United States, Department of Defense, Defense Finance and Accounting Service (Agency) and American Federation of Government Employees (Union)

[ v60 p636 ]

60 FLRA No. 126

UNITED STATES
DEPARTMENT OF DEFENSE
DEFENSE FINANCE AND
ACCOUNTING SERVICE
(Agency)

and

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
(Union)

0-AR-3756
(60 FLRA 281 (2004))

_____

ORDER DENYING MOTION
FOR RECONSIDERATION

February 25, 2005

_____

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

I.      Statement of the Case

      This matter is before the Authority on the Union's motion for reconsideration of the Authority's decision in United States Dep't of Def., Def. Fin. and Accounting Serv., 60 FLRA 281 (2004) (Member Pope dissenting, in part). The Agency did not file an opposition to the motion.

      For the reasons that follow, we deny the Union's motion.

II.      Decision in 60 FLRA 281

      As relevant to the Union's motion, in 60 FLRA 281, the Authority determined that the amount of attorney fees awarded by the Arbitrator was deficient because the amount was not reasonable, as required by the Back Pay Act and its adoption of the standards established under 5 U.S.C. § 7701(g). In finding the award of fees deficient, the Authority noted that in resolving exceptions to attorney fees awards under the Back Pay Act, it applies the decisions of the Merit Systems Protection Board (MSPB) and the United States Court of Appeals for the Federal Circuit, which address the standards of § 7701(g), and relevant decisions of other federal courts.

      The Authority explained that in assessing whether the amount of fees is reasonable within the meaning of § 7701(g), the MSPB imposes standards of efficiency and economy of time and has approved percentage reductions of attorney fee awards when the claimed number of hours is excessive or not necessary. The Authority also explained that in assessing efficiency and economy of time, the MSPB applies the factors set forth in Johnson v. Georgia Highway Express, 488 F.2d 714 (5th Cir. 1974), under which a fee award is not reasonable if the amount of time is significantly disproportionate to the amount involved in the case. The Authority further explained that in assessing efficiency and economy of time, the MSPB also takes into account the attorney's expertise in labor and employment law. The Authority acknowledged that in addition, the United States Supreme Court advises that under fee-shifting statutes, attorneys, such as the attorney in this case, who are not being compensated by their clients at market rates, must exercise billing judgment.

      Applying these principles to the Arbitrator's attorney fee award, the Authority concluded that the amount of fees awarded was not reasonable. The Authority determined that the approximately 33 hours spent on research, the 44 hours spent on the post-hearing brief, and the 31 hours spent on the fee application were excessive. The Authority reduced the compensable hours for research to 13 hours, the compensable hours for the post-hearing brief to 18 hours, and the compensable hours for the fee petition to 9 hours.

      In addition, the Authority reduced the remaining total hours because the fee award was significantly disproportionate to the amount involved and to account for the failure to exercise billing judgment. The remaining total hours were reduced by 25% to account for the fee award being significantly disproportionate to the amount involved and by another 25% for the failure to exercise billing judgment. As a result, the amount of fees was reduced from $74,700 to $33,412.50.

      In reducing the total fee award by 25% for the failure to exercise billing judgment, the Authority noted that it, the MSPB, and the Federal Circuit had not had the occasion to apply a remedy for the failure to exercise billing judgment. However, the Authority noted that several federal court cases had applied the remedy of reducing the hours by a percentage, and the Authority determined that such an approach was warranted in this case. [ v60 p637 ]

      In finding the award of fees deficient and reducing the amount of fees, the Authority recognized that in certain circumstances, the MSPB remands to the administrative judge for further adjudication. However, the Authority did not view the MSPB's remand policy to be binding in the review of arbitration awards under § 7122 of the Federal Service Labor-Management Relations Statute and acknowledged the differences between cases before the MSPB and cases before arbitrators and the Authority. More significantly, the Authority concluded that a remand was not necessary in this case because the fully developed record, which allowed the Arbitrator to address the reasonableness of the hours spent based on the time records submitted by the attorney, provided a sufficient basis for the Authority to determine a reasonable amount of fees.

III.      Union's Motion

      The Union contends that extraordinary circumstances are established for reconsideration because of the Authority's "grave departure from prior precedent" and because the Union was not presented with the opportunity to justify the reasonableness of its fee request. Motion at 1. The Union claims that the Authority "set an entirely new course for arbitrator [attorney] fee review, essentially abandoning its reliance [on the] approach in Crumbaker v. MSPB, 781 F.2d 191 (Fed. Cir. 1986), and adopting concepts of the Fifth Circuit utilized in extraordinarily different types of cases, and never before articulated by the FLRA." Id. at 2.

      The Union also contends that extraordinary circumstances are established as a result of "factually erroneous determinations . . . and incorrect assumptions" by the Authority in substituting its judgment for that of the Arbitrator on the reasonableness of the fee based on review of only a partial record. Id. at 5. The Union claims that the Authority's finding that the Union's attorney devoted 33 hours to research "is factually inaccurate." Id. The Union maintains that only 11 hours were devoted to pure research uncombined with the preparation of other documents. The Union asserts that the Authority's determination on the reasonableness of the time spent on research disregards the Arbitrator's specific finding that no evidence was offered to establish that the hours attributed to research were not expended or were inflated.

      The Union claims that the Authority erred in reducing the number of hours for the post-hearing brief to 18 hours because this amount "is not reasonable or feasible." Id. at 14. The Union likewise claims that the Authority erred in reducing the number of hours for preparation of the motion for attorney fees to 9 hours because this amount "is not reasonable or feasible." Id. at 21.

      The Union contends that the Authority should reconsider its reduction of fees based on its conclusions that billing judgment was not exercised and that the fee was significantly disproportionate to the amount involved. The Union maintains that there is no indication in the Authority's decision of the review of any billing charges other that for research, post-hearing brief, and fee petition. The Union also maintains that reconsideration of the reduction for failure to exercise billing judgment is warranted because the reduction questions the professionalism of the Union's attorney.

      In general, the Union asserts that the Authority should have deferred to the Arbitrator and that its decision repudiates the deference properly accorded to arbitration. In addition, the Union maintains that because of the magnitude of this decision, the Authority should permit all interested parties to comment or file amicus curiae briefs.

IV.      Analysis and Conclusions

      Section 2429.17 of the Authority's Regulations permits a party who can establish extraordinary circumstances to request reconsideration of an Authority decision. A party seeking reconsideration bears the "heavy burden" of establishing that extraordinary circumstances exist to justify this unusual action. See, e.g., United States Dep't of the Interior, Bureau of Indian Affairs, Navajo Area Office, 54 FLRA 9, 12 (1998) (BIA). The Authority has found extraordinary circumstances to exist in the following situations:

(1)      when an intervening court decision or change in the law affected dispositive issues;
(2)      when evidence, information, or issues crucial to the decision had not been presented to the Authority;
(3)      when the Authority erred in its remedial order, process, conclusion of law, or factual finding; and
(4)      when the moving party has not been given an opportunity to address an issue raised sua sponte by the Authority in the decision.

See United States Dep't of the Air Force, 375th Combat Support Group, Scott Air Force Base, Ill., 50 FLRA 84, 85-87 (1995) (Scott AFB). Mere disagreement with the [ v60 p638 ] Authority's decision or attempts to relitigate conclusions reached by the Authority do not establish the extraordinary circumstances necessary to warrant reconsideration. See, e.g., BIA, 54 FLRA at 12.

      One of the limited number of situations in which the Authority has found extraordinary circumstances to exist for reconsideration is when the Authority has erred in a factual finding. See Scott AFB, 50 FLRA at 87 & n.6 (citing Internal Revenue Serv., Indianapolis Dist., 30 FLRA 850 (1987)). The Union claims that the Authority's finding that the Union's attorney devoted 33 hours to research "is factually inaccurate." Motion at 5. However, the Union fails to establish that the Authority erred in a factual finding.

      The Authority's finding that included in the 332 total number of hours were "approximately 33 hours for research" was based on the specific factual finding of the Arbitrator. 60 FLRA at 288. In ruling that the total number of hours claimed was fair, the Arbitrator noted that the Agency contended that the number of hours devoted to research should be scrutinized. However, he concluded that no evidence was offered to suggest that the number of hours claimed for research was not expended or were inflated. See Award at 10. Specifically, the Arbitrator found, as follows:

The statement submitted by [the Union's attorney] indicates that only thirty-three and a half of the three hundred thirty-two hours claimed were spent researching the many issues raised in this case and I do not believe this is excessive or inflated, especially when one considers the time was spent over the period of one year.

Id. Furthermore, the Union's argument sets forth selected billing entries and claims only that "11 hours constitute pure research, uncombined with the preparation of other documents." Motion at 6. The Union does not dispute the Arbitrator's specific finding that its attorney devoted approximately 33 hours to research. The Union also does not assert that its attorney did not devote at least 13 hours to research, which is the number of hours which the Authority ultimately determined was reasonable.

      Accordingly, we reject that this asserted basis for reconsideration establishes extraordinary circumstances. See BIA, 54 FLRA at 13 (union failed to establish how the Authority erred in its evaluation of the facts).

      Another one of the limited number of situations in which the Authority has found extraordinary circumstances to exist for reconsideration is when the moving party has not been given an opportunity to address an issue raised sua sponte by the Authority in the decision. See Scott AFB, 50 FLRA at 87 & n.7 (citing United States Dep't of Commerce, Nat'l Oceanic and Atmospheric Admin., Nat'l Weather Serv., Silver Spring, Md. v. FLRA, 7 F.3d 243 (D.C. Cir. 1993)). The Union claims that extraordinary circumstances are established for reconsideration because it was not presented with the opportunity to justify the reasonableness of its fee request. However, the issue of the reasonableness of the fee was not an issue raised sua sponte by the Authority in the decision.

      The Agency specifically contested the reasonableness of the amount requested by the Union before the Arbitrator and specifically challenged the reasonableness of the amount of fees awarded by the Arbitrator in its exceptions to the award. Consequently, the Union had the opportunity both before the Arbitrator and the Authority to justify the reasonableness of the fee. Accordingly, we reject this claim as a basis for reconsideration.

      The Union's remaining arguments fail to establish the extraordinary circumstances necessary to warrant reconsideration of the Authority's decision. Accordingly, they provide no basis for reconsidering the Authority's decision.

      The Union's assertions, that contrary to the decision of the Authority the reduced amount of fees for the post-hearing brief and fee petition is not reasonable, clearly disagree with the Authority's decision and constitute an attempt to relitigate the reasonableness of the amount in its motion for reconsideration. The Union's assertion that the Authority's decision was based on an inadequate record and review similarly disagrees with the Authority's express determination that the fully developed record, which allowed the Arbitrator to resolve the reasonableness of the amount of fees, provided a sufficient basis for the Authority to determine a reasonable amount of fees. Such assertions fail to establish extraordinary circumstances warranting reconsideration. See, e.g., BIA, 54 FLRA at 12.

      We reject the Union's claim that the Authority departed from prior precedent and "set an entirely new course for arbitrator [attorney] fee review[.]" Motion at 2. As the Authority specifically explained, the Authority applies the decisions of the MSPB and the Federal Circuit addressing the standards of § 7701(g) because these standards have been expressly adopted by the Back Pay Act. See 60 FLRA at 286 (citing AFGE Local 1547, 58 FLRA 241, 242-43 (2002) (AFGE Local 1547). In addition, the Authority noted that it considers relevant decisions of other federal courts
[ v60 p639 ] where appropriate, see id. (citing United States Dep't of Justice, Bureau of Prisons, Washington, D.C., 46 FLRA 1002 (1992)), and that the MSPB and the Federal Circuit also look to decisions of other federal courts when applying the standards of § 7701(g), see id. (citing Crumbaker v. MSPB, 781 F.2d 191 (Fed. Cir. 1986), modified as to other matters, 827 F.2d 761 (Fed Cir. 1987); Harris v. Dep't of Agric., 33 MSPR 237 (1987)). The Authority also noted that it has recognized that identical or similar standards to those of § 7701(g) apply under other federal fee-shifting statutes and that consequently, it takes into account federal court decisions applying those other statutes. See id. (citing AFGE Local 1547). The Authority further explained that in assessing whether the amount of fees is reasonable within the meaning of § 7701)g), the MSPB applies the factors set forth in Johnson v. Georgia Highway Express, 488 F.2d 714 (5th Cir. 1974). See id. at 287 (citing Kling v. Dep't of Justice, 2 MSPR 464 (1980)).

      This detailed explanation of the framework utilized by the Authority in resolving exceptions to attorney fee awards under the Back Pay Act demonstrates that the Authority's consideration and application in the instant case of decisions of other federal courts, in addition to those of the Federal Circuit, is fully consistent with Authority precedent. Moreover, although the facts in each attorney fees case are particular to that case, the explanation of the framework set forth above demonstrates that the legal standard stated and applied by the Authority in the instant case is not new. Consequently, the Union's motion does not establish the extraordinary circumstances that are necessary to warrant reconsideration of the Authority's decision. See NTEU Chapter 208, 55 FLRA 666, 667 (1999) (Authority rejected claim in a motion for reconsideration that it had applied a new legal standard).

      Finally, the Union's assertion that reconsideration is warranted because the reduction of fees questions the professionalism of its attorney does not present a situation that the Authority has identified as establishing extraordinary circumstances. See United States Dep't of the Air Force, Seymour Johnson Air Force Base, N.C., 58 FLRA 169, 169 (2002). Moreover, the 25% reduction only conforms the fee of an attorney who is not being compensated at market rates to the prevailing market for such services. It does not question the attorney's professionalism, and it does not dispute the Arbitrator's finding that the hours were expended.

      With respect to the Union's request that the Authority should permit interested parties to comment or file amicus curiae briefs, we deny the request. To the extent that the request is to grant permission to comment on this matter or file an amicus curiae brief in this matter, there have been no such requests filed with the Authority. To the extent that the request is for the Authority to solicit such comments and briefs, no basis is provided for such action in view of reconsideration of the Authority's decision not being warranted. Cf. IBEW Local 80, 55 FLRA 1107, 1107 (1999) (request that the issue of relief be reopened for briefs rejected as an attempt to relitigate the conclusions reached by the Authority in the decision for which reconsideration was sought).

V.      Order

      The Union's motion for reconsideration is denied.