After Arbitration:

Filing Exceptions with the Authority

July 18, 2017
Filing Exceptions with the Authority 2 7/18/2017
What’s the difference?

Filing Exceptions with the Authority 3

?

7/18/2017
•Normally confined to the 

interpretation/application of 

CBA

•No statutory requirement to 

arbitrate

Filing Exceptions with the Authority 4 7/18/2017
Filing Exceptions with the Authority 5

The Federal Service LaborManagement Relations Statute

7/18/2017
Filing Exceptions with the Authority 6

Every CBA

MUST

include

a negotiated

grievance procedure (NGP) 

and provide for binding 

arbitration

7/18/2017
§ 7103(a)(9)

Any complaint by any employee OR any union

concerning any matter relating to the employment of the 

employee

AND

Any complaint by any employee, union, OR agency

concerning 

 the effect or interpretation, or claim of breach, of a CBA

 any claimed violation, misinterpretation, or 

misapplication of any law, rule, or regulation affecting 

conditions of employment

Filing Exceptions with the Authority 7 7/18/2017
• Parties can negotiate matters out of 

coverage

• Some exclusions come from outside 

the Statute:

OMB Circular A-76

5 C.F.R. § 575.311(g)

• Some exclusions are in the Statute

Filing Exceptions with the Authority 8 7/18/2017
§ 7121(c)

 Prohibited political activities (Hatch Act)

 Retirement, life insurance, or health insurance 

 Suspension or removal for national-security 

 reasons

 Examination, certification, or appointment 

 Classification of any position that does not result in 

a reduction in grade or pay

Filing Exceptions with the Authority 9 7/18/2017
The grade level of the duties permanently 

assigned to, and performed by, the grievant

 Classifying currently unclassified duties

 Accretion of higher-graded duties to an 

existing position

Filing Exceptions with the Authority 10 7/18/2017
 Grievances re: temporary promotion

 Promotion within existing career-ladder 

 Failure to promote under competitive 

procedure

 Accuracy of a PD

Filing Exceptions with the Authority 11 7/18/2017
 § 7116(d): grievance or ULP

 § 7121(d): grievance or EEO complaint

 § 7121(e): grievance or MSPB appeal 

• adverse actions under § 7512

• certain performance-based actions under § 4303

 § 7121(g): prohibited personnel practice

• (5 U.S.C. § 2302(b)(2)) – grievance or appeal to MSPB, 

or through OSC 

Filing Exceptions with the Authority 12 7/18/2017
 Same issue 

• same factual predicate AND

• substantially similar legal theories

 Statutory claim doesn’t bar contractual claim. 

 ULP was filed earlier

• Does NOT matter if ULP wasn’t pursued or fully litigated 

AND

 Selection of ULP procedures was at discretion of 

aggrieved party

• must be same aggrieved party

 distinguish individual vs. institutional issues

Filing Exceptions with the Authority 13 7/18/2017
Same subject matter

AND

Matter was earlier raised by the employee 

timely initiating an action under the 

statutory EEO procedure

Filing Exceptions with the Authority 14 7/18/2017
Filing Exceptions with the Authority 15 7/18/2017
Failure to comply is a ULP if award is 

FINAL AND BINDING

• Final award – see slide 21

Validity of award CANNOT be challenged 

in ULP proceeding.

Filing Exceptions with the Authority 16 7/18/2017
 No timely exceptions filed

• compliance required when period for filing exceptions expires

 FLRA denies exceptions

• compliance required upon denial 

BUT

• Compliance not required while exceptions pending 

Filing Exceptions with the Authority 17 7/18/2017
“Functus Officio”

• After arbitrator renders award regarding an issue, 

NO authority to take further action on that issue 

unless: 

 retained jurisdiction OR

 parties jointly request

 

Filing Exceptions with the Authority 18 7/18/2017
Arbitrator may:

• clarify initial award

• correct clerical or arithmetic error in initial 

award

• complete an award by resolving a submitted 

issue that the arbitrator's initial award failed 

to resolve

 What about continuing violations?

Filing Exceptions with the Authority 19 7/18/2017
Back Pay Act (5 U.S.C. § 5596)

 At any time during arbitration

 Within a reasonable period of time after award 

becomes final and binding

 CBA may govern timing for requests 

Filing Exceptions with the Authority 20 7/18/2017
What is an interlocutory appeal?

What is a “final award”?

• Is this different from final and 

binding? 

Filing Exceptions with the Authority 21 7/18/2017
An exception filed 

before a final award

has been issued

Filing Exceptions with the Authority 22 7/18/2017
An award that completely 

resolves all submitted issues 

If everything is decided, award is final

 EVEN if jurisdiction is retained to assist with 

implementation

Filing Exceptions with the Authority 23 7/18/2017
Directs the parties to determine:

• Amount of backpay/damages/costs? 

• Identification of affected individuals? 

• An appropriate remedy? NOT FINAL

• Whether monetary remedy would be 

appropriate? NOT FINAL

Filing Exceptions with the Authority 24 7/18/2017
 What if the Arbitrator says the award is final?

• DO NOT rely on arbitrator’s characterization of award

 What if the Arbitrator bifurcated the hearing?

• Just because arbitrator resolved all issues re: 1st part of 

bifurcated hearing, doesn’t mean resolved all issues 

submitted

 What if the Arbitrator retained jurisdiction to 

resolve attorney fees?

• Does NOT render exceptions to merits award 

interlocutory

Filing Exceptions with the Authority 25 7/18/2017
Plausible Jurisdictional Defect

Extraordinary circumstances warrant 

interlocutory review where there is a 

plausible jurisdictional defect, the 

resolution of which will advance the 

ultimate disposition of the case

Filing Exceptions with the Authority 26 7/18/2017
Plausible = claim is credible on its face; 

mere assertion not enough 

Advancing the “ultimate disposition” of the 

case = resolution of the jurisdictional issue 

must end the dispute

NOTE: usually statutory

Filing Exceptions with the Authority 27 7/18/2017
 Exception granted

• Claim arbitrator lacked jurisdiction to resolve a 

classification matter under 5 U.S.C. § 7121(c)(5)

 Exception dismissed 

 Claim arbitrator lacked jurisdiction based only on 

parties’ agreement 

 Claim that arbitrator may not be impartial in 

determining arbitrability because he had “a financial 

interest in presiding over a prolonged merits hearing”

Filing Exceptions with the Authority 28 7/18/2017
Filing Exceptions with the Authority 29 7/18/2017
Filing Exceptions with the Authority 30 7/18/2017
Either PARTY to arbitration

•“Party” = any person who participated 

as a party in a matter where an 

arbitration award was issued 

• Only union and agency are entitled to 

file exceptions

 Unless grievant is authorized to file 

exceptions

Filing Exceptions with the Authority 31 7/18/2017
www. FLRA.gov

5 C.F.R. §§ 2425 & 2429

(it’s all in there)

Filing Exceptions with the Authority 32 7/18/2017
Exceptions and oppositions may 

be filed by registered users

through the Authority’s eFiling 

system

Benefits :

• Free

• Convenient

Filing Exceptions with the Authority 33 7/18/2017
Filing Exceptions with the Authority 34 7/18/2017
Filing Exceptions with the Authority 35 7/18/2017
5 C.F.R. § 2425.2

Exceptions due 30 calendar days from date 

of service of award 

• Exclude date of service of the award

 Method of service is up to arbitrator unless parties’ 

agreement specifies

 First service method controls

• Date parties RECEIVE exceptions is irrelevant 

when calculating due date

 What about weekends and holidays?

Filing Exceptions with the Authority 36 7/18/2017
 Arbitrator uses regular mail or FedEx?

• Calculate from postmark (mail) or date deposited (FedEx)

• If illegible or missing, use date of the award

• Add 5 days to the due date

 Arbitrator uses email or fax?

• Calculate from date of transmission

• No extra time

 Arbitrator uses personal delivery?

• Calculate from date of delivery

• No extra time

Filing Exceptions with the Authority 37 7/18/2017
Filing Exceptions with the Authority 38

Sunday Monday Tuesday Wed Thursday Friday Saturday

May 23 24 25 26 27

Date of 

service of 

award

28

Start 

counting

29 30 31 June 1 2 3 4

5 6 7 8 9 10 11

12 13 14 15 16 17 18

19 20 21 22 23 24 25

26

30 days!

27

Due date

(BUT add 5 

days for mail)

28

Start

counting

29 30 July 1 2

Fifth day

3 4

HOLIDAY

5

ACTUAL

DUE DATE

6 7 8 9

7/18/2017
5 C.F.R. § 2425.2

 Time limit cannot be extended or waived

• May be equitably tolled if:

(1) some extraordinary circumstance stood in a 

party's way to prevent timely filing; and 

(2) the party was pursuing its rights diligently

Note: The Authority may waive an expired time limit in extraordinary 

circumstances for untimely filed oppositions 

Filing Exceptions with the Authority 39 7/18/2017
Filing Exceptions with the Authority 40 7/18/2017
The Authority will send a deficiency order for:

Failure to provide copy of arbitrator’s 

award

Failure to provide statement of service 

Failure to provide table of contents 

Incorrect number of copies

Filing Exceptions with the Authority 41 7/18/2017
The Authority will send a show-cause order for:

 Failure to Cure Procedural Deficiencies

Timeliness

Interlocutory 

Moot/Advisory Opinion 

 Lack of Jurisdiction

 Lack of Standing

Filing Exceptions with the Authority 42 7/18/2017
THE AUTHORITY WILL 

DISMISS YOUR EXCEPTIONS 

WITHOUT REGARD TO THE 

NATURE OF THE 

DEFICIENCY

Filing Exceptions with the Authority 43 7/18/2017
5 C.F.R. § 2425.4

What you must include

What you can leave out

Filing Exceptions with the Authority 44 7/18/2017
5 C.F.R. § 2425.7

Excepting party may request

 Authority has discretion over whether to grant request

 Opposing party may respond to request in opposition

Authority considers:

 Complexity

 Potential for precedential value

 Similarity to other, fully detailed decisions involving 

same/similar issues

Authority may issue even absent request

Not in arbitration cases involving a ULP

Filing Exceptions with the Authority 45 7/18/2017
Anything you should have known to, but 

did not, raise below 

Evidence

 Factual assertions

Arguments (including affirmative defenses)

 Requested remedies

 Potential challenges to a requested remedy

Filing Exceptions with the Authority 46 7/18/2017
5 C.F.R. §§ 2425.4, 2429.5

 Not raised below

• Was there an opportunity to raise the issue?

 Post-hearing brief

 Other ways?

• Was issue known before award issued?

• What about arbitrator bias?

 Raised below in a contrary way

Authority will not consider arguments

Filing Exceptions with the Authority 47 7/18/2017
• Authority has no jurisdiction

• Exceptions do not raise a recognized ground

• Exceptions do not support a recognized ground

Filing Exceptions with the Authority 48 7/18/2017
 Authority has no jurisdiction over exceptions to awards that concern:

 Reductions in grade/removals based on unacceptable 

performance under 5 U.S.C. § 4303

 Removal, suspension for more than 14 days, reduction in pay, 

or furlough of 30 or fewer days under 5 U.S.C. § 7512 

 Similar matters arising under other personnel systems

 Matters “related to” – i.e., “inextricably intertwined with” –

those matters

Filing Exceptions with the Authority 49 7/18/2017
5 C.F.R. § 2425.6(e)(1): Failure to raise

 Currently recognized grounds 

• The arbitrator: 

 exceeded his or her authority

 was biased

 denied the excepting party a fair hearing

• The award: 

 is contrary to any law, rule or regulation

 fails to draw its essence from the parties’ agreement

 is based on a nonfact

 is incomplete, ambiguous, or contradictory so as to make 

implementation of the award impossible

 is contrary to public policy

Filing Exceptions with the Authority 50 7/18/2017
5 C.F.R. § 2425.6(e)(1): Failure to support

 Must offer sufficient argument or authority to 

support that ground

 To support a ground not currently recognized, a 

party must cite the legal authorities relied upon

Filing Exceptions with the Authority 51 7/18/2017
5 C.F.R. § 2425.3

 Not required

 30 days to file (from service of exceptions)

 Address:

 Arguments, including failure to raise/support issues

 Any request for expedited, abbreviated decision 

 Include:

 Documents relied on UNLESS provided with exceptions

 Documents not readily accessible by the Authority

Filing Exceptions with the Authority 52 7/18/2017
5 C.F.R. § 2429.26

 Authority may consider “other documents,” but filing 

party must:

 Request leave to file

 5 C.F.R. § 2429.26

 Argue why submission is necessary

 E.g., Addresses new argument raised by opposing 

party

 Serve copies on other parties

Filing Exceptions with the Authority 53 7/18/2017
Filing Exceptions with the Authority 54 7/18/2017
 Direct parties to provide evidence (including arbitration 

record, see 5 C.F.R. § 2429.3)

 Direct parties to respond to requests for further 

information

 Meet with parties

 Direct oral argument

 Take any other appropriate action

Filing Exceptions with the Authority 55 7/18/2017
Filing Exceptions with the Authority 56

Overview 

& 

Private-Sector Grounds

7/18/2017
Exceptions to arbitration awards = majority of 

Authority’s case load

Types of exceptions:

• Private-sector grounds 

 Deference to arbitrator

• Contrary to law, rule, or regulation 

 De novo review of legal conclusions

 Deference to arbitrator’s factual findings

Filing Exceptions with the Authority 57 7/18/2017
(1) Arbitrator failed to resolve submitted issue 

 arbitrator not required to address every argument 

raised

(2) Resolved an issue not submitted

(3) Disregarded specific limitations on authority

 a claim that the arbitrator added 

to/altered/modified the CBA generally will not 

demonstrate exceeded authority

(4) Awarded relief to non-grievants

 remedy too broad

Filing Exceptions with the Authority 58 7/18/2017
DEFERENCE

Stipulated issue v. Framed issue

Filing Exceptions with the Authority 59 7/18/2017
 Award procured by improper means

 Arbitrator was partial or corrupt

 Arbitrator engaged in misconduct that 

prejudiced party’s rights

Filing Exceptions with the Authority 60 7/18/2017
 Arbitrator refused to hear or consider 

pertinent and material evidence

 Actions so prejudiced a party as to affect 

fairness of proceeding as a whole

Filing Exceptions with the Authority 61 7/18/2017
 Cannot be rationally derived from parties’ agreement;

 So unfounded in reason and fact, 

unconnected w/wording and purpose of 

agreement as to manifest infidelity to 

obligation of arbitrator;

 Implausible interpretation of agreement;

OR

 Evidences manifest disregard of agreement

Filing Exceptions with the Authority 62 7/18/2017
Central fact underlying the award is 

clearly erroneous, but for which the 

arbitrator would have reached a 

different result

Cannot challenge factual matters 

disputed before arbitrator

Filing Exceptions with the Authority 63 7/18/2017
Filing Exceptions with the Authority 64 7/18/2017
Must be explicit, well-defined, 

and dominant

AND

Violation of policy must be 

clearly shown

Filing Exceptions with the Authority 65 7/18/2017
Must provide citations and explain 

how they support finding award 

deficient

Filing Exceptions with the Authority 66 7/18/2017
Contrary to law, rule, or regulation

• Absent allegation of nonfact, Authority defers 

to arbitrator’s factual findings

• U.S. Constitution

• Statutes

• Regulations

 Government-wide

 Governing agency rules or regs

Filing Exceptions with the Authority 67 7/18/2017
 When award based on separate and independent 

grounds, appealing party must establish that all 

grounds are deficient

 For example:

 Award based on interpretation of two CBA provisions and 

interpretation of either provision provides a sufficient basis for 

the award

 Must show interpretation of BOTH provisions is 

deficient 

 Award based on interpretations of CBA and Statute

 Must show interpretation of BOTH CBA and Statute 

are deficient 

Filing Exceptions with the Authority 68 7/18/2017
Procedural arbitrability

Substantive arbitrability

Filing Exceptions with the Authority 69 7/18/2017
Determined by:

• Whether procedural conditions to 

arbitrability have been met or excused

• Examples include:

 Timeliness of a grievance

Filing Exceptions with the Authority 70 7/18/2017
What grounds can you use to challenge it?

 Bias

 Exceeded authority 

 Fair hearing 

 Law that establishes procedural requirements that 

apply to NGP 

What about essence?

What about nonfact? 

Filing Exceptions with the Authority 71 7/18/2017
Determined by:

• Whether subject matter of dispute is 

arbitrable

• If determination is based on CBA, then 

essence standard

• If determination is based on law, then 

de novo standard

Filing Exceptions with the Authority 72 7/18/2017
Filing Exceptions with the Authority 7/18/2017 73

7106(a)
Party asserting that arbitration award is 

contrary to management rights must show 

both:

• Award affects a management right

AND

• Contract provision arbitrator enforced was not 

negotiated under § 7106(b)

Filing Exceptions with the Authority 7/18/2017 74
 Does the award affect a management right 

under § 7106(a)?

 If so, was arbitrator enforcing:

• Contract provision negotiated under § 7106(b) 

(for any management-right claims); 

or 

• applicable law (for § 7106(a)(2) claims)?

Filing Exceptions with the Authority 75 7/18/2017
 Mission

 Budget

 Organization

 Number of employees

 Internal-security practices

Filing Exceptions with the Authority 7/18/2017 76
 Hire employees

 Assign employees

 Direct employees

 Layoff employees

 Retain employees in the agency

Filing Exceptions with the Authority 7/18/2017 77
 Suspend employees

 Remove employees

 Reduce in grade or pay

 Take other disciplinary action

Filing Exceptions with the Authority 7/18/2017 78
 Assign work

 Make determinations with 

respect to contracting out 

 Determine the personnel by 

which agency operations will be 

conducted 

Filing Exceptions with the Authority 7/18/2017 79
§ 7106(a)(2)(C):

• With respect to filling positions, make selections 

for appointments from:

 (1) among properly ranked and certified 

candidates for promotion; or

 (2) any other appropriate source

§ 7106(a)(2)(D):

• Take whatever actions may be necessary to 

carry out the agency mission during 

emergencies 

Filing Exceptions with the Authority 80 7/18/2017
Look to Authority precedent

Parties should brief arbitrators on:

• How the award will affect management’s rights

• Exceptions to management’s rights

Arbitrators should be cognizant of 

possible effects and exceptions

Filing Exceptions with the Authority 7/18/2017 81
The award does NOT affect a § 7106(a) 

management right?

 Exception denied!

The award DOES affect a § 7106(a) 

management right?

 Then ...

Filing Exceptions with the Authority 7/18/2017 82
. . . ask whether the arbitrator was 

enforcing:

• A provision negotiated under § 7106(b)(1), (2), 

or (3) (for all § 7106(a) rights); and/or

• An applicable law (for § 7106(a)(2) rights)

Filing Exceptions with the Authority 83 7/18/2017
 Numbers, types, and grades

 Of employees or positions

 Assigned to any

 Organizational subdivision,

 Work project, or

 Tour of duty

Filing Exceptions with the Authority 7/18/2017 84
 Technology, methods, & means of performing 

work

TECHNOLOGY

technical method used in accomplishing or 

furthering performance of agency’s work 

METHOD

the way agency performs its work (the “how”)

MEANS

any instrumentality, including an agent, tool, device, 

measure, plan, or policy used by an agency for the 

accomplishment or furtherance of the performance of its 

work (“with what”) Filing Exceptions with the Authority 7/18/2017 85
 Agency must bargain the 

“procedures which management . . . 

will observe in exercising” any 

§ 7106 management right

 Look to the case law

Filing Exceptions with the Authority 86 7/18/2017
APPROPRIATE ARRANGEMENTS

 First ask: Whether the CBA provision, as interpreted 

and applied by the arbitrator:

• Is an “arrangement” for employees adversely 

affected by the exercise of a management right

 If yes, then ask: Does the CBA provision, as interpreted 

and applied by the arbitrator:

• Abrogate management’s rights 

 Different analysis than in negotiability cases involving 

proposals

Filing Exceptions with the Authority 87 7/18/2017
For § 7106(a)(2) rights, ask whether the arbitrator 

was enforcing an “applicable law”

APPLICABLE LAW

lawfully enacted statutes, the U.S. Constitution, 

controlling judicial decisions, executive orders 

issued pursuant to express statutory authorization, 

and regulations having the force and effect of law 

Filing Exceptions with the Authority 88 7/18/2017
Regulations have the “force and effect of law” 

where they:

 (1) Affect individual rights and obligations;

 (2) Were promulgated pursuant to an explicit or 

implicit delegation of legislative authority by 

Congress; 

AND

 (3) Were promulgated in accordance with procedural 

requirements imposed by Congress

Filing Exceptions with the Authority 89 7/18/2017
• Must provide a remedy for a violation of 

either an “applicable law” within the 

meaning of § 7106(a)(2) 

OR 

• a contract provision that was negotiated 

pursuant to § 7106(b) of the Statute

• No reconstruction

Filing Exceptions with the Authority 90 7/18/2017
Filing Exceptions with the Authority 91 7/18/2017
 Award must be consistent with any rule 

or regulation that governs the matter in 

dispute

 Government-wide regulations treated 

differently than agency-specific 

regulations

Filing Exceptions with the Authority 92 7/18/2017
Rules, regulations, and official 

declarations of policy that are 

generally applicable throughout 

the federal government and are 

binding on the federal agencies 

and officials to whom they apply

Filing Exceptions with the Authority 93 7/18/2017
 Regulation before CBA

• Reg governs

 CBA before regulation

• CBA governs until it expires

Exception: gov’t-wide regulations that 

implement 5 U.S.C. § 2302 (prohibited 

personnel practices) 

Filing Exceptions with the Authority 94 7/18/2017
Rules, regulations, and 

official declarations of policy 

prescribed by an agency to 

govern matters within that 

agency

Filing Exceptions with the Authority 95 7/18/2017
Only when there’s no applicable, 

conflicting CBA provision

• CBA, not agency regulations, governs matters to 

which they both apply when there is a conflict 

• Reason: Statute does not prevent agency from 

agreeing to a CBA that alters or modifies agency 

regulation

• Deference to an arbitrator’s finding that CBA 

governs

Filing Exceptions with the Authority 96 7/18/2017
 An arbitrator may find that agency regulations have been 

incorporated into CBA

 And if CBA says matters will be conducted “in 

accordance with an agency regulation,” that wording 

“effectively incorporates” the regulation into the CBA –

unless the arbitrator indicates otherwise in the award

 Review of the arbitrator’s interpretation and application 

of the incorporated agency regulations = essence 

standard

Filing Exceptions with the Authority 97 7/18/2017
Filing Exceptions with the Authority 98 7/18/2017
Broad remedial discretion

Authority denies exceptions that don’t 

support setting aside remedy/attempt to 

substitute different remedy

Filing Exceptions with the Authority 99 7/18/2017
Private and federal sectors: Can’t 

dispense “own brand of industrial 

justice”

Additional federal-sector exceptions 

stem from:

• Laws and regulations governing employment

• Expanded scope of grievance procedure 

(arbitrators substitute for other forums)

Filing Exceptions with the Authority 100 7/18/2017
Sovereign immunity

• May be raised at any time, even if not raised before 

arbitrator

Must be explicit statutory waiver

• Common examples:

 Back Pay Act, 5 U.S.C. § 5596

 FLSA, 29 U.S.C. §§ 201-219

 No sovereign-immunity waiver required for 

monetary remedies that are “equitable” in nature

Filing Exceptions with the Authority 101 7/18/2017
Unjustified or unwarranted personnel 

action

• Violation of applicable law, rule, regulation, or 

CBA

 Includes governing agency-wide regs 

Resulting in loss of pay, allowances, or 

differentials

• “Pay, leave, and other monetary employment 

benefits to which an employee is entitled by statute 

or regulation ....”

Filing Exceptions with the Authority 102 7/18/2017
Causal connection necessary

• Essential because backpay is make-whole 

remedy 

FLRA reviews for evidence of connection

• Does not require particular words or phrases 

(such as “but for”)

 No requirement to identify specific employees 

when award sufficiently identifies specific 

circumstances warranting backpay

Filing Exceptions with the Authority 103 7/18/2017
 Cannot exceed “a period beginning 

more than 6 years before the date of the 

filing of a timely appeal” (e.g., a 

grievance)

 Does not establish when period can 

end/total duration of recovery period

Filing Exceptions with the Authority 104 7/18/2017
STATUTORY ENTITLEMENT

 Begins: Date of Loss

 Ends: Date not more than 30 

days before date on which paid

Filing Exceptions with the Authority 105 7/18/2017
Filing Exceptions with the Authority 106 7/18/2017
Primary: Back Pay Act, 5 U.S.C. § 5596

Others: 

• FLSA

• Privacy Act

• Rehabilitation Act

Filing Exceptions with the Authority 107 7/18/2017
 The Back Pay Act requires that an 

award of fees be:

• Awarded in conjunction with backpay 

award;

• Reasonable and related to personnel 

action;

• Awarded in accordance with standards 

established under 5 U.S.C. § 7701(g)

Filing Exceptions with the Authority 108 7/18/2017
Standards established under 5 U.S.C. 

 § 7701(g)

• Prevailing party

• Incurred by the employee

• Warranted in the interest of justice

• Reasonable amount

Note: Arbitrator must make specific findings 

supporting each pertinent statutory 

requirement 

Filing Exceptions with the Authority 109 7/18/2017
Prevailing Party

• Enforceable judgment on the 

merits

• Degree of success not a 

consideration

Filing Exceptions with the Authority 7/18/2017 110
Attorney-client relationship

Legal services rendered

Under certain circumstances, 

attorney fees may be awarded for 

the services of non-attorney 

representatives 

Filing Exceptions with the Authority 111 7/18/2017
How can you meet § 7701(g)(1)’s standard?

 ALLEN THE

CRITERIA STATUTE

Filing Exceptions with the Authority 112 7/18/2017
(1) Prohibited personnel practice

(2) Clearly without merit/wholly unfounded or 

employee substantially innocent

(3) Bad faith

(4) Gross procedural error; OR

(5) Agency knew or should have known would 

not prevail

Filing Exceptions with the Authority 113 7/18/2017
Prohibited personnel practice

• 5 U.S.C. § 2302

• Distinct from “unjustified or 

unwarranted personnel action”

Filing Exceptions with the Authority 114 7/18/2017
Clearly without merit/wholly unfounded

• Examine competing interests of fault of employee 

and reasonableness of agency action

Employee substantially innocent

• Employee prevails on substantive rather than 

technical grounds on major charges 

Focal point is result of merits award 

Filing Exceptions with the Authority 115 7/18/2017
Bad faith

• Action brought to “harass” the 

employee 

• Action brought to exert improper 

pressure on the employee to act in 

certain ways

Filing Exceptions with the Authority 116 7/18/2017
Gross procedural error

• Prolonged proceeding or severely 

prejudiced employees

• More than simple harmful error 

warranting reversal of agency 

action

Filing Exceptions with the Authority 117 7/18/2017
 Agency knew or should have known would not 

prevail

• Analysis of agency evidence and agency conduct of 

investigation

 Focal point = reasonableness of agency actions 

in view of information available at the time of the 

action

 Penalty an aspect of merits; if penalty mitigated 

on evidence available to agency, and no new 

info presented at hearing, then agency knew or 

should have known 

Filing Exceptions with the Authority 118 7/18/2017
Billing rate

Reasonable number of hours

No explicit provision for interest on 

attorney fees

NOTE: Degree of success IS a 

 consideration 

Filing Exceptions with the Authority 119 7/18/2017
 Petition for fees and opportunity to respond

 May resolve in merits award, but ...

 Back Pay Act jurisdiction

• Doctrine of functus officio does not permit refusal to consider 

timely request

• Arbitrator may resolve fee issue at any time during arbitration, 

or within reasonable period after award becomes “final and 

binding,” or if the parties agree to a different period

 Requests for fees determined by “appropriate 

authority” as defined by 5 C.F.R § 550.807

Filing Exceptions with the Authority 120 7/18/2017
Filing Exceptions with the Authority 121 7/18/2017
 § 7123(a): FLRA decisions in arbitration cases 

reviewable only if the order involves a ULP

 Look at order - not award, not grievance 

• More than acknowledge ULP 

• Must necessarily implicate a statutory ULP 

even if no explicit discussion

 Conduct must actually have been characterized 

as a ULP

Filing Exceptions with the Authority 122 7/18/2017
 No jurisdiction where CBA was basis for 

arb’s award and FLRA’s review 

 No automatic grant of jurisdiction when an 

agency claims order violates sovereign 

immunity

•“Routine statutory and regulatory questions—in this 

case, the meaning of the ‘shall not exceed’ clause in 

the Back Pay Act and ‘administrative error’ in [the 

agency’s] assignment policy—are not transformed 

into constitutional or jurisdictional issues merely 

because a statute waives sovereign immunity.” 

Filing Exceptions with the Authority 123 7/18/2017
 Furthers Congressional interest in:

• providing arbitration awards substantial finality

• ensuring a single, uniform body of case law 

concerning ULPs 

 Standard of review: 

• Arbitrary/capricious

• Court will uphold remedial order for a ULP “‘unless 

it can be shown that the order is a patent attempt to 

achieve ends other than those which can fairly be 

said to effectuate the policies of the Act.’” 

Filing Exceptions with the Authority 124 7/18/2017
Filing Exceptions with the Authority 125 7/18/2017