Amendment of Equal Access to Justice Act Attorney Fees Regulations

FEDERAL LABOR RELATIONS AUTHORITY

5 CFR Part 2430

Amendment of Equal Access to Justice Act Attorney Fees

Regulations

AGENCY: Federal Labor Relations Authority.

ACTION: Proposed rule.

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SUMMARY: The Federal Labor Relations Authority (FLRA) proposes to amend

its regulations implementing the Equal Access to Justice Act (EAJA) by

adopting a cost of living adjustment to the maximum rate for the

calculation of attorney fees permitted under the EAJA. Specifically,

the FLRA proposes to use the Bureau of Labor Statistics Consumer Price

Index, All Urban Consumers, U.S. City Average, All Items to create an

inflation-based adjustment to the statutory cap on attorney fees. The

FLRA also proposes modifying the rules to allow an applicant to request

an increase to the maximum fees rate based on special factors.

DATES: Comments must be received on or before January 13, 2000.

ADDRESSES: Mail or deliver written comments to the Office of Case

Control, Federal Labor Relations Authority, 607 14th Street, NW, Room

415, Washington, DC 20424-0001.

FOR FURTHER INFORMATION CONTACT: Peter Constantine, Office of Case

Control, Federal Labor Relations Authority, 607 14th Street, NW,

Washington, DC 20424-0001, or by telephone at (202) 482-6540.

SUPPLEMENTARY INFORMATION: The EAJA, 5 U.S.C. 504(b)(1)(A) (1994 &

Supp. III 1997), provides that an agency may not award attorney fees in

excess of $125 per hour (or $75 for proceedings commenced prior to

March 29, 1996), unless the agency determines by regulation that a

higher fee is justified by (1) an increase in the cost of living or (2)

some special factor. In a recent decision, 55 FLRA (No. 72) 444 (Apr.

30, 1999), responding to petitions requesting an adjustment to the EAJA

fees cap, the FLRA announced its intention to engage in the instant

rulemaking to consider appropriate criteria for increasing the maximum

rate based on cost of living and other special factors. The FLRA also

announced in that decision its intention to amend its regulations

implementing the EAJA to permit recovery, in conjunction with adversary

adjudications commenced on or after March 29, 1996, of attorney fees

not to exceed $125.00 per hour. This was accomplished through the

promulgation of the final rule published at 64 FR 30861 (Jun. 9, 1999).

Cost of Living

The FLRA proposes to allow for an increase in the maximum EAJA

attorney fees rate based on cost of living increases. For guidance in

this regard, the FLRA has looked to the National Transportation Safety

Board's EAJA regulations, 49 CFR part 826, and its statement in its

proposed rulemaking regarding the cost of living adjustment to the

statutory cap (57 FR 60785) (Dec. 22, 1992). The FLRA proposes an

inflation-based adjustment to the statutory cap based on the Bureau of

Labor Statistics Consumer Price Index, All Urban Consumers, U.S. City

Average, All Items (CPI-U). This CPI-U is the generally understood

``cost of living'' index that is widely used as a price inflator in

labor and contract matters.

To determine the appropriate attorney fees rate, adjusted for cost

of living, the statutory cap ($125 or $75) is multiplied by an

inflation factor. The inflation factor is the CPI-U for the year that

legal services were rendered divided by the CPI-U for the base year.

Phrased as a formula, the calculation is:

[GRAPHIC] [TIFF OMITTED] TP29NO99.003

The base year for calculations premised on the $75 statutory cap is

1981. The base year for calculations premised on the $125 statutory cap

is 1995.

To illustrate how the calculation works, two examples are provided.

Example 1: The maximum rate for attorney fees for services provided

in 1993 is $119/hr, based on the following calculation:

[GRAPHIC] [TIFF OMITTED] TP29NO99.004

Example 2: The maximum rate for attorney fees for services provided

in 1997 is $132, based on the following calculation:

[GRAPHIC] [TIFF OMITTED] TP29NO99.005

[[Page 66590]]

The FLRA seeks comments and suggestions concerning its proposed

method of adjusting the statutory fee cap.

Other Specific Factors

The FLRA is seeking comment on whether to also amend its EAJA

regulations to allow for an adjustment to the statutory fees cap based

on ``special factors.'' We note that the Federal Mine Safety and Health

Review Commission has recently amended its regulations to allow fee

increases based on special factors, 61 FR 66961 (Nov. 12, 1998).

The EAJA, 5 U.S.C. 504(b)(1)(A), lists as a special factor the

``limited availability of attorneys qualified to handle certain types

of proceedings.'' This phrase refers to a narrow category of attorneys

who have ``some distinctive knowledge or specialized skill'' such as

those who practice patent law. Pierce v. Underwood, 487 U.S. 552, 572

(1988). Without specifying what other special factors may exist, the

Supreme Court noted that they ``must be such as are not of broad and

general application.'' Id. at 573.

The FLRA reiterates that it is unclear whether expertise in

administrative practice before the FLRA qualifies as a ``special

factor.'' See 55 FLRA at 448 n.4 (citing F.J. Vollmer Co., Inc. v.

Magaw, 102 F.3d 591, 598-99 (D.C. Cir. 1994); Waterman Steamship Corp.

v. Maritime Subsidy Bd., 901 F.2d 1119, 1124 (D.C. Cir. 1990)).

The FLRA proposes revising Sec. 2430.5 to provide that requests for

special factor increases in fees are submitted to the administrative

law judge assigned to the matter, and thereafter subject to Authority

review. The FLRA asks commentators to address two questions. First, is

it appropriate to establish a regulation allowing for increases due to

special factors? Second, assuming that such a regulation is

established, what, if any, specific criteria should the regulation set

out to be considered in analyzing a request for such an increase? As

currently proposed, the regulation does not list any specific criteria.

Regulatory Flexibility Act Certification

Pursuant to section 605(b) of the Regulatory Flexibility Act, 5

U.S.C. 605(b), the FLRA has determined that this regulation, as

amended, will not have a significant economic impact on a substantial

number of small entities, because this rule applies to Federal

employees, Federal agencies, and labor organizations representing

Federal employees.

Unfunded Mandates Reform Act of 1995

This rule change will not result in the expenditure by state,

local, and tribal governments, in the aggregate, or by the private

sector, of $100,000,000 or more in any one year, and it will not

significantly or uniquely affect small governments. Therefore, no

actions were deemed necessary under the provisions of the Unfunded

Mandates Reform Act of 1995.

Small Business Regulatory Enforcement Fairness Act of 1996

This action is not a major rule as defined by section 804 of the

Small Business Regulatory Enforcement Fairness Act of 1996. This rule

will not result in an annual effect on the economy of $100,000,000 or

more; a major increase in costs or prices; or significant adverse

effects on competition, employment, investment, productivity,

innovation, or on the ability of United States-based companies to

compete with foreign-based companies in domestic and export markets.

Paperwork Reduction Act of 1995

The amended regulation contains no additional information

collection or record keeping requirement under the Paperwork Reduction

Act of 1995, 44 U.S.C. 3501, et seq.

List of Subjects in 5 CFR Part 2430

Administrative practice and procedure, Equal access to justice,

Government employees, Labor-management relations.

For the reasons stated in the preamble, the FLRA amends 5 CFR part

2430 as follows:

PART 2430--AWARDS OF ATTORNEY FEES AND OTHER EXPENSES

1. The authority citation for part 2430 is revised to read as

follows:

Authority: 5 U.S.C. 504.

2. Revise Sec. 2430.4(a) to read as follows:

Sec. 2430.4 Allowable fees and expenses.

(a)(1)(i) No award for the fee of an attorney or agent under these

rules may exceed $125.00 per hour, or for adversary adjudications

commenced prior to March 29, 1996, $75.00 per hour, indexed to reflect

cost of living increases as follows:

[GRAPHIC] [TIFF OMITTED] TP29NO99.006

(ii) The cost of living index to be used is the Consumer Price

Index, All Urban Consumers, U.S. City Average, All Items (CPI-U). If

legal services are provided during more than one year, each year shall

be calculated separately. If an annual average CPI-U for a particular

year is not yet available, the prior year's annual average CPI-U shall

be used.

(2) No award to compensate an expert witness may exceed the highest

rate that the Authority pays expert witnesses. However, an award may

also include the reasonable expenses of the attorney, agent, or witness

as a separate item, if the attorney, agent, or witness ordinarily

charges clients separately for such expenses.

* * * * *

3. Revise Sec. 2430.5 to read as follows:

Sec. 2430.5 Rulemaking on maximum rates for attorney fees.

If warranted by special factors, attorney fees may be awarded at a

rate higher than that established in Sec. 2430.4. Any such increase in

the rate for attorney fees shall be made only upon a petition submitted

by the applicant, pursuant to Sec. 2430.6. Determinations regarding fee

adjustments are subject to Authority review as specified in

Sec. 2430.13.

Dated: November 23, 1999.

Solly Thomas,

Executive Director.

[FR Doc. 99-30897 Filed 11-26-99; 8:45 am]

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