Indian Human Resource Center, Inc., 1983-JTP-4 (Sec'y Jan. 2, 1986)
U.S. DEPARTMENT OF LABOR
SECRETARY OF LABOR
WASHINGTON. D.C.
In the Matter of
Case No. 83-JTP-4
INDIAN HUMAN RESOURCE
CENTER, INC.
FINAL DECISION AND ORDER
BACKGROUND
The issue in this case is whether the Indian Human Resource
Center, Inc. (IHRC) is entitled to attorney's fees and costs pur-
suant to the Equal Access to Justice Act (EAJA), 5 U.S.C. § 504 as
amended by Pub.L. No. 99-80 (August 5, 1985). IHRC is a private,
non-profit service provider of employment and training services in
the San Diego, California area. Through 1983, IHRC had been
selected as a grantee provider of these services to participants
in the Comprehensive Employment and Training Act (CETA) § 302
Indian and Native American programs in the San Diego area. In
1983, the Division of Indian and Native American Programs (DINAP)
of the Employment and Training Administration (ETA) of the
Department of Labor published a Solicitation for Notices of Intent
(SNOI) in the Federal Register.
The SNOI notified interested organizations of the
requirements and procedures to be followed in submitting Notices
of Intent to apply for Program Year 1984 funds supporting the
Indian and Native American programs under the auspices of the Job
Training Partnership Act (JTPA) 29 U.S.C. §§ 1501-1781 (1982).
Congress repealed CETA and replaced it with JTPA as the vehicle to
provide job training and related services to unemployed
and underemployed Americans. JTPA Section 401 specifically
targets Indians and Native Americans as its beneficiaries.
Subsequent to a review of the NOI's received by DINAP
in response to its SNOI, DINAP selected the California Indian
Manpower Consortium (CIMC) as the grantee provider of services for
the 1984 Program Year in the San Diego area. IHRC requested
reconsideration of its nonselection and when this was denied,
requested a hearing before the Office of Administrative Law
Judges. A hearing was held on February 6 and 8, 1984, before
Administrative Law Judge (ALJ) E. Earl Thomas. On May 14, 1984,
ALJ Thomas issued a Decision and Order remanding the, matter to
the Grant Officer to reconsider the applications of both IHRC and
CIMC. In doing so, he explicitly found that the Grant Officer's
nonselection of IHRC was "arbitrary and capricious and an abuse of
his discretion, which constitutes a violation of JTPA."
The Grant Officer did not appeal the ALJ's decision,
and reconsidered the selection of the San Diego area grantee
provider. On June 29, 1984, the Grant officer changed his earlier
decision and designated IHRC as the grantee provider of services
for the San Diego area for the JTPA S 401 program.
IHRC had filed an application for attorney's fees and costs
pursuant to EAJA in June, presumably based on its prevailing on
the remand, and amended its application in July, 1984, after its
selection as grantee.
On November 15, 1984, the ALJ awarded IHRC $6,428.70 in,
attorney's fees and costs. The Grant officer excepted to the
award, and the Secretary asserted jurisdiction on December 31,
1984.
DISCUSSION
The recent amendments to EAJA clarify the meaning of
the phrase "position'of the agency" to be inclusive of the
underlying action which gave rise to the adversary adjudication as
well as the litigation position of the agency. The underlying
action of the agency in this case was the methods used by DINAP to
nonselect IHRC as the designated grantee for the Indian and Native
American program in San Diego County. After a hearing, the ALJ
found the method use "arbitrary and capricious." The agency did
not challenge the decision or the ALJ's finding that its method
was arbitrary and capricious. Subsequently, the Grant officer
selected IHRC as the grantee. The record is silent regarding the
Grant Officer's reasons for reversing his choice. It is not
possible to conclude whether the Grant Officer tacitly agreed with
the characterization of the previous method as "arbitrary and
capricious" or if he still relied on the competitive standard used
in previously awarding the grant to CIMC. The subsequent adoption
and publication by ETA of regulations for a competitive selection
process for Indian and Native American programs similar to one
used in this case would indicate that the method originally
utilized was satisfactory. However, the failure of the Grant
Officer to appeal the ALJ's original decision precludes a
determination as to the substantial justification of the Grant
Officer's action in the original non-designation of IHRC.
Accepting the ALJ's decision, therefore, as conclusive, I conclude
that IHRC is entitled to attorney's fees and costs pursuant to
EAJA.
The ALJ awarded to IHRC attorney's fees in the amount of
$85.00 per hour. I find this to be contrary to the Department's
regulations concerning allowable fees and expenses. The $75.00
per hour limitation is established by the statute at 5 U.S.C.
504(b)(1)(A) as follows:
[A]ttorney or agent fees shall not be awarded in excess of
$75 per hour unless the agency determines by regulation that
an increase in the cost of living or a special factor, such
as limited availability of qualified attorneys or agents for
the proceeding involved, justifies a higher fee; (emphasis
supplied).
The Department has not provided for a higher attorney's fee
award. Although the subsection in the Department's regulations
following the $75.00 per hour attorney's fees limitation directs
the adjudicative officer to consider a number of factors in
determining the reasonableness of fees sought, I deem these
factors directions to be used in establishing the fees up to the
maximum allowed for attorneys and expert witnesses as well as the
"reasonable cost of any study, analysis, engineering report test
or project necessary for the preparation of the party's case;" 29
C.F.R. § 16.107(a)(2) (1985). However, IHRC is entitled to
attorney's fees for representation in contesting this present
appeal, as well its reasonable costs as defined by § 16.107(a)(2)
necessary to pursue this action.
Accordingly, I hereby remand this case to the Office of
Administrative Law Judges for the purpose of receiving, pursuant
to 29 C.F.R. § 16.201-16.203 (1985), additional information from
the attorneys for IHRC detailing the additional compensable time
expended on behalf of IHRC, plus such permitted costs as were
necessary to support the response to the Grant officer's
appeal of the award of attorney's fees. However, the maximum
compensation to be allowed for attorney's fees is not to exceed
$75.00 per hour.
Secretary of Labor
Dated: Jan. 2, 1986
Washington, D.C.
