If the EEOC writes a decision that requests the attorney fees, this is a positive request, because it means the EEOC Judge has sided in your favor.
The federal agency and the EEOC judge continue to scrutinize and reduce the value of the award at every turn, especially when they lose.
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.
By federal regulation, an agency shall award attorney’s fees and costs
for the successful processing of an EEO complaint in accordance with the
existing case law and regulatory standards. See 29 C.F.R. §1614.501(e).
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 award is normally determined by multiplying the
number of hours reasonably expended by a reasonable hourly rate, also
known as a lodestar. See Hensley v. Eckerhart, 461 U.S. 424 (1983);
Blum v. Stenson, 465 U.S. 886 (1984); 29 C.F.R. §1614.501(e)(2)(ii)(B).
The attorney requesting the fee award has the burden of proving, by
specific evidence, his entitlement to the requested award. See Copeland
v. Marshall, 641 F.2d 880, 892 (D.C. Cir. 1980).
In this case, complainant’s attorney submitted copies of correspondence
to the agency, an affidavit from another attorney regarding the
reasonableness of the hourly rate, and a “Statement of Attorney Hours and
Fees” totaling 12.2 hours. As noted above, the agency deducted 4.0 hours
from the requested total spent trying to obtain compliance with the NSA.
Under the present circumstances, however, we disagree with the agency’s
reduction. Here, the agency has acknowledged that the activity acted in
bad faith, complainant prevailed, and the time spent on phone calls and
correspondence seems reasonable. Therefore, we find that complainant’s
attorney is entitled to fees for the 12.2 hours expended.
While the agency contends that the complainant’s hourly rate of $205.00
should be reduced to $100.00, we disagree. Based on prior Commission
decisions, we find complainant’s requested rate to be reasonable. See
Gurwitz v. Department of Health and Human Services, Appeal No. 01931833
(Nov. 24, 1993)(finding the hourly rate of $175 for work done in 1992
and $190 for work done in 1993, to be consistent with prevailing market
rates in the Baltimore area); see also, Sands v. Department of Defense,
Petition No. 04990001 (Feb. 25, 2000)($200 hourly rate was reasonable
regarding discrimination that occurred in Fort Lee, Virginia).
Therefore, the Commission finds that complainant is entitled to recover
$2,501.00 in attorney’s fees, based on an hourly rate of $205.00 and
12.2 hours spent seeking compliance with the NSA.
Accordingly, the matter is REMANDED to the agency for payment of
attorney’s fees as set forth below.
