0120072203
08-12-2009
Keith R. Brooks & Orlando V. Jackson Complainants, v. Janet Napolitano, Secretary, Department of Homeland Security, (Customs and Border Patrol), Agency.
Keith R. Brooks & Orlando V. Jackson
Complainants,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security,
(Customs and Border Patrol),
Agency.
Appeal Nos. 0120072203; 0120072589
Hearing Nos. 160-980-8492X; 160-980-8493X;
Agency Nos. TD98-3076, TD98-3077; TD993258
DECISION
On March 13, 2007, and May 15, 2007, respectively, Keith R. Brooks
("Complainant Brooks") and Orlando V. Jackson ("Complainant Jackson")
filed appeals with this Commission concerning their counsel's request
for additional attorney's fees and costs. The Commission exercises its
discretion to consolidate the appeals based on the fact that they both
concern a single attorney fee petition filed by the same counsel.
ISSUE PRESENTED
Whether complainants' counsel is entitled to an award of supplemental
attorney fees and costs for:
(1) work related to seeking enforcement of the ordered remedial
action for Complainant Brooks; and/or
(2) work related to seeking enforcement of the ordered remedial
action for Complainant Jackson.
BACKGROUND
The record reveals that by letter dated March 26, 2007, this Commission's
Compliance Officer, who was at that time assigned to monitor compliance
of the cases of both complainants, notified complainants' counsel as
follows:
This is in response to your correspondence, most recently dated
February 14, 2007, concerning the Department of Homeland Security's
(DHS) implementation of the orders contained in the decisions of the
Equal Employment Opportunity Commission (EEOC) concerning your clients,
Keith R. Brooks and Orlando V. Jackson.
As you know, you were provided with copies of documents contained in
a comprehensive compliance report furnished to EEOC by DHS, Customs
and Border Protection (CBP) on December 13, 2006. Most of those
materials appear to have been already sent to you. Review of the
materials indicates that the only remaining issue is the supplemental
attorney fee request that you made for your efforts to have the agency
comply with EEOC's decisions. The December 13, 2006 CBP report, signed
by. . . CBF, Special Assistant to the Commissioner (EO), concludes that
the award of additional attorney fees is not warranted. That conclusion
is not expressed in the format of a final agency decision (FAD) with
appeal rights, but appears to represent the conclusion of the agency.
We intend to docket an appeal of that conclusion on behalf of your
clients... [emphasis added]
Additionally, by letter to complainants' counsel dated May 31, 2007,
the Compliance Officer stated:
With regard to the matter of attorney fees and costs, we will
include your April 23, 2007 letter, in the case file of appeal number
0120072203 (Mr. Brooks) and new appeal number 0120072589 (Mr. Jackson).
These appeals will deal with the agency's position on your request for
Attorney Fees and Costs dated February 25, 2006. The agency has not
issued a Final Agency Decision on the matter. However, we are treating
the statement of... the Special Assistant to the Commissioner (EO),
U.S. Customs and Border Protection, in his Report of Compliance dated
December 13, 2006, as a denial of additional attorney fees...
We conclude that except for the matter of supplemental attorney fees,
the Commission's Orders have been implemented. The attorney fee request
will be adjudicated as noted above. [emphasis added]
Accordingly, although complainants' counsel has presented arguments
about other matters in his appellate brief, we limit this decision
to the question of whether, as requested, $11,393.73 in attorneys'
fees and costs are due to complainants' counsel for 31.2 hours of work
attempting to obtain compliance with certain ordered remedial actions
for Complainant Brooks and Complainant Jackson.
ANALYSIS AND FINDINGS
Attorney's fees will be computed by determining the "lodestar." The
"lodestar" is the number of hours reasonably expended multiplied by a
reasonable hourly rate. Hensley v. Eckerhart, 461 U.S. 424, 434 (1983). By
regulation, the Commission uses the same basis for calculating the amount
of attorney's fees. 1614.501(e)(2)(ii)(B). A reasonable hourly rate is
a rate based on "prevailing market rates in the relevant community" for
attorneys of similar experience in similar cases. Cooley v. Department
of Veterans Affairs, EEOC Request No. 05960748 (July 30, 1998) (quoting
Blum v. Stenson, 465 U.S. 886 (1984)).
Complainant Brooks
The record indicates that Complainant Brooks filed a complaint in which
he alleged that the agency discriminated against him on the bases of his
race (African-American) and sex (male), when it did not select him for
the position of Senior Customs Inspector. An EEOC Administrative Judge
(AJ) found that the agency had discriminated against him and awarded him
a retroactive promotion, back pay, compensatory damages and attorney's
fees. The agency refused to implement the decision of the AJ and filed
an appeal.
The Commission reversed the agency's final order and affirmed the AJ's
decision which found discrimination. As relief, the Commission ordered
the agency to offer petitioner the position of Senior Customs Inspector
in Toronto retroactive to September 14, 1997 together with back pay
and interest, compensatory damages in the amount ordered by the AJ and
attorney's fees. Keith R. Brooks and Orlando V. Jackson v. Department
of Homeland Security, EEOC Appeal No. 07A10051 et al. (August 14,
2002). On September 21, 2005, Complainant Brooks submitted a petition
for enforcement. He argued that the agency failed to place him in the
position of Senior Customs Inspector in the Toronto location as specified
in the Commission's Order and instead placed him in positions in Maryland
and North Carolina.
In Brooks v. Dept. of Homeland Security, EEOC Appeal No. 04A60001 (January
27, 2006), the Commission found that the agency had not shown compliance
with our order that Complainant Brooks be placed in the position of Senior
Customs Inspector in Toronto. Thus, the agency was ordered to physically
assign complainant to the position of Senior Customs Inspector in Toronto.
Complainants' counsel seeks attorney fees and costs for his successful
attempt to seek enforcement of the Commission's Order that the agency
place Complainant Brooks in a position in Toronto. In reply, the agency
points out that counsel did not achieve enforcement of the Order to place
Complainant Brooks in a position in Toronto. In addition, the agency
objects to the $350 hourly rate for attorney fees requested by counsel,
noting that, in November 2002, counsel moved from the large metropolitan
city of Cincinnati, Ohio to the smaller "vacation/retirement community"
of Traverse City, Michigan. The agency suggests that a reasonable hourly
rate for Traverse City, Michigan would be $240.
Here, as explained above, complainants' counsel has filed a single
petition for attorney fees and costs in the amount of $11,393.73 to
compensate for enforcement work for both complainants (at an hourly
rate of $350). After reviewing the fee petition, the Commission finds
that counsel is entitled to a portion of the attorney fees and costs
requested for enforcement of the Order to place complainant Brooks in
a position located in Toronto,1 namely $5,696.87. We arrive at this
amount, after having considered the following factors:
(1) Counsel is entitled to compensation for his work on Complainant
Brooks' case, between September 11, 2002 and February 22, 2006, as
requested. This period covers counsel's work prior to the issuance
of EEOC Appeal No. 04A60001 on January 27, 2006, as well as for a small
amount of work the following month (February 2006), which consisted mostly
of reviewing the decision in EEOC Appeal No. 04A60001 and explaining it
to Complainant Brooks, and preparing the attorney fee petition.
(2) The Commission accepts that counsel is entitled to an hourly rate of
$350 as his work began while counsel was physically located in Cincinnati,
Ohio.
(3) The $11,393.73 is reasonably reduced by 50% since the total amount
requested for attorney fees and costs also incorporates counsel's work
on Complainant Jackson's case. After such reduction, the amount due is
$5,696.87.
Taking these factors into account, we find that complainant is entitled
to an additional $5,696.87 for reasonable attorney fees and costs for
work seeking enforcement of the Order to provide Complainant Brooks with
a position in Toronto. We direct the agency to comply with the Order
below.
Complainant Jackson
Complainants' counsel seeks attorney fees and costs for the "high
degree of success" when he sought enforcement of the Order to provide
Complainant Jackson with back pay. This work consisted mostly of the
filing of numerous motions and letters to the effect that complainant
had not received the back pay due.
The agency asserts that it issued checks for back pay to Complainant
Jackson in a timely manner (January 2003), but the checks were returned
to the agency unintentionally because they were sent to complainant's
old address.2 The agency submits that although it was notified of
complainant's address change, in June 2003, by that time the back pay
checks had already been issued and mailed to his old address.3 The
agency asserts that complainants' counsel's repetitive letter/motions were
unnecessary once the Commission had begun its investigation to determine
whether the agency was in compliance. In fact, the agency submits that
any additional "work" by counsel after May 20, 2003 was "redundant and
unnecessary" since the Commission's jurisdiction regarding compliance had
already been invoked. Specifically, the compliance review process had
been initiated and the assigned Compliance Officer had already requested,
received and was reviewing supporting computations and records provided
by the agency.
The agency also notes that, for a long period of time, complainant had
not clearly explained that he had not received any check that might
have been issued, and instead simply denied that the agency had made the
payments, which the agency knew to be incorrect as there was proof from
the Finance Center that two checks had been issued. The agency further
submits that Complainant Jackson (or his counsel) ought to have more
clearly set forth his position. The agency additionally asserts that
if Complainant Jackson or his counsel were not satisfied with the time
taken to complete the compliance review process, his remedy was to file
a civil action in federal court (pursuant to 42 U.S.C. 2000e-16(d),
not to file the same redundant motion, and then claim additional
attorney fees at the end of the process. The agency argues that under
these circumstances, where any error or delay in receiving the back pay
checks can be equally ascribed to Complainant Jackson and/or his counsel,
the award of additional attorney fees is not warranted.
The agency argues that, alternatively, if the Commission feels that
attorney fees are nonetheless justified then the time spent preparing and
filing redundant pleadings, particularly those addressed repeatedly to
the Commission and its representatives, should be reduced to a reasonable
amount. The agency suggests that such an amount would only encompass
the time spent in 2003 to file and document the original petition for
enforcement of the final order. Again, the agency also objects to the
$350 hourly rate for attorney fees requested by complainants' counsel,
suggesting instead that a reasonable hourly rate for Traverse City,
Michigan would be $240.
The Commission finds that counsel is entitled to additional attorney fees
and costs for enforcement of the back pay Order for Complainant Jackson,
namely $1,093.75. We arrive at this amount, after having considered
the following factors:
(4) The Commission accepts that counsel is entitled to an hourly rate of
$350, as his work began while he was physically located in Cincinnati,
Ohio.
(5) The total $11,393.73 is reasonably reduced based on the Commission's
agreement with the agency's position that complainant is limited to an
award of attorney fees and costs that encompasses the period up until,
and including May 20, 2003 (a total of 12.5 hours), when counsel filed
and documented the original petition for enforcement of the final order.4
As the agency correctly points out, at that point the matter was already
in the hands of the Commission's Compliance Officer, and therefore, many
of counsel's subsequent filings were redundant. After such reduction,
the amount due stands at $4,375.00.
(6) Next, the amount is reasonably reduced by 50% since the amount
requested for attorney fees and costs also incorporates counsel's work
on seeking enforcement for Complainant Brooks. After such reduction,
the amount due stands at $2,187.50.
(7) The award is thereafter reasonably reduced by another 50% because we
find that the responsibility for complainant's failure to receive his
back pay checks for a period of three years can be attributed to both
parties, as well as possibly factors beyond either party's control.5
Taking all of these factors into consideration, we find that complainant's
counsel is entitled to an additional $1,093.75 for reasonable attorney
fees and costs for work seeking enforcement of the Order to provide
Complainant Jackson with back pay. We direct the agency to comply with
the Order below.
ORDER
Within thirty (30) days of this decision becoming final, the agency
is ordered to pay $5,696.87 in attorney fees and costs for enforcement
of the Order to provide Complainant Brooks with a position in Toronto,
and $1,093.75 in attorney fees and costs for enforcement of the Order
to provide Complainant Jackson with back pay. The total amount due is
$6,790.62.
ATTORNEY'S FEES (H0900)
If complainant has been represented by an attorney (as defined by
29 C.F.R. � 1614.501(e)(1)(iii)), he/she is entitled to an award of
reasonable attorney's fees incurred in the processing of the complaint.
29 C.F.R. � 1614.501(e). The award of attorney's fees shall be paid
by the agency. The attorney shall submit a verified statement of fees
to the agency -- not to the Equal Employment Opportunity Commission,
Office of Federal Operations -- within thirty (30) calendar days of this
decision becoming final. The agency shall then process the claim for
attorney's fees in accordance with 29 C.F.R. � 1614.501.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0408)
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 complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant 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. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant 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. �� 1614.407 and 1614.408.
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)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the
policies, practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 77960,
Washington, DC 20013. In the absence of a legible postmark, the request
to reconsider shall be deemed timely filed if it is received by mail
within five days of the expiration of the applicable filing period.
See 29 C.F.R. � 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0408)
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. 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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
___8/12/09_______________
Date
1 The Commission awards reasonable fees and costs here even though the
record indicates that Complainant Brooks was, ultimately, never placed
in the Toronto position. Counsel is entitled to reasonable compensation
for hours expended on seeking enforcement of the original August 14,
2002 Order given that the Commission, in EEOC Appeal No. 04A60001,
specifically instructed the agency to physically relocate Complainant
Brooks to Toronto.
2 The record reveals that on February 8, 2006, checks were re-issued to
Complainant Jackson and mailed to him at his new address in Canada.
3 Complainants' counsel denies that such was the case, stating that
he had notified the agency of Complainant Jackson's change of address
information on numerous occasions.
4 In his April 23, 2007 letter to the Office of Federal Operations,
complainant's counsel describes May 20, 2003 as the date when he
"submitted a formal Declaration to Respondent verifying the non-payment."
5 We note that in March 2003, Customs and the Immigration and
Naturalization Service merged, which presumably added to the lengthy
delay in clearing up this matter of unpaid back pay.
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0120072203
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
9
0120072203; 0120072589