FLRA Proposed Rules Amendment
[Federal Register: November 29, 1999 (Volume 64, Number 228)]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
FEDERAL LABOR RELATIONS AUTHORITY
5 CFR Part 2430
Amendment of Equal Access to Justice Act Attorney Fees
AGENCY: Federal Labor Relations Authority.
ACTION: Proposed rule.
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
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
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
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
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
(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