Claim for Attorney Fees

GAO was asked if an agency could reimburse an employee for legal fees incurred when he was named as an alleged discriminating official in a discrimination complaint. A letter of reprimand had been issued to the employee for discriminating against another employee on the basis of sex. The employee filed a grievance, and the grievance examiner concluded that the letter of reprimand was not justified. The agency accepted the grievance examiner's recommendation and rescinded the action. The employee claimed reimbursement of attorney fees for hiring an attorney to review the descrimination file and investigate the report incident to the grievance proceedings. The agency denied the claim, but forwarded the claim to GAO for determination. GAO has held that the hiring of an attorney is a matter between the attorney and the client and that, absent express statutory authority, reimbursement of attorney fees may not be allowed. Federal regulations allow for the payment of attorney fees by administrative agencies in settlement of discrimination compliants. However, these regulations limit the award of attorney fees to employees or applicants for employment who prevail on their discrimination complaints. This authority does not extend to persons who are named in discrimination complaints as alleged discriminating officials. There is also nothing in FPM Letter 713-42 which authorizes the hiring or reimbursement of fees charged by a private attorney who is representing an alleged discriminating official. Since the employee's grievance was not before the Merit Systems Protection Board, his attorneys fees cannot be paid under this authority. Since the reprimand did not involve any withdrawal, reduction, or denial of pay or allowances, his grievance was not subject to the Back Pay Act, and his claim for attorney fees would not be allowable under that authority. Accordingly, GAO concluded that there was no authority for payment of the employee's attorney fees.