05971058
10-28-1999
Carmen P. Rockwell, Appellant, v. Donna Shalala, Secretary, Department of Health and Human Services, Agency.
Carmen P. Rockwell, )
Appellant, )
) Request No. 05971058
v. ) Appeal No. 01956593
) Agency No. OSH-196-92
Donna Shalala, ) No. OSH 358-92
Secretary, ) No. OSH 370-92
Department of Health ) No. OSH 628-92
and Human Services, ) No. OSH 908-93
Agency. ) Hearing Nos. 100-94-7764X through
) 100-94-7768X
DECISION ON REQUEST FOR RECONSIDERATION
On September 1, 1997, Carmen P. Rockwell (hereinafter referred to as the
appellant), through counsel, timely initiated a request to the Equal
Employment Opportunity Commission (the Commission) to reconsider the
decision in Carmen P. Rockwell v. Donna Shalala, Secretary, Department
of Health and Human Services, EEOC Appeal No. 01956593 (August 11, 1997).
EEOC regulations provide that the Commissioners may, in their discretion,
reconsider any previous decision. 29 C.F.R. �1614.407(a). A party
requesting reconsideration must submit written argument or evidence
which tends to establish one or more of the following criteria: new
and material evidence is available that was not readily available
when the previous decision was issued, 29 C.F.R. �1614.407(c)(1);
the previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy, 29
C.F.R. �1614.407(c)(2); the decision is of such exceptional nature as to
have substantial precedential implications, 29 C.F.R. �1614.407(c)(3).
For the reasons set forth below, appellant's request is granted, and
the previous decision is affirmed, as modified.
The issue presented is whether the previous decision determined the
proper amount of attorney's fees and costs.
Based on events from late 1991 through mid-1993, appellant filed five
complaints alleging discrimination based on national origin (Hispanic),
sex and reprisal for prior EEO activity with regard to performance
plans, performance evaluations, funding for travel and training, a
14-day suspension for time and leave infractions, disciplinary actions,
and unresponsiveness by her managers. Following an investigation,
appellant requested a hearing, and all complaints were consolidated.
The Administrative Judge (AJ) found no discrimination with regard to all
claims, but recommended payment by the agency of appellant's attorney's
fees and costs for discovery expenditures as sanctions for the agency's
"contumacious conduct."<1> RD, p. 16. The AJ's decision became the
agency's final decision upon its failure to issue a FAD, and appellant
filed an appeal.<2>
The previous decision adopted the AJ's findings of no discrimination and
directed the agency to pay appellant $10,047.50 for her attorney's fees
and costs. The previous decision based its award on counsel's submissions
of fees and costs in March 1995 before the AJ. Appellant has filed a
request to reconsider, contending that the previous decision miscalculated
the amount of the claim for attorney's fees and costs. Counsel has
submitted a new fee petition that she asserts was transmitted to the
agency on September 7, 1995. In its comments, the agency denies receipt
of the September 1995 fee petition and requests that the Commission
affirm the previous decision's award.
The usual starting point for determining the amount of an award of
reasonable attorney's fees is the number of hours reasonably expended,
multiplied by a reasonable hourly rate, to equal an amount known as the
"lodestar." 29 C.F.R. �1614.501(e)(2)(ii)(B); see also Blum v. Stenson,
465 U.S. 886 (1984); Hensley v. Eckerhart, 461 U.S. 424, 433-34 (1983);
Engle v. Department of Defense, EEOC Request No. 05931027 (June 23, 1994).
An attorney seeking an award of attorney's fees has the burden of showing,
by specific evidence, entitlement to the requested fees, and costs,
and s/he must use reasonable billing judgment in formulating the claim.
Copeland v. Marshall, 641 F.2d 880 (D.C. Cir. 1983).
Fees
Before us are two requests for fees, one submitted in March 1995 for
$9,367.50 (March submission), and the other submitted in September 1995 in
the amount of $18,460.50 (September submission). There are significant
differences in these two submissions in terms of the services rendered
and the hourly rate claimed. The March submission shows expenditure
of 38.55 hours at $250 per hour, for a total of $9,367.50, for the
period January 10 through March 10, 1995. In the September submission,
counsel claimed 59.55 hours at $310 per hour, or $18,460.50, for the
period from October 16 1994, through March 15, 1995. We note that the
second submission includes 6.4 additional hours prior to the beginning
date of the first submission, from October 16, 1994, through January 9,
1995, and 0.5 hours for the period after March 10, 1995. Further, an
additional 14.1 hours enlarged the second submission for the period from
January 10 through March 10, 1995, through increases in time expended
and new services billed for the first time.
In the instant request, counsel attempts to disavow the March fee
submission, stating that the previous decision apparently relied on
"interim fee claims." The record, however, does not show that counsel
intended the March submission to be preliminary with regard to her hourly
rate; in fact, counsel had consistently stated her hourly rate at $250 per
hour in other motions filed with the AJ. For this reason, we are troubled
by counsel's lack of explanation for the increased rate claimed in the
September submission, a mere six months after the initial submissions.<3>
Because counsel failed to explain or justify the increased hourly rate,
we cannot approve the new, higher rate. We find therefore that appellant
is entitled to an award of attorney's fees at the rate of $250 per hour.
Turning to the amount of hours expended, we note that this case
involved five complex complaints of discrimination heard within
an administrative process characterized by the AJ as causing "much
difficulty to Complainant and her counsel." RD, p. 16. The record
shows that this case was transmitted for hearing in June 1994, and the
AJ's Acknowledgement Order was issued on August 23, 1994. Consequently,
we find that it was not unreasonable for appellant to initiate discovery
activity in October 1994, and we accept counsel's claim for discovery
activity beginning October 16, 1994.<4> Of concern to the Commission,
however, is the addition of 14.1 hours to the time already stated in the
March submission for the period from January 10 through March 10, 1995.
A comparison of the March and September submissions shows that some of
this time represents new activity not previously included as well as
the enlargement of extant services rendered. Again, counsel has not
offered an explanation or justification for the differences between
the two submissions. Without a basis for these changes, we rely, as
did the previous decision, on counsel's initial submission in March.
We find therefore that appellant is entitled to an award of attorney's
fees for 45.45 hours at $250 per hour, or $11,362.50.
Costs
In the March submission, counsel sought reimbursement of costs, but
noted that these amounts were preliminary, in that, some bills had not
been received. On March 15, 1995, counsel amended her claim to show
$819 in costs, covering recent depositions and transcripts. In her
September submission, counsel added $993.44 in costs for such non-personal
expenditures as photocopy costs, online charges, courier service fees,
and telephone charges. These charges were not part of the initial
submission and likely not available to counsel until several months
after the close of the record before the AJ. After a review of these
charges and for the reasons stated above concerning the nature of this
matter, we do not find these two requests for these charges unreasonable.
We find therefore that appellant is entitled to an award of costs in
the amount of $819 plus $993.44, or $1,812.44.
CONCLUSION
After a review of the appellant's request for reconsideration, the
agency's reply thereto, the previous decision, and the entire record,
the Commission grants appellant's request and finds that the appellant
is entitled to an award of $13,174.94 in attorney's fees and costs.
The decision in EEOC Appeal No. 01956593 (August 11, 1997) is MODIFIED
as stated herein. There is no further right of administrative appeal
on a decision of the Commission on a Request for Reconsideration.
The agency is directed to comply with the Order, below.
ORDER
Within thirty (30) calendar days of the date this decision, the agency
is ORDERED to issue a check in the amount of $13,174.94 as attorney's
fees and costs. A copy of the agency's letter transmitting the check
for attorney's fees must be submitted to the Compliance Officer, as
referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
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 appellant. If
the agency does not comply with the Commission's order, the appellant may
petition the Commission for enforcement of the order. 29 C.F.R. �1614.503
(a). The appellant 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. ��1614.408,
1614.409, and 1614.503 (g). Alternatively, the appellant 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. ��1614.408 and 1614.409. 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 (Supp. V 1993). If the appellant files a civil action,
the administrative processing of the complaint, including any petition
for enforcement, will be terminated. See 29 C.F.R. �1614.410.
STATEMENT OF APPELLANT'S RIGHTS - ON REQUEST FOR RECONSIDERATION
RIGHT TO FILE A CIVIL ACTION (P0993)
This decision of the Commission is final, and there is no further right of
administrative appeal from the Commission's decision. You have the right
to file a civil 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. 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.
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:
Oct. 28, 1999
Date Frances M. Hart
Executive Officer
Executive Secretariat
1Specifically, the AJ stated:
In the over 200 cases I have processed, I have never before encountered
such a continuing flagrant disrespect for the administrative process,
and one which caused so much difficulty to complainant and her counsel.
2The previous decision also stated incorrectly that appellant's brief
was untimely by one day, having failed to note that October 9, 1995,
was a federal holiday.
3In a motion filed January 13, 1995, counsel stated that she and her
partners routinely receive $250 per hour in similar proceedings relying
on a matrix prepared by the U.S. Attorney's Office (matrix).
4Similarly, we grant counsel the additional 0.5 hours expended after
March 10, 1995.