0120082019
04-11-2012
George L. Cain, Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
George L. Cain,
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120082019
Agency No. ARREDSTON04DEC07740
DECISION
Complainant’s attorney appealed to the Commission for payment of
attorney’s fees in connection with its decision in the matter of Cain
v. Dep’t of the Army, EEOC Appeal No. 0120070820 (Oct. 2, 2007).
The Agency objected to the amount of fees requested by Complainant.
We deem the Agency’s comments and opposition to be a Final Determination
that Complainant’s request should be denied. For the following reasons,
the Commission MODIFIES the Agency’s Final Determination regarding
the payment of attorney’s fees.
BACKGROUND
In Cain v. Dep’t of the Army, EEOC Appeal No. 0120070820 (Oct. 2,
2007), the Commission found that the Agency failed to comply with the
terms of a settlement agreement dated December 14, 2005. The Commission
ordered the Agency to comply as follows:
Within thirty (30) calendar days after the date this decision
becomes final, the agency shall provide complainant the
opportunity to take training courses in the following areas:
Team Building and Team Leadership, Leadership Skills for
Non-Supervisors and Non-Managers, Executive Communications
Workshop and a class in the acquisition field.
Id. Thereafter, Complainant’s attorney submitted his Motion for
Attorney’s fees to the Agency on October 16, 2007. The statement of
fees included a bill for services rendered from September 21, 2006 through
October 10, 2007, with a total of 43.9 hours billed at the rate of $300
per hour for which Complainant requested fees totaling $13,170.00.
On November 5, 2007, the Agency responded to Complainant’s fee
petition objecting to the fee request. In its objection, the Agency
states that a number of the billing entries appear to be excessive for
the work produced. The Agency also points out that a billing entry for
February 26, 2007 (5.2 hours) appears to be a duplicate of an entry on
February 9, 2007. The Agency also opposes the time spent in preparation
of the fee petition (7.3 hours) stating that the hours appear to be
excessive, amounting to approximately 15% of the total billable hours.
The Agency also discusses the billing rate ($185 per hour) approved
for attorney’s fees in an unrelated matter for another attorney.
The Agency’s opposition concludes with the request that the Commission
adjust the fee request “downward in view of the evidence of prevailing
rates and the reasonableness of the hours expended.”
ANALYSIS AND FINDINGS
As a prevailing party on his breach claim, Complainant is entitled to
attorney’s fees incurred in obtaining compliance with the settlement
agreement. Brunotte v. United States Postal Service, EEOC Appeal
No. 0120072294 (July 10, 2007).
An award of attorney's fees is determined by calculating the lodestar,
i.e., by multiplying a reasonable hourly fee times a reasonable number
of hours expended. Bernard v. Dep't of Veterans Affairs, EEOC Appeal
No. 01966861 (July 17, 1998) (citing Hensley v. Eckerbart, 461 U.S. 424
(1983)). In determining the number of hours expended the Commission
recognizes that the attorney “is not required to record in great
detail the manner in which each minute of his time was expended.”
Id. However, the attorney does have the burden of identifying the
subject matters on which he spent his time by submitting sufficiently
detailed and contemporaneous time records to ensure that the time spent
was accurately recorded. Id.
Further, a reasonable fee award may be assessed in light of factors such
as: (1) the time required (versus time expended) to complete the legal
work; (2) novelty or difficulty of the issues; (3) the requisite skill to
properly handle the case; (4) the degree to which counsel is precluded
from taking other cases; (5) the relief sought and results obtained;
and (6) the nature and length of the attorney-client relationship. See
Cerny v. Dep't of the Army, EEOC Request No. 05930899 (Oct. 19,
1994). Complainant is only entitled to an award for time reasonably
expended. It does not always follow that the amount of time actually
expended is the amount of time reasonably expended. Elvin v. Dep't of
Labor, EEOC Request No. 01943425 (Aug. 31, 1995). Rather, “billing
judgment” is an important component in fee setting, and hours that
would not be properly billed to a private client are also not properly
billed to an Agency pursuant to a successful EEO claim. Id. Counsel
for the prevailing party should make a “good faith effort to exclude
from a fee request hours that are excessive, redundant or otherwise
unnecessary.” See Bernard, EEOC Appeal No. 01966861.
In the instant case, we find that a 25 percent across-the-board fee
reduction is warranted (thus Complainant is due 75% of the requested
fee amount). When reviewing fee petitions which contain many excessive,
redundant, unnecessary, or inadequately documented expenditures of time,
in lieu of engaging in a line-by-line analysis of each charge claimed,
the Commission may calculate the number of hours compensable by applying
an across-the-board reduction to the number of hours requested. See,
e.g., Bernard, EEOC Appeal No. 01966861. We decline to engage in a
line-by-line review of the instant fee petition. However, we observe,
as did the Agency, that the billing entry for February 26, 2007, appears
to describe the same tasks as an earlier entry. Furthermore, we find
that the hours billed for preparation of the fee petition appear to be
excessive in light of the number of billing entries contained in the
petition, the sole affidavit accompanying the petition, and the absence
of any evidence corroborating the hourly rate of the billing attorney.
We note that the Agency’s opposition does not indicate that the
Agency has paid any portion of the fees requested by Complainant or any
persuasive evidence showing that the hourly rate is excessive. Thus,
the Agency shall pay Complainant $9,877.50 ( $13,170 x 75%).
CONCLUSION
We MODIFY the Agency’s Final Determination with respect to the
Complainant’s request for an award of attorney’s fees. We ORDER
the Agency to take the remedial action herein.
ORDER
Within 30 days of the date this decision becomes final the Agency shall
pay Complainant attorney's fees in the amount of $9,877.50. The Agency
shall submit evidence that it paid the attorneys fees to Complainant to
the Compliance Officer as referenced herein.
ATTORNEY'S FEES (H0610)
If Complainant has been represented by an attorney (as defined by 29
C.F.R. § 1614.501(e)(1)(iii)), he/she is entitled to an award of
reasonable attorney's fees incurred in the processing of the complaint.
29 C.F.R. § 1614.501(e). The award of attorney's fees shall be paid
by the Agency. The attorney shall submit a verified statement of fees
to the Agency -- not to the Equal Employment Opportunity Commission,
Office of Federal Operations -- within thirty (30) calendar days of this
decision becoming final. The Agency shall then process the claim for
attorney's fees in accordance with 29 C.F.R. § 1614.501.
IMPLEMENTATION OF THE COMMISSION’S DECISION (K0610)
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 77960, Washington, DC
20013. 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 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) (1994 & Supp. IV 1999).
If the Complainant files a civil action, the administrative processing of
the complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. § 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 29
C.F.R. § 1614.405; Equal Employment Opportunity Management Directive
for 29 C.F.R. Part 1614 (EEO MD-110), at 9-18 (November 9, 1999).
All requests and arguments must be submitted to the Director, Office of
Federal Operations, Equal Employment Opportunity Commission, P.O. Box
77960, Washington, DC 20013. 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 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 (T0610)
This decision affirms the Agency’s final decision/action in part, but it
also requires the Agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion of
your complaint which the Commission has affirmed and that portion of the
complaint which has been remanded for continued administrative processing.
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 your appeal with the Commission, until such time as the Agency
issues its final decision on your complaint. 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, filing a civil action will terminate the
administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z0610)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
April 11, 2012
__________________
Date
2
0120082019
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120082019