Attorney Fees: Authority of Special Counsel, MSPB

The Special Counsel of the Merit Systems Protection Board requested an opinion concerning whether his office had the authority to recommend payment of reasonable attorneys' fees under the Back Pay Act. Specifically, he sought a decision on the following four questions: (1) was the Special Counsel an appropriate authority; (2) might he include the payment of attorneys' fees to a complainant employee or applicant as part of the corrective action recommended to an agency; (3) might the Special Counsel recommend that an agency pay attorneys' fees in a case where the prohibited personnel action did not result in withdrawal or reduction of an employee's pay, allowances, or differentials; and (4) might attorneys' fees be paid on the basis of the agency's determination or acknowledgment of an unjustified or unwarranted personnel action before or without issuance of formal findings and recommendations by the Special Counsel. It was held that the Special Counsel was an appropriate authority under the regulations. The authority to recommend corrective action was held to include the right to recommend to an agency that reasonable attorney fees be awarded to a complainant employee under the Back Pay Act. However, this does not apply to applicants because applicants are not covered by the Act. When a prohibited personnel practice did not result in loss of pay, allowances, or differentials, it was held that the Special Counsel did not have authority to award attorneys' fees. Finally, it was held that when a complainant employee's agency made a determination that there had been an unjustified personnel action requiring corrective action, the agency could authorize payment of reasonable attorneys' fees. In such a case, formal findings and recommendations by the Special Counsel for corrective action would be unnecessary.