Donna D. Hodge, Appellant,
v.
Samuel K. Skinner, Secretary, Department of Transportation, (Federal Aviation Administration), Agency.

Request No. 05920057
Hearing No. 170-89-8200X
Appeal No. 01911370
Agency No. 88-103

DENIAL OF REQUEST TO REOPEN

INTRODUCTION

On October 7, 1991, Donna D. Hodge (hereinafter referred to as the appellant), through her attorney, initiated a request to the Equal Employment Opportunity Commission (EEOC) to reopen and reconsider the decision in Donna D. Hodge v. Samuel K. Skinner, Secretary, U.S. Department of Transportation, (Federal Aviation Administration), EEOC Appeal No. 01911370 (September 12, 1991). EEOC Regulations provide that the Commissioners may, in their discretion, reopen and reconsider any previous decision when the party requesting reopening submits written argument or evidence which tends to establish one or more of the three criteria prescribed by 29 C.F.R. 1613.235(b). Appellant bases her request on 29 C.F.R. 1613.235(b)(2) (the previous decision involved an erroneous interpretation of law or regulation, or a misapplication of established policy). For the reasons set forth herein, appellant's request is denied.

ISSUE PRESENTED

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

BACKGROUND

On May 3, 1988, appellant filed a formal EEO complaint which alleged that she had been subjected to discrimination because of her race (Caucasian) when the agency failed to take sufficient action to prevent racial harassment which rose to the level of a hostile working environment. Following an investigation, a proposed disposition was issued finding no discrimination. Dissatisfied with that result, appellant requested a hearing before an Administrative Judge (hereinafter referred to as AJ). In her recommended decision of December 19, 1989, the AJ found that appellant had been subjected to racial harassment which became a racially hostile working environment. On January 26, 1990, the agency issued its final decision adopting the AJ's recommended findings.

On February 20, 1990, appellant's attorney submitted a fee claim to the agency. Using an hourly rate of $140.00/hour for partners and $110.00/hour for associates, the firm's customary billing rate, times 102.9 hours of work by the partners and 68.4 hours of work by an associate, the attorney requested $21,370.00 in fees and $1,009.83 in expenses for a total of $22,379.83. Due to a clerical error, an amended fee claim was submitted on March 22, 1990, increasing the associates' total hours to 68.7 and correcting the fee amount to $21,963.00 for a total claim of $22,972.83.

In June 1990, the agency requested additional information from the attorney. Specifically, the agency requested (1) a copy of the fee agreement between the firm and appellant; (2) evidence of the prevailing community rate; and (3) evidence of fees charged by the firm in similar cases.

In responding to the agency's request, appellant's attorney submitted a revised fee petition. While including a copy of the applicable fee agreement wherein appellant agreed to pay the firm $140.00/hour for partner's time, $110.00/hour for associate's time, and $20.00/hour for paralegal's time, the attorney increased his fee claim based upon prevailing community rate. The attorney increased the hourly rate to $220.00/hour for partners in 1989 and $230.00/hour in 1990, and $115.00/hour for associates in 1989 and $125.00/hour in 1990. Consequently, the attorney increased the fee petition to $34,752.00 in fees and $1,135.95 in expenses for a total of $35,887.95.

On January 15, 1991, the agency issued its final decision on appellant's request for attorney's fees. The agency determined that the hourly rate should be $140.00/hour for partners and $110.00/hour for associates. Further, the agency reduced the amount of fees requested due to purported excessive hours and redundant work. In conclusion, the agency agreed to award appellant attorney's fees and costs in the amount of $14,675.95.

In EEOC Appeal No. 01911370 (September 12, 1991), the Commission found that the agency properly determined counsel's reasonable hourly rate. Counsel alleged that they should be compensated at the greater prevailing market rate, rather than their lower customary rate in accordance with the decision in Save Our Cumberland Mountains, Inc., et al. v. Hodel, 857 F.2d 1516 (D.C. Cir. 1988), as adopted by the Commission in Patricia Hatfield v. H. Lawrence Garrett, III, Secretary, Department of the Navy, EEOC Appeal No. 01892909 (December 12, 1989). The Commission, however, found that Cumberland had been adopted for the proposition that a 'public-spirited rate cutting attorney' should not 'be penalized for his public spiritedness by being paid on a lower scale than either his higher priced fellow-barrister from a more established firm or his salaried neighbor at a legal services clinic.' Finding that appellant's attorneys had presented no evidence that clients similar to appellant were customarily charged lower rates, the Commission found that the attorneys were not entitled to the prevailing market rate to the extent that it exceeded their customary rate.

Regarding the reduction in the number of hours expended, the Commission found that the agency properly disallowed fees of $2,553.00 for work done on a petition for enforcement on which appellant did not prevail; for 3 hours of duplicative research by one attorney on the Privacy Act; and for 8 hours for an associate's presence at the administrative hearing when an experienced senior attorney was also present. The Commission reversed the agency's deduction of 11.5 hours for preparation of the closing brief; 57.20 hours for pre-trial preparation; and costs of $55.00 for telephone calls. In conclusion, the Commission directed the agency to pay $22,654.95 in attorney's fees and costs.

In her request to reopen, appellant, through her attorney, argues that the Commission's previous decision involved an erroneous interpretation of law and regulation, and a misapplication of established policy. According to counsel, the Commission erred in finding that appellant was not entitled to prevailing community rates and for affirming the deduction of 8.0 hours for the appearance of an associate along with a senior attorney on the first day of the hearing.1 Counsel contends that a reasonable hourly rate is the prevailing market rate. Reiterating that the decision in Cumberland is applicable to the present case, counsel indicates that the Commission issued a decision only a month prior to its decision in EEOC Appeal No. 01911370 (September 12, 1991), wherein the Commission awarded an attorney prevailing market rates. Specifically, in Dugger Harris v. Edward Madigan, Secretary, U.S. Department of Agriculture, EEOC Appeal No. 01910674 (August 7, 1991), the Commission found that the attorney whose firm historically charged lower rates for federal sector EEO cases, was entitled to compensation at the prevailing market rates. Counsel argues that Cumberland was designed to eliminate the distinction between those who charge prevailing market fees, those who charge no fees, and those who charge reduced fees. Consequently, counsel contends that it was improper for the Commission to require evidence that the firm customarily charges clients similar to appellant lower rates, since any rate below the prevailing market rate is a 'reduced' rate. In conclusion, counsel requests that the Commission reopen the previous decision to award counsel fees at the prevailing rates consistent with the decision in Harris.

Regarding the deduction of 8.0 hours for the appearance of an associate along with a senior attorney on the first day of the hearing, counsel argues that there is no basis for the Commission's affirmation of this deduction on the grounds that the senior attorney, who was experienced in EEO law, did not need the presence of the associate at the hearing. According to counsel, the issue is not what was needed, but rather what was reasonable. Counsel contends that it is not unreasonable for two attorneys to be present at an extensive hearing, such as in the present case, which lasted for three days. Counsel indicates that the agency had 2 attorneys present at the hearing. Further, the associate conducted direct examination of witnesses on the first day whom she had previously interviewed. Consequently, counsel argues that the 8.0 hour expenditure was not unreasonable and should be allowed.

In response to appellant's request, the agency asserts that the request fails to meet the requisite criteria for a reopening and merely reiterates arguments previously presented on appeal. The agency contends that counsel is attempting to use Cumberland to support a proposition for which it does not stand: namely, that for-profit attorneys who charge EEO clients their regular rate should be compensated at a higher rate if they prevail. In addition, the agency belatedly argues that counsel's fee request is untimely since the higher rate was not requested until their submission of July 1990, beyond the twenty-day time limit for such submissions. Finally, the agency contends that counsel should not be compensated for the associate's presence at the hearing since the senior attorney's presence at the hearing was sufficient. In conclusion, the agency urges the Commission to deny appellant's request for reopening.

ANALYSIS AND FINDINGS

As noted above, the Commission may, in its discretion, reopen and reconsider any previous decision when the party requesting reopening submits written argument or evidence which tends to establish that at least one of the criteria of 29 C.F.R. 1613.235(b) is met. In order for a case to be reopened, the request must contain specific information which meets the criteria referenced above. Upon review, we find that appellant's request fails to meet the requisite criteria of 29 C.F.R. 1613.235(b) and the request is hereby denied.

The agency shall award attorney's fees for the successful processing of an EEO complaint in accordance with existing case law and regulatory standards. 29 C.F.R. 1613.271(d)(2). The fee award is normally determined by multiplying the number of hours reasonably expended on the case by a reasonable hourly rate, which result is called the 'lodestar' figure. Hensley v. Eckerhart, 461 U.S. 424 (1983). 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).

A. HOURLY RATE

In the present case, counsel contends that the Commission's previous decision erroneously determined that the reasonable hourly rate was counsel's customary billing rate, rather than the greater prevailing community rate. Counsel argues that the previous decision erroneously interpreted the holding in Save Our Cumberland Mountains, Inc. v. Hodel, 857 F.2d 1516 (D.C. Cir. 1988) which was adopted by the Commission in Patricia Hatfield v. H. Lawrence Garrett III, Secretary, Department of the Navy, EEOC Appeal No. 01892909 (December 12, 1989). Upon review, however, the Commission finds that it is counsel who has misinterpreted the decision in Cumberland.

In general, reasonable hourly rates are measured by the 'prevailing market rates in the relevant community. Blum v. Stenson, 465 U.S. 886, 895 (1984). The applicable rate for fee awards to public interest attorneys is the prevailing hourly rate for the community in general. For private attorneys, the best evidence of a reasonable hourly rate is the hourly rate customarily charged by the attorney or by his law firm for his fee-paying clients. National Association of Concerned Veterans v. Secretary of Defense, 675 F.2d 1319, 1325 (D.C. Cir. 1982). In Cumberland, the court held that the prevailing market rate should also be used to determine fee awards to private, for-profit attorneys who represent certain clients at reduced rates, which reflect 'non-economic' goals.

In the present case, counsel, who are for-profit attorneys, request to be compensated at the higher prevailing market rates ($220.00/hour for partners in 1989, $230.00/hour in 1990, and $115.00/hour for associates in 1989, $125.00/hour in 1990), rather than their customary billing rate of $140.00/hour for partners and $110.00/hour for associates. Counsel does not claim that the billing rate agreed to by appellant was a reduced rate or that they charge a reduced rate for Federal sector EEO cases. Counsel does not exhibit the 'public spiritedness' recognized in the Cumberland decision, and which was found worthy of compensation at the prevailing market rate. Therefore, the best evidence of a reasonable hourly rate in the present case is counsel's customary billing rate. See Beverly Johnson v. Richard G. Austin, Administrator, General Services Administration, EEOC Request No. 05910549 (August 29, 1991). Accordingly, we find that the reasonable hourly rate was properly determined to be $140.00/hour for partners and $110.00/hour for associates.

B. NUMBER OF HOURS

In determining whether the number of hours for which a fee is requested is excessive, it does not always follow that the amount of time actually expended is the amount of time reasonably expended. Patricia Hatfield v. H. Lawrence Garrett, III, Secretary Department of the Navy, EEOC Appeal No. 01892909 (December 12, 1989). The Commission requires that counsel in a fee request make a good faith effort to exclude hours that are excessive, redundant, or otherwise unnecessary. Moreover, the Commission has generally held that where two attorneys perform the same service, such services will be considered duplicative, and only one attorney will be entitled to compensation, unless a showing is made that the case was unusually difficult or complex. Emilija Riekstniece v. Department of Health and Human Services, EEOC Appeal No. 01840296 (May 14, 1986).

In the present case, counsel claims that the Commission's previous decision erroneously disallowed 8.0 hours for the associate's attendance at the hearing. The Commission found that the senior attorney, who was also present at the hearing, was experienced in EEO law and the associate's presence was not needed. According to counsel, the issue is not one of need, but rather of reasonableness. Counsel claims that the associate's presence at the hearing was reasonable because she had interviewed the witnesses and she conducted the direct examination of those witnesses.

Upon review, we find that the associate's presence was duplicative and unnecessary, and the 8.0 hours were properly disallowed. There has been no showing that this case was unusually complex or difficult so as to require the presence of two attorneys at the hearing. It is undisputed that the senior attorney was experienced in EEO law. There is no evidence or indication in the record that the senior attorney could not have been briefed by the associate regarding the interviews with the witnesses prior to the hearing. Duplicative services and supervisory review of an associate's services by a partner in a law firm are not compensated. Therefore, we find that the 8.0 hours for the associate's presence at the hearing was duplicative and was properly not allowed.

CONCLUSION

After a review of appellant's request to reopen, the agency's response thereto, the previous decision, and the entire record, the Commission finds that appellant's request fails to meet the criteria of 29 C.F.R. 1613.235(b), and the request is hereby denied. The decision of the Commission in EEOC Appeal No. 01911370 (September 12, 1991) remains the Commission's final decision in this matter. The agency shall take the actions as directed in the Order below. There is no further right of administrative appeal from the decision of the Commission on this request to reopen.

ORDER

The agency is directed to issue appellant a check in the amount of $22.654.95, less any amount of attorney's fees and costs already paid. In addition, the agency shall also compensate appellant's counsel for the reasonable time expended in pursuing the previous appeal. Counsel for appellant shall provide the agency with all necessary documentation of time expended on the appeal within twenty (20) calendar days of the date this decision becomes final. The agency shall process the supplemental claim, as well as issue the check in the amount of $22,654.95, within thirty (30) calendar days of the date the agency receives the supplemental fee request and documentation.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K0391)

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.

RIGHT TO FILE A CIVIL ACTION (Q0391)

This decision affirms the agency's final decision in part, but it also requires the agency to continue its administrative processing of a portion of your complaint. With respect to that portion of the agency's decision which the Commission has affirmed, you have the right to file a civil action in an appropriate United States District Court WITHIN THIRTY (30) CALENDAR DAYS of the date that you receive this decision. If you wish to file a civil action on those allegations contained in your complaint which have been remanded to the agency for further processing, you have the right to file such action in an appropriate United States District Court: (1) within thirty (30) calendar days of receipt of notice of final action taken by the agency on your complaint subsequent to this remand; or (2) after one hundred and eighty (180) calendar days of the date you filed your appeal with the Commission, until such time as the agency issues its final decision on your complaint. See Section 717(c) of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. 2000e et seq.; 29 C.F.R. 1613.281(c). You may be required to exhaust the administrative process prior to filing a civil action, depending upon the jurisdiction in which you file. Furthermore, the limitations period for filing a civil action under the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. 621 et seq. (ADEA) may differ from the period set out for the filing of civil actions under Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq., and the Rehabilitation Act of 1973, 29 U.S.C. 791. You may be foreclosed from filing a civil action on any claim brought under the ADEA if you fail to file within the limitations period applied by the court in the jurisdiction in which your action is 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. 'Agency' or 'department' means the national organization, and not the local office, facility or department in which you work. Filing a civil action will terminate the administrative processing of your complaint.

RIGHT TO REQUEST COUNSEL (Z0391)

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 et seq.; 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 THIRTY (30) CALENDAR DAYS of the date you receive the Commission's decision.

FOR THE COMMISSION:

Frances M. Hart
Executive Officer
Executive Secretariat

April 23, 1992

1. We note that neither party challenges the Commission's previous determinations regarding the other hours allowed or disallowed and, therefore, we will not address those determinations further herein.