The opinion of the court was delivered by: GREEN
Plaintiff filed this action seeking an award of attorney fees and expenses incurred in pursuing an agency grievance procedure, pursuant to the Back Pay Act, 5 U.S.C. § 5596(b)(1)(A)(ii) (1980). Both parties moved for summary judgment and oral argument was presented to the Court on June 20, 1986. The Court granted plaintiff's motion for summary judgment at the conclusion of the hearing. This opinion is submitted to memorialize the Court's reasoning.
On October 8, 1984, plaintiff received her annual rating under the Merit Pay System for the fiscal year ending September 30, 1984. She was rated at level 2 (on a scale from 0 to 4, with 4 being the highest) for one of four performance objectives. This resulted in plaintiff's receiving a total score of 285 out of a possible 400 points and an overall rating of "Satisfactory." This rating meant that plaintiff would not receive a merit pay bonus nor would she qualify for certain other future pay increases.
Plaintiff felt that the performance evaluation reflected inaccurately the quality of her work. Thus, plaintiff filed a timely grievance pursuant to agency procedures. Plaintiff sought to have her ratings for objectives 3 and 4 raised and to have her overall rating raised from "Satisfactory" to "Outstanding." In the first two stages of the grievance, defendant denied plaintiff the relief she sought. At stage three, on August 26, 1985, the Grievance Examiner recommended that plaintiff's rating for objective 3 be raised to "level 3" or "perhaps the lower portion of level 4," and that the rating of level 3 for objective 4 be retained.
On October 15, 1985, defendant accepted the Grievance Examiner's recommendation by raising plaintiff's rating for objective 3 to level 3, increasing her overall score from 285 to 310, and changing her overall rating to "Above Average." The elevation of plaintiff's overall rating resulted in upward adjustments in her October 1984 Merit Increase, her January 1985 pay raise, and a performance bonus equal to that which she would have received in May of 1985 had she been rated "Above Average" the previous October.
On November 18, 1985, plaintiff requested from defendant payment of attorney fees and costs incurred in pursuing the grievance. The amount claimed was $1,442.17. Defendant denied this request on January 3, 1986. The parties do not dispute the material facts.
A. Plaintiff Is Entitled to Relief Under the Back Pay Act
The Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1331. As the Court will demonstrate, infra at 4-7, plaintiff has satisfied the requisite elements under the Back Pay Act.
Title 5, United States Code, section 5596 of the Back Pay Act provides in relevant part:
(b)(1) An employee of an agency who, on the basis of a timely appeal or an administrative determination . . . is found by appropriate authority under applicable law, rule, regulation, or collective bargaining agreement, to have been affected by an unjustified or unwarranted personnel action which has resulted in the withdrawal or reduction of all or part of the pay, allowances, or differentials of the employee --
(A) is entitled, on correction of the personnel action, to receive for the period for which the ...