Click here to view the decision.
56 FLRA No. 29
Alabama Association of Civilian Technicians and U.S. Department of Defense Alabama State Military Department Alabama National Guard (Giblin, Arbitrator), 0- AR-3145 (Decided March 31, 2000)
The Arbitrator denied the request for attorney fees sought pursuant to 5 U.S.C. § 5596(b)(1)(A)(ii). The Authority remanded the case to the parties for submission to a new arbitrator to grant the Union's request for attorney fees and determine what amount of fees would be reasonable.
The threshold requirement for entitlement to attorney fees under the Back Pay Act is a finding that the grievant was affected by an unjustified or unwarranted personnel action, which resulted in the withdrawal or reduction of the grievant's pay, allowances, or differentials. Once such a finding is made, the Act further requires that an award of fees must be: (1) in conjunction with an award of backpay to the grievant on correction of the personnel action; (2) reasonable and related to the personnel action; and (3) in accordance with the standards established under 5 U.S.C. § 7701(g), which pertain to attorney fee awards by the Merit Systems Protection Board. The standards established under 5 U.S.C. § 7701(g)(1), which apply in all cases except those involving allegations of discrimination, are as follows: (1) the employee must be the prevailing party; (2) the award of fees must be warranted in the interest of justice; (3) the amount of the fees must be reasonable; and (4) the fees must have been incurred by the employee.
Here, the Authority noted that the Arbitrator found that there was an attorney-client relationship under the Back Pay Act, that the fees were related to the personnel action, and that they were warranted in the interest of justice. Accordingly, the Authority concluded that a remand was warranted.