File 2: Opinion of Member Pope
[ v60 p290 ]
Opinion of Member Carol Waller Pope, dissenting in part:
I agree with the majority that the Agency's essence and exceeded authority exceptions should be dismissed, and that the exceptions claiming that attorney fees were not incurred and that the Arbitrator did not properly apply the interest of justice standard should be denied. However, I do not agree that it is appropriate to reduce the amount of fees based on the record now before the Authority. The majority's decision to do so is unsupported and unsupportable.
In finding the fees unreasonable, the majority purports to follow the multi-part standard set out in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974) (Johnson), and followed by the MSPB and courts. See Majority Opinion at 17-18. However, in doing so, the majority misrepresents the complexity of the case and the scope of the award. In particular, the majority acknowledges, but effectively ignores, the fact that the grievance and the award concerned not only the grievant's suspension, but also allegations that the Agency violated the Statute by failing to provide information and violated the parties' agreement and the Statute by denying the grievant access to the facility. See id. at 2 & 19. That the grievance concerned these various institutional Union interests in addition to the grievant's personal interests demonstrates that, contrary to the majority's assertion, the underlying dispute is far from "straightforward." Id. at 20.
Further, the majority's method of reducing fees -- making random reductions in the number of hours allowed as well as a random percentage reduction without addressing why specific hours are disallowed -- is arbitrary on its face and flatly inconsistent with law. In this regard, the Court of Appeals for the Federal Circuit has held that "[c]onclusory remarks" that hours claimed are excessive are "wholly inadequate" and that "a concise but clear explanation" based on an examination of the record is required. Crumbaker v. MSPB, 781 F.2d 191, 195 (Fed. Cir. 1986) (Crumbaker) (emphasis deleted), modified on other grounds, 827 F.2d 761 (Fed. Cir. 1987), on remand sub nom. Crumbaker v. DOL, 35 MSPR 681 (1988), modified, 40 MSPR 71 (1989). Both the Authority and the Merit Systems Protection Board (MSPB) have adopted this holding. See Dep't of the Air Force, Headquarters, 832d Combat Support Group DPCE, Luke Air Force Base, Ariz., 32 FLRA 1084, 1101 (1988); Harris v. Dep't of Agric., 33 MSPR 237, 240 (1987) (Harris). Further, the MSPB requires that any reduction in hours provide a reason that specific hours are disallowed, see Harris, 33 MSPR at 240, finds general percentage reductions to be arbitrary, see Rose v. Dep't of the Navy, 47 MSPR 5, 14 (1991), and remands cases where specific hour-by-hour findings were not made and the Board is not able to make such findings on the record. [n1] See Casali v. Dep't of the Treasury, 81 MSPR 347 (1999) (Casali). The majority acknowledges the foregoing standards. Then, in short order, the majority ignores them all.
First, the majority provides conclusory reasons, which are not based on the detailed fee request made by counsel, in reducing the hours expended on research, the post-hearing brief and the fee application, even though such reasoning is required. [n2] See Harris, 33 MSPR at 240. In this regard, the fee request provides a detailed explanation of the time expended for particular tasks each day. See Application for Attorney Fee and Expenses, Union Opposition, Attachment A. The majority provides absolutely no reason why it has ignored its responsibility, as decision maker, to "identify hours [ v60 p291 ] eliminated and give a clear explanation for their elimination." Id., 81 MSPR at 354 (citing Crumbaker, 781 F.2d at 195 and Taylor v. Dep't of Justice, 69 MSPR 299, 305 (1996)). While the majority is correct that an arbitrator "is not required to evaluate every billable entry in a voluminous record," that point is irrelevant here, because the request is not voluminous. Majority Opinion at 16 n.8, citing Casali, 81 MSPR at 354.
Second, the majority makes wholesale, percentage reductions in the remaining fees, without connection to the record, see Majority Opinion at 21, even though such reduction is arbitrary on its face. [n3] See Crumbaker, 781 F.2d at 195. It bears noting, in this regard, that wholesale, percentage reductions are the antithesis of the required inquiry in these situations, which focuses on the record in determining the reasonableness of fees. See id.
Third, the majority insists on determining whether the fees are reasonable, even though a remand is required to make that determination. In this regard, when specific hour-by-hour findings are not made and the record does not permit the MSPB to make such findings on the record, the MSPB remands. See Casali, 81 MSPR at 355-56. When an arbitrator fails to make findings necessary to resolve an exception to an award, and the record does not otherwise permit resolution, the Authority also remands the award. See Ala. Ass'n of Civilian Technicians, 56 FLRA 231, 235 (2000) (Chairman Wasserman dissenting as to the result) (ACT) (Authority remanded issue of what amount of fees would be reasonable where the record contained only "conclusory comments" and "no arbitral analysis and no factual findings regarding the reasonableness of the hours billed or the hourly rate charged"). Here, the Arbitrator did not provide, and the record does not otherwise disclose, a specific, hour-by-hour breakdown of the number of hours associated with various activities. As a result, it is necessary to remand the award for clarification as to which hours were associated with which activities and why the number of hours expended on those activities is, or is not, reasonable. [n4] See id.
For the foregoing reasons, I dissent in part.
File 1: Authority's Decision in 60 FLRA No. 62
File 2: Opinion of Member Pope
Footnote # 1 for 60 FLRA No. 62 - Opinion of Member Pope
The court cases cited by the majority, which purportedly support wholesale reductions of fees, do not concern awards of attorney fees under 5 U.S.C. § 7701(g) and are not decisions of the United States Court of Appeals for the Federal Circuit. See Majority Opinion at 18, 21. This is important because, with one exception, the Authority applies precedent from the MSPB, the United States Court of Appeals for the Federal Circuit, and the Supreme Court in resolving disputes over attorney fees under § 7701(g). See AFGE, Local 1547, 58 FLRA 241, 243 (2002). Accord, United States Dep't of Agric., Animal & Plant Health Inspection Serv., Plant Prot. & Quarantine, 53 FLRA 1688, 1691 (1998). The majority asserts that decisions of other federal circuits are "relevant," relying on the one exception noted above. Majority Opinion at 14. However, in that one decision, the Authority declined to follow the Federal Circuit only because the U.S. Court of Appeals for the District of Columbia Circuit ordered the Authority to do so. See United States Dep't of Justice, Bureau of Prisons, Wash., D.C. and Bureau of Prisons, Fed. Corr. Inst., Ray Brook, NY, 46 FLRA 1002, 1007 (1992) (DOJ) (citing AFGE, Local 3882 v. FLRA, 944 F.2d 922 (D.C. Cir. 1991)). Under this precedent, while it is appropriate for the Authority to follow the MSPB's lead and apply the 5th Circuit's multi-part test set out in Johnson, it is not appropriate to rely on other 5th Circuit decisions that apply a rule contrary to that of the MSPB and Federal Circuit. Likewise, the fact that the MSPB and Federal Circuit may "look to" decisions of other Federal courts in applying § 7701(g), Majority Opinion at 15, does not provide a rationale for the Authority to apply precedent that, if "looked to," would be found inconsistent. As such, I would apply Federal Circuit precedent on this point. See United States Dep't of Defense, Def. Distrib. Region E., New Cumberland, Pa., 51 FLRA 155, 160 n.5 (1995) (declining to depart from Authority's "general rule" to follow Federal Circuit precedent).
Footnote # 2 for 60 FLRA No. 62 - Opinion of Member Pope
The majority cites MSPB decisions where similar reductions were made. However, without exception, these decisions predate, and were effectively overruled by, Crumbaker. See, e.g., Emelio v. United States Postal Serv., 27 MSPR 233, 237 (1985).
Footnote # 3 for 60 FLRA No. 62 - Opinion of Member Pope
The majority bases its reductions, in part, on its finding that there is "no evidence of the exercise of billing judgment." Majority Opinion at 21. In so doing, the majority relies on Fifth Circuit decisions that: (1) adopt a specific requirement that attorneys establish in fee petitions that they have adjusted hours downward for "billing judgment"; and (2) impose percentage reductions where the requirement is not met. See Walker v. United States Dep't of Housing & Urban Dev., 99 F.3d 761, 769-70 (5th Cir. 1996). The majority's observation that the MSPB and the Federal Circuit "have not had occasion to apply" the "billing judgment" requirement misses the point that they would have no need to do so because they impose no such requirement.
Footnote # 4 for 60 FLRA No. 62 - Opinion of Member Pope
Although the majority is correct that the remand policy of the MSPB is not "binding" on the Authority, Majority Opinion at 16 n.8, it provides no reason for the Authority to follow a different practice, particularly when doing so requires us to ignore our own similar precedent. See ACT, 56 FLRA at 235.