regulations, as "an entity having authority in the case at hand to correct or direct the correction of an unjustified or unwarranted personnel action." 5 C.F.R. § 550.803.
In his Report and Recommendation, the Grievance Examiner recounted the personality conflict between plaintiff and her supervisor, Mary Lystad. The Grievance Examiner also reviewed a selected number of other performance evaluations completed by Ms. Lystad in order to ascertain her consistency in applying performance standards to some of plaintiff's colleagues. He concluded that "while it is true that the rating assigned [plaintiff] must be judged on its own merit, the fact remains that there were a number of activities performed by [plaintiff] which were not acknowledged on the actual evaluation rating form, while similar kinds of activities were placed on the forms of some other individuals rated by the same Supervisor." Report and Recommendation of Grievance Examiner at 9 (August 26, 1985).
Defendant argues that the Grievance Examiner made no findings that any law had been violated and found no substantive or procedural defects in the supervisor's decision. Thus, defendant concludes, plaintiff has failed to state a cause of action for which relief under the Back Pay Act may be granted. The Court finds unpersuasive defendant's narrow reading of the Back Pay Act and 5 C.F.R. § 550.803.
The Grievance Examiner's recommendation that plaintiff receive a higher performance rating was made with the implicit recognition that the personality conflict between plaintiff and her supervisor interfered with the supervisor's duty to evaluate plaintiff impartially. 5 U.S.C. § 2302 (1978). Shervert H. Frazier, M.D., Director of NIMH, subsequently accepted the Grievance Examiner's recommendation. Memorandum from Director, NIMH, to Ann C. Maney, October 15, 1985. Given the broad remedial purpose of the Back Pay Act, the Court has no trouble in concluding that plaintiff was, indeed, "affected by an unjustified or unwarranted personnel action." 5 U.S.C. § 5596(b)(1); see Bush v. Lucas, 462 U.S. 367, 385 n.25, 76 L. Ed. 2d 648, 103 S. Ct. 2404 (1983); United States v. Testan, 424 U.S. 392, 405-06, 47 L. Ed. 2d 114, 96 S. Ct. 948 (1976) (and citations therein).
Defendant further argues that plaintiff did not suffer a withdrawal or reduction in pay due to her initial rating of "Satisfactory." Indeed, defendant contends, under the merit pay scheme, there is no automatic entitlement to progress through the pay range or receive bonuses. 5 U.S.C. §§ 5401-5410 (1985); 5 C.F.R. Part 540 (1985); see also Wells v. Federal Aviation Administration, 755 F.2d 804, 808 (11th Cir. 1985) (To be eligible for relief under the Back Pay Act, pay must be otherwise due an employee).
Defendant's own actions have rendered these arguments inapposite. Upon receipt of the Grievance Examiner's Report and Recommendation, the Director of NIMH proceeded to adjust retroactively plaintiff's "October 1984 Merit Increase, an adjustment in [her] January 1985 pay raise, and a performance bonus equal to that which [she] would have received in May of  had [she] been rated 'Above Average' in October." Memorandum from Director, NIMH, to Ann C. Maney, October 15, 1985. The Court need not engage in semantic gymnastics to conclude that what plaintiff received was back pay. Defendant's "unjustified or unwarranted personnel action" did, in fact, "result in the withdrawal or reduction" of plaintiff's compensation as the NIMH Director's action demonstrated plainly. 5 U.S.C. § 5596(b)(1).
B. The Section 7701(g) Standards
Having established plaintiff's eligibility under the Back Pay Act, the Court now considers the question of entitlement, i.e., does the case meet the standards of 5 U.S.C. § 7701(g) of the Civil Service Reform Act? 5 U.S.C. § 5596(b)(1)(A)(ii). The Merit Systems Protection Board has established three criteria for award of fees under 5 U.S.C. § 7701(g)(1):
(1) appellant must be the prevailing party;