Arbitration Award


In re

U.S. Department of Justice

Federal Bureau of Prisons

Federal Medical Center

Carswell, Texas


AFGE Council of Prison Locals, Local 1006

126 LA (BNA) 823

FMCS Case No. 07/04342

May 14, 2009

Samuel J. Nicholas, Jr., Arbitrator *



On November 25, 2008 the Arbitrator rendered an Opinion to which was modified by his Supplemental Opinion and Final Award, dated March 3, 2009, thereby upholding the merits of the grievance in the subject case. However, the Arbitrator noted that the amount due by Agency was “…exclusive of any attorneys’ fees and costs to which the Union may be entitled under the FLSA.”


Accordingly, Union filed its Petition for Recovery of Attorneys’ Fees and Costs. Agency took great exception to Union’s right and determination of fees and costs: In chief, it argues that “the hours should be reduced by 35 percent because the claimed hours are duplicated and excessive.” Also, Agency took exception to the hourly rate provided by Union for the computation of fees. In so doing, Agency charged that the Arbitrator’s final determination should be “no more than fifty percent of the 459 hours requested or $57,375.”




As the moving party and the recognized Petitioner herein, Union requested that it be allowed to respond to Agency’s taken exceptions on its Petition. Same was granted and on May 8, 2009 Union’s reply was duly filed with the Arbitrator. In large measure, Union claimed that attorneys’ fees and costs were due since Union had been determined the “prevailing party.” See Arbitrator’s Award November 25, 2008.


With the instant case highlighting violations of the Fair Labor Standards Act (FLSA), the Arbitrator is with recognized authority “the (Arbitrator) shall, in addition to any judgment awarded to the Plaintiffs, allowing reasonable attorneys’ fee to be paid by the Defendant, and cost of the action.” 29 U.S.C. 216(b) Accordingly, Union says it has applied the recognized standard for determining attorneys’ fees as set out in Hensley v. Eckerhart, 461 U.S. 424 (1983), wherein the Court ruled that certain factors must be considered in determining reasonable attorneys’ fees.

(1)   the time and labor required;

(2)   the novelty and difficulty of the questions;

(3)   the skill requisite to perform the legal services properly;

(4)   the preclusion of other employment due to acceptance of the case;

(5)   the customary fee;

(6)   time limitations imposed;

(7)   the amount involved and the results obtained;

(8)   the experience reputation, and abilities of the attorneys;

(9)   the undesirability of the case;

(10)           the nature and length of the professional relationship with the client; and

(11)           awards in similar cases. [1]


Agency’s opposition to fees is also tied to its contention that the instant case is controlled by the Federal Labor Relations Act (FLRA) and Back Pay Act rather than the FLSA relative to an Arbitrator’s authority for determining fees/costs. As such, it asserts that the Arbitrator must make the following findings:


1.      the employee was the prevailing party;

2.      the award of fees is warranted in the interest of justice;

3.      the amount of the fees is reasonable; and

4.      the fees were incurred by the employee.


Moreover, Agency holds that the Arbitrator must reject Union’s Petition for the following reasons:


1.      The Union’s attorney hourly rate is not reasonable for the relevant community.

2.      Union’s request for over 459 hours is not the number of hours reasonably expended on this case and is not in the interest of justice.

3.      Union should not receive any compensation or expenses.

4.      Union’s attorneys’ fee request should be subject to 50% across the board reduction.




The Arbitrator has considered Union’s request for fees and the documentation submitted in support of same. Also, I have duly noted Agency’s taken exceptions to Union’s request and the reasons given therefor. Accordingly, the Arbitrator makes the following findings:


1. The subject grievance submitted to the Arbitrator is controlled by the parties’ Master Agreement (“Agreement”) and made subject to applicable federal law. Here, I find the FLSA to be the relevant statute.


2. While the Arbitrator finds that the FLRA does not govern here, FLRA decisions do indeed reflect that an Arbitrator is with the authority to grant an award of fees, upon his determination of prevailing party and he may do so prior to exception being taken with his award. See Dept. of Homeland Security Customs and Border Protection Agency and AFGE Local 1917, 60 FLRA 813, 817 [60 FLRA No. 153] (2005) (citing Dept. of Defense Dependents Schools, Pac. Region and Overseas Ed. Assoc., Pac. Region, 30 FLRA 1206, 1216 (1988), reconsideration granted as to other matters, 32 FLRA 757 (1988) (“There is nothing in Authority precedent or applicable law which requires an arbitrator to refrain from granting a request for attorney fees until the Authority resolves any exceptions which may have been filed to the underlying award”). [2] To be sure, I am unaware of any authority requiring the Arbitrator to issue a “stay” pending administrative and/or judicial review.


3. With the parties’ domiciled in Washington, D.C., and Union attorneys situated therein, the relevant community standard for determining an appropriate hourly rate for the computation of attorneys’ fees in this case is that recognized by the Washington, D.C. bar as reflected in Union’s petition. [3]


4. The number of hours Union expended is found to be reasonable.


5. Union is entitled to recover its expenses incurred in this matter. [4]





The detailed listing of hours and expenses incurred in this case is made subject to the aforenoted criteria and authority. Thus, the Arbitrator finds that reasonable fees are due Union in the amount of $157,901.50 and is due to receive $17,969.51 for incurred expenses. No determination is made as to whether any fees/expenses may be due on the remaining unheard issues set for hearing on September 16-17, 2009.




*    Selected by parties through procedures of the Federal Mediation and Conciliation Service.


1.      In accord, see Bankston v. Illinois, 60 F.3d 1249, 1256 (7th Cir. 1995) (following Hensley in fashioning FLSA fee awards); Haworth v. Nevada, 56 F.3d 1048, 1052 (9th Cir. 1995) (same); Sherman v. Gateway Elec. Med. Mgmt. Sys., 2009 U.S. Dist. Lexis 868 (D. Ind. 2009) (Fee awards in FLSA cases are vital to the enforcement of the statute).


2.      Agency cited no authority to the contrary.


3.      Interestingly, the same principal parties put a similar matter before this Arbitrator wherein an attorneys’ fees/cost request was made. See U.S. Department of Justice Immigration & Naturalization Service & AFGE. The matter was heard in McAllen, Texas and no objection to the fee computation of counsel, the same attorneys representing Union herein. As today, the same attorneys’ maintain their offices in Washington, D.C.


4.      Agency’s objection is highly linked to conjecture and suspicion.