01971969
01-29-1999
Robert Maxwell, Appellant, v. Bruce Babbitt, Secretary, Department of the Interior, (Mineral Management Service), Agency.
Robert Maxwell v. Department of the Interior
01971969
January 29, 1999
Robert Maxwell, )
Appellant, )
)
v. ) Appeal No. 01971969
) Agency No. LMS-95-012
Bruce Babbitt, ) Hearing No. 310-96-5034X
Secretary, )
Department of the Interior, )
(Mineral Management Service), )
Agency. )
______________________________)
DECISION
INTRODUCTION
On December 24, 1996, Robert Maxwell (hereinafter referred to as
appellant), by and through his attorney, initiated an appeal to the Equal
Employment Opportunity Commission (EEOC or Commission) concerning the
Department of the Interior's (agency) failure to issue a final decision
on his application for attorney's fees and costs. On January 16, 1997,
during the pendency of this appeal, the agency issued its final decision
on this matter. By letter dated January 22, 1997, appellant, in response
to receipt of the agency's final decision, submitted a Request to Amend
Appeal and Statement on Appeal, The record establishes that the agency
had previously found that appellant had been discriminated against on
the basis of his sex (male) when he was not selected for the position
of Supervisory Auditor, GS-14, located in Oklahoma City, Oklahoma,
in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. �2000e et seq. This appeal is accepted by the Commission in
accordance with the provisions of EEOC Order No. 960.001.
ISSUE PRESENTED
The issue presented by this appeal is whether the agency properly denied
a portion of appellant's claim for attorney's fees.
BACKGROUND
At the time this matter originally arose, appellant was employed by
the agency's Mineral Management Service as a Supervisory Auditor,
GS-13, in Dallas, Texas. When he was not selected for promotion
to the above-described GS-14 position, he filed a formal EEO with
the agency alleging discrimination on the basis of his sex (male),
race (Caucasian), and/or age (over 40). At the time he filed his
complaint, two other complainants filed identical complaints over the
same selection decision alleging discrimination on the same bases.<1>
The same attorney represented all three complainants. The three
complaints were consolidated for hearing because of the similarity
of issues and witnesses. On June 10, 1996, following the hearing,
the EEOC administrative judge (AJ) issued a decision recommending a
finding of sex, race and age discrimination on all three complaints.
On August 14, 1996, the agency issued its final decision, adopting the
AJ's finding of sex discrimination, but rejecting the finding of age and
race discrimination "due to insufficient evidence." The agency further
adopted the remedies recommended by the AJ, including the provision for
the payment of reasonable attorney's fees and costs.
On September 18, 1996, appellant's attorney submitted a request for
attorney's fees and costs for work associated with the successful
prosecution of the three complaints. In his request, counsel claimed
a total of 258.21 hours for work performed on all three complaints,
amounting to a request of $39,845.75 plus costs of $3,339.18, for a
total fee of $43,184.93. Counsel further represented to the agency that
one-third of the total hours and costs expended by his firm was used in
representing each of the three complainants. By letter dated October 10,
1996, the agency requested additional information from counsel relative
to his attorney's fee request. The requested additional information
was forwarded to the agency from counsel by letter dated October 28,
1996. In early December 1996, the agency's representative contacted
counsel by telephone and communicated that the agency had determined
$28,529.30 to be a reasonable amount of attorney's fees and costs for
the three consolidated cases. Counsel responded by offering to reduce
his fee request by 10%. The agency's representative rejected this
offer, but countered with an offer to settle the matter for $35,000.
This counter-offer was memorialized in a letter dated December 13, 1996,
which stated that the offer would remain opened until December 20, 1996.
When counsel failed to respond, the agency issued its final decision,
dated January 16, 1997, awarding the three complainants, including
appellant, $35,000 in attorney's fees and costs for the successful
processing of their three consolidated complaints. It is from this
decision that appellant now appeals.
ANALYSIS AND FINDINGS
By federal regulation, an agency shall award attorney's fees and costs
for the successful processing of an EEO complaint in the administrative
process. See 29 C.F.R. �1614.501(e). A prevailing party for purposes of
entitlement to attorney's fees is one who succeeds on any significant
issue in litigation which achieves some of the benefit the party
sought in bringing the suit. Nadeau v. Helgemoe, 581 F.2d 275, 278-79
(1st Cir. 1978). The fee awarded is normally determined by multiplying
the number of hours reasonably expended by a reasonable hourly rate.
Hensley v. Eckerhart, 461 U.S. 424 (1983); 29 C.F.R. �1614.501(e).
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).
In the instant appeal, neither party disputes counsel's claimed
hourly rate of $200 per hour for himself and his partner, $150 for his
associate attorney, $75 for his paralegal and $50 for his secretary.
Only the number of hours reasonably expended are at issue. First,
the Commission notes that, on appeal, appellant's attorney has not
presented any argument in support of increasing his fee award from the
amount set by the agency other than a general assertion that the agency,
in essence, waived its right to object to the reasonableness of the
hours and costs claimed because it exceeded the time limits for issuing
its final decision of his fee petition contained in the Commission's
regulations at 29 C.F.R. �1614.501(e)(2). This regulation provides
that if an agreement cannot be reached on the amount of attorney's fees
to be paid within 20 days from the agency's receipt of the fee request,
the agency shall issue a final decision on the fee request within 30 days
of receipt of a verified statement itemizing the attorney's charges with
an accompanying affidavit. The agency concedes that it exceeded this
time limitation. However, the Commission is persuaded by the agency's
assertion that the delay was reasonable in light of the complex nature
of considering a fee petition for three consolidated complaints, the
agency's need for additional information, and the agency's good faith
efforts to negotiate a settlement of this matter with counsel. In light
of these factors, the Commission finds this to be the exceptional case
where the delay can be excused, and the agency's waiver of its right to
challenge the fee petition is not warranted. See Daniels v. Department
of the Army, EEOC Appeal No. 01944633 (August 14, 1995), request for
reconsideration denied, EEOC Request No. 05950959 (March 20, 1997)
(agency, while admonished regarding its failure to process attorney's fee
request within the prescribed time limitations, is ordered to consider
and render a decision on the request).
Based on its own independent review, the Commission finds ample support
in the record for the agency's conclusion that some of the charges
submitted by counsel in this matter are excessive or duplicative.<2>
The agency documented the reasons for this finding in great detail in
internal memoranda it prepared which appear in the record. On appeal,
counsel has not met his burden of providing a justification for the hours
claimed which the agency's disallowed. After a thorough review of the
record, the Commission finds no basis to reverse the agency's finding
on the hours reasonably expended in this matter.
CONCLUSION
Accordingly, it is the decision of the Commission to AFFIRM the final
agency decision awarding $35,000 in attorney's fees and costs.
STATEMENT OF RIGHTS - ON APPEAL
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, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS 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
WITHIN TWENTY (20) CALENDAR DAYS 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. � l6l4.604(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. 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:
Jan 29, 1999
__________________ _______________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations
1 It should be noted that this case was considered with two companion
cases: McDaniel v. Department of the Interior, EEOC Appeal No. 01971968
and Arnold v. Department of the Interior, EEOC Appeal No. 01971970.
2 For example, on April 29, 1996, the hearing on the consolidated
complaints lasted for six hours. Counsel sought reimbursement for six
hours for each of the three complainants for a total of 18 hours for
this hearing. The agency only allowed payment for the six hours of the
hearing.