HENRIETTA J. BROWN, APPELLANT,
v.
MARY L. GOOD, ACTING SECRETARY, DEPARTMENT OF COMMERCE, AGENCY.

Appeal No. 01944999
Agency Nos. 88-13-0123, 89-13-0018, 89-13-0028, 90-13-0022, 90-13-0023

INTRODUCTION

On August 9, 1994, Henrietta J. Brown (hereinafter referred to as appellant), by and through her representative, filed an appeal with this Commission from a final decision of the Secretary, Department of Commerce (hereinafter referred to as the agency) dated July 11, 1994, denying in part appellant's request for attorney's fees and costs. The underlying case was resolved through a no-fault settlement agreement entered into on October 1, 1993, which resolved appellant's five (5) equal employment opportunity (EEO) complaints alleging discrimination based on sex, age, and reprisal in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §2000e etseq. The appeal is accepted in accordance with EEOC Order No. 960.001.

ISSUE PRESENTED

The issue presented herein is whether the agency properly determined the reasonable amount of attorney's fees and costs to be awarded in this matter.

CONTENTIONS ON APPEAL

On appeal, appellant's representative challenges the agency's final decision in its entirety. Specifically, appellant's representative argues that he is entitled to the full amount requested in the fee petition and that the agency did not adequately justify the reduction for hours expended. In opposition to appellant's appeal, the agency argues that its final decision on appellant's petition for attorney's fees and costs was proper and should be affirmed.

BACKGROUND

The record reveals that, from October 28, 1988, to May 25, 1990, appellant, then employed as a Research Chemist within the agency's National Institute of Standards and Technology, filed five (5) formal complaints alleging that she had been discriminated against on the bases of sex (female), age (40), and reprisal (prior EEO activity) in several terms and conditions of her employment.

On October 1, 1993, appellant and the agency entered into an agreement to settle appellant's Complaint Nos. 88-13-0123, 89-13-0018, 89-13-0028, and 90-13-0022, with the exception of one issue in Complaint No. 90-13-0023.1 Paragraph 3.g of the Settlement Agreement provides, in pertinent part, that:

[T]he agency agrees to: Pay reasonable attorney's fees and costs in connection with the above numbered complaints, in accordance with 29 C.F.R. § 1613.217(d), the amount of which will be decided under a separate final agency decision.

On October 19, 1993, appellant's spouse, who served as her legal representative (hereinafter referred to as AR), submitted a verified petition for an award of attorney's fees in the requested amount of $94,062.24.

On November 18, 1993, the agency requested further information pertaining to the fee petition from the AR. The record reflects that the AR submitted the requested information on January 25, 1994, at which time he amended the original fee petition to include a claim for an additional $6,862.63 for billable hours and costs expended to respond to the agency's request.

On April 1, 1994, the agency forwarded to the AR a detailed proposal to award attorney's fees and costs in the amount of $41,780.25. The agency's proposed award listed verbatim the services and hours identified by the AR in the fee petition and further, explained in detail the reasons for its acceptance, rejection, or reduction of fees charged for each service. The agency rejected and/or sought a reduction in many of the charges asserted by the AR on the grounds that certain items were excessive, superfluous, impermissible, or insufficiently documented.

The record reveals that, on April 18, 1994, the AR rejected the agency's proposed award and amended his claim to include fees and costs in the amount of $7,270.63, which he had not previously claimed for a new total of $108,195.50. The AR also sought an increase in his hourly rate from the $150-200 scale which he proposed in the original fee petition to a uniform fee of $200 per hour for the entire period related to the administrative processing of appellant's five (5) complaints.

On July 11, 1994, the agency issued its final decision which awarded the AR $43,511.25 in attorney's fees, calculated at the initial requested hourly rate for work performed between 1988 and 1993, and $1,055.50 in costs. In its final decision, the agency disallowed 274.85 billable hours because the entries related to the billable hours revealed that such activities were either redundant, duplicative, excessive, unsubstantiated, not authorized, or were otherwise unreasonable. The agency further noted that the five (5) formal complaints were informally resolved and did not progress to the administrative hearing stage. The agency also applied the AR's hourly rates which were submitted in the original fee petition, and applied the hourly rates for each respective year for the entire period of the administrative processing. It is from this decision that appellant now appeals.

ANALYSIS AND FINDINGS

By federal regulation, the agency is required to award attorney's fees for the successful processing of an EEO complaint in accordance with existing case law and regulatory standard. EEOC Regulation 29C.F.R. §1614.501(e)(1)(ii).2 To determine the proper amount of the fee, a lodestar amount is reached by calculating the number of hours reasonably expended by the attorney on the complaint multiplied by a reasonable hourly rate. Blum v. Stenson, 465 U.S. 886 (1984); Hensley v. Eckerhart, 461 U.S. 424 (1983). Adjustments, both upward and downward, may be made to the lodestar amount as necessary in the "exceptional" case. Hensley, 461 U.S. at 434-36. Factors to be considered in adjusting the initial fee are delineated in federal regulations. See 29 C.F.R. § 1614.501(2)(ii)(B). However, many of these factors have been held by the Supreme Court to be usually "subsumed within the initial calculation of hours reasonably expended at a reasonable hourly rate." Hensley, 461 U.S. at 434, n.9. The attorney requesting the fee award has the burden of proving, by specific evidence, his or her entitlement to the requested award. Copeland v. Marshall, 641 F.2d 880, 892 (D.C. Cir. 1980). The burden of justifying any deviation from a fee calculation of reasonable hours times reasonable hourly rate rests on the party proposing the deviation. Copeland, 641 F.2d at 892.

REASONABLE HOURLY RATE

In Blum, 465 U.S. at 895, the U.S. Supreme Court held that reasonable hourly rates are to be measured by the "prevailing market rates in the relevant community."The burden is on the fee applicant to produce satisfactory evidence that the rate requested is comparable to those prevailing in the relevant community. Blum, 465 U.S. at 895, n.11. Counsel must also submit evidence of his customary hourly rates for the same or similar work to substantiate his claim. Further, a fee applicant is also required to provide specific evidence of the prevailing community rate for the type of work for which he seeks compensation. Such specific evidence would be in the form of affidavits from attorneys with similar qualifications describing in detail the form of compensation received from fee-paying clients in compensable cases. Other evidence would be recent fees awarded by the courts or through settlements to attorneys of comparable reputation and experience. The fee applicant may also be required to submit specific evidence of his or her billing practice during the relevant time period. The Commission notes that the burden is on the fee applicant to produce satisfactory evidence--in addition to the attorney's affidavits--that the requested rate, or rates in this case, are in line with those prevailing in the community for similar services by lawyers of reasonably comparable skill, experience, and reputation. Blum, 465 U.S. at 895, n.11.

In the present case, the AR submitted an itemized bill for professional services and an affidavit dated October 19, 1993, stating that his hourly rate generally charged for services during the period encompassed by the complaints were: $150.00 per hour for services rendered in 1988; $160.00 per hour for services rendered in 1989 and 1990; $175.00 per hour for services rendered in 1991; $185.00 per hour for services rendered in 1992; and $200.00 per hour for services rendered in 1993. The AR's affidavit also contained a brief explanation of his professional background, which listed intellectual property law as his area of expertise. In addition, the AR submitted an affidavit from a practitioner in the same geographical area in an effort to establish rates of comparable service. The Commission notes that the agency accepted the hourly rates submitted by the AR in his fee petition dated October 19, 1993.

Notwithstanding, the Commission notes that, in subsequent correspondence, the AR amended the initial fee petition and requested an "across the board" application of an hourly rate of §200.00 for all professional services rendered on the complaints from 1988 to 1993. The AR did not request "enhancement" of the "lodestar" figure in this case. Rather, the AR specifically argued that an "across the board" application of an hourly rate of $200.00 was appropriate compensation, due to the agency's repeated delays in appointing an investigator in the initial complaint; due to management officials' alleged interference with potential witnesses; the agency's delay in concluding the investigation of three complaints; and the agency's delay in issuing its final decision. However, the Commission finds that the AR has failed to meet the burden of producing persuasive evidence to justify his claim for the requested hourly rate of $200.00 for all hours claimed in this case, other than his mere assertions that an increase in his hourly rate is justified due to the agency's delay. The Commission further finds that the AR's assertions relating to the agency's delay in processing the complaints do not establish that the agency's actions were intentional or calculated to deter his client's efforts in pursuing her complaints. Moreover, we find that the AR's request actually constitutes an indirect request to penalize the agency for its untimely issuance and/or completion of documentation at certain stages of the administrative process. We decline to do so. Again, we find no evidence demonstrating that the agency's actions or failure to act in a timely manner were deliberate. Therefore, due to the AR's failure to meet the burden of justifying the "across the board" application of an hourly rate of $200.00, the Commission finds that the hourly rates set forth in the AR's fee petition dated October 19, 1993, are reasonable and will be utilized in our attorney's fees analysis discussed herein.

REASONABLE HOURS EXPENDED

In determining the number of hours reasonably expended, the Commission recognizes that the attorney "is not required to record in great detail the manner in which each minute of his time was expended." Hensley, 461 U.S. at 437, n.12. However, the attorney does have the burden of identifying the subject matters in which he spent his time, which can be documented by submitting sufficiently detailed contemporaneous time records to ensure that the time spent was accurately recorded. See National Association of Concerned Veterans v. Secretary of Defense, 675 F.2d 1319 (D.C. Cir. 1982). An applicant for attorney's fees is only entitled to an award for time reasonably expended. It does not always follow that the amount of time actually expended is the amount of time reasonably expended. Copeland, 641 F.2d at 891-92. Rather, "billing judgment" is an important component in fee setting, and hours that would not be properly billed to a private client are also not properly billed to the agency pursuant to a successful EEO claim. Id. Counsel for the prevailing party should make a "good faith effort to exclude from a fee request hours that are excessive, redundant or otherwise unnecessary."Hensley, 461 U.S. at 434.Casual after-the-fact estimates of time expended on a case are also insufficient to support an award of attorney's fees. National Association of Concerned Veterans, 675 F. 2d at 1327.

After careful review of the fee petition prepared by the AR, the Commission finds, similar to the agency's determination, that a substantial number of billable hours claimed by the AR were expended in an unreasonable manner. The AR requested compensation for 535.7 billable hours for services rendered from 1988 to 1994. The agency, in its final decision, conducted an hour-by-hour analysis of the entries set forth in the AR's fee petition and found that the AR was entitled to be compensated for approximately 249.8 billable hours, and determined that the remaining 285.9 billable hours were disallowed because they were either redundant, duplicative, excessive, unnecessary, unsubstantiated, not authorized, or were otherwise unreasonable. For example, in his fee petition, the AR indicated that he expended approximately 142.7 billable hours reviewing, considering, and/or assessing uncomplicated documentation, for example an EEOC decision consisting of two pages, evaluation of "extensive [unidentified] documentation", review of applicant's written rebuttal arguments, numerous entries relating to review of investigative file, EEOC decision consisting of five pages, etc. We find 142.7 hours to be clearly exorbitant. We have allowed a reasonable number of billable hours relating to the AR's actual drafting, review, revision, and preparation of the formal complaints, appeals, requests for reconsideration and other pertinent correspondence in this matter.

Another example is the time which the AR expended conducting conferences, tele-conferences, as well as discussions with appellant. The AR billed approximately 68 hours of time related to this particular task. However, the AR was unable to provide specific and/or detailed information as to the substance of these discussions, nor did he clarify why such conferences or discussions were necessary in each time entry, particularly in light of the billable hours requested.

Moreover, we note that, while the AR argues on appeal that the agency improperly disallowed certain billable hours which were deemed necessary to read, review, and to otherwise prepare appellant's case, the AR did not provide persuasive explanations for each hour disallowed by the agency. Therefore, we find that a substantial portion of the billable hours requested by the AR were excessive, particularly given the fact that the complaints were informally resolved via an informal settlement agreement and the complaints did not proceed beyond the investigative stage. After a through review of the evidence of record, we find that, in the absence of additional documentation and without an adequate explanation demonstrating that the AR was entitled to compensation for the disallowed billable hours, we find that the billable hours and costs totaling $44,566.75, 3 in this matter was reasonable.

FEE PETITION

The AR requests compensation for fees and costs associated with the fee application, as well as time expended in responding to the agency's inquiries relating to his fee petition. Both the courts and the Commission have adopted the rule that where a case proceeds to a trial or a hearing, fees awarded for litigating the fee application shall not exceed 5% of the fees incurred in litigating the main case. Coulter V. State of Tennessee, 805 F.2d 146, 151 (6th Cir. 1986); Nehemkis v. Department of Veteran's Affairs, EEOC Appeal No. 01891733 (November 16, 1989). Similarly, the Commission has held that in claims for attorney's fees incurred in connection with preparation and litigation of the fee petition, we will award 3% of the fees incurred, if the main case does not include a hearing. See Ciesla v. Department of the Army, EEOC Appeal No. 01893792 (March 14, 1990); Beeder v. Environmental Protection Agency, EEOC Appeal No. 01903479 (December 28, 1990). The rationale behind this rule is that compensation for attorney's fees litigation should not be out of proportion to the main case. concerning the fee petition in the present case, the AR indicated that he incurred fees of $9,300.00 ($9,300.00 for 46.5 billable hours multiplied by $200.00 hourly rate), which amount exceeds three percent of the main case. Accordingly, the Commission finds that the attorney's fees and costs associated with the fee application is properly reduced to $1305.33, or three percent of the main case ($43,511.25 multiplied by three percent).

CONCLUSION

Based upon a thorough review of the record, and for the foregoing reasons, it is the decision of the Equal Employment Opportunity Commission to MODIFY the agency's final decision in this matter with regard to attorney's fees. For the reasons stated above, the Commission finds that appellant's representative should be awarded attorney's fees and costs from the agency in the amount of $45,872.08. Pursuant to the findings and conclusions cited herein, the agency shall comply with the following ORDER.

ORDER

The agency shall issue a check to appellant's representative for $45,872.08, less any attorney's fees already paid, within fifteen (15) calendar days of the date this decision becomes final. The agency shall also submit a report of compliance, as provided below. The record shall include documentation to verify that the action has been implemented.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)

Compliance with the Commission's corrective action is mandatory. The agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 19848, Washington, D.C. 20036. The agency's report must contain supporting documentation, and the agency must send a copy of all submissions to the appellant. If the agency does not comply with the Commission's order, the appellant may petition the Commission for enforcement of the order. 29 C.F.R. §1614.503 (a). The appellant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See29 C.F.R. §§1614.408, 1614.409, and 1614.503 (g). Alternatively, the appellant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File A Civil Action."29 C.F.R. §§ 1614.408 and 1614.409. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. §2000e-16(c) (Supp. V 1993). If the appellant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. §1614.410.

RECONSIDERATION (M0795)

The Commission may, in its discretion, reconsider the decision in this case if the appellant or the agency submits a written request containing arguments or evidence which tend to establish that:

1.  New and material evidence is available that was not readily available when the previous decision was issued; or

2. The previous decision involved an erroneous interpretation of law, regulation or material fact, or misapplication of established policy; or

3. The decision is of such exceptional nature as to have substantial precedential implications.

Requests to reconsider, with supporting arguments or evidence, MUSTBEFILEDWITHINTHIRTY (30) CALENDARDAYS of the date you receive this decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive a timely request to reconsider filed by another party. Any argument in opposition to the request to reconsider or cross request to reconsider MUST be submitted to the Commission and to the requesting party WITHINTWENTY (20) CALENDARDAYS of the date you receive the request to reconsider. See 29 C.F.R. §1614.407. All requests and arguments must bear proof of postmark and be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 19848, Washington, D.C. 20036. In the absence of a legible postmark, the request to reconsider shall be deemed filed on the date it is received by the Commission.

Failure to file within the time period will result in dismissal of your request for reconsideration as untimely. If extenuating circumstances have prevented the timely filing of a request for reconsideration, a written statement setting forth the circumstances which caused the delay and any supporting documentation must be submitted with your request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. § 1614.604(c).

RIGHT TO FILE A CIVIL ACTION (S0993)

It is the position of the Commission that you have the right to file a civil action in an appropriate United States District Court WITHIN NINETY (90) CALENDAR DAYS from the date that you receive this decision. You should be aware, however, that courts in some jurisdictions have interpreted the Civil Rights Act of 1991 in a manner suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the date that you receive this decision. To ensure that your civil action is considered timely, you are advised to file it WITHIN THIRTY (30) CALENDAR DAYS from the date that you receive this decision or to consult an attorney concerning the applicable time period in the jurisdiction in which your action would be filed. If you file a civil action, YOU MUST NAME AS THE DEFENDANT IN THE COMPLAINT THE PERSON WHO IS THE OFFICIAL AGENCY HEAD OR DEPARTMENT HEAD, IDENTIFYING THAT PERSON BY HIS OR HER FULL NAME AND OFFICIAL TITLE. Failure to do so may result in the dismissal of your case in court. "Agency" or "department" means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint.

RIGHT TO REQUEST COUNSEL (Z1092)

If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request that the Court appoint an attorney to represent you and that the Court permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §2000e etseq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§791, 794(c).The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File A Civil Action").

FOR THE COMMISSION:

Ronnie Blumenthal
Director
Office of Federal Operations

May 17, 1996

1. The record reveals that an allegation of discrimination was severed from this complaint and subsequently processed separately under Complaint No. 93-57-0355.

2. The Commission notes that parallel cite, 29 C.F.R. §1613.271(d)(2), was in effect at the time the original complaints were filed.

3. The Commission's calculation encompasses the following figures: 1988 - $150.00 hourly rate x 8 billable hours = $1,200.00; 1989/1990 - $160.00 hourly rate x 114.1 billable hours = $18,256.00; 1991 - $175.00 hourly rate x 27.05 billable hours = $4,733.75; 1992 - $185.00 hourly rate x 53.9 billable hours = $9,971.50; and 1993/1994 - $200.00 hourly rate x 46.75 billable hours = $9,350.00. The agency's calculation also included costs in the amount of $1,055.50.