UNITED STATES DEPARTMENT OF JUSTICE, BUREAU OF PRISONS, WASHINGTON, D.C. AND BUREAU OF PRISONS, FEDERAL CORRECTIONAL INSTITUTION, RAY BROOK, NEW YORK and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 3882

OFFICE OF ADMINISTRATIVE LAW JUDGES WASHINGTON, D.C. 20424-0001

UNITED STATES DEPARTMENT OF JUSTICE, BUREAU OF PRISONS, WASHINGTON, D.C. AND BUREAU OF PRISONS, FEDERAL CORRECTIONAL INSTITUTION, RAY BROOK, NEW YORK
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 3882
Charging Party/ Union
Case No. 1-CA-40368
(46 FLRA No. 89)
William C. Owen For the Respondent
Martin R. Cohen For the Charging Party
Before: GARVIN LEE OLIVER Administrative Law Judge

DECISION ON ATTORNEY FEES

Statement of the Case


On December 18, 1992 the Authority, pursuant to a remand from the United States Court of Appeals for the District of Columbia in American Federation of Government Employees, Local 3882 v. FLRA, 944 F.2d 922 (D.C. Cir. 1991), remanded to this Office the attorney fee request for Martin R. Cohen "to determine the hourly rate and the amount of fees appropriate for the work Cohen performed." On December 29, 1992 the Chief Administrative Law Judge ordered Mr. Cohen, in the absence of agreement or stipulation, to produce satisfactory evidence of the prevailing rate in the community for similar services. He afforded the Respondent the opportunity to submit a response. The parties' responses were assigned to the undersigned for disposition.

Findings of Fact and Conclusions

Number of Hours

On June 16, 1987 Mr. Cohen billed for 2.5 hours expended in the preparation of a supplemental brief in support of the Charging Party's motion for attorney fees. I found the number of hours requested to be reasonable, and the Authority found no error in the granting of the hours requested. SeeUnited States Department of Justice, Bureau of Prisons, Washington, D.C. and Bureau of Prisons, Federal Correctional Institution, Ray Brook, New York, 32 FLRA 20 (1988) at 28 and 42. The Authority in its recent remand stated, in part,

Although it is clear that Cohen expended 2.5 hours of work on this case, we are

nable to determine the market rate basis on which to award Cohen attorney fees.

Noting that this case arose at a time when the Authority was applying a cost-plus

basis for determining attorney fees, we will remand Cohen's request for attorney

fees to the Judge to determine the hourly market rate and the amount of fees appro-

-priate for the 2.5 hours of work Cohen performed.6/


6/ On September 23, 1992, Cohen mailed a Motion for Payment of Attorney Fees Upon Reversal and

Remand to the Office of the Administrative Law Judges. On October 7, 1992, the document was

transferred to the Authority's Docket Room. The Judge may consider this material on remand or

request additional documen-tation.

It is not clear that the Authority was restricting my consideration of Mr. Cohen's attorney fee request to the 2.5 hours he expended on the motion for attorney fees on June 16, 1987, or whether additional hours expended by Mr. Cohen in connection with the current request for attorney fees should also be considered. In view of the Authority's reference to Mr. Cohen's September 23, 1992 motion, in which he requests that one additional hour be allowed for preparation of that motion on September 22, 1992 following the Court's reversal and remand, and the Authority's more general order which requires me "to determine the hourly rate and the amount of fees appropriate for the work performed," I conclude that, although not free from doubt, the additional hours requested should be considered to avoid a further remand.

The Authority has held that an award for work performed in connection with the application for attorney fees is reasonable under the Back Pay Act. Department of the Air Force Headquarters, 832D Combat Support Group DPCE, Luke Air Force Base, Arizona, 32 FLRA 1084, 1106-08 (1988) (Luke AFB); National Association of Government Employees, Local R5-188 and U.S. Department of the Air Force, Seymour Johnson Air Force Base, North Carolina, 46 FLRA 458, 469 (1992). An award for work performed on the attorney fee application following the Authority's remand is also reasonable. This is nothing more than a derivative or continuing action enforcing the original entitlement to f