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We will hear argument next in case number 181888, AFGE Local 3599 versus EEOC.

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Ms.

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Hutchinson.

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Good afternoon, Your Honor.

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May it please the Court?

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I am Barbara Hutchinson, representing the Petitioner, AFGE Local 3599.

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And this is an appeal from a denial of attorney's fees and an arbitration decision on a termination from employment by a mediator of the EEOC.

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And the arbitrator was John Dorsey, and he found in favor of the employee.

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The employee was the prevailing party, and we sought attorney's fees under the back pay

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And in terms of the arbitrator's decision, Mr. Dorsey denied attorney's fees.

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The attorney's fees initially in his initial decision, he denied fees and we requested reconsideration and arbitrator Dorsey denied the reconsideration.

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There was no analysis under the criteria of the back pay act.

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There was no discussion.

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And we believe that arbitrator Dorsey's decision

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was arbitrary and an abuse of discretion.

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Under the standards which apply under the Back Pay Act, the Federal Back Pay Act, if an employee is a prevailing party and prevails on reversing a personnel decision, an unwarranted and unjustified personnel decision, then the employee is entitled to an award of fees under the act and under the standard

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for the interests of justice.

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And before Arbitrator Dorsey, in the petition for reconsideration, we did request that he award the fees under the standards and criteria that require an award of fees under the Federal Back Pay Act.

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Can I ask you this?

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Yes.

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My recollection, just correct me if I'm wrong, is that the EEOC, in response to your request for reconsideration,

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really make two different arguments against fees.

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One was that they weren't justified under the interest of justice standard and the second was that under this labor contract there can't be fees.

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Do we know one way or the other whether the arbitrator might have denied fees by relying on the contract argument which the EEOC does not press here?

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No, Your Honor, there's nothing in the record that would indicate that.

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And that's the problem in terms of the decision of the arbitrator.

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An arbitrator is bound by the same standards that apply to the Merit System Protection Board in deciding disciplinary actions that are appealable to the board, which this would have been an adverse action.

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And so he could not just arbitrarily deny the fees without

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applying the law that applies under consideration for fees before the mayorate system protection board.

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And because we requested it under the federal back pay act, he would have had to have conducted an analysis.

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He could not just say, oh, well, I deny it.

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He has to conduct an analysis and that is the law that applies before the board

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in consideration of attorney's fees.

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And I just want to make sure I understand what that analysis would entail.

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Would that would involve the determination of whether it's in the interest of justice to provide those fees, which would in turn probably cause the arbitrator to look at the Allen factors?

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Do I understand that correctly?

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That is correct.

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That is the correct standard that must be applied.

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And that is the reason his decision must be reversed, because

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He did not conduct any analysis and therefore his decision was arbitrary and it would be an abuse of his discretion not to conduct any analysis.

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I believe that that was made very clear in Dunn and also Morrison, which we relied upon in our appeal, in our petition.

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And I believe that the arbitrator could not possibly just deny it and not assess those Allen factors.

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And in this case, we believe that the standards under Allen versus United States Postal Service have been met and that this award of fees would have been warranted in the interest of justice.

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What if the arbitrator had simply said, I've analyzed the Allen factors and conclude that an award of fees would not be in the interest of justice here?

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I do not believe that you could do that under the requirements of Morrison and those things set out and done.

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The arbitrator has to identify those things which he believes would have prevented the award of fees.

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He must analyze his decision in terms of the application of the Allen factors.

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And I believe Dunn was very clear about that, that you must actually look at the factors in light of the arbitrator's decision.

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So he couldn't just say, I don't want to award fees because I don't believe they're warranted.

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He would have to go back and review his decision and point to those things.

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I believe that that's necessary.

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Otherwise, how would one ever know what his basis for denial was?

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that what factors in his decision led him to reach that conclusion.

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And I believe... Something you just said gave me pause.

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Are you suggesting that in deciding whether the Allen factors apply or not, he is limited to things that specifically he is noted in his decision?

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That is correct.

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And that is what Dunn pointed out.

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I thought Dunn was more a situation where the court was saying that the arbitrator could not change his mind as to some factors discussed in the award, as opposed to looking beyond the text of the award in deciding whether the Allen factors were present.

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I think that Dunn and I think that

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The question is the difference between supplementing what was discussed in the award versus contradicting what was said in the award.

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That's correct.

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The former would seem to be permissible in light of the fact that the Allen factors go pretty far beyond just the question of whether the person was impermissibly dismissed.

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And you would almost necessarily be discussing things that wouldn't necessarily be permitted or required in looking at whether the dismissal was correct.

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Isn't that true?

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I'm not sure.

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Well, I'm sorry.

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The question was rather convoluted.

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Let me try again.

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Isn't it all right for the arbitrator once he's finished with the decision on the merits to say, okay, now with respect to fees,

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I have to look at some different things that are different from what I looked at in deciding whether this person should have been fired.

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And these other things I now will discuss.

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And if they aren't embodied in the opinion on the merits, that's okay.

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Isn't that all right?

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I don't believe that that is the law.

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And I don't believe that that would be consistent with Dunn or Morrison.

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I believe that both of those decisions say,

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that if the person is the prevailing party, you cannot then start going afield of the decision that was made, because if you did that, you would start to be, you could consider things that were totally outside the universe of what had been before the arbitrator.

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I think that that definitely would not be consistent with Alan, which says that the standards are

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whether or not the person prevailed on the merits or they were substantially innocent of the charges, whether or not the agency's action was wholly unfounded, and all the other criteria under Allen.

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How would you then start bringing in matters that might have occurred post-hearing or pre-decision?

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I think that if you did that,

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then how would parties ever defend against such a thing?

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Because they would not know how would they have the opportunity to come forward and say, oh, well, you know, Mr. Arbitrator or hearing officer, don't consider that factor because we have a defense against that.

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It would be an endless trail.

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So I think that the rulings in Dunn and Morrison are very consistent with saying that

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the arbitrator goes back or the hearing officer and looks at the decision to determine whether the criteria in the interest of justice have been met, because it should be in the four corners of that decision whether those criteria have been met.

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And that's the basis for an award of fees.

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Can I ask you to try to help me understand the chronology of arguments about whether

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that diabetes issue and medication either did or did not account for the behavior on the day in question.

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Because in your filing to, I think in the opposite, responding to the proposed suspension, proposed removal, sorry, I guess supplemental appendix 102, you seem to be saying,

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that although he has diabetes and his medication may have caused excessive sweating.

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However, on this day, the witness statements are evidence that Mr. Hamilton was not experiencing extreme side effects from his medical condition.

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Your Honor, if that is the supplemental appendix, I do not believe that was, that was prior to, that was evidence that was prior to the arbitrator's decision and it was not up for consideration in the matter of attorney's fees.

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If that is your reading.

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I guess here's what I'm, what I'm trying to understand.

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Maybe in the arbitration, the record there was made that you were kind of relying on this, um, explanation for the behavior during the day.

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But maybe if you had, um, maybe the, the deciding official having been given essentially the opposite view.

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um, was acting reasonably in, uh, deciding to remove because the only sort of on the table explanation for this behavior, you on behalf of Mr. Hamilton was saying was not the explanation.

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Well, Your Honor, I understand that question.

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However, that was not up for consideration in a decision on attorney's fees because the arbitrator's decision

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had been made and he decided that Mr. Hamilton and the union were the prevailing parties and that... Right, but maybe this just goes back to what Judge Bryson was exploring for you.

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That seemingly most relevant of the Allen factors is whether the agency's action was clearly without merit, was wholly unfounded, whether the employee is substantially innocent of the charges.

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Does it really not matter

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what the deciding official knew at the time of the decision to remove?

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I believe that Morrison and Dunn are instructive on that.

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It is the decision that must be looked at to determine whether attorney's fees are warranted.

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As I said, if you could go back behind the decision, then it would be endless.

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You could go back and re-argue the whole case.

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But once the person was the prevailing party, then from that point forward, you're looking at the decision to determine whether or not the Allen factors were met.

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And in this case, there was no question that Mr. Hamilton and the union were the prevailing party.

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They prevailed on the merits and he found that the agency's action and the charges were not substantiated.

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I think if you look at the appendix beginning at page 20 through 25, in that, that is the arbitrator's decision where he found that he did not uphold the agency's charges.

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He also said that the employee had a one-time event and he could make that finding.

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There's no question he could make that finding that the employee had a one-time event.

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But he said that the agency submitted no proof that the employee's behavior had any negative effect on the agency's reputation, that the deciding official failed to assign the correct burden of proof in terms of assessing the Allen, the Douglas factors, so that the arbitrator made findings

[00:15:27] Speaker 02:
which supported an award of fees in the interest of justice, even if he had decided that he thought he had this medical event, which he said he believed he had a medical event, that doesn't substantiate a denial of fees because you don't have to prevail on every issue.

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Let me see if I understand your legal argument here fully.

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Suppose that the arbitrator had said, all right, I am cognizant of the fact that I really need to explain on the fees issue the reasons that I'm denying fees.

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So he first decides the case in your client's favor and says, based on the evidence that pertains to whether he should have been fired, I hereby find that that evidence is insufficient to support his firing.

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And then he says,

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And I'm going to continue because I'm now going to turn to the question of fees.

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And as to the question of fees, I conclude that even though it does not bear directly on whether he should have been fired or not, I think the government, in this case, the employer was acting in good faith and that there was significant basis for their concluding that he should have been fired.

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Would that be all right, even though the fee portion of his opinion

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did not relate back to the firing portion of his opinion.

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But it did because the employee doesn't have to prevail on all the issues.

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I understand.

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What I'm trying to posit is a hypothetical in which the judge or the arbitrator says, I'm now going to move to fees and in discussing fees,

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I'm going to discuss factors that don't bear on whether he should have been or shouldn't have been fired.

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I'm going to discuss only the question of whether the government acted in bad faith and the other Alan factors.

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Would that be all right?

[00:17:30] Speaker 02:
That would be all right because that is an Alan factor and I understand that and I may have misunderstood you previously, but that would be okay because the arbitrator or deciding official, I'm sorry, the administrative hearing officer is not going beyond

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uh, their decision, they found that, um, they believe that the government didn't act in bad faith, which is one of the factors they have to consider.

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Yes.

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We'll restore your, um, rebuttal time.

[00:18:10] Speaker 01:
May it please the court.

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The union has failed to meet its burden and established that an award of attorney fees here is warranted in the interest of justice.

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The arbitrator's decision not to award fees is not arbitrary nor capricious, but instead was supported by substantial evidence in the record, both within the arbitrator's decision itself as well as within the appendix materials we provided.

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Let me ask you a question, picking up on Judge Toronto's question to your opposing counsel.

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In the submission,

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that was made, initial submission that was made on by the government in response to the motion for reconsideration.

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The government argues two things.

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One, that under the Allen factors there was no basis for a fee award.

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And number two, under the regulations, there was no basis for a fee award.

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Do you defend the argument that the regulations themselves

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provide an independent basis for denying a fee award.

[00:19:12] Speaker 01:
With respect to the collective bargaining agreement?

[00:19:14] Speaker 01:
Yes.

[00:19:16] Speaker 01:
No, that is not what we're arguing.

[00:19:17] Speaker 04:
So not only is not what you're arguing, I'm really asking you, do you think it's correct or wrong?

[00:19:23] Speaker 01:
The collective bargaining agreement, as we read it, states that the arbitrator's fees and expenses shall be borne equally bit.

[00:19:33] Speaker 04:
That's the way I read it as well.

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That doesn't say anything about attorney's fees.

[00:19:36] Speaker 04:
It does not say anything about attorney's fees.

[00:19:39] Speaker 04:
Then how do we know, since those were two independent grounds that were submitted to the arbitrator for denying fees, how do we know that the arbitrator didn't rule on the basis of the argument that you made that the regulations themselves are a sufficient basis for denying fees?

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The arbitrator's decision was silent with respect to the collective bargaining agreement.

[00:20:03] Speaker 04:
So we don't really know that the arbitrator didn't accept your second argument, do we?

[00:20:09] Speaker 01:
You cannot know 100% no.

[00:20:11] Speaker 04:
However, the... Why shouldn't we send this back to the arbitrator to tell us which was the basis of which he ruled?

[00:20:18] Speaker 01:
Because the arbitration decision itself, if you're looking, as my opposing counsel argues, just within the four corners of the arbitration decision, there's sufficient evidence to support not awarding attorney fees, not in the interest of justice, because the arbitrator found

[00:20:36] Speaker 01:
not that Mr. Hamilton was substantially innocent, but rather that his conduct was excusable due to a medical condition that Mr. Hamilton himself disclaimed, as the arbitrator stated at page, I believe it's appendix, page 22, that Mr. Hamilton consistently throughout the proceedings stated that he did not believe he had a medical condition, and the arbitrator found that Mr. Hamilton

[00:21:01] Speaker 01:
Because he never asserted it, the arbitrator was the one stating that this medical condition caused the conduct.

[00:21:07] Speaker 01:
Did he assert it in the arbitration proceeding?

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Did Mr. Hamilton assert that he had a medical condition?

[00:21:14] Speaker 01:
Not to my knowledge, Your Honor.

[00:21:16] Speaker 01:
The arbitration decision explicitly states that even during the proceedings, to my understanding, Mr. Hamilton stated, no, there was no medical condition.

[00:21:24] Speaker 01:
And in the brief submitted by his counsel, states that there's no medical condition for

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to explain his conduct on that day.

[00:21:35] Speaker 00:
Just to ask you a different question.

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It's not really that different.

[00:21:38] Speaker 00:
It goes to all of this, which is when we're reviewing, though, for an abuse of discretion, how can we see if there was an abuse of discretion or not if we don't even know the basis on which the decision was made?

[00:21:50] Speaker 01:
Well, if this court can, I believe the language is,

[00:21:55] Speaker 01:
show the reasonable path to determine how the arbitrator reached his decision on attorney fees?

[00:22:00] Speaker 00:
But that goes to the question of, you know, I could see a reasonable path with the Allen factors, but if I don't know whether the board relied on the collective bargaining agreement argument or whether it relied on the Allen factors, how do I answer that?

[00:22:15] Speaker 00:
How do I know what the clear path was?

[00:22:19] Speaker 01:
The court could determine the clear path by, again, looking within the four corners of the agreement and determining whether the Allen factors are met.

[00:22:25] Speaker 01:
But if the court doesn't believe that there's sufficient explanation within the arbitration decision, then that would be reason to remand rather than reverse.

[00:22:38] Speaker 01:
But the substantial factors here clearly show that none of the Allen factors are met.

[00:22:43] Speaker 01:
Or I'm sorry, the substantial evidence.

[00:22:45] Speaker 01:
Because the arbitrator, importantly, didn't say that,

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that he disagreed with everything that the EEOC did.

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He disagreed with three specific points of the three specific charges in total, three specific points.

[00:23:01] Speaker 01:
He otherwise, he fully credited the testimony of Mr. Hamilton's coworkers with respect to the language that was used against them, his insulting them, his behavior that day.

[00:23:12] Speaker 01:
He fully credited Mrs. Johnson's

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testimony regarding Mr. Hamilton's decision, or I'm sorry, his actions that day.

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And he did not disagree certainly with the assertions that Mr. Hamilton failed to follow a direct order.

[00:23:31] Speaker 01:
And so all of the arbitrator's findings separately, again, with the exception of three specific points, he fully agreed with what occurred.

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He didn't find Mr. Hamilton to be substantially innocent, but rather that his conduct was excusable.

[00:23:50] Speaker 01:
And importantly, the arbitrator also found that Mr. Hamilton, again, he never apologized or attempted to excuse his conduct, including by providing the medical excuse which the arbitrator himself relies on.

[00:24:08] Speaker 01:
Essentially, the arbitrator here agreed with the EEOC and the substantial evidence set forth in the four corners of the arbitration agreement shows that none of the Allen factors were met.

[00:24:20] Speaker 01:
And if the court has further questions, I'm happy to answer.

[00:24:28] Speaker 01:
Thank you.

[00:24:28] Speaker 01:
Ms.

[00:24:28] Speaker 01:
Hutchinson.

[00:24:34] Speaker 02:
I have only a few items.

[00:24:37] Speaker 02:
I want to direct the court's attention to the appendix page, I guess it begins at page 20 of the appendix.

[00:24:47] Speaker 02:
This is the arbitrator's decision.

[00:24:50] Speaker 02:
And he says, first there was insufficient proof.

[00:24:53] Speaker 02:
Hamilton directed racial epithets personally to either Mr. or Mrs. Johnson.

[00:24:59] Speaker 02:
None of the interviews with the Johnsons provided support for that charge.

[00:25:03] Speaker 02:
He says, second, Mrs. Johnson's statements and our testimony at the arbitration hearing do include the charge Ms.

[00:25:15] Speaker 02:
Hamilton hit Mr. Johnson's leg in her foot.

[00:25:19] Speaker 02:
There was no proof that action rose to the level of assault, let alone, as Director Farrell claimed, assault and battery.

[00:25:28] Speaker 02:
Third, he says, I can find no basis for Hawthorne citing the FBS conclusion

[00:25:33] Speaker 02:
that Hamilton's appearance, physical changes in speech, strongly indicated and intoxicant.

[00:25:41] Speaker 02:
And he says at page 20, appendix page 24, he says that the facts here clearly established Hamilton's behavior on November 27 was a one-time event.

[00:25:59] Speaker 02:
He had an unblemished record, and he also says

[00:26:03] Speaker 02:
The EEOC case and Farrell's final determination contain no proof that Hamilton's behavior had any negative effect on the agency's reputation.

[00:26:13] Speaker 02:
Of prime importance, there was no investigation or consideration.

[00:26:17] Speaker 02:
Hamilton's unusual behavior that day was caused by his obvious medical condition.

[00:26:22] Speaker 02:
I do not believe that the arbitrator in any way in this decision upheld the agency's determination that a

[00:26:33] Speaker 02:
an event that they substantiated their burden of proof in terms of terminating Mr. Hamilton.

[00:26:42] Speaker 02:
And I think that the arbitrator's decision in not applying the standards that are required under the Allen factors and in denying attorney's fees is arbitrary and it's an abuse of discretion.

[00:26:59] Speaker 02:
I do believe that the decision contains

[00:27:02] Speaker 02:
information that would substantiate an award of fees and we would ask that the court can do that.

[00:27:08] Speaker 03:
I just have one clarifying question.

[00:27:09] Speaker 03:
I think Ms.

[00:27:11] Speaker 03:
Murdoch-Park said not only, well, said that in the arbitration itself, you did not rely on the medical condition to explain the behavior.

[00:27:25] Speaker 03:
Is that correct?

[00:27:26] Speaker 03:
That is correct.

[00:27:28] Speaker 04:
Could I ask you one other question?

[00:27:31] Speaker 04:
Yes.

[00:27:32] Speaker 04:
argument in your brief, you argue essentially two points.

[00:27:37] Speaker 04:
One is the one that you've just made, which is it was an abuse of discretion to deny fees in this case.

[00:27:42] Speaker 04:
And the other argument, as I read your brief, is that the arbitrator at least should have explained the reasons under the Allen factors for why there was a denial.

[00:27:55] Speaker 04:
Now, the latter argument, I didn't see you make

[00:27:59] Speaker 04:
to the arbitrator in your motion for reconsideration.

[00:28:02] Speaker 04:
Is that right?

[00:28:04] Speaker 02:
Yes.

[00:28:04] Speaker 02:
Yes, we did.

[00:28:05] Speaker 02:
Yes, we did.

[00:28:06] Speaker 04:
You made the argument that the arbitrator should have given an explanation as opposed to that the denial of attorney's fees was an abuse of discretion.

[00:28:21] Speaker 02:
Oh, no.

[00:28:21] Speaker 02:
We set out in the reconsideration before the arbitrator because he had not

[00:28:27] Speaker 02:
given any reason in his decision, the reconsideration request for the union is at appendix 58 through 60.

[00:28:40] Speaker 02:
No, it's, wait, yeah.

[00:28:43] Speaker 02:
Yeah, 58 through 60.

[00:28:44] Speaker 02:
Yes.

[00:28:45] Speaker 02:
And we argued the factors that he must use, the standard that he must use, but no, we did not

[00:28:52] Speaker 02:
say that he had abused his discretion in denying fees.

[00:28:56] Speaker 04:
I don't believe I can agree with you.

[00:28:58] Speaker 04:
My question really was, did you make the argument that it was error for him not to have given reasons?

[00:29:05] Speaker 02:
I think I did.

[00:29:06] Speaker 02:
I didn't see it.

[00:29:08] Speaker 02:
I want to make sure I tell you the right thing.

[00:29:28] Speaker 02:
No, we did not say that.

[00:29:46] Speaker 02:
No, we didn't.

[00:29:49] Speaker 03:
Thank you very much.

[00:29:50] Speaker 02:
Thanks to all counsel and the cases submitted.