American Federation of Government Employees, AFL-CIO, Local 3882 v. Federal Labor Relations Authority, AFL-CI
| Decision Date | 07 October 1991 |
| Docket Number | AFL-CI,LOCAL,L,Nos. 88-1375,88-1491,s. 88-1375 |
| Citation | 292 App.D.C. 1,944 F.2d 922 |
| Parties | 138 L.R.R.M. (BNA) 2225, 292 U.S.App.D.C. 1 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,3882, Petitioner, v. FEDERAL LABOR RELATIONS AUTHORITY, Respondent, United States Department of Justice, Bureau of Prisons, Intervenor. UNITED STATES DEPARTMENT OF JUSTICE, BUREAU OF PRISONS, Petitioner, v. FEDERAL LABOR RELATIONS AUTHORITY, Respondent, American Federation of Government Employees,ocal 3882, Intervenor. District of Columbia Circuit |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Petitions for Review of an Order of the Federal Labor Relations Authority.
Martin R. Cohen, with whom Mark D. Roth was on the brief, for petitioner in No. 88-1375 and intervenor in No. 88-1491.
Joan E. Hartman, Atty., Dept. of Justice, with whom John R. Bolton, Asst. Atty. Gen., Dept. of Justice, Jay B. Stephens, U.S. Atty., and William Kanter, Atty., Dept. of Justice, were on the brief, for petitioner in No. 88-1491 and intervenor in No. 88-1375.
Robert J. Englehart, Atty., Federal Labor Relations Authority, with whom William E. Persina, Acting Sol., Federal Labor Relations Authority, was on the brief, for respondent in Nos. 88-1375 and 88-1491. Ruth Peters also entered an appearance for respondent in No. 88-1375.
Before EDWARDS and SENTELLE, Circuit Judges, and ROBINSON, Senior Circuit Judge.
Opinion for the Court filed by Senior Circuit Judge SPOTTSWOOD W. ROBINSON, III.
The Back Pay Act 1 authorizes conditionally an award of reasonable attorneys' fees to a federal agency employee affected by an unjustified or unwarranted personnel action resulting in a loss of pay. 2 We are asked to decide whether the Act entitles two staff attorneys of the American Federation of Government Employees, AFL-CIO, Local 3882, to fees for representing a union member in grievance and unfair labor practice proceedings, and, if so, whether the fees should be based upon the prevailing market rate or the cost to the union. We hold that, in the circumstances presented here, the attorneys should be allowed market-rate fees.
The genesis of this litigation was the Bureau of Prisons' discharge of Richard Frontera, a cook-foreman at the federal correctional institution in Ray Brook, New York, "for intimidating and physically abusing a prisoner, and for failing to report a possible breach of prison security." 3 Frontera invoked the grievance procedure erected in the union's collective bargaining agreement with the Bureau and the union, on Frontera's behalf, took the matter to arbitration. 4 The arbitrator concluded that Frontera's misconduct warranted discipline but reduced the penalty to a sixty-day suspension, and ordered backpay and reinstatement of Frontera in his "regular job" thereafter. 5 The Bureau refused to reinstate Frontera at Ray Brook; 6 instead, it assigned him to the federal penitentiary in Lewisburg, Pennsylvania. 7 On the union's application, the arbitrator made clear that Frontera was to be returned to the Ray Brook facility and none other, 8 but the Bureau would not obey. 9
The union then lodged with the General Counsel of the Federal Labor Relations Authority (FLRA) 10 a charge that the Bureau's refusal to comply with the clarified arbitral order was an unfair labor practice. 11 A complaint issued, naming the union as the charging party, and the matter went to hearing before an administrative law judge, 12 who ordered Frontera's reinstatement at Ray Brook with backpay. 13 On appeal, FLRA affirmed, 14 and later was upheld in court. 15
Two lawyers, Gay H. Snyder and Martin R. Cohen, moved FLRA for attorneys' fee allowances under the Back Pay Act for their representation of Frontera and the union in the forerunning proceedings. 16 In the beginning, both Snyder and Cohen were employed and salaried by the union; later, Snyder entered private practice but continued on retainer by the union. 17 The Bureau's sole objection to the fee applications was that they were untimely and improperly submitted. 18
An administrative law judge found that the applications were timely and properly filed, and that all statutory preconditions had been met. 19 He directed payment of fees to Snyder and Cohen on a cost basis for work done as union-salaried lawyers, and to Snyder at the market rate for her services while retained. 20 On appeals to FLRA, 21 the Bureau opposed the award in its entirety while the union contended for market-rate fees for the services rendered as staff attorneys. 22 Neither party was successful, 23 and each seeks review in this court. 24
In 1978, Congress restructured the federal civil service system by acceptance of a reorganization plan 25 and adoption of the Civil Service Reform Act of 1978. 26 "The reorganization plan [made] the major structural changes in the civil service system, while the legislation implement[ed] the policy changes President Carter [felt] essential to reforming the Federal personnel system," 27 " 'comprehensively overhaul[ing] the civil service system' " 28 and "creating an elaborate 'new framework for evaluating adverse personnel action against [federal employees].' " 29 Prominent among these reforms were abolition of the 95-year-old Civil Service Commission and enlargement, splitting and redistribution of its former jurisdiction to three newly-created agencies. A Merit Systems Protection Board (MSPB) was directed to adjudicate employees' administrative appeals from adverse personnel actions and to insure adherence to stated merit systems principles. 30 An Office of Personnel Management (OPM) was empowered to supervise and exercise leadership in personnel management within the Executive Branch. 31 The Act also supplied a statutory foundation for labor-management relations in federal employment 32 and established FLRA as the body responsible for oversight of proceedings and other activities related thereto. 33
Two of the Act's features are of central importance in the present controversy. Earlier, in the Back Pay Act of 1966, 34 Congress had "consolidate[d] and liberalize[d] existing law on the restoration of an employee to his position after an adverse action against him ha[d] been found by appellate authority to have been erroneous or unjustified, [thus] put[ting] the employee in the same position he would have been in had the unjustified or erroneous personnel action not taken place." 35 This legislation, however, too often failed to achieve that objective; for instance, it would not have benefited Richard Frontera, who gained his victory in arbitration and unfair labor practice proceedings, which the 1966 law did not cover. Moreover, while an employee might recover lost wages, he could not recoup any financial outlay made for the services of a lawyer in his winning effort. As the Senate Committee on Governmental Affairs was later to observe,
[the] Civil Service Commission ... [did] not have the authority to require agencies to pay the attorney fees of employees who prevail in their appeals. Employees whose agencies had taken unfounded action against them may spend a considerable amount of money defending themselves against these actions, [but] they cannot be reimbursed for attorney fees upon prevailing in their appeals to the Commission. Instead, they must file civil actions against the Government in order to obtain a review of their requests for reimbursement. 36
The Civil Service Reform Act cured these deficiencies. The Back Pay Act was revised, and in current form it states:
(b)(1) An employee of an agency who, on the basis of a timely appeal or an administrative determination (including a decision relating to an unfair labor practice or a grievance) is found by appropriate authority under applicable law, rule, regulation, or collective bargaining agreement, to have been affected by an unjustified or unwarranted personnel action which has resulted in the withdrawal or reduction of all or part of the pay, allowances, or differentials of the employee--
(A) is entitled, on correction of the personnel action, to receive for the period for which the personnel action was in effect--
(i) an amount equal to all or any part of the pay, allowances, or differentials, as applicable which the employee normally would have earned or received during the period if the personnel action had not occurred, less any amounts earned by the employee through other employment during that period; and
(ii) reasonable attorney fees related to the personnel action which, with respect to any decision relating to an unfair labor practice or a grievance processed under a procedure negotiated in accordance with chapter 71 of this title [5 U.S.C. §§ 7101-7135 (1988) ] or under chapter 11 of title I of the Foreign Service Act of 1980 [22 U.S.C. §§ 4131-4140 (1988) ], shall be awarded in accordance with standards established under section 7701(g) of this title.... 37
Thus, backpay relief is now extended to employees successful in grievance and unfair labor practice proceedings, and reasonable attorneys' fees may be allowed whenever the remaining requirements of the Back Pay Act are satisfied.
As we revert to the cases at bar, we are confronted at the threshold by the question whether, in the circumstances presented, there properly can be any attorneys' fee award at all. The Back Pay Act, in referring to the recipient of the entitlements it confers, uses the word "employee," 38 which is statutorily defined in terms of an "officer" or an "individual." 39 Since the requests for fees were submitted not by Richard Frontera, the fired and later reinstated cook, but rather by the union attorneys who participated in the grievance and...
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