[Federal Register Volume 64, Number 228 (Monday, November 29, 1999)]
[Proposed Rules]
[Pages 66589-66590]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-30897]


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 Proposed Rules
                                                 Federal Register
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 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
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  Federal Register / Vol. 64, No. 228 / Monday, November 29, 1999 / 
Proposed Rules  

[[Page 66589]]


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FEDERAL LABOR RELATIONS AUTHORITY

5 CFR Part 2430


Amendment of Equal Access to Justice Act Attorney Fees 
Regulations

AGENCY: Federal Labor Relations Authority.

ACTION: Proposed rule.

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SUMMARY: The Federal Labor Relations Authority (FLRA) proposes to amend 
its regulations implementing the Equal Access to Justice Act (EAJA) by 
adopting a cost of living adjustment to the maximum rate for the 
calculation of attorney fees permitted under the EAJA. Specifically, 
the FLRA proposes to use the Bureau of Labor Statistics Consumer Price 
Index, All Urban Consumers, U.S. City Average, All Items to create an 
inflation-based adjustment to the statutory cap on attorney fees. The 
FLRA also proposes modifying the rules to allow an applicant to request 
an increase to the maximum fees rate based on special factors.

DATES: Comments must be received on or before January 13, 2000.

ADDRESSES: Mail or deliver written comments to the Office of Case 
Control, Federal Labor Relations Authority, 607 14th Street, NW, Room 
415, Washington, DC 20424-0001.

FOR FURTHER INFORMATION CONTACT: Peter Constantine, Office of Case 
Control, Federal Labor Relations Authority, 607 14th Street, NW, 
Washington, DC 20424-0001, or by telephone at (202) 482-6540.

SUPPLEMENTARY INFORMATION: The EAJA, 5 U.S.C. 504(b)(1)(A) (1994 & 
Supp. III 1997), provides that an agency may not award attorney fees in 
excess of $125 per hour (or $75 for proceedings commenced prior to 
March 29, 1996), unless the agency determines by regulation that a 
higher fee is justified by (1) an increase in the cost of living or (2) 
some special factor. In a recent decision, 55 FLRA (No. 72) 444 (Apr. 
30, 1999), responding to petitions requesting an adjustment to the EAJA 
fees cap, the FLRA announced its intention to engage in the instant 
rulemaking to consider appropriate criteria for increasing the maximum 
rate based on cost of living and other special factors. The FLRA also 
announced in that decision its intention to amend its regulations 
implementing the EAJA to permit recovery, in conjunction with adversary 
adjudications commenced on or after March 29, 1996, of attorney fees 
not to exceed $125.00 per hour. This was accomplished through the 
promulgation of the final rule published at 64 FR 30861 (Jun. 9, 1999).

Cost of Living

    The FLRA proposes to allow for an increase in the maximum EAJA 
attorney fees rate based on cost of living increases. For guidance in 
this regard, the FLRA has looked to the National Transportation Safety 
Board's EAJA regulations, 49 CFR part 826, and its statement in its 
proposed rulemaking regarding the cost of living adjustment to the 
statutory cap (57 FR 60785) (Dec. 22, 1992). The FLRA proposes an 
inflation-based adjustment to the statutory cap based on the Bureau of 
Labor Statistics Consumer Price Index, All Urban Consumers, U.S. City 
Average, All Items (CPI-U). This CPI-U is the generally understood 
``cost of living'' index that is widely used as a price inflator in 
labor and contract matters.
    To determine the appropriate attorney fees rate, adjusted for cost 
of living, the statutory cap ($125 or $75) is multiplied by an 
inflation factor. The inflation factor is the CPI-U for the year that 
legal services were rendered divided by the CPI-U for the base year. 
Phrased as a formula, the calculation is:
[GRAPHIC] [TIFF OMITTED] TP29NO99.003

    The base year for calculations premised on the $75 statutory cap is 
1981. The base year for calculations premised on the $125 statutory cap 
is 1995.
    To illustrate how the calculation works, two examples are provided.
    Example 1: The maximum rate for attorney fees for services provided 
in 1993 is $119/hr, based on the following calculation:
[GRAPHIC] [TIFF OMITTED] TP29NO99.004

    Example 2: The maximum rate for attorney fees for services provided 
in 1997 is $132, based on the following calculation:
[GRAPHIC] [TIFF OMITTED] TP29NO99.005


[[Page 66590]]


    The FLRA seeks comments and suggestions concerning its proposed 
method of adjusting the statutory fee cap.

Other Specific Factors

    The FLRA is seeking comment on whether to also amend its EAJA 
regulations to allow for an adjustment to the statutory fees cap based 
on ``special factors.'' We note that the Federal Mine Safety and Health 
Review Commission has recently amended its regulations to allow fee 
increases based on special factors, 61 FR 66961 (Nov. 12, 1998).
    The EAJA, 5 U.S.C. 504(b)(1)(A), lists as a special factor the 
``limited availability of attorneys qualified to handle certain types 
of proceedings.'' This phrase refers to a narrow category of attorneys 
who have ``some distinctive knowledge or specialized skill'' such as 
those who practice patent law. Pierce v. Underwood, 487 U.S. 552, 572 
(1988). Without specifying what other special factors may exist, the 
Supreme Court noted that they ``must be such as are not of broad and 
general application.'' Id. at 573.
    The FLRA reiterates that it is unclear whether expertise in 
administrative practice before the FLRA qualifies as a ``special 
factor.'' See 55 FLRA at 448 n.4 (citing F.J. Vollmer Co., Inc. v. 
Magaw, 102 F.3d 591, 598-99 (D.C. Cir. 1994); Waterman Steamship Corp. 
v. Maritime Subsidy Bd., 901 F.2d 1119, 1124 (D.C. Cir. 1990)).
    The FLRA proposes revising Sec. 2430.5 to provide that requests for 
special factor increases in fees are submitted to the administrative 
law judge assigned to the matter, and thereafter subject to Authority 
review. The FLRA asks commentators to address two questions. First, is 
it appropriate to establish a regulation allowing for increases due to 
special factors? Second, assuming that such a regulation is 
established, what, if any, specific criteria should the regulation set 
out to be considered in analyzing a request for such an increase? As 
currently proposed, the regulation does not list any specific criteria.

Regulatory Flexibility Act Certification

    Pursuant to section 605(b) of the Regulatory Flexibility Act, 5 
U.S.C. 605(b), the FLRA has determined that this regulation, as 
amended, will not have a significant economic impact on a substantial 
number of small entities, because this rule applies to Federal 
employees, Federal agencies, and labor organizations representing 
Federal employees.

Unfunded Mandates Reform Act of 1995

    This rule change will not result in the expenditure by state, 
local, and tribal governments, in the aggregate, or by the private 
sector, of $100,000,000 or more in any one year, and it will not 
significantly or uniquely affect small governments. Therefore, no 
actions were deemed necessary under the provisions of the Unfunded 
Mandates Reform Act of 1995.

Small Business Regulatory Enforcement Fairness Act of 1996

    This action is not a major rule as defined by section 804 of the 
Small Business Regulatory Enforcement Fairness Act of 1996. This rule 
will not result in an annual effect on the economy of $100,000,000 or 
more; a major increase in costs or prices; or significant adverse 
effects on competition, employment, investment, productivity, 
innovation, or on the ability of United States-based companies to 
compete with foreign-based companies in domestic and export markets.

Paperwork Reduction Act of 1995

    The amended regulation contains no additional information 
collection or record keeping requirement under the Paperwork Reduction 
Act of 1995, 44 U.S.C. 3501, et seq.

List of Subjects in 5 CFR Part 2430

    Administrative practice and procedure, Equal access to justice, 
Government employees, Labor-management relations.
    For the reasons stated in the preamble, the FLRA amends 5 CFR part 
2430 as follows:

PART 2430--AWARDS OF ATTORNEY FEES AND OTHER EXPENSES

    1. The authority citation for part 2430 is revised to read as 
follows:

    Authority: 5 U.S.C. 504.

    2. Revise Sec. 2430.4(a) to read as follows:


Sec. 2430.4  Allowable fees and expenses.

    (a)(1)(i) No award for the fee of an attorney or agent under these 
rules may exceed $125.00 per hour, or for adversary adjudications 
commenced prior to March 29, 1996, $75.00 per hour, indexed to reflect 
cost of living increases as follows:
[GRAPHIC] [TIFF OMITTED] TP29NO99.006

    (ii) The cost of living index to be used is the Consumer Price 
Index, All Urban Consumers, U.S. City Average, All Items (CPI-U). If 
legal services are provided during more than one year, each year shall 
be calculated separately. If an annual average CPI-U for a particular 
year is not yet available, the prior year's annual average CPI-U shall 
be used.
    (2) No award to compensate an expert witness may exceed the highest 
rate that the Authority pays expert witnesses. However, an award may 
also include the reasonable expenses of the attorney, agent, or witness 
as a separate item, if the attorney, agent, or witness ordinarily 
charges clients separately for such expenses.
* * * * *
    3. Revise Sec. 2430.5 to read as follows:


Sec. 2430.5  Rulemaking on maximum rates for attorney fees.

    If warranted by special factors, attorney fees may be awarded at a 
rate higher than that established in Sec. 2430.4. Any such increase in 
the rate for attorney fees shall be made only upon a petition submitted 
by the applicant, pursuant to Sec. 2430.6. Determinations regarding fee 
adjustments are subject to Authority review as specified in 
Sec. 2430.13.

    Dated: November 23, 1999.
Solly Thomas,
Executive Director.
[FR Doc. 99-30897 Filed 11-26-99; 8:45 am]
BILLING CODE 6727-01-P