01974717
01-14-2000
Nestor Nieves, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Nestor Nieves v. Department of Veterans Affairs
01974717
January 14, 2000
Nestor Nieves, )
Complainant, )
) Appeal No. 01974717
v. ) Agency Nos. 95-2150 and 96-0086
)
Togo D. West, Jr., )
Secretary, )
Department of Veterans )
Affairs, )
Agency. )
)
DECISION
On May 21, 1997, complainant, by and through his representative, timely
appealed to this Commission from the final decision of the agency dated
April 30, 1997, concerning an award of attorney's fees for services
performed in the underlying claim which was resolved through a settlement
agreement entered into on January 27, 1997.<1> The settlement agreement
provided that complainant would be allowed reasonable attorney's fees.<2>
Complainant submitted a fee petition on February 11, 1997, for $13,387.50
representing 89.25 hours of services performed at an hourly rate of
$150.00. The agency compensated complainant for the 89.25 hours of
work at an hourly rate of $125.00. The only issue presented herein is
whether the agency's reduction of the requested hourly rate from $150.00
to $125.00 was proper.<3>
By regulation, a federal agency must award attorney's fees, in accordance
with existing law, for the successful processing of an EEO complaint.
64 Fed. Reg 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. �1614.501(e)(1) ). Such awards extend to
complainants who enter into settlement agreements. See Eaglin v. United
States Postal Service, EEOC Request No. 05910604 (August 22, 1991).
The fee award is ordinarily determined by multiplying a reasonable number
of hours expended on the case by a reasonable hourly rate, also known as
a lodestar. 64 Fed. Reg 37,644, 37,659-60 (1999) (to be codified and
hereinafter referred to as 29 C.F.R. �1614.501(e)(2)(ii)(B)); Hensley
v. Eckerhart, 461 U.S. 424 (1983); Blum v. Stenson, 465 U.S. 886 (1984);
City of Burlington v. Dague, 112 S. Ct. 2638 (1992).
The Supreme Court has held that the reasonable hourly rate for statutory
fee cases is to be determined by the "prevailing market rates in the
relevant community." Blum, 465 U.S. at 895. The burden is on complainant
to produce satisfactory evidence, in addition to the attorney's own
affidavit, that the requested rates are consistent with those in the
community for similar services by attorneys with comparable skill,
experience, and reputation. Id. The Commission views the attorney's own
customary billing rate as the most reliable evidence of prevailing rates.
See e.g., Chris v. Central Intelligence Agency, Appeal No. 01956844
(July 19, 1996).
On appeal, complainant states that there is no dispute that the agency
accepted his representative's customary hourly rate of $125.00 for
services performed between 1994 and 1995 in Dessus-Medina v. Department of
Veterans Affairs, EEOC Appeal 01943905 (August 2, 1995). See n. 2, supra.
Complainant's representative, who practices law in Puerto Rico, attests
in her affidavit that her customary billing rate in recent administrative
labor cases has been $150.00 per hour. Complainant has also presented
an affidavit from an attorney who has been in private practice in Puerto
Rico since 1985. This attorney attested to a customary billing rate of
$150.00 per hour for services performed in 1995. Complainant also states
that the Federal district court in Puerto Rico typically approves hourly
rates between $120.00 and $200.00, depending on the year of services
rendered and the experience of the attorney involved.<4>
Based on the above, the Commission finds that the requested hourly rate
of $150.00 is reasonable. Complainant's representative, who has been
a litigator since 1988, performed services in support of complainant's
claim between 1995 and 1997. We find that the $25.00 increase in her
hourly rate is justified in view of the market value of her services
and in view of the experience acquired since Dessus-Medina, supra.
Therefore, it is the decision of the Commission to MODIFY the agency's
final decision and to award complainant a fee as set forth in the ORDER
below. This matter is REMANDED to the agency for further processing in
accordance with this decision and the applicable regulations.
ORDER
The agency is ORDERED to pay complainant, within thirty (30) days of
the date that this decision becomes final, an additional attorney's fee
of $2,331.25. This figure represents the difference between the hours
not previously compensated at the hourly rate of $150.00 and the hours
previously compensated at the lower rate of $125.00. The agency shall
further compensate complainant for reasonable time expended pursuing this
appeal. See Black v. Department of the Army, EEOC Request No. 05960390
(December 9, 1998). Complainant shall provide the agency with all
necessary documentation of time expended on this appeal within thirty
(30) days of the date that this decision becomes final. The agency
shall issue a final decision on complainant's request for attorney's
fees within thirty (30) days of the date it receives the supplemental
fee request and documentation.
A copy of the agency's letter to complainant enclosing a check for
payment of the determined attorney's fees as well as the new final agency
decision, must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)
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 64 Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 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)(Supp. V 1993).
If the complainant files a civil action, the administrative processing of
the complaint, including any petition for enforcement, will be terminated.
See 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. �1614.409).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. �1614.405). All requests and arguments must 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
timely filed if it is received by mail within five days of the expiration
of the applicable filing period. See 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 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).
RIGHT TO FILE A CIVIL ACTION (R0993)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such 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. In the alternative,
you may file a civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR
DAYS of the date you filed your complaint with the agency, or filed your
appeal with the Commission. 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.
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 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:
January 14, 2000
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_________________________
_________________________
1 On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.
2 In the underlying claim, complainant alleged unlawful employment
discrimination in violation of �501 of the Rehabilitation Act of 1973,
as amended, 29 U.S.C. �791 et seq.
3 The agency originally reduced complainant's hourly rate from $150.00
to $100.00. Upon discovering that the agency had previously awarded
complainant $125.00 per hour, the agency adopted the hourly rate of
$125.00.
4 In Morales Felicano v. Hernando Colon, 697 F. Supp. 57 (DCPR 1988),
the Court awarded an attorney with nine years of experience an hourly
rate of $120.00 for work performed in 1986 and 1987, with an increase
of ten dollars every two years.