THE WORST CASE SCENARIO FOR ATTORNEY FEES?
As we all wait to see how Abbott and Kiko put their Trumpian scent an employee’s right to get attorney fees when back pay is awarded, unions need to prepare for the worst case scenario. That may have been described in a 1984 Comptroller General case titled, Leland M. Wilson: Claim for Attorney Fees and Interest, CG B-205373(04/24/84). In short, the CG examined the law and suggested the only time employees can get attorney fees if their case involves a grievance over an adverse action or prohibited personnel practice. Here is what the CG wrote,
While the language of the Back Pay Act and the implementing regulations is broad and appears to encompass many situations, we believe that Mr. Wilson’s claim does not fall within the scope of the Back Pay Act.
The Congressional intent of the Back Pay Act of 1966 was to insure that an employee is entitled to pay or benefits lost as a result of an unjustified or unwarranted personnel action. S. Rep. No. 1062, 89th Cong., 2d Sess., reprinted in 1966 U.S. Code Cong. & Ad. News 2097, 2099. See United States v. Testan, et al., 424 U.S. 392, 405 (1976) where it is stated that:
The statute’s language was intended to provide a monetary remedy for wrongful reductions in grade, removals, suspensions, and other unwarranted or unjustified actions affecting pay or allowances that could occur in the course of reassignments and change from full-time to part-time work.
While limiting attorney fees to successful grievances over adverse actions and prohibited personnel actions would not be disastrous for unions, it would take away their right to get the fees they commonly do today in grievances involving overtime errors, debt collection protests, leave denials, suspensions of less than 14 days, award rejections, official time rejections, unpaid subsidies, career ladder delays, etc.
We do not agree with the CG’s reading, but its opinion is entitled to far, far more weight than ours. Moreover, the CG’s analysis is a reasonable reading of 5 USC 5596(b)(1)(A)(ii), e.g., it is consistent with 5 USC 7701, adverse actions can occur in connection with grievances and ULPs, etc. After all, why did Congress link the FLRA’s ability to grant fees to the MSPB’s leadership if FLRA was being given the power to grant fees in situations MSPB would never confront? It is understandable that Congress saw a national interest in ensuring improper adverse actions and prohibited personnel practices are reversed, but is there really a national interest in funding challenges to an incorrect overtime assignment or delayed career ladder promotion beyond giving the employee the back pay s/he is owed?
Finally, no one should forget that the Trump FLRA appointees can do whatever they want because their pending decision on attorney fees will not be appealable to the courts. Given that they have shown every indication of being eager to “stick it” to unions and employees, we will be surprised if they DO NOT DO THIS.