Claim for Attorney Fees Under Back Pay Act

A Federal employee appealed a Claims Division settlement which denied his claim for attorney fees. The attorney fees had been incurred in connection with his appeal of a demotion. The appellate authority and the Merit Systems Protection Board both found that the action against the employee was not well founded and in effect unnecessary and should be reversed. The employee asked the Board to award him attorney fees incurred in connection with the appeal, but this request was denied. The Civil Service Reform Act provided the Board with specific authority to award reasonable attorney fees to employees who prevail on appeal under certain conditions. However, the payment of attorney fees is not applicable to any administrative proceeding that was pending prior to the effective date of the Act. Since the employee's appeal of the adverse action was filed prior to that date and was pending on the effective date of the Act, the Claims Division found him ineligible for reimbursement of attorney fees. In his appeal, the employee cited a recent court decision which provided a broad interpretation of the attorney fees provision in the Act. GAO learned that this decision will be appealed by the Government and, thus, is not persuaded by the decision that the provisions of the Act are intended to be retroactively effective. Accordingly, the Claims Division settlement which denied the claim for attorney fees was sustained.