BWANA ABBOTT’S SAFARI
One of FLRA’s surviving Trump appointees, Jim Abbott, is the labor law equivalent of the great white hunters of Colonial Africa who ravaged its wildlife and exploited its population just for the fun of it- or maybe it was just to prove their manhood to themselves and others. In Jim’s case, he is arguably out to kill off any and every legal precedent that grants a benefit to employees or unions. His current safari plans include bagging the legendary Laffey Matrix, protected by long-standing FLRA precedent. For those of you unfamiliar with this particular species of the federal labor law Serengeti, it is a magnificent beast. It often forces agencies to pay union attorneys up to $919.00 for each hour they spend on an arbitration, ULP, MSPB or EEOC victory, no matter how competent the attorney, how routine their work, or how little their union actually pays them. Because that almost never exceeds $125.00 an hour, it generates a very nice, non-dues income flow for unions. So, we thought we would share with you how we see Bwana Jim (BJ) stalking his prey despite several legal barriers protecting the Laffey.
The Back Pay Act states that an employee who gets back pay by correcting a personnel action also is “entitled” to “reasonable attorney fees” in accordance with 5 USC 7701(g). But neither of those statutory provisions, nor related case law, specifies what is a reasonable hourly rate for an attorney. Consequently, the Washington, DC litigation community, including DOJ and the federal judiciary, has adopted without much rigorous analysis something called the Laffey Matrix. It sets out recommended hourly rates ranging from $318 for a rookie attorney to $919 an hour for those with more than 20 years of experience. It is seniority, not skill, driven.
Not long ago the Chief Judge of the Washington, D.C. federal circuit court, Merrick Garland, signed an opinion questioning the validity of the Laffey Matrix and urging DOJ to develop a more scientific chart of what a reasonable hourly attorney fee should be. (See DL et al. v. D.C., 924 F.3d 585 (D.C. Cir. 2019)) Now, as Attorney General, Garland’s office has blessed the issuance of the Fitzpatrick Matrix which is based on a far more rigorous economic analysis of DC market rate for attorneys and determined that the top hourly rates of the Laffey are almost $200 an hour too high and the lower rates are almost $50 an hour less than what they should be. In other words, an agency that agrees to use the Laffey Matrix to compensate a union attorney for the 100 hours she put into a case, which is a typical number of hours required in an arbitration, is overpaying the union by about $18,600.
Fortunately for the defenseless Laffey, BJ has proven to be a terrible shot. According to the federal circuit courts, he misses about two thirds of the time he tries to kill a legal precedent. Consequently, we expect Bwana J to approach his prey from several directions at once.
We expect his opening salvo to be that neither Laffey nor Fitzpatrick are appropriate benchmarks for the typical union or employee administrative appeal. Both very clearly state they are designed to measure the typical rate charged for doing “complex federal litigation.” Given that Merriam-Websters defines litigation as “the act, process, or practice of settling a dispute in a court of law,” this might be an easy shot. Arbitrations and other administrative hearings are often done by (and presided over by) non-attorneys—something that would never happen in a court.
BJ likely will back up his “litigation” shot by also firing with the idea that winning an overtime or promotion grievance is nowhere near as “complex” as federal court litigation. After all, neither the rules of civil procedures nor evidence apply in an arbitration, which vastly simplifies the process. Similarly, depositions, discovery and pre-trial motions are almost unheard of in arbitration.
Perhaps he will leave room to find some kinds of arbitration complex enough to qualify for a Laffey benchmark, e.g., a class action discrimination claim of adverse impact discrimination. But BJ is not known for his compassion when he sets out to kill a precedent.
Should both those shots miss and leave Laffey still standing, we anticipate the Bwana focusing the crosshairs of a third volley on what is the best measure of hourly market rate for attorneys conducting arbitration, ULP, or similar administrative hearings. The best measure is not Laffey, Fitzpatrick or any similar benchmark he likely will proclaim, but the hourly rate of the neutral hearing the case. Usually that is an arbitrator or administrative judge. There are far, far more of them doing federal union arbitrations than private attorneys.
Most arbitrators charge around $2,000 a day, which even for the typical six-hour hearing workday amounts to a top rate of $333 an hour. That works out to be more than a $58,000 savings for taxpayers over the top Laffey rate for 100 hours of work. Unions and attorneys might whine at a deafening level over such a cap, but the public will know that even an attorney who can only bill half the hours in a 2,047 hour work year will earn over $340,000.00 per annum. That will be hard for opponents to argue that level of compensation will not be enough to attract attorneys to do the work. The D.C. Circuit in DL et. al, supra, recognize that submarkets of Laffey can be legitimate.
Bwana’s fourth, final and desperation shot is likely to claim that even if the market rate cannot be capped at a typical arbitrator’s hourly fee, the Fitzpatrick, rather than Laffey Matrix, should apply. Given the more rigorous data analysis supporting it that round is the most likely of the four to hit the target.
But we would not put it past BJ to soak this final round in some venom. It is hard to imagine him passing up the opportunity to wrap his acceptance of any hourly rate benchmark in words about how the union must meet a burden beyond merely pointing to the benchmark hourly rate. For example, he could just lift the following excerpt from Zaldana v. Morrogh, a 2022 D.C. federal District Court decision:
However, while “[s]everal matrices, including the USAO Laffey matrix and the LSI Laffey matrix may assist courts in determining a reasonable hourly rate,”17 id., “[a] fee applicant does not meet its burden merely by submitting the USAO or LSI Laffey Matrices with a fee application. Rather, the applicant is obliged to demonstrate that the suggested rates in the matrix are in line with those prevailing in the community for similar services.”
Maybe the best thing Bwana Jim has going for him is something that amounts to letting a hunter walk right up to the target, place a large caliber weapon to the temple of his prey and pull the trigger. In BJ’s case, that is the lack of any judicial review of his decision. FLRA reviews of arbitration exceptions, which is where this issue most likely rises, are not subject to a federal court’s second-guessing. Of course, if after BJ kills off Laffey as illegal some union proposes in contract negotiations that, “Attorney hourly rates will be based on the Laffey Matrix” an agency could declare it non-negotiable. That would open a path to judicial review of Bwana’s safari.
