OFFICE OF COMPLIANCE
LA 200, John Adams Building, 110 Second
Washington, DC 20540-1999
v. Case No. 99-AC-326(DA)
OFFICE OF THE ARCHITECT
OF THE CAPITOL
Before the Board of Directors: Susan S. Robfogel,
Chair; Barbara L. Camens, Alan V. Friedman; Roberta L. Holzwarth;
Barbara Childs Wallace, Members.
The Board issued its decision, on February 25,
2002, affirming the Hearing Officer's conclusion that the Complainant
prevailed in her discrimination claim under the Americans with Disabilities
Act, and upholding the Hearing Officer's award to the Complainant
of back pay and interest, compensatory damages, and attorney's fees
and costs. However, the Board remanded to the Hearing Officer for
further proceedings the remedial issue of the Complainant's reassignment.
That matter is presently before the Hearing Officer.
On March 22, 2002, the Complainant's counsel
filed a motion with the Hearing Officer for the award of attorney's
fees and costs in connection with the appellate stage before the
Board. On April 2, 2002, the Employing Office filed its opposition
to that motion. The Hearing Officer issued his Memorandum and Order,
dated April 22, 2002, concluding that the Board should address the
attorney's fees and costs claim connected with the appellate proceeding
We believe that the disputed appellate stage
attorney's fees and costs claim would be reviewed most efficaciously
by the Hearing Officer, who will also be considering any additional
attorney's fees and costs claims in connection with the remanded
proceeding. While section 9.03 of the Office's Procedural Rules
contemplates the Board initially entertaining attorney's fees, we
envisage that provision as being operative where a Hearing Officer
has no active role in a case; e.g., where the Board issues a dispositive
decision requiring no Hearing Officer implementation action.
In earlier proceedings before the Hearing Officer,
on appeal to the Board, and now in opposition to this attorney's
fee claim, the Employing Office repeatedly has argued, inter
alia, that the attorney-client relationship is between Complainant's
exclusive bargaining agent and the law firm appearing on the Complainant's
behalf. The Hearing Officer rejected those contentions in his Supplemental
Decision and we affirmed his conclusion, without discussion, in
our February 25, 2002 decision, at page 1. We agree with the Hearing
Officer that the attorney- client relationship is between the Complainant
and the law firm appearing on her behalf and that the retainer agreement
between the Complainant's exclusive bargaining representative and
the law firm permits the firm to recover its fees at the market
rate. See, Blum v. Stenson, 465 U.S. 886 (1984); Save
Our Cumberland Mountains v. Hodel, 857 F.2d 1516 (D.C. Cir.
1998) (en banc); Preseault v. United States, 2002 U.S. Claims
LEXIS 124 (Fed. Cl. May 22, 2002).
Accordingly, we refer to the Hearing Officer
Complainant's Counsel's claim for attorney's fees and costs related
to the appellate stage of this proceeding culminating in the Board's
issuance of its decision, dated February 25, 2002.
It is so ordered.
Issued July 2, 2002, at Washington,
I, the undersigned employee of the Office of
Compliance, certify that on the date indicated below I served the
following Order of the Board of Directors upon the below named persons,
addressed to them at the address indicated.
Sarah Starrett, Esquire
Beins, Axelrod & Kraft, P.C.
1717 Massachusetts Avenue, NW
Washington, DC 20036-2001
Via Facimile 202-328-7300
and First Class Mail
Edgard Martinez, Esquire
Via Facsimile 202-226-8700
Office of the Employment Counsel
Office of the Architect of the Capitol
Ford House Office Building, Rm H2-202
Second & D Streets, SW
Washington, DC 20515
and First Class Mail
Signed in Washington, D.C. this 2nd day of July
Office of Compliance