 (2003).

      When the parties were unable to reach agreement on remedies, the Arbitrator issued the remedy award. In this award, the Arbitrator awarded the grievant backpay through the date of the remedy award. In addition, because the grievant and his wife moved to Whiteriver but did not receive the moving expenses that Whiteriver would have paid the grievant if the transfer offer had not been revoked, the Arbitrator awarded the grievant compensation for moving expenses the Arbitrator found had been incurred by the grievant. Further, based on his finding that the Agency's actions caused the grievant psychological damage that caused the grievant to seek ongoing medical attention and rendered the grievant unable to work in the future, the Arbitrator awarded damages for psychological injuries, front pay to the date the grievant would have retired (assuming a retirement age of 62), "[t]ravel expenses for medical care[,]" and compensation for "increased medical costs, related travel, and prescription expenses (present and future)." Remedy Award at 10. The Arbitrator also awarded the grievant "lost retirement benefits[,]" without further elaboration. Id. Moreover, the Arbitrator found that, as a result of not being able to work in the future, "[t]he grievant lost the benefit of an Agency life insurance policy[,]" and that "[t]he grievant has provided evidence that over the next 11 years the cost of replacing this policy will be $14,586.00." Id. at 11. Accordingly, the Arbitrator awarded the grievant "the replacement cost of this benefit." Id. Finally, the Arbitrator awarded attorney fees. In total, the Arbitrator awarded $2,020,109.36 plus "appropriate interest." Id.

III.     Positions of the Parties

A.     Agency Exceptions

      The Agency claims that, during the hearing and in the merits award, the Arbitrator made several comments that were critical of Agency employees and witnesses. The Agency also claims that the Arbitrator engaged in a "lengthy discussion of a non-issue" -- specifically, [ v60 p204 ] whether the allegations made during the phone call were true -- and that this discussion "is indicative of the Arbitrator's overall unfairness and bias against the Agency[.]" Exceptions at 3.

      In addition, the Agency claims that the Arbitrator was precluded from awarding a remedy based on Whiteriver's revocation of the offer. In this connection, the Agency contends that the issues before the Arbitrator involved whether the action of Gallup officials was improper, not whether the revocation of the transfer offer by Whiteriver was improper.

      The Agency also contends that several of the Arbitrator's findings are not based on fact. In this regard, the Agency states that there is no evidence that: the grievant's statements to the CEO were a substantial reason for the phone call; the Gallup officials involved in the call were aware of the grievant's statements to the CEO; those statements were a substantial reason for the revocation of the transfer offer; the CEO was not already aware of the information disclosed; and/or the phone call foreclosed the grievant's freedom to take advantage of other employment opportunities. The Agency also states that the Arbitrator's finding that the grievant's statements pertained to a matter of public concern, and the remedies awarded, are not based on fact.

      With regard to the finding of a First Amendment violation, the Agency argues that the grievant's speech did not involve matters of public concern, as the grievant was motivated by personal interests in making the statements. The Agency also argues that there is no evidence that the statements were a substantial reason for the phone call or for the revocation of the transfer offer.

      Further, the Agency argues that the merits award is contrary to the Fifth Amendment. In this connection, the Agency contends that there is no evidence that the Agency's action foreclosed the grievant's freedom to take advantage of other employment opportunities. In fact, according to the Agency, the grievant was later offered another assignment to Whiteriver, which he refused.

      Moreover, the Agency contends that the merits award is contrary to the WPA. According to the Agency, the Arbitrator found that the personnel action at issue was the revocation of the transfer offer by Whiteriver -- an action that the Gallup officials did not take, have authority to take, or have authority to recommend. The Agency also claims that the phone call does not constitute a personnel action under 5 U.S.C. § 2302(a)(2)(A). In addition, the Agency contends that the Arbitrator erred in finding that the grievant made protected disclosures because, according to the Agency: the disclosures were not sufficiently specific, (citing Herman v. DOJ, 193 F.3d 1375 (Fed. Cir. 1999)); the finding of protected disclosures is based solely on the Arbitrator's personal experience in the health care industry, not on record evidence; the grievant did not have the requisite "reasonable belief" that the disclosed matters posed a danger, as he testified that he was not concerned about the matters; and there was no "disclosure," as the CEO and others were already aware of the information provided by the grievant.

      The Agency also challenges the remedy award. As an initial matter, the Agency claims that the Arbitrator summarily awarded damages without any legal analysis and with only a cursory review of the record and briefs. See Exceptions at 4. Further, the Agency claims that there is no waiver of sovereign immunity for any of the money damages awarded. According to the Agency, there are no remedies available for the constitutional violations other than those that are provided by the Back Pay Act and the WPA, and neither the Back Pay Act nor the WPA authorizes the remedies in this case.

      The Agency provides additional arguments with regard to specific remedies. With regard to backpay, the Agency claims that neither the phone call nor the revocation of the transfer offer directly resulted in the withdrawal or reduction of the grievant's pay, allowances, or differentials because the grievant remained in his position at Gallup after the revocation of the transfer offer and did not lose any pay. With regard to lost retirement benefits, the Agency asserts that the Arbitrator failed to specify what is included in that remedy. With regard to moving expenses, the Agency claims that the grievant did not submit sufficient evidence to establish that he actually incurred these expenses, and in any event, this remedy is not recoverable against Gallup because Whiteriver -- not Gallup -- would have paid the grievant's moving expenses if the grievant had been transferred. With regard to medical expenses and related travel expenses, the Agency claims that the grievant has not submitted sufficient documentation to support these remedies, and the award of "related travel" expenses appears to be duplicative of the award of "travel expenses [for] medical care." Id. at 21. Finally, with regard to attorney fees, the Agency claims that, until the Authority resolves the exceptions, "the level of success obtained by the Union in this matter is unknown." Id. at 22.

B.     Union Opposition

      As a preliminary matter, the Union contends that the Authority lacks jurisdiction to resolve the exceptions [ v60 p205 ] because the awards relate to the grievant's removal. In this connection, the Union contends that the phone call caused the grievant psychological damage that rendered him unable to work, and the Agency subsequently removed the grievant based on this inability to work.

      As for the Agency's suggestion that the Arbitrator was biased, the Union claims that the Agency did not raise its claims at the hearing, and in any event, the Arbitrator was not biased. In addition, the Union contends that the Arbitrator did not exceed his authority because none of the damages were awarded against Whiteriver. The Union also contends that the awards are not based on nonfacts.

      With regard to the First Amendment, the Union claims that the grievant's speech involved matters of public concern and was not motivated by the grievant's purely private concerns. The Union also claims that the Agency has not shown that it would have taken the same action in the absence of the protected speech.

      With regard to the Fifth Amendment, the Union claims that the Agency raises its arguments for the first time on exceptions, and thus, those arguments should not be considered, pursuant to § 2429.5 of the Authority's Regulations. [n5]  The Union also claims that the Agency made false statements of a stigmatizing nature that caused a change in the grievant's status under law. In addition, the Union contends that although the Agency asserts that the grievant was offered another assignment to Whiteriver after the grievance was filed, the Authority cannot consider evidence of this offer under Federal Rule of Evidence 408 because it was made in the context of settlement discussions. [n6] 

      The Union also contends that the merits award is not contrary to the WPA. The Union claims that the Gallup officials took personnel actions in blacklisting the grievant, causing the Whiteriver managers to revoke the transfer offer, and subsequently removing him. Further, the Union claims that it was "within the course and scope of [the Gallup supervisors'] duties to give employment references and be involved in the transfer process of employees reporting to them." Opp'n at 28. The Union also claims that one supervisor was preparing a termination of the grievant at the time of the phone call and had discussed transferring him to a remote location, and these acts were "threatened" personnel actions under the Act. Id. The Union disputes the Agency's arguments concerning whether the grievant's disclosures were protected. Moreover, the Union contends that the disclosures were a contributing factor to the personnel actions, and that the Agency has not shown by clear and convincing evidence that it would have taken the same actions in the absence of the protected disclosures.

      In addition, the Union claims that the remedy award is not deficient. In this connection, the Union asserts that, at arbitration, the Agency did not introduce evidence disputing the requested amount of damages, and the Arbitrator's determination regarding the appropriate amount of damages is a factual finding that should not be set aside by the Authority. The Union also asserts that all of the remedies awarded are permissible under the First and Fifth Amendments, the Back Pay Act, and/or the WPA.

      The Union makes additional arguments with regard to specific remedies. With regard to the award of lost retirement benefits, the Union claims that this award includes "$38,579 for [Thrift Savings Plan (TSP)] employer match at retirement age 62" and $287,076 for "[t]he present value of his lost annual retirement benefits if he retires at age 62[,]" and that these contributions are "consequential damages" and "related benefits" within the meaning of the WPA. Id. at 42. With regard to front pay, the Union argues that the WPA provides for backpay and reinstatement, and that other statutes providing for reinstatement and backpay -- such as Title VII of the Civil Rights Act of 1964 (Title VII), the National Labor Relations Act, and the Age Discrimination in Employment Act -- permit awards of front pay. With regard to attorney fees, the Union claims that the full award is proper because the grievant prevailed on at least some of his claims and because the claims are factually and legally related to one another.

IV.     Preliminary Matter: The Authority has jurisdiction.

      Section 7122(a) of the Statute provides that a party may not file exceptions with the Authority to an arbitration award that "relates to" a matter described in § 7121(f). Matters described in § 7121(f) include serious adverse actions, such as removals, that are covered under 5 U.S.C. § 4303 or § 7512 and are appealable to [ v60 p206 ] the Merit Systems Protection Board (MSPB) and reviewable by the United States Court of Appeals for the Federal Circuit. See United States Dep't of the Treasury, United States Customs Serv., 57 FLRA 805, 806 (2002) (Dep't of the Treasury). The Authority will determine that an award relates to a matter in § 7121(f) when it resolves, or is "inextricably intertwined" with, a § 4303 or § 7512 matter. Id. In making that determination, the Authority does not look to the outcome of the award but, instead, looks to whether the claim advanced in arbitration is one that would be reviewed by the MSPB and, on appeal, by the Federal Circuit. See id. In making this determination, the Authority has also looked to whether the issue resolved by the arbitrator is an "essential element" of a claim regarding the § 4303 or § 7512 matter. See Dep't of the Treasury, 57 FLRA at 806-07 (issue of whether grievant had completed probationary period at time of removal was inextricably intertwined with removal because it was "essential element" of grievant's claim regarding removal).

      The stipulated issues before the Arbitrator did not involve the grievant's removal; those stipulated issues involved only whether the Agency violated the parties' agreement and various provisions of law when its employees engaged in "telephone communications with the Whiteriver Service Unit[,]" and the appropriate remedies for the alleged violations. Merits Award at 3. The Arbitrator expressly acknowledged that the removal proceedings initiated against the grievant after the hearing were "not before [him] . . . and the merits are not addressed herein." Id. at 4 n.1. In fact, the Union asserts that it has filed a separate grievance concerning the removal. See Opp'n at 8 n 4.

      Further, although the MSPB might generally resolve WPA claims similar to that raised by the Union, there is no claim that the grievant's whistleblowing was the basis for the grievant's ultimate removal. Instead, it is undisputed that the grievant is no longer able to perform his duties, and the Agency argues that this was the reason for the grievant's removal. Thus, there is no basis for concluding that the WPA allegation is an essential element of a claim that the grievant was improperly removed. Cf. Dep't of Treasury, 57 FLRA at 806. Moreover, the Arbitrator's finding that remedies were appropriate was based not on the removal itself, but on his finding that the phone call resulted in psychological damage to the grievant that rendered him unable to work. In these circumstances, we conclude that the awards do not relate to a removal, and that we have jurisdiction to resolve the exceptions.

V.     Analysis and Conclusions

A.     The Arbitrator was not biased.

      The Agency claims that, during the hearing and in the merits award, the Arbitrator made several comments that were critical of Agency employees and witnesses, and that the Arbitrator's "lengthy discussion of a non-issue" -- specifically, whether the allegations made during the phone call were true -- "is indicative of the Arbitrator's overall unfairness and bias against the Agency." Exceptions at 3. We construe these claims as asserting that the Arbitrator was biased.

      To establish that an award is deficient because of bias, a party must establish that the award was procured by improper means, that there was partiality or corruption on the part of the arbitrator, or that the arbitrator engaged in misconduct that prejudiced the rights of the party. See United States Dep't of Veterans Affairs, Med. Ctr., N. Chi., Ill., 52 FLRA 387, 398 (1996). The fact that an arbitrator makes statements that are critical of a party or indicate concern with a party's conduct do not demonstrate that the arbitrator was biased. See AFGE, Local 4044, Council of Prisons Local 33, 57 FLRA 98, 100 (2001) (AFGE, Local 4044). In addition, the Authority has held that a party must raise its claim regarding arbitral bias for the first time at the hearing, if it could be raised there, or the Authority will not entertain the claim in the absence of special circumstances. See United States Dep't of the Navy, Naval Surface Warfare Ctr., Indian Head Div., Indian Head, Md., 57 FLRA 417, 422 (2001) (citing 5 C.F.R. § 2429.5).

      With regard to the Arbitrator's comments during the hearing, the Agency did not object to those statements or raise a bias claim when those statements were made, although it could have done so. See Tr. at 220; 260; 375. Further, the Agency does not argue that special circumstances warrant the Authority entertaining its bias claim regarding those statements. Accordingly, we decline to consider the Agency's claim regarding the Arbitrator's statements during the hearing.

      The Agency's remaining claims challenge the discussion contained in the merits award itself. As the Agency could not have challenged these statements prior to the issuance of that award, we address those claims here.

      With regard to the claim that the Arbitrator made statements critical of Agency witnesses and employees, the fact that the Arbitrator was critical does not establish that he was biased. See AFGE, Local 4044, 57 FLRA at 100. With regard to the Arbitrator's discussion of the veracity of the allegations made by the Gallup officials [ v60 p207 ] during the phone call, the Agency provides no basis for concluding that the Arbitrator exhibited bias by resolving the merits of those allegations. In these circumstances, the Agency does not demonstrate that the merits award was procured by improper means or that the Arbitrator was impartial or corrupt or engaged in misconduct that prejudiced the Agency's rights. Therefore, the Agency does not demonstrate that the Arbitrator was biased.

      For the foregoing reasons, we deny the exception.

B.     The awards are not based on nonfacts.

      The Agency asserts that the Arbitrator made several findings that were not based on fact. We construe this assertion as a claim that the awards are based on nonfacts. To establish that an award is based on a nonfact, the appealing party must show that a central fact underlying the award is clearly erroneous, but for which the arbitrator would have reached a different result. See United States Dep't of the Air Force, Lowry Air Force Base, Denver, Colo., 48 FLRA 589, 593 (1993) (Lowry AFB). The Authority will not find an award deficient on the basis of the arbitrator's determination on any factual matter that the parties disputed at arbitration. Id. at 594 (citing Nat'l Post Office Mailhandlers v. United States Postal Serv., 751 F.2d 834, 843 (6th Cir. 1985)).

      With regard to the Agency's claim that there is no evidence that the grievant's statements to the CEO were a substantial reason for the phone call -- or that the Gallup officials were aware of those statements -- those matters were disputed before the Arbitrator. See Merits Award at 20-25 (motivation for the call); id. at 30 n.27 (a Gallup official's awareness of grievant's statements to the CEO). Thus, the Agency's claim does not demonstrate that the awards are based on nonfacts.

      With regard to the Agency's claim that there is no evidence that the grievant's statements to the CEO were a substantial reason for the transfer offer being revoked, as noted above, the Agency has not demonstrated that the Arbitrator's finding that the grievant's statements were a substantial reason for the phone call is a nonfact. In addition, the Agency provides no reason, other than the phone call, for revocation of the transfer offer. Accordingly, the Agency provides no basis for finding that the Arbitrator clearly erred in finding that the grievant's statements to the CEO were a substantial reason for the revocation of the transfer offer.

      The Agency also provides no basis for finding that the Arbitrator clearly erred in determining that the CEO was not already aware of the information disclosed by the grievant. In this connection, the Arbitrator's determination is supported by the grievant's testimony that, during his conversation with the CEO, the CEO indicated that he was unaware that nurses were regularly working double shifts. See Tr. at 60.

      Further, according to the Agency, the Arbitrator's finding that the grievant's statements involved a matter of public concern is not based on fact. This claim does not challenge a factual finding, because a conclusion that a statement involves a matter of public concern is a legal, not factual, conclusion. See Gardetto v. Mason, 100 F.3d 803, 811 (10th Cir. 1996) (Gardetto). Because the claim does not challenge a factual finding, it does not demonstrate that the awards are based on a nonfact.

      For the foregoing reasons, the awards are not based on nonfacts, and we deny the exception.

C.     Contrary to Law Exceptions

      The Agency claims that the awards are contrary to law in various respects. The Authority reviews questions of law de novo. See NTEU, Chapter 24, 50 FLRA 330, 332 (1995) (citing United States Customs Serv. v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994)). In applying a standard of de novo review, the Authority determines whether the arbitrator's legal conclusions are consistent with the applicable standard of law. See NFFE, Local 1437, 53 FLRA 1703, 1710 (1998). In making that determination, the Authority defers to the arbitrator's underlying factual findings. See id.

1.     The finding of a First Amendment violation is not deficient. [n7] 

      In addressing claims alleging that a government employer violated the First Amendment by retaliating against an employee based on the employee's protected speech, courts first consider whether the speech can be fairly characterized as constituting speech on a matter of public concern. See Gardetto, 100 F.3d at 811. If it can, then courts balance the employee's interest, as a citizen, in commenting on matters of public concern against the [ v60 p208 ] interest of the government, as an employer, in promoting the efficiency of the public service it performs through its employees. See id. (citing Pickering v. Bd. of Educ., 391 U.S. 563, 568 (1968)). If the balance tips in favor of the employee, then the employee must prove that the protected speech was a substantial or motivating factor in the detrimental employment decision. See Gardetto, 100 F.3d at 811. If the employee makes that showing, then the burden shifts to the government to show by a preponderance of the evidence that it would have reached the same decision in the absence of the protected speech. See id.

a.     Matters of public concern

      In determining whether speech involves matters of public concern, courts consider the content, form and context of the speech. See Ulrich v. City & County of S.F., 308 F.3d 968, 978 (9th Cir. 2002) (Ulrich). With regard to content, speech regarding a government-run hospital's ability to care adequately for patients may involve a matter of public concern. See id. at 978-79. Whether it does so depends on the form and context of the speech. See id. at 979.

      In considering the form and context of speech, courts consider such factors as the employee's motivation and the audience chosen for the speech. See id. at 979. In this connection, courts consider whether the employee spoke in order to bring wrongdoing to light, rather than to further some purely private concern. See id. at 978. While speech addressing patient care involves a matter of public concern where the speech is intended to bring to light deficiencies regarding that care, such speech does not involve a matter of public concern where it is made solely in the context of the speaker's attempt to protect his or her job. Compare Rodgers v. Banks, 344 F.3d 587, 600-01 (6th Cir. 2003) (Rodgers) (found to address matter of public concern), and Scheiner v. N.Y. City Health & Hosps., 152 F.Supp.2d 487, 495-96 (S.D.N.Y. 2001) (same); with Zaky v. United States Veterans Admin., 793 F.3d 832, 839 (7th Cir. 1986) (Zaky), cert. denied, 479 U.S. 937 (found not to address matter of public concern). In addition, the fact that the speech is made internally rather than to the public or the press does not demonstrate that it is not a matter of public concern. See Givhan v. W. Line Consol. Sch. Dist., 439 U.S. 410, 415-16 (1979) (Givhan); Price v. Brittain, 874 F.2d 252, 258 (5th Cir. 1989) (Price).

      The Arbitrator found that the grievant's speech concerned matters that related to patient safety, specifically, nurses working double shifts and staffing only one nurse in the ICU. Thus, the content of the statements supports a conclusion that they involve matters of public concern. See Rodgers, 344 F.3d at 600-01.

      With regard to the form and context of the statements, the Arbitrator found that the grievant raised the statements concerning ICU "because [he] felt it was a dangerous situation." Merits Award at 9 n.10. The Agency provides no basis for finding that the grievant made the statements in order to further some purely private concern, rather than to bring wrongdoing to light. In this connection, while the Agency asserts that the grievant met with the CEO in order to resolve a leave issue, this assertion concerns the reason for the meeting, not whether the statements at issue -- which did not concern leave -- were intended to further a purely private concern of the grievant. In fact, the Arbitrator found that the grievant made the statements only after the CEO indicated that he would "look into" the leave matter, which supports a conclusion that the grievant was not making the statements in order to convince the CEO to look into the leave matter. Id. at 9. Because the Agency provides no basis for finding that the grievant's motivation in making the statements was to further a purely private concern, this case is distinguishable from Zaky, 793 F.2d 832, where the employee's statements were made in the context of the grievant defending against complaints lodged against him. Finally, the fact that the grievant made the disclosure internally, rather than to the press or the public at large, provides no basis for finding that the speech did not involve a matter of public concern. See Givhan, 439 U.S. at 415-16; Price, 874 F.2d at 258.

      For the foregoing reasons, we conclude that the speech involved matters of public concern.

b.     Balancing the interests

      The second step of the First Amendment analysis is to balance the employee's interest, as a citizen, in commenting on matters of public concern against the interest of the government, as an employer, in promoting the efficiency of the public service it performs through its employees. See Gardetto, 100 F.3d at 811. Under this analysis, the employer cannot rely on purely speculative allegations that the speech caused or will cause disruption to the employer's effective operations. See id. at 815-16. Instead, the employer must demonstrate real, not imagined, disruption. See McKinley v. City of Eloy, 705 F.2d 1110, 1115 (9th Cir. 1983) (McKinley).

      The Arbitrator found that "it is evident there is no legitimate Agency interest involved, so no `balance' is [ v60 p209 ] possible." Merits Award at 29 n.26. The Agency does not argue that this finding is deficient or provide any basis for concluding that the grievant's speech caused or will cause disruption to the Agency's effective operations. Accordingly, the Agency has not demonstrated that its interests outweigh the grievant's interests here.

c.     Substantial or motivating factor

      Under the third step of the First Amendment analysis, the employee must prove that the protected speech was a substantial or motivating factor in the detrimental employment decision. See Gardetto, 100 F.3d at 811. It is not necessary for the employee to demonstrate that the employer's decision was based solely on the protected speech; it is sufficient if it is a substantial factor in that decision. See McKinley, 705 F.2d at 1115. The question of the employer's motivation is a factual question. See Ulrich, 308 F.3d at 979; Gardetto, 100 F.3d at 811.

      The Arbitrator found that the grievant's protected speech was "the motivating factor for the call to Whiteriver." Merits Award at 29. Because this is a factual question, the Authority defers to the Arbitrator's finding on this matter. [n8]  See NFFE, Local 1437, 53 FLRA at 1710. Accordingly, we conclude that the grievant's protected speech was a substantial or motivating factor in the phone call. The Agency does not argue, and we find no basis for concluding, that the phone call does not constitute a "detrimental employment decision" under the First Amendment analysis -- particularly given that the phone call resulted in the revocation of the transfer offer. [n9] 

d.     Same decision absent the protected speech

      Under the fourth step of the First Amendment analysis, the employer has the opportunity to demonstrate that it would have taken the same action in the absence of the protected speech. See Gardetto, 100 F.3d at 811. This inquiry also involves a factual determination. See Rodgers, 344 F.3d at 602-03; Gardetto, 100 F.3d at 811.

      The Agency does not allege that the officials would have made the phone call in the absence of the protected disclosures. Accordingly, the Agency has not demonstrated that it would have made the phone call in the absence of the protected speech.

      For the foregoing reasons, we conclude that the Arbitrator's finding of a First Amendment violation is not contrary to law, and we deny the exception.

2.     The finding of a Fifth Amendment violation is deficient.

      The Union claims that the Authority should not consider the Agency's arguments regarding the Fifth Amendment because those arguments were not raised before the Arbitrator. Under 5 C.F.R. § 2429.5, the Authority will not consider any argument that could have been, but was not, raised before the arbitrator. See United States Dep't of the Navy, Supervisor of Shipbuilding Conversion & Repair, Pascagoula, Miss., 57 FLRA 744, 745 (2002). However, where an issue arises from the issuance of the award and could not have been presented to the arbitrator, it is not precluded by § 2429.5. See id.

      The Agency made arguments regarding a Fifth Amendment property interest -- but not a liberty interest -- before the Arbitrator. See Exceptions, Tab 3 at 12-13. However, in the circumstances of this case, there is no basis for concluding that the Agency should have known that the Union was making a liberty argument, separate from a property argument. In this connection, the stipulated issues involved "the Fifth Amendment[]," without further specification. Merits Award at 3. Further, the Union's opening statement at the hearing did not specify whether the vested interest was a liberty or property interest. See Tr. at 23. Although the Union's post-hearing brief included separate arguments regarding liberty and property, see Opp'n, Attachments, Tab P at 24-27, that brief was submitted after the Agency submitted its post-hearing brief. Compare id. at 1 (Union brief dated March 29, 2002); with Exceptions, Attachments, Tab 3 at 1 (Agency brief dated March 28, 2002). Moreover, the Arbitrator stated during the hearing that he would not permit reply briefs, so the Agency had no opportunity to respond to the Union's liberty argument. See Tr. at 675. In these circumstances, we address the merits of the Agency's Fifth Amendment exception.

      With regard to the merits of the exception, in order to establish a liberty interest that is protected by the due process clause, an individual must show "both a tangible loss and a `charge [made by the government] against him that might seriously damage his standing and associations in his community.'" Roth v. Veterans Admin. of [ v60 p210 ] the Gov't of United States, 856 F.2d 1401, 1410 (9th Cir. 1988) (Roth) (citation omitted). Mere defamation or stigma is not sufficient. See Taylor v. Resolution Trust Corp., 56 F.3d 1497, 1506 (D.C. Cir. 1995). Instead, the individual must demonstrate that the charge made by the government "might result in `permanent exclusion from, or protracted interruption of, gainful employment within [his or her] trade or profession." Roth, 856 F.2d at 1411 (citation omitted).

      The phone call was made to officials at only one facility, Whiteriver. There is no claim that the allegations made during that call were also made to other facilities either inside or outside the Agency. In these circumstances, there is no basis for concluding that the phone call both resulted in "a tangible loss" and involved a charge against the grievant "that might seriously damage his standing and associations in his community" and "result in `permanent exclusion from, or protracted interruption of, gainful employment within [his] trade or profession.'" Roth, 856 F.2d at 1410, 1411 (citations omitted). Thus, we conclude that the Arbitrator erred in finding that the Agency violated the grievant's Fifth Amendment liberty interest. [n10] 

3.     The finding of a WPA violation is deficient.

      As noted, we review questions of law de novo. See NTEU, Chapter 24, 50 FLRA at 332. In order to determine that an employee has suffered a reprisal for whistleblowing in violation of § 2302(b)(8), a threshold issue is whether the action in dispute was a "personnel action" within the meaning of § 2302(a)(2)(A). See, e.g., Simmons v. Dep't of Agric., 80 MSPR 380, 384 (1998). In terms of the WPA, the parties stipulated the issue to be whether the Gallup Indian Medical Center and/or any of the three named Gallup officials violated the WPA "by telephone communications" with Whiteriver regarding the grievant. Merits award at 3. The Agency argues that the Arbitrator's imposition of liability is deficient because the telephone call placed by the Gallup officials did not constitute a personnel action. We agree.

      For purposes of prohibited personnel practices, including reprisals against whistleblowers, § 2302(a)(2)(A) defines "personnel action" to mean:

(i) an appointment;
(ii) a promotion;
(iii) an action under chapter 75 of this title or other disciplinary or corrective action;
(iv) a detail, transfer, or reassignment;
(v) a reinstatement;
(vi) a restoration;
(vii) a reemployment;
(viii) a performance evaluation under chapter 43 of this title;
(ix) a decision concerning pay, benefits, or awards, or concerning education or training if the education or training may reasonably be expected to lead to an appointment, promotion, performance evaluation, or other action described in this subparagraph;
(x) a decision to order psychiatric testing or examination; and
(xi) any other significant change in duties, responsibilities, or working conditions[. [n11] ]

      The United States Court of Appeals for the Federal Circuit has stated that the WPA "specifically distinguishes between those who recommend personnel actions and those who take or fail to take personnel actions." Frederick v. Dep't of Justice, 73 F.3d 349, 354 (Fed. Cir. 1996) (emphasis in original) (Frederick). The court noted that "[i]n terms of being within the scope of the WPA, the act applies to those who have authority to recommend a personnel action." Id. (emphasis in original). However, the court emphasized that "the WPA under § 2302(b)(8) only attaches liability to those who take or fail to take a personnel action." Id. (emphasis in original).

      In this case, it is clear that the Gallup Indian Medical Center and its officials did not revoke the grievant's transfer. Consequently, Gallup disputes the Arbitrator's holding it liable and accountable for a prohibited personnel practice on the basis of actions by its officials that do not constitute personnel actions. [ v60 p211 ]

      In our view, de novo review of the Agency's exception requires us to determine, as the court was required to determine in Frederick, the merits of the actions of the Gallup Indian Medical Center and whether Gallup and its officials "should be liable for a prohibited personnel practice." Id. Because it is clear that the telephone call by the Gallup officials did not constitute a personnel action, within the meaning of § 2302(a)(2)(A), the Arbitrator's imposition of liability on the Gallup Indian Medical Center for a prohibited personnel practice is deficient as contrary to the WPA. [n12] 

4.     The Remedy Award

      The Agency claims that there is no statute waiving sovereign immunity for the remedies imposed. As a general matter, the United States is immune from liability for money damages under the doctrine of sovereign immunity. See INS, L.A. Dist., L.A., Cal., 52 FLRA 103, 104 (1996) (INS L.A.). In certain circumstances, as discussed further below, the United States Constitution alone supports a cause of action for damages against Federal actors. See Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971) (Bivens). In addition, sovereign immunity can be waived by statute if the waiver is unequivocally expressed in the statutory text. See INS L.A., 52 FLRA at 104-05. Accordingly, it is necessary to determine whether the First Amendment and/or the Back Pay Act support an award of the various monetary remedies here. [n13] 

a.     The First Amendment

      The Supreme Court has held that where the claims alleging violations of constitutional rights "arise out of an employment relationship that is governed by comprehensive procedural and substantive provisions giving meaningful remedies against the United States, . . . it would be inappropriate for [the Court] to supplement that regulatory scheme with a new judicial remedy." Bush v. Lucas, 462 U.S. 367, 368 (1983). In this connection, the Supreme Court cited the Back Pay Act and the Civil Service Reform Act (CSRA) as examples of legislation that have contributed to the "comprehensive scheme" that provides Federal employees with meaningful remedies. Id. at 385. Accordingly, a Bivens action is unavailable to employees covered by the Back Pay Act and the CSRA. Cf. Feit v. Ward, 886 F.2d 848, 855 (7th Cir. 1989) (addressing the CSRA).

      As the grievant is covered by the Back Pay Act and the CSRA, Bivens damages are not available to the grievant. Instead, any damages awarded must be authorized by the comprehensive statutory scheme created by Congress for Federal employees. Accordingly, we conclude that the First Amendment, by itself, does not provide a basis for the remedies awarded in this case.

b.     The Back Pay Act

      The Back Pay Act constitutes a waiver of sovereign immunity. See United States Dep't of HHS, 54 FLRA 1210, 1217 (1998) (Dep't of HHS). Accordingly, we address whether the various remedies awarded are authorized by the Back Pay Act. See id.

i.     Backpay

      Under the Back Pay Act, an award of backpay is authorized only when an arbitrator finds that: (1) the aggrieved employee was affected by an unjustified or unwarranted personnel action; and (2) the personnel action has resulted in the withdrawal or reduction of the grievant's pay, allowances or differentials. See Dep't of HHS, 54 FLRA at 1219.

      With regard to the first requirement, a violation of an "applicable law" constitutes an unjustified or unwarranted personnel action. 5 C.F.R. § 550.803. Accord United States Dep't of the Navy, Naval Undersea Warfare Ctr., Newport, R.I., 56 FLRA 477, 479 (2000) (citations omitted). There is no assertion, and no other basis for concluding, that the First Amendment is not an applicable law under the Back Pay Act. Cf. Pan. Canal Comm'n, 33 FLRA 15, 21-22 (1988), clarified, 34 FLRA 740 (1990) (First Amendment constitutes an "applicable law" within meaning of § 7106(a)(2) of the Statute). Accordingly, the Arbitrator's finding of a First Amendment violation satisfies the first requirement of the Back Pay Act.

      With regard to the second requirement, the Agency argues that the grievant did not suffer a loss of pay as a result of the Agency's violation. Under regulations implementing the Back Pay Act, an employee may receive backpay if the employee is unavailable to work due to an incapacitating illness that was caused by, or related to, the personnel action. See United States Dep't of Educ., 50 FLRA 34, 37 (1994) (citing 5 C.F.R. § 550.805(c)). [n14]  United States Dep't of Educ. involved a grievant who had a "stress-induced condition precipitated by the [a]gency's action." 50 FLRA at 35.

      The Arbitrator found that "the unrebutted evidence confirms the Grievant was so emotionally damaged by the Agency's actions that he has been unable to perform nursing duties[.]" Merits Award at 46. Thus, the Arbitrator found that the grievant's inability to work was caused by the violation of the First Amendment. As a [ v60 p212 ] result, the second requirement of the Back Pay Act is satisfied here.

      However, the Arbitrator did not explain the amount of backpay that he awarded, and the record does not reflect how he determined that amount. In this connection, as the Agency argues, it is unclear whether the Arbitrator deducted any amounts already paid to the grievant, such as compensation for sick and annual leave he used during the time period at issue, or any other deductions required by law. See Veterans Admin. & Veterans Admin. Med. Ctr., Northport, N.Y., 25 FLRA 523, 527 (1987) (citation omitted), aff'd sub nom., AFGE v. FLRA, 843 F.2d 550 (D.C. Cir. 1988) (backpay award must deduct, among other things, "annual leave payments[]"). See also 5 C.F.R. § 550.805 (explaining how backpay computations must be made). Accordingly, we are unable to determine whether the amount of backpay awarded is permitted under the Back Pay Act, and we remand the backpay award to the parties for resubmission to the Arbitrator, absent settlement, for a clarification as to the appropriate amount of backpay.

ii.     Lost retirement benefits

      The Office of Personnel Management's (OPM's) definition of the "pay, allowances, and differentials" recoverable under the Back Pay Act states, in pertinent part, that "[a]gency and employee contributions to a retirement investment fund, such as the Thrift Savings Plan, are not covered." 5 C.F.R. § 550.803. [n15]  Applying this regulation, we conclude that the Back Pay Act does not authorize the award of lost retirement benefits, and we set aside that portion of the award.

iii.     Moving expenses, medical expenses and related travel expenses, the cost of a replacement life insurance policy, and damages for psychological injuries

      As set forth above, OPM defines "pay, allowances, and differentials" as "pay, leave, and other monetary employment benefits to which an employee is entitled by statute or regulation and which are payable by the employing agency to an employee during periods of Federal employment." 5 C.F.R. § 550.803. Thus, in order to constitute "pay, allowances, and differentials" recoverable under the Back Pay Act, a remedy must not only constitute "pay, leave, [or] other monetary employment benefits[,]" but also must be something to which the employee "is entitled by statute or regulation." Id. In determining whether an employee "is entitled by statute or regulation" to a remedy, the Authority has considered whether a Federal statute or regulation other than the Back Pay Act itself permits payment of that type of remedy. See, e.g., United States Dep't of Transp., FAA, 52 FLRA 46, 50 n.6 (1996) (considering whether 5 U.S.C. §§ 7901 and 8101 et seq. permit payment for medical expenses under the Back Pay Act).

      The WPA is the only "statute" -- and there is no "regulation" -- relied on by the Union to argue an entitlement to moving expenses, medical expenses and related travel expenses, the cost of a replacement life insurance policy, and damages for psychological injuries. As we have set aside the Arbitrator's finding of a WPA violation, there is no basis for finding that these remedies are permitted under the Back Pay Act, and we set them aside.

iv.     Front pay

      Front pay is not authorized by the Back Pay Act. See SSA, Branch Office, E. Liverpool, Ohio, 54 FLRA 142, 149 (1998). Accordingly, as the Back Pay Act does not authorize the award of front pay, we set it aside.

v.     Attorney fees

      With regard to attorney fees, the Agency argues that, if the Authority sets aside any violations found by the Arbitrator, then that would "limit[] the level of success achieved" by the Union. Exceptions at 23. That is, the Agency asserts that the amount of attorney fees awarded would not be reasonable if the Authority sets aside any of the Arbitrator's findings of violations. Because we have set aside the findings of Fifth Amendment and WPA violations, as well as several of the remedies awarded, we address whether the amount of attorney fees awarded by the Arbitrator is reasonable. [n16]  [ v60 p213 ]

      In determining whether the amount of attorney fees is "reasonable" within the meaning of 5 U.S.C. § 7701(g), the extent to which the grievant prevailed in the underlying action is the most critical factor. See NAGE Local R4-6, 54 FLRA at 1599 (citing Farrar v. Hobby, 506 U.S. 103, 114 (1992) (Farrar)). "[I]f `a plaintiff has achieved only partial or limited success, the product of hours reasonably expended on the litigation as a whole times a reasonable hourly rate may be an excessive amount.'" Farrar, 506 U.S. at 114 (quoting Hensley v. Eckerhart, 461 U.S. 424, 436 (1983) (Hensley)). When the grievant has failed to prevail on claims that are distinct from successful claims, the hours devoted to the unsuccessful claims should be excluded when considering the amount of a reasonable fee. See Hensley, 461 U.S. at 440. In cases involving a single successful claim, "[a] reduced fee award is appropriate if the relief, however significant, is limited in comparison to the scope of the litigation as a whole." Hensley, 461 U.S. at 440.

      When exceptions are filed to awards resolving requests for attorney fees under the Back Pay Act, the Authority's role is to ensure that the award complies with applicable statutory standards. See, e.g., United States Dep't of the Navy Headquarters, Naval Dist., Washington, D.C., 48 FLRA 1264, 1266 (1993). As a result of our decision to set aside portions of the merits award and the remedy award, the grievant has achieved only limited success on his claims. The grievant can be awarded only that amount of fees that is reasonable in relation to the results he has ultimately obtained. In this case, the grievant has ultimately prevailed only on the issue of the First Amendment. Consequently, attorney fees cannot be awarded for time spent on matters unrelated to the grievant's success on the First Amendment. See, e.g., Sowa v. Dep't of Veterans Affairs, 96 MSPR 408, 417 (2004) (employee is not entitled to fees for time spent on matters that are unrelated to the claim on which the employee prevailed and for time spent on unsuccessful claims that were advanced to obtain additional relief which was denied).

      The Supreme Court in Hensley advised that "[t]here is no precise rule or formula for making these determinations." 461 U.S. at 436. However, one specified means for determining the reasonable amount of fees is to "attempt to identify specific hours that should be eliminated[.]" Id. In cases where the record permits the proper resolution of the disputed matter, we will modify the award of attorney fees to ensure that an award of fees complies with applicable statutory standards. See, e.g., United States Dep't of Agriculture, Animal and Plant Health Inspection Serv., Plant Protection and Quarantine, 53 FLRA 1688, 1695 (1998). On the basis of the record presented, we have identified specific hours that should be eliminated. From their description, these billed hours relate in their entirety to claims unrelated to the First Amendment and to claims advanced to obtain remedies which we have found deficient. [n17] 

      However, the record does not permit such a determination with respect to the remaining billed hours. In cases where the record does not permit us to determine the proper resolution of the disputed matter, we remand for further proceedings to ensure that the resolution of the request for attorney fees is consistent with law. See id. Accordingly, we remand this matter to the Arbitrator. On remand, and absent settlement, the Arbitrator is to determine how much of the remaining billed hours should be reduced to account for the limited success of the grievant as a result of portions of the merits award and remedy award having been set aside. If, on remand, the Arbitrator is unable to identify a precise number of hours to disallow for unsuccessful claims, then he should reduce the amount of the attorney fee award by an otherwise appropriate amount. See, e.g., Stein, 65 MSPR at 690-91.

      For the foregoing reasons, we remand the award of attorney fees to the parties for resubmission to the Arbitrator, absent settlement.  [n18] 

VI.     Decision

      The findings of Fifth Amendment and WPA violations are set aside, along with the awards of lost retirement benefits, moving expenses, medical expenses and related travel expenses, the cost of a replacement life insurance policy, damages for psychological injuries, and front pay. The awards of backpay and attorney fees are remanded to the parties for resubmission to the Arbitrator, absent settlement. The remaining exceptions are denied. [ v60 p214 ]


Separate opinion of Chairman Cabaniss, dissenting in part:

      I write separately to address the constitutional claims aspect of this case. Consistent with the court's holding in United States Dep't of the Treasury, United States Customs Serv. v. FLRA, 43 F.3d 682 (D.C. Cir. 1994) (Customs Serv.), I question whether a constitutional claim amounts to a grievance under our Statute (§ 7103(a)(9)) because the Constitution does not appear to be a "statute or regulation that can be said to have been issued for the very purpose of affecting the working conditions of employees--not one that merely incidentally does so." Id. at 689. The court also noted that "[t]he term `affecting working conditions,' [found in § 7103(a)(9)(ii)] in turn, must have been thought to impose a real limitation on an arbitrator's authority." Id. If the grievance does not involve a statute or regulation issued for the very purpose of affecting the working conditions of employees, then the grievance is "outside both the arbitrator's and the FLRA's jurisdiction." Id. And, regarding that jurisdictional question, "the Authority may question, sua sponte, whether it has subject matter jurisdiction to consider the merits of a dispute." United States Small Bus. Admin., Wash., D.C., 51 FLRA 413, 423 n.9 (1995) (citing to United States Dep't of the Army, Army Reserve Pers. Ctr., 34 FLRA 319 (1990).

      I would find that constitutional claims raised by a party in an arbitration proceeding, regarding the actions of the other party or the arbitrator involved in that same proceeding, are excluded from the jurisdiction of the Authority under §§ 7103(a)(9) and 7122. That would not, of course, prevent the Authority from reviewing any alleged violation of statute implementing any constitutional rights so long as that statute was issued by Congress for the very purpose of affecting conditions of employment, such as our own implementing legislation. It also would not prevent the Authority from reviewing a constitutional claim against the Authority itself that arose out of an arbitration proceeding before the Authority. Griffith v. FLRA, 842 F.2d 487 (D.C. Cir. 1988). Again, however, I would not find that the Authority has jurisdiction over a constitutional claim such as in the present case, where an employee is raising a constitutional claim against his Federal agency employer.

      Other reasons exist for excluding constitutional claims from the arbitral process. Section 7123 of our Statute is clear in its express conclusion that Congress did not mean to provide judicial review of any Authority decision under § 7122 regarding an arbitration award unless there also is involved an unfair labor practice charge. The courts have noted the "`serious constitutional question'" that is created when judicial review of a constitutional claim is precluded. Thunder Basin Coal Co. v. Reich, 510 U.S. 200, 215 n.20 (1994) (quoting Bowen v. Michigan Academy of Family Physicians, 476 U.S. 667, 681 n.12 (1986)).

      In these two cases, the Supreme Court was concerned over the construction of a statute, falling within the purview of agency's administrative oversight, that would preclude review of a constitutional claim against the agency involving that statute. Here, by contrast, § 7123 of our own Statute is quite specific: no judicial review of a statutory claim against a party, even a constitutional claim, in the absence of an unfair labor practice claim. And, rather than addressing the constitutional aspects of the Authority's actions, the constitutional claim involves a constitutional allegation against one of the parties to the arbitration proceeding. Under these circumstances, I find very little reason to permit such constitutional claims to be adjudicated in an administrative review process that was expressly designed by Congress to preclude judicial review.

      The court in Customs Serv. expressed the same reservation over exposing every conceivable arbitration claim to a process that precluded judicial review.

It seems clear to us that § 7123(a) (the preclusion of judicial review of arbitrated disputes) must be read in light of § 7103(a) (the definition of permissible grounds for grievances). Congress obviously assumed in drafting the former provision that an arbitrator would never have occasion to interpret a law that did not affect working conditions. The term "affecting working conditions," in turn, must have been thought to impose a real limitation on an arbitrator's authority.

Customs Serv., 43 F.3d at 689. For these reasons, then, I would dismiss all aspects of the constitutional claims in this case as not properly being within the jurisdiction of the Authority.

      I also write separately to address the differences between the Merit Systems Protection Board (MSPB) and arbitration. Personnel actions regarding the filling of positions outside the bargaining unit, such as supervisory positions, constitute a permissive subject of bargaining. See, e.g., United States Dep't of Defense, Defense Commissary Agency, Ft. Lee, Va., 56 FLRA 855, 858-59 (2000). Based on this jurisdictional limitation on personnel actions affecting positions outside of the bargaining unit, I question whether a WPA complaint regarding a position outside of the bargaining unit is automatically covered by the complaining employee's negotiated grievance procedure, or whether there must first be a showing that the agency affirmatively agreed to extend the scope of the negotiated grievance procedure to personnel actions regarding the position outside of the bargaining unit. While the MSPB is designed to be a venue for employees to complain about position actions throughout the Federal government, arbitration is not.


File 1: Authority's Decision in 60 FLRA No. 45 and Opinion of Chairman Cabaniss
File 2: Opinion of Member Pope


Footnote # 1 for 60 FLRA No. 45 - Authority's Decision

   Chairman Cabaniss' and Member Pope's separate opinions, dissenting in part, are set forth at the end of this decision.


Footnote # 2 for 60 FLRA No. 45 - Authority's Decision

   The WPA is set out at 5 U.S.C. § 2302(b)(8).


Footnote # 3 for 60 FLRA No. 45 - Authority's Decision

   The stipulated issues also involved a Privacy Act claim, which is not at issue here.


Footnote # 4 for 60 FLRA No. 45 - Authority's Decision

   The Arbitrator also found that the Agency did not violate a property interest of the grievant under the Fifth Amendment. This finding is not disputed here.


Footnote # 5 for 60 FLRA No. 45 - Authority's Decision

   5 C.F.R. § 2429.5 provides, in pertinent part: "The Authority will not consider evidence offered by a party, or any issue, which was not presented in the proceedings before the . . . arbitrator."


Footnote # 6 for 60 FLRA No. 45 - Authority's Decision

   Federal Rule of Evidence 408 provides, in pertinent part:

Evidence of . . . furnishing or offering or promising to furnish . . . a valuable consideration in compromising or attempting to compromise a claim which was disputed as to either validity or amount, is not admissible to prove liability or for invalidity of the claim or its amount. Evidence of conduct or statements made in compromise negotiations is likewise not admissible. . . .

Footnote # 7 for 60 FLRA No. 45 - Authority's Decision

   We note that the parties do not assert here, and did not assert before the Arbitrator, that the Arbitrator lacked jurisdiction over the constitutional claims at issue. In addition, the Authority consistently has resolved exceptions to arbitration awards involving constitutional claims. See, e.g., NAGE, Local R4-75, 57 FLRA 568 (2001) (constitutional right to due process); AFGE, Local 4042, 51 FLRA 1709 (1996) (Member Armendariz writing separately on other grounds) (First Amendment rights). Consistent with this unchallenged precedent, we resolve the Agency's exceptions regarding the First and Fifth Amendments. We note, in this connection, that no precedent indicates that we are precluded from resolving constitutional issues.


Footnote # 8 for 60 FLRA No. 45 - Authority's Decision

   We note that, as discussed previously, the Agency has not demonstrated that this finding is a nonfact.


Footnote # 9 for 60 FLRA No. 45 - Authority's Decision

   Member Armendariz notes that the Agency's failure to specifically argue that the phone call constitutes a "detrimental employment decision" under the First Amendment analysis differentiates this issue from the issue, discussed below, of whether the phone call constitutes a "personnel action" within the meaning of § 2302(a)(2)(A). As to the latter issue, the Agency specifically argued in its exception to the Arbitrator's finding of a WPA violation that the imposition of liability is deficient because the phone call placed by the Gallup officials did not constitute a personnel action.


Footnote # 10 for 60 FLRA No. 45 - Authority's Decision

   Accordingly, we find it unnecessary to address the Agency's claim that the grievant subsequently was offered another position at Whiteriver, or the Union's assertion that, under the Federal Rules of Evidence, the Authority should not consider the Agency's claim.


Footnote # 11 for 60 FLRA No. 45 - Authority's Decision

   In contrast, an unjustified or unwarranted personnel action under the Back Pay Act means:

[A]n act of commission or an act of omission (i.e., failure to take an action or confer a benefit) that an appropriate authority subsequently determines, on the basis of substantive or procedural defects, to have been unjustified or unwarranted under applicable law, Executive order, rule, regulation, or mandatory personnel policy established by an agency or through a collective bargaining agreement.

5 C.F.R. § 550.803.                         


Footnote # 12 for 60 FLRA No. 45 - Authority's Decision

   In view of this decision, we do not address whether the Arbitrator exceeded his authority.


Footnote # 13 for 60 FLRA No. 45 - Authority's Decision

   We do not address whether either the Fifth Amendment or the WPA authorizes these remedies, as we have set aside the Arbitrator's findings of Fifth Amendment and WPA violations.


Footnote # 14 for 60 FLRA No. 45 - Authority's Decision

   5 C.F.R. § 550.805(c) provides:

Except as provided in paragraph (d) of this section, in computing the amount of back pay under section 5596 of title 5, United States Code, and this subpart, an agency may not include--
     (1) Any period during which an employee was not ready, willing, and able to perform his or her duties because of an incapacitating illness or injury; or
     (2) Any period during which an employee was unavailable for the performance of his or her duties for reasons other than those related to, or caused by, the unjustified or unwarranted personnel action.

Footnote # 15 for 60 FLRA No. 45 - Authority's Decision

   OPM's complete definition of "pay, allowances, and differentials" is as follows:

Pay, allowances, and differentials means pay, leave, and other monetary employment benefits to which an employee is entitled by statute or regulation and which are payable by the employing agency to an employee during periods of Federal employment. Agency and employee contributions to a retirement investment fund, such as the Thrift Savings Plan, are not covered. Monetary benefits payable to separated or retired employees based upon a separation from service, such as retirement benefits, severance payments, and lump-sum payments for annual leave, are not covered.

5 C.F.R. § 550.803.


Footnote # 16 for 60 FLRA No. 45 - Authority's Decision

   Because the Agency does not argue that the award of attorney fees fails to satisfy any of the other requirements of the Back Pay Act or 5 U.S.C. § 7701(g), we do not address those requirements. See, e.g., NAGE Local R4-6, 54 FLRA 1594, 1598 (1998).


Footnote # 17 for 60 FLRA No. 45 - Authority's Decision

   The fee award must be reduced by the following hours that are unrelated to the grievant's success (the initials refer to the attorney who provided the services): 2.0 hours by WW on 9/27/01; .90 hours by WW on 11/9/01; 1 hour by DWJ on 2/8/02; 3 hours by WW and 2 hours by DWJ on 2/11/02; 1.8 hours by WW and 2.6 hours by DWJ on 2/12/02; 1.5 hours by WW on 2/25/02; 2.5 hours by WW on 2/28/02; 0.1 hours by WW on 3/5/02; 1 hour by WW on 4/30/02; and 3 hours by WW on 9/03/02.


Footnote # 18 for 60 FLRA No. 45 - Authority's Decision

   Chairman Cabaniss joins Member Armendariz in resolving certain aspects of the fee award based upon the record rather than remanding those aspects as well to the Arbitrator for resolution, solely for the purpose of issuing this decision and