[Reconsideration of Claim for Attorney Fees Under the Back Pay Act]

A government employees union requested reconsideration of a decision which denied its claim for attorney fees and expenses in connection with an employee's successful backpay claim. GAO had held that, although the employing agency had violated a personnel practice prohibition, its action was based on an erroneous assumption and did not entitle the employee to attorney fees or expenses. The union contended that the agency should have been aware of the prohibition and knew that its action would not prevail on its merits. The union also argued that, since the employee successfully protested the agency action, payment of the fees was warranted in the interest of justice. GAO noted that a criterion for repayment is to demonstrate that the agency should have known that its action would not prevail on its merits. GAO held that, since the violation resulted from an erroneous interpretation of regulations, the agency was unaware of the prohibition until after resumption of the backpay claim. Further, the union did not provide evidence to the contrary. Accordingly, the prior decision was affirmed.