American Federation of Government Employees,, Local 1547, (Union) and United States, Department of the Air Force,, Luke Air Force Base, Arizona, (Agency)

[ v58 p241 ]

58 FLRA No. 58

LOCAL 1547






December 20, 2002


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 exceptions to an award of Arbitrator Harold C. White filed by the Union under § 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Agency filed an opposition to the Union's exceptions.

      The Arbitrator found that the grievant was not entitled to attorney fees under the Back Pay Act because the grievant was not a prevailing party, within the meaning of 5 U.S.C. § 7701(g)(1). For the reasons that follow, we deny the Union's exceptions.

II.     Background and Arbitrator's Award

      A grievance was filed seeking overtime backpay, interest, and attorney fees. At Step 2, the Agency granted the grievance, providing the grievant with overtime backpay with interest, but without addressing the request for attorney fees. The Union invoked arbitration, claiming that under the Back Pay Act, 5 U.S.C. § 5596, the grievant was entitled to attorney fees.

      Before the Arbitrator, the issue was framed as "[s]hould the Agency be required to make payment for [a]ttorney fees on behalf of the [g]rievant? If so, what is the appropriate amount to be paid?" Award at 1.

      The Arbitrator denied the grievance, finding that the grievant was not entitled to attorney fees because [ v58 p242 ] she was not the prevailing party, within the meaning of 5 U.S.C. § 7701(g)(1). In reaching that conclusion, the Arbitrator relied on Buckhannon Board & Care Home, Inc. v. West Virginia Department of Health & Human Resources, 532 U.S. 598 (2001) (Buckhannon), where the United States Supreme Court held that a prevailing party is one who has been awarded relief by a court. Acknowledging that the holding in Buckhannon had been adopted by the Merit Systems Protection Board (MSPB) in addressing attorney fees under 5 U.S.C. § 7701(g), the Arbitrator concluded that the grievant was not entitled to attorney fees because the Agency -- not an arbitrator, board, or court -- issued the decision giving rise to the request for attorney fees.

III.     Positions of the Parties

A.     Union's Exceptions

      The Union asserts that the award is inconsistent with 5 U.S.C. § 7701(g)(1) because the grievant is the "prevailing party," within the meaning of that statute. The Union argues that under Buckhannon, the Agency's decision to pay the grievant "created the enforceable, material alteration of the legal relationship of the parties that is required in order to establish `prevailing party' status." Exceptions at 16. The Union also asserts that the Arbitrator's conclusion that under Buckhannon the Agency cannot be an "appropriate authority," within the meaning of the Back Pay Act, is inconsistent with that Act.

B.     Agency's Opposition

      The Agency asserts that the Arbitrator properly applied Buckhannon and found that the grievant is not the prevailing party, within the meaning of 5 U.S.C. § 7701(g)(1), because the Agency voluntarily paid the grievant.

IV.     Analysis and Conclusions

      The Union's exceptions challenge the award's consistency with 5 U.S.C. §§ 5596 and 7701. The Authority reviews questions of law de novo. See NTEU, Chapter 24, 50 FLRA 330, 332 (1995) (citing United States Customs Serv. v., 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.

      Under the Back Pay Act, 5 U.S.C. § 5596, an employee entitled to backpay may also receive "reasonable attorney fees related to the personnel action." 5 U.S.C. § 5596(b)(1)(A)(ii). If fees are sought in a grievance, then they are awarded "in accordance with standards established under section 7701(g) of [title 5]," which pertains to attorney fee awards by the Merit Systems Protection Board (MSPB). Id.

      The standards for an award of attorney fees under § 7701(g) include, among other things, that the employee must be the "prevailing party." 5 U.S.C. § 7701(g)(1); see NAGE, Local R4-6, 55 FLRA 1298, 1300-01 (2000). Adopting and applying the definition of "prevailing party" established by the MSPB, the Authority has consistently held that an employee is a prevailing party under § 7701(g)(1) where the employee "received an enforceable judgment or settlement which directly benefitted [the employee] at the time of the judgment or settlement." United States Dep't of Defense, Defense Distrib. Reg. E., New Cumberland, Pa., 51 FLRA 155, 160-61 (1995) (DOD); see also IFPTE, Local 529, 57 FLRA 784, 786 (2002); NAGE, Local R4-6, 55 FLRA at 1301; United states Dep't of Def., Dep't of Def. Depends. Schools, 54 FLRA 773, 788 (1998). In this connection, the Authority has found an employee to have "prevailed" where the employee received a benefit that was causally related to the institution of a grievance. NAGE, Local R4-6, 55 FLRA at 1301. This finding is consistent with decisions of the MSPB applying the "catalyst theory," providing that "if a respondent grants all or part of the relief sought before a judgment or other order is entered, [then] attorney fees may be awarded if that relief was granted as a result of the institution of the action." Joyce v. Dep't of the Air Force, 83 MSPR 666, 675-76 (1999).

      In Buckhannon, 532 U.S. at 605, the United States Supreme Court revisited the term "prevailing party" under two federal fee-shifting statutes and explicitly rejected the catalyst theory of recovery on the ground that it lacks the necessary "judicial imprimatur." Specifically, the Court found that a party who has achieved its desired result because its claim brought about a voluntary change in the defendant's conduct cannot be considered a "prevailing party." Id. at 605-06. Accordingly, the Court held that only enforceable judgments on the merits and court-ordered consent decrees create the "material alteration of the legal relationship of the parties" necessary to permit an award of attorney's fees under federal fee shifting statutes. [n1]  Id. at 604.

      [ v58 p243 ] Following Buckhannon, the MSPB overruled its prior decisions, concluding that the Court's holding is applicable to fee awards under 5 U.S.C. § 7701(g)(1) and holding that an appellant is not the "prevailing party" where an agency unilaterally rescinds an adverse action during the pendency of an appeal. Sacco v. DOJ, 90 MSPR 37, 41-42 (2001) (Sacco I); see also Cole v. DOJ, 90 MSPR 627 (2001) (Cole); Sacco v. DOJ, 90 MSPR 225 (2001) (Sacco II); Nichols v. Dep't of Veterans Affairs, 89 MSPR 554 (2001) (Nichols). In this connection, the MSPB found that a unilateral agency recission does not result in a consent decree, judgment, order, or settlement agreement by which the Board can enforce any relief. Sacco I, 90 MSPR at 42.

      The Authority has consistently held that in addressing the standards under 5 U.S.C. § 7701(g), it will apply the MSPB's definition of the term "prevailing party" and will look to the decisions of MSPB and the United States Court of Appeals for the Federal Circuit for guidance. See United States Dep't of the Navy, Naval Undersea Warfare Ctr., Newport, R.I., 57 FLRA 32, 33 (2000); NAGE, Local R5-188, 54 FLRA 1401, 1406 (1998); DOD, 51 FLRA at 160 n.5; United States Dep't of HHS, Soc. Sec. Admin., Balt., Md., 49 FLRA 858, 864 (1994). In addition, the Authority has previously determined that the standards set forth by the Supreme Court for applying the Civil Rights Attorney's Fees Awards Act of 1976, 42 U.S.C. § 1988, are applicable to requests for attorney fees under the Back Pay Act. See NAGE, Local R4-6, 54 FLRA 1594, 1598 n.1 (1998); Dep't of the Air Force Hdqt., 832D Combat Support Group DPCE, Luke AFB, Ariz., 32 FLRA 1084, 1100 (1988). Consistent with the foregoing precedent, we will henceforth apply the definition of "prevailing party" set forth in Buckhannon and adopted by the MSPB.

      In this case, the Arbitrator found that because the Agency voluntarily paid the grievant at Step 2 of the parties' grievance procedure, the grievant was not entitled to attorney fees under § 7701(g)(1). The Arbitrator's finding that the grievant was not entitled to fees in these circumstances is fully consistent with MSPB decisions holding that an appellant is not the "prevailing party," where an agency unilaterally rescinds an adverse action during the pendency of an appeal. See Sacco I, 90 MSPB 37; see also Cole, 90 MSPR 627; Sacco II, 90 MSPR 225; Nichols, 89 MSPR 554.

      The Union argues that a different definition of the term "prevailing party" under § 7701(g)(1) should apply where fees are sought pursuant to the Back Pay Act because grievance arbitration matters and the Back Pay Act "extends to a significantly wider range of matters than those within the purview of the MSPB." Exceptions at 14. The Union's claim in this regard is contrary to the express terms of the Act, which limit the circumstances under which an employee may recover attorney fees to the standards established under § 7701(g). 5 U.S.C. § 5596(b)(1)(A)(ii). In addition, the Union's reliance on United States Dep't of the Navy, Naval Surface Warfare Ctr., Indian Head Div., Indian Head, Md., 57 FLRA 417 (2001) (Naval Surface Warfare), is misplaced and its argument that the decision to pay the grievant constituted a settlement of the grievance is without merit. In this regard, the exceptions in Naval Surface Warfare did not involve "prevailing party" status, within the meaning of § 7701(g)(1), and nothing in the record indicates that the parties entered into an enforceable settlement agreement.

      Based on the foregoing, we conclude that the grievant is not the prevailing party under 5 U.S.C. § 7701(g)(1). [n2] 

V.     Decision

      The Union's exception that the award is inconsistent with 5 U.S.C. § 7701(g)(1) is denied.

Footnote # 1 for 58 FLRA No. 58 - Authority's Decision

   While Buckhannon directly involved the Fair Housing Amendments Act of 1988, 42 U.S.C. § 3613(c)(2), and the Americans with Disabilities Act of 1990, 42 U.S.C. § 12205, the Court's decision addressed the meaning of the term "prevailing party" as found in numerous federal statutes. See 532 U.S. at 607-10; see also id. at 611-15 (Scalia, J., concurring) (emphasizing that many federal statutes employ the term "prevailing party" to establish an entitlement to attorney fees, noting the uniformity of the plain meaning of the term throughout such statutes, specifically its identical use in 5 U.S.C. § 1221(g)(2) and (3), and in 5 U.S.C. § 7701(b)(2)(A)). Numerous circuits have applied Buckhannon to other fee-shifting statutes. See, e.g., Oil, Chemical & Atomic Workers Int'l Union, v. Dep't of Energy, 288 F.3d 452, 455 (D.C. Cir. 2002) (Freedom of Information Act, 5 U.S.C. § 552); Brickwood Contractors, Inc. v. United States, 288 F.3d 1371, 1377-81 (Fed. Cir. 2002) (Equal Access to Justice Act, 28 U.S.C. § 2412(d)(1)(A) (EAJA)); Smyth v. Rivero, 282 F.3d 268, 274-76 (4th Cir. 2002) (42 U.S.C. § 1988); Perez-Arellano v. Smith, 279 F.3d 791, 794 (9th Cir. 2002) (EAJA); J.C. v. Reg'l Sch. Dist. 10, 278 F.3d 119, 124 (2d Cir. 2002) (Individuals with Disabilities in Education Act, 20 U.S.C. § 1415(i)(3)(B)); N.Y. State Fed'n of Taxi Drivers, Inc. v. Westchester County Taxi & Limousine Comm'n, 272 F.3d 154, 157-58 (2d Cir. 2001) (42 U.S.C. § 1988); Chambers v. Ohio Dep't of Human Servs., 273 F.3d 690, 693 n.1 (6th Cir. 2001) (42 U.S.C. § 1988); Crabill v. Trans Union, L.L.C., 259 F.3d 662, 667 (7th Cir. 2001) (Fair Credit Reporting Act, 15 U.S.C. § 1681n, 1681o); cf. Bennett v. Yoshina, 259 F.3d 1097, 1100 (9th Cir. 2001) ("There can be no doubt that the Court's analysis in Buckhannon applies to statutes other than the two at issue in that case."). </