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B-208911 1 (1984-03-06)

handle is hein.gao/gaobadlon0001 and id is 1 raw text is: .LSA THE COMPTROLLER GENERAL ft L OECISION bp THE UNITED STATUS WASHINQTON. 0.C. 20546 FILE: B-208911 OATE: March 6, 1984 MATTER OF: Elias S. Frey - Claim for Attorney Fees Under the Back Pay Act - Reconsideration OIGEST: Employee, who was reemployed by Bureau of Alcohol, Tobacco and Firearms follow- ing service with Federal Energy Administration, did not receive benefit of highest previous rate rule. Following successful claim with GAO for retroactive pay adjustment, the union representing the employee claimed attorney fees under the Back Pay Act, 5 U.S.C. S 5596, as amended. Prior decision disallowing claim for attorney fees is affirmed since the union has not shown that payment is warranted in the interest of justice. Specifically, the union has failed to demonstrate that the agency knew or should have known it would not prevail on the merits, one of the criteria for awarding attorney fees in the interest of justice. Mr. Cary P. Sklar, Assistant Counsel for the National Treasury Employees Union, requests reconsideration of our decision in Elias S. Frey, B-208911, June 10, 1983. In that decision, we denied the union's claim for attorney fees and expenses in the amount of $1,458 in connection with the backpay claim of Mr. Elias S. Frey which was allowed by our Claims Group. For the reasons stated below, we affirm our prior determination. BACKGROUND Mr. Frey, an employee of the Bureau of Alcohol, Tobacco and Firearms (BATF), Department of the Treasury, transferred to the Federal Energy Administration (FEA) in 1974. After 54 weeks with FEA, Mr. Frey exercised his statutory right to return to BATF. See Federal Personnel Manual (FPM) Letter No. 352-6, January 10, 1975. Mr. Frey left FEA as a grade GS-11, step 2, and returned to his former level at BATF, grade GS-9, step 3. Later, Mr. Frey learned that all employees who had worked for FEA and were later reemployed by the Internal Revenue Service were accorded higher rates

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