[Federal Register Volume 65, Number 39 (Monday, February 28, 2000)]
[Rules and Regulations]
[Pages 10373-10374]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-4569]



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 Rules and Regulations
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  Federal Register / Vol. 65, No. 39 / Monday, February 28, 2000 / 
Rules and Regulations  

[[Page 10373]]



FEDERAL LABOR RELATIONS AUTHORITY

5 CFR Part 2430


Amendment of Equal Access to Justice Act Attorney Fees 
Regulations

AGENCY: Federal Labor Relations Authority.

ACTION: Final rule.

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SUMMARY: The Federal Labor Relations Authority (FLRA) amends 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 will 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 modifies its rules to allow an applicant to request an 
increase to the maximum fees rate based on special factors.

EFFECTIVE DATE: March 29, 2000.

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 FLRA proposed revisions to Part 2430 of 
its EAJA regulations, which were published in the Federal Register on 
November 29, 1999 (64 FR 66589). Public comment was solicited on the 
proposed changes. However, no written comments were received in 
response to the notice of proposed rulemaking.
    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 amends its rule to allow for an increase in the maximum 
EAJA attorney fees rate based on cost of living increases. The FLRA's 
inflation-based adjustment to the statutory cap utilizes 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] TR28FE00.000

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.

Other Special Factors

    The FLRA also amends its EAJA regulations to allow for an 
adjustment to the statutory fees cap based on ``special factors.'' 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.

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,

[[Page 10374]]

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 this 
part 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] TR28FE00.001

    (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: February 23, 2000.
Solly Thomas,
Executive Director.
[FR Doc. 00-4569 Filed 2-25-00; 8:45 am]
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