WHO IS KILLING THE FEDERAL EMPLOYEES’ GOLDEN GOOSE? {Corrected Version}
[Hint: Shakespeare recognized them early as a threat and recommended their immediate execution.] There is a golden goose tucked away in the federal civil service law that entitles federal employees who win back pay for virtually any reason to also have their attorney fees paid. Almost no other group of employees in this country enjoys that benefit for something as simple as winning a grievance that could pay as little as a single hour of overtime pay unjustly denied an employee. Some other Americans can get their attorney fees paid when they overturn their termination, but even that is a tiny percentage of the country’s workers. Considering that MSPB just reimbursed two federal employees’ attorneys $643,000 IN ATTORNEY FEES for overturning their suspensions that cost the employees $36,000 in salary the attorney fee reimbursement provision is truly a harmed employee’s golden goose. Without it, most federal employees would have to just take whatever punishment or mismanagement agency officials handed out because professional representation would bankrupt their families. So, the answer is that lawyers inside and outside government, or at least some of them, are dosing this goose with bills that are likely poisoning it.
A couple of weeks ago the MSPB closed out a case against two Dept. of Justice attorneys who were suspended—one for 15 days and the other for 40. DOJ alleged they withheld evidence from Senator Ted Stevens’ defense team and fatally undermined his prosecution by DOJ. As is only fair, the employees hired DC attorneys to represent them in their appeal to MSPB, and in the end they both won their appeals on ridiculously simple technical grounds. DOJ had failed to follow its own procedures for proposing the suspensions. So, the two employees got about $36,000 in back pay and to our dismay their attorneys got 18 times that amount for their work ($643,000.00).
Here is why we are dismayed by the size of the fee award. There are dozens of people wandering Capital Hill who enjoy nothing more than slandering and slashing federal employees’ benefits. They seem to live for a juicy set of easy-to-understand facts that offend the sensibilities of the average citizen outside Washington, DC legal circles. Once in hand, they exploit those facts through the media until they build up enough momentum to ruthlessly change a law. In this particular case they have a lot more to work with than the worrisome $643,000 figure. For example,
- The attorney for one of the employees charged $300.00 an hour for his services while the other employee’s attorney charged $425.00. The “average citizen” is likely to immediately ask, “Why wasn‘t the latter figure reduced given that they performed the same service in the same labor market?”
- The attorney for one of the employees charged for 1,173 hours of work while the other attorney only needed 777 hours of work. Why wasn’t the first attorney required to lower his time charged to the 777 range, especially given that by billing at $425 an hour s/he was declaring that s/he was the more experienced attorney?
- Only last year MSPB limited an attorney working in the same Washington, DC market as the ones in the DOJ case to an hourly rate of $250.00 for no more than 268 hours. [Compare that 268 hours to the 777 and 1,173 the other two claimed they put in and you have another fistful of “common sense” that will upset the bill-payers of America.]Even more recently MSPB limited a Los Angeles attorney to $45,000 when she successfully defended another federal employee by getting his removal reduced to a 30 day suspension.
The DOJ case is not the only one that is likely to shock the sensibilities of the average American whose taxes are ultimately funding these attorney fee checks. Nor, in fairness, are the attorneys in the DOJ case or similar ones to blame—at least in the first instance. They are only drinking at the very deep and wide trough that MSPB and the courts have built for them.
For example, the Board let’s an employee hire any attorney s/he wants no matter what the cost on the theory that employees are entitled to the attorney of their choice. (The attorney could even work thousands of miles away from the employee and the hearing site. In that case the Board will reimburse his/her time flying back and forth at their hourly rate, e.g., $425.00, for sitting on a plane.) The Board does not accept the medical industry practice of reimbursing doctors the “reasonable and customary” rate for a service in their area—no matter how accomplished (and expensive) the doctor might be. The Board also is very unlikely to object to an attorney’s hourly fee if the agency does not object—even though the Board can see from its own recent decisions that other attorneys operating in the same city and doing the same kind of work have charged hundreds of dollars less per hour. (We say this is unlikely because there are a few examples of them doing this based on their own research. See PH-0752-94-0233-M-1 where the MSPB AJ reduced a claim for an $880 an hour to $250 an hour.)
FEDSMILL is a strong supporter of reimbursing employees their attorney fees when they overturn agency disciplinary actions. It is in the public interest that arbitrary or otherwise improper management actions be exposed and reversed. We also support reimbursing their fees in many situations where they get back pay because the agency violated some other compensation right they had. But we find it very hard to accept that attorneys, whether they work for a union or private firm, should be allowed to charge up to $800.00 an hour based primarily on their seniority. (MSPB and FLRA allow Washington, DC attorneys to do that for working a case before an arbitrator or federal administrative agency.) After all, the MSPB and FLRA case paths are piled deep with precedent the attorneys can ride along on. It is not like they are fighting in the Supreme Court to overturn a century of judicially approved racial segregation or even trying to sway a jury in a criminal case.
Sadly, it is against their short-term interest for union and private attorneys to police their own fee charges and there are no signs that MSPB even sees these facts as disturbing. So, as we have said before, agencies may be the most likely parties to stand up and protect employees’ current rights to the reimbursement of reasonable attorney fees by bargaining limitations on fee charges in their own collective bargaining agreements. For example, nothing in current case law makes it illegal for a union to agree to limit its hourly fee charges to no more than $250.00 or its chargeable time for an arbitration that required on a single day of hearing to 60 hours. If agencies can get unions to adopt limits, especially in the DC market where MSPB and FLRA allow the highest hourly fee charges, they can build up case examples they can also use against private attorneys to show what the market practice is. (FLRA case law even permits parties to bargain over a union waiver of the right to fees at all in some or all cases. See Department of the Army, Red River Army Depot, Texarkana, TX and NAGE, Local R14-52, 39 FLRA 1215 (1991) and AFGE and U.S. Department of Defense, Defense Supply Center, Columbus, Ohio, 65 FLRA 402 (2010))
Agencies could also avoid the simple mistakes that DOJ made in this case. If the DOJ 15 day suspension had been reduced to 14 days, the employee would not have had access to MSPB and hence only a very remote chance of getting fees paid via an agency grievance process. Or, DOJ could have followed its own procedures. Or, it could done a better job of collecting data from other agencies on all attorney fee settlements and decisions so that they can present better arguments to MSPB, FLRA, EEOC, etc. that a requested hourly rate is too high in comparison to the market.
Of course, it would certainly be understandable if the agencies just let a few more of these facially shocking fee decisions pile up and then ask the key anti-federal employee folks on the Hill to kill the right altogether. That would be a lot easier than slugging it out case by case. Who on the Hill do these attorneys think is going to stand up for their right to earn $800.00 an hour? AND THAT IS WHAT UNIONS AND PRIVATE ATTORNEYS SHOULD FOCUS ON AVOIDCING BECAUSE IT IS INEVITABLE. The case is building rapidly for people with names like Issa, Chaffitz, Mica, Rand, Portman, and Ernst to write their own set of new rules and we doubt employees, much less union or private lawyers who practice federal employment law, will like those new rules at all. When this fight begins on the Hill all the fine points of legal theory underlying MSPB, FLRA and arbitrator attorney fee awards are not going to matter much–if at all. This will be decided based on anecdotes, headlines, sound bites, emotions, and politics.
(And don’t even get us started on what will happen if some enterprising Hill staffer decides to trace what happens to attorney fees once unions cash the check and finds that it enables the union to put a lot more money into financing Congressional campaigns with hard and soft money.)
