04A20035
10-28-2002
William Congleton, Petitioner, v. John Ashcroft, Attorney General, Department of Justice, Agency.
William Congleton v. Department of Justice
04A20035
October 28, 2002
.
William Congleton,
Petitioner,
v.
John Ashcroft,
Attorney General,
Department of Justice,
Agency.
Petition No. 04A20035
Appeal No. 01A04726
Agency Nos. I-99-HO26; I-99-HO35; I-99-HO57; I-99-H070; I-00-H002
Hearing No. 100-AO-7181X
DECISION ON A PETITION FOR ENFORCEMENT
On August 16, 2002, the Equal Employment Opportunity Commission (EEOC
or Commission) docketed a petition for enforcement to examine the
enforcement of an order set forth in William Congleton v. Department
of Justice, EEOC Appeal No. 01A04726 (March 22, 2002). This petition
for enforcement is accepted by the Commission pursuant to 29 C.F.R. �
1614.503. Petitioner alleged that the agency failed to fully comply
with the Commission's order dated March 22, 2002.
BACKGROUND
On February 22, 2000, petitioner entered into a Settlement Agreement with
the agency's Immigration and Naturalization Service, resolving several
EEO complaints, in which petitioner alleged that the agency discriminated
against him on the bases of sex (Male), disability (mental), and in
reprisal for prior EEO activity. The Agreement provided for the agency
to pay reasonable attorneys fees and expenses, among other relief, in
exchange for withdrawal of all of petitioner's complaints. On February
29, 2000, complainant's counsel submitted a petition for attorney's fees
and expenses incurred in its representation of petitioner in the several
EEO complaints.
On March 31, 2000, the agency issued its first decision on the petition
denying the request in its entirety. On April 14, 2000, complainant's
counsel, on behalf of complainant, contacted the agency regarding the
denial, responding to each point raised by the agency. On June 21, 2000,
the agency issued its second, and final decision on the fee petition. In
its FAD, the agency approved $41,752.00 of the requested $104,925.68.
The agency denied the entire $1,071.93 requested as compensation for
expenses incurred during the representation. The agency also denied as
unreasonable or otherwise unavailable for payment 182.75 of the claimed
305.55 hours expanded on representation. The agency concluded that 122.8
hours were reasonably expended for representational activities, and agreed
to pay counsel for that number of hours at the hourly rate of $340.00.
The agency issued a check for $41,752.00 which was received by counsel
on July 13, 2000.
Petitioner appealed the agency's final decision. Petitioner claimed the
agency is in breach of the settlement agreement, challenging the agency's
determination of the reasonable number of hours of representation. In
EEOC Appeal No. 01A04726, the Commission found that counsel was entitled
to an award of attorney's fee as follows: $66,147.00 for 194.55 hours
at the hourly rate of $340.00, plus $85.75 for .35 hour at the hourly
rate of $245.00 crediting the earlier payment of $41,752.00, the total
amount due was $24, 480.75. The Commission further found that counsel
was also entitled to payment by the agency of reasonable attorney's fees
and expenses incurred in seeking enforcement of the settlement agreement.
The order specified that: (1) the agency shall pay to complainant's
counsel for reasonable attorney's fees the sum of $24,480.75; (2)
complainant's counsel shall submit to the agency a verified statement of
reasonable attorney's fees and expenses incurred in attempting to gain the
agency's compliance with the settlement agreement, counsel shall submit
this statement within thirty days, and then the agency shall process
the claim for attorney's fees and expenses; and (3) the agency shall
submit a compliance report within 30 calendar days of the completion of
all ordered corrective action. The matter was assigned to a Compliance
Officer and docketed as Compliance No. 06A20810 on March 29, 2002.
On August 16, 2002, petitioner submitted the petition for enforcement
at issue. Petitioner contends that the agency failed to pay for the
attorney's fees and expenses incurred after the Agreement was reached, or
even to issue a decision concerning the amount of such fees and expenses.
Petitioner also contends that he or his counsel did not received
the compliance report the Commission required the agency to produce.
Petitioner further contends that on April 29, 2002, the agency received
the attorney's fees submission dated April 26, 2002, which covered legal
work performed during the period February 22, 2000 and April 24, 2002,
and that the agency failed to respond to this submission. Petitioner
stated that agency did pay the additional sum of $24,480.75, for the
pre-settlement period, from February 16, 1999 through February 22, 2000.
Petitioner also submitted a �Complainant's Supplement to Petition for
Enforcement, and, in the Alternative, Notice of Appeal.� Petitioner
contends that on July 17, 2002, after the 60 day time period provided
in the Commission regulations, the agency's counsel wrote a letter
in response to petitioner's attorney's fees submission, and granted
petitioner the amount of $14,972.42. Petitioner contends that: (1) the
agency's purported determination should be disregarded by the Commission
as it is untimely in violation of the Commission �s Order and therefore
without force and effect; and (2) in the alternative, that the amount
awarded is inadequate, without basis in fact or law, and in violation of
the Commission's Order to award �reasonable attorneys fees and expenses
incurred...� Petitioner further alleged that the agency failed to
include required appeal rights in the letter.
The agency failed to respond to the petition.
ANALYSIS AND FINDINGS
At issue in this petition for enforcement is whether the agency failed
to comply with the Commission's Order to award reasonable attorney's fees
and expenses incurred in attempting to gain the agency's compliance with
paragraph 9 of the February 22, 2000 settlement agreement, including
fees incurred in the appeal. The record reveals that on April 26,
2002, petitioner submitted a statement of attorney's fees and costs
addressed to the Associate General Counsel, Office of General Counsel,
at the agency's Immigration and Naturalization Service, in Washington
D.C. The statement, included an affidavit from the Office Manager and
bookkeeper, and an affidavit from the petitioner's attorneys. The letter
covers attorney's fees from February 22, 2000 through April 24, 2002, and
expenses from February 2000 through March 2002. They total $45,649.70.
The record contains an indication that on July 17, 2002, the agency
responded to the statement of attorney's fees and costs. The agency
reviewed petitioner's request for attorney's fees, and granted
$14,972.42: $12,164.40, for one attorney's services; $2,456.00, for a
second attorney's services, $98.22 for Westlaw services, $31.75 for
Federal Express charges, $.55 for postage expenses, and $213.75 for
photocopying expenses.
Since the agency has failed to respond to this petition and because it
is apparent that the agency has not paid any fees for the post-settlement
period, as we ordered, we will decide the amount of fees to be awarded for
reasons of administrative economy and to bring this matter to closure.
See e.g. Kannikal v. Department of Justice, EEOC Petition No. 04A00017
(June 15, 2001).
There is a strong presumption that a complainant who prevails on a
claim of discrimination is entitled to an award of attorney's fees
and costs. More specifically, complainants who prevail on claims
alleging discrimination in violation of Title VII of the Civil
Rights Act of 1964, as amended, and the Rehabilitation Act of 1973,
as amended, are presumptively entitled to an award of attorney's fees
and costs, unless special circumstances render such an award unjust. 29
C.F.R. 1614.501(e)(1).
Attorney's fees will be computed by determining the "lodestar." The
"lodestar" is the number of hours reasonably expended multiplied by a
reasonable hourly rate. Hensley v. Eckerhart, 461 U.S. 424, 434 (1983). By
regulation, the Commission uses the same basis for calculating the amount
of attorney's fees. 1614.501(e)(2)(ii)(B). A reasonable hourly rate is
a rate based on "prevailing market rates in the relevant community" for
attorneys of similar experience in similar cases. Cooley v. Department
of Veterans Affairs, EEOC Request No. 05960748 (July 30, 1998) (quoting
Blum v. Stenson, 465 U.S. 886 (1984)).
The petitioner submitted declarations by his attorneys. According to
these declarations, the prevailing market rate for attorneys with similar
experience in similar kinds of cases, is $360.00 per hour, for an attorney
with more than twenty years of experience; and $170.00 per hour, for an
attorney with lesser years of experience. In addition, the attorney's
billing records indicate 113.10 hours expended by attorneys with a higher
level of experience and 25.80 hours by an attorney with lesser experience,
which results in attorney's fees of $45,102.00. In a letter dated July
17, 2002, the agency granted to petitioner $14,629, for attorney's fees.
The agency concluded that the total hours attributable to the work
performed on the OFO appeal appears to be 45.05 which is excessive in
light of the fact that the petitioner's attorneys prepared only one
notice of appeal and one appellate brief. The Agency concluded that
33.79 hours would be more reasonable. The agency granted $14,620.40 for
attorney's fees, instead of the $45,649.70, that petitioner requested.
The agency also granted $344.27, for expenses, instead of $547.70,
as petitioner requested.
We conclude that $45,649.70 is a reasonable amount for attorney's fees
and expenses for the period February 22, 2000 through April 24, 2002.
We also conclude that petitioner's attorney's fees submission was through
and detailed. Finally, we note that the agency failed to respond to the
attorney's fees statement within 30 days and failed to issue a decision
on the amount of such fees. Therefore, we conclude that the agency
failed to comply with our previous order. Petitioner is also entitled
to attorney's fees incurred in connection with the processing of this
petition for enforcement as set forth in the order below.
CONCLUSION
On review of the petition for enforcement, the agency's lack of a
response, the previous decision and the entire record, the Commission
grants the petition for the reasons stated heretofore. The agency is
directed to comply with the Order set forth below.
ORDER
The agency shall take the following actions within 30 calendar days of
the date of receipt of this
decision:
1. The agency shall issue a check representing payment of attorney's
fees and costs for $30, 677.28.
2. The agency shall calculate and pay attorney's fees for the instant
petition as directed in the �Attorney's Fees� section below;
3. The agency shall submit a report of compliance, as provided in the
section entitled �Implementation of the Commission's Decision� below.
ATTORNEY'S FEES (H0900)
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 (K0501)
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 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 PETITIONER'S RIGHTS ON PETITION FOR ENFORCEMENT
PETITIONER'S RIGHT TO FILE A CIVIL ACTION (R0900)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. 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 filed your appeal with the
Commission. 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 (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 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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
October 28, 2002
__________________
Date