Frank Black v. Department of the Army 05960390 December 9, 1998 Frank Black, ) Appellant, ) ) Request No. 05960390 v. ) Appeal No. 01943642 ) Agency No. 92-02-0011 Louis Caldera, ) Secretary, ) Department of the Army, ) Agency. ) ) GRANTING OF REQUEST TO RECONSIDER On March 22, 1996, the appellant, by and through his attorney, timely initiated a request to the Equal Employment Opportunity Commission (Commission) to reconsider the decision in Black v. Army, EEOC Appeal No. 01943642 (February 27, 1996). EEOC regulations provide that the Commission may, in its discretion, reconsider any previous decision. 29 C.F.R. §1614.407(a). The party requesting reconsideration must submit written argument or evidence that tends to establish one or more of the following three criteria: new and material evidence is available that was not readily available when the previous decision was issued, 29 C.F.R. §1614.407(c)(1); the previous decision involved an erroneous interpretation of law, regulation or material fact, or misapplication of established policy, 29 C.F.R. §1614.407(c)(2); and the decision is of such exceptional nature as to have substantial precedential implications, 29 C.F.R. §1614.407(c)(3). ISSUE PRESENTED Whether the appellant's request for the Commission to reconsider its previous decision on attorney's fees meets the criteria for reconsideration. BACKGROUND On August 26, 1991 the appellant entered into an agreement at Fort Polk, Louisiana, settling his EEO complaint alleging race and sex discrimination. Prior to the signing the settlement, the appellant had been represented by a union official (the Representative). However, to the extent the union had an arrangement with an attorney (the Attorney) to provide legal services on an "as needed" basis, the Attorney was present at the time the settlement was signed. According to the Attorney, whose practice is based in Virginia Beach, Virginia, he receives a monthly retainer from the union for representing its members, and he stated that his office retains all attorney's fees which may be awarded to him based on this representation. The agency averred, without controversion, that it was not notified of the Attorney's representation until August 26, 1991, prior to a scheduled fact finding conference. It was not held. The Attorney submitted his fee petition to the agency in October 1991. On request, the Attorney challenges portions of the previous decision regarding attorney's fees. These matters are discussed below. ANALYSIS AND FINDINGS Hourly Rate The previous decision found that the reasonable hourly work rate for the Attorney was $110. It credited evidence presented by the agency indicating that the prevailing hourly rate in the relevant community, i.e., Louisiana was $110. In holding that the Attorney was not entitled to his requested hourly rate of $150, the previous decision reasoned that while he submitted evidence regarding the prevailing hourly rate in Virginia, the Attorney submitted no evidence regarding the prevailing hourly rate in the relevant community. EEOC Regulation 29 C.F.R. §1613.271(d)(2), and 29 C.F.R. §1614.501(e)(2), which took effect on October 1, 1992, provide that the complainant's attorney request for fees shall include a verified statement of attorney's fees accompanied by an affidavit executed by the attorney itemizing the attorney's charges. On request for reconsideration, the Attorney avers that he previously advised the Commission that he repeatedly had been paid an hourly rate of $150 by the agency and the Army and the Air Force Exchange Service for work performed at Fort Polk. The Attorney's prior reference to being paid an hourly rate of $150 for work performed at Fort Polk was in the form of an unsworn appeal argument. It did not indicate when the Attorney was paid this rate and was not accompanied with documentation, such as administrative awards or orders, substantiating payment at this rate. The previous decision apparently did not discuss the Attorney's reference because it did not consider it to be admissible evidence, and we will not disturb this. The appellant fails to provide persuasive evidence or argument demonstrating that the previous decision arrived at an incorrect hourly rate. Accordingly, the Commission will not depart from its prior determination. Travel Time In his fee petition, the Attorney submitted an itemized statement requesting eight hours of fees on August 26, 1991 to "Meet with client to discuss case with Union; sign settlement; travel back." The previous decision noted that the Attorney did not break down the hours, but granted one hour for the settlement conference and one hour prior to the conference to meet with the appellant. The previous decision granted the Attorney one hour for travel back time. In limiting travel time, it reasoned that the fee petition did not indicate how long or where the Attorney traveled on August 26, 1991. On request for reconsideration, the Attorney argues that he submitted information regarding his travel itinerary on a previous appeal to the Commission which concerned his fees and costs. This submission included receipts showing that the Attorney checked out of a hotel near Fork Polk on August 26, 1991 at 6:40 p.m., and exited a parking lot at the Norfolk International Airport at 1:03 a.m. on August 27, 1991. The decision resulting from this previous appeal vacated a prior final agency decision regarding attorney's fees and costs and remanded these matters for a supplemental investigation.<1> This prior appeal decision ordered the supplemental investigation to include a determination of the number of hours reasonably expended by the Attorney on the case, and directed that the agency seek information from the Attorney and/or the appellant as appropriate. The Commission denied the agency's request to reconsider that appeal decision.<2> Given the prior remand and the fact that the agency had the information regarding the Attorney's itinerary or should have had it in light of the remand order, we will now consider the evidence regarding the itinerary. It supports that the Attorney spent at least six hours on August 26, 1991 traveling back to Virginia from Fort Polk after signing the settlement. Accordingly, the previous decision is modified to award the Attorney six hours rather than one hour of travel time on August 26, 1991.<3> Travel Rate Following prior decision case law, the previous decision compensated the Attorney at 50% of the prevailing hourly rate for travel time. The Attorney argues against this rule. However, a subsequent decision found that a counsel's travel time is not compensable at a counsel's full reasonable hourly rate, and compensated a counsel's travel at half the counsel's reasonable hourly rate. Logan v. Department of the Army, EEOC Appeal No. 01950602 (June 20, 1997). Accordingly, the portion of the previous decision regarding the travel time rate is affirmed. Petition for Attorney's Fees We now address the Attorney's claims for fees incurred in connection with the preparation and litigation of the fee petition. The Attorney's original fee petition requested .75 hours for preparing the fee request. With his appeal brief supporting the first appeal on fees and costs, the Attorney enclosed a supplemental fee request for time spent litigating fees and costs on appeal. It indicated that the Attorney worked 2.25 hours, and his associate 11 hours. The associate billed at ? the Attorney's rate. For the most part the Attorney worked on the notice of appeal and appeal brief and writing and reviewing correspondence. Almost all the associate's work was on the appeal brief, including 1.5 hours of travel in connection with legal research. The associate did not work on the underlying case. The appeal brief package included affidavits regarding the reasonable hourly rates for the Attorney and the associate, and documentation of costs. In remanding the matter of fees and costs to the agency, the Commission ordered that the agency issue a new final decision which, among other things, would address the supplemental fee petition. The agency's new final decision awarded no additional attorney's fees or costs. It found that the Attorney was not entitled to the additional fees requested in the supplemental fee petition because it had correctly determined fees and costs. Thereafter the appellant filed a new appeal regarding fees and costs. With the associated appeal brief, the Attorney enclosed a supplemental fee request covering his work litigating fees and costs after the first supplemental fee request was submitted, and all the above documents were copied to the agency. The second supplemental fee request indicated that the Attorney worked an additional 4.5 hours. This included reviewing and writing correspondence, responding to the agency's request for reconsideration after the Commission's first appeal decision, and working on the notice of second appeal and the associated appeal brief package. The previous decision awarded additional fees and costs. With regard to fees for preparing and litigating the fee petition, the previous decision cited Commission case law holding that the hours allowed for preparing and litigating the fee petition should not exceed 3% of the hours allowed with regard to the main case if it did not include a hearing. Noting that an application of this cap would incongruously allow approximately five minutes for preparing and litigating the fee petition, it awarded the Attorney one hour for the preparation and litigation of the fee petition, i.e., $110. In his request for reconsideration, the Attorney argues that the Commission's case law should be reversed because the above cap is arbitrary. Following Coulter v. State of Tennessee, 805 F.2d 146, 151 (6th Cir. 1986), Commission case law has ruled that the hours allowed for preparing and litigating the attorney's fees petition or issue should not exceed 3% of the hours in the main case when the issue is submitted on paper without a hearing, and should not exceed 5% of the hours in the main case when a hearing is necessary. See e.g., Qazei v. Department of the Interior, EEOC Appeal No. 01873357 (May 24, 1988); Burns v. General Services Administration, EEOC Appeal No. 01931132 (October 28, 1993) and Bernard v. Department of Veterans Affairs, EEOC Appeal No. 01966861 (July 17, 1998). Circuits other than the Sixth Circuit, however, have not used caps, but have ruled that fees for working on attorney's fees should be based on reasonableness. Bernardi v. Yeutter, 951 F.2d 971, 976 (9th Cir. 1991) (litigation of fee petition); Laffey v. Northwest Airlines, Inc., 746 F.2d 4, 29-30 (D.C. Cir. 1984) (preparation and litigation of fee petition), overruled on other grounds, 857 F.2d 1516 (D.C. Cir. 1988). We find that the reasonableness standard is the better approach. The caps represent a mechanized, arbitrary, and routine determination for an award of fees and costs and constitute too restrictive a view of the appellant's entitlement. Courts and the Commission demand detailed billing information and extensive documentary and legal support for a fee petition. Also, it is inconsistent to dilute the award of fees and costs by refusing to compensate an attorney for reasonable time spent and costs incurred to establish reasonable fees and costs. After reviewing the supplemental fee petitions, and the record, which contains much of the documentation referred to in the supplemental fee petitions, we find all the hours claimed in the supplemental fee petitions were reasonably expended. We find, however, that the first supplemental fee petition contained a double entry of .25 hours on January 22, 1992, and that this entry is not recoverable. Further, the record supports awarding fees for the associate at ? the awarded hourly rate of the Attorney (? of $110) or $73 per hour. Also, the 1.5 hours the associate spent traveling shall be awarded at 50% of the associate's hourly rate, or $36.50 per hour. Further, after reviewing the Attorney's request for reconsideration, we find a reasonable amount of time to work thereon was 1.5 hours. Given this small amount, and to avoid more administrative processing of the protracted issue of fees and costs, we award the 1.5 hours herein. In sum, the Attorney claimed .75 hours for preparing the fee petition, 2.25 hours in the first supplemental fee petition for his work, and 4.5 hours in the second supplemental fee petition. The first fee petition contained a double entry of .25 hours, and hence this amount will not be awarded. Further, he is entitled to 1.5 hours for preparing the request for reconsideration to this Commission. This totals 8.75 hours at an hourly rate of $110, or $962.50. Regarding the associate, the first supplemental fee petition claimed 11 hours, including 1.5 hours of travel time. Nine and half of these hours are awarded herein at the rate of $73 per hour, for a total of $693.5, and the 1.5 hours of travel are awarded herein at half the associate's rate, for a total of $54.75. The sum total entitlement by the attorney and his associate for preparing and litigating the fee petition is $1710.75. Since this decision addresses all the fees and costs to which the Attorney and his associate are entitled up through the instant decision, this decision does not contain an order for the agency to process any new supplemental fee petition by the Attorney or his associate for litigating the entitlement to fees and costs. CONCLUSION After a review of the appellant's request for reconsideration, the previous decision, and the entire record, the Commission grants the appellant's request, in part. The decision of the Commission in EEOC Appeal No. 01943642 is modified. The agency shall comply with the order below. ORDER The agency is ordered to pay the Attorney, within 60 days after receipt of this decision, additional attorney's fees of $2150.75 and costs of $313.70.<4> To the extent the agency already paid the additional attorney's fees and costs awarded in the Commission's previous decision, the agency may deduct that amount. The agency is further directed to submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision." The report shall include supporting documentation that the agency paid the Attorney the additional fees and costs ordered in this decision. 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. See 29 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. RIGHT TO FILE A CIVIL ACTION (P0993) This decision of the Commission is final, and there is no further right of administrative appeal from the Commission's decision. You have the right to file a civil action in an appropriate United States District Court. 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. 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 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 the time limits as stated in the paragraph above ("Right to File A Civil Action"). FOR THE COMMISSION: DEC 9, 1998 Date Frances M. Hart Executive Officer Executive Secretariat 1 Black v. Department of the Army, EEOC Appeal No. 01921158 (January 14, 1993). 2 Black v. Department of the Army, EEOC Request No. 05930492 (December 14, 1993). 3 The Attorney was also in Fort Polk on union business regarding an unrelated case. This does not diminish the Attorney's entitlement to six hours of travel back time since the other case did not lengthen the trip back. However, the agency is only required to compensate the Attorney once for this trip. The agency does not argue that it already compensated the Attorney for the time it took him to travel back with regard to another case. 4 The fees figure is the sum of six hours of travel by the Attorney awarded herein at 50% of the hourly rate of $110 (total $330), the additional one hour the previous decision awarded the Attorney at the hourly rate of $110 (total $110) for work on the underlying case, and the $1710.75 awarded in the instant decision for the Attorney's and his associate's work on preparing and litigating fees and costs. The previous decision awarded $313.70 in costs.