File 2: Opinion of Member Pope
[ v60 p640 ]
Dissenting opinion of Member Pope:
By changing the standard for evaluating the reasonableness of attorney fees sua sponte, the majority denied the Union the opportunity to address the new standard below. Now, in its motion for reconsideration, the Union makes such argument. However, the majority refuses to entertain it on the ground that it was not raised below. This is a classic Catch-22, which renders the majority's decision to deny the Union's motion for reconsideration arbitrary and capricious. Therefore, I dissent.
The Authority's practice is to grant reconsideration where the Authority raised an issue sua sponte. See United States Dep't of the Air Force, 375th Combat Support Group, Scott Air Force Base, Ill., 50 FLRA 84, 87 (1995) (citation omitted). In the case below, United States Dep't of Def., Def. Fin. and Accounting Serv., 60 FLRA 281 (2004) (DFAS), the majority took it upon itself to reverse the Authority's 17-year course of applying Crumbaker v. MSPB, 781 F.2d 191 (Fed. Cir. 1986) (Crumbaker), modified as to other matters, 827 F.2d 761 (Fed. Cir. 1987), which prohibits conclusory reductions in fees and requires that reductions be based on the record. See, e.g., Dep't of the Air Force H.Q., 832d Combat Support Group DPCE, Luke Air Force Base, Ariz., 32 FLRA 1084, 1101 (1988). Doing so, the majority did not find Crumbaker controlling and, instead, determined that decisions other than Crumbaker, rendered by courts other than the Federal Circuit, involving attorney fee statutes other than the Back Pay Act would be applied. See DFAS, 60 FLRA at 286. The majority raised the issue of what standard should apply sua sponte and did so without providing the Union an opportunity to argue either whether a new standard was appropriate or how a new standard should be applied. The fact that the majority based its new standard on judicial decisions does not change the fact that the standard is new, and that the majority made conclusory reductions in attorney fees not based on the record.
In denying that it raised and decided the issue of the standard for resolving the reasonableness of attorney fee claims sua sponte, the majority relies on the fact that the Agency "specifically challenged the reasonableness of the amount of fees" in its exceptions. Majority Opinion at 7. The majority concludes, in this same vein, that the Union thus had the opportunity in its exceptions to "justify the reasonableness" of the awarded fees. Id.
There is no question that, as stated in DFAS, the Agency claimed that the attorney fees requested by the Union and awarded by the Arbitrator were not reasonable because: (1) Union counsel's experience called into question the number of hours claimed; (2) the Arbitrator failed to scrutinize hours claimed for research as well as "in-office work"; and (3) the Union should be required to establish that the hours claimed were expended in connection with this case only and not another one involving the same grievant. See DFAS, 60 FLRA at 283. The Union responded to these arguments. See id.
There also is no question that the Agency at no time requested the Authority to reconsider either the standard for determining reasonableness of fees in general or the Authority's application of Crumbaker in particular. Thus, that the Union had an opportunity to address the issues regarding reasonableness raised in the Agency's exceptions is beside the point. The majority cannot hide the fact that the Union had absolutely no opportunity or reason to address the standard for determining reasonableness -- the basis of the majority's decision to reduce the Union's fees by over 55 percent.
Now, the majority refuses to entertain the Union's motion for reconsideration. In so doing, the majority errs in two respects. First, the majority continues to deprive the Union of its right to address whether a new standard should be adopted and, if it is, how it should be applied. See United States DOJ, Fed. Bureau of Prisons, Fed. Corr. Inst., Sheridan, Or., 58 FLRA 279, 288-89 (2003) (Dissenting Opinion of Member Pope). Second, the majority continues to deprive the Authority the benefit of the parties' arguments as well as a full record. Among other things, the Arbitrator did not provide, and the record does not disclose, a specific, hour-by-hour breakdown of the hours associated with various activities. See DFAS, 60 FLRA at 290-91. As a result, the record does not permit the reductions in the fees mandated by the majority, and the matter must be reconsidered and, ultimately, remanded to the Arbitrator. Put differently, a decision to reduce fees based on this record is inherently conclusory -- in violation of Crumbaker.
The majority has failed to justify its refusal to grant reconsideration here, thereby compounding the very significant errors it made below. Accordingly, without addressing the Union's remaining arguments, I dissent. [*]