In two recent cases, the EEOC has upheld an administrative judge (AJ) enhancing attorney fees above those requested by the complainants. In both Kann v. Dept. of Interior, Appeal No. 07A50039 (9/28/05), and Turton v. Dept. of Interior, Appeal No. 07A50040 (9/28/05), the commission awarded 20 percent increases in the amount of attorney fees awarded due to the degree of success and the quality of the representation. Despite the agency’s contention that the AJ should not have awarded the enhancements on his own, the EEOC found that the complainants were entitled to the higher amounts.

An attorney fee award is normally determined by multiplying a reasonable number of hours spent on a case times a reasonable hourly rate, also known as the “lodestar.” See 29 CFR 1614.501(e)(2)(ii)(B); Bernard v. Dept. of Veterans Affairs, EEOC Appeal No. 01966861 (7/17/98). The attorney has “the burden of identifying the subject matters which he spent his time by submitting sufficiently detailed and contemporaneous time records to ensure that the time spent was accurately recorded.” Bernard, supra. There are a number of factors which may be assessed to determine if the attorney fees are reasonable: 1. time required to complete matter; 2. novelty or difficulty of issues; 3, requisite skill to properly handle the case; 4. degree to which counsel is precluded from handling other cases; 5. relief sought and results obtained; and 6. nature and length of attorney-client relationship. Czerny v. Dept. of Army, EEOC Request No. 05930899. Billing judgment is very important, and counsel should make a “good faith effort” to exclude excessive or redundant billing time. Bernard, supra.

However, the EEOC regulations also provide that in limited circumstances the “lodestar” amount may be “increased in consideration of the degree of success, quality of representation, and long delay caused by the agency.” 29 CFR 1614.501(e)(2)(ii). The AJ in both cases found that the complainants’ high degree of success was a result of their highly competent attorney. In Kann, the attorney achieved “exceptional success” by securing a compensatory damage award of $100,000 and restoration of 26 days of leave. In Turton, the attorney achieved the same degree of relief. Therefore, the commission upheld the AJ’s enhancement of 20 percent which amounted to awards of attorney fees and expenses in excess of $100,000 for each case.

In the District of Columbia, attorneys can request attorney fees at market rates even if they are charging their clients reduced rates reflecting non-economic goals. Save Our Cumberland Mountains, Inc, et al. v. Secretary of the Interior, 857 F.2d 1516, 1524 (D.C. Cir. 1988), The EEOC has recognized the “Laffey Matrix” as the official statement of market-supported reasonable attorney’s fees rates for attorneys in the Washington, D.C. metro area.” Mora-Beals v. Broadcast Board of Governors, 2002 EEOPUB LEXIS 2232 (EEOC 4/9/02). It remains to be seen if the EEOC will enhance attorney fees when the complainant’s counsel is already receiving attorney fees at market rates.

* This information is provided by the attorneys at Passman & Kaplan, P.C., a law firm dedicated to the representation of federal employees worldwide. For more information on Passman & Kaplan, P.C., go to http://www.passmanandkaplan.com.

The attorneys at Passman & Kaplan, P.C, are also the authors of The Federal Employees Legal Survival Guide, Second Edition, a comprehensive overview of federal employees’ legal rights. To order your copy, go to http://www.fedweek.com/pub/index.php