01982578
01-06-2000
Vivian Lee, Complainant, v. William S. Cohen, Secretary, Department of Defense, (Defense Logistics Agency) Agency.
Vivian Lee v. Department of Defense (DLA)
01982578
January 6, 2000
.
Vivian Lee,
Complainant,
v.
William S. Cohen,
Secretary,
Department of Defense,
(Defense Logistics Agency)
Agency.
Appeal No. 01982578
Agency No. XQ93017
DECISION
Complainant filed a timely appeal with the Commission from a final agency
decision (FAD 1) which reduced the award of attorney's fees requested in
connection with her appeal of the amount of attorney's fees and costs
awarded under FAD 2, as ordered by the Commission in Lee v. Department
of Defense, EEOC Appeal No. 01962241 (July 22, 1997). Complainant is
entitled to an award of attorney's fees under Title VII of the Civil
Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.<1> The instant
appeal is accepted in accordance with EEOC Order No. 960.001. For the
following reasons, the Commission AFFIRMS FAD 1.
In our prior decision, we substantially increased the amount of attorney's
fees awarded under FAD 2, from $12,037.50 to $24,040.00, and also awarded
attorney's fees to the complainant for "time spent pursuing the instant
appeal." Pursuant to this Order, complainants submitted a petition
to the agency requesting additional attorney's fees in the amount of
$9,424.24. In response, the agency issued FAD 1 which determined that
the amount of time claimed was excessive in light of the simplicity of
the issue, and that the hourly rate of $95.00 for paralegal services was
in excess of the $60.00 rate sanctioned by the Commission in its prior
decisions. FAD 1 also found that some of the services in the petition
were duplicative, and that the amount claimed was "clearly xcessive"
given the amount of fees awarded for settlement of the entire case. FAD 1
awarded complainant $5,590.00 in fees, and $26.74 in costs, for a total
of $5,616.74.
On appeal, complainant argues that the agency made the appeal needlessly
complex by setting forth an overly detailed analysis to support its
decision to reduce the attorney's fees, necessitating a 36 page appellate
brief in defense of the fee petition. Additionally, complainant contends
that the $95.00 per hour paralegal fee is justified because the $65.00
per hour fee was only applicable to cases that settled, and did not
included overhead costs. Complainant also claims that the agency has
acted without good faith in this matter, as evidenced by the drastic
reduction of fees in FAD 2 and the delays in the agency's responses.
There has been a recent change in Commission policy regarding the
entitlement to attorney's fees for the preparation and litigation of
the attorney's fee petition. Previously, the number of hours allowed was
not to exceed 5% of the hours in the main case when, as here, a hearing
was conducted (and 3% in those cases with no hearing). However, in Black
v. Department of the Army, EEOC Request No. 05960390 (December 9, 1998),
the Commission departed from this guideline, and instead now uses a
"reasonableness standard" when determining an attorney's entitlement
to fees for preparing and litigating a fee petition. Applying the 5%
guideline under the previous standard, we note that complainant would
have been entitled to no more than $1,202.00 in attorney's fees in the
instant case.
Our review of the attorney's fee petition here confirms the agency's
findings regarding excessive expendures of time. In particular, we
find that the amount of time spent in conferences and the multiple
times charged for reviewing and revising the same documents is quite
excessive given the subject matter of the appeal. We also find that
a 36 page brief, with exhibits, is excessive in this case, and note
that a detailed accounting by the agency explaining its reduction of
the fee request would be helpful in preparing an appeal rather than
making it more complicated as claimed by complainant. In this regard,
we note that it is well settled that an applicant for attorney's fees
is only entitled to an award for time reasonably expended, and that it
does not always follow that the amount of time actually expended is the
amount of time reasonably expended. Elvin v. Department of Labor, EEOC
Request No. 01943425 (August 31, 1995). Therefore, we concur with FAD 1
that one-half of the time claimed in the fee petition is reasonable in
this case.<2> See Black, supra.
Moreover, we find that complainant has not provided contemporaneous
affidavit evidence that the paralegal fee should be $95.00 per hour
as opposed to $60.00 per hour, and we do not agree with the argument
that this is no longer a "settled" case, or that overhead costs as
a part of the paralegal fee are now justified when they were not
before. Furthermore, although the 5% cap has been replaced by a
"reasonableness standard," we agree with the agency that, barring
extraordinary justifying circumstances, a request for fees in the amount
of $9,424.24 is "clearly excessive" given that it is more than one-third
of the award in the main case.
In conclusion, based upon a review of the record herein, it is the
decision of the Commission to AFFIRM the FAD awarding attorney's fees and
costs in the total amount of $5,616.74, and to advise the agency that this
amount is to be paid to complainant as the prevailing party, pursuant
to Cerney v. Department of the Army, Request No. 05939899 (October 19,
1994). In light of this determination, we find that complainant is not
entitled to an award of attorney's fees for time spent pursuing the
instant appeal.
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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S1199)
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, filling a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
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
Tide 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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
January 6, 2000
__________________
Date
1On 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 a the
Commission's website at WWW.EEOC.GOV.
2We note that there is no dispute regarding the $26.74 amount of costs
claimed, or the $200.00 per hour rate charged by complainant's attorney.